l»7TK '€' HIGH COURT OF CHHATriSQARH. BILA8PUR Wrtt Petttion (St No. 4519 of2006 R. Narayaaan Versus State of Chhattfsgarh & another Aad Writ Petttlon (81 Ho. 4824 of2006 S.R. Tamguria Versus State of Chhattisgarh & another Q1SBSR. Ptoatfbr: 27.08.2007 Sd/- Sunil Kumar Sinha Judge 1. k mOH COURT OF CHHAmeOARH. BILASPOTl Wrtt PetlUoa (»Bo. 4819 of 2006 pBTmoireR RBSPONDBMTS ^- PETITItMIBR R. Narayanaa, S/o Late C.R. Nainbjar, Aged sdtout 59 years, Deputy Directw, Lc»cal Pund Audit, Rosted at Bflaspiu, R/o. 6, SurajniulEhi. Rq Kiahore N^^r, BBaspur, Chfaattisgarh, Vavw I. State of Chhatti^arh, 'nirou^k the Secrctary, Dcpartment oif Fniance, Manteatsya, D.K.S. Bbaaivan, Raipur, Chhattisgarh. 2. Director, Local Fund Audit, B-99, Main Road, Sacaata Colony, Ncar Paadey Nursmg Home, Raipur, Chhattisgsutt. Aad Wrtt Petttloa (ffl Ho. 4S24 of20<» S.R. Tainguria, S/o. Ctiin^nun Taiaguria, Aged about 59 years, Deputy Dlrector, Local Fimd Audit, posted at Jagdalpur, Local address: A-44, Priyadarsluni Nagar, BiteKpur, CUhatttogarh. RESPtMIDBBTS Vwus 1. State of Chltattisgarh, Throu^i the Sccretaay, Dcpartmcut of Finance, MaatiaSsya, D.K.S. Bhafran, Raipur, Chhattisgarh. 2. Dnector, Local Fund Audit, B-99, Maia Road, ^mata Colony, Ncar Randey Nursing Home, Raipur, Chhatti^arh, (Writ Pietltstom UjndwAttide SBfi/i AlH>®UG!yMS?? Shri Sanjay K. Agrawat and airi Sudeep Ayawal, Advocates Sav the pctit&Miera in both tfac petttioas. Shri Yashwant Siagh and Shri A.S. Kachhawaha, Qovcnuncnt Advocates for fhe State/iespandcnts in bofh petitwns. i—7T WA<S) NA 4519 af2006 & W.P.(S) No. 4524 of2006 i-. ORI»R (37.08.300'^ SUMIfc KUNAR MBBA. J. (1( Since tfae ieUel(^ claimed in both the pctitibiis ase identical, thcTefoiB, they are being disposed ofby tlus oommon order, (2| The brief facts are (hat on the date of filmg of the writ petitfons, the pctitfoners were woridng on the substantnw post of Depuly Director, Lcxal Fund AvSit atace 5& Jvty, 2002. Diuiiig fhe pendenqr of writ petition, pctitioner- S.R. Tainguria baa toeen siqietaiuiuated on 30A June, 2007, whereas oflier petitioner- R. Naiaj^anaa is going to retire in fbe month ofNowember, 2007. (3( In acoordance witfa the provisians of MadJhjn Ptadesh (ChhattisgEul^ Local Fund Audit (Ga^tted) Seniace Recniitment Rutes, 1991 (heremaflter refemd to as the Ririe^, whfash is syplicabte in fhe case of petitioners, for proinotwn to flie post of Joint Director fi?om thc post of Dy. Director, 3 yeara eqierfenoe is aequired. The claiin ofthe petitioners is fluat tliough tfae petitfoners were cligibte and entitled to be coasBiered for piomoted to the ne?d higher post of Jomt Director and they bacm subinltted many repiescatatfot^, the meeting of Departmciital PFomotioa Committec (D.P.C.) bas not been coxwened nor the cases of fhe petitioncrs and tfae otber suitabfe candidates have beea. considered for the said post A<xx>rding to their contention, the D.P.C. lias not been conwened by the State ofChhattisgarh. (4) The respondents have fifcd their retum. Accoariaag to thcin, when the gradation Ust of Dy. Director, as on 1.4.2005, was pubUshed and objectioiis were caBed, one Mr. J.S. Watm, Deputy Director had inade objection aml the fiiialization of flie grariation list, after decision on objcction, is under piocess, wbexeafter, llie D.P.C. is to be convcned. (S| During the courae of acguments, Jeamcd counsel for tfac petitioners, referring to fhe document dated 15.3.2007, aubnajtted fhat fhe objection raised by Mr. J.S. Watvc luas beea aBcwed axid W.P.fSlNo. 4519ofM06A W.P. 1 No. 4524rf2006 i- suitebte amendment has becn xaade in tbs gradation UsL He furthcr sabmitted ttiat eveiy civil seivant has a ri^it to be consalered for piomotion as promotion a a coiulition ofsemce and the State is constitutfonalfy obBged to create promotk>nal avcnues. He refearcd to &e decasions «rfthe Apex Court ia tbe xnatters of C.O. Awnaewim «»MlattiwB -(';»• Stiat* of TnnBttt JUatB «a»d ottMtrs. 1991 Ssaw. t3S SCC 199 and otliiers-Vs- K.K. S.'ag. 3004 ASSt SCW t. 9tiate »f'rrtfiww. twd (6) On the ofher baad, teamed coucusel for fhe State restricted ha argumeats o'ftthc grounds taised in fheir repfy. (*n I have heard ttie learacd oounsel for the petftkfiicts aaad tte State and hawe eSao perused the reooids ofthe twoimt pettttons. (8) Rute 13 of Rides 1991 ycmdes for appomtnaent by IHiMnotion. Sub-Rute (1) pxcnndes that (h.ere shall bc ooastituted a coaumttee c»nsfatmgoflhc mcmbers meutkiiiiri iaSehedute-IV for making prelMiunary selection for pnMnotfon of eligibte candidates. Sub-Rute (^ piovides fhat the Ckanmittec shaU laiwt at intcnrels ordmaiify not excceding one year. Sub-Rutes (3) & (4) pnwide for guideiines regaixling paxxxdure ete. The conditinns of digibflity for promottoa have beea veiy specificsdty picwided in RuteM. Rnte 14 is quoted as foBaws; "14. Condittof of eagjBdBty f<» iwenotioa.-(l) SutgctA to thc pFovisions of sub- rule (2) tfae Comaiittee dhall consKler the cases of aU pcrsons who on tfac first day of Januaxy of <faat year bad compteted not tess ttoan such niunber of years ofservice (wliether officaatiag or substantive) m tfac poats j&Ofm which piomotion is to bc made as specified m column (4) of Scfaedirie-IV, and are wifhin the sscme of coiisideratioa in aooordaDce with the ptonsions ofsub-rufe (2); Rpovided that fhe services of the reteased oflfcera of the Einergency Commfaskai and short Service CommfoMon, eStef Iheir sppointcacat in the servicc, sfaaB bc counted fixau flxc date fiom wluch fhey hawc been deeanaed to have been appoiated ia the semce in acooidatffic wifli tfae General AdnuaistratiDa Department Memo No. 2266-1987-I-(3)-67, dated tt»e21at October, 1967: !-\ '.., ^'1 { WJP.fSINo. 4519<tfa)06& WAfSlNa 4514tSWK Providri fl.irther fhat £my junior persoi shaB not be conadered fas sctectioE gEade/promotfoa ia prefeBeiace to tiie person SKaior to hnn unty on the baate of hfe compteti^ fhe prescribed yeais of seniice. (2) The fieU ofsetectJonshaUtMdmarity be limited to sewen tnnes fhe number oftrfBccrs to bc inchuied in the setect Kst, in respect of posts to be filfed on the basis of ''Merit-cutn-Senteiy atri five times the nuxuber of oflScers to be includcd in the Sefect list in respect ofposts to be fiBed oa the basisof"Senx>rity*cum*McriC: Provided that if tihfi required nuaiber of suitetote officcrs are xiot sevedSsWe in fhe fiMd so detemained, thc field jmay bc enlaiged to fhe exteat coxtsidered necessary by fhe Conuuittee by aientioiiiag Oie rcasons in writing,*' (9) If we look iato the Scfaedute-IV aimex»iwMi fhe Rutes of 1991, it woiild qppcar that tfae feeder post for paomotioa to the post ofJoint DaectDr is Dy. Director aad the semce experfence for pioaiotiion bas beeu laM down as 3 yeacs. That fa to say fhat if a pcraoa has compteted 3 years on fhe post of Dy. Director, Ite shaH be el^ibte fiw coiisideiatton for promotioa to the post of Joiat Director, ft>r wliich, a D.P.C. has to be ooaveiied in accorilance with fhe provisioas of Riile 13 and 14 of the said Rules. As it has been speciScaIfy piowded in sub-rute (2) ofRute 13 fcat fhe D.P.c. shaU meet at inteTD'als oariinarity not egeceeding one year, it was incuiabeat upon tfae Goventment to orduiarify coiivene thc D.P.C. at the mtervals of oite year. It is imfortunate fhat in ftve present case, fhe D.P.C. has never been conveited by the Goivemment aad the eiuptoyees, like the petitioaera have to piay for a conuaand befiac the High Court aad ia fhe meaawlule oae oftfae petittoaers S.R. Tainguria has been superaiacuated on 3Q& Jvme, 2007. (10) In C.O. Arunwywn.'s case (supxs^, tfae ApeK Court aaid that eveiy cnril servant has a right to have his case coBsidered &r pronaotfon accoiding to his tum aad it is a guaiantt«Qowing fl»m Articles 14 and 16 (1) of the Coiistitutfa>ii. The coasidecatton of W.P.fSlNffl. 4S19s£WQ6&W.P.fSiNa 4524<rf'20Q6 promotkxn could be postponcd emty on reasonabte gnnmds. To avoid arbibarmess, it wouM be better to foBow oeataia uaifona prinGipte. Ttie Ayssi Court saM to the esEteat that dealmg with the case of piomotion of peraoiis ^jamst whom chtiry has been fiamed in the diacajrfinary pnxsecdii^s or chaige-sheet has bcen fifcd m criminal case may be defeired tifl the piuceedm^ are concluded. They nanst, however, be considered for pnanotion if they are exonexated or acciuitted fiom fhe cliarges. If found suitabte, ibsy shall then be givea the ptiomotjon with rettospectwe eflfect fiom the date on which tlteu-juniors were pioinoted. (11) In K.K. Roy's caae (supia), the A^)ex Court said that thc promotion is a coiidttfoa of service aad the employer/State is coastitationaUy obt^ed to create promotfonal awcnues. The Emptoyer being a State wifhin the mcaning of Articte 12 of ttie Ctoiistitation shoiiM have created pTomotional awenues fl>r the empfcyees having regaid to its coxistitutional obligatians adumbBated in Artcfes 14 and 16 ofthe Constitatkai oflndi& The Apex Court said tfaat despite its constitutioaal obli^tions, fhe State caunot take a staad fhat as thc enuployee acccpted the terms and conditioiw of fhe oflfer of appointinent ICBOWUI& ftdfy weU that tfaere was no aveaue of promotfon, (as it was in that case), be caanot zesQe Ifaerefiom. The Apex Court further saad (hat it is not a case where fhe principfcs of estoppel or waiver shoiiM be applfed having xe^xd to the constitutional functions of fhfi State. This aB was said in the casc oftsmr Officer-cum-Draflsman, which was a singte cadre post (12( On the principtes referred to above, it is appareafly cfcar fhat it was an obU^don an ffae part of the State to coasider fhe cases ofsuitable candaiates fer proiaotfon acconling to their tura as fhe same is a guarantee fbwing fiom Artictes 14 aiid 16 (1) of thc Oonstitution. Sub-rute (2) ofRtite 13 ia also veiy ctear, wtuch pnwides that the D.P.C. "shatf' nueet at iaterwds oidinari^ not exceediag oac ycsu', but, as stated abcwe, in the present case, the D.P.C. has nevcr met to consider the cases for promotion ofthe ^ 6 WJ'.fSl Na 4519 of2006 & W.P.rsi Na 4524 af2006 suitabte eniptoyees. The State has not fulfilted its obli^fion uader fhe Constitution. Adinittedly, fhe petitioaers becanae due for pronaotion on 1.1.2006 on account trfcoiaptetiDn ofSyears on the post af Dy. Director oa 6.7.2005 and thcir cases ought to have been considered in fhc first D.P.C., wliich ought to haye beea conveaed after 1.1.2006 as per pioviaions of Riite 14 (1) cead with Rule 13 (2) of fhe Rules of 1991, but the D.P.C. has aot been coavaied aad ia the meantime, oae ofthe petitioiiera haa retired. (l3( Now flte questfoa arises as to wbat re!iefl[^ can be granted to fhe petitioncis at this stage, particularfy when tfae petijttoner S.R. TaiBguria has becn supeianBiiated on 30.6.2007. Leamed counsel for thc petitioners has argued that a direction shouM be issued to fhe State to convene the meeting of D.P.C. for considexation of tfae cases of fhe petitionera fiom tfae dated on which, the petitioiiei's became eligible to be promoted on thc post of Joint Director and if found fit, they be given promiOtion witfa retiospectwe eflfect with aB coasequential bciiefits since the sakl date. (14) Thc above aiiguincnts, raised by learaed couasel for fhe petitioiids, cannot be accepted. It is not a case where fhe D.P.C. was convcaied and the cases ofthe petttioiiers were not coiisidered or were deferred or for any other neason, a person junior to fhe petitioners .has beca proniDted. It js a case m wluch auobody has been piomoted, particularly after becoauag flie petyioiiers eKffbte for piomotioa, because fiie D.P.C. itselfwas iiot ccawened and 110 occasion bsd arisen whcn the rights of tbe petitioners to be coiisidexed have been derucd. Had fhcre been a case that after fhe elipbility for piomotion, tfae cases of the petitfoiieis were not consideiied and other persons, say junior to the petittonfira, were piOHtoted, then oiify, the petitioners had a rigfat for coi»sMeiation of their cases &r graiit of pioinotion with reteospective dGfect on the basis of discrimmatoiy toeatnient as per ArtK:le 14 of the Constitution. And in such a situation, right to piomotfon could Iiave been considered evea fhoi^h the petitioner has retired. Hl Ai W.P.rS) No. 4519 of2(W6 & WJ.fSl Nb. 4524sf 2006 (1S) In fhe piesent case, ssa stated above, fhe post(^ of Jomt Director are fyfc^ vacaat aitd aobody juxuor to the petittoncra has been promoted laeifher tfae cases of the petitKtncira have been defeBred but they coukl not be oonsalered on sucount of acm- m^ting of the D.P.C. Therefore, the caaes of the petitfoncis caunot bc considered with retrospectwe eflfect. So fer a^/ petitioner-S.R. Taiagaria is ccmcenaed, tus has superaanuated, therefoae, on tfae above princq»tes, in the'opuuon of this Court, at tiris stage, he is not entitted to the rdief of consaieration for promotfon. However, the other petitiDner is entiticd for the said TeUef. (16) In fhe result, tfae petidons are disjwsed of on the followiag tenns:- (i) As it is told fhat the gradation list has been fiiialized, therefore, it is directed that the State shatt coavene (he xaeetmg of D.P.C. as per Rule 13 and 14 of fhe Rutes, 1991 wifhin a period of 2 inonfhs ]6om today and shafl oonsaler tfae case of fhe petitioiier" R. Naiayanaa and other siutable eiapltyees for flieir proinotfon to the said hi^ter post atvd. to this extettt W.P.®No. 4519/2006 is altowed, The prayer fbr letTOspectiwe consideiatton js dfamissed. (ii) Tbe Writ Petition No. 4524/2006, fflal by the petitfoner- S.R. nunguria is dismissed being iufiuctuous by effluxoftimc._——— No order as to costs. i _aul~. ^;. Sunil Kumar .ludge vatti