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Madhya Pradesh High Court · body

2007 DIGILAW 921 (MP)

Subhash Chandra Agrawal v. State of M. P.

2007-08-23

S.K.GANGELE

body2007
ORDER 1. The petitioner has filed this petition with regard to grant of time bound promotion to the petitioner after completing twenty four years of service. 2. The petitioner was appointed Stenographer Grade III in the year 1974 and he was given the first benefit of higher pay scale under the Time Bound Promotion Scheme in the year 1989 on the post of Stenographer Grade II. The State Government issued a notification dated 19.4.1999, copy of which has been filed as Annexure P-3. By the aforesaid notification the Government has decided to grant benefit of time bound promotion after completing twelve years and twenty four years of service. As per the aforesaid notification after completing twenty four years of service the petitioner was entitled the benefit of second time bound promotion in the year 1999. However, he was not given the same benefit and junior to the petitioner had been given the benefit. Then the petitioner filed representation before the Authority. When he did not receive any reply he filed a writ petition before this Court which was registered as Writ Petition No.5560/2005(S) and disposed of vide order dated 9.12.2005 with the following directions: "2. Under the circumstances, the petitioner is directed to make a representation before the respondent No.2 within a period of 15 days from the date of passing of this order and respondent No.2 is directed to decide the representation within a period of two months thereafter and if the petitioner is legally entitled for the benefit of higher pay scale, the same shall be given to the petitioner without any further delay. In case no order is passed by the competent authority, i.e. the respondent No.2 the petitioner is free to file a necessary application for disobedience of the order passed by this Court. 3. With the above directions, the petition is finally disposed of." 3. In pursuance to the aforesaid order. Annexure P-l was issued by the department and it was informed to the petitioner that a departmental promotion committee considered the case of the petitioner but he was not found fit for grant of benefit of time bound promotion. 4. The respondents in the return stated that the case of the petitioner was considered by the Departmental Promotion Committee in its meeting held on 24.8.2005 and his ACRs for the years 1995, 1996, 1997, 1998 and 1999 were considered. 4. The respondents in the return stated that the case of the petitioner was considered by the Departmental Promotion Committee in its meeting held on 24.8.2005 and his ACRs for the years 1995, 1996, 1997, 1998 and 1999 were considered. However, because the petitioner became eligible for grant of second time bound promotion in the year 1999 and looking to his ACR gradings he was not found fit for the benefit. 5. Learned counsel for the petitioner has submitted that the criteria adopted by the Departmental Promotion Committee in considering the case of the petitioner for time bound promotion is arbitrary, illegal, against the circular of the Government and against the principles of time bound promotion. In support of her contention the learned counsel relied upon the judgment of Hon 'ble the Supreme Court in Dwijen Chandra Sarkar and another v. Union of India, reported in (1999) 2 SCC 119 and in Union of India and others v. M Mathivanan, reported in (2006) 6 SCC 57 . Contrary to this the learned Deputy Government Advocate has submitted that the case of the petitioner for time bound promotion has been considered by a properly constituted committee and the petitioner was not found fit as per the criteria fixed by the Committee for grant of benefit. The petitioner did not challenge the criteria of the Departmental Promotion Committee in the petition, hence there is no merit in this petition. 6. Undisputed facts of the case are that the petitioner was appointed as Stenographer Grade III in the year 1974 and he was given the benefit of first time bound promotion in the year 1989. After completing twenty four years of service, as per the return, the petitioner was entitled to benefit of second time bound promotion in the year 1999. In the meeting of the Departmental Promotion Committee held on 24.8.2005 petitioner's case was considered for the aforesaid purpose but he was not found fit for the benefit. 7. The General Administration Department issued a notification with regard to Time Bound Promotion Scheme dated 17th March 1995. As per the aforesaid Scheme an employee after completing twelve years and twenty four years of service is entitled to the benefit of higher pay scale of promoted post on the condition that he was not promoted on the higher post or he was not given the same benefit. As per the aforesaid Scheme an employee after completing twelve years and twenty four years of service is entitled to the benefit of higher pay scale of promoted post on the condition that he was not promoted on the higher post or he was not given the same benefit. The criterion for granting the benefit was consideration of five years preceding ACRs of the employee in the same manner as for promotion and if the employee will be found fit he will be given the benefit of time bound promotion. 8. The minutes of the Departmental Promotion Committee held on 24.8.2005 has been produced by the learned Dy. Government Advocate for the respondents for perusal of the Court. The original ACR gradings of the petitioner have also been produced. The meeting was presided over by Mr. R.P. Shrivastava, Chief Engineer and participated by five members. The Departmental Promotion Committee adopted the following criteria for promotion: (1) That generally five years ACR gradings should be "B" category "Good"; (2) Last ACR grading should not be "C" category; (3) Atleast three years ACR gradings should be higher than "B" category; and (4) If there was any "D" category then there must one "A" or "A +" category grading. The ACR gradings of the petitioner for the years of 3/95, 3/96, 3/97, 3/98 and 3/99 are as under: 1995 - 'C' (Ga) 1996 - 'B' (Kha) 1997 - 'B' (Kha) 1998 - 'B' (Kha) and 1999 - 'C' (Ga). 9. I have tallied the aforesaid gradings from the ACR folders and they are correct. Hence, the petitioner fulfilled the criteria of receiving three years ACR gradings of the last three years of 'B' category. However, because the ACR grading of any of the five years i.e. from 1995 to 1999 was not above 'B' category, hence the petitioner was not given the benefit of time bound promotion. 10. The Departmental Promotion Committee has not assigned any reason that why it has fixed the criterion for one year's ACR grading above 'B' category out of five years. The benefit of time bound promotion cannot be equated at par with the regular promotion for which the criteria is merit-cum-seniority. There are two criteria prescribed for considering an employee for regular promotion i.e. seniority-cum-merit or merit-cum-seniority. But, with regard to time bound promotion no such criteria has been prescribed. 11. The benefit of time bound promotion cannot be equated at par with the regular promotion for which the criteria is merit-cum-seniority. There are two criteria prescribed for considering an employee for regular promotion i.e. seniority-cum-merit or merit-cum-seniority. But, with regard to time bound promotion no such criteria has been prescribed. 11. Hon'ble the Supreme Court in Dwijen Chandra Sarkar and another v. Union of India (supra) has considered the concept of time bound promotion and held as under: "11. However, the position in regard to "time-bound" promotions is different. Where there are a large number of employees in any department and where the employees are not likely to get their promotion in the near future because of their comparatively low position in the seniority list, the Government has found it necessary that in order to remove frustration, the employees are to be given a higher grade in terms of emoluments while retaining them in the same category. This is what is generally known as the time-bound promotion. Such a time-bound promotion does not affect the normal seniority of those higher up. 12. If that be the true purpose of a time-bound promotion which is meant to relieve frustration on account of stagnation, it cannot be said that the Government wanted to deprive the appellants who were brought into the P & T Department in public interest of the benefit of a higher grade." The Hon'ble Supreme Court further in Union of India and others v. M. Mathivanan (supra) has held as under: "14. The learned counsel for the respondent is also right in placing reliance on the decision of this Court in Dwijen Chandra Sarkar v. Union of India (supra). Almost in similar circumstances, the Court considered the extent and applicability of Time-Bound Promotion Scheme and held that the benefit of the Scheme would be available to a person who had completed "sixteen years of service" in the grade in that case, two appellants were working in the Posts and Telegraphs Department and they had claimed the benefit of the Scheme. Initially, they were serving to the Rehabilitation Department of the Government of India, but were transferred to the Department of Posts and Telegraphs afterwards. Initially, they were serving to the Rehabilitation Department of the Government of India, but were transferred to the Department of Posts and Telegraphs afterwards. The question before the Court was whether the appellants were entitled to count the services rendered by them earlier in Rehabilitation Department of the Government of India and whether they would be entitled to the benefit of the Scheme by taking into account past services. The Court considered the scheme of December 1983 and held that what was required under the Scheme was completion of sixteen years of service in that grade. If the said requirement is complied with, an employee would be entitled to be placed in the next higher grade. It was observed that two concepts, namely (i) "time-bound promotion", and (ii) "regular promotion" were different. So far as the "time-bound promotion" was concerned, the Court observed that since there were large number of employees who were not likely to get promotion in the near future because of their comparatively low position in the seniority, the Government thought it necessary that in order to remove frustration the employees should be placed in the "next higher grade" in terms of emoluments while retaining them in the same cadre. This is what is generally known as the "time-bound promotion". Such "time-bound promotion" does not affect seniority of those higher up". 12. It is clear from the above principle of law enunciated by Hon 'ble the Supreme Court that time bound promotion is different from the regular promotion. In my opinion, for time bound promotion the criteria of merit-cum-seniority cannot be adopted because the purpose of granting time bound promotion is to grant benefit of higher pay scale to an employee on account of his stagnation in the cadre in order to remove frustration of the employee. In such circumstances, it was necessary for the Departmental Promotion Committee to fix a minimum criteria for promotion and that criteria cannot be equated with the criteria merit-cum-seniority. 13. In such circumstances, it was necessary for the Departmental Promotion Committee to fix a minimum criteria for promotion and that criteria cannot be equated with the criteria merit-cum-seniority. 13. In the present case the criteria fixed by the Departmental Promotion Committee that one ACR of the last preceding five years ACRs must be above than 'B' category cannot be said a fair criteria in consonance with the principle of grant of time bound promotion and if that criteria be removed then certainly because three years ACRs of the petitioner were of 'B' category and there was no 'C' category for the last five years ACRs, the petitioner is entitled to benefit of time bound promotion. 14. Consequently, the petition of the petitioner is allowed. The impugned order, Annexure P-l dated 8.3.2006 and the decision of the Departmental Promotion Committee dated 24.8.2005 holding the petitioner entitled for benefit of second time bound promotion are hereby quashed. The respondents are directed to grant benefit to the petitioner of second time bound promotion in pursuance to the meeting of the Departmental Promotion Committee dated 24.8.2005 as has been given to other employees. Because it is a benefit of higher pay scale hence petitioner is entitled to get the arrears. Necessary orders be passed in this regard within a period of three months from the date of receipt of a certified copy of this order. No order as to cost.