IN THE HIGH COURT OF JUDICATURE CHHATTISGARH AT BILASPUR. WPS N0. 798/05 ^ PETITIONER ^v: - '^ RESPONDENTS: HEM RAJ VAISHYA S/0 MADHAV PD VAISHYA, ASSTT SUPERINTENDENT, LAND RECORDS, KATGHORA TAHSIL DIST BILASPUR. VERSUS 1) STATE OF CHHATISGARH, THROUGH SECRETARY, REVENUE DEPARTMENT, DKS BHAWAN, RAIPUR DIST C.G. STATE. ^.« .„ ^c^' ^ ¥^<^ ^ 2) DIRECTOR (LAND RECORDS) OLD SETTLEMENT OFFICE, GANDHI BHJAWAN RAIPUR DIST. C.G. STATE. 3) SHRI ARVIND DIDHRASKAR^ DYDIRECTOR (LAND RECORDS) OLD SETTLEMENT OFFICE, GANDHI BHAWAN, RAIPUR (C.G.) 4) SHRI HET RAM KANWAR, DY COLLECTOR, RAIGARH, RAIGARH DIST C.G. STATE. 5) SHRI S.R. KURRE, DY. COLLECTOR, KABIRDHAM DIST, C.G.STATE. 6) SHRI NARAIN SINGH GAUITAM, LAN D ACQUISITION OFFICER, SURAJPUR, SARGUJA DIST C.G. STATE. 7) SHRI DILIP AGARWAL, DY. COLLECTOR, DIST COLLECTORATE, BILASPUR C.G. STATE. ^ APPLICATION UNDER^ECTION 19 OF ADMINISTRATIVE TRIBUNALS AZCT. 1985. .^r ATR HIGH COURT OF CHHATTISGARH : BILASPUR PETITIONER RESPONDENTS WRIT PETITION (S) N0. 798 OF 2005 Hem Raj Vaishya Versus State ofChhattisgarh & Others (Application Under Section 19 ofAdministrative Tribunals Act,1985) Single Bench : Hon'ble Shri Satish K. Agnihotri, J. Present:- Shri K.R.Nair, Advocate fbr the petitioner. Shri P.K.Bhaduri, Panel Lawyerforthe State/respondent No. 1 & 2. Shri Pallav Mishra, Advocate for the respondent No.3 ORDER (ORAL) (Passed on this 30th day ofJune, 2010) 1. By this petition, petitioner seeks a directionto the respondents to promote the petitioner from the date when his juniors were promoted with all consequential benefits. 2. The facts, in brief, as projected by the petitioner, are that the petitioner was appointed as Assistant Superintendent, Land Records on 31/8/1981. Thereafter, he was confirmed on the said post by order dated 1/3/1988 w.e.f. 1/4/1986. Gradation list as on 1/4/1991 was published, wherein thepetitioner's name found place at serial No.79, respondent No.3 was placed at serial No.83, respondent No.4 at serial No.81, respondent No.5 atseriat No. 247, respondent No.6 at serial No. 135 and respondent No.7 atserial No. 150 respectively. 3. The petitioner, being eligible for consideration for promotion to the post of Superinftendent, Land Records was not ^ "src'y ^^KS^" considered in the D.P.C. proceedings held on 10/5/1993, wherein the juniors to the petitioner i.e. respondent No.3 to 7 were recommended for promotion and accordingly they were promoted ignoring claim of the petitioner itlegally. Thus, this petition. 4. Shri Nair, learned counsel appearing for the petitioner submits that there is no reason not to consider the caseof the petitioner and recommend the names of the juniors for promotion to the higher post i.e. Superintendent, Land Records in D.P.C. held on 10/5/1993. Shri Nair, further submits that there is no adverse entry in the annual confidential reports of the petitioner, as nothing has been communicated to the petitioner and the promotion is to be made on "seniority-cum-merit" basis. Thus, the seniority cannot be ignored. 5. ShriNair, learned counsel further submits that in case of promotion on the basis of seniority cum merit, it is not necessary to prepare a comparative chart and consider promotion to the higher post on the basis of merit alone, not on seniority-cum-merit. In support of his contention, learned counsel placed reliance upon the decision of the Supreme Court rendered in B.V. Sivaiah and Others v. K. Addanki Babu and Others . 6. On the other hand, Shri Bhaduri,learned counsel appearing for the State submits that the case of the petitioner was 1 (1998)63cc720 r""' •^ "'-, •t 3 l^ considered alongwith other persons on 10/5/1993 by the Departmental Promotion Committee (for short "DPC"). After having considered service records of the candidates, the service record of the petitioner was not found satisfactorily. Accordingly, he was not recommended for promotion to the post of Superintendent, Land Records. Subsequently, his case was considered on 5/11/1997 and he was recommended for promotion to the post of Superintendent, Land Records and thereafter he was accordingly pronhoted w.e.f. 6/1/1998. 7. Learned counsel appearing for the respondent No.3 adopts the submission made by the learned State counsel. 8. None appear on behalf of respondentNo.4 to 7, despite service of notice. 9. The stand taken by the State was that case of the petitioner was considered alongwith the other similarly situated juniors respondent No.3 to 7 on 10.5.1993. The petitioner was not found fit. The respondent State was directed to produce entire records of the DPC proceedings by order dated 31/3/2010. Again on 29/4/2010 and 4/5/2010 opportunities were granted to the State for filing the documents with regard to DPC held in May; 1993, wherein according to the State, the case of the petitioner was considered and not found fit. The State has not produced any records either original or photocopy of the same. It can safely be presumed that the State respondent is deliberately 13 ^> suppressing the material facts, which is most important for adjudication of the case. Thus, 1 have no hesitation in holding that the case of the petitioner was not considered in DPC held on 10/5/1993 though admittedly he was senior to others i.e. respondents No. 3 to 7. 10. In B.V. Sivaiah (supra) the Supreme Court explained the criteria for promotion on seniority-cum-merit as under: "18. We thus arrive at the conclusion that the criterion of "seniority-cum-merit" in the matter of promotion postulates that given the minimum necessary merit requisite for efficiency of administration, the senior, even though less meritorious, shall have priority and a comparative assessment of merit is not required to be made. For assessing the minimum necessary merit, the competent authority can lay down the minimum standard that is requiredand also prescribe the mode of assessment of merit of the employee who is eligible for consideration for promotion. Such assessment can be made by assigning marks on the basis of appraisal of performance on the basis of service record and interview and prescribing the minimum marks which would entitle a person to be promoted on the basis of seniority-cum-merit." Since no record has been produced, it is not possible to examine the criteria adopted in D.P.C. 11. In view of the foregoing, the petition is allowed with costs. The respondent State is directed to consider the case of the petitioner in accordance with law for promotion to the post of Superintendent, Land Records, with all consequential benefits from the date when his juniors i.e. respondent No.3 to 7 were considered and promoted to the post of Superintendent, Land Records. ^^p^'"^' ^ "'%..^j^y ^^^^' 11. Having regard to the fact that despite several.opportunities granted to the State respondent, original documents have not been produced. Cost is quantified to the tune of Rs. 10,000/- payable to the petitioner within a period of two weeks. Liberty is reserved to the State Government to recover the amount, if on enquiry, it is found that the records were either not maintained or deliberately not produced before the Court. 12. No order asto costs. Sd/- Satish K. Agnihotri Judge \31 ashok