Writ appeal against dismissal of challenge to out-of-turn seniority and promotion of junior employees to Dy. Director. Division Bench held petitioner's name was considered by DPC but rejected on merit based on ACRs, not due to pending enquiry; no error in Single Judge order.
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NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
WA No. 214 of 2024
Rajendra Kumar Sharma S/o J.P. Sharma Aged About 66 Years (Retired From Post Of Sachiv Varishth Praver Sherni, Krishi Upaj Mandi Samiti, Navapara, Dist. Raipur) Presently R/o Shri Janardan Viwas Oppsit Samiksha Medical Store, Sonkar Badi Kushalpur Raipur, Dist. Raipur, C.G.
---- Appellant
Versus
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---- Respondents
(Cause-title taken from Case Information System)
| For Appellant | : Mr. Vinod Deshmukh, Advocate |
|---|---|
| For Respondents No.1/State | : Mr. Vinay Pandey, Dy. A.G. |
| For Respondent No.2,3 and 4 | : Mr. Navoday Singh along with Mr. Yashwant Singh, Advocate |
| For Respondents No.5,6 and 10 | : Mr. Yashkarn Singh, Advocate |
Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Ravindra Kumar Agrawal , Judge
Judgment on Board
Per Ramesh Sinha, Chief Justice
25.04.2024
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the department enquiry against the petitioner, the Departmental Promotion Committee (DPC) was duly constituted in July 2008 for consideration of promotion from Grade II to Grade I ie. promotion from the post of senior secretary to the post of Dy. Director but the departmental promotion committee did not follow the norms of the Promotion Rules and the name of the writ petitioner / appellant herein was not considered for promotion at all and the names of the Respondents Nos. 5 to 13 were recommended, who are much juniors to the writ petitioner / appellant herein. On the basis of recommendation of the, DPC, the Respondent Board issued the promotion order to the Respondents Nos. 5 to 12 on the post of Dy. Director. Hence, WPS No.674 of 2011 was filed by the writ petitioner / appellant herein which was dismissed by the learned Single Judge vide order dated 14.02.2024. Being aggrieved by the same, the appellant herein has preferred this writ appeal.
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to time issued the seniority list of the Senior Secretary who are working in the Krishi Upaj Mandi Board. The Rajya Mandi Board Sewa Viniyam, 1998 has provided the fixation of seniority in clause / rule 24 and provided that the seniority shall be counted from the date of initial appointment. In the instant case, date of initial appointment of the petitioner is 01-02-1982 and initial appointment of the respondent no 5 is 20-11-1985. As such the respondent no 05 is much junior to the petitioner. Therefore out of turn seniority given to the respondent No. 05 relying upon the rules 16(2) of the Rajya Mandi Board Sewa Viniyam, 1998 is illegal and contrary to law. In the said rules, there is no provision under any statutory rules or any service rules governing in the field of employee of the respondent No. 2 & 3, in respect of given out of turn seniority of the employee. It is further submitted that out of turn seniority was given to the respondent No. 5 only given further promotion to him which is completely against the rule and violation of principle of natural justice. There is no provision to grant out of turn seniority under Rule 16(2) of the Rajya Mandi Board Sewa Viniyam, 1998. He later submits that Varishthata-sah-Upyuktatta called in English as Seniority-Cum-suitability/fitness and Varishthata-sahYogyata called in English as Seniority-cum- Merit. In the instant case the DPC has adopted the wrong criteria as Seniority cum merit which is contrary to Rule 4 of the Chhattisgarh Public Service Promotion Rules, 2003. As such, entire DPC proceeding as well as promotion order dated 24-07-2008 is labile to be vitiated. He also submitted that under Sub-rule (5) of Rule 6 of the Rules 2003 the D.P.C. is required to assess the suitability of the public servants for promotion on the basis
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of their service records and with particular reference to the Annual Confidential Reports for five preceding years. Under Sub-rule (7) of Rule 6 of the Rules 2003 the D.P.C. is obliged to consider case of each public servant separately on the basis of their own merit and there shall be no need to make a comparative assessment of the merits of public servant. The D.P.C. is further required to consider the records of each public servant separately and shall categorize them as "fit" or "not fit".
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Committee where the authorities have not complied with the statutory provisions. He later argued that 3-4 years is a reasonable period for challenging the seniority list. In the instant case the petitioner has filed the instant writ petition before this Court on 04-12-20210 within reasonable period of 4 years challenging the order dated 03-05- 2007 by which out of turn seniority has been given to the respondent No 05. He lastly argued that since the writ petitioner / appellant has already been exonerated from all the charges in the departmental proceeding, he is eligible for all the consequential as well as promotion from the date his juniors were promoted and on the basis of seniority-cumsuitability/fitness the petitioners are eligible and qualified for consideration for promotion to the post of Dy. Director/Sr. Secretary (Prever Grade) applying the principles laid down by the Supreme Court in the matter of Union Of India vs K.V. Jankiraman, AIR 1991 SC 2010 . It is settled law that if any criminal prosecution or departmental enquiry is pending against the delinquent/employee at the time of consideration of promotion, the respondent authority/ DPC are bound to follow the procedure of sealed cover and if the concerned employee exonerated from the alleged charges then he would be entitled for all consequential benefits as well as promotion from the date his juniors were promoted. As such, the writ appeal deserves to be allowed and the impugned order deserves to be quashed.
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appellant herein, in which no interference is called for.
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considering the finding recorded by the learned Single Judge while dismissing the writ petition filed by the writ petitioner / appellant herein, we are of the considered opinion that the learned Single Judge has not committed any illegality, irregularity or jurisdictional error in the impugned order warranting interference by this Court.
Sd/- Sd/- Sd/-
(Ravindra Kumar Agrawal) (Ramesh Sinha ) Judge Chief Justice
Bablu
3 issues framed by the court
Whether out-of-turn seniority granted to a junior employee under Rule 16(2) of the Viniyam 1998 was validly challengeable after delay.
Whether the DPC violated Rules 6(5) and 6(7) of the Promotion Rules, 2003 by making comparative assessment instead of seniority-cum-suitability.
Whether an employee exonerated in departmental enquiry was entitled to promotion with consequential benefits.
Colour shows how this judgement treated each authority
Union Of India vs K.V. JankiramanReferred¶5
AIR 1991 SC 2010 · Who else cites this
2 provisions across 2 enactments
Rajendra Kumar Sharma
State Of Chhattisgarh Through Its Secretary, Department Of Agriculture
Chhattisgarh State Agricultural Marketing Board Through Its Chairman
Managing Director, Chhattisgarh State Agricultural Marketing Board
Mahendra Singh Savanni, Dy. Director, Chhattisgarh State Agricultural Marketing Board
Ramesh Sinha
Ravindra Kumar Agrawal
As recorded by the court registry
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