Madhya Pradesh High Court
Dr.Vijay Kumar Jain vs Secretary The State Of Madhya Pradesh on 3 July, 2013
1
HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT AT
JABALPUR.
Writ Petition No.4054/2009
Dr. Vijay Kumar Jain.
-Versus-
State of M.P. and others.
PRESENT : Hon'ble Shri Justice K.K. Trivedi.
Shri Vishal Dhagat, learned counsel for the
petitioner.
Shri Yogesh Dhande, learned Deputy Govt.
Advocate for respondents.
ORDER
(3.7.2013) 1: By this petition under Article 226 of the Constitution of India, the petitioner has called in question the order of promotion of respondent No.4 on the post of Specialist in Paediatrics, on the ground that a junior to the petitioner has been promoted, whereas the claim of the petitioner was not considered and he has been illegally superseded. Since during the pendency of the present petition, by an order dated 5.5.2011, the petitioner has already been promoted on the said post, by amending the writ petition, the petitioner has claimed the benefit of promotion with effect from the date the juniors to him was promoted with all the consequential benefits.
22: The facts giving rise to filing of this writ petition in brief are that the petitioner was having the qualifications to be appointed on the post of Specialist in Paediatrics. The petitioner was senior to the respondent No.4 as in every gradation seniority list, the petitioner was shown above the respondent No.4. The claim of the petitioner was considered for the purposes of grant of benefit under the time bound advancement Scheme. According to the petitioner, such claims were to be considered in the same manner as were to be considered for grant of regular promotion. The petitioner was found fit for grant of such benefits and the benefit of selection grade pay scale was given to him on 28.7.2007. However, when the Departmental Promotion Committee was convened for regular promotion thereafter, instead of considering the claim of petitioner in rightful manner, a junior to him was promoted vide order dated 22.9.2008 and the name of the petitioner was not included in the said order though various persons working on the feeder post were promoted as Specialist. It is the stand of the petitioner that he made a detailed representation before the respondents pointing out such anomaly, but since the representation was not being considered, the writ petition was filed.
3: Upon issuance of the notices of the writ petition, the respondents No. 1,2 and 3, the official respondents, have filed a return and contended that in view of the provisions of Madhya Pradesh Public Service (Promotion) Rules, 2002 (hereinafter referred to as the Rules of 2002 for brevity), the claim of the petitioner was also considered, but since the petitioner was not found fit for such promotion, the order was not issued in his respect. It is contended that the criteria of seniority-cum-merit was to be adopted for consideration of such claim for promotion and in terms of Rule 6 of the Rules of 3 2002, since the petitioner had not achieved the merit marks as fixed by the Departmental Promotion Committee (hereinafter referred to as the DPC for brevity), he was not found fit for such promotion. It is, thus, contended that the petitioner has only one right i.e. consideration for promotion and since the petitioner was considered and was not found fit for promotion, no illegality was committed in denying him the promotion on the date when the respondent No.4 was promoted. It is contended that the seniority was taken into note of, but since the petitioner was not fulfilling the merit criteria as was fixed by the DPC, as he has not satisfied the benchmark, there was no comparative merit assessment of petitioner viz-a-viz respondent No.4 and that being so, rightly the petitioner was not found fit for such promotion. A return has been filed by the respondent No.4, but he has simply said that he has been promoted by order of the State Government and since in the matter of consideration for promotion he has no role to play, nothing can be alleged against the respondent No.4 nor any relief is to be granted against him. By filing a rejoinder, the petitioner has reiterated that once the promotion was to be considered in terms of the provision of the Rules of 2002, merely on the basis of not achieving the benchmark, the petitioner was not to be denied the benefit of promotion. If there was any such Annual Confidential Report (hereinafter referred to as the ACRs for brevity) which was coming in way of the petitioner in such promotion, it was required to be communicated to him in terms of the law laid down by the Apex Court in several cases. It is, thus, contended that rightful consideration of the claim of the petitioner was not done and he was denied the promotion when it was due. It is further contended that subsequently claim of petitioner was considered, he was promoted on the post of Specialist in Paediatrics and, therefore, it could not have been said that the promotion of the petitioner was denied on the due date on 4 account of any valid reasons. It is reiterated that the petitioner is entitled to the reliefs claimed in the writ petition.
4: This Court has directed production of the record of DPC, which has been produced before the Court. Heard learned counsel for the parties at length and perused the DPC record.
5: The master chart produced by the respondents along with the DPC record indicates that the DPC has taken note of the gradings in the ACRs for the year 2001 to 2007. However, it is not in dispute that only five years ACRs were required to be seen as was decided by the DPC. It was decided in the DPC of the year 2008 that ACRs for the year 2003 to 2007 would be taken into consideration. In case, the ACR of any year is not found or made available, a previous year ACR would be taken into consideration. Another criteria fixed was that in case any of the officer facing a departmental enquiry or against him any criminal prosecution is pending, recommendation in his respect would be kept in the sealed cover. Nothing more was prescribed in the criteria as were laid down in paragraph 3 of the proceedings of DPC held on 15.7.2008. This being so, it is to be seen as to how the grading of the petitioner was done. The master chart of ACRs grading indicates that the petitioner was graded Good Officer for the year 2001, Average Officer for the year 2002, Very good Officer for the year 2003, Average Officer for the year 2004-05 and Good Officer for the year 2006-07. However, he has been graded as Average Officer for the year 2006-07 in the master chart. The ACRs folder of the petitioner indicates that he was graded as Good Officer by initiating authority which was accepted by the reviewing authority, but his grading was changed to be Average by the final accepting authority without any comment. It is the procedure for writing of the ACR that in case the final authority is not accepting the gradings of ACRs made by initiating 5 authority or reviewing authority and is changing the same, he is required to record the reasons. This was not done and, therefore, it was the case where the DPC was required to assess the ACRs grading of the petitioner and to properly assigned a grade. Same was the situation for the ACR of the year 2006 where again without assigning any reason, the final accepting authority has downgraded the ACR of the petitioner from Good to Average. At least, this was to be recorded as to why the grading was changed. The entire DPC proceedings indicate nothing whether this particular aspect was looked into by the DPC. Only the grading chart produced by the department was accepted to be correct and the petitioner was said to be unfit for promotion.
6: The Rules of 2002 specifically contemplates that the DPC is required to examine the grading of the officers in the ACRs who are to be considered for promotion. In case it is found that the grading is not properly done, the DPC is required to regrade the same and can increase or decrease one number in the said grading. The ACR folder of the petitioner produced by the respondents indicates downgrading in the ACR of the petitioner for the year 2006 and 2007, but there was no consideration by the DPC with respect to such downgrading. That being so, it cannot be said that the case of the petitioner was objectively considered by the DPC, otherwise the petitioner who was graded as Good Officer would not have been treated as an Average Officer. Again it is seen that ACR for the year 2004 was down graded by the final accepting authority with a reason that the petitioner was absent from duty. The Very good remark given by the initiating authority duly accepted by the reviewing authority, was changed by the final authority and his ACR was downgraded to be Average. This particular aspect was also not brought to the notice of the petitioner at any point of time though it was well within the 6 knowledge of the respondents that the petitioner is to be considered for promotion on the post of Specialist in Paediatrics shortly. The law is well settled. In case assessment for grant of promotion is to be done on the basis of ACR, adverse entry recorded in such ACR is required to be communicated. Those entries are also required to be communicated which will come in way of such a person for promotion. Nothing is placed on record to indicate that these entries were ever communicated to the petitioner and his case was rightly considered for promotion. That being so, the stand as taken by the respondents that objectively the case of the petitioner was considered, but he was not found fit for promotion, cannot be accepted.
7: The other aspect is also that the petitioner was subsequently considered for promotion in the year 2009 as is indicated in the records available. He was though considered and found fit for promotion, but was promoted ultimately in the year 2011. There is nothing placed on record to show as to why such a promotion was not granted to the petitioner timely. This being so, again the contentions raised by the respondents that the petitioner was subsequently considered and promoted in terms of his ACRs, within time, cannot be accepted. One more fact is clear from the pleadings of the respondents. They say that a benchmark was prescribed for assessment of suitability, but they have not disclosed as to what was that particular benchmark fixed by the DPC. The entire proceedings of the DPC nowhere indicates that any benchmark was prescribed by them for testing the suitability of the officers who were to be considered for promotion. In fact, the respondents have simply said that the proceedings were done in terms of Rule 6 of Rules of 2002, but they have not disclosed any such fact as to how a criteria was evolved for assessment of the suitability and only evolvement of such 7 criteria or benchmark would not amount to consideration of the case on merit rather than seniority-cum-merit. The law is well settled in this respect. This Court in the case of Narmada Prasad Saxena Vs. State of M.P. and others [2005 (3) MPLJ 570] has categorically held that the benchmark is to be fixed in such a manner that it would not amount to consideration of the claim for promotion on the criteria of merit-cum-seniority. If this is not done, though the criteria of seniority-cum-merit is said to be applicable, the consideration would be said to be done only under the criteria of merit-cum-seniority which is not permissible in view of the specific provisions made in the Rules of 2002. From the material placed on record, it appears that the respondents have fixed a benchmark which was neither mentioned in the Rule 6 of Rules of 2002 nor was evolved by the DPC. That being so, rejection of the claim of petitioner for promotion on the post of Specialist in Paediatrics was based only and only on improper consideration. Thus, again the stand taken by the respondents in their return cannot be accepted. It is the stand of the respondents that subsequently the claim of petitioner was considered and he was found fit for grant of such promotion and, accordingly, the order was issued in that respect. However, merely in two years what were the circumstances under which the petitioner became eligible whether his ACRs were so good in subsequent years, nothing has been said nor produced before the Court. This being so, it is clear that the case of the petitioner was not properly considered for grant of promotion in the year 2008. Such a claim of the petitioner is required to be considered by holding a review DPC.
8: In view of the discussions made herein above, the writ petition is allowed to the extent that the respondents are directed to hold a review DPC and to consider the case of 8 petitioner for promotion, strictly in terms of the criteria and norms fixed by the DPC held in the year 2008, taking into consideration the ACRs of the petitioner for the last five years as was evolved by the DPC. The DPC will reassess the grading of the petitioner for the ACRs in which difference of opinion was shown by the accepting authority and will properly grade the said ACRs and then assess whether the petitioner fulfils the criteria for promotion on the post of Child Specialist strictly in accordance to the criteria of seniority-cum-merit. In case the petitioner is found fit on reassessment of his ACRs as directed herein above, the order of promotion be issued in respect of petitioner within four months from the date of communication of this order. Needless to say, in case the petitioner is found fit for grant of such promotion, he would be entitled to all the benefits of such promotion, such as pay, allowances, seniority etc..
9: The writ petition is allowed to the extent indicated herein above. However, there shall be no order as to costs.
(K.K.Trivedi) Judge /07/2013 A.Praj.
9HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT AT JABALPUR Writ Petition No.4054/2009 Dr. Vijay Kumar Jain.
-Versus-
State of M.P. and others.
O R D E R
Post it for /7/2013
(K. K.Trivedi)
Judge
/07/2013