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2010 DIGILAW 89 (CHH)

MAN HARAN PRASAD TIWARI v. STATE OF M. P.

2010-03-15

MANINDRA MOHAN SHRIVASTAVA

body2010
ORDER 1. With the consent of learned counsel for the parties, the petition is heard finally. 2. Grievance of the petitioner as set out in the petition is that on account of delay in grant of appropriate seniority, the petitioner's case for promotion to the higher post could not be considered in time resulting in promotion of number of persons who were finally found junior to the petitioner. 3. While working as Assistant Ayurved Chikitsa Adhikari in Janpad Sabha, on account of taking over Janpad Aushadhalaya, the petitioner's case for absorption was considered. Initially, he was absorbed as Compo under. As the petitioner claimed absorption on the post of Assistant Ayurved Chikitsa Adhikari, a civil suit was tiled by the petitioner which was finally decided vide order dated 23-041988. Thereafter, order of absorption of the petitioner on the post of Assistant Ayurved Chikitsa Adhikari was passed on 15-02-1989 (Annexure A-2) and the petitioner was so absorbed with effect from 01-04-1981. In the provisional gradation list which was issued on 02-11-1981, the petitioner's name did not find mention. On representation being made, name of the petitioner was placed at S.No.229 in the gradation list issued on 12-04-1993 (Annexure A-6). Aggrieved by this, the petitioner again made representation for assigning correct place in the gradation list. In the gradation list dated 18-10-1993 (Annexure A-8), the petitioner was placed at S.No.221. While this situation prevailed and the petitioner had been representing for grant of correct seniority, vide order dated 18-20-01-1994 (Annexure A-1), respondents No.3 to 45 were promoted on the post of Assistant Ayurved Chikitsa Adhikari. Finally, vide order dated 20-02-1995, considering representations of the petitioner, the petitioner was assigned correct placement at S.No.78 (A) in the gradation list. 4. The petitioner represented to respondent authorities claiming that on account of delay in deciding proper seniority, his case for promotion could not be considered when respondents No.3 to 45 were considered and promoted vide order dated 18/20-01-1994. The petitioner was finally promoted vide order dated 08-08-1997 (Annexure A-19) on the post of Assistant Ayurved Chikitsa Adhikari but with effect from the date of joining. 5. Learned counsel for the petitioner submits that once the petitioner was granted seniority as claimed by him placing him at S.No.78-A in the gradation list it became clear that he was illegally placed down-below in the gradation list. 5. Learned counsel for the petitioner submits that once the petitioner was granted seniority as claimed by him placing him at S.No.78-A in the gradation list it became clear that he was illegally placed down-below in the gradation list. Learned counsel further submits that in such a situation, respondent authorities were obliged under the law to consider the case of the petitioner for promotion from the date persons junior to him, were considered and finally promoted vide order dated 18/20-01-1994. 6. Per contra, learned State counsel submits that though the petitioner was absorbed on the post of Assistant Ayurved Chikitsa Adhikari, order came to be passed long after the judgment of the Civil Court and name of the petitioner was added in the gradation list at the bottom. He further submits that since case of the petitioner remained under consideration, finally he was granted seniority as claimed by him and placed at S.No.78-A, and thereafter, he was granted promotion vide order dated 08-08-1997 (Annexure A-19). Learned State counsel submits that the petitioner is not entitled to any other relief as promotion cannot be claimed as of right. 7. I have considered rival submissions made by learned counsel for the parties. 8. It cannot be disputed that pursuant to the judicial verdict in favour of the petitioner, he was absorbed on the post of Assistant Ayurved Chikitsa Adhikari vide order dated 15-02-1989. The claim of the petitioner that he was wrongly absorbed on the lower post found favour in judicial proceedings, and led to his absorption on the post of Assistant Ayurved Chikitsa Adhikari. The delay caused on the part of the respondents in absorbing the petitioner on the appropriate post fell heavily on him, as even though, he was finally absorbed on the post of Assistant Ayuiyed Chikitsa Adhikari, respondents placed him at the bottom of the list. It also cannot be disputed that after several representations made by the petitioner, the respondent authorities family placed the petitioner at S.No.78-A in the gradation list. This clearly shows that the petitioner was illegally deprived of correct placement in the seniority position and this position was conferred on him belatedly in the year 1995 vide order dated 20-02-1995 (Annexure A-9). It also cannot be disputed that after several representations made by the petitioner, the respondent authorities family placed the petitioner at S.No.78-A in the gradation list. This clearly shows that the petitioner was illegally deprived of correct placement in the seniority position and this position was conferred on him belatedly in the year 1995 vide order dated 20-02-1995 (Annexure A-9). As a necessary consequence of this order, respondent authorities were duty bound to consider the case of the petitioner for promotion to the post of Assistant Ayurved Chikitsa Adhikari as on the date all officers who were below S. No. 78 in the gradation list, were considered for promotion. Admittedly, vide order dated 18/20-01-1994 (Annexure A-1), respondents No.3 to 45 were promoted. A perusal of the relevant gradation list would show that all those officers whose name find place below S.No.78-A had superseded the petitioner. 9. In this view of the matter, I am inclined to hold that the petitioner is entitled to be considered for promotion on the date, respondents No.3 to 45 were considered and promoted vide order dated 18/20-01-1994 (Annexure A-1). Consequently, the petition is allowed. The respondent authorities are directed to consider the case of the petitioner for grant of promotion to the post of Assistant Ayurved Chikitsa Adhikari as on the date respondents No.3 to 45 were considered: If upon consideration the case of the petitioner for grant of promotion, he is found fit on the basis of criteria as was applied in case of respondents No.3 to 45, the petitioner shall be entitled to notional promotion as also fixation of pay, however, without actual financial benefits of arrears of pay. Needless to emphasize, benefits of notional promotion and fixation of pay shall be taken into consideration in the matter of pension of the petitioner, and if necessary, revision shall also take place. No orders as to cost. Petition Allowed.