“at / MW L4/ w cs) WV/“g IN THE STATE ADMINISTRATIVE TRIBUNAL AT JABALPUR 6.1a. No «2i: /1999 Applicant Rajesh Kumar Adile I sic shri Baéant Kumar Adele Aged about 36 years. 3tatistical supervisor, Office of Asstt. Labour Commissioner, Bilaspur District Bilaspur. VERSUS Respondents 1. State of Madhya Pradesh’ Through Secre tary , Department of Labour, Govt. 0f Madhya Pradesh Val 1 abh Bhawan Commie sioner , Labour, Govt. of M.P. . INDORE . Smt . Madhu Jharia, habour Inspector, Through Labour Commissioner, INDORE . Kanhaiyal a]. Mandiya . office of Labour Commissio INDORE‘u ORIGINAL APPLICATION UNDER SECTION 19 OF THE ADMINISTRATIVE TRIBUNALS ACT, 1985 * Particulars of applicant As per cause title above. n HIGH COURT OF CHHATTISGARIL BILASPUR PETITIONER Writ Petition [S] No.'1791[2005 Versus RESPONDENTS State of Madhya Pradesh and another ORDER EOST ON 19%EBRURARY. 2010 l “o sy‘ an 5h mamndl’ mdgo (/’ // ““5”“ Raj esh Kumar Adile ‘ / g) HIGH COURT OF CHHATTISGARH : BILASPUR Writ Petition 1Sl No.1791l2005 PETITIONER Rajesh Kumar Adile Versus State of Madhya Pradesh and another RESPONDENTS Apyearance: ORDER (Passed on H 02.2010) Jharia 85 Kanhaiyalal Mandiya (Whose names have been deleted from the array of respondents as per order dated 4.5.2009). . Case of the petitioner is that, he was initially appointed as Statistical Assistant vide order dated 20th December, 1990 (Annexure A—l) under the>quota reserved for sports person. Post of Statistical Assis Class-1H ministerial post, Whose terms and conditions of service are tant 1's a governed by Chhattisgarh:Shrami Seva (Arajpatrit Varg—III) Bharti Niyam, 1966 (for brevity “Rules of 1966”). Schedule IV appended to the 0&V' Inspector. As the criteria prescribed for promotion is that the person concerned must have completed 3 years of service in the feeder cadre, the petitioner became eligible having completed requisite 3 years of service in the month of December,1994 for being considered for promotion to the next higher post of Labour Inspector. 3. Vide order dated 25.1.1997 (Annexure A—2), 28 persons Were promoted to the post of Labour Inspector, but the petitioner’s name did not find place in the said list. According to him, by the said order of promotion, persons junior to him in the category of Scheduled Caste were also promoted but the petitioner was excluded, aggrieved by which he made representation on 30th January, 1997 (Annexure A—8). In reply to that, vide memo dated l.9.1997 (Annexure A—4), petitioner was informed that he has not been promoted as he was not found fit by the Departmental Promotion Committee (for brevity “Committee”) on the basis of his Confidential Report and on the criteria adopted by the Committee. 4. According to the petitioner, as his entire service records was un— blemish and he was never communicated any adverse entry in his ACR, nor any departmental inquiry ever instituted nor any warning or any explanation or any other penalty ever inflicted on him, denial of promotion was illegal. Vide order dated 3 1 .3. 1998 (Annexure A—S), Smt. Madhu Jharia 85 Kanhaiya Lal Mandiya, juniors to the petitioner were promoted to the post of Labour Inspector. Smt. Madhu Jharia was appointed as Assistant only on 5.1.1994 and placed at Sr. No.21 in the gradation list, whereas Kanhaiya Lal Mandiya was also his junior and placed below him in gradation list dated 14.12.1995 (Annexure A—6) showing seniority position as on 1.4.1995. Petitioner again represented his grievance; in response to which he was informed Vide Annexure A—4 that he was considered for promotion but not found fit by the Committee. In the said communication, it was not mentioned as to What criteria was adopted by the Committee nor the reason as to Why the petitioner was not found fit for promotion. Petitioner sent legal notice (Annexure A-8} which led to tiling of this petition. . Learned Counsel for the petitioner submits that his non—promotion and supersession by his juniors Smt. Madhu Jharia 85 Kanhaiya Lal Mandiya is arbitrary, illegal and Violative of Articles 14 8G 16 of the Constitution of India. It has been submitted that the entire service record of the petitioner has been clean and un—blemish. No adverse remark has been communicated to him nor any departmental inquiry instituted nor any punishment has been imposed. Petitioner has been denied promotion Without any rational basis. It has also been submitted that while considering his case for promotion, certain adverse material which was never communicated to him has been taken into consideration and made a basis for denial of promotion. In his submission, without giving an opportunity to the petitioner to have his say in the matter, the same could not be considered by the Committee so as to deny him promotion. Further submission of the learned counsel for the petitioner is that as according to rules, criteria for promotion to the post 0f Labour Inspector is'seniority—Cum-merit, in the absence of their being any adverse material, petitioner being senior ought to be promoted and his supersession is illegal. It is alis‘o urged that while considering the case of promotion, the reSpondents have committed serious illegality in entering into comparative assessment of merit thereby introducing criteria of merit which is against the provision of the rules applicable. On the aforesaid submission it is argued that petitioner is entitled to be promoted as Labour Inspector with effect from 25.1.1997 or at least With effect from 31 March 1998 when his juniors were promoted, along with all consequential benefits of seniority, back wages 8L increments. 6. In reply, learned counsel for the respondents/State relying upon the return filed by the State opposes the claim of the petitioner by submitting that though case of the petitioner was considered by the Committee, he was not found suitable for promotion. It is also stated that juniors to the petitioner Were promoted superseding the petitioner because promotion to the post of Labour Inspector is made on merit— cum-seniority basis. The Committee considered the A.C.R. of every candidate who was within the zone of consideration including the petitioner and after properly appreciating the grading of every candidate; decision was taken by the Committee in accordance with the rules in force. In his submission, averments made by the petitioner are vague and the petitioner has failed to point out exact nature of mistakes alleged to have been committed by the Committee. 7. Promotion to the post of Labour Inspector were in the beginning governed by rules known as Madhya Pradesh Shram Seva (Arajpatrit Varg-III) Bharti Niyam, 1966. Rule 14 of the Rules of 1966 provides that the Committee shall consider cases ofhthe employees who have completed 3 years of service on the post mentioned in column 2 of Schedule —IV on the lSt January of the year in which the Committee is a . convened to consider the cases of promotion. Further, Rule 15 of the' Rules of 1966 envisages that the Committee shall prepare a list of those eligible candidates who fulfill conditions mentioned in Rule 14. In it : 5 w J ,. m—ia ‘ ‘“ g Vg I [fl g so far as criteria for promotion is concerned, it is provided in Rule 15 (2) that selection shall be based on merit and suitability in all respects with due regard to seniority. Sub-rule (3) of the Rule 15 further provides that the names of selected candidates shall be arranged in the order of seniority provided that a junior employee, Who in the opinion of the Committee possesses exceptional merit and suitability, may be placed over and above his senior in the list. Schedule—IV appended to the rules clearly provides that promotion to the post of Labour Inspector shall be made from amongst holders of posts of Statistical Assistant/Upper Division Clerk/Head Clerk/Accountant Grade— l/Stenographer Grade—I. From the material on record and undisputed factual position, it is revealed that on 30th December, 1996, the Committee was convened to consider the cases of eligible candidates for promotion to the post of Labour Inspector and vide order dated 25.1.1997(Annexure A—2), 28 persons were promoted to the post of Labour Inspector, but it did not include the name of the petitioner. However, it is found that none of the person junior to the petitioner was promoted. In response to the petitioner’s representation dated 3O January, 1997 (Annexure A—3) , petitioner was informed vide memo dated 1.9. 1997 (Annexure A-4) that he was not promoted as he Was not found fit by the Committee on the basis of his Confidential Report and criteria adopted by the Committee. In their return also, respondents have not came out with any specific case as to why the petitioner was not found suitable though he was considered. 3 The name of the petitioner was again considered in the Committee held on 13.2.1998 in which 2 juniors of the petitioner namely Smt. Madhu Jhariya & Kanhaiya Lal'Mandvi were promoted as is evident from order 5 dated 31.3.1998 (Annexure A—5) , From the gradation list published Vide Memo dated 14. l2.l995 (Annexure A—6) showing seniority position as on 1St April, 1995 it is reflected that the name of Smt. Madhu Jhariya finds place at Sr. No. 21 of permanent Upper Division Clerk, whereas name of Kanyaiya Lal Mandvi finds place at Sr. No.3 in the list of temporary Statistical Assistant. Averments made by the petitioner in Para 6.11 in the petition that Smt. Madhu Jharia & Kanyaiya Lal Mandvi are juniors to the petitioner, has not been disputed by the respondents in their return. It is case of the respondents that even though the case of the petitioner was considered by the Committee convened on 13.2.1998, he was not found fit in the post of Labour Inspector whereas his juniors Smti Madhu Jharia 8a Kanyaiya Lal Mandvi were found fit and promoted. 9. From the return filed by the respondent, it is seen that in the Committee convened on 13.2.1998, the cases of promotion was considered on the basis of merit»cum-seniority criteria which is evident l from What has been stated in para 13 of the return. From the provisions contained in Rule 15 of the Rules of 1966, it is found that the criteria of promotion would be merit and suitability in all respects with ,due regard to seniority and the select list shall be arranged in the order of seniority. Further it has been provided as an exception to the normal criteria of consideration that a junior employee, who in the opinion of the Committee possess exceptional merit and suitability, may be placed over and above his senior. Thus what is borne—out from the aforesaid provision is that, those candidates who were found suitable for promotion shall be placed in the select list arranged in the i order of seniority. Learned counsel for the petitioner submitted that aajr this would mean that criteria for promotion is seniority-cum-rnerit. He further submits that in any case upon promulgation of Madhya Pradesh Civil Services (Determination of the Basis for Promotion), Rules, 1998, (for brevity “the Rules of 1998”) in the matter of promotion from Class-Ill post to Class—III post, seniority—cum—merit shall be the criteria and the criteria of merit—eum-seniority is applicable only in the matter of promotion from Class—I to Class —I post. He further brings to the notice of this Court provisions contained in Rule 4 of the Rules of 1998 which provides that all rules regulating the recruitment to the State Civil Services and the posts shall be deemed amended to the extent as provided in those rules. I am unable to accept the submission of learned counsel for the petitioner in so far as applicability of Rules of 1998 is concerned for the reason that these rules itself were promulgated vide notification dated 27.7.1998, page 804 published in Madhya Pradesh Rajpatra (Asadharan) dated 27.7.1998. lt would be seen that the Committee was held oi’l 13 February, 1998 as stated by the respondents in their return. Thus on the date of consideration of cases for promotion, said Rules of 1998 had no application. 10. As provisions contained in Rule 15 of the Rules of 1966 stipulate that ‘ the)names of the persons in the select list shall be arranged in the order of seniority which shows that the criteria amongst all the persons, who have been found lit for promotion, senior will have precedence. Proviso to Rule 15 (3) of the Rules of 1966 carves-out an exception that in case junior is found to be of exceptional merit he may be placed over and above senior. The respondents in their return have said that petitioner was not found fit for promotion, however, why petitioner was not found fit has not been stated in the return. It has we also not been stated that juniors to the petitioner Smt. Madhu Jharia 86 Kanhaiya Lal Mandvi were found to be of exceptional merit and suitable and therefore placed over and above of the petitioner. No material has been placed on record to show as to how the consideration of cases of promotion had taken place, what was the mode of assessment of merit and how grading were given to those employees who were considered by the Committee. . In para 6 17 of the petition 1t has been very categorically stated by the petitioner that the Committee has conSidered certain adverse material which has not been communicated to the petitioner. It has also been averred that such material could not have been considered by the Committee without first giving an opportunity to the petitioner to have his say in the matter. In the petition, the petitioner has very specifically stated that his record of service is un—blemish. He has never been communicated any adverse entry in his Confidential Report. It has also been pleaded that no departmental inquiry has ever been instituted nor any memorandum, warning or any explanation inflicted or sought from the petitioner. Petitioner further stated that he has reasons to believe that he was declared unfit on account of extraneous consideration. Replying to these averments, it has been stated in para—9 in the return that as per the recommendations of the Committee, petitioner was not found fit for promotion to the post of Labour Inspector, Without there being any averments as to on what basis, petitioner was not found fit. In So far as averments in Para~6 17 of the petition are concerned 1t has been stated in Para 17 of the return that they are not denied From the admissmn made by the respondents in their return, it is revealed that while considering the case of the petitioner for promotion, some Ca/CN adverse material which had the effect of denying the petitioner promotion was definitely taken into consideration. It is thus, clearly borne-out that the petitioner was found unfit for promotion in the Committee convened on l3.2.1998 on the basis of some adverse material which was not communicated to the petitioner. This act on the part of the respondents, in the opinion of the Court, is unfair‘and Violative of Article 14 of the Constitution of India. It Was obligatory on the part of respondents to communicate adverse remark/material to the petitioner before relying upon the same to hold the petitioner unfit for promotion. 12. Consequently, the petition is allowed. 13. Respondents shall hold Review Departmental Promotion Committee to consider the case of the petitioner as on 13.2.1998 in the light of observations made by this Court. In case, the petitioner is found fit for promotion, he shall be entitled to promotion to the next higher post of Labour Inspector with effect from the date his juniors Smt. Madhu Jharia 8a Kanhaiyalal Mandiya were promoted and shall also be entitled to notional fixation of pay in the pay—scale of the post of Labour Inspector as also consequential seniority. a 14. No order as to costs. t a 541/- Manlndra Mohan Shnvashva i JudgG Sinha