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2011 DIGILAW 130 (MP)

Mahendra Kumar Mishra v. State of M. P.

2011-01-31

S.R.ALAM

body2011
ORDER S.R. Alam, C.J. 1. The writ petition is called out, however, none responded on behalf of the Petitioner, despite the name of the learned Counsel for the Petitioner being reflected in the daily cause list. 2. However, Shri Sanjay Dwivedi, learned Govt. Advocate on behalf of the State-Respondents is present. 3. I have perused the record. 4. The present petition was filed before the State Administrative Tribunal Jabalpur Bench and was registered as O.A. No. 544/1997, however, after abolition of the Administrative Tribunal the same was registered in this Court as W.P. No. 11208/2003. 5. The sole Petitioner has sought for quashing of the order of the Respondent No. 2 dated 12-2-1997 whereby his representation for giving seniority as Office Superintendent with effect from 1-6-1989 and to place him above the Respondents Nos. 3 and 4 has been rejected. A further prayer is made to command the Respondents Nos. 1 and 2 to consider his case for promotion to the post of Joint Registrar in view of the Tribunal's order dated 2-12-1996 passed in O.A. No. 2835/1995. Besides, to give him all benefits including differences of salary treating him as Office Superintendent with effect from 1-6-1989 and as Joint Registrar with effect from 1-6-1992. 6. It appears that the Petitioner was appointed as Lower Division Clerk (LDC) on 3-5-1966 in the Agricultural Department, however, his service was transferred to the Excise Department on 20-3-1970, thereafter to the Labour Department on 30th November, 1970. 7. The Petitioner, accordingly joined on Budhar Labour Court on 1-12-1970. He was thereafter promoted as Head Clerk on 17-01 -1978 and was confirmed on 8-5-1980. Whereas the Respondents Nos. 3 and 4 on whom the Petitioner is claiming seniority was promoted as Head Clerk in the years 1983 and 1984 respectively. The Petitioner, therefore, has claimed that since both the Respondents Nos. 3 and 4 are juniors to him as Upper Division Clerk (UDC) which is also reflected in the gradation list of 1985, he should have been placed above them and further ought to have been given promotion to the post of Office Superintendent which fell vacant in the year 1989. But, the Department ignoring his claim and seniority promoted one Smt. Nalini Desai as Office Superintendent, however, Smt. Nalini Desai has not been impleaded as Respondent in this petition. But, the Department ignoring his claim and seniority promoted one Smt. Nalini Desai as Office Superintendent, however, Smt. Nalini Desai has not been impleaded as Respondent in this petition. It has further been alleged that the Petitioner protested before the Chairman, State Industrial Court against the promotion of Smt. Nalini Desai. It appears that thereafter in the year 1991 the Respondents Nos. 3 and 4 were given officiating promotion as Accountant and Office Superintendent, who were junior to the Petitioner. In the gradation list published in the year 1992, the name of the Respondent No. 4 was shown in the cadre of Office Superintendent whereas the Respondent No. 3 was in the cadre of Accountant, but the name of the Petitioner was shown in the cadre of Head Clerk at Sr. No. 3. The Petitioner being aggrieved represented his case by making a representation on 30-10-1996. Thereafter, he again sent reminder on 24-01-1997 which has been rejected by the impugned order dated 12-2-1997. It has been alleged in the petition that the Department promoted the Respondents Nos. 3 and 4, who are junior to the Petitioner without holding a proper DPC and the entire action of the Respondents Nos. 1 and 2 promoting the Respondents Nos. 3 and 4 is arbitrary, discriminatory and hence, liable to be set aside. 8. On the other hand, Respondents Nos. 1 and 2 have filed return stating therein that the criteria for promotion is merit-cum-seniority and not seniority-cum-merit as has been alleged by the Petitioner. A copy of the rules have been enclosed as Annexure-R/1. A perusal thereof indicates that the promotion to the post of Office Superintendent is to be given on the basis of merit-cum-seniority. It has further been averred in the return that the Petitioner's case along with others was considered for promotion in the year 1989 and again in the years 1990 and 1991 along with all other eligible candidates. However, since he was not found fit he was not promoted. It has further been stated that in the year 1996 when he was found fit for promotion by the DPC, he was given promotion from that date. However, since he was not found fit he was not promoted. It has further been stated that in the year 1996 when he was found fit for promotion by the DPC, he was given promotion from that date. The contention that the promotion is to be given on seniority has been denied and it has been asserted that all eligible persons including the Petitioner were considered by the DPC and only those employees whose records were found better in comparison to others were considered and given promotion. It has further been stated that service record of the Petitioner was not as good as that of the Respondents Nos. 3 and 4 and, therefore, his grievance that they have been promoted without considering his claim is misconceived and deserves to be rejected. 9. The aforesaid averments in the return have not been controverted or denied by the Petitioner by giving rejoinder and thus, the fact that his claim for promotion was also considered along with other eligible candidates in the year 1989 and thereafter in 1990 and 1991 goes uncontroverted. The assertion in the return that the record of the Respondents Nos. 3 and 4 are better than the Petitioner also goes uncontroverted in the absence of rejoinder. 10. The Respondents in the return have stated that criteria for promotion to the post of Superintendent is merit-cum-seniority and not seniority-cum-merit as has been claimed by the Petitioner. A copy of the Schedule II of Rule 6 of the Madhya Pradesh Labour Service (Class III Non-Gazetted) Recruitment Rules, 1966 is enclosed as Annexure-R-I which lays down the criteria for promotion to the post of Superintendent. It provides that 100% posts are to be filled-up by promotion on the basis of merit-cum-seniority. Therefore, the criteria for promotion being merit-cum-seniority the Respondents Nos. 3 and 4 having been found more meritorious in comparison to the Petitioner there can be no exception to the order promoting them. When the rule provides that promotion is to be given on the basis of merit-cum-seniority then merit plays dominant role and if a person though is senior but he is found less meritorious cannot insist that promotion should be give only on the basis of his seniority. 11. The apex Court in B.V. Sivaiah and Ors. etc. v. K. Addanki Babu and Ors. etc. 11. The apex Court in B.V. Sivaiah and Ors. etc. v. K. Addanki Babu and Ors. etc. AIR 1998 SC 2565 while considering the principle of 'merit-cum-seniority' in paragraph 9 of the judgment observed that the principle of 'merit-cum-seniority' lays greater emphasis on merit and ability and seniority plays a less significant role. Seniority is to be given weight only when merit and ability are approximately equal. 12. However, there is another aspect of the matter, promotion is not a matter of right. It is well settled legal proposition that an employee cannot claim promotion as a matter of right and at the most he is entitled only to be considered for such promotion. Reference may be made to Indravadan H. Shah v. State of Gujrat and Anr. AIR 1986 SC 1035 and Director, Lift Irrigation Corporation Ltd. and Ors. v. Pravat Kiran Mohanty and Ors. (1991) 2 SCC 295 . 13. In the case in hand, it is an admitted position that the claim of promotion of the Petitioner was considered by the duly constituted DPC, however, because of his service record he was not recommended. However, when subsequently his service record was improved the DPC recommended his promotion and consequently he was promoted with effect from 1996. 14. Thus, in my view the Petitioner has failed to make out a case for grant of relief sought in this petition. Consequently, the writ petition being devoid of merit, is dismissed but without costs. Petition dismissed.