SUDHIR KUMAR GARG Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) WITH the consent of parties, matter is finally heard. In this petition filed under Article 226 of the Constitution, the grievance of the petitioners is that they are senior on the feeder post of Assistant Grade�3 as per seniority list (Annexure P-12) showing position as on 01.12.2003, yet private respondents who were junior to them were promoted.

(2.) SHRI Singh submits that petitioners are admittedly senior as per seniority list and as per rules, the criteria for promotion to the post of Assistant Grade � 2 is seniority- cum-fitness. He submits that in the said criteria seniority will prevail. There is no justification in promoting the private respondents over and above the petitioners.

(3.) IT is gathered that the respondent No. 6, K.C. Nagda, is served. However, respondent No. 7 is not served. Shri Singh submits that this petition may be heard qua respondent No. 6 and he is not claiming any relief against respondent No. 7. Accordingly, this matter is heard only against official respondents and respondent No. 6. As per Madhya Pradesh Public Services (Promotion) Rules, 2002, the criteria for promotion of Class�3 to Class� 3 is "seniority-cum-fitness". These rules have superseded the recruitment rules to the extent criteria of promotion is concerned. This cannot be disputed that criteria is seniority-cum-fitness. In catena of judgments, it has been held that in the said criteria, there is no question of considering the comparative merits and unless the senior is unfit for promotion or facing any other legal handicap like facing criminal cases or disciplinary action, senior has a preferential right of consideration and promotion on the promotional post. This view is taken by the Supreme Court in the case of Union of India and other Vs. Lt. Gen. Rajendra Singh Kadyan and another reported in (2000) 6 SCC 698. Para 12 of the said judgment reads as under:-