VIMAL KISHORE SWAMI Vs. STATE OF M.P.

JUDGEMENT

(1.) THE grievance of the petitioner is with respect to the order dated 21.5.2012, by which juniors to the petitioner have been promoted on the post of Executive Engineer in Water Resources Department, but the petitioner is found unfit for such promotion. It is contended by the petitioner that the Departmental Promotion Committee proceedings were downloaded by the petitioner and it was found by him that though in the said Departmental Promotion Committee dated 5.5.2012, the name of the petitioner was considered, but only because of an Annual Confidential Report of the year 2010, which is said to be adverse, the petitioner was found unfit for promotion. It is contended that the petitioner was communicated the adverse entry in his confidential report vide memo dated 18.8.2011, he represented against the said adverse entry immediately on 18.9.2011. The said representation was not decided till the date of Departmental Promotion Committee meeting i.e. upto 5.5.2012. The fact relating to pendency of the representation against the said adverse entry was not brought to the notice of the Departmental Promotion Committee and, therefore, the adverse entry was not to be taken into consideration. The petitioner was not to be non- suited for his promotion on the post of Executive Engineer. This being so, it is contended by the petitioner that the action of not considering the case of the petitioner for promotion properly was bad in law. To bring into notice of the fact relating to pendency of the representation against the adverse confidential report, a further representation was made by the petitioner on

(2.) 5.2012, but again this representation was also not brought to the notice of the Departmental Promotion Committee and, as such, the petitioner was not rightly considered for promotion. 2. This Court entertained the writ petition and issued the notices to the respondents. On receipt of the notice, a return has been filed by the respondents contending inter alia that the case of the petitioner was considered strictly in accordance to the provisions of the M.P. Public Service (Promotion) Rules, 2002 (hereinafter referred to as the Rules of 2002 for brevity). It is contended by them that the adverse remarks were already communicated to the petitioner and, therefore, the Departmental Promotion Committee was just and proper to take into consideration the adverse remark on account of which the petitioner was found unfit for promotion on the post of Executive Engineer. It is contended that since the representation of the petitioner was pending, a decision has been taken and the said representation of the petitioner is rejected vide order dated 31.8.2012, which order is sent for communication to the petitioner. Thus, it is contended that no error is committed by the respondents in considering the case of the petitioner for promotion and rejecting the same.

(3.) YET another aspect is that the petitioner has placed on record, an assessment chart of the Annual Confidential Report said to be written in respect of petitioner vide Annx.P/3. This particular document is not disputed by the respondents. The Departmental Promotion Committee proceedings placed on record indicates that there was no Departmental Promotion Committee held in the year 2011 and the Departmental Promotion Committee in question was held only in the year 2012. The assessment reflected in the chart produced by the petitioner with respect to his Annual Confidential Report grading from 2004-2009, nowhere indicates that there was any adverse remark. The adverse remark was only in the Annual Confidential Report of the year 2010. His Annual Confidential Reports were graded to be Good. His previous record indicates that the petitioner would have been found fit for promotion if the Annual Confidential Report of the year 2010 would have been ignored. These facts the respondents were required to explain in their return, but as is being done generally by the respondents while filing the return, the parawise reply of the petition is not given. That being so, it cannot be said that the case of the petitioner was properly scrutinised, his suitability was tested for promotion on the post of Executive Engineer by the Departmental Promotion Committee in proper manner. Further, if the Departmental Promotion Committee would have been informed about the pendency of the representation against the adverse entry in the Annual Confidential Report of the year 2010 of the petitioner, the Departmental Promotion Committee would not have taken into consideration the said adverse entry and would have decided the claim of the petitioner more properly.