Dismissed

Kailash Chandra Sharma v. C. G. State Agriculture Marketing Board

Chhattisgarh HC12 Jan 2023WPS/5782/2007

Case brief

AI extract

What is this about?

This petition challenged the promotion of Respondent 6 over the petitioner and the adopted seniority-cum-merit criteria. The Court upheld the promotion, ruling that seniority combined with merit (ACR) justified the decision without violating established principles. The petition was dismissed.

What did the court decide?

The petition challenging the promotion of Respondent No. 6 is dismissed as it is devoid of merit.

Kailash Chandra Sharma Vs C. G. State… — Pension and Retirement Benefits | Chhattisgarh HC (2023)

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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WPS No.5782 of 2007

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Order reserved on : 07.11.2022

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Order delivered on : 12.01.2023

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Kailash Chandra Sharma S/o Late Gauri Shankar Sharma, Aged About 47 Years Working As On Accountant In The C. G. State Agriculture Marketing Board, Resident Bilha Distt. Bilaspur, Chhattisgarh

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---- Petitioner

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Versus

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C. G. State Agriculture Marketing Board Through Chairman, C. G. State Agriculture Marketing Board Raipur (C. G.)

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Managing Director,C. G. State Agriculture Marketing Board Raipur (C. G.)

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Additional Director, C. G. State Agriculture Marketing Board Raipur (C. G.)

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Joint Director (Establishment),C. G. State Agriculture Marketing Board Raipur (C. G.)

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Deputy Director, (Establishment), C. G. State Agriculture Marketing Board Raipur (C. G.)

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Raj Kumar Gupta, Aged about 50 years Asst. Account Officer,C. G. State Agriculture Marketing Board Raipur (C. G.)

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---- Respondents

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For Petitioner Mr. Vinod Deshmukh, Advocate For Respondent Nos.1 to 5 Mr. Y. S. Thakur, Advocate For Respondent No.6 Mr. Malay Shrivastava, Advocate

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Hon’ble Justice Smt. Rajani Dubey

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C A V Order

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The present petition under Article 226 of the Constitution of India has been preferred by the petitioner challenging the order dated

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29.11.2005 issued by the respondent No.2, whereby the respondent

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No.6 has been granted promotion to the post of Assistant Account Officer. The petitioner is further challenging the seniority list of two cadres prepared by the respondent No.5 as on 01.05.2005 for the purpose of promotion to the post of Assistant Account Officer.

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It is the case of the petitioner that he was initially appointed as Junior Auditor in the erstwhile State of Madhya Pradesh in the Department of Madhya Pradesh State Agriculture Marketing Board, Bhopal on probation period for 2 years by order dated 26.08.1987 and in pursuance of the said order, the petitioner joined the post of Junior Auditor on 02.09.1987. By order dated 14.06.1991, the petitioner was confirmed on the post of Junior Auditor w.e.f. 01.09.1989 after completion of two years probation period. Subsequently, the petitioner was granted promotion on the post of Accountant vide order dated 17.12.1993 and he jointed his duties on 07.01.1994.

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After formation of new State of Chhattisgarh, the petitioner opted for his services in the State of Chhattisgarh and the services of the petitioner were allocated to the State of Chhattisgarh in the Chhattisgarh State Agriculture Marketing Board, Raipur. After bifurcation, the total number of one post of Accountant was allocated to the State of Chhattisgarh. The respondent State Marketing Board issued seniority list of the Accountant in accounts cadre from the year 2002 to 2007, wherein the name of the petitioner appeared at Sr No.1 in the seniority list. After bifurcation, only one post of Assistant Account Officer was allocated to the State of Chhattisgarh in the respondent Board and the same was to be fulfilled by 100% promotion from the post of Accountant and Senior Auditor, who passed the account’s training and who completed 5

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years of service on the post of Accountant and Senior Auditor.

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On 24.11.2005, the respondent Board constituted a DPC for consideration of promotion on the post of Assistant Account Officer and having regard to the same, joint seniority list of two cadres of Accountants and Senior Auditors as on 01.04.2005 for filling up one post of Assistant Account Officer was published, wherein the name of petitioner appeared at Sr. No.3. The respondent Board also prepared the chart of Annual Confidential Report as on 22.11.2005 of last years of eligible candidate for promotion to the post of Assistant Account Officer. The said chart shows that there was no such departmental enquiry pending against the petitioner nor there was any punishment foisted upon the petitioner, but so far as the ACR of the respondent No.6 is concerned, the same postulates that on 04.12.2001, he was awarded a minor punishment, wherein one increment of him was withheld without cumulative effect. The same also shows that on 17.11.2005, a show cause notice was issued to respondent No.6 for non receiving the order of his superior authority and absence from duty, but inspite of the same, the respondent No.6 was promoted to the post of Assistant Account Officer on the basis of seniority-cum-merit instead of merit-cum-seniority vide order dated 29.11.2005 issued by the respondent No.2. Hence, this petition.

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3. The petitioner has prayed for the following reliefs:-

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“(7.1) This Hon’ble Court be pleased to be call for the entire record pertaining to the case of the petitioner.

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(7.2) This Hon’ble Court may held that the promotion granted to the Respondent No. 6 is bad and is liable to be set-aside.

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(7.3) This Hon’ble Court be pleased to hold that the Respondent No.6 is not liable to be promoted to the post of Asst. Account Officer therefore, the promotion order dated 29-11-2005 (Annexure P-12) is liable to be quashed/ set-aside.

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(7.4) To hold the seniority granted to Respondent No.6 in the Joint Seniority List is not proper and is bad and further direct the Respondent Board to prepare proper seniority as per the Rules framed.

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(7.5) This Hon’ble Court be pleased to further direct the respondent authority to consider the case of the petitioner for promotion to the post of Asst. Account Officer.

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(7.6) Any other relief as deemed fit by this Hon’ble Court.”

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Learned counsel for the petitioner submits that only one post of Assistant Account Officer was sanctioned in the respondent Board, therefore, the same was to be fulfilled on the basis of merit-cumseniority instead of seniority-cum-merit. The petitioner was eligible and qualified for consideration of promotion on the post of Assistant Account Officer as per the confidential report of last 5 years on merit-cum-seniority basis. He further submits that the petitioner was the most senior person in his cadre i.e. account cadre and should have been promoted on the said post. The respondent authorities ought to have prepared the separate seniority list of two cadres for the purpose of promotion on the post of Assistant Account Officer. The note sheet dated 01.06.2007 prepared by the Additional Director clearly shows that the respondent No.6 has wrongly been promoted to the post of Assistant Account Officer for the reason that the joint secretary list of the two cadres prepared by the Department is legally incorrect and it was also found by the Additional Director that the respondent No.6 was liable to be reverted back and instead of him, the petitioner should have been promoted on the said post. Learned counsel next submits that the even representation filed by

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the petitioner was rejected by the Joint Director, the respondent No.4 without authority of law and without jurisdiction, whereas the Managing Director of the respondent Board is the competent authority to decide the representation of the petitioner. As per the circular of the Central Government, the employee who was initially allocated to the State of Madhya Pradesh but on the basis of mutual arrangements if his services are not allocated to the said State, he should be placed in the bottom of joint seniority list of two cadres. The same clearly postulates that the respondent No.6 was initially allocated to the State of Madhya Pradesh but due to mutual arrangements, his services could not be allocated, therefore, he should have been placed in the bottom in the joint seniority list of two cadres, but same was not the case in the present case. The promotion rules of Chhattisgarh Public Services (Promotion) Rules, 2003 have also not been followed by the DPC while granting promotion on the post of Assistant Account Officer and respondent No.6 has wrongly been promoted on the said post. Therefore, the impugned order may kindly be quashed and the respondent authorities be directed to grant promotion to the petitioner on the post of Assistant Account Officer instead of respondent No.6.

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Learned counsel for the respondents jointly submit that the post of Assistant Account Officer has rightly been fulfilled on the basis of seniority-cum-merit. The State of Chhattisgarh has framed Chhattisgarh Civil Services (Promotion) Rules, 2003, which are applicable for promotion to the employees of Chhattisgarh State Agriculture Marketing Board, as the Marketing Board has not framed its rules for promotion of its employees and the same has been applied for promotion to the post of Assistant Account Officer. The Marketing Board being a part of the State Government followed

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the promotion rules framed by the State Government and according to Rule 4 of Rules, 2003 for promotion from Class-3 to Class-3 Higher Pay scale post, the basis of promotion is seniority-cum-merit, therefore, the DPC has rightly adopted seniority-cum-merit as basis of promotion. The post of Assistant Account Officer has to be filled up by 100% promotion. The post of Assistant Account Officer is common promotional post for the Accounts cadre and Auditor cadre. These are two different disciplines in the same services with separate seniority list. They further submit that there is no such separate statutory rule or administrative instruction for promotion to the post of Assistant Accounts Officer, therefore, inter se seniority on the basis of length of service in the cadre concerned is the basis for promotion on the said post and even a separate seniority list of Auditor and Accountant was issued by the respondent Board and based on the same, the promotion was granted to the respondent No.6. They next submit that Mr. B. D. Kuldeep was the senior most person in the auditor cadre but since he was found unfit for promotion, the respondent No.6 being next to Mr. Kuldeep, therefore, he was promoted to the aforesaid post. Though respondent No.6 was placed at bottom in the seniority list of his cadre due to his allocation to the State of Chhattisgarh on mutual consent, but while considering the case for promotion, the only basis was seniority-cum-merit of both the cadres and based on which the respondent No.6 has been granted promotion on the post of Assistant Account Officer. Therefore, the petition may kindly be dismissed.

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

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In order to substantiate its stand, the petitioner has filed various documents before this Court. As per document (Annexure-P/7), in the year 2005, the petitioner was posted as Accountant (Lekhapal). Vide Annexure-P/8, gradation list of Accountant as on 01.04.2003 was published, in which the name of the petitioner appeared at Sr. No.1 apart from the another candidate namely Mr. Y. R. Verma, who was placed at Sr. No.2. Vide the document (Annexure-P/9), the joint seniority list of Accountant and Senior Auditor as on 01.04.2005 was prepared having 5 candidates, in which the name of Mr. B. D. Kuldeep appeared at Sr. No.1. The respondent No.6 was placed at Sr. No.2, whereas the petitioner was at Sr. No.3. Apart from them, Mr. Anil Kumar Minj was at Sr. No.4 and Mr. Y. R. Verma was at Sr. No.5.

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The document (Annexure-P/10) contains a chart of the candidates apropos departmental enquiry/punishment. The same postulates that there was no such punishment or departmental enquiry pending against the petitioner, however, the respondent No.6 was punished with stoppage of one annual increment without cumulative effect. Apart from it, the show cause notice was also issued to him for non compliance of the superior’s order. AnnexureP/10 also contains a chart of ACRs of Accountant and Senior Auditor of last 6 years of i.e. from the year 1999 to 2005, which is as under:-

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d0	‘kkldh; lsod dk uke	99-00	00-01	01-02	02-03	03-04	05-06	lexz ewY;kadu	mi;qDr/ vuqi;qDr
1	2	3	4	5	6	7	8	9	10

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1	Jh ch0 M0 dqynhi	[k	[k	x	[k	x	[k	-	Unfit
2	Jh vkj0 ds0 xqIrk	d	d	[k	[k	[k	[k	[k	Fit
3	Jh ds0 lh0 ‘kekZ	[k	d	+d	[k	[k	[k	d	Fit
4	Jh ,0 ds0 feat	-	d	x	[k	[k	[k	-	Unfit
5	Jh Okk;0 vkj0 oekZ	-	-	[k	[k	d	d	[k	Fit

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The said chart shows that the petitioner’s aggregated ACR is ‘Ka’, whereas respondent No.6’s ACR is ‘Kha’.

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The document (Annexure-P/11) contains particulars of DPC Committee Meeting. In the said meeting, the criteria for promotion on the post of Assistant Account Officer was mentioned in para 6, which is as under:-

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“(6) ekin.M ,ao dlkSVh%&

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foHkkxh; inksUufr lfefr ds fopkj ds fy;s fuEufyf[kr ekin.M ,ao dlkSVh r; dh xbZ Fkh %&

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(1) lafu”Brk lansg ls ijs gks vkSj izekf.kr gksA

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(2) ikap o”kksZ ds xksiuh; izfrosnuksa dk lexz ewY;kdau [k (vPNk )Js.kh dk gksA

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(3) vafre ,ao uohure o”kZ dk xksiuh; izfrosnu x (vkSlr ) Js.kh dk u gksA

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(4) ;fn vU; o”kksZ esa dksbZ xksiuh; izfrosnu x Js.kh dk gks rks mldh izfriwfrZ nwljs d + (mRd`”B) vFkok d(cgqr vPNk) Js.kh ds xksiuh; izfrosnu ls gksrh gksA

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(5) vioknkRed xq.k rFkk dk;Z laiknu laca/kh fo’ks”k dkj.kksa dks mYysf[kr djrs gq;s nks xbZ mRd”V Js.kh dks dsoy mRd”V Js.kh vadu ls vfrfjDr egRo fn;k x;k gSA

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(6) e.Mh cksMZ lsok fofu;e 1998 ds fu;e 16(2) ds vuqlkj ,sls vf/kdkfj;ksa dks tks fo’ks”k :i ls ;ksX; rFkk mi;qDr gks mUgsa lwph esa ls mlls ofj”B vf/kdkjh dh rqyuk esa mPPkrj Lfkku fn;k x;kA”

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As per para 10 of the said meeting, the petitioner and the respondent No.6 both were graded as ‘General’. The name of the respondent No.6 appeared at Sr. No.2, whereas name of petitioner appeared at Sr. No.3. In para 13, it was mentioned that no such punishment has been imposed and no departmental enquiry is pending against the respondent No.6, the petitioner and other candidates as well. In para 13, respondent No.6, the petitioner and Mr. Y. R. Verma were found fit for promotion on the post of Assistant Account Officer and based on the seniority-cum-merit, name of respondent No.6 was recommended for promotion on the aforesaid post.

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Apart from the aforesaid documents, the note sheet dated 01.06.2007 of Additional Director who recommended the name of the petitioner for promotion on the post of Assistant Account Officer has also been filed by the petitioner and it has been argued that since the name of the petitioner was recommended by the Additional Director, he should have been promoted to the aforesaid post, but as per Managing Director’s order dated 08.06.2007, who is the superior authority, the list prepared by DPC was approved.

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The Hon’ble Apex Court in the matter of Chairman, Rushikulya Gramya Bank vs Bisawamber Patro and others¹ held in paras 10 & 11 as under:-

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“10. In Rajendra Kumar Srivastava, the Court framed the following two questions for consideration:

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“8. On the contentions urged, the following two questions arise for our consideration:

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(i) Whether minimum qualifying marks could be prescribed for assessment of past performance and interview, where the promotions are to be made on the principle of seniority-cum- merit?

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1 (2013) 4 SCC 376

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(ii) Whether the first respondent Bank was justified in fixing a high percentage (78%) as the minimum qualifying marks (minimum merit) for promotion?

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Answering both the questions in the affirmative, the Court on an analysis of the earlier decisions observed and held that:

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“13. Thus it is clear that a process whereby eligible candidates possessing the minimum necessary merit in the feeder posts is first ascertained and thereafter, promotions are made strictly in accordance with seniority, from among those who possess the minimum necessary merit is recognised and accepted as complying with the principle of “seniority-cummerit”. What would offend the rule of senioritycum- merit is a process where after assessing the minimum necessary merit, promotions are made on the basis of merit (instead of seniority) from among the candidates possessing the minimum necessary merit. If the criteria adopted for assessment of minimum necessary merit is bona fide and not unreasonable, it is not open to challenge, as being opposed to the principle of senioritycum-merit. We accordingly hold that prescribing minimum qualifying marks to ascertain the minimum merit necessary for discharging the functions of the higher post, is not violative of the concept of promotion by seniority-cum-merit.

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The next question is whether fixing of 78% as minimum qualifying marks (that is, as the minimum necessary merit) is unreasonable and arbitrary. The Rules in this case provide that the mode of selection is by interview and assessment of performance reports for the preceding three years as officer Scale I. The seniority list of officers in Scale I was published on 4-12-1996. Thereafter, the promotion process was held by earmarking 60 marks for assessment of performance reports (at the rate of 20 marks per year) and 40 marks were allotted for interview. The officers possessing the minimum qualifying marks of 78%, were then promoted on the basis of seniority. What should be the minimum necessary merit for promotion, is a matter that is decided by the management, having in mind the requirements of the post to which promotions are to be made. The employer has the discretion to fix different minimum merit, for different categories of posts, subject to the relevant rules. For example, for promotions at lower levels, it may fix lesser minimum qualifying marks and fix a comparatively higher minimum qualifying

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marks for higher posts.”

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The decision of the High Court, thus, appears to be clearly contrary to the view taken by this Court in Rajendra Kumar Srivastava.”

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The Hon’ble Supreme Court in the matter of Dr. N. D. Mitra and another vs Union of India and others² held that in absence of any statutory rules or executive instructions to the contrary, inter se seniority of the post concerned would be determined on the basis of continuous length of service in that post and not on the basis of length of service in the discipline concerned.

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Applying the aforesaid principle in the present case as well, it is manifest that in the case in hand, there was no such rules or regulations made by the respondent Board for the purpose of promotion in the respondent Board, therefore, in absence of any rules or regulations in this regard, the Chhattisgarh Public Services (Promotion) Rules, 2003 were adopted by the respondent Board and the criteria for promotion on the post of Assistant Accountant Officer was ascertained as ‘Grade-B’ based on the performance of the candidates for last 5 years and seniority-cum-merit basis formula was adopted while granting promotion on the aforesaid post. In the joint seniority list of accountant and auditor, the petitioner being the eligible candidate based on the ACRs and other eligibility criterias was promoted to the post of Assistant Account Officer. True it is that the petitioner was graded as ‘Ka’, whereas the respondent No.6 as ‘Kha, but the criteria for promotion was only grade ‘Kha’ based on the aggregated ACRs of last 5 years and not ‘Ka’. Apart from it, the respondent No.6 was senior to the petitioner, as is evident from the document (Annexure-P/9), wherein the first joining date of respondent No.6 in the service is 02.11.1985 and in

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2 (1994) 4 SCC 474

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the cadre is 08.02.1993, whereas the petitioner’s first joining date in the service is 02.09.1987 and in the cadre is 07.01.1994. The stand taken by the petitioner that the respondent No.6 has wrongly been promoted to the post of Assistant Account Officer, as he was punished with penalty of stoppage of one increment without cumulative effect and the departmental enquiry was also pending against him, but perusal of the chart (Annexure-P/10) shows that though the respondent No.6 was awarded penalty of stoppage of one increment without cumulative effect and show cause notice was also issued to him for non compliance of the superior’s order, but there was no departmental enquiry proceeding pending against him at the time of promotion. Even otherwise, the penalty of stoppage of one increment without cumulative effect is a minor punishment. Thus, it appears that the petitioner has not been set at naught while granting promotion to the respondent No.6 on the post of Assistant Account Officer, as he was promoted based on the eligibility criteria. Thus, the respondent No.6 has rightly been promoted by the DPC and service rules and other promotional rules as well as the guidelines of the Hon’ble Apex Court apropos seniority-cum-merit have been duly followed.

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The petition being devoid of any merit deserves to be and is hereby dismissed accordingly.

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Sd/Rajani Dubey Judge

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Nirala

Kailash Chandra Sharma v. C. G. State Agriculture Marketing Board

Case brief

What is this about?

What did the court decide?

Kailash Chandra Sharma v. C. G. State Agriculture Marketing Board

Case brief

What is this about?

What did the court decide?

What the court decided

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