S S TOMAR Vs. STATE OF M P

JUDGEMENT

(1.) The grievance of the petitioner is that though he was senior to the private respondents No. 3 and 4 right from the day one, he was superseded in the matter of promotion on the post of. Joint Director and the aforesaid two respondents have been promoted on the higher post erroneously. It is contended that the petitioner since has been superseded in the matter of promotion on the post of Joint Director in an illegal, manner, the action on the part of the respondents is per se illegal. In short the claim of the, petitioner is that by holding selection for appointment on the post of District Woman & Child Development Officer by the M.P. Public Service Commission, an order of appointment was issued on 8-2-1995. The petitioner was selected and was put at S. No. 2 of the merit list by the Public Service Commission, according to which in the order of appointment issued by the State Government, the name of the petitioner was at S. No. 2. The respondents Nos. 3 and 4 were also selected for such appointment by the Public Service Commission and their names were at S. Nos. 3 and 4 of the merit list. Accordingly, they have been appointed along with the petitioner but were given the placement below the name of the petitioner in the order of appointment at S. No. 3 and 4. Such a situation has remained intact even when the seniority lists were circulated and the respondents No. 3 and 4 were shown junior to the petitioner throughout. On account of the merits of the persons, when a D.P.C. was convened for promotion on the post of Deputy Director in the Department, the name of the petitioner was also considered and since he was found fit for such promotion, by order dated 25-4-1998, the petitioner was promoted as Deputy Director. The respondents No. 3 and 4 too were promoted by the very same order and they were mentioned at S. Nos. and 10 below the name of the petitioner in the said order. Again the D.P.C. was required to be convened for promotion on the post of Joint Director only because the suitable officers fulfilling the conditions as prescribed under the Rules were not available, after granting relaxation. In the said D.P.C. the case of the petitioner too was considered but instead of promoting him on the post of Joint Director, the respondents No. 3 and 4 were promoted vide order dated 14th December, 1999. The representation was made by the petitioner, which was forwarded to the competent authority for consideration but the same was rejected vide impugned order dated 20-1-2005 saying that since the D.P.C. has not found the petitioner fit for promotion, he was rightly superseded in the matter of promotion as Joint Director. By this order since the rejection is communicated to the petitioner, he has approached this Court by way of filing of this writ petition. On the basis of these allegations the petitioner has claimed the relief to the effect that after perusal of the record, a direction be issued to the respondents to promote the petitioner on the post of Joint Director and place him above respondents No. 3 and 4.

(2.) Contesting the claim made by the petitioner, the respondents No. 1 and 2 only have filed the return. Despite service of the notices of the writ petition, the respondents No. 3 and 4 have not come before this Court. It is contended by the respondents No. 1 and 2 in their return that the claim made by the petitioner is hopelessly barred by limitation as order was issued on 14-12-1999 promoting respondents No. 3 and 4 on the post of Joint Director but the writ petition is filed in the year 2005. However, it is contended by the respondents that the D.P.C. was held on 8-12-1999. The petitioner too was considered for promotion. The selection was to be made on the basis of merit-cum-seniority and as a limited period was to be seen as none of the, persons to be considered for promotion on the post of Joint Director, have fulfilled the criteria of 5 years of working on the post of Deputy Director and specific relaxation was granted in that respect, it was decided by the D.P.C. that those who have obtained 11-12 marks in their ACRs grading would be graded as 'excellent'. It was further resolved that those who have obtained 8 to 10 marks would be graded as 'very good', those who have obtained 5 to 7 marks would be graded as 'good' and those who have obtained 5 marks would be graded as 'average'. It is the contention of the respondents that the petitioner was graded as 'very good' whereas respondents No. 3 and 4 were graded as 'excellent' and, therefore, they were found fit for promotion whereas the petitioner was not found fit for such promotion. Thus, it is contended that since rightful appreciation of the merit of the petitioner was done, no case was made out to interfere in the action taken by the respondents and, therefore, the petition is liable to be dismissed.

(3.) The petitioner has moved an application for taking certain documents on record along with which the petitioner has placed on record his ACRs obtained under the Right to Information Act. The petitioner has further prayed that the original record of the D.P.C. may be called and seen. This Court has taken the ACRs of the petitioner on record and has sent for record of the D.P.C., which is produced before this Court. After perusal of the D.P.C. record it is clear that the marking in the ACRs grading of the petitioner was not rightly appreciated. The Department itself has prepared a master chart, which was placed before the D.P.C. for consideration. In the relevant years which ware taken into consideration by the D.P.C. of the year 1999, the grading shown in the ACRs of the petitioner are in all the three years. It was categorically said that there was no complaint with respect to the integrity of the petitioner nor any departmental enquiry was pending against him. No complaints were received against him. The gradings of the respondents No. 3 and 4 were also specifically mentioned. In the case of respondent No. 3, he too was granted in all the three years. In case of respondent No. 4, she was graded for one year and for the remaining two years. The calculation of the marks obtained on the basis of aforesaid ACRs were done by the D.P.C. For the petitioner it was said that he has obtained only 10 marks whereas for the respondent No. 3 it was said that he has obtained 12 marks and for respondent No. 4 it was said that she has obtained 11 marks. In view of this, it was said that the petitioner was graded as 'very good' whereas the respondents No. 3 and 4 were graded as 'excellent',