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Madhya Pradesh High Court · body

2008 DIGILAW 363 (MP)

JAGDISH KUMAR SHRIVASTAVA v. STATE OF M. P.

2008-03-04

S.C.SHARMA

body2008
Judgment ( 1. ) PETITIONER being aggrieved by his supersession to the post of treasury Officer and Accounts Officer (M. P. Accounts Services) has initially preferred original application before the State Administrative Tribunal Bench at gwalior. The Original Application has been received on transfer after abolition of the State Administrative Tribunal to this Court. ( 2. ) THE contention of the petitioner is that he was initially appointed as lower Division Clerk w. e. f. 13-4-1966 and was later on promoted by virtue of his excellent service record to the post of Assistant Internal Audit Officer, M. P. Sub-ordinate Accounts Services (M. P. S. A. S.) w. e. f. 22-12-1979. Petitioner has enclosed the gradation list showing the position as on 1-4-1993 published in the year 1994 by the M. P. Subordinate Accounts Services wherein the name of his position at Serial No. 11. ( 3. ) THE grievance of the petitioner is that a Departmental Promotion committee meeting took place in the year 1988 and persons juniors to the petitioner have been promoted to M. P. Accounts Services which includes posts like Treasury Officer and Accounts Officer etc. It has been further stated by the petitioner that against his supersession, a representation was also made by him, no proper reply was given by the respondents and therefore, petitioner left no choice ventilated his grievance by preferring original application. The respondents have filed detailed return and it has been stated by the respondents that the DPC was held in the year 1998 and the case of the petitioner was considered along with other eligible persons, the DPC did not find the petitioner fit for promotion and he was not included in the select list. The reasons assigned in the reply are that petitioner did not secure the marks upto range for his inclusion in the select list and the juniors have obtained such marks, hence they were recommended for promotion after their inclusion in the select list by the DPC. ( 4. ) RESPONDENTS were directed to produce the minutes of the DPC and accordingly, minutes of the DPC were produced at the time of final hearing of the petition. The criteria for promotion as per recruitment rules is seniority-cum-merit and the DPC evolved a criteria to judge the individuals within the zone of consideration. ( 4. ) RESPONDENTS were directed to produce the minutes of the DPC and accordingly, minutes of the DPC were produced at the time of final hearing of the petition. The criteria for promotion as per recruitment rules is seniority-cum-merit and the DPC evolved a criteria to judge the individuals within the zone of consideration. As per the criteria evolved by the DPC, five years ACRs were taken into account and it was held that the average of 5 years ACR should be good (Achchi Shreni ). Out of five years ACRs two ACRs should be very good. None of the ACR should be Poor/below average (Gha Shreni ). ACR folder of the petitioner was also produced at the time of final hearing and the contention of the learned counsel for the petitioner is that there is no adverse remark communicated to him. It is argued that there is no adverse remark in the acr for the years in question, his service record has to be treated as good and respondents cannot deny promotion to the petitioner. It is also contended that the action of the respondents finding the petitioner to be not fit for promotion is contrary to the recruitment rules and also contrary to service record of the petitioner. ( 5. ) THE service conditions of the petitioner are governed by rules known as m. P. Accounts Services (Recruitment and Conditions of Service) Rules, 1965. The DPC has taken into account of the aforesaid Rules of 1965 and also the M. P. Civil Services (Reservation in Promotion and Limits on the extent of Zone of consideration) Rules, 1997 while holding the DPC, thus the criteria provided under the recruitment rules is seniority-cum-merit. ( 6. ) AFTER going through the ACR of the petitioner and the minutes of the dpc, it is evident that the petitioner was not having criteria fixed by the DPC for promotion. The DPC has adopted the principle of seniority-cum-merit, petitioner was not able to qualify the bench mark and as the petitioner has not able to obtain bench mark, the question of placing him in the select list does not arise. It has been brought to my notice during the course of hearing that petitioner is subsequently promoted to the post in question on 17-10-2002, though it has got nothing to do with the present petition. It has been brought to my notice during the course of hearing that petitioner is subsequently promoted to the post in question on 17-10-2002, though it has got nothing to do with the present petition. Taking into consideration of the material available on record, I am of the opinion that the DPC has carefully considered the acrs of the petitioner and based on the criteria fixed by the DPC, the petitioner was not found fit for promotion to the next higher post. ( 7. ) THE criteria adopted by the DPC is seniority-cum-merit which postulates the requirements of certain minimum merit or satisfying a pre-determined bench mark. Subject to fulfilling this requirement the promotion is based on seniority. The petitioner was not able to qualify pre-determined bench mark, he has rightly been superseded, and therefore, no case is made out for interference by this court. It is settled proposition of law that the findings of the DPC normally does not warrant any interference. ( 8. ) THE Apex Court in the case of Badrinath vs. Government of Tamil Nadu and others, (2000) 8 SCC 395 has held that under Article 226 of the Constitution the Courts should not interfere with the assessments made by the Departmental promotion Committee. It has been further held as under :-"until there is a strong case for applying the Wednesbury doctrine or there are mala fides, Courts and Tribunals cannot interfere with assessments made by the DPCs in regard to merit or fitness for promotion. But in rare cases, if the assessment is either proved to be mala fide or is found based on inadmissible or irrelevant or insignificant and trivial material and if an attitude of ignoring or not giving weight to the positive aspects of ones career is strongly displayed, or if the interference drawn are such that no reasonable person can reach such conclusions, or if there is illegality attached to the decision, then the powers of judicial review under Article 226 of the Constitution are not foreclosed. Undue interference by the Courts or Tribunals will result in paralyzing recommendations of Departmental Committees and promotions. Every officer has a right to be considered for promotion under article 16 to a higher post subject to eligibility, provided he is within the zone of consideration. Undue interference by the Courts or Tribunals will result in paralyzing recommendations of Departmental Committees and promotions. Every officer has a right to be considered for promotion under article 16 to a higher post subject to eligibility, provided he is within the zone of consideration. But the manner in which his case is to be considered is a matter of considerable importance in service jurisprudence as it deals with "fairness" in the matter of consideration for promotion under Article 16. In this connection, from the case-law, following principles can be deduced : (1) Under Article 16 of the Constitution, right to be "considered" for promotion is a fundamental right. It is not the mere "consideration" for promotion that is important but the "consideration" must be "fair" according to established principles governing service jurisprudence. (2) Courts will not interfere with assessment made by DPCs unless the aggrieved officer establishes that the non-promotion was bad according to Wednesbury principles or was mala fides. In the present case, no case has been made out which establishes that the petitioner was not promoted on account of mala fide or the decision was hit by the Wednesbury principles. ( 9. ) THE Apex Court in the case of Joginder Singh and others vs. Roshan Lal and others, reported in (2002) 9 SCC 765 has observed that a High Court in exercise of jurisdiction under Article 226 of the Constitution is not supposed to act an Appellate Authority over the decision of a Departmental Selection committee, if the committee has been properly constituted. As in this case the committee was properly constituted and the process of selection is known to law which is fair to all then the High Court should not normally interfere with the findings of the DPC. There are no allegations of mala fides or bias against any member of the Promotion Committee and therefore, there is no question for interfering with the finding arrived at by the DPC in the present petition. ( 10. ) IN view of the settled principle of law, no case is made out for interference with the assessment made by the DPC, petition is therefore, devoid of merit and substance deserves to be and is hereby dismissed. ( 11. ) ACCORDINGLY, petition stands dismissed. No order as to costs. Petition dismissed.