Madhya Pradesh High Court
Sanjay Sisodiya vs Dr.Chhotelal Pasi on 7 August, 2018
THE HIGH COURT OF MADHYA PRADESH
R.P. No. 1209/2017
1 Sanjay Sisodiya V/s. Dr. Chhotelal Pasi & others.
Indore, dated : 07.08.2018
Shri A.K. Sethi, Sr. Advocate with Shri A. Polekar, Advocate
for the review petitioner/respondent No.6.
Shri A.S. Kutumbale, Sr. Advocate with Shri Manuraj Singh,
Advocate for respondent No.1/writ petitioner.
Shri Kaustubh Pathak, Govt. Advocate for respondents, State.
In compliance of the order dated 18.6.2018, the record of
Departmental Promotion Committee (DPC) has been produced before
this Court.
Finally heard with the consent of parties.
ORDER
The present review petition is filed by respondent No.6 in W.P. No.7768/2015 seeking review/recalling of order dated 13.10.2017 passed in the said writ petition.
2. Respondent No.1/writ petitioner had filed the aforesaid writ petition being aggrieved by the order of promotion dated 8.10.2015 and 15.12.2015 by which respondent No.6 i.e. present review petitioner was promoted to the post of Joint Director and he was denied the promotion.
3. The writ petitioner stated that DPC meeting was convened for considering the name of Assistant Directors for the purposes of promotion to the post of Joint Director. The DPC considered the name of 30 Assistant Directors of different categories for the said purpose. The name of writ petitioner as well as review petitioner were also under the zone of consideration under the category of Scheduled Caste (SC). The name of writ petitioner was at Sr. No.29 and the name of review petitioner was at Sr. No.31 in THE HIGH COURT OF MADHYA PRADESH R.P. No. 1209/2017 2 Sanjay Sisodiya V/s. Dr. Chhotelal Pasi & others.
the SC category. The DPC evaluated the Annual Confidential Report (ACR) and awarded 19 marks to the writ petitioner and 20 marks to the review petitioner. Since the criteria for promotion to the post of Joint Director was merit-cum-seniority and review petitioner secured 20 marks and writ petitioner secured 19 marks, therefore, despite being junior in the seniority list, name of review petitioner was recommended for promotion and accordingly, promotion order was issued.
4. Being aggrieved by the promotion order of review petitioner, writ petitioner filed the writ petition before this Court on the ground that the DPC considered his adverse CR of the year 2012 and 2013 but same were not communicated to him and the ACR of preceding years under Rule 7(7) of M.P. Public Services (Promotion) Rules, 2002 (hereinafter, for short, the Rules of 2002") ought to have been considered. In support of the writ petition, the writ petitioner filed photocopy of the DPC proceedings supplied to him under the Right to Information Act, 2005.
5. In the writ petition, notices were issued to the respondents and despite service, review petitioner (respondent No.6 therein) did not appear. Respondent No.1, State filed the return by submitting that the ACR of last 5 years were considered and as the writ petitioner secured 19 marks and review petitioner secured 20 marks, therefore, his name was recommended for promotion.
6. Learned counsel appearing for the writ petitioner argued that the down-graded ACR of the year 2012 and 2013 were not communicated to him. It was also argued that Rule 7(7) of the Rules of 2002 provides that when one or more ACR of the relevant years THE HIGH COURT OF MADHYA PRADESH R.P. No. 1209/2017 3 Sanjay Sisodiya V/s. Dr. Chhotelal Pasi & others.
are not available or for any other reason, then the DPC must consider the ACR of the preceding year in question.
7. After hearing the learned counsel appearing for the parties, this Court allowed the writ petition on the ground that the ACR of the writ petitioner for the year 2012 and 2013 were not liable to be considered for promotion as they were not communicated to him. The respondents were directed to go for review DPC to consider the name of the writ petitioner for the post of Joint Director by taking into consideration of ACR of 2007 and 2008 (wrongly typed as "2007-2008" in the order) because the ACR of five years were liable to be considered for promotion.
8. Being aggrieved by the aforesaid order, respondent No.6/review petitioner has filed the present review petition before this Court.
9. Along with the review petition, he has also filed copy of the DPC proceedings and tabulation-sheet, in which the marks were given to all the Assistant Directors who were under the zone of consideration by the DPC. According to review petitioner, the DPC considered the ACR of the writ petitioner of the year 2007 and 2008 also and awarded 19 marks.
10. According to the review petitioner, the DPC considered the ACR of writ petitioner of the year 2007 and 2008 and granted 19 marks, therefore, there was compliance of Rule 7(7) of the Rules of 2002, hence the impugned order is liable to be reviewed. He further submitted that the notice of the writ petition was not properly served to him and in fact, it was served to one Clerk of his office, who THE HIGH COURT OF MADHYA PRADESH R.P. No. 1209/2017 4 Sanjay Sisodiya V/s. Dr. Chhotelal Pasi & others.
never forwarded the same to him, therefore, his non-appearance before the Court was bona fide.
11. By order dated18.6.2018, this Court directed the respondents State to produce the original record of the DPC in order to verify the genuineness of the record filed by the writ petitioner as well as by the review petitioner in this case.
12. I have heard the learned counsel appearing for the parties at length and perused the record.
13. Shri Kutumbale, learned senior counsel appearing for the writ petitioner, submitted that the scope of review is very limited. This Court has passed the final order on 13.10.2017 on the basis of material available on record in the writ petition and the original record of DPC was not available before this Court, therefore, the order is not liable to be reviewed. He further submitted that the notice was duly served to the review petitioner, but he failed to appear before this Court to participate in the writ proceedings, hence the only remedy available to him is to file writ appeal and not the present review petition. In support of his contention, he has placed reliance over the judgment of apex Court in the case of Prabhu Dayal Khandelwal V/s. Chairman, UPSC : 2015 (6) Supreme 692; Parsion Devi V/s. Sumitri Devi : (1997) 8 SCC 715; judgment of this Court in the case of State of M.P. V/s. S.S. Bhadauria : 2001 (1) MPLJ 72; Santosh Kumar V/s. Smt. Shanti : 2004 (2) MPHT 32; Higher Education Department V/s. Dr. Smt. Kavita Bundala (W.A. No.421/2017).
14. Shri Sethi, learned senior counsel appearing for the review petitioner, submitted that the State Government has THE HIGH COURT OF MADHYA PRADESH R.P. No. 1209/2017 5 Sanjay Sisodiya V/s. Dr. Chhotelal Pasi & others.
deliberately filed the return in support of the writ petitioner. The State has suppressed the important facts before this Court that the ACR of the writ petitioner of 2007 and 2008 were considered by the DPC and there was no violation of Rule 7(7) of the Rules of 2002. The respondent State ought to have verified the original record of the DPC before filing the return, hence, heavy cost should be imposed on the respondent, State.
15. It is correct that this Court has allowed the writ petition only on the ground that the adverse CR of the writ petitioner of the year 2012 and 2013 were not communicated to him, therefore, the respondent State ought to have considered his ACR of 2007 and 2008 as per Rule 7(7) of the Rules of 2002. Today, I have perused the original record, in which, the tabulation-sheet prepared by the DPC clearly reveals that ACR of 2007 and 2008 were considered and thereafter 19 marks were given to the writ petitioner, therefore, there was compliance of Rule 7(7) of the Rules of 2002. Said tabulation-sheet is reproduced below :
fjfDr;ka 1- vukjf{kr izoxZ gsrq 07 2- vuq-tkfr izoxZ gsrq 03 3- vuq-tutkfr izoxZ gsrq 03 dqy fjfDr;k &13 mi lapkyd laoxZ ls la;qDr lapkyd in ij inksUufr gsrq fopkj {ks= esa vkus okys vf/kdkfj;ksa dh lwph] muds xksiuh; izfrosnuksa dk ewY;kaduA ¼vuqlwfpr tkfr izoxZ½ ofj"Brk mi lapkyd dk uke izoxZ tUefrfFk laoxZ esa xksiuh; izfrosnuksa dk ewY;kadu fjekdZ dzekad fu;qfDr dk fnukad 2007 2008 2009 2010 2011 2012 2013 & 1 12 Jh ch- ,y- iztkifr vuq-tkfr 27-7-1966
- 30-4-2003 $d
- $d $d $d dkj.k crkvks lwpuk i= tkjh 2 13 Jh Mh- ds- fl)kFkZ vuq-tkfr 3-9-1969
- 30-4-2003
- d $d $d $d $d d 3 27 Jherh 'kakfr csys vuq-tkfr 1-7-1958
- - 7-2-2009 [k dkj.k crkvks lwpuk&i= tkjh fd;k tkuk izLrkfor 4 29 Jh NksVsyky iklh vuq-tkfr 1-2-1962
- - 7-2-2009 d $d $d $d $d 5 30 Jh euksgjyky esgjk vuq-tkfr 29-4-1967
- - 7-2-2009 $d $d d $d d 6 31 Jh lat; fllksfn;k vuq-tkfr 1-4-1968
- - 7-2-2009 $d $d $d $d $d THE HIGH COURT OF MADHYA PRADESH R.P. No. 1209/2017 6 Sanjay Sisodiya V/s. Dr. Chhotelal Pasi & others.
16. In view of the above, the review petitioner has successfully established the error on face of the order. The complete record of DPC was not produced by the writ petitioner and State did not file proper return in the writ petition. The writ petition is liable to be restored for re-hearing.
17. In view of the foregoing, this review petition deserves to be and is hereby allowed. The order dated 13.10.2017 passed by this Court in W.P. No.7768/2015 is hereby recalled and W.P. No.7768/2015 is restored to its original number for re-hearing.
18. With the aforesaid, this review petition stands disposed of.
No order as to costs.
( VIVEK RUSIA ) JUDGE Alok/-
Digitally signed by Alok GargavDate: 2018.08.09 17:26:54 +05'30'