SHYAM MANOHAR TIWARI Vs. STATE OF M.P.

JUDGEMENT

(1.) The petitioner before this Court who is a retired government servant has filed this present petition claiming promotion to the post of Joint Director/ Dy. Commissioner in the Scheduled Caste/Scheduled Tribe and Other Backward Class Welfare Department of the State of M.P. The petitioner's contention is that he was senior to respondent No.6 and 7 however, his case was not considered by a DPC which met on 26.12.2005 and he has attained the age of superannuation on 31.12.2006. The petitioner's contention is that the DPC has not considered the case of the petitioner and the petitioner was entitled to be considered for promotion at par with respondent No.6 and 7 who have been ultimately promoted vide order dt. 23.3.2006 and they are junior to the petitioner. The petitioner has prayed for issuance of an appropriate writ, order or direction directing the respondents to promote the petitioner to the post of Joint Director/ Dy. Commissioner. The petitioner has also argued that the criteria under the Recruitment Rules for promotion is seniority-cum-merit and since the petitioner is senior to respondent No.6 and 7 he was entitled for promotion to the next higher post which has been denied to him. Learned Counsel for the petitioner has placed reliance upon a judgment delivered by the Apex Court in the case of Union of India and ors. vs. K.V.Jankiraman and ors., 1991 4 SCC 109and his contention is that he was entitled to be considered for promotion however, his case has not been considered at all and, therefore, the respondents deserve a command to consider the case of the petitioner by holding a review DPC.

(2.) Learned Counsel has also placed reliance upon a judgment delivered by the Apex Court in the case of Rajendra Kumar Srivastava and ors. vs. Samyut Kshetriya Gramin Bank and ors., 2010 1 SCC 335and his contention is that the criteria seniority-cum-merit has been explained by the Apex Court in the aforesaid case and promotion has to be done on the basis of seniority out of candidates achieving requisite bench mark of merit. Learned Counsel has also placed reliance upon a judgment delivered in the case of Virendra Kumar Swarnkar vs. M.P. State Agricultural Marketing Board and another, 2011 4 MPHT 386and his contention is that the petitioner was certainly entitled to be considered for promotion and the minor punishment will not come in his way in respect of grant of promotion.

(3.) A detailed reply has been filed in the matter and the learned Counsel for the respondent/State has vehemently argued before this Court that the petitioner has deliberately not disclosed the order of punishment dt. 7.2.2005 by which a punishment of stoppage of two increments without cumulative effect was inflicted upon the petitioner. The respondents have further stated that the petitioner has thereafter preferred an appeal and the quantum of punishment was reduced vide order dt. 8.3.2006 to the extent of withholding of one increment without cumulative effect. The respondents have further stated that the petitioner on the date the DPC took place i.e. 26.12.2005 was under the currency of punishment and, therefore, as a punishment order was in existence, they have not considered the case of the petitioner for grant of promotion. The respondents have also stated that the petitioner has attained the age of superannuation on 31.12.2006 and, therefore, the question of granting promotion to the petitioner does not arise. The respondents have prayed for dismissal of the writ petition.