Madhya Pradesh High Court
Chandra Prakash Goyal vs State Of M.P. & Ors. on 7 November, 2016
WP-4596-2008
(CHANDRA PRAKASH GOYAL Vs STATE OF M.P. & ORS.)
07-11-2016
Mr. Sanjay Zamindar, learned counsel for the petitioner.
Mr. Rohit Mangal, learned counsel for the respondents-State.
Heard.
ORDER
Petitioner has filed the present petition challenging the order of the respondents by which he has been denied the promotion to the post of Head Master.
The petitioner was appointed to the post of Assistant Teacher on 26.06.1974. According to the petitioner, his entire service was excellent and unblemished. He has never received any charge- sheet, show cause notice or any adverse CR in his entire career. The Departmental Promotion Committee (DPC) was constituted in the year 2008 for considering the case of Assistant Teacher to the post of Head Master and the promotion order was issued on 25.02.2008 in which the petitioner did not find his name in the list, but his juniors Sharad Kumar Sharma and Narayan Vyas have been promoted to the post of Head Master. The petitioner submitted representation to the higher authorities and the same was not considered. Hence, the petitioner approached this Court by filing the present writ petition.
The respondents-State has filed the return in which it is stated that for the promotion, five years confidential report is required to consider for promotion and the confidential report of the petitioner was found average, therefore, he was not recommended for promotion by DPC.
In reply, the petitioner has filed the rejoinder in which he stated on oath that he was not communicated by the respondents any adverse confidential report, therefore, the same cannot be considered by the departmental promotion committee. He has placed reliance over the judgment of Supreme Court in the case of Dev Dutt vs. Union of India and Others reported in (2008) 2 Supreme Court Cases (L&S) 771.
That, it is an undisputed fact, that the promotion of the petitioner to the post of Head Master has became due along with others in the year 2008. The services of the petitioner are governed under the Madhya Pradesh Education Service (School Branch) Recruitment and Promotion Rules, 1982. Rule 13 and 14 provides for conditions and eligibility for promotion. Under Rule 15 sub-rule 2, the criteria for promotion from Class-3 to Class-2 and from Class-2 to Class-1, shall be âseniority subject to fitnessâ. Rule 15 is reproduced below:
15. Preparation of list of suitable officers:- (1) The committee shall prepare a list of such persons who satisfy the condition prescribed in rule 14 above and are held by the Committee to be suitable for promotion/transfer to the service. The lists shall be sufficient to cover the anticipated vacancies on account of retirement and promotion during the course of one year from the date of preparation of the select list. A reserve list consisting of twenty five percent of the number of persons included in the said list shall also be prepared to meet the unforeseen vacancies occurring during the course of the aforesaid period.
(2) For preparing the select list of persons for promotion from the post of Class-III to Class-II and from Class-II to Class-I, the criterion shall be seniority subject to fitness and for promotion from Class-I to Class-II post, the criterion shall be Merit-cum-Seniority. (3) The names of the officers included in the list shall be arranged in the order of seniority in the service or posts as specified in column (2) of schedule IV, at the time of preparation of each select list:
Provided that any junior officer, who in the opinion of the Committee is of exceptional merit and suitability, may be assigned in the list a higher place that of officer senior to him.
Explanation.-A person whose name is included in a select list but who is not promoted during validity of the list, shall have no claim to seniority over those considered in a subsequent selection merely by the fact of his earlier selection.
(4) A list so prepared shall be reviewed and revised every year.
(5) If in the process of selection, review or revision it is proposed to supersede any member of the State/Sub-
ordinate Civil Service, the committee shall record its reasons for the proposed supersession.
In view of the above rule, seniority is the main criteria for promotion to the post of head master. According to the petitioner, he was appointed on 26.06.1974 as Assistant Teacher and his name was at serial number 567 as per gradation list. One Sharad Kumar Sharma whose name was at serial no.582 joined on 01.07.1974 and one S.N. Vyas whose name is at serial no.584 has been promoted vide order dated 25.02.2008 and therefore, the petitioner is senior to these two employees and is entitled for the promotion. So far as the average confidential report of the petitioner is concerned, law is well settled that adverse entries of the employees shall be communicated well within time and the very purpose of communication of the adverse confidential report are that the employee can improve his working. The petitioner by way of his representation has specifically stated that he has not been communicated the adverse confidential report in advance by the respondents, therefore, the same cannot be taken into consideration by the Departmental Promotion Committee and the fact remains is that the criteria for promotion is seniority-cum- merit. Therefore, in view of the law laid down in the case of Dev Dutt (supra) and as per provisions of Rule 15 of Madhya Pradesh Education Service (School Branch) Recruitment and Promotion Rules, 1982, the case of the petitioner was also liable to be reconsidered by the Departmental Promotion Committee for promotion along with others. The respondents are directed to consider the case of the petitioner for promotion to the post of Head Master within a period of sixty days from the date of production of certified copy of this order and as per law, he be promoted with effect from when his juniors were promoted. Needless to say, that if he is found eligible for promotion, then all his consequential benefits be extended to him. With the aforesaid directions, writ petition is partly allowed.
(VIVEK RUSIA) JUDGE