Madhya Pradesh High Court
R.C. Gupta vs The State Of M.P. Judgement Given By: ... on 19 September, 2013
1
HIGH COURT OF MADHYA PRADESH : JABALPUR
WRIT PETITION No.23905/2003
(O.A. No.249/1998)
R.C. Gupta
Vs.
State of M.P. & others
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Present : Hon'ble Shri Justice K.K. Trivedi
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Shri A.K. Singh, learned Counsel for the petitioner.
Shri Sanjeev Kumar Singh, learned Panel Lawyer for the
respondents-State.
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O R D E R
(19.09.2013) The claim made by the petitioner in the present petition, which was originally filed as O.A. No.249/1998 before the M.P. Administrative Tribunal, Bench at Bhopal, was with respect to the alleged promotions of those, who were subsequently added as respondents in the petition. It was said that zone of consideration was not properly extended by the respondents while considering the cases of promotion and, therefore, the petitioner could not be given the benefit of promotion. Upon closure of the Tribunal, the petition has been transmitted to this Court and is registered as writ petition.
2. Brief facts given in the Original Application are that the petitioner was working on the post of Assistant Director and was at the relevant time on deputation with the Gas Relief Directorate. The next promotion on the post of Deputy Director, Local Fund and Audit, was due in the year 2 1998. Certain persons senior to the petitioner were considered and promoted by the order dated 17.03.1998 but since the claim of the petitioner was not considered, he approached the Tribunal. It was contended that the D.P.C. meeting held on 29.11.1997 did not consider the anticipated vacancies otherwise the zone of consideration would have been extended in terms of the provisions of Madhya Pradesh Civil Services (Reservation in Promotion and Extension of Zone of Consideration) Rules, 1997 (herein after referred to as '1997 Rules'). Since there were certain vacancies available in Scheduled Caste and Scheduled Tribe as also in General category, the zone of consideration should have been extended so that the petitioner would have been within the zone of consideration and would have been considered for grant of promotion. Since this has not been done, the petitioner has been denied the right to be considered and, therefore, the order impugned is bad in law. In view of the aforesaid pleadings, the petitioner has claimed the following reliefs :
"(i) The Hon'ble Tribunal may command the Respondents to produce for its perusal and better appreciation of the case, the record of the DPC held on 29.11.97 including the list of persons in the zone of consideration, assessments of the persons in the zone of consideration, the relevant portion of the 100 point roster of Deputy Directors Local Fund and the relevant main and reserved select lists.
(ii) The Hon'ble Tribunal may be pleased to issue a writ of certiorari or any other appropriate writ order or direction declaring the select list prepared by the 29.11.1997 DPC as against the mandatory provisions of the Recruitment Rules and the 1997-Rules.
(iii) The Hon'ble Tribunal may issue a writ in the nature of mandamus directing respondent No.1 to reconvene within a time-frame to be prescribed, the DPC in the position of 29.11.1997 with proper members as per the Rules and with a direction to prepare the select list as per Rule 15(i) of the 3 Recruitment Rules read with sub-rule (5) of Rule 5 of the "1997-Rules" from a zone determined under sub-rule (4) of Rule 5 of the 1997 Rules and on the criteria adopted by the 29.11.1997 DPC.
(iv) The Hon'ble Tribunal may command the Respondent State to promote the applicant to a vacant post of general category which is vacant if he is adjudged fit by the reconvened DPC.
(v) Allow this application with cost."
3. Contesting the claim made by the petitioner, the respondents No.1 and 2 have filed their return and have contended that the petitioner was not in the zone of consideration in the year 1997 as the zone of consideration was not to be extended for the general category candidates and it was to be extended only and only for reserved category in terms of 1997 Rules, referred to herein above.
The petitioner came in the zone of consideration for promotion on the post of Deputy Director in the D.P.C. held on 29.11.1998 but as the D.P.C. has not found the petitioner fit for promotion, such a benefit of promotion was not extended to him. The promotion on the post of Deputy Director was considered applying the criteria of merit-cum- seniority and since on appreciation of merits of the petitioner he was not found fit by the said Committee, the petitioner was not promoted. As far as the extension of zone of consideration is concerned, it is contended that such an issue was raised by one K.L.N. Chari before the M.P. Administrative Tribunal, Bench at Bhopal, in O.A. No.53/1989, which came to be decided by order dated 25.06.1993. The Tribunal categorically gave the findings that the zone of consideration is not to be extended in the manner as adopted by the respondents, on the other hand taking into consideration the vacancies available, only a merit list is required to be prepared. It is contended that as per the decision of the Tribunal, sometimes the anticipated 4 vacancies never occurred and in that case the consideration done by the D.P.C. becomes futile. Thus, it is contended that since the petitioner was not to be considered in the D.P.C. of the year 1997 as he was not in the zone of consideration, no wrong was committed by the respondents. Subsequently, when he came in the zone of consideration, was considered, was not found fit and, therefore, would not be entitled to any relief claimed in the writ petition.
4. A rejoinder is filed by the petitioner placing reliance in the 1997 Rules and it is contended that had it been the case that zone of consideration is extended, again the petitioner would have come within consideration of the year 1997 and would not have been superseded in the matter of promotion. However, it is a fact that none of the juniors to the petitioner were promoted till the year 1998 as nothing is said in this respect in the rejoinder.
5. After hearing learned Counsel for the parties at length and after perusing the record, it is abundantly clear that the zone of consideration for general category was not to be extended in the matter of promotion simply because there is no such provision made in the Rules referred to herein above. The said Rules were made applicable only and only for the reserved category employees. Secondly, there is no rebuttal of the statement made by the respondents in their return that the petitioner was considered in the year 1998 and was not found fit for promotion. True it is that an officer or employee has a right to be considered for promotion and only such a right is required to be enforced. However, this Court will not judicially review any such action of consideration unless it is pointed out that such considered was not done in appropriate manner as prescribed under the Rules. In absence of any such allegations, it will not be open to this Court to judicially 5 review the action of the respondents. It is the settled law that this Court cannot sit as an appellate authority over and above the actions or consideration done by the expert bodies like D.P.C. unless illegalities or irregularities are alleged in conduct of such proceedings by the D.P.C.
6. The only contention which the petitioner has raised in the rejoinder is that there were certain vacancies became available in the year 1996 and 1997 for promotion on the post of Deputy Director. It is contended that those vacancies though become available on 31.12.1997 owing to the retirement of certain persons, were not taken note of and a reserved list was not prepared by the respondents. Had it been prepared, including the persons like petitioner, 9 persons would have been included in the fit list out of which 7, as were promoted, could have been accommodated against the vacancies in their respective quota. However, except such pleading made in the rejoinder, there is nothing placed on record to show that there was actual creation of any vacancy. Even otherwise any vacancy which has occurred after the date of D.P.C., would not be and could not be included in the vacancies to be filled in by such consideration. It is a fact that the petitioner was not superseded by any junior in the matter of promotion.
7. In view of the aforesaid, there is no substance in the claim made by the petitioner in the writ petition. The petition deserves to be and is hereby dismissed. There shall be no order as to costs.
(K.K. Trivedi) Judge Skc