BEPORE THE M.P. .STATO__^MINISTRATIVE TRIBUNAL RAIPUR, (^$ 233 i/°^ O.A. N0. of 1997 1 i'F. »»"». /^ ^. '^. ^v^ '"'^'f^ . <,^"i'.f»'" *f ^ .^.'s "^ ''•=^< A^-aaP BETWEEN  R.K.pande aged about 57 years son of Shri J.R.pande.Exclse Sub-Inspector presently posted at Durg resident of 49,Anandnagar,Raipuro ABBLICANT AHD 1« State of Mgdhya Pradesh, through 'Bie Seeretary, OBmaerclal Tax Department Govt. o£ H.P., Ballabh Bhavan,Bhopal 2« Ihe Excise Qoiinissioner, Hadhya Pradesb, Gwalior. RESPONDENTS .^.^.'< ^...— I.JsWf^^-^i^-C fnr •fSTS',' .,,^ rrjhunal, If PLICATIQN U/ S. 19 OF ADMINI SIRATIVE SRIBUNAL._ACT 1985. Vfe 'ia ;&, % %^ ^p ^ ^ iX HiGH COURT OF CHHATTiSGARH : BILASPUR SiNGL&BENCH^: HON'BLE SHRI r.lANiNDRA MOHAN SHRiVASTAVA., ^%!* "yt^S'B^IW% 3SU"3'"1 - PETiTiONER: sasr-.s-y s^.s—~-s—t,/»..—} fv-\ a;^"^ ^"iirtai^ iSMM'i.z" WKJT risiiTION iSi N0.2331/200i r<.i\.r'anue Versus Es-^y-B.a'vtfi-. State of M.P. and others FOR PRONOUNCMENT OF ORDER ;Sd/- '^ Manindra Mohac Snrwastava Judge j ; L/-( niGH COURT OF CHHATTiSQARH : BILASPUR Singie Bench: Honlbie onrLManintira fviohan Snrivastava, J WRIT PETiTiON jSi N0.2331 i'200o I i i iUNcK s^i^'a'-fmfi'tite^ffs.ST'^- Kcor'UNUcn i a R.K.Pande versus State of wi.P. and another Present: Shri Yogesh Pandey, counsei for the peutioner. Shri Ajay Dwivedi, Dy- Go\4. Acfvocate for the State. UKUtrv (Passed on .....'A..l.June, 2010) This petition has been nied bv the Detitioner aaarieved bv his supereessiori vide order dated 10/09/97 by vi/hich ailfiyediy 27 juniors to the petitioner were promoted to ihe post of Assistant District Exise Officer. Petltioner has prayed for uirection to hoid DPC and consider his case aionu wiui 27 juniors, and if founu fit, grant ui prornotion on proforma basis w.e.f. the uate th®iuniors were Dromoted 'with aii conseQuentiai benents of service. £.. L;ase or ine peiitioner is tnai ne vras initiaiiy appoiniea as rooa inspector in the Food Departmerit of the Government where h©worked from 22/02/o6 to 31/03/69. Later on, he was appointed as Exise Sub-inspectoi' by order dated 19/04/69 of the Exise Commissioner, M.P., pui'suant to vifhich he joined on 23/04/69. He was confirmed on the said post on 23/04/71 . According to the petiuoner, Jiis service record is unbiernish and he has received severai re'vvards. There 'was no cornpiaint against him nor any inquiry was instituted. ^n L 3. Vide irnpugned order dated 10/09/97, 27 junior Exise Sub-inspector piaced in the gradation list, from Seriai No.126 to Seriai No.175 w'ere prornoted whersas petitioner though piaced at Seriai No.122 and senior to aii those persons, vras not prornoted. Prior to re-desigriation and ciassification of the posi of Exise inspectoK it was a non-gazetted post and the channel of promotior! v»'as from the post of Exise Sub-inspector to Exise inspector. vlde notification dated 19/10/95 (Annexure A-3), the post of Exise Inspector was ueciai'ed as crass-il gazetted Dost and re-desianated as Asst. District Exise Officer. On account of re-designation of the post of Exise Inspector, a class-iil post, as Asst. District Exiss Officer, ciass-ii gazetted post, vide notification dated 19/10/95, M.P., Exise Service ciass-iii (Executives) Recruitrnent Ruies, 1982 underwent amendrnent in the year 1987 vide notification dated 4/08/87 (Annexure A-5), exciuding the posi of Exise inspector from the purview ofthesald ruies. Consecjuent upon such re- designation, M.P. Exise class-1 and ciass-li Service Recruitrnent Ruies, 1966 also underw'ent amendment inciuding the post of Asst. District Exise Officer "within the purview of the said ruies and further providing that for prornotion on the Dost of Asst. District Exise Officer, the Exlse Sub-inspector shail have comoleted 7 years of service. According to the petitioner, the criteiia for prornotlon to tne post of Asst. District Exise Officer (ADEO) v/as thsreaftei governed by the ivi.P. Exise class-1 and class-ii Seivice Recruiirnent Rules, 1966. 4. Submission of iearned counsel for the petitioner is that the responuents iiiegaiiy uiu not eorivene any DPC for prornotion to the post of Exlse Inspector in the year 1995 and subsequentiy that post was re-o'esignated and declared as gazetted post wnich dsprivsd the petitionsr of due consideration for promotion in that year. Even aftsr re-designation as gazetteu post, respondents diu not take any steps for considering the case of prornotion in the year 1S96. it Is aiso argued that the vacancy which occurred in the year 19S5-96 would not be governed by ivi.P. Civil Services u'eservation for Dromotion and iirnjts on the extenslon of conslderation) Ruies, 1997. Submission of iearned counsei for the petitioner is that the' record of services of the petitioner'was w'noily unbiernish and he received various rewards. There 'was no compiaint against him nor was any inquiry pending. The respondents liiegality uenied promotion by supsrceding nim ana as rnany as z/ juniors w'ere prornoteQ. f. / 5. Per contra, submission of iearned cuunsel for respondents is that the submission of petitioner with reaard to non-conslueraiion is factuaiiv incorrect in as rnuch as the petitioner was consiusrsu for promotion in the year 1997 along with other eiigibie Exise Sub-inspectors. Prior to 1997 no person junior to the petitioner vvas either considered or prornoted. Post of Exise Inspector was re- designated as Astt. District Exise Officer in the y'ear 1995 and thereafier consequent amendments were made both in non-gazetted as weil as gazetted ruies. The criteria for promotion was merit cum seniority as provided in ivi.r. E'xise Ciass-1 and Ciass-li Service Recruitmenf Ruies,1a6S. in order {o assess the merit of the eiigibie officers, the Departmentai Promotion Committee evoived a critaria under 'w'hich the integrity of the canuidates and previous 5 years ACRs of the carididates were to be examined. it v»as uecided that If in anv uf the reievant 5 years, D category has been awarded in CRs then the candidate vi/iil not be eiiglbie for promotion. it was also prescribed that atieast 2 good rernarks shuuid be there and further that out of 5 years' ACRs, !ast 2 years' report rnust show good remarks. It is subrnitted by learned counsel for responuents that on the basis of the said criteria c-ase of the petltioner as weli as other c-andidates :T"v VI <vas scrutinized by the Departmental Prornotion CommJttee and petitioner and 2 other senior officers riameiy Shri indrapai Sharma and Shri K.M.Jhavrar v»'er©not found fit for promotion and thersfore the petitioner inciuding those 2 officers couiu not be prornoted. 6. in view of disciosure in the return that a criteria was evoived and aDGiied by the Departmentai Promotion Cornmittee for the purposes of assessing the rnerit of the candidates, by way of rsjoinder, petttioner has sought to derfionstrate that criteria is iliegai anu arbitrary. !t has been so argued by iearnsu counsel for the petitioner that such a criteria is arbitrary and maiafide. it has been argued that though the criteria for promotion vvas merit cum seniority, the criteria adopteu by DPC w'as arbitrary" in as rnuch as it provided that candidates who obtained D category' in any' of ths relevant ACR wouid be ineiigibie for promotion. it has aiso been argued tnat this criteria was exarnined by the Tribunai eariier in the case of Arun Kurnar Bhatt v. State of ivi.P. and others in O.A. No.214/96 deciued on 31/07/97 where the Tribunai held that such norm/criteria exciudiug person for consiQeranon wnere ne nas Qe'oan'ea rrom nis prorriotion on me grauing OT character roie if h& had sscured an average during the preceding 5 years was not just and proper. The saiu 'view of ths Tribunal was based on eariier judgment of the Tribunai in the case of Atmaram Sisodia v. State of Madhya Fradesh and others in O.A. No.239/93. Submission of ieamed counsei for the petitioner therefore js that if 'D category ACR becomes an adverse report, it ought to be cornmunicated. it is aiso subrnitteu th-at if it was the reuuirement that t'nere shouiu be atleast 2 good remarks and iast 2 years report must sho'vv good remarks, then in that case average rsmarks which is iesser than good rernarks "I "•'^, ../ ^ ought to be communicated as it operates adverseiy and to the prejuuice of ihe ernpioyee. 7. Though in the petition as weli as in the rejoinder, pieading with regard to ciubbing of vacancies-for different years have been rnade at the time of hearing, iearned counsei for the petitioner uid not press this point in view of the fact that the case of the petitioner vv'as actualiy considered but he v»'asdenied prornotion on accouni OT aiieoea aruitrarv criisna. 6. It is not in uispute that on the date when the DPC was hetd i.e. on 5/8/97, for considering the c-ases of eiigibie Exise Sub-lnspector for promotion to the post of ADEO, promotion of that post was governed by the M.P. Exise Ciass-i and L-iass-ii sservice Kecruitment KUIQS, lyyo as amenaea 'viue notice aatea 4/o/y/ (Annexure A-5). it is also not in dispute that according to the said ruies, criteria for promotion, as prescribed under the ruies, vras merit-curn-serijority. From the retum fiied by the respondents, it is ciear that the petltloner vvas consiuereu for prornotion atong with his juniors in the DPC heid on 5/8/97. Ho'wever, from the return, it is found that for the purposes of assessing the merits of the eiigibie Exise Sub-inspector respondents evoived a noi'twcriteria, according to vvhich preceding 5 years ACRs whsrs to be considered. ihe criteria provided that if the candidate has received a 'D: category remark in any of relevant flve years, he wiii not be eiigiuie for promotion. The sald criteria aiso prescribed Ihat out of 5 relevant ACRs, atleast 2 of them should be 'good' remarks. The 3ra part of the said criteria was'that out of relevant 5 ACRs, iast 2 years' report rnust show 'good' remarks. Thus, in effect D category ACR operateu as adverse remark. Moreover, if a candidate does not get atleast 2 good remarks and iast 2 remarks u are not under good category, jrrespective of his grading for other yeai's, he wouid not be eiigibie for promotion. if a candidate is required to have atieast 2 good remarks out of preceding 5 years, the remark, if not good, were required to be cornmunicated, so as to give the empioyee an opportunity to irnprove upon his performance and afeo to represent against any gradirfg iesser than goou in his ACRs of those relevant 5 years. This Court flnds ih-at in the case of Arun kumar Bhatt v. State of M.P. and others in O.A. No.214/96 decided on 31/7/97, Trlbunai hau' taken this view whiie scrutinizing the criteria simiiar to one in the present case. The Tribunai eariier had aiso taken the simiiar view. Recently, in the case of Dev Dutt v. Union of india & ors., 2008 AiR SCW 3486, ths Supreme Court has heid that ACRs whether they are adverse or average or good are required to be communicated. Consequently, respondents are uirected to hoiu review DPC to consider the case ofthe petitioner for promotion as on 5/8/S7 b'y" applylng such criteria vvhich does not debar from promoiion on the basis of average or D grading provided they are not communicated to the petitioner. 11 upon such consideration, petitioner is found nt, he 'wuula' aiso be entitled to riutiunai prornotion w.e.f. 10/08/97 i.e. the date frorn which 27 junlor officers were promoted except arrears of pay. Since, the petitioner has retired from service w.e.f. 30/11/97, in the event of grant of notional promotion, he vviii be entitied to consequentiai benefits fiowing therefrom in the rnatter of retirai benefits and pension. It is aiso made ciear that the promotion of 27 junior Sub-lnspectors vide order dated 10/09/97 wouid not be adverseiy affected. This petition is aiiowed to the extent inuicated as above. There shali be no orders as to costs. Sd/- Manindra MohaG Judge