Dismissed

N.p. Chandel v. State Of Chhattisgarh And Ors.

Chhattisgarh HC27 Aug 2024WPS/1884/2015

Case brief

AI extract

What is this about?

This judgment dismisses a writ petition challenging an illegal promotion. The High Court held that promotion was lawful based on merit-cum-seniority criteria where the successful candidate scored higher in grading. The petition was also dismissed for significant delay and laches.

What did the court decide?

The promotion of Respondent No.3 was upheld and the Writ Petition was dismissed on merit and for delay.

N.p. Chandel Vs State Of Chhattisgarh… — Pension and Retirement Benefits | Chhattisgarh HC (2024)

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(WPS No.1884 of 2015)

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2024:CGHC:32798

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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WRIT PETITION (SERVICE) NO. 1884 OF 2015

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N.P. Chandel, S/o Late C.L. Chandel, aged about 52 years, working in the Office of Agriculture Engineer, Office Telibandha, Raipur, R/o B-11, Shubham Vihar, New Purana Raipur, Raipur (C.G.)

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... Petitioner(s)

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Versus

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1. State of Chhattisgarh, through: Chief Secretary, Agriculture Department, Mahanadi Bhawan, Mantralaya, New Raipur, District Raipur (C.G.)

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The Director, Directorate of Agriculture, Raipur (C.G.)

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3. Gyanesh Kumar Pidiha, Joint Director, Agriculture (Engineering), Horticulture, Raipur District Raipur (C.G.)

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4. The Chhattisgarh Public Service Commission, through: its Secretary, Shankar Nagar, Raipur (C.G.)

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... Respondent(s)

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For Petitioner	:-	Mr. Rudra Pratap Dubey, Advocate.
For Respondents 1 & 2	:-	Mr. Anuradha Jain, Panel Lawyer.
For Respondent No.3	:-	Mr. Sameeksha Gupta, Advocate.
For Respondent No.4	:-	Mr. Anand Mohan Tiwari, Advocate.

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(WPS No.1884 of 2015)

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[Single Bench ]

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Hon'ble Shri Justice Sanjay K. Agrawal Order on Board

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1. Invoking Writ jurisdiction of this Court under Article 226 of the Constitution of India, the Petitioner has called in question the promotion made by Respondents No.1 & 2/State of Respondent No.3 to the post of Joint Director, Agriculture (Engineering), on the ground that the promotion of Respondent No.3 has been done in illegal and arbitrary manner and therefore prayed for the promotion of Respondent No.3 to be quashed and he be promoted to the said post of Joint Director, Agriculture (Engineering).

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2. Case of the Petitioner and Respondent No.3 as well as one R.K. Singh was considered for the post of Joint Director, Agriculture (Engineering) by the Departmental Promotion Committee (hereinafter shall be referred to as ‘DPC’) held on 8.10.2012 in accordance with the Chhattisgarh Agriculture (Gazetted) Services

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Recruitment Rules, 2011 (hereinafter shall be referred to as ‘Rules of 2011’) read with the Chhattisgarh Public

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(WPS No.1884 of 2015)

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Services (Promotion) Rules, 2003 (hereinafter shall be referred to as ‘Rules of 2003’). It is the case of the Petitioner that though he was found fit for promotion in the DPC but he has not been granted promotion on the post of Joint Director, Agriculture (Engineering) whereas Respondent No.3 has been promoted on the said post even when the Petitioner was senior to Respondent No.3, which is totally illegal and contrary to law and is liable to be set-aside.

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3. Respondents No.1 & 2/State have filed their return stating inter alia that the grading of the Respondent No.3 was found to be outstanding/excellent and since as per Clause (2) of Rule 4 of the Rules of 2003, the criterion for promotion was on the basis of “merit-cum-seniority” and since Respondent No.3 was graded outstanding/ excellent, the DPC found him more meritorious than the Petitioner, though the Petitioner was also found fit, and promoted to the said post of Joint Director, Agriculture (Engineering). As such, the Writ Petition deserves to be dismissed.

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4. Learned Counsel for the Petitioner would submit that since the Petitioner was senior to Respondent No.3 as per the Gradation List stood at that time and he was

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(WPS No.1884 of 2015)

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also found fit in the DPC, his case ought to have been considered by the DPC for promotion to the said post, relying upon the decision of the Supreme Court rendered v. in the matter of in the matters of Sukhdev Singh Union of India and Others 1 and Anil Kumar v. Union of India and Others 2.

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5. Learned Counsel appearing for Respondents No.1 & 2/State would, however, submit that since Respondent No.3 was graded outstanding/excellent, as per Clause (2) of Rule 4 read with Clause (9) of Rule 7 of the Rules of 2003, the Respondent No.3 has rightly been promoted on the post of Joint Director, Agriculture (Engineering).

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6. Learned Counsel appearing for Respondent No.3 would support the stand taken by the State and submit that since the Respondent No.3 was found more meritorious than the Petitioner, he has rightly been promoted to the said post on the basis of merit-cum-seniority and therefore the Writ Petition is liable to be dismissed.

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7. I have heard learned Counsels for parties, considered their rival submissions and also perused the record of the case with utmost circumspection.

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2 (2019) 4 SCC 276

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1 (2013) 9 SCC 566

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(WPS No.1884 of 2015)

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8. The promotion on the post of Joint Director, Agriculture (Engineering) was considered by the DPC held on 8.10.2012, in accordance with the Rules of 2011 read with the Rules of 2003. As per Clause (3) of Rule 14 of the Rules of 2011, every promotion shall be made in accordance of the Rules of 2003 i.e., Chhattisgarh Public Service (Promotion) Rules, 2003. Schedule-I attached to the Rules of 2011 classifies the post of Deputy Director Agriculture as Class-I post having pay scale/grade pay of Rs.15600-39100/6600 and similarly the post of Joint Director Agriculture as Class-I post having pay scale/grade pay of Rs.15600-39100/7600. Since both the said posts are Class-I posts, the promotion from Class-I to higher pay scale of Class-I has to be made on the basis of “merit-cum-seniority” in accordance of Clause (2) of Rule 4 of the Rules of 2003 which provides as under:-

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“4. Determination of basis of promotion.

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xxx xxx xxx

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(2) Promotion from Class I to higher pay scale of Class I posts shall be made on the basis of “merit-cum-seniority”. ”

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(WPS No.1884 of 2015)

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9. The criteria for “merit-cum-seniority” has been considered by the Supreme Court in the matter of B. V. 3 Sivaiah and Others v. K. Addanki Babu and Others

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wherein their Lordships have held that the principle of "merit-cum-seniority" lays greater emphasis on merit and ability and seniority plays a less significant role and the seniority is to be given weight only when merit and ability are approximately equal, and observed in paragraph 9 as under:-

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“9. The principle of 'merit-cum-seniority' lays greater emphasis on merit and ability and seniority plays a less significant role. Seniority is to be given weight only when merit and ability are approximately equal. In the context of Rule 5(2) of the Indian Administrative Service/Indian Police Service (Appointment by promotion) Regulations, 1955 which prescribed that "selection for inclusion in such list shall be based on merit and suitability in all respects with due regard to seniority" Mathew. J. in Union of India v. Mohan Lal Capoor & Ors., (1973) 2 SCC 836, has said:-

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" .... for inclusion in the list, merit and suitability in all respects should be the governing consideration and that seniority should play a secondary role. It is only when merit and suitability are roughly equal that seniority will be a determining factor, or if it is not fairly possible to make an assessment inter se of the merit and suitability of two eligible candidates ad come to a firm conclusion, seniority would tilt the scale."

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3 (1998) 6 SCC 720

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(WPS No.1884 of 2015)

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Similarly, Beg J. (as the learned Chief Justice then was) has said :-

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"Thus, we thin that the correct view, in conformity with the plain meaning of words used in the relevant rules, is that the "entrance" or "inclusion" test for a place on the select list, is competitive ad comparative applied to all eligible candidates and not minimal like pass marks at an examination. The Selection Committee has an unrestricted choice of the best available talent, from amongst eligible candidates, determined by reference to reasonable criteria applied in assessing the facts revealed by service records of all eligible candidates so that merit and not mere seniority is the governing factor." ”

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10. At this juncture, it would also be relevant to notice Clause (9) of Rule 7 of the Rules of 2011, which provides as under:-

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“(9). The Departmental Promotion/Screening Committee shall make a relative/comparative assessment of the merits of public servants who are within the zone of consideration and make an overall grading of the public servants’ merit on the basis of their service records and place them in the categories as “Outstanding”, “VeryGood”, “Average” and “Poor” as the case may be. However, only those public servants who are graded as “Very-Good” and above will be included in the select list, by placing the public servants graded as “Outstanding” on top followed by those graded as “Very-Good”, subject to availability of vacancies, with the public servants with the same grading maintaining their inter-se seniority in the feeder cadre/part of the service/pay scales of post. ”

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(WPS No.1884 of 2015)

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11. It is apparent from the gradation list as stood at the relevant point of time that the Petitioner was senior to Respondent No.3. However, case of the Petitioner and the Respondent No.3 was considered by the DPC held on 8.10.2012 in which Annual Confidential Report (in short, ‘ACR’) of last five years was considered along with the other criteria and on the basis of which, the Petitioner as well as the Respondent No.3 were found fit, however, on the basis of the grading of the Respondent No.3 being “outstanding/excellent” and the grading of the Petitioner being “Very-Good”, the Respondent No.3 was found fit and more meritorious than the Petitioner for promotion to the post of Joint Director, Agriculture (Engineering) and accordingly vide promotion order dated 27.11.2012 he was promoted to the said post. Thus, since the criteria for promotion on the said post was “merit-cum-seniority” and the DPC on evaluation of the ACRs of the last five years of the Respondent No.3 found his grading “Outstanding/Excellent”, he was found fit and promoted to the said post of Joint Director, Agriculture (Engineering). As such, in my considered opinion, the recommendation of the DPC for promotion of the Respondent No.3 on the said post was perfectly

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(WPS No.1884 of 2015)

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legal and wholly justified which was accepted by the State Government and accordingly order of promotion was issued.

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12. Furthermore, the present Writ Petition also suffers from delay and laches as the order of promotion of the Respondent No.3 on the said post was issued as early as on 27.11.2012 and the Petitioner has filed the present Writ Petition on 11.5.2015 with a delay of almost 2^1/2 years and for which no sufficient cause has also been shown by the Petitioner as to why such a long delay has occurred in filing the Writ Petition well in time, and meanwhile the Respondent No.3 assumed his charge on the said post of Joint Director, Agriculture (Engineering) and is likely said to have superannuated, by virtue of which the cause of action itself could not possibly exist. The Writ Petition as such also deserves to be dismissed on the ground of delay and laches.

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13. As regards the aforesaid two judgments cited by learned Counsel for the Petitioner in support of his contentions, on due consideration, those judgments are quite distinguishable on facts and law and therefore they would not apply to the present case.

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10 / 10 (WPS No.1884 of 2015)

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14. Thus, for the foregoing reasons, the Writ Petition stands dismissed on merit as well as on the ground of delay and

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laches. There shall be no order as to costs.

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Sd/- (Sanjay K. Agrawal) sharad Judge Digitally signed SHARAD by SHARADKUMAR YADAV KUMAR Date: YADAV 2024.08.3010:28:24 +0530

N.p. Chandel v. State Of Chhattisgarh And Ors.

Case brief

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N.p. Chandel v. State Of Chhattisgarh And Ors.

Case brief

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