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Madhya Pradesh High Court · body

2009 DIGILAW 488 (MP)

Bharat Bhushan Sharma v. State of M. P.

2009-04-15

INDRANI DATTA, SUBHASH SAMVATSAR

body2009
ORDER 1. This writ appeal is preferred by the appellant challenging order dated 17.3.2009 passed in Writ Petition (S) No. 13/2009 passed by Single Judge of this Court whereby the petition filed by the present appellant was dismissed. 2. The brief facts of the case are that the appellant is a Government employee working on the post of Assistant Grade III at Janpad Panchayat, Vidisha. He filed a writ petition challenging the order dated 15.12.2008 whereby the respondent No.3 has been promoted to the post of UDC in the pay-scale of Rs.4,000-6,000/-. 3. The contention of the appellant is that he was found more meritorious than respondent No.3 by the DPC as he has secured 20 marks in the DPC while the respondent No.3 has secured only 13 marks, and therefore, he should be promoted. Respondents No.1 and 2 have committed error in promoting the respondent No.3. The order of promotion of respondent No.3 (Annexure P-l) was challenged by the present appellant by way of filing a writ petition i.e Writ Petition (S) No. 13/2009, which was dismissed by the impugned order. The learned writ Court upheld the order of promotion of respondent No.3 dated 15.12.2008, hence this appeal. Shri D.K. Katare, learned counsel for the appellant could not dispute that respondent No.3 is senior to the petitioner, his only contention is that as the appellant is more meritorious than respondent No.3, therefore, he should be promoted. 4. From perusal of the service rules namely M.P. Panchayat Service (Recruitment and General Conditions of Service) Rules, 1999 which governs the service conditions of appellant as well as respondent No.3, it is clear that criteria for promotion is seniority-cum-fitness. In the present case, the DPC has considered the cases of the petitioner as well as respondent No.3. As per the record of the DPC, the DPC has considered the confidential report of both the petitioner as well as respondent No.3 for the years 2002-03, 2003-04, 2004-05, 2005-06, 2006-07 and 2007-08. The appellant in all these years has been awarded grade "A+" (excellent) while respondent No.3 has been awarded "A" (good) in the year 2003-04 to 2004-05 and 2006-07 to 2007 -08 and has been awarded grade "average" in the year 2005-06. After perusal of the confidential report, the DPC has awarded 13 marks to the respondent No.3 and 20 marks to the present appellant and ultimately promoted respondent No.3 being senior. 5. After perusal of the confidential report, the DPC has awarded 13 marks to the respondent No.3 and 20 marks to the present appellant and ultimately promoted respondent No.3 being senior. 5. The counsel for the appellant submitted that even though as per the Rules, promotion is to be made on the basis of seniority-cum-fitness and the petitioner being better in merit, should be promoted. For this purpose he referred to the proviso to rule 23, which provide that if any person is found guilty of committing some mistake, his name can be deleted from the seniority list and his junior can be included in the said list. This proviso will not be applicable in the present case because there are no allegations against respondent No.3 to that effect. So far as principle of seniority-cum-merit is concerned, the apex Court has considered the principle of seniority-cum-merit in number of cases and held that seniority-cum-merit implies fulfilment of minimum prescribed standard of merit by candidates eligible for consideration and then making promotion out of them on the basis of their inter se seniority irrespective of their comparative merit. This principle is laid down by the apex Court in the case of B.V. Sivaiah and others v. K. Addanki Babu and others [ (1998)6 SCC 720 ]. 6. The apex Court in the case of Union of India v. Lt. General Rajendra Singh Kadyan and another [ (2000)6 SCC 698 ], has considered the criteria of seniority-cum-fitness and held that wherever fitness is stipulated as the basis of selection, it is regarded as a non-selection post to be filled on the basis of seniority subject to rejection of the unfit. Fitness means fitness in all respects. "Seniority-cum-merit" postulates the requirement of certain minimum merit or satisfying a benchmark previously fixed. Subject to fulfilling this requirement the promotion is based on seniority. There is no requirement of assessment of comparative merit both in the case of seniority-cum-fitness and seniority-cum-merit. Merit-cum-suitability with due regard to seniority as prescribed in the case of promotion for All India Services necessarily involves assessment of comparative merit of all eligible candidates and selecting the best out of them. 7. Thus, while promoting an employee on the basis of seniority-cumfitness, there is no requirement of assessment of comparative merit and an employee is to be promoted if he fulfils the minimum merit of satisfying a benchmark fixed by the DPC. 7. Thus, while promoting an employee on the basis of seniority-cumfitness, there is no requirement of assessment of comparative merit and an employee is to be promoted if he fulfils the minimum merit of satisfying a benchmark fixed by the DPC. 8. In the present case, we find that respondent No.3 fulfils the said requirement and assessment of comparative merit is not called for in the case for promotion on the basis of seniority subject to fitness. Hence, the writ Court has rightly dismissed the writ petition and upheld the order of promotion. 9. No jurisdictional error is found in the impugned order which calls for any interference. Appeal is therefore, dismissed.