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Madhya Pradesh High Court · body

2008 DIGILAW 699 (MP)

State of M. P. v. Subhash Chandra Agrawal

2008-05-15

S.A.NAQVI, SUBHASH SAMVATSAR

body2008
ORDER Samvatsar, J. -- 1. This appeal is filed by the State Government being aggrieved by the order dated 23.8.2007 passed by the learned Single Judge of this Court in WP No.2529/2006(S), whereby the learned Single Judge has allowed the petition filed by respondent Subhash Chandra Agrawal and quashed the order dated 8.3.2006 (Annexure P-1) of the respondents, whereby they have refused to grant benefit of second time-bound promotion on the ground that he was not found fit for higher pay-scale. 2. Brief facts of the case are that respondent Subhash Chandra Agrawal was appointed as Stenographer Grade III in the year 1974. He was given the first benefit of higher pay-scale in the year 1989 under the time-bound scheme framed by the State Government and he was promoted to the post of Stenographer Grade II. 3. The State Government has framed a policy, which was notified on 19.4.1999 (Annexure P-3) for giving benefits of time-bound promotion to the Government servants after completion of 12 years of service and 24 years of service. As per the aforesaid notification, an employee on completing 24 years of service is entitled to the benefit of second time bound promotion. 4. The respondent was appointed as Stenographer Grade III in the year 1974, hence according to him he was entitled to the benefit of second time-bound promotion the year 1999. However, the said benefit was not given to him and the same benefit was extended to his junior. He, therefore, made a representation to the authorities, but did not get any reply, hence he filed Writ Petition No.5560/2005, which was disposed of with a direction to the petitioner to make a representation before the respondents within a period of 15 days from the date of passing of order and the respondents shall decide the same within a period of two months thereafter and if petitioner is legally entitled for the benefit of higher pay-scale, the same shall be given to the petitioner without any further delay. Pursuant to the said direction, the order Annexure P-1 was issued, by which promotion to the petitioner was denied on the ground that after considering his ACRs, he was not found fit for promotion by the DPC. Resultantly, the benefit of second time-bound promotion was denied to him. 5. Pursuant to the said direction, the order Annexure P-1 was issued, by which promotion to the petitioner was denied on the ground that after considering his ACRs, he was not found fit for promotion by the DPC. Resultantly, the benefit of second time-bound promotion was denied to him. 5. This order was challenged by the respondent herein by filing WP(S) No.2529/2006, which was allowed by the learnd writ Court of this Court vide order dated 23.8.2007. The learned writ Court quashed the order dated 8.3.2006 (Annexure P-1) and directed the appellants herein to grant benefit of second time-bound promotion to the respondent herein in pursuance of meeting of the DPC held on 24.8.2005. Hence, this writ appeal. 6. Shri Vivek Khedkar, learned counsel for the appellants-State has urged that the impugned order is factually incorrect. He submitted that the Court cannot sit as an appellate authority on the decision of the DPC, hence the learned Single Judge has committed grave error in allowing the writ petition. On the other hand, Ms. Deeksha Mishra, learned counsel for the respondent has vehemently opposed and supported the impugned order. 7. The State Government for grant of benefit of time-bound promotions has framed a policy, which was notified on 17.3.1999, which provides that every employee shall be entitled to a minimum benefit of higher pay-scale, first on completion of 12 years and second on completion of 24 years of service. Clause (c) of the said scheme provides for grant of benefit of time-bound promotion pay-scale, and 5 years' ACRs of the employee shall be examined in the same manner, in which the case of the employee is considered for promotion to the higher post, and if employee is found fit, then he can get the benefit of time-bound promotion. 8. Learned counsel for the appellants has submitted that the learned Single Judge has allowed the writ petition filed by the respondent by holding that the scheme of time-bound promotion is different from regular promotion, and therefore, the criteria of merit-cum-seniority cannot be adopted, because the purpose of granting time-bound promotion is to grant benefit of pay-scale to an employee on account of stagnation in the cadre in order to relieve frustration to the employee. In support of this principle, the learned Single Judge has relied on judgment of the apex Court in the case of Dwijen Chandra Sarkar and another v. Union of India, reported in (1999)2 SCC 119 . 9. From perusal of the aforesaid judgment, we find that principle laid down in the aforesaid judgment is not applicable, because in that case criteria for merit-cum-seniority was applied. This is not a situation in the present case. The policy Annexure P-3 clearly lays down that benefit of time-bound promotion shall be extended to an employee only after consideration his 5 years' ACRs in the same manner, which is applicable to promotion. 10. So far as promotions are concerned, service conditions of the respondent are governed by the rules viz. Irrigation Department (Non-Gazetted) Service Recruitment Rules, 1969. 11. Rule 14 of the said Rules, 1969 relates to conditions of eligibility for promotion. The policy provides that a person shall be granted time-bound promotion only in the manner which is provided for promotion in the rule. Thus rule 14 is applicable in case of time-bound promotion. This rule clearly provides the criterion of seniority-cum-merit. Schedule IV of the said Rules provides for eligibility criteria of an employee for promotion. Thus, it is clear that an employee has to be considered for time-bound promotion in accordance with rule 14 i.e. after applying the principle of seniority-cum-merit. The DPC for considering the case of the respondent herein was held on 24.8.2005 and the record of the DPC was produced before this Court at the time of hearing. The DPC for considering the case of the employees for promotion has laid down the norms, which are as under: (i) Five years ACRs which are under consideration should be generally "Good". (ii) The latest ACR should not be "C". (iii) The employee should get at least 3 "B" in last five years and one higher than "B". (iv) If an employee gets 2"C", he should get 2"A" in the last five years. The ACRs which were considered by the DPC in the case of the respondent herein from the year 1995 to 2005 i.e. 10 years, as per the norms laid down by the DPC they were required to consider five years ACRs. 12. (iv) If an employee gets 2"C", he should get 2"A" in the last five years. The ACRs which were considered by the DPC in the case of the respondent herein from the year 1995 to 2005 i.e. 10 years, as per the norms laid down by the DPC they were required to consider five years ACRs. 12. Contention of learned counsel for the respondent is that five years ACRs means the ACR for the year 1995, 1996, 1997, 1998 and 1999 should have been considered by the DPC and the ACRs of the subsequent years are not relevant, as the respondent has completed 24 years of service in the year 1999. 13. Learned counsel for the State, however, contended that as the respondent was promoted to the post of Stenographer Grade II in the year 1989, 12 years of service will be completed in the year 2001, and therefore, the ACRs for the year 1997, 1998, 1999, 2000 and 200 1 should have been considered by the DPC and other ACRs are not relevant. 14. The ACRs which are produced before this Hon'ble Court from the year 1995 to 2005 show that the ACRs of the respondent for the years 1995 and 1999 are "C" while ACRs for the year 1996, 1997 and 1998 are "B". If these ACRs are considered, then respondent is not entitled for higher pay-scale, because he does not fall in category "B" of five years, and he has got "C" in the year 1999, therefore, he is not entitled for promotion. Moreover, clause 3 provides that if an employee shall get only 3"B" in last five years, and have earned above "B" atleast in one year. In the present case, the respondent has not got any gradation above "B" from the years 1995 to 1999. Even assuming that the respondent-employee was entitled for promotion in the year 2001, still he could not be promoted as per criteria, because from the year 1997 to 2001, he has got only 2"B" and 3"C", hence for this reason also he is not qualified as per the norms laid down by the DPC. 15. The apex Court in the case of C.P. Kalra v. AIR India [1994 Supp.(1) SCC 454], has laid down that criteria laid down by the DPC for promotion should not be interfered by the High Court unless and until it is arbitrary, unfair or irrational. 15. The apex Court in the case of C.P. Kalra v. AIR India [1994 Supp.(1) SCC 454], has laid down that criteria laid down by the DPC for promotion should not be interfered by the High Court unless and until it is arbitrary, unfair or irrational. In the case of State of Rajasthan v. Fateh Chand Soni [ (1996)1 SCC 562 ], the apex Court in the para 8 of its judgment has held that the High Court, in our opinion, was not right in holding that promotion can only be to a higher post in the service and appointment to a higher scale of an officer holding the same post does not constitute promotion. In the literal sense the word "promote" means "to advance to a higher position, grade, or honour". So also 'promotion' means "advancement or preferment in honour, dignity, rank, or grade". 'Promotion can be either to a higher pay-scale or to a higher post". 16. Thus, reasoning given by the learned Single Judge that the criteria laid down for promotion cannot be made applicable for granting benefit of time-bound promotion pay-scale, cannot be accepted. 17. Learned counsel for the respondent has submitted that the respondent was not served with an adverse entry, hence denying him promotion on the basis of entry, he cannot be deprived of his promotion. Thus, argument is without any merit. In the present case, we find that there is no adverse entry against the respondent. The respondent has got "B" and "C" grade in all the years. 18. Contention of learned counsel for the respondent is that it is a case of down grading, and therefore, it was necessary for the department to afford him an opportunity of hearing. For this purpose, she has relied on judgment of the apex Court in the case of U.P Jal Nigam and others v. Prabhat Chandra Jain and others [ (1996)2 SCC 363 ]. 19. From perusal of the said judgment, we find that this judgment does not support the contention of learned counsel for the respondent. In that case gradation of the employee was 'outstanding' in one year followed by 'satisfactory' in the succeeding year and the apex Court, therefore, held that this reflects adverseness, and therefore, it was necessary to communicate the same to the employee and to afford an opportunity of hearing. In that case gradation of the employee was 'outstanding' in one year followed by 'satisfactory' in the succeeding year and the apex Court, therefore, held that this reflects adverseness, and therefore, it was necessary to communicate the same to the employee and to afford an opportunity of hearing. The apex Court in para 3 of the aforesaid judgment laid down that if the graded entry is of going a step down, like falling from 'very good' to 'good' that may not ordinarily be an adverse entry since both ate a positive grading. 20. In the present case, down grading from "B" to "C" i.e. from 'good' to 'satisfactory'. Thus, there is normal gradation, which does not require any opportunity of hearing to the employee. The apex Court in the case of Union of India v. A.K. Narula [ AIR 2007 SC 2296 ], has laid down that the guidelines give a certain amount of play in the joint to the DPC by providing that it need not be guided by the overall grading recorded in the CRs, but may make its own assessment on the basis of the entries in the CRs. The DPC is required to make an overall assessment of the performance of each candidate separately, but by adopting the same standards, yardsticks and norms. It is only when the process of assessment is vitiated either on the ground of bias, mala fides or arbitrariness, the selection calls for interference. Where the DPC has proceeded in a fair, impartial and reasonable manner, by applying the same yardstick and norms to all candidates and there is no arbitrariness in the process of assessment by the DPC, the Court will not interfere. In the absence of any allegation of mala fide or bias against the DPC and in the absence of any arbitrariness in the manner in which assessment has been made, the High Court was not justified in directing that the benefit of upgrading be given to respondent. 21. In the present case, we find that the DPC has laid down the norms, which are made applicable uniformly to all the candidates under the zone of consideration. 21. In the present case, we find that the DPC has laid down the norms, which are made applicable uniformly to all the candidates under the zone of consideration. There are no allegations of mala fides or bias against the members of the DPC, and therefore, the learned Single Judge has committed an error in interfering in the process of selection of the DPC and passing directing the respondents to grant the benefit of second time-bound promotion to the respondent herein. In view of the matter, we find that the impugned order cannot be allowed to stand and the same deserves to be set aside. 22. Resultantly, writ appeal succeeds and is allowed. The impugned order passed by the learned Single Judge is hereby set aside and the order dated 8.3.2006 (Annexure P-l) passed by the Chief Executive, Water Resources Department, Bhopal is restored.