aas2B a8Baa» *3kfeA- ;.... s •" A1K&E ^itiEs ^k fe V£ tis-I.Ul^: :Al>.ht=j. J,S jJn]^bh.t,}-}E ^ZJ 1& &^1E l! J : Jn?bbj Jjg ^b fch^iE :: ••tttz4).4l-JE [by-^-uy< teni> i^tf tate 6i i^ib y^iye xb IA^J.JE •b'&l 4^£Itt3 - l^. '^£ 'i£feiilsy.'talij: •JSS.F IhriA 'filifi 's-s^ 'sbisa 'tel^ il]^. fe^ J^- |S^ || •1s.'Si 4^K - IH^. '^-i.iay.js ifiiy- i"y. 1^1 1 -lE'ag j^atife - it*y. 'miMi J.Bsg. jnftuy. ^ 'ffiJJig 2A1E {-^h ^ ^jjay.je biaiA^iA i?^& l£\ •h'Bg ASUj. 'ilE&Vyfl Jafily. &SJS. 'isOlllte i| s| 1-k-RJ Afiti.li 'fcbte •iiA'^'4^ '^ltelaj.1 ISUy- UM 'fefcy* &&fi : i^ia 'b»116ilfi| p-3fi 8 1 ? Vf JC—s.^. rnW^lkJE g 'li -fl| ^ElAs - Ifcitlj. j^tg 'tiAUjaty. ·toJ.tt 'fis^: lilii; is.tajjziA 'i-S^ 13B '£ bi^^- 3iV. JatsJAlfcteJ^ 4^ •J3i !"tfe3.J-!S ^ Qi •&£ 'bE^j. 1A.I&. Ifc^ loo^fe}-ALttfi *A'-UE / /-"I ^&r9>;.^^^;v S^IS j^l_J^|i-j23A' ]Di"a!^.S AhJJUM Sa£.a Ss^dil'si fitiE 'fn-'ivy 'isunyi l 'waw s^e'iS ^d tjsn':-^o3^ ^o^ ^i ^L^lx ^» •""s /f? 1 •^Epos asji^ j A^^. iH'^'0 HIGH COURT OF CHHATTISGARH : BILASPUR SINGLE BENCH : HON'BLE SHRI MANINDRA MOHAN SHRIVASTAVA.J. Writ Petition (S) No.3625/2005 PETITIONER RESPONDENTS Satish Kumar Bisen Versus State of Chhattisgarh and others Appearance: Shri S.K. Thomos, counsel for the petitioner. Shri Chandresh Shrivastava, Panel Lawyer for the State/respondents No. 1 to 4. ORAL-ORDER (Passed on 29.4.2010) 1. The petitioner has filed this petition aggrieved by order dated 5.3.2001 (Annexure A-3) by which respondents No.5, junior to the petitioner has been promoted. Petidoner's grievance is that he has been illegally superseded in the matter of promotion frorii the post of Assistant Grade-III to the post ofAssistant Grade-II. 2. Submission pf leamed counsel for the pedtioner is that petitioner was initially appointed as Assistant Grade-III on 23.12.1989 and in the gradation list showing seniority position as on 1.4.2000 (Annexure A- 1), petitioner has been placed on the top of the list. It is submitted that respondent No.5 has been placed at Sr. No.13 in the said list. According to the petitioner, he is possessed of Hindi Typing Cerdficate which he passed in the year 2000. Though the service record of the pedtioner merited promotion of the pedtioner, he being senior, by impugned order dated 5.3.2001 (Annexure A-3), respondent No.5 has ^y"^.^^,^ '^ -, : fC1^ ' 8 "^ 1 1 i "»,f -2- ^ ^v ^y ^ been promoted as Assistant Grade-II. Further submission of learned counsel for the petidoner is that while considering the case of his promodon, comparative merit has been seen instead of applying criteria of seniority-cum-merit as statutorily prescribed under the M.P. /C.G. Civil Services (Determinadon of the basis for promotion) Rules, 1998. 3. Per contra, submission of learned counsel for the respondents is that the respondents have acted in accordance with law inasmuch as applicable criteria of seniority and merit have been applied. ' Respondent No.5 eamed four '¥and one V + gradings in the relevant last 5 years ACRs, whereas petitioner earned three ^S and two Tf gradings in the relevant 5 years ACRs. The Departmental Promotion Committee (D.P.C.), upon comparative assessruent found that respondent No.5 was more ineritorious and the merit of the pedtioner was less than his junior/respondent No.5. It is submitted that for promotion, seniority alone is not relevant but the merit is also required to be looked into. As respondent No.5 was found to be more meritorious, pedtioner was rightly superseded and there is no illegality in the action. 4. I have heard learned counsel for the parties and perused the record. 5. Return of the respondents states that the criteria of proniodon was seniority and merit. The averments made, make it clear that comparative assessment of merit between petitioner and respondent No.5 was made. It is stated in so raany words in paragraph 6 of the return that while petitioner earned only three ^ and two 7f gradings \ for relevant 5 years preceding the date of consideration, respondent siK,: Wf-w^ "i*t''. '?^~ ' ^ -3- r No.5 earned better grading i.e. four cp and one V + gradings during that period. 6. The only question which survives for consideration before this Court is whether the respondents, while considering the cases of the petidoner have acted in accordance with law. Initially, in the matter of promotion from Assistant Grade-III to Assistant Grade-II in the School Educadon Department, Madhya Pradesh Shiksha Vibhag (Amahavidyalin) Tritiya Shreni (Lipik Vargiya) Ke Seva Ke Bharti Tatha Padonnfi Niyam, 1973 were promulgated which regulated proinotions froin the post of Assistant Grade-III to Assistant Grade-II. Later on, State promulgated another rules known as Madhya Pradesh Civil Seva (Padonnti me Arakshan tatha Vicharan Kshetra ke Vistar ki Sima) Niyam, 1997, which in addition to prescribing the zone of consideration and reservation and promotion, also contained provision with regard to the criteria. Later on, the State promulgated M.P. Civil Services (Deterinination of the basis for promotion) Rules, 1998, (henceforth "the Rules of 1999'} which were made generally applicable in the matter of proinotion to various posts with an overriding effect contained in Rule 4 thereof that without prejudice to the generality of the provisions contained in the M.P. Civil Services (General Condition of Services) Rules, 1961 and notwithstanding anything contained in the service rules, the rules shall apply to all persons appointed in the civil service and to the post. Rule 4 of the aforesaid Rule of 1998 further provided that all rules regulating the recruitment to the State Civil Service and the post shall be deeined to be amended to the extent as provided in the said rule. 7. In view of the aforesaid provisions contained, at the time when the case of the petitioner was considered for promotion, the aforesaid Rules of 1898 clearly provided that promotion from Class-III to Class-III posts -4- ^ f\ f shall be made on the basis of seniority-cum-merit. Therefore, it has to be exarained whether, while considering the case of the petitioner for promotion, the aforesaid criteria of seniority-cum-inerit was applied. This Court in the case of Vifay Narayan Mishra Vs. Chhattisgarh Ralpur Gramin Bank & Ors. vide order dated 18th February, 2010 passed in W.P. No.2576/2006, held as under: "20. The distinction between the criteria of seniority- cum-merit and inerit-cuin-seniority is no longer res- integra and has been settled by Supreme Court in the case ofB. V. Sivaiash & ors. (supra). While in the case of applying criteria of seniority-cum-merit, given the miniraum necessary n-ierit requisite for efficiency of administration, the senior, even though less meritorious, has priority. On the other hand, the essential characteristic of the criteria of merit-cum- seniority is comparative assessment of merit of all the officer who are within the zone of consideration by the Promotion or Selecdon Committee. In such case whoever is more meritorious though junior has precedence and preferred for promotion over and above his senior who is less meritorious." 7. In view of the aforesaid principles enunciated and well settled, it is clear that while applying the criteria of seniority-cuin-merit, given a minimum merit, senior person is to be preferred in the matter of promotion. The element of con-iparative assessment of nierit is absent in the matter of consideration for proinotion based on the criteria of seniority-cum-merit. 8. In the present case, froin the return of respondents, it is clear that respondent No.5 who was admittedly junior to the petitioner was promoted whereas the petitioner was superseded by making a comparative assessment of merit. Such an exercise could be . "ii?Si'Ht'st^£;^@^g & s S^. " 1 ^8i% 1 *i i 't? J ^"'feteri"?1 ^" -5- '^» Y f permissible only when the criteria for promotion was inerit-cum- seniority, but not when the criteria is seniority-cum-merit. It is not the case of the respondents that a minimum benchmark/merit was prescribed and the petitioner failed to achieve that minimuin merit criteria. What is discernible frora the return is that on comparative assessment, respondent No.5, junior to the petitioner, was found to be more mentorious. ). In this view of the matter, I am of the opinion that the respondents failed to consider the case of the petitioner in accordance with rules. However, taking into consideration that respondent No.5 was promoted way back on 5th March, 2001, I am not inclined to set aside his promotion. Respondents shall consider the case of the petitioner for promotion by convening a review D.P.C. as on the date the petitioner and respondent No.5 were earlier considered, by applying the criteria of seniority-cuin-raerit. If the petitioner is found fit for promodon by applying the said criteria of seniority-cum-merit, he will be entitled to promotion from the date respondent No.5 was promoted on the post of Assistant Grad-II with all consequential benefits of notional fixation of pay and other benefits except arrears of pay. 10. Petition is accordingly allowed to the extent indicated above. Sd/- Manindra Mohan Shrivastava Judge