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Madhya Pradesh High Court · body

2013 DIGILAW 979 (MP)

D. P. SHARMA v. STATE OF M. P.

2013-08-20

K.K.TRIVEDI

body2013
ORDER K.K. Trivedi, J.—This petition was originally filed as Original Application before the M.P. Administrative Tribunal, Jabalpur, ventilating the grievance with respect to the promotion of respondents No. 4 and 5 on the post of Principal Class-II, superseding the claim of petitioner vide order dated 5-2-2003. The Original Application has remained pending when the Tribunal was closed and the same is transmitted to this Court and is registered as writ petition. It is the contention of the petitioner that he was initially appointed on the post of Instructor on 9-6-1962 in the Industrial Training Institute. Later on, the petitioner was promoted on the post of senior Instructor in the year 1968 and thereafter on the post of Group Instructor. Vide an order dated 1-1-1999, he was promoted to the post of Vice Principal. Throughout respondents No. 4 and 5 were shown junior to him. In the order dated 1-1-1999, the petitioner was shown at serial No. 23, whereas, the name of respondent No. 4 was at Serial No. 34. Even the name of respondent No. 5 was not shown in the said order. In the seniority list, the petitioner was shown senior to respondents No. 4 and 5. However, while considering the cases for promotion on the post of Principal Grade-II, he has illegally been superseded. This being so, the petitioner claimed the relief of promotion on the said post from the date the juniors to him were promoted with all the consequential benefits. 2. A return has been filed by the respondents No. 1 to 3 and they have contended that in terms of the Rules entitled M.P. Industrial Training (Gazetted) Service Recruitment Rules, 1992, consideration was to be done on merit-cum-seniority, for promotion on the next higher post shown in the Gazetted Rules. A Departmental Promotion Committee (hereinafter referred to as DPC for brevity) meeting was convened on 12-7-2002 in which cases of all such persons who were within the zone of consideration were considered. The criteria were prescribed by the DPC in the proceedings and after due consideration since the petitioner had not fulfilled the criteria laid down, his name was not included in the select list. The respondents No. 4 and 5 were found fit by the said DPC and were put in the select list, therefore, they were promoted. The criteria were prescribed by the DPC in the proceedings and after due consideration since the petitioner had not fulfilled the criteria laid down, his name was not included in the select list. The respondents No. 4 and 5 were found fit by the said DPC and were put in the select list, therefore, they were promoted. According to the respondents, since the right to be considered for promotion is the only right available to a Government employee and such right is rightly granted to the petitioner, no case is made out to grant any relief as claimed and the petition being devoid of any substance deserves to be dismissed. 3. No rejoinder whatsoever has been filed by the petitioner, but it is contended that consideration if not rightly done, as has been found in some of the cases, the petitioner would be equally entitled to the relief granted by this Court in similar matters. 4. Heard learned counsel for the parties at length, perused the record including the DPC proceedings produced by the Government Advocate. 5. This Court has considered the proceedings done by the DPC on earlier occasion in two of the matters. In Writ Petition No. 8116/2003, which too was filed by a person similarly situated like petitioner before the M.P. Administrative Tribunal Bench at Gwalior as O.A. No. 280/2003, Iqbal Mohammad v. State of M.P. and others, this Court has came to the conclusion that the DPC proceedings were not rightly done, in terms of the Rules referred to herein above. What was pointed out to this Court that though a criteria was specifically mentioned in Rule 15 of the Rules, wherein it was said that the selection for inclusion in such list shall be based on merit and suitability in all respect with due regard to seniority, but in view of the subsequent policy made by the State Government if promotion is not to be made on a Class-I post, the criteria of seniority-cum-merit alone was to be made applicable. It was further pointed out in view of the law laid down by the Apex Court in the case of B.V. Sivaiah and Others etc. Vs. It was further pointed out in view of the law laid down by the Apex Court in the case of B.V. Sivaiah and Others etc. Vs. K. Addankl Babu and Others etc., that where the criteria of seniority-cum-fitness or seniority-cum-merit only is the basis for consideration, only the minimum criteria can be laid down and merit assessment would not be necessary for inclusion in the select list. This Court has considered the case of said Iqbal Mohammad, who has approached the M.P. Administrative Tribunal at Gwalior, vis-?-vis, the claim of promotion of Shri Y.P. Chaturvedi, Shri Jitendra Kumar and Shri R.K. Sharma, who were promoted in the like manner by the impugned order and has held that overall assessment of the Annual Confidential Reports (hereinafter referred to as ACR for brevity), was to be taken into consideration and not that of the criteria of merit. In the DPC record produced before this Court, it is clear that the petitioner was having three Good remarks in the ACR, one Excellent ACR, but in the last ACR which was taken into consideration, the gradation of the petitioner was average. Thus, it has to be held that in fact only because of this last ACR said to be average i.e. ACR of the year 2001, the petitioner was not found fit for grant of promotion. This could not be rightful assessment of an employee for promotion as in the terms of the criteria prescribed if the petitioner has not earned ACR of Good category in the last two years of ACRs which were taken into consideration, he could not have been denied the promotion, on the basis of criteria of seniority-cum-merit. 6. The other reason is that in the year 1998, the General Administration Department of Government of Madhya Pradesh has formulated a policy after taking a cabinet decision that in all Service Rules, for promotion from Class-III to Class-II post, the criteria of seniority-cum-merit alone would be applicable. Admittedly, the DPC meeting was held in the year 2002, i.e. after taking a policy decision by the State, therefore, there was no occasion to consider the case of the petitioner on the basis of merit-cum-seniority criteria. Admittedly, the DPC meeting was held in the year 2002, i.e. after taking a policy decision by the State, therefore, there was no occasion to consider the case of the petitioner on the basis of merit-cum-seniority criteria. Again in some what similar circumstances where the promotion was called in question by one of the retired Vice Principal, Shri V.V.J. Parthasarthi by filing a Writ Petition No. 7467/2007(S), this Court while taking a decision on 8-11-2011 came to the conclusion that if there was any such ACR which was coming in way of promotion, the said ACR should have been communicated to the employee concerned. The Apex Court in the case of U.P. Jal Nigam and others Vs. Prabhat Chandra Jain and others, and in the case of U.P. Jal Nigam Vs. S.C. Atri and Another, came to the conclusion that if such an ACR is coming in way, it has to be treated as adverse and is required to be communicated and then only the same can be taken into consideration. In the case of Dev Datt v. Union of India, AIR 2008 SC 2513 , the law in this respect is reiterated by the Apex Court. One more glaring fact is that the penultimate year ACRs of the petitioner according to respondents themselves was excellent, but the last ACR of the petitioner was average. There was a downgrading from excellent to average in the matter of performance of the petitioner and this should have been brought to the notice of the petitioner immediately as the same would have come in way of the petitioner for promotion. Nothing is indicated in the return filed by the respondents that this ACR was brought to the notice of the petitioner and he was granted an opportunity to explain his conduct on account of which such a grading was done in the ACR. Thus, in all fairness, the petitioner should not have been denied the benefit of promotion. It has to be held that the right of consideration for promotion was not conferred on the petitioner in rightful manner as there was no proper assessment of the claim of petitioner for grant of such promotion in appropriate manner. 7. Consequently, the petition is allowed. It has to be held that the right of consideration for promotion was not conferred on the petitioner in rightful manner as there was no proper assessment of the claim of petitioner for grant of such promotion in appropriate manner. 7. Consequently, the petition is allowed. The respondents are directed to hold a review DPC and to consider the case of petitioner for grant of promotion on the post of Principal Class-II as was done in case of respondents No. 4 and 5, adopting the same norms which were adopted by the DPC, which convened its meeting on 12-7-2002, ignoring such an aspect on account of which the petitioner was superseded and to reconsider the case of petitioner for grant of promotion on the aforesaid post. In case the petitioner is found fit for grant of such promotion, the same be granted to him with retrospective effect, the date, the same was granted to respondents No. 4 and 5 vide order dated 5-2-2003 with all the consequential benefits of such promotion, such as pay, allowances and seniority over and above the respondents No. 4 and 5. After grant of such promotion, the pay of the petitioner be revised on the pay scale available to the promotional post and consequential revision of pension and retiral dues of the petitioner be done and arrears of such amount be paid, within a period of three months from the date of receipt of copy of the order passed today. The petition is allowed to the extent indicated herein above. There shall be no order as to costs.