Judgment:
1 Writ Petition No. 497 Of 2005 15.2.2013 Shri K.S. Wadhwa, learned counsel for the petitioner.
Shri Samdarshi Tiwari, learned Government Advocate for respondent State of Madhya Pradesh.
Heard.
Being aggrieved by his supersession by order dated 26.10.1995, petitioner, vide this petition seeks direction to respondent No. 3 to consider his case for promotion to the post of Superintendent Engineer from the date earlier from that of his juniors and extend all consequential benefits on being found suitable.
For redressal of grievance petitioner had earlier approached the Madhya Pradesh Administrative Tribunal vide Original Application No. 856/1998.
The said case after its admission got tagged with another Original Application No. 2015/1996 : Vinod Kumar Rathore v. State of M.P. and others, which was transferred to State of Chhattisgarh, whereas petitioner's Original Application was transferred to this Court and was registered as W.P. No. 12481/2003, which was later on transferred to High Court of Chhattisgarh.
The petitioner thereafter sought recalling of order of transfer vide M.C.C 1833/ 2004 whereon by order dated 3.12.2004 he has been permitted to file fresh petition. In the event whereof petitioner withdrew his petition from the High Court of Chhattisgarh and filed this petition, which apparently does No. suffer from delay and laches.
2 As for the facts of the case the same lies in narrow compass. That being an Executive Engineer the petitioner along with other eligible Executive Engineers was considered for promotion against 13 posts of Superintendent Engineers by the Departmental Promotion Committee, which convened its meeting on 26.9.1995.
The consideration as per M.P. Rural Engineering (Gazetted Service) Recruitment Rules, 1986 was on the basis of merit cum seniority with the following criteria laid down by the D.P.C that: ¼1½ lfu"Bk loZFkk lansg ls ijs gks ¼2½ fiNys ikap o"kksaZ ds dk;ksZa ds ewY;kadu esa ls rhu o"kksZa dk ewY;kadu U;wure **vPNh** Js.kh dk gks].ftlesa ls vafre nks o"kksZa dk ewY;kadu **vPNh** Js.kh dk gks A ¼3½ ;fn fdlh o"kZ dk ewY;kadu **?.kfV;k** Js.kh dk gks rks og fdlh vU; o"kZ ds **mRd`"B** ewY;kadu ls **vkQ&lsV** fd;k tk ldrk gS A To adjudge the suitability as apparent from the D.P.C record five A.C.Rs from 1990 to 1994 were taken into consideration. The petitioner since had two average A.C.Rs he was not found suitable. (1990 – x 1991 £ , 1992 d 1993 x, 1994 d). therefore, was No. recommended for promotion; therefore, was not recommended for promotion.
Contention of the petitioner is that the A.C.R of the year ending 31.3.1993 was though recorded as good by the reporting officer; however, the Reviewing Officer downgraded the same to 'Average'. It is urged that the A.C.R recorded on 15.7.1994 by Shri N.B. Lohani who retired from service on 24.2.1994 and was a Commissioner, M.P. State Election Commission.
It is contended that it was beyond the competence of Shri N.B. 3 Lohani to have recorded the A.C.Rs as a Reviewing Officer. Reliance is placed on G.A.D (Personnel & Adm.
Reforms) Circular dated 543/907/dk-iz-lq-/1/84 dated 10.8.1984 and circular No. F 5.20/91/9/1 dated 15.1.1992 to bring home the submission. It is contended that since the A.C.Rs of 1993 (year ending 31.3.1993) was not written by competent authority, the D.P.C ought to have ignored the same and considered the petitioner on the basis of available A.C.Rs.There is no denial of the fact that the D.P.C has taken into consideration the A.C.R of 1993 which is average (x). It is also No. disputed by the respondents that Reviewing/Accepting Officer after his retirement has recorded the A.C.R on 15.7.1994.
Circular dated 10.8.1984 stipulates: fo"k;%& xksiuh; pfj=koyh esa erkadu&lsokfuo`Rr vf/kdkjh A 'kklu ds le{k iz'u mBk;k x;k gS fd ftl vf/kdkjh }kjk xksiuh; pfj=koyh fy[kh tkuh Fkh mlds }kjk le; ij xksiuh; pfj=koyh ugha fy[kh x;h gS vkSj og vf/kdkjh lsokfuo`r gks x;k gks rks D;k ml lsokfuo`Rr vf/kdkjh ls muds lsokdky esa muds v/khuLFk dk;Zjr deZpkfj;ksa@vf/kdkfj;ksa dh xksiuh; pfj=kofy;ka fy[kokbZ tk ldrh gSa\ ;fn ugha].rks ml vof/k dh pfj=kofy;ka fdl izdkj fy[kokbZ tk;sa A 2.bl iz'u ij fopkj djus ds mijkUr 'kklu }kjk ;g fu.kZ; fy;k x;k gS fd ;fn izfrosnd iqujh{k.k ,oa Lohd`rdrkZ vf/kdkjh (Reporting Reviewing and Accepting Authority) esa ls dksbZ Hkh vf/kdkjh lsokfuo`Rr gks tk, vkSj muds mRrjkf/kdkjh fu;ekuqlkj Md.vof/k dh xksiuh; fjiksVZ fy[kus ds fy, izkf/kd`r u gksa ¼vFkkZr~ foRrh; o"kZ ds nkSjku izHkkj esa rhu ekg ls de le; rd dke fd;k gks½ rks ,slh fLFkfr esa Md.lsokfuo`Rr vf/kdkjh dks NksM+dj vU; vf/kdkjh tks lsok esa gSa].ds }kjk fy[kh xbZ xksiuh; fjiksVZ dks ekU;rk nh tk;s A It is further reiterated vide circular dated 15.1.1992 that: fo"k;%& xksiuh; pfj=koyh esa erkadu ds laca/k esa A 4 'kklu ds le{k ;g iz'u mBk;k x;k gS fd ftl vf/kdkjh }kjk xksiuh; pfj=koyh fy[kh tkuh Fkh ;fn ml vf/kdkjh dh e`R;q gks tk;s rks mlds v/khuLFk deZpkfj;ksa@vf/kdkfj;ksa dh xksiuh; pfj=koyh fy[kus dh D;k izfdz;k gksxh A 2.bl foHkkx ds Kkiu dza- 543@807@dkizlq@1@84].fnukad 10&8&84 }kjk ;g funsZ'k tkjh fd;s x;s Fks fd ;fn izfrosnd].iqujh{kd ,oa Lohd`rdrkZ vf/kdkjh esa ls dksbZ Hkh vf/kdkjh lsokfuo`Rr gks tk;s vkSj muds mRrjkf/kdkjh fu;ekuqlkj Md.vof/k dh xksiuh; fjiksVZ fy[kus ds fy;s izkf/kd`r u gks ¼vFkkZr~ foRrh; o"kZ ds nkSjku izHkkj esa rhu ekg ls de le; rd dke fd;k gks½ rks ,slh fLFkfr esa Md.lsokfuo`Rr vf/kdkjh dks NksM+dj vU; vf/kdkjh tks lsok esa gSa].ds }kjk fy[kh xbZ xksiuh; fjiksVZ dks ekU;rk nh tkos A 3.mijksDr dafMd.2 esa vafdr izfdz;k izfrosnd].iqujh{kd ,oa Lohd`rdrkZ vf/kdkjh esa ls fdlh Hkh vf/kdkjh dh e`R;q gks tkus ij mlds v/khuLFk deZpkfj;ksa@vf/kdkfj;ksa dh xksiuh; pfj=koyh fy[kus gSr.viukbZ tkos A In view of above the D.P.C convened on 26.9.1995 ought to have ignored the A.C.R of 1993 as the Reviewing Officer was not competent to have recorded the same. Instead, by taking into consideration the petitioner has been downgraded and eliminated.
An illegality has thus crept in by discarding the petitioner on the basis of untenable A.C.R of 1993. Therefore, a right accrues in favour of the petitioner for reconsideration by ignoring the A.C.Rs of 1993.
The respondents are, therefore, directed to convene review D.P.C as on 26.9.1995 and by ignoring the A.C.R of year ending 31.3.1993 should consider the case of the petitioner and if found suitable then without disturbing the promotion given to the juniORS. to grant him promotion to the post of Superintendent Engineer from the date his immediate junior has been promoted and grant seniority therefrom; however, in peculiar facts of present case the petitioner will be entitled for 50% of the difference of wages, 5 the remaining 50% shall be notionally counted for the purpose of fixation. Let the decision be taken within 3 months.
Petition is allowed to the extent above.
However, no costs. (SANJAY YADAV) JUDGE Vivek Tripathi