^--"—:~-- r t tl ^ .-/-1^t'^ ^ ;-~^ 4 ^ '"^^ .-.^.^.^^, ^•'zn^"^ c. C-V03'\ ,^"" IN THE HIGH COURT OF JUDICATURE AT BILASPUR (CHHATTISGARH) ^^ W.RJ^o. \M'^^7^oos- PETITIONER: ; A.K.B'ajapi, s/oN.P.Bajpai,agQd about 40 years, occupation service, Assistant Jailor, Sub Jail , Baloda Bazaar, District Rapur (C.G.) RESPONDENTS VERSUS 1. ife ...•"\"8'^'"" ^- State of Chhattisgarh, through , Secretary Departmetn of Hme, D.K..S. Bhawan Raipur (Chhattisgarh) .•'•'^X^^^^^} - 2. Director General and Inspoector .>"*"^""L.-<<""^ ^^ >'^ h GeneralofJail,Chhiattisgarh, <?y..-<()" _/ _..' " ' '^^^n ^ E'^""c>v- ^®==^or :s^r ~ w^^,^ ..oT^A^a s^^o ^'y* c^s^ Raipur (C.G.) 3. Shri Paduan Dhruv, Deputy Jailor Sub Jail Gariyaband, District Raipur(C.G.) 4. Balmiki Dhruv, Deputy Jailor Sub Jail Sanjari Balod, District Durg (C.G.) 5. B.S. Manker, Deputy Jailor Sub Jail Dantewada,, District South Bastar, Dantewada (C.G.) VWIT PETITION UNDER ARTICLES 226/227 OF THE CONSTITUTION OFINDIA FOR ISSUANCE OF WRITIN THE NATURE OF^ERTlOR^\RI, MANDAMUS ETC. AND FOR APPROPRIATE WRIT OR WRITS, QRDER OR ORDERS. DIRECTION OR DIRECTIONS. r ^3 HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETmON N0 1427 OF 2008 Petitjoner A.K. Bajpai Versus Respondents State of Chhattisgarh & Others WRIT PETITION UNDER ARTICLE 226/227 OF THE CONSTITUTION OF INDIA (SB: Hon'ble Mr. Satish K. Agnihotri, J.) Present:- Shri Manoj Paranjape, Advocate for the petitioner. Shri Sushil Dubey, Government Advocate forthe State/ respondents No.1 & 2. ORDERtOfflAU (Passed on 19m day of Januapy, 2011) Challenge in this petitjon is to the promotion order dated 6.11.2004 (Annexure P-1), whereby the respondents No.3, 4 & 5 who belong to reserved categories and are juniors to the petitjoner, have been promoted to the post of Deputy Jailor from the post of Assistant Jailor. The facts in brief are that the petjtioner was posted as Assistant Jailor at Sub-Jail, Baloda Bazar, District Raipur. The petitioner was initialty appointed as Assistant Jailor in the year 1992and in the seniority list, he was placed at serial No.32. The petitioner belongs to general category. Learned counsel appearing for the petitioner submits that the Departmental Promotion Committee (for short "the DPC') examined the cases ofthe eligible candidates including the caseofthe petttioner on 9.9.2004 for promotion to the post of Deputy Jailor. A common list of all the candidates was prepared and the petjtioner, though was senior,. was kept in the waiting Jist and respondents No.3, 4 & 5 though they belong to reserved category, were piaced in the ^i -1'% l^ 2 -:::* unreserved category and promoted to the post against the unreserved category candidates. Thus, this petition. 4. Shri Paranjape, Jearned counsel for the petitioner submits that the impugned order of promotion is vitiated on two grounds; firstly, the criteria of promotion i.e. seniority-cum-merit was not followed, secondly, there was vioiation of provisions of sub Rule 8 of Rute 6 of the Chhattisgarh Public Service (Promotion) Rules, 2003 (for short "the Rules, 2003") and thirdly, the DPC was not properiy constituted on the ground that the committee consisting of Deputy Inspector General of Police as Chairman, the Superintendent Central Jatl, as Member and two Members of the rank of Superintendent Distrtet Jatl. 5. In the case on hand, one Shri Rajkumar Shukla was a Member of committee, who was not a Class-1 officer and was holding the post of Senior Vigilance and Welfare Officer and he was promoted subsequently on 4.9.2004 to the post of Chief Vigilance and Welfare Officer, which js a Class-1 post. 6. On the other hand, Shri Dubey, leamed Government Advocate appearing for the State, submits that DPC had considered the case followlng the provisions of Sub Ruie 9 of Rule 6, which provldes for preparation of a common list. Secondfy, the petttioner was already placed in the waiting list; therefore, there was no occasion to challenge the promotion order as well as recommendation made by the DPC. 7. The respondents No.3, 4 & 5 who have been promoted against unreserved category, have chosen not to appear beforethe Court, despite service of dasti notice on 15/16.4.2008 and an affidavit to that effect has already been filed. ri^ l.1:....... '^\.- ^/"""" 8. I have heard learned counsel appearing for the parties, perused the pleadings and documents appended thereto. Sub-Ruie 1 of Rule 4 of the Rules, 2003, provides for the criteria for promotion from Class-lV to higher pay-scale of Class-IV, Class-IV to Class-111, Class-111 to higher pay-scale of Class-111, Class-111 to Ctass-11, Class-11 to higher pay-scate of Class-11, Class-11 to Class-1, on the basis of "seniority subject to fitness". In the instant case, the promotion is from Class-tli to higher post of Class-111. Thus, the criteria for promotion is seniority subject to fitness. Sub-Rule 8 & 9 of Rule 6 provides for the preparation of a select list. Sub-Rule 8 & 9 of Rute 6 read as under: (8). Separate select list shall be prepared for the pubic servants of unreserved category, Scheduled Castes and Scheduled Tribes category in which the names of such number ofpublic seryants belonging to unresefved categoiy, Scheduled Castes and Schedoled Tribes categoiy shall be included which is equal to the number ofposts reserved for each of ^ese Gategories. In addition to this, names (^ two pubfic servant$ or twenty five percent of the number of public se/vante includedin the select l!st whichever is more, willalso be Included in the select llst of each catey>ry as prescrttwd in sub-ruie (2). (9). The names ofpublic servants OTcA/cfed in eech list shall be arranged in the sarne ordter of their seniority, as they existed in the cadre/part of the seivice/pay scsrie of the post from whfch promotion is to be made. 9. Sub-rule 8 ctearly provides that there shall be prepared a separate list of unreserved category, Scheduled Castes and Scheduled Trtbes category, in which the names of such number of public servants belonging to unreserved category, Scheduled Castes and Scheduled Tribes category would be included. Sub Rute 9 further clarifi^ that each list shalt bearranged in the same order of their seniority, as they existed in the cadre of the service from which the promotton is to be made. r^ 4 ^wm 10. On perusal of the proceedings of the DPC, it appears that the DPC has misread and misunderstood the above stated provistons of law. A common list of all the categories was prepared and that too, not in accordance with the seniority, as maintained in the feeder cadre. Shri Bajpai, the petitioner was placed in seniority at serial No.32 and the respondents No.3, 4 & 5 was placed at serial No.33, 43 & 44 respectively. Nothing adverse is recorded against the petitioner. Still the petitioner was placed in the waiting list, which ctearly appears to be contrary to the provisions of law. 11. In view of that, the recommendation made by the DPC, whtoh was not in accordance with the above stated law, is vitiated and subsequent appointment orders of the respondent No.3, 4 & 5 is also vitiated and are accordingly quashed. 12. I do not propose to deal with the promotion of other respondente, as they have not been arrayed as a party respondents. Thus, for the reasons recorded hereinabove, the respondent authorities are directed to consider the oase of the petltioner alongwith the respondent No.3, 4 & 5 for promotion to the post of Deputy Jailor, as on 9.9.2004 and make recommendation in accordance with law and promote them as per their respective categories subjeet to fitness, 13. In view of the above, the writ petition is allowed to the above extent. No order asto costs. Sd/- SatishK.Agnihotri Judge Ashok