--- 1 --- HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE S.B.: HON'BLE MR. S. C. SHARMA, J WRIT PETITITION NO. 3926 / 2010 DR. ASHOK VIRANG Vs. STATE OF MP & OTHERS * * * * * O R D E R ( 2/5/2011) The petitioner before this Court, a Joint Director, serving in the Public Health & Family Welfare Department of the State of MP, has filed this present petition being aggrieved by an order dt. 19/11/2009, by which the Junior to the petitioner – respondent No.3 has been promoted to the post of Director, Public Health & Family Welfare Department. The contention of the petitioner is that he is the senior most Joint Director in the Public Health & Family Welfare Department of the State of MP and in the year 1998 he was superseded for the post of Director. The petitioner has further stated that an original application was preferred by him claiming promotion to the post of Director and the MP State Administrative Tribunal while allowing OA No. --- 2 --- 611/1998 has directed the respondents to hold a review DPC of the year 1998. The petitioner has further stated that thereafter a writ petition was preferred by Dr. Yogiraj Sharma whose promotion was set aside by the State Administrative Tribunal and the aforesaid writ petition ie., WP No. 1847 / 1998 was decided on 20/10/2000 and again the order passed by the Tribunal for holding a review DPC was upheld. The petitioner has further stated that a Contempt Petition was also preferred as the order passed by this Court was not being complied with and this Court while deciding MCC No. 697/2003 vide order dt. 8/2/2008 has directed the respondents to hold a review DPC within 3 months. Petitioner has further stated that so far as his supersession in the year 1998 is concerned, he was not promoted by holding a review DPC and has again preferred a writ petition ie., WP No. 6787/2008 (s) and this court has allowed the aforesaid writ petition today itself directing the respondents to hold a review DPC within a period of 3 months. The petitioners grievance is that he is entitled to be considered right from 1998. However, the respondents on --- 3 --- some pretext or the other have ensured that he is not promoted to the next higher post at any cost. The petitioner is aggrieved by order dt. 19/11/2009 by which his junior has been promoted though on temporary basis but after holding a regular DPC. The petitioner has enclosed the minutes of the DPC and his contention is that as 2 years ACRs were not available in his case i.e., of 2007 and 2008, his case has been deferred. Learned senior counsel for the petitioner has argued before this Court that in case his 2 years ACRs were not available, the respondents should have taken into account the ACRs of the preceeding year as per Rule 6 of the MP Public Service Promotion Rules, 2002. He has prayed for quashing of the impugned order dt. 19/11/2009. Learned Counsel has also argued before this Court that earlier also the respondents have promoted persons on temporary basis in the year 2005 and as the petitioner was entitled to be considered w.e.f. 1998 by review DPC, he submitted a representation before the Department and he was informed by the Department that promotions on adhoc --- 4 --- basis / temporary basis are done exclusively on the basis of seniority. The contention of the petitioner is that the respondents are not promoting him on some pretext or the other. He has further stated that whenever a person who is to be favoured is senior and has to be promoted on the basis of seniority, the principle of Seniority is made applicable and when a person who is to be favoured is junior, the respondents are making promotion on the basis of assessment of ACRs by adhering to the process of holding of a DPC. It has been argued that there is no uniform procedure adopted by the respondents in the matter of conferral of adhoc promotion / temporary promotion. A reply has been filed in the matter and the stand of the State Government is that the case of the petitioner was considered for promotion on adhoc basis / on temporary basis along with other persons and as ACRs of 2 years were not available ie., for the year 2007 and 2008 he has not been considered by the DPC. The respondents have stated that the petitioner inspite of repeated letters has not forwarded the self appraisal report and therefore the ACRs were not --- 5 --- available on account of a lapse committed by the petitioner in the matter of submitting self appraisal. The respondents have enclosed letter dt. 26/5/2000, 6/8/2010 and 16/8/2010 by which the petitioner was directed to forwarded the self appraisal report. In the present case, no reply has been filed by the respondent No.3 who has been temporarily promoted in spite of repeated opportunities for the reasons best known to him. However, the matter was argued at length by the learned counsel appearing for the respondent No.3. Heard learned counsel for the parties at length and perused the record. The petitioner before this Court, a Joint Director, serving the Department of Public Health & Family Welfare Department, has filed the present petition being aggrieved by order dt. 19/11/2009 by which the respondent No.3 has been promoted temporarily until further orders to the post of Director, Health Services. As per the stand of the respondents a DPC was held and the minutes of DPC are also on record as Annexure P/5. The Minutes have not been denied by the learned counsel for the respondent State. The --- 6 --- minutes of the DPC reveal that the ACRs for the year 2007 and 2008 in respect of the petitioner were not available. This Court has carefully gone through the statutory provisions governing the field and in the present case and there is no dispute in respect of the petitioner being in the zone of consideration and also in respect of the qualifications as per the Recruitment Rules. The promotions to the post of Director are governed under the provisions of MP Public Service Promotion Rules, 2002 and Rule 6(1) and Explanation 6 under the Rules of 2002, reads as under : 6. Promotion on the basis of seniority subject to fitness. (1) In such cases where the promotion is to be made on the basis of seniority subject to fitness, there shall be no zone of consideration for all categories. Explanation. (6) When one or more ACRs are not available for any reason for the relevant period, the Departmental Promotion Committee shall consider the ACRs of the years preceding the period in question. The aforesaid statutory provision governing the field in respect of promotion provides that in case one or more ACRs are not available for any reason, the ACRs of the --- 7 --- years preceding the period in question are to be looked into by the DPC. The respondents have totally ignored the aforesaid statutory provision of law while holding a DPC. Not only this, the petitioner has categorically stated in the petition that he has submitted a self appraisal report of both the years for the period in question and Dr. Yogiraj Sharma, who was the initiating authority and who has been subsequently subsequently placed under suspension, has not forwarded the ACRs of the petitioner. It has also been stated that the subsequent Director namely Dr. M.K. Joshi has superannuated and he has also not initiated the ACRs of the petitioner. The so-called letters issued by the State Government directing the petitioner to submit self appraisal report and informing the petitioner that he has not submitted the self appraisal report are of the year 2010 dt. 6/5/2010, 6/8/2010, 16/8/2010 and 4/10/2010. All the aforesaid letters of the State Government by which an attempt has been made to demonstrate that the State Government was issuing reminders to the petitioner again and again have been issued after the date of holding a DPC ie., after 22/6/09 and --- 8 --- therefore this court has safely arrived at a conclusion that the letters issued by the State Government is nothing but again an attempt to justify their illegal action in not considering the petitioner for promotion to the post of Director on temporary basis. This Court has carefully gone through the order passed in Contempt Petition ie., MCC No. 679 / 2003 and the same 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 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, --- 9 --- 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. It is pertinent to note that the respondents have not held the DPC till date as directed by this Court and on the contrary again promoted a junior on temporary basis depriving the petitioner of his legitimate right of consideration as directed by this court in the earlier round of litigation and therefore as the DPC has not been held in consonance with the provisions of the MP Public Services Promotion Rules, 2002, the proceedings of the DPC and the --- 10 --- consequential promotion order dt. 19/11/2009 are hereby quashed. The respondents are directed to hold a fresh DPC keeping in view the provisions of the recruitment Rules as well as the provisions of the MP Public Services Promotion Rules, 2002. The aforesaid exercise of holding DPC be concluded within 30 days from the date of receipt of certified copy of this order. With the aforesaid this writ petition stands allowed. (S. C. SHARMA) J U D G E KR