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Madhya Pradesh High Court · body

2012 DIGILAW 388 (MP)

Ram Bharose Kamal v. State of M. P.

2012-04-10

SUJOY PAUL

body2012
ORDER 1. ln this petition fifed under Article 226 of the Constitution, petitioner has challenged his supersession. The petitioner was appointed as Forest Guard and is admittedly senior to respondent No.4 and 5. The respondents have promoted certain juniors of the petitioner on the higher post of Vanpal in the pay scale of Rs. 3500-5200/-by order dated 21.10.2002. After filing the representations, petitioner has challenged the said order and his supersession. 2. Shri Alok Sharma, learned counsel for the petitioner by placing reliance on M.P. Public Service (promotion) Rules 2002 (in short’2002 Rules’) submit that as per said rules, the criteria for promotion was ‘seniority subject to fitness’. Learned counsel for the petitioner submits that where the petitioner is admittedly senior to the private respondents herein, question of considering the comparative merits of the candidates in the criteria of ‘seniority subject to fitness’ does not arise. He submits that ACR is never communicated to him, therefore, his supersession by DPC was impermissible and liable to be interfered. 3. Smt. Patanker, learned Government Advocate, on the other hand supported the order of promotion of juniors. It is stated that although petitioner was senior but his case was duly considered in DPC held on 29.11.2002, which was supplemented by DPC held on 10.12.2002. It is further stated that after due assessment of record of petitioner vis-a-vis other eligible candidates, the petitioner was not found fit for promotion as he could not secure minimum prescribed bench mark. 4. I have heard learned counsel for the parties and perused the record. 5. The stand taken by respondents in not promoting the petitioner is of two fold - (i) Petitioner’s record was considered/compared by DPC vis-a-vis other eligible candidates and petitioner was not found fit. (ii) Petitioner was not found fit for promotion as he could not secure minimum prescribed bench mark as held by DPC. The relevant portion of return reads as under :- “Petitioner was duly considered in the DPC held on 29.11.2002 which was supplemented to the DPC held on 10.12.2002 and in the aforesaid DPC after due assessment of the record of the petitioner vis-a-vis to other eligible candidate, petitioner was not found fit for promotion as he could not secure minimum prescribed bench mark as laid down by DPC thus writ petition filed by the petitioner is without merit and deserves to be dismissed.” 6. In support of second contention, proceedings of DPS are filed as Annexure R/1, which shows that DPC has fixed the bench mark of 10 marks on the basis of ACR valuation. In other words, only those candidates whose service records are not poor and who have secured 10 marks on the basis of ACR gradings would be considered fit for promotion. 7. So far the first stand of the State is concerned, in the considered opinion of this Court, the said stand is impermissible. Rule 6(7) of 2002 Rules read as under :- “(7) For filling up the posts by this method, the Departmental Promotion Committee shall consider the case of each public servants separately on the basis of his own merit, that is to say, that there shall be no need to make a comparative assessment of the merits of public servant. The Departmental Promotion Committee shall consider the records of each public servant separately and shall categorise them as ‘fit’ or ‘not fit’.” A minute reading of this rule shows that the DPC is equipped with power to consider the record of each employee separately and categorize them as ‘fit’ or ‘not fit’. However, while doing so, the DPC cannot be permitted to make the comparative assessment of merits of public servant in the criteria of ‘seniority subject to fitness’. Thus, the stand of respondents that the petitioner’s service record was compared vis-a-vis other persons cannot be upheld as per sub Rule (7) aforesaid. The Apex Court in ¼2000½ 6 SCC 698 (Union of India and Others Vs. Lt. Gen. Rajendra Singh Kadyan and another) in para 12 held as under :- “There is no requirement of assessment of comparative merit both in the case of seniority-cum-fitness and seniority-cum-merit.” A conjoint reading of sub Rule (7) and para-12 of Lt. Gen. Rajendra (supra) would show that in the criteria of “seniority cum fitness” the DPC cannot consider the comparative merits of the candidates. To this extent, the stand of State cannot be upheld and is disapproved. 8. So far the second point aforesaid is concerned, the question is whether the DPC has power to fix the norms for the purpose of assessing the suitability of an employee and whether on the basis of such norms the employee can be termed as ‘fit’ or ‘not fit’. 8. So far the second point aforesaid is concerned, the question is whether the DPC has power to fix the norms for the purpose of assessing the suitability of an employee and whether on the basis of such norms the employee can be termed as ‘fit’ or ‘not fit’. A microscopic reading of sub Rule( 7) aforesaid shows that the DPC is equipped with the power and may categorize employee as ‘fit’or ‘not fit’. Thus, statutory provision itself gives an authority to the DPC to assess the fitness of an employee. 9. The Apex Court had an occasion to consider this aspect in (2007) 14 SCC 641 (Union of India & Another Vs. S.K. Goel & Others). The Apex Court held as under :- “The judgment of the Tribunal did not call for any interference inasmuch as it followed the well-settled dictum of service jurisprudence that there will ordinarily be no interference by the Courts of law in the proceedings and recommendations of DPC unless such DPC meetings are held illegally or in gross violation of the rules or there is misgrading of confidential reports. No judicial review of DPC proceedings, which are ordinarily conducted in accordance with the standing government instructions and rules is warranted. The observations of the High Court were wholly unjustified inasmuch as the post of Commissioner of Customs and Central Excise was a post required to be filled up on selection made strictly on the basis of merit. DPC had made an overall assessment of all the relevant confidential reports of the eligible officers who were being considered. DPC considered the remarks of the reviewing officers. There was clear application of mind. Respondent 1 did fulfill the benchmark. Hence, the impugned direction of the High Court ought not to have been issued as the same would have the impact of causing utter confusion and chaos in the cadre of the Indian Revenue Service and Customs and Central Excise Service”. (Emphasis supplied) In para 31 the Apex Court held as under :- “31. For the foregoing reasons, we hold that DPC enjoyed full discretion to devise its method and procedure for objective assessment of suitability and merit of the candidate being considered by it. Hence, the interference by the High Court is not called for”.(Emphasis supplied) 10. In (2007) 13 SCC 300 (Diploma Engineers Sangathan Vs. For the foregoing reasons, we hold that DPC enjoyed full discretion to devise its method and procedure for objective assessment of suitability and merit of the candidate being considered by it. Hence, the interference by the High Court is not called for”.(Emphasis supplied) 10. In (2007) 13 SCC 300 (Diploma Engineers Sangathan Vs. State of U.P.) the Apex Court has held that in criteria of seniority subject to fitness it does not mean that promotion is automatic on the basis of the seniority. It means that a list of all candidates in feeder post should be prepared in order of seniority and each candidate as per rank in seniority is considered on merits and whoever is found unfit is rejected. 11. On the basis of enabling provision of sub Rule (7) aforesaid and aforesaid two judgments of Supreme Court, it can be safely concluded that even in criteria of seniority-cum-fitness/suitability the DPC is empowered to assess and categorize the employees as ‘fit’ or ‘not fit’. For such determination as fit or not fit, the DPC has power to fix the criteria. In the present case no malice is alleged against the proceedings of DPC. This is also settled in law that this Court cannot sit as an appellate authority over the finding of DPC/Selection Committee. The DPC proceedings can be interfered with only if it runs contrary to the statutory rule or hits Wednesbury principles. 12. Thus, no interference is warranted in the findings of DPC whereby the petitioner was held to be unfit or not able to make the bench mark laid down by DPC. For the reasons stated above, no interference is warranted. Petition is devoid of merits and substance. It is accordingly dismissed.