Research › Search › Judgment

Madhya Pradesh High Court · body

2012 DIGILAW 1109 (MP)

S. S. Tomar v. State of M. P.

2012-11-02

K.K.TRIVEDI

body2012
JUDGMENT : The grievance of the petitioner is that though he was senior to the private respondents No. 3 and 4 right from the day one, he was superseded in the matter of promotion on the post of Joint Director and the aforesaid two respondents have been promoted on the higher post erroneously. It is contended that the petitioner since has been superseded in the matter of promotion on the post of Joint Director in an illegal manner, the action on the part of the respondents is per se illegal. 2. In short the claim of the petitioner is that by holding selection for appointment on the post of District Woman & Child Development Officer by the M. P. Public Service Commission, an order of appointment was issued on 8-2-1995. The petitioner was selected and was put at S. No. 2 of the merit list by the Public Service Commission, according to which in the order of appointment issued by the State Government, the name of the petitioner was at S. No. 2. The respondents Nos. 3 and 4 were also selected for such appointment by the Public Service Commission and their names were at S. Nos. 3 and 4 of the merit list. Accordingly, they have been appointed along with the petitioner but were given the placement below the name of the petitioner in the order of appointment at S. No. 3 and 4. Such a situation has remained intact even when the seniority lists were circulated and the respondents No. 3 and 4 were shown junior to the petitioner throughout. On account of the merits of the persons, when a D.P.C. was convened for promotion on the post of Deputy Director in the Department, the name of the petitioner was also considered and since he was found fit for such promotion, by order dated 25-4-1998, the petitioner was promoted as Deputy Director. The respondents No. 3 and 4 too were promoted by the very same order and they were mentioned at S. Nos. 9 and 10 below the name of the petitioner in the said order. Again the D.P.C. was required to be convened for promotion on the post of Joint Director only because the suitable officers fulfilling the conditions as prescribed under the Rules were not available, after granting relaxation. 9 and 10 below the name of the petitioner in the said order. Again the D.P.C. was required to be convened for promotion on the post of Joint Director only because the suitable officers fulfilling the conditions as prescribed under the Rules were not available, after granting relaxation. In the said D.P.C. the case of the petitioner too was considered but instead of promoting him on the post of Joint Director, the respondents No. 3 and 4 were promoted vide order dated 14th December, 1999. The representation was made by the petitioner, which was forwarded to the competent authority for consideration but the same was rejected vide impugned order dated 20-1-2005 saying that since the D.P.C. has not found the petitioner fit for promotion, he was rightly superseded in the matter of promotion as Joint Director. By this order since the rejection is communicated to the petitioner, he has approached this Court by way of filing of this writ petition. On the basis of these allegations the petitioner has claimed the relief to the effect that after perusal of the record, a direction be issued to the respondents to promote the petitioner on the post of Joint Director and place him above respondents No. 3 and 4. 3. Contesting the claim made by the petitioner, the respondents No. 1 and 2 only have filed the return. Despite service of the notices of the writ petition, the respondents No. 3 and 4 have not come before this Court. It is contended by the respondents No. 1 and 2 in their return that the claim made by the petitioner is hopelessly barred by limitation as order was issued on 14-12-1999 promoting respondents No. 3 and 4 on the post of Joint Director but the writ petition is filed in the year 2005. However, it is contended by the respondents that the D.P.C. was held on 8-12-1999. The petitioner too was considered for promotion. However, it is contended by the respondents that the D.P.C. was held on 8-12-1999. The petitioner too was considered for promotion. The selection was to be made on the basis of merit-cum-seniority and as a limited period was to be seen as none of the persons, to be considered for promotion on the post of Joint Director, have fulfilled the criteria of 5 years of working on the post of Deputy Director and specific relaxation was granted in that respect, it was decided by the D.P.C. that those who have obtained 11-12 marks in their ACRs grading would be graded as 'excellent'. It was further resolved that those who have obtained 8 to 10 marks would be graded as 'very good', those who have obtained 5 to 7 marks would be graded as 'good' and those who have obtained 5 marks would be graded as 'average'. It is the contention of the respondents that the petitioner was graded as 'very good' whereas respondents No. 3 and 4 were graded as 'excellent' and, therefore, they were found fit for promotion whereas the petitioner was not found fit for such promotion. Thus, it is contended that since rightful appreciation of the merit of the petitioner was done, no case was made out to interfere in the action taken by the respondents and, therefore, the petition is liable to be dismissed. 4. The petitioner has moved an application for taking certain documents on record along with which the petitioner has placed on record his ACRs obtained under the Right to Information Act. The petitioner has further prayed that the original record of the D.P.C. may be called and seen. This Court has taken the ACRs of the petitioner on record and has sent for record of the D.P.C., which is produced before this Court. After perusal of the D.P.C. record it is clear that the marking in the ACRs grading of the petitioner was not rightly appreciated. The Department itself has prepared a master chart, which was placed before the D.P.C. for consideration. In the relevant years which ware taken into consideration by the D.P.C. of the year 1999, the grading shown in the ACRs of the petitioner are + XXX XXX XXX in all the three years. It was categorically said that there was no complaint with respect to the integrity of the petitioner nor any departmental enquiry was pending against him. In the relevant years which ware taken into consideration by the D.P.C. of the year 1999, the grading shown in the ACRs of the petitioner are + XXX XXX XXX in all the three years. It was categorically said that there was no complaint with respect to the integrity of the petitioner nor any departmental enquiry was pending against him. No complaints were received against him. The gradings of the respondents No. 3 and 4 were also specifically mentioned. In the case of respondent No. 3, he too was granted in all the three years. In case of respondent No. 4, she was graded XXX XXX XXX for one year and XXX XXX XXX for the remaining two years. The calculation of the marks obtained on the basis of aforesaid ACRs were done by the D.P.C. For the petitioner it was said that he has obtained only 10 marks whereas for the respondent No. 3 it was said that he has obtained 12 marks and for respondent No. 4 it was said that she has obtained 11 marks. In view of this, it was said that the petitioner was graded as 'very good' whereas the respondents No. 3 and 4 were graded as 'excellent'. 5. This Court fails to understand as to how this can be done. If the gradings of the ACRs'of the petitioner were identical to the gradings of the ACRs of respondent No. 3, how could he be granted 10 marks for the same whereas the respondent No. 3 was granted 12 marks for the very same gradings. Apparently, there was a calculation mistake on the part of the respondents or the D.P.C. The Rules nowhere prescribe that the gradings of the ACRs can be changed by the D.P.C. Normally, the downgrading is not permissible without giving an opportunity of hearing to the concerned employee. The ACRs produced by the petitioner are seen and it is found that in one of the ACRs, the initiating officer has graded him as 'very good' but the reviewing and final authorities have graded him as 'excellent' and have recorded the reasons for the same. This is apparent from the ACR of the year 1997-1998. Undisputedly, for the other two ACRs the petitioner was graded throughout as excellent officer. This is apparent from the ACR of the year 1997-1998. Undisputedly, for the other two ACRs the petitioner was graded throughout as excellent officer. If that was the situation, there was no question of treating the ACR of the petitioner for the year 1997-1998 as 'very good' and it was to be treated as 'excellent'. Even otherwise if that is not done, the petitioner would obtain 11 marks and in that situation again he would be at par with the respondent No. 4. At any rate there was no question of grading the petitioner as a 'very good' officer by the D.P.C. instead of grading him as 'excellent' officer as was done in the case of respondents No. 3 and 4. Thus, it is apparent that the consideration of the claim of petitioner for promotion was not rightly done by the D.P.C. and in such circumstances, this Court will not hesitate in exercise of its extraordinary power of judicial review of such action of the D.P.C. 6. Consequently, this writ petition is allowed. The order rejecting the representation of the petitioner so issued on 20-1-2005 (Annexure P-7) is hereby quashed. The matter is remitted back to the respondents to consider the case of the petitioner in terms of the specific findings recorded hereinabove with respect to the gradings of the ACRs of the petitioner for the aforesaid three years by holding review D.P.C. within a period of two months from the date of receipt of certified copy of the order passed today and to grant him benefit of promotion on the post of Joint Director, if found fit, as was done in the case of respondent Nos. 3 and 4, protecting the seniority of the petitioner on the said post, over and above respondents No. 3 and 4 with all consequential benefits. However, the D.P.C. will not formulate any other criteria then the criteria adopted in D.P.C. of 8-12-1999 and will adjudge the case of petitioner only. In case any further consideration for promotion was done in respect of respondents No. 3 and 4 or they are going to be considered for promotion on the next higher post, the direction contained hereinabove will be complied with first and then only D.P.C. would be convened for consideration of the claim for further promotion. 7. The writ petition is accordingly allowed and disposed of. 7. The writ petition is accordingly allowed and disposed of. However, there shall be no order as to costs. Petition allowed.