--- 1 --- HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE S.B.: HON'BLE MR. S. C. SHARMA, J WRIT PETITITION NO. 6787 / 2008 DR. ASHOK VIRANG S/O LATE BHERULAL VIRANG Vs. STATE OF MP & ANOTHER * * * * * O R D E R ( 2/5/2011) The petitioner before this Court, serving on the post of Joint Director in the Department of Public Health & Family Welfare, has filed this present writ petition being aggrieved by the inaction on the part of the respondents in complying order dt. 6/11/98 passed by M P State Administrative Tribunal in OA NO. 611/98 Dr. Ashok Vs. State of MP & 4 Ors., Order dt. 20/10/2010 passed by the High Court in WP NO. 1847/1998, as well as the order dt. 8/2/08 passed in MCC NO. 679/2003. The petitioner as already stated earlier at present is serving as a Joint Director in the Department of Public Health & Family Welfare Department. In the year 1998 he was not considered for promotion to the post of Director, Public Health & Family Welfare Department and --- 2 --- therefore being aggrieved by his non consideration resulting in supersession, an OA was preferred before the M P State Administrative Tribunal and the same was registered as OA No. 611/98 Dr. Ashok Vs. State of MP & Ors., The petitioner has further stated that one Original Application was also preferred by one Dr. Ashok Sharma and the same was registered as OA No. 910/98 and both the Original Applications were decided by the Division Bench of the Tribunal directing the respondents therein to hold a review DPC of the year 1998 keeping in view the directions issued by the Tribunal in para 22. The petitioner has further stated that M P State Administrative Tribunal while allowing the Original Application has set aside the promotion of Dr. Yogiraj Sharma while ordering a review DPC and Dr. Yogiraj Sharma being aggrieved by the order passed by the M P State Administrative Tribunal preferred a Writ Petition before this court and the same was registered as WP NO. 1874/98 Dr. Yogiraj Sharma Vs. State of MP & ors., The petitioner has further stated that the writ petition preferred by Dr. Yogiraj Sharma was partly allowed and the order of --- 3 --- the M P State Administrative Tribunal was modified. He has further argued before this court that this High Court has also directed the respondents therein to hold review DPC of the year 1998. The petitioner has further stated that inspite of repeated requests the order passed by the M P State Administrative Tribunal as well as the order passed by this Court were not being complied and therefore the petitioner left with no other choice came up before this court by filing a Contempt Petition and the same was registered as MCC NO. 679/2003 and this court vide order dt. 8/2/08 has granted 3 months time to the State Government to comply with the order passed by this court in WP NO. 1874/98 dt. 20/10/10. The petitioner has further stated that instead of complying the order passed in earlier round of litigation including the contempt petition, the respondents were bent upon not to hold a review DPC and therefore as again an attempt was being made to supersede the petitioner in the year 2008 who was fighting for his rights since 1998, the present petition has been filed by the petitioner for issuance of an appropriate writ, order or direction directing the --- 4 --- respondents to hold review DPC and for restraining them from holding a regular DPC till a review DPC is held as directed bythe M P State Administrative Tribunal / this Court. A reply has been filed in the matter by the State of MP and the stand of the State Government is that the State Government has conducted a review DPC as directed by the M P State Administrative Tribunal and they have enclosed copy of minutes of review DPC along with the return as (Annexure R/2). Stand of the State Government is that a review DPC was held on 26/11/98 keeping in view the MP Civil Services (Reservation in Promotion and Limits on the Extent of Zone of Consideration) Rules, 1997 and five other persons including the petitioner were considered for promotion. It has also been stated that as per the recommendations of the review DPC Dr. Yogiraj Sharma was found fit and he has been promoted to the post of Director, Health Services and as the petitioner was at No.6 of the gradation list, he was not within the zone of consideration and therefore he has not been considered by --- 5 --- the review DPC dt. 26/11/98. The respondents have prayed for dismissal of the writ petition. During the pendency of the present writ petition the representation of the petitioner was also turned down by an order dt. 11/12/08 on the ground that a review DPC was held as directed by the M P State Administrative Tribunal as well as by this court and the petitioner has amended the writ petition and has sought for quashing of the order dt. 11/12/10 also (Annexure P/10). Additional reply has also been filed and the respondents have stated in the additional reply that one Dr. K. K. Shukla was also considered by the review DPC which took place on 26/11/98 and therefore as the petitioner was at No.6 of the seniority list he was not considered by the review DPC as he was not falling within the zone of consideration. The respondents have prayed for dismissal of the writ petition. Heard learned counsel for the parties at length and perused the record. In the present case, the petitioner before this court holding the post of Joint Director in the Public Health & Family Welfare Department of the State of MP is fighting --- 6 --- since 1998 against his supersession. A DPC was held on 25/3/98 and the petitioner was not considered at all by the respondents resulting in his supersession and one Dr. Ashok Sharma was also not promoted to the post of Director, Health Service and two Original Applications were preferred before the M P State Administrative Tribunal. The M P State Administrative Tribunal has allowed the Original Applications preferred by the present petitioner as well as by Dr. Ashok Sharma vide order dt. 6/11/98 passed in OA NO. 699/98 and the following directions were issued to the State Government as under : (i) Depending upon whether the restrictions regarding zone of consideration imposed by the Rules of 1997 issued by the GAD of the Government if incorporated in the Recruitment Rules of 1988 of the Department, the zone of consideration shall be seven or at least five for consideration. The case of Dr. Ashok Virang who stands at S.No.6 shall be considered if only the provisions of Recruitment Rules, 1988 are to be followed which provides for a zone of seven times. If the provisions of Rules of 1997 have been accepted by the Department or incorporated in the Recruitment Rules even then if Dr. K.K.Shukla has refused consideration --- 7 --- for promotion Dr. Virang's number would then find at S.No.5 and would then come within the zone of consideration. (ii) Correct name of the post, its creation, and its scale on which selection is to be made should be ascertained clearly and recommendations should be made for the same post clearly mentioning the same in the proceedings by the DPC to avoid any confusion and illegality. The actual number of vacancies of the post of Director should be ascertained and action to select candidates for all the posts should be taken as per rules. (iii) The CRs of all the five years of all the eligible candidates falling within the zone of consideration should be considered to allow the assessment of comparative merit on equal footing, ignoring unreasoned, uncommunicated remark Kha of Dr. Ashok Sharma (iv) As already directed in OA NO. 66 / 1998 before holding the seniority list as directed should be prepared and acted upon, if it applies to the cases. The M P State Administrative Tribunal has categorically held that Dr. K.K.Shukla has refused consideration for promotion and for the reasons stated in para 4, the present petitioner Dr. Virang's name certainly finds place at Sl.No.5 and he well is within the zone of --- 8 --- consideration. Thus, the question whether the present petitioner was within the zone of consideration or not has also been adjudicated in the earlier round of litigation by the M P State Administrative Tribunal and it was held that the present petitioner Dr. Virang was within the zone of consideration in the year 1998. The M P State Administrative Tribunal while allowing the OA has quashed the promotion of Dr. Yogiraj Sharma, the respondent therein and the respondent State was directed to hold a review DPC. Dr. Yogiraj Sharma whose promotion was set aside came up before this Court by filing Writ Petition and the same was registered as WP NO. 1847 / 1998 Dr. Yogiraj Sharma Vs. State of MP & Ors., and this court vide order dt. 20/10/2000 in paragraphs 7 to 11 has held as under : 7. However, the Tribunal fell in error in considering the ACRS of Dr.Ashok Sharma, as his name was not considered by the D.P.C. and thus it had no occasion to consider his ACRS. In the ACR of the year 1997, the Director Health Services wrote 'Sahmat' (Agree) 'Kha' on 17.7.97, and on 9.9.97, made some remark - like lack of interest in Court cases, there was necessity of going deep in the national programmes. --- 9 --- Achievment of the Division was less. Capacity to work is good and thereafter the ACR was sent to the Principal Secretary who is the final authority in the matter. He remarked : "Dr.Ashok Sharma is a competent and wise officer. He has managed the work of the Division properly. He is capable of bearing the responsibility of State Health Programmes Graded 'Kha'." The Tribunal observed that the reporting officer had awarded "K+" to Dr.Ashok Sharma and, therefore,award of 'Kha' by the Principal Secretary was adverse entry and it was not communicated, therefore, it had no force. It further observed that it deserved to be treated as 'Ka+'. Not only this, it ordered in operative para of its judgment that : "The C.Rs. of all the five years of all the eligible candidates falling within the zone of consideration should be considered to allow the assessment of comparative merit on equal footings, ignoring unreasoned, uncommunicated remark Kha of Dr.Ashok Sharma." How D.P.C. can be directed to ignore the gradation "Kha" in the ACR of the year 1996 given by the Principal Secretary. It had full authority to peruse and consider the ACRS and take decision in view of the service record of Dr.Ashok Sharma and value his performance. --- 10 --- 8. The tribunal also fell in error in assessing the ACRS of the petitioner Dr.Yogiraj Sharma. The respondent Dr.Ashok Sharma in O.A.No.910/98, had not made allegation that petitioner had been wrongly graded. The Tribunal observed that the award of gradation "ka+" to the petitioner, in the year 1993 by the superintendent, was not obejective. It observed that on the remark of the superintendent, "Dr.Yogiraj Sharma was very good surgeon, specially - his work in the field of Family Planning operations was appreciable, he deserved promotion" he could not be rated "outstanding". The D.P.C. had considered the above grading of the petitioner and assessed him 'outstanding'. The observations of the Tribunal is beyond its jurisdictional limit. It is the function of the D.P.C. to evaluate the performance of the candidate. The Tribunal cannot sit over the assessment made by the D.P.C. It is beyond judicial review. The observations of the tribunal that the Collector and the Superintendent were not competent to write the ACR of the petitioner is also outstepping of its jurisdiction (See (1996)2 SCC 488 Nutan Arvind (Smt) Vs. Union of India and another). In case of Anil Katiyar (Mrs) Vs. Union of India and others (1997)1 S.C.C.280, the appellant was graded as "outstanding" for two years and "very good" for one year and the respondent was rated for all the --- 11 --- three years as "very good" and was promoted on the basis of seniority. The appellant contended that she ought to have been graded as "outstanding" and promoted, the CAT dismissed her application, on the basis, that it is not expected to play the role of an appellate authority or an umpire in the acts and proceedings of the D.P.C. and could not sit in judgment over the selection made by the D.P.C. and the dismissal was approved by the Supreme Court. In A.I.R.1997 SC 2606, Kuldip Chand Vs. State of H.P. and others, the Selection Committee awarded 21 marks to the respondent and 16 marks to the appellant and selected the respondent. The appellant challenged the selection contending that he was more meritorous, the State Administrative Tribunal accepted his contention and quashed the selection. The Apex Court set aside the order of the Tribunal and observed : "The State Administrative Tribunal, in our opinion, fell in complete error in judging the comparative merit of the candidates and finding fault with the award of 21 marks in viva voce to the appellant as against 16 marks awarded to respondent no.4. The Tribunal exceeded its jurisdiction in entering into the field exclusively reserved for the Selection Committee. In 1990 S.C.434 Dalpat Abasaheb Solunke etc.etc. Vs. Dr.B.S.Mahajan etc.etc. it was --- 12 --- observed that it is not the function of the Court to hear appeals over the decisions of the Selection Committee and to scrutinize the relative merits of the candidates. 9. The Tribunal also directed that, as ordered in O.A.No.66/98, before holding D.P.C., the seniority list should be prepared and acted upon. The respondent had not raised any dispute about the seniority nor was made any prayer in this regard, then how such direction could be given in this case. In doing so, the Tribunal travelled beyond its jurisdiction. 10. As the respondent Dr.Ashok Sharma was deprived of his right of being considered for promotion by the D.P.C., therefore, the Tribunal had jurisdiction to set-aside the promotion order of the petitioner, and to direct the State Govt. to constitute fresh D.P.C. for selection of a candidate to the post of Director Public Health & Family Welfare and considering the name of Dr.Ashok Sharma also. But the Tribunal committed illegality in directing the D.P.C. to ignore the gradation "Kha" given by the competent authority, thereby divesting the D.P.C. of its exclusive jurisdiction to assess the performance of the candidate. 11. In the result, the writ petition is partly allowed. The direction of the Tribunal for constitution of the D.P.C. and consideration of eligible five officers of the cadre of Joint Director including Dr.Ashok Sharma, for promotion to the post of Director, --- 13 --- Public Health & Family Welfare, is maintained and rest of the directions as preparation of seniority list, ignoring the gradation "Kha" of Dr.Ashok Sharma etc. are setaside. The order of this Court dated 25.1.2000, staying the hearing of the petition O.A.No.1508/98 filed by the respondent Dr.Ashok Sharma in the Tribunal, questioning the selection of the petitioner Dr.Yogiraj Sharma, stands vacated. No order as to costs. The aforesaid order passed by this court in the earlier round of litigation makes it very clear that a review DPC was to be held and the case of the petitioner was required to be reviewed by holding a review DPC of the year 1998. However, as the same was not done a Contempt Petition was preferred in the year 2003 and the matter was decided after hearing the parties and the bi-parte order passed by this court dt. 8/2/08 reads as under : It is not in dispute that assailing the order passed by the Tribunal and the petition was filed WP NO. 1847 / 98 (Dr. Yogiraj Sharma Vs. State of MP and others) which was decided vide judgment dated 20/10/2000. High Court has issued the following directions :- In the result, the writ petition is partly allowed. The direction of the --- 14 --- Tribunal for constitution of the D.P.C. and consideration of eligible five officers of the cadre of Joint Director including Dr.Ashok Sharma, for promotion to the post of Director, Public Health & Family Welfare, is maintained and rest of the directions as preparation of seniority list, ignoring the gradation "Kha" of Dr.Ashok Sharma etc. are setaside. The order of this Court dated 25.1.2000, staying the hearing of the petition O.A.No.1508/98 filed by the respondent Dr.Ashok Sharma in the Tribunal, questioning the selection of the petitioner Dr.Yogiraj Sharma, stands vacated. No order as to costs. The directions as issued by the Tribunal modified by the High Court has not been carried out, however, urged that it is a fit case of deliberate and wilful non-compliance of the order of the Court. Considering the fact that this petition was filed before the Tribunal invoking the jurisdiction under Section 17 of the M.P. State Administrative Tribunal Act, 1985. On abolition of Tribunal all the cases have been relegated to this Court. Therefore, it is thought proper to dispose of this petition with a direction to the respondents to carry out the order passed by the Tribunal, modified by the High Court, which is quoted hereinabove, now within a period of three months from the date of communication of this order. Accordingly, this petition is disposed of. --- 15 --- The aforesaid order makes it very clear that the respondent State was granted 3 months time to hold a review DPC as directed by the Tribunal and as directed by this court vide order dt. 20/10/2000. It is really unfortunate that the respondent State instead of complying the orders passed by this court as well as by the M P State Administrative Tribunal has taken a stand that a review DPC was held on 26/11/98 and the case of the petitioner has already been considered by the review DPC and as he was not in the zone of consideration, the question of granting him promotion does not arise. This Court has carefully gone through the Minutes of the review DPC dt. 26/11/98. This Court has passed a detailed and exhaustive order on 20/10/2000 in WP No. 1847 / 1998 and therefore any proceedings of any committee prior to order dt. 20/10/2000 can never said to be an action for compliance of the order passed in the year 2000. The reply of the State is nothing but an eye wash and an attempt to mislead this Court in order to deprive of the petitioner of his legitimate right of consideration. The respondent State could have held a --- 16 --- review DPC even after filing of the present writ petition. The petitioner is languishing on the post of Joint Director since 1996 and persons have been promoted to the higher post in the year 1998. It has also been brought to the notice of this court by the learned sr. counsel appearing in the matter that persons who were promoted to the next higher post namely Dr. Yogiraj Sharma has been placed under suspension by the State Government and one of the promotee namely Dr. M. K. Joshi has attained the age of superannuation. He has vehemently argued before this Court that the suspension of Dr. Yogiraj Sharma speaks volumes about his service record. As the subject matter of suspension of Dr. Yogiraj Sharma and retirement of other Directors is not a subject matter of the present writ petition, no comments are being offered in that behalf. In the present case, the M P State Administrative Tribunal in unequivocal terms has held that the petitioner was within the zone of consideration and therefore keeping in view the the judgment delivered by the Tribunal and keeping in view the order passed by this Court in WP No. 1847 / 1998 dt. --- 17 --- 20/10/2010, the respondent State is under an obligation to hold a review DPC. Resultantly the present writ petition is disposed of with a direction to the State Government to hold a review DPC as directed by the M P State Administrative Tribunal as well as by this court vide order dt. 8/2/2008 within a period of 60 days from the date of receipt of certified copy of this order. In the present case, the order of M P State Administrative Tribunal is dt. 6/11/98 and the order passed by this Court in WP NO. 1847/1998 is dt. 20/10/2000. The order passed in Cont. Pet. is dt. 8/2/2000 and even after expiry of 2 years from the date of order passed in Cont. Petition, the respondents have not cared to obey the order passed by this Court and therefore keeping in view the totality of the circumstances of the case a cost of Rs.5000/- is imposed upon the respondent State. The writ petition is allowed. No order as to costs. (S. C. SHARMA) J U D G E KR