Chattisgarh High Court

Surendra Kumar Choubey vs State Of Chhattisgarh on 29 February, 2024

Author:
Rajani Dubey

Bench:
Rajani Dubey

Neutral Citation
2024:CGHC:7146
NAFR

HIGH COURT OF CHHATTISGARH, BILASPUR
WPS No. 885 of 2015
Order reserved on : 29/11/2023
Order passed on : 29/02/2024
 Prateek Khare, S/o Late Shri B.B. Khare, Aged About 46 Years,
R/o. E-1, Shanti Nagar, Behind Gaurav Vatika, Gaurav Path,
Shaheed Bhagat Singh Chowk, Raipur, Police Station & Post Civil
Lines, Raipur, Civil and Revenue District Raipur Chhattisgarh.

---- Petitioner
Versus
1. State of Chhattisgarh Through: Secretary, Woman & Child
Development Department, Mahanadi Bhawan, Mantralaya, Capital
Complex, Naya Raipur, District Raipur Chhatisgarh.

2. Special Secretary, General Administration Department, Mahanadi
Bhawan, Mantralaya, Capital Complex, Naya Raipur, District
Raipur Chhattisgarh.

3. Public Service Commission, Through its Secretary, Public Service
Commission, Shaheed Bhagat Singh Chowk, Shankar Nagar
Raipur, Civil & Revenue District Raipur Chhattisgarh.

4. Director, Woman & Child Welfare Department, Indrawati Bhawan,
2nd Floor, Capital Complex, Naya Raipur. District Raipur
Chhattisgarh.

5. Smt. Archana Rana Seth, W/o . Shri Pragyan Seth Aged About 47
Years, R/o. Joint Director, Directorate of Woman & Child Welfare
Department, Indrawati Bhawan, 2nd Floor, Capital Complex, Naya
Raipur, District Raipur Chhattisgarh.

6. Smt. Chreesteena S. Lal, W/o Saloman Mathews Silah, Aged
About 50 Years, R/o. Joint Director, Directorate of Woman & Child
Welfare Department, Indrawati Bhawan, 2nd Floor, Capital
Complex, Naya Raipur, District Raipur Chhattisgarh.

---- Respondents

Neutral Citation
2024:CGHC:7146
And

WPS No. 5603 of 2017

 Surendra Kumar Choubey, S/o Late Shri Kapil Deo Choubey,
Aged About 53 Years, posted as Director, State Resources Centre,
Women & Child Development Department, Raipur Chhattisgarh.

---- Petitioner
Versus

1. State of Chhattisgarh Through Secretary, Women & Child Welfare
Department, Mahanadi Bhawan, New Raipur District- Raipur
Chhattisgarh.

2. Chhattisgarh Public Service Commission, through Secretary
Chhattisgarh State Public Service Commission, Raipur Shankar
Nagar, Raipur District Raipur Chhattisgarh.

3. Prateek Khare, Joint Director, Women & Child Development
Officer, Indrawati Bhawan Naya Raipur , Raipur Chhattisgarh.

---- Respondents

For Petitioner : Mr. Manoj Paranjpe, Advocate

in WPS No. 885/2015

For Petitioner : Mr. Anoop Majumdar, Advocate

in WPS No. 5603/2017

For State : Ms. Meena Shastri, Addl. A.G.
For Respondent No.2 : Mr. Sudeep Agrawal, Advocate

in WPS No. 5603/2017

For Respondent No.3 : Mr. Anuroop Panda, Advocate on behalf
of Mr. B.D. Guru, Advocate in

WPS No. 885/2015

For Respondent No.3 : Mr. Manoj Paranjpe, Advocate

in WPS No. 5603/2017

For Respondents No. 5 & 6 : Mr. Harsh Wardhan, Advocate

in WPS No. 885/2015

Neutral Citation
2024:CGHC:7146
Hon'ble Smt. Justice Rajani Dubey
CAV Order

1. Since the petitioners in the aforesaid petitions are working in the
same office and filed the petitions with regard to their seniority and
promotion, they are being heard and decided by this common
order.

2. In WPS No. 885 of 2015- By way of the instant petition, the
petitioner- Prateek Khare is challenging the legality, validity and
proprietary of the order dated 04.03.2015 (Annexure P/1) and
30.05.2013 (Annexure P/2) passed by the State Government,
whereby the objection raised by the petitioner in respect of
provisional gradation list of Joint Director issued on 25.10.2007
and 22.11.2010 has been turned down.

3. Brief facts of the case as mentioned in WPS No. 885/2015 are that
the petitioner- Prateek Khare is holding the post of joint Director
and at present posted as Secretary, State Commission for
protection of Child Rights. The petitioner was initially appointed on
the post of District Women & Child Development officer vide order
dated 18.05.1995 (Annexure P/3) and thereafter he was promoted
on the post of Deputy Director on 25.04.1998 (Annexure P/4) and
he was further promoted on the post of Joint Director vide order
dated 27.05.2006 (Annexure P/5) and is entitled for further
promotion to the post of Additional Director. The petitioner and
respondents No. 5 & 6 were promoted on the post of Deputy
Director vide order dated 25.04.1998 and they were further
promoted on the post of Joint Director vide order dated
27.05.2006. in the year 2005 three posts of Joint Directors were
sanctioned and all 3 posts were lying vacant. The case of the
petitioner and respondents No. 5 & 6 was recommended by the
Department for promotion to the post of Joint Director. The
Departmental Promotion Committee was convened on 21.11.2005
for promotion of Deputy Director to the post of Joint Director. On
the basis of the overall services records, the petitioner was graded
by the Departmental Promotion Committee as Outstanding and
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respondents No. 5 & 6 were graded by the Departmental
Promotion Committee as Very-Good and according to Rule 7.9 of
promotion Rules of 2003, the petitioner was placed at serial No.1
and the respondents no 5 & 6 were placed at serial Nos. 2 & 3.
The copy of the Departmental Promotion Committee proceedings
is annexed as Annexure P/6. The General Administration
Department in exercise of the powers conferred by the proviso to

Article 309
read with
Articles 16
and
of the Constitution of
India has made the rules known as Chhattisgarh Public Services
(Promotion) Rules, 2003, Rule 7 of the said Rules deals with
promotion on the basis of merit-cum-seniority.

4. The promotion order was issued on 27.05.2006 (Annexure P/5)
and the petitioner was placed at serial No. 1 i.e. in the same order
of merit determined by the Departmental Promotion Committee.
On 25.10.2007 (Annexure P/9), first time the provisional gradation
list showing the position as on 01.04.2007 of Joint Directors
Women & Child Welfare Department was published and the
objections were invited. In the said gradation list, petitioner was
placed at serial No.3 and respondents No. 5 & 6 were placed
above the petitioner ignoring the order of merit determined by
Departmental Promotion Committee on the basis of overall merit.
On 03.11.2007, the petitioner made first representation for
correction of his position. On 17.12.2009, second representation
was made, on 21.12.2009, third representation was made, further
on 30.12.2009 and thereafter on 22.11.2010 the last
representation was made. From 2007 to 2010, the final gradation
list was not published and the objection of the petitioner was not
decided. Copy of the representations of the petitioner dated
03.11.2007, 17.12.2009, 21.12.2009, 30.12.2009 & 22.11.2010 is
annexed as Annexure P/10 (Colly). Again on 22.11.2010, the
provisional gradation lists were issued showing the position as on
01.04.2008 to 01.04.2010 and again the petitioner was placed at
serial No.3 below the respondents No. 5 & 6. Petitioner made
representation/objection dated 02.12.2010 and reminder on
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12.10.2012.

5. The State Government vide its order dated 30.05.2013 (Annexure
P/2), rejected the representation without considering the grounds
agitated by the petitioner and while rejecting the representation it
was held that the provisions of General conditions of Service
Rules, 1961 would not be applicable, because the promotions
were made under the Promotion Rules of 2003. The petitioner
again requested the authorities to review the order dated
30.05.2013 (Annexure P/2). The review application has been
rejected on 04.03.2015 and final gradation list was issued on
07.03.2015 (Annexure P/14) and again the petitioner has been
placed at serial No.3. The petitioner made a representation to the
department and thereafter filed a petition before this Court which
was registered as W.P.(S) No. 4075/2014 (Annexure P/15) and the
same was disposed of on 21.11.2014 with certain direction.
Department is going to convey the Departmental Promotion
Committee for the post of Additional Director and with malafide
intention after near about 7 years and the final gradation list has
been published ignoring the rules of 2003 and the rules of 1961.
Hence, this petition has been filed by the petitioner- Prateek Khare
for the following reliefs:-

1] That, this Hon'ble Court may kindly be pleased to
issue a writ/writs, order/orders, direction/directions
quashing the impugned orders dated 04.03.2015
(Annexure P/1) and 30.05.2013 (Annexure P/2) and the
respondents No. 1 & 2 may kindly be directed to place
the petitioner in the gradation list of Joint Directors, in
the same order of merit determined by the
Departmental Promotion Committee in its meeting held
on 21.11.2005.

2] That, this Hon'ble Court may kindly be pleased to
grant any other relief(s), which is deemed fit and proper
and the respondents may kindly be directed to place
the petitioner at serial No.1 in the gradation list of Joint
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Directors Women & Child Welfare Department and only
thereafter, initiated the proceedings for promotion of
Joint Directors to the post of Additional Director.

3] That, this Hon'ble Court may kindly be pleased to
issue awrit/writs, order/orders, direction/directions and
the respondent No. 1 & 2 may kindly be directed to
issue the fresh gradation list of Joint Directors cadre.

4] That, this Hon'ble Court may kindly be pleased to
issue a direction to the Secretary, General
Administration Department to hold an enquiry in respect
of above mentioned entire matter.

6. In WPS No. 5603 of 2017- The instant petition is filed by the
petitioner- Surendra Kumar Choubey against the promotion
granted to respondent No.3 way back in the year 2006 on the post
of Joint Director in Women & Child Development department.

7. Brief facts of the case as mentioned in WPS No. 5603/2017 are
that the petitioner- Surendra Kumar Choubey was appointed on
the post of District Women & Child Development Officer on
03.09.1995. Thereafter, he was promoted on the post of Deputy
Director on 25.04.1998. The State of Chhattisgarh in the year
2005 considered the names of Deputy Directors for promotion to
the post of Joint Director in Women and Child Welfare department.

As per the gradation list issued on 01.04.2004 the petitioner was
placed at serial number 3 from the top of the seniority list of
District Programme Officer/Deputy Director. Smt. Archana Seth
and Smt. C.S. Lal were over and above in the seniority list of the
petitioner whereas Shri Prateek Khare was junior to the petitioner
in the gradation list. The promotion was to be made under
Chhattisgarh Women and Child Welfare (Gazetted) Service
Recruitment Rules, 1990 read with Chhattisgarh Civil Services
Promotion Rules, 2003. In the year 2005, total 3 posts were
vacant against which the names of the petitioner and other Deputy
Directors were to be considered. Out of 3 posts, 2 posts were
meant for unreserved category and one post was meant for
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Scheduled Tribes candidate. DPC was convened on 21.11.2005 in
which the name of petitioner was under the zone of consideration
as he cleared the minimum standard required for to be considered
on merits for the purposes of promotion. As per the annual
confidential reports of the petitioner, he was graded as very good
and his junior namely Prateek Khare was graded as outstanding
and, therefore he was considered as preferably more meritorious
than the candidature of the petitioner while granting promotion to
the post of Joint Director. Thus, respondent No.3 was promoted to
the post of Joint Director vide order dated 07.05.2006 (Annexure
P/1) whereby the seniority of the petitioner was overlooked as Mr.
Prateek Khare superseded the petitioner in the matter of granting
promotion. The other seniors namely Smt. Archana Rana Seth
and Smt. C.S. Lal sought information from the respondent
department as to how the seniority is granted to Prateek Khare
over and above them. They sought information under
RTI Act
as
well as from other sources about the grading given to the private
respondent in his annual confidential reports. The petitioner and
other employees were thus superseded in promotion as well as
seniority. But for a fairly longer period no information about Shri
Khare or about the minutes of the Departmental Promotion
committee meeting was ever given to the information seekers.
Copies of Communications are annexed as Annexure P/2 & Copy
of Gradation list is annexed as Annexure P/3. In the month of
September 2017, the petitioner was given the copy of minutes of
meeting held on 21.11.2005 wherein his name was under

consideration for promotion to the post of Joint Director. Copy of
minutes of meeting is annexed as Annexure P/4. It is clear from
the minutes of the meeting that for promotion on the post of Joint
Director, 3 posts were vacant and for which the names of 6 Deputy
directors were under consideration. Out of 6, the names of Shri
Dildar Singh Maravi and Smt. Preeti Khokar was not considered.
The name of petitioner was under consideration and the average
valuation was mentioned as very good but the committee refused
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to recommend the name of the petitioner because the requisite
numbers of officers were already available. I

8. Shri Prateek Khare was given remark as outstanding and found
suitable for promotion. But in the bottom note it is mentioned that
for the year 2001 there are 2 different annual confidential reports
for a single year. For 7 and a half months, the grade of respondent
No. 3 was A+ and for next 4 and a half months, his grade was C. It
is clear that the average of A+ and C will be B which is below the
standard benchmark required as per rule 7 (4) of Chhattisgarh
Civil Services Promotion Rules, 2003 required for consideration of
promotion on merit-cum-seniority basis. Therefore, Shri Prateek
Khare is out of the consideration zone on the date of DPC yet the
DPC recommended the name of respondent no.3 for promotion
quoting his grading as outstanding and also placing him over and
above his seniors in the gradation list of Joint Director. Hence, this
petition has been filed by the petitioner- Surendra Kumar Choubey
for the following reliefs:-

10.1. That all the records pertaining to the
Departmental Promotion Committee meeting
held in year 2005 and the Annual Confidential
Reports with respect to Petitioner and
Respondent no.3 for granting promotion to the
post of Joint Director, Woman and Child Welfare
department may be requisitioned for kind per
usual of this Hon'ble Court.

10.2 That the promotion order dated 27.05.2006
granting promotion to respondent no.3 to the
post of Joint Director, Woman and Child Welfare
Department may be set aside/quashed and
Respondent no.1 may be directed to conduct
Review Departmental Promotion Committee
meeting and petitioner may be considered for
granting promotion with effect from 27.05.2006 to
the post of Joint Director Women and Child
Welfare Department along with all consequential
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benefits.

10.3. That respondent no.1 may be directed to
conduct a full-fledged enquiry on the fraud
committed by the then members of Departmental
Promotion Committee and other responsible
persons due to which errorneous and illegal
promotion has been granted to respondent no.1.

10.4. That any other relief, which this Hon'ble
Court may deem fit and proper together with the
cost of the petition.

9. In WPS No. 885/2015, learned counsel for the petitioner submits
that the impugned orders are illegal erroneous and contrary to law.
While rejecting the objection of the petitioner, the Rules of 2003
and the General Condition of Service Rules 1961 were taken into
consideration. The impugned orders have been passed without
application of mind and without considering the grounds raised in
the representations/objections. The authorities while rejecting the
representation have failed to appreciate Rules 7(9) & 7(12) of
promotion Rules 2003 and Rules 12(1)(b) of General Conditions of
Service Rules 1961. The State Government grossly erred in
placing the petitioner at serial No.3 contrary to the order of merit
determined by the Departmental Promotion Committee and the
promotion order passed by the department. The respondent
authorities erred in rejecting the objection of the petitioner in
holding that the general condition of service rules 1961 would not
be applicable and the promotion Rules of 2003 would be
applicable, but even the rules of 2003 have not been considered.
Rules of 1961 are general service rules applicable undoubtedly as
mentioned in the opinion sought by the department from the
General Administration Department. With malafide intention the
representation and review application have been rejected and final
gradation list has been issued, so that the undue advantage can
be given to private respondents. The petitioner has been deprived
from his seniority. The representation of the petitioner was rejected
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without any speaking order, even the review has been rejected
erroneously upholding the order dated 30.05.2013. Therefore, the
impugned orders are liable to be set aside.

10. Learned counsel for respondents No. 1, 2 & 4 strongly opposes
the prayer of the petitioner and submits that the the petitioner has
been appointed on the post of Assistant Director vide order dated
18.05.1995 whereas respondents No. 5 and 6 have been
appointed to the post of Assistant Director vide order dated
29.06.1993. Thus, they are much seniors to the petitioner. The
DPC held on 21.11.2005 has evaluated the overall performance of
the employees, who were within the zone of consideration and
accordingly they have been awarded the grading. The petitioner
was found outstanding whereas the respondents No. 5 and 6 have
been found very good and accordingly they have been promoted
vide promotion order dated 27.05.2006 (Annexure P/5). Grading of
DPC and placing of employees in serial number in the promotion
order cannot be made basis for seniority to the promoted post. In
such a situation, the provisions contained in Rule 12(1)(c) of the
Rules, 1961 will come into place. It is well settled principles of
service law that where the promotions are made on the basis of
merit-cum-seniority, the seniority of persons considered fit for
promotion at the same time, shall be the same as the relative
seniority in the lower grade from which they are promoted. From a
bare perusal of the proceeding of the DPC dated 21.11.2005
(Annexure P/6), it would be evident that if the promotions were
made on the basis of the seniority subject to rejection of unfit and
in such a case, in the relative seniority of Deputy Director, the
petitioner was at serial No. 4 whereas respondents No. 5 and 6
were at serial no. 1 and 2 respectively and therefore, after
issuance of promotion order dated 27.05.2006 (Annexure P/5),
when the seniority list of Joint Director was published as on
01.04.2007, the petitioner was placed at serial No. 3 whereas
respondents No. 5 and 6 have been placed at serial Nos. 1 and 2
respectively. The representation of the petitioner was duly
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considered by the competent authority and as per promotion rules
and service rules, representation was rejected by the competent
authority. Therefore, the the petition is liable to be dismissed.

11.Learned counsel for respondents No. 5 & 6 opposes the prayer of
the petitioner and submits that the petition filed by the petitioner is
not maintainable, since none of the rights of the petitioner has
been violated. The petitioner had filed the instant writ petition
being aggrieved by the impugned order for the reason that
because of the impugned orders the chances of promotion of the
petitioner to the next higher post of Additional Director would be
adversely affected. It is a settled principle of law that no employee
has a right of promotion, the only right which an employee has a
right to be considered for promotion. The writ jurisdiction cannot
be invoked merely on the ground that the chances of promotion in
future are likely to be affected. The grant of promotion to the
respondents or to the petitioner on the next higher post of
Additional Director is contingent of several factors and events. In
the instant case, the petitioner and other eligible employees are
yet to be considered for promotion to the next higher post of
Additional Director at this stage none of the rights of the petitioner
has been violated. Hence, the instant petition is pre-mature and is
liable to be dismissed in limine.

12.In WPS No. 5603/2017, learned counsel for the petitioner submits
that the impugned promotion order dated 07.05.2006 passed by
respondent No.1 promoting respondent No.3 instead of petitioner
is illegal, arbitrary and malafide. The respondent authorities were
well aware about the contradictory entries made by the
Department Promotion Committee with respect to granting of
outstanding remark for respondent No.3, yet concealed the same
for years together in order to deprive the other counterparts of
respondent No.3 to illegally granted the benefit of promotion and
seniority. The act on the part of respondent authorities amounts to
fraud and malice in law in order to inflict injury upon the other
employees and to favour respondent No.3. The petitioner was
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entitled for promotion as he duly fulfilled the required criteria for
promotion to the post of Joint Director on the unreserved post. But
his junior that is respondent No.3, was considered over and above
the petitioner by denoting his outstanding performance despite
contradictory entry in his ACR's. The promotion enjoyed by
respondent No.3 for all these years will not accrue any right in his
favour as the promotion itself was granted on basis of concealing
actual entries and mistaken fact which has to be cured at some
point of time. As the promotion granted to respondent No.3, in
place of the petitioner is on misinterpretation of the entries made
in his ACR's, which was concealed for years together from the
public at large therefore, the promotion has to be quashed from
the date it was granted. It is the prime duty of the state to review
and apply it's mind upon the recommendation made by the Public
Service Commission in the matters of promotion. In the present
case the clearing illegality and contradiction in the DPC minutes is
writ large the state cannot shut it's eyes ratify as mute spectator
only because it is recommendation of PSC. State cannot without
applying its mind accept the recommendation of the Public Service
Commission howsoever erroneous it may be. Therefore,
impugned order dated 27.05.2006 granting promotion to
respondent No.3 is liable to be set aside.

13. Learned counsel for respondents No. 1 & 2 strongly opposes the
prayer of the petitioner and submits that the petitioner sought for
quashment of promotion order dated 27.05.2006 (Annexure P/1)
after inordinate delay of 11 years, therefore, this petition is liable to
be dismissed on this ground alone. In DPC meeting dated
21.11.2005, the committee considered all aspects of promotion
and recommended the name of officers for promotion and the
respondents on the basis of recommendation, promoted the
concerned officers and, therefore, this petition being without any
substance is liable to be dismissed.

14.Learned counsel for respondent No.3- Prateek Khare vehemently
opposes the prayer of the petitioner and submits that the petitioner
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has filed the instant petition after near about 12 years, therefore,
the instant petition is liable to be dismissed on the ground of delay
and laches. No explanation has been offered by the petitioner in
his writ petition except that he was served with the copies of the
Departmental Promotion Committee of 2005 in the month of
September 2017. It is clear that the said application under the RTI
itself was filed on 20.09.2017 i.e. after near about 11 years from
the date of the order of promotion.

15. The punishment of censure was imposed upon the petitioner and
subsequently he made an appeal against the order of punishment
and on 08.08.2005 (Annexure R.3/2), the said punishment was
set-aside, thereafter the petitioner was granted the proforma
promotion on the post of Deputy Director with effect from 1998
subject to condition that he would be entitled for higher pay-scale
only from the date of his joining on the post of Deputy Director. On
06.07.2005 (Annexure R.3/3), the petitioner along with the other
employees made a representation to the department which itself
shows that the petitioner was aware in respect of the ACRs as well
as in respect of the promotion of the answering respondent. The
identical issue raised by the other employee namely Smt. Archana
Rana i.e. W.P.(S) No. 1988/2017 has already been dismissed and
Writ Appeal No. 239/2017 is pending under consideration.
Annexure R.3/4 is the copy of the order dated 27.04.2017.
Subsequently, the Departmental Promotion Committee held on
21.11.2005 for consideration of the cases of Deputy Directors for
promotion on the post of Joint Director. The petitioner along with
the private respondents and other eligible Deputy Directors were
considered for promotion on the post of Joint Director.

16. The Departmental Promotion Committee shall make relative/
comparative assessment of the merit of the public servants on the
basis of their service records and placed them in the categories as
outstanding, very good, average and poor as the case may be.
However, only those public servants who were graded as very
good and above, will be included in the select list by placing the
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public servants graded as outstanding on the top followed by
those graded as very good subject to availability of vacancies.
Respondent No.3 was graded as outstanding, therefore, he was
placed on top and one Archana Rana who was graded as Very
Good was placed at Serial No.2 and C.S. Lal who belonged to the
Scheduled Tribe was considered against the third reserve post of
Scheduled Tribe. The petitioner though was graded as Very Good
but since he was junior to Archana Rana therefore, he was placed
at serial No. 3 in the category of unreserved. This fact is apparent
on the face of the minutes of meeting of the Departmental
Promotion Committee held on 21.11.2005. Therefore, this petition
is liable to be dismissed.

17. Reliance has been placed on the judgments of Hon'ble Supreme
Court in the matter of
Union of India and another Vs. S.K. Goel
and others
reported in (
2007) 14 SCC 641, Shiba Shankar
Mohapatra and others Vs. State of Orissa and others
reported
in (2010) 12 SCC 471 and P.S. Sadasiv Aswamy Vs. State of
Tamil Nadu reported in (1975) 1 SCC 152 & on the orders of
Hon'ble High Court of Madhya Pradesh in the matter of Santosh
Kumar Shrivastava Vs. State of Madhya Pradesh, Through
Additional Chief Secretary Water Resources Department and
others in 2023 SCC OnLine MP 1614 & Rajendra Singh
Kachwaha and another Vs. State of Madhya Pradesh Through
Principal Secretary, Department of School Education and
others in 2023 SCC OnLine MP 3642.

18.Heard counsel for the parties and perused the material available
on record.

19. As regards WPS No. 5603/2017 filed by the petitioner- Surendra
Kumar Choubey, it is clear that this petition is against promotion
order dated 27.05.2006 and respondents No. 1, 2 and 3 strongly
objected that this petition has been filed after 12 years of the
impugned order. It is clear from WPS No. 1988/2017 that this writ
was filed by Smt. Archana Rana and Smt. C.S. Lal and in the said
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petition, this Court observed in paras 2, 3 & 5 as under:-

"2. Since the petitioners were also promoted by the same order,
as such they are not aggrieved by the entire order, however,
according to the petitioners, respondent No.5 having been placed
at serial No.1 in the order of promotion, he will have preference in
consideration for promotion to the next higher post of Additional
Director. It is put forth that at the time of consideration of the
promotion in the year 2006, the ACRs of respondent No.5 were
not good or not of such grade which would place him as an
outstanding officer for placement at serial No.1 in the promotion
order, therefore, he should not have been promoted.

3. In para 7 of the writ petition, the petitioners would submit that
there is no delay in filing the instant writ petition because they
were pursuing the cause bonafidely and diligently firstly by filing
application under RTI seeking copies of the DPC proceedings,
which was declined up to the State Information Commission.
After supply of the copy, the petitioners have been continuously
pursuing their cause by filing repeated representations. The
department has drawn proceedings after the GAD and PSC have
issued directions to the department, but nothing has been
communicated apart from the assurance.

5.
In the matter of
K.R. Mudgal & Ors. Vs. R.P. Singh & Ors.
1 and

Shiba Shankar Mohapatra & Ors. Vs. State of Orissa and Ors.
2,
the Supreme Court has held that challenge to the seniority or
promotion should be made within a reasonable time i.e. within a
period of three to four years because after reasonable time the
employees get settled in their cadre and their rights are
crystallized."

20. The writ appeal i.e. WA No. 239/2017 was dismissed as
withdrawn vide order dated 10.02.2021, therefore, it is clear that
two officers who were promoted with respondent No.3- Prateek
Khare, filed writ petition against the same order which was
dismissed on the ground of delay. The petitioner has filed the
(1986) 4 SCC 531
(2010) 12 SCC 471
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instant petition about 12 years of this order. Thus, in the light of
previous orders of this Court and principles of Hon'ble Supreme
Court in the matters of
K.R. Mudgal and others vs. R.P. Singh and
others
reported in (
1986) 4 SCC 531 & Shiba Shankar Mohapatra
and others Vs. State of Orissa and others
reported in (2010) 12
SCC 471, this writ petition No. 5603/2017 suffers from
unexplained delay and laches and, therefore it deserves to be and
is hereby dismissed on the ground of delay and laches.

21. As regards WPS No. 885/2015, the petitioner has challenged the
order dated 04.03.2015 (Annexure P/1) & 30.05.2013 (Annexure
P/2) on the ground that DPC dated 21.11.2005, he was placed at
serial No.1 in the seniority list at that time and now his seniority
has been disturbed.

22. In this case, the petitioner relied on promotion rules, respondents
also quoted Rule 12 (1)(c) of the Rules, 1961 in their return.
Respondents No. 5 & 6 also submits that the petitioner was junior
to respondents No. 5 & 6. Respondents No. 5 & 6 made several
representations (Annexure R-5/6) to respondents with regard to
their seniority and promotion. As the petitioner was junior to
respondents No. 5 & 6 therefore, he was rightly placed below the
respondents in the gradation list. The State Government before
passing the order dated 30.05.2013 (Annexure P/2) had granted
sufficient opportunity to the petitioner and after considering the
entire records and representation of the petitioner, passed the
order in accordance with law. The order dated 30.05.2013
(Annexure P/2) was passed by the respondent authorities after
hearing all the affected parties and considering the relevant
statutory provisions as well as the records of the case. The review
application filed by the petitioner did not disclose any new ground
which warranted the State Government to review its order dated
30.05.2013 (Annexure P/2).

23. It is clear that the Rule 2003 specially deals with the promotion.
Annexure R-5/8 is the notification of Central Government dated
Neutral Citation
2024:CGHC:7146
08.02.2002 which provides that order /list of promotion so issued
merely reflects the preference tendered in granting promotion to
the employees and it can never affect the gradation list of the
employees.

24. Rule 12(1)(c) of the Rules, 1961 provides as under:-

"12. Seniority - XXX XXX XXX

(1) (a) XXX XXX XXX

(b) XXX XXX XXX

(c) Where promotions are made on the basis of the seniority
subject to rejection of the unfit, the seniority of persons
considered fit for promotion at the same time, shall be the same
as the relative seniority in the lower grade from which they are
promoted. Where, however, a person is considered as unfit for
promotion and is superseded by a junior, such person shall not, if
subsequently found suitable and promoted, take seniority in the
Higher grade over the junior persons who had superseded him."

25. Thus, it is evident from the aforesaid Rule that where the
promotion were made on the basis of the merit-cum-seniority, the
seniority of person considered fit for promotion at the same time
shall be the same as relative seniority in the lower grade from
which they are promoted. Para 12 of the minutes of meeting of
DPC dated 21.11.2005 (Annexure P/6) clearly shows the seniority
of the petitioner and respondents No. 5 & 6 as on 01.01.2005 and
the same is reproduced as under:-

p;u lwfp;k¡ ¼o"kZokj fjfDr;ksa ds vk/kkj ij½

o"kZ vuqdzekad ofj"Brk dzekad vf/kdkjh dk uke eqY;kadu
LkekU;

1-1-05 1 4 Jh izrhd [kjs mRd`"V

2 1 Jherh vpZuk cgqr vPNk
jk.kk lsB
vuqlwfpr tkfr
&
vuqlwfpr
tutkfr
&
3 2 Jherh
fdzLVhuk ,l-yky cgqr vPNk
Neutral Citation
2024:CGHC:7146
26. It is clear from representations of the petitioner and the orders of
respondents that the competent authority duly considered the
representation of the petitioner and passed impugned orders in
accordance with rules and notifications of the State and Central
Government. Therefore, this Court did not find any illegality or
irregularity in the impugned orders passed by the respondent
authorities. Thus, the writ petition i.e WPS No. 885/2015 being
without any substance is liable to be and is hereby dismissed.

27. The aforesaid petitions are dismissed.

Sd/-

(Rajani Dubey)
Judge
Ruchi