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Madhya Pradesh High Court · body

2016 DIGILAW 692 (MP)

S. K. Bhadania v. M. P. Housing Board

2016-08-12

SUJOY PAUL

body2016
ORDER : Sujoy Paul, J. In these batch of petitions, the grievance of the petitioners is common. They are aggrieved by order dated 15.07.2005 whereby their juniors/private respondents are promoted on the post of Account Officer/Estate Officer. 2. The petitioners contended that they were working as Branch Officer/Estate Manager. The gradation list showing position as on 1.1.2001 (Annexure P/4) shows that petitioners are senior to private respondents. The names of petitioners find place at No. 4, 5, 7 and 8 whereas the names of private respondents are at No.9,12 and 13. The reliance is placed on another gradation list showing position as on 1.4.2005 (Annexure P/5) wherein petitioners names are mentioned at No.1,2,3 and 4 whereas private respondents are at Nos. 5, 6, and 7. 3. Shri S.P. Rai, learned counsel for the petitioner contended that promotion in question is to be made by applying provisions of M.P. Public Service (Promotion) Rules, 2002 (hereinafter referred to as "Promotion Rules). It is submitted that as per rule 2(f), the respondent/Board is covered under the definition of "Establishment". The promotion in question is from class-II to Class-I post and, therefore, as per rule 4(1), the criterion is "seniority subject to fitness". Shri Rai relied on Rules 6(5) and (7) of Promotion Rules to contend that the Departmental Promotion Committee (DPC) should have applied the criterion of "Seniority subject to fitness" and there was no question of making comparative assessment of merits or fixing benchmark for the candidates. By taking this court to DPC proceedings filed with the rejoinder, it is urged that the DPC, in fact, applied the criterion of "merit cum seniority". It is urged that DPC, in fact, considered the comparative merits of the candidates which is impermissible as per promotion rules. In support of aforesaid contention, Shri Rai relied on Abhijit Ghosh Dastidar v. Union of India- (2009) 16 SCC 146 , Haryana State Warehousing Corporation v. Jagat Ram- (2011) 3 SCC 422 , Ram Bharose Kamal v. State of M.P. and others- (2012)3 MPLJ 464 and D.P. Sharma v. State of M.P and others-ILR 2015 MP 852. 4. Per contra Shri Gourav Tiwari, learned counsel for the respondents supported the impugned order. He submitted that petitioners have already retired from service. He relied on various paragraphs of the return. 5. The respondents have relied on the same promotion rules. 4. Per contra Shri Gourav Tiwari, learned counsel for the respondents supported the impugned order. He submitted that petitioners have already retired from service. He relied on various paragraphs of the return. 5. The respondents have relied on the same promotion rules. The respondents have vehemently denied that promotions from Class-II to Class-I posts have been made in violation of the promotion rules. It is admitted that candidates were placed before DPC for consideration as per seniority. The DPC fixed the norms of selection in consonance with the criterion of "seniority subject to fitness". It is also denied that DPC has only considered merit and ignored the seniority. The respondents have not doubted the genuineness of the DPC proceedings filed by the petitioner along with the rejoinder. 6. No other point is pressed by learned counsel for the parties. 7. I have heard the parties at length and perused the record. 8. The record shows that DPC was convened on 16.6.2005 for the aforesaid promotional posts. Clause (1) of the proceedings shows that promotion rules of 2002 were made applicable and criterion for promotion was "seniority subject to fitness". For the purpose of seniority, the seniority list showing the position as on 1.4.2004 became the basis. No zone of consideration/limit was made by the DPC. Clause (1) of the proceedings shows that promotion rules of 2002 were made applicable and criterion for promotion was "seniority subject to fitness". For the purpose of seniority, the seniority list showing the position as on 1.4.2004 became the basis. No zone of consideration/limit was made by the DPC. In Clause (7) following findings is given :- 7- inksUufr dh dlkSfV;ka rFkk lkeku; iz'kklu foHkkx ds fu;e e/; izns'k flfoy lsok inksUufr;ksa esa vkj{k.k] fopkj {ks= ds foLrkj dh lhek,a 2002 ds lanHkZ esa oxhZdj.k% v& U;wure dlkSVh% lfefr us fopkjk/khu inksUufr ds fy;s fuEufyf[kr dlkSfV;ka r; dh%& ¼1½ lafu"Bk lansg ls ijs gks ,oa lfu"Bk izekf.kr gksA ¼2½ ikap o"kksZa ds xksiuh; izfrosnuksa ds vk/kkj ij lfefr }kjk fd;k lexz ewY;kadu dk vk/kkj fuEukuqlkj gS%& A1 d&1 - 4, A d& 3 , B [k - 2 , C ( x ) &1 ¼3½ lfefr us r; fd;k fd 5 o"kksZa ds xksiuh; fjdkMZ dk lexz ewY;kadu de ls de cgqr vPNk Js.kh dk gks rFkk fdlh Hkh o"kZ ^?k* Js.kh dk u gksA U;wure dlkSVh cgqr vPNh U;wure 15 vad gksuk pkfg,A fopkjk/khu 5 o"kksZa esa ls vafre 2 o"kksZa ds xksiuh; izfrosnu vfuok;Zr% vPNh Js.kh dk gksuk pkfg,A izi=&1 la0Ø0 vf/kdkjh dk uke lexz ewY;kadu lfefr dh vuq'kalk 1 Jh ,l0ds0 Hknkfu;k vPNk ¼13½ vuqi;qDr 2 Jh ,l0ds0 lksuh vPNk ¼12½ vuqi;qDr 3 Jh ,l0ds0 fla?kbZ vPNk ¼13½ vuqi;qDr 4 Jh ds0,u0 ikjk'kj vPNk ¼09½ can fyQkQs dh vuq'kalk 5 Jh ,l0ih0 xkSre cgqrk vPNk ¼16½ mi;qDr 6 Jh lh0,l0 oktok lHkh lh0vkj0 vizkIr ifjHkze.k 7 Jh ,l0,y0 f}osnh cgqr vPNk ¼18½ mi;qDr 8 Jh ih0,e0 ekdksMs cgqr vPNk ¼ 16½ mi;qDr 9 Jh ih0Vh0 dqfj;u cgqr vPNk ¼ 19½ mi;qDr 10 Jh eqbZumn~nhu vPNk ¼11½ vuqi;qDr 11 Jh ;w0,u0 frokjh cgqr vPNk ¼ 17½ mi;qDr 9. The DPC treated those employees as suitable whose over-all grading in last five years is of "very good" category. Pausing here for a moment, it is apt to see that different methods are provided in the promotion rules for considering the employees as per the relevant criterion. Rule 6 deals with promotions which are based on "Seniority subject to fitness" whereas rule (7) deals with promotions on the basis of "merit-cum-seniority". It is apposite to examine the relevant of rules in juxtaposition. Seniority subject to fitness Merit-cum-Seniority Rule 6(5). Rule 6 deals with promotions which are based on "Seniority subject to fitness" whereas rule (7) deals with promotions on the basis of "merit-cum-seniority". It is apposite to examine the relevant of rules in juxtaposition. Seniority subject to fitness Merit-cum-Seniority Rule 6(5). The Departmental Promotion Committee shall assess the suitability of the public servants for promotion on the basis of their service record and with particular reference to the Annual Confidential Reports (ACRs) for 5 preceding years. However, in cases where the required qualifying service is more than 5 years, the Departmental Promotion Committee shall see the record with particular reference to the ACRs for years equal to the required qualifying service. Rule 7(8). For the eligibility for promotion from class I to higher pay scale of class I posts, the benchmark grade shall be "very good". Rule 6(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'. Rule 7(9). The Departmental Promotion/Screening Committee shall make a relative/comparative assessment of the merits of public servants who are within the zone of consideration and make an overall grading of the public servants merit on the basis of their service records and place them in the categorises as "Outstanding", "Very-Good", "Good", "Average" and "Poor" as the case may be. However, only those public servants who are graded as "Very-Good", an above will be included in the select list, by placing the public servants graded as "Outstanding" on top followed by those graded as "Very-Good", subject to availability of vacancies, with the public servants with the same grading maintaining their inter-se seniority in the feeder cadre/part of the service/pay scales of post. 10. Shri S.P. Rai, contended that in the criterion of "seniority cum fitness", the DPC cannot fix the benchmark. However, in the judgment of Ram Bharose Kamal (supra), this Court has considered the judgments of Supreme Court in Union of India and others v. Lt. Gen. 10. Shri S.P. Rai, contended that in the criterion of "seniority cum fitness", the DPC cannot fix the benchmark. However, in the judgment of Ram Bharose Kamal (supra), this Court has considered the judgments of Supreme Court in Union of India and others v. Lt. Gen. Rajendra Singh Kadyan and another- (2000) 6 SCC 698 , Union of India and another v. S.K. Goel and others- (2007) 14 SCC 641 and Diploma Engineers Sangathan v. State of U.P, (2007) 13 SCC 300 . 11. After considering these judgments and rule 6(7) of Promotion Rules, this court opined that even in the criterion of "seniority cum fitness/suitability, the DPC is empowered to assess and categorize the employees as "fit" or "not fit". For such determination, the DPC has power to fix the criterion. It is further held that the benchmark can be laid down by the DPC. Same view is taken by the Supreme Court in Chairman, Rushikulya Gramya Bank v. Bisawarmber Patro and others, (2013) 4 SCC 376 . In the light of aforesaid judgments, I am unable to accept the contention of the petitioner that DPC has no authority to fix the benchmark for the purpose of judging the suitability of the candidates. However, the ancillary question is whether there exists an unfettered discretion with the DPC in the matter of deciding/fixing the "benchmark". In the opinion of this court the criterion/benchmark fixed by the DPC, must be reasonable and in tune with the criterion of "seniority-cum-fitness". The benchmark cannot be made by drawing parallel from the criterion of "merit cum seniority". In Rajendra Kumar Shrivastava v. Samyut Khetriya Gramin Bank- 2010(1) SCC 335 , the Apex Court opined that "if criterion adopted for assessment of minimum necessary merit is bona fide and not unreasonable, it is not open to challenge". (emphasis supplied). 12. The benchmark fixed by the DPC is now to be tested on the anvil of aforesaid judgments and Promotion Rules of 2002. The comparative chart aforesaid shows that as per rule 6(5) and (7), the DPC needs to categorize employees as "fit" or "not fit". Rule 7(8) which deals with promotion from Class I to higher pay-scale of class I post, the benchmark is made as "Very Good". The comparative chart aforesaid shows that as per rule 6(5) and (7), the DPC needs to categorize employees as "fit" or "not fit". Rule 7(8) which deals with promotion from Class I to higher pay-scale of class I post, the benchmark is made as "Very Good". It is noteworthy that in rule 4, it is made clear that 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 posts shall be made on the basis of "seniority subject to fitness" whereas promotions from class I to higher pay scale of class I posts shall be made on the basis of "merit-cum-seniority". 13. The respondents on the one hand admitted that criterion for promotion was "seniority subject to fitness" and on the other hand fixed the benchmark of "very good" which is applicable to the criterion of "merit-cum-seniority" and for promotions from class I to higher pay scale of class I posts. Thus, this court is of the considered opinion that benchmark of "Very Good" fixed by the respondents is unreasonable and it has defeated the purpose of prescribing the criterion of "seniority subject to fitness". It is trite law that in criterion of "seniority subject to fitness", the comparative merits of the candidates cannot be examined. However, the aforesaid chart prepared by the DPC shows that the respondents have promoted the persons on the basis of their comparative merits. Fixing of unreasonable benchmark of "Very Good" has deprived the petitioners from the fruits of promotion. 14. The next question is as to what relief can be granted to the present petitioners who have already retired on attaining the age of superannuation. In the opinion of this court, mere retirement will not deprive them from their fair and transparent right of consideration as per Promotion Rules. Since petitioners stood retired, they will not actually occupy the promotion posts. Thus, I deem it proper to direct the respondents to hold the review DPC of the original DPC convened on 16.6.2005 and apply the criterion of "seniority subject to fitness" and consider the case of the petitioners strictly as per Promotion Rules of 2002. Since petitioners stood retired, they will not actually occupy the promotion posts. Thus, I deem it proper to direct the respondents to hold the review DPC of the original DPC convened on 16.6.2005 and apply the criterion of "seniority subject to fitness" and consider the case of the petitioners strictly as per Promotion Rules of 2002. The respondents shall take into account the findings given by this court herein above. If petitioners are found suitable and fit for promotion, necessary promotion orders be passed from due date. If for the purpose of promotion of the petitioners, reversion of private respondents herein is necessary, the department will be free to pass necessary orders for reversion of juniors/private respondents. For this purpose, the impugned order dated 15.7.2005 (Annexure P/1) will not come in the way of the official respondents. The entire exercise of convening review DPC and passing of necessary orders shall be completed within ninety days from the date of production of copy of this order. The outcome of such consideration be communicated to the petitioners. 15. Petitions are allowed. No cost.