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2014 DIGILAW 5 (MP)

Pratibha Rajgopal v. State of M. P.

2014-01-02

K.K.TRIVEDI

body2014
Judgment: K.K. Trivedi, J. 1. By this petition under Article 226 of the Constitution of India, the petitioner is denied consideration for promotion-on the post of Professor and a junior to her, namely, the respondent No. 6 has been promoted on various grounds, inter alia that a Departmental Promotion Committee (hereinafter referred to as the DPC for brevity) meeting was held in which the claims of persons like petitioner were to be considered, but instead of granting promotion to the petitioner in appropriate manner, by order dated 12-4-2010 Annx. P/13, the respondent No. 6 has been promoted on the post of Professor, it is contended that the petitioner became eligible to be considered for promotion from the post of Reader to the post of Professor in the year 2006, but such a consideration was not done. When the representations were made, it was said that in the Academy where the petitioner was posted, post was not available in the concerned subject, therefore, the petitioner could not be promoted. It is further contended that though the petitioner was senior to respondent No. 6, yet her claim was not considered in appropriate manner. Refuting such allegations, the respondents No. 1 to 4 have filed their return and categorically contended that services or the petitioner are governed by the Rules known as Madhya Pradesh Academy of Administration Service (Gazetted) Recruitment Rules, 1997 (hereinafter referred to as the Rules for brevity) and as per Rules, the post of Professor Public Administration is to be filled up 100% by promotion from Reader/Select Grade pay scale on completion of six years of service and taking into consideration last five years Annual Confidential Reports (hereinafter referred to as ACRs for brevity). It is contended that a meeting of DPC was held on 1-1-2010, but the claim of the petitioner could not be considered for want of current ACRs. It is contended that wrongly it was alleged that respondent No. 5, who was Officer Incharge of the Academy, has deliberately misplaced the ACRs of the petitioner. It is contended that by mistake the ACR of the year 2009 of the petitioner was placed in some other file and when enquiry was conducted in this respect, suitable orders have been passed against the concerning officer by the respondents showing displeasure. It is contended that by mistake the ACR of the year 2009 of the petitioner was placed in some other file and when enquiry was conducted in this respect, suitable orders have been passed against the concerning officer by the respondents showing displeasure. A review DPC has been held in which the case of the petitioner is considered, but looking to the fact that the age of retirement of the petitioner was challenged in a writ petition which was pending before this Court, it was decided that the review DPC will be held only after decision in the said case. However, on an advise received from the counsel, a DPC meeting was held on 29-6-2010, the case of the petitioner was considered taking into note of ACR from the year 2004-2005, 2008-2009 and the petitioner is not found fit for promotion as she could not touch the benchmark. This being so, it is contended that rightful consideration of the petitioner has been done in the matter of promotion and the petitioner would not be entitled to any relief whatsoever claimed in the present writ petition. However, they have further categorically mentioned in para 7 of their return that the Rules known as Madhya Pradesh Public Service Commission (Promotion) Rules, 2002 (hereinafter referred to as the Promotion Rules for short), were framed and have been made applicable in the matter of promotion of the persons like petitioner and in accordance to those Rules since the petitioner has not achieved the benchmark, she has not been promoted. 2. The rejoinder has been filed by the petitioner categorically stating that ACR of the year 2009 was not to be taken into consideration as the vacancy was of the year 2004 and the ACR from the year 1999 to 2004 were to be taken into consideration. It is further contended that though the consideration is done at a later year, but the respondent No. 6 has been granted promotion with retrospective effect vide order dated 12-4-2010, and this shows that, in fact, vacancy was available, but the claims were not considered at the relevant time. That being so, in terms of the Promotion Rules, the entire consideration was improperly done and the petitioner would be thus entitled to the reliefs claimed in the writ petition. 3. That being so, in terms of the Promotion Rules, the entire consideration was improperly done and the petitioner would be thus entitled to the reliefs claimed in the writ petition. 3. The respondent No. 6 has raised certain preliminary objection with respect to the claim made in the writ petition and has much or less contended the very same facts except that he is promoted in a different faculty i.e. Sociology and, therefore, the petitioner who was working in a different faculty or subject, cannot claim benefit against the respondent No. 6. It is contended that the petitioner is a Reader in the subject of Public Administration and, therefore, claim made against the respondent No. 6 is misconceived. No additional return is filed by the State Government in answer to the rejoinder filed by the petitioner. 4. This Court has sent for the record of the DPC which is produced before this Court for perusal. 5. Heard learned counsel for the parties at length and perused the record. 6. Undisputedly, and as has been categorically admitted by the respondents No. 1 to 4, the Promotion Rules are made applicable in the department of the respondents where the petitioner is employed. The Promotion Rules specifically provides amendment of the recruitment Rules which are in force governing services in different departments. Rule 15 of the Promotion Rules read thus:-- "15. Amendment in the Recruitment Rules.--All rules regulating the recruitment to the State Public Services and the posts shall be deemed to have amended to the extent as provided in these rules." 7. The object of framing of these Promotion Rules is to prescribe a uniform Scheme of Promotion in public services and post in State of Madhya Pradesh. Thus, the provisions of Rule 15 is deliberately made by the Rule Making Authority. The basis for promotion is prescribed in Rule 4 of the Promotion Rules, which categorically prescribes consideration of claim for promotion from Class-IV to higher pay scale of Class-IV, Class-IV to Class-III, Class-III to higher pay scale of Class-III, Class-III to Class-II, Class-II to higher pay scale of Class-II and Class-II to Class-I post, which is to be made only and only on the basis of seniority subject to fitness. The promotion from Class-I to higher pay scale of Class-I post alone are to be made on the basis of merit-cum-seniority. The promotion from Class-I to higher pay scale of Class-I post alone are to be made on the basis of merit-cum-seniority. The different modes of consideration is prescribed for the aforesaid promotions as Rule 6 of Promotion Rules, deals with the procedure which is to be followed for promotion on the basis of seniority subject to fitness and Rule 7 of the Promotion Rules deals with the procedure to be followed for promotion on the basis of merit-cum-seniority. The benchmark criteria is prescribed in cases where the merit-cum-seniority is the criteria for consideration. Sub-rule (4) of Rule 7 of the Promotion Rules prescribes the method of working out the vacancies for promotion during the course of the year, which makes it clear that year-wise vacancies have to be fixed. Sub-rule (5) of Rule 7 of the Promotion Rules, specifically prescribes that the meeting of the DPC shall be held every year and it shall consider the suitability of the public servant for promotion separately with reference to the vacancy of each previous year starting with the earliest year onward. A complete perusal of this sub-rule will make it clear that for each year vacancy, separate consideration is to be done and separate select list is to be prepared for the relevant year accordingly. Sub-rule (9) of Rule 7 of the Promotion Rules prescribes grading of the ACR and assigning of marks. From this, it would be clear that for each year vacancy, preceding five years ACRs from the year of vacancy are to be taken into account and the claim of such persons are to be considered. Even if the DPC meeting is not held immediately in the particular year when the vacancy occurred, in any subsequent year if the DPC meeting held, the ACR prior to the date of year of vacancy have to be considered and not the subsequent ACRs, up till the year of holding of the actual DPC meeting. Otherwise if it is allowed to consider the claims of suitable persons on the basis of subsequent ACRs also ignoring the year of vacancy, the very purpose of making prescription of year-wise consideration of vacancies would be frustrated and would render otiose. Otherwise if it is allowed to consider the claims of suitable persons on the basis of subsequent ACRs also ignoring the year of vacancy, the very purpose of making prescription of year-wise consideration of vacancies would be frustrated and would render otiose. That being so, even if the DPC meeting was to be held in the year 2010, the ACRs preceding five years from the date of year of vacancy alone were to be taken into consideration and not the subsequent ACRs. 8. In view of the aforesaid analysis, if the DPC record is examined, it would abundantly clear that on 1-1-2010 when the DPC meeting was held, the ACRs for the year ending 31-3-2005 to 31-3-2009 were taken into consideration. It was nowhere mentioned in the said DPC that vacancy was of the year 2009 or 2010. From the order issued by the respondents, it is clear that vacancy occurred in the year 2004 and the DPC meeting was held in the year 2010 only. Thus, the entire proceedings of DPC meeting held on 1-1-2010 were vitiated by improper procedure followed by the said DPC. The fact that the respondent No. 6 was promoted though by order dated 12-4-2010, but the benefit of promotion was granted with effect from 27-7-2004 has been categorically mentioned in the order of fixation of pay of the respondent No. 6 dated 20-4-2011. This makes it clear that the vacancy was there on 27-7-2004 and the claim was to be considered for promotion against the said vacancy. Naturally the ACRs for the year 2005 onwards were not to be taken into account and five years preceding ACRs from the year of vacancy alone were to be considered for such promotion. It is contended by the petitioner in her rejoinder that if the ACRs from the year 1999 to 2004 would have been taken into consideration, she would have acquired 15 marks on the basis of those five years ACRs, in terms of the grading assigned to her strictly in following the procedure as prescribed in sub-rule (9) of Rule 7 of the Promotion Rules. This particular submission of the petitioner has not been denied. The record of DPC produced before this Court indicates consideration of claim of persons like petitioner and respondent No. 6 in different-manner, de hors the procedure prescribed in the Promotion Rules, therefore, such DPC proceedings cannot be sustained in law. This particular submission of the petitioner has not been denied. The record of DPC produced before this Court indicates consideration of claim of persons like petitioner and respondent No. 6 in different-manner, de hors the procedure prescribed in the Promotion Rules, therefore, such DPC proceedings cannot be sustained in law. 9. In view of the discussions made herein above, this Court is left with no option, but to quash the entire DPC proceedings held by the respondents on 1-1-2010 as also on 22-4-2010 and 29-6-2010 and remit back the matter to the respondents to hold a review DPC in terms of the provisions of M.P. Public Service (Promotion) Rules, 2002, keeping in view the vacancy of the year 2004 for promotion on the post of Professor and to reconsider the case of the petitioner as also respondent No. 6, and to issue the necessary orders in this respect. However, since now the respondent No. 6 is promoted with retrospective effect and is working presently, in case a review DPC is held and he is found fit for grant of promotion, keeping in view the vacancies, strictly in the order of merits of the petitioner and respondent No. 6, his promotion be regularised. Needless to say in case the petitioner is found fit for such promotion on merits, she would be entitled to all benefits of such promotion as have been granted to respondent No. 6, with effect from the retrospective date of promotion. Let the aforesaid exercise be completed within a period of four months from the date of receipt of certified copy of the order passed today. With the aforesaid, the writ petition stands allowed to the extent indicated hereinabove. However, there shall be no order as to costs.