Rajendra Menon, J.
1. Challenging the action of the respondents in not granting senior pay scale to the petitioner and rejecting his claim for grant of the aforesaid benefit vide order dated 28.07.99, this petition was filed before the State Administrative Tribunal in the year 2000 and after winding up of the Tribunal, matter stands transferred to this Court.
2. Petitioner was initially appointed as Deputy Collector and joined the service on 13.06.1988. He was declared permanent with effect from 17.7.1990 vide order Annexure A/1 dated 24.08.91. After completing 8 years of regular service in the post petitioner became eligible for grant of senior pay scale as per rules 21 of the Madhya Pradesh State Administrative Service Rules, 1975 (hereinafter referred to as 'the Rule of 1975). Grievance of the petitioner is that he fulfilled all the necessary criteria for selection and grant of senior pay scale which is to be made on the basis of principle of 'seniority-cum-merit', but his claim has been rejected after considering it from various periods i.e. ending 1st January, 1995, 1st January, 1996 and 1st January, 1997 respectively. Inter alia contending that procedure adopted by the Departmental Selection Committee is not based on the principle of 'seniority-cum-merit' but it is based on the principle of 'merit-cum-seniority', which is impermissible and is contrary to rule 21 of the Rules 1975, petitioner seeks interference into the matter.
3. Shri Arvind Dudawat, learned Counsel for the petitioner invites may attention to the provision of Rule 21 of the Rules, 1975 points out that under Sub-rule 3, the procedure for selection on the basis of 'seniority-cum-merit' is clearly stipulated, thereafter inviting my attention to a un-reported judgment passed by a bench of this Court in W.P. No. 3880/03 (Bhagwan Das Sargaiyan v. State of Madhya Pradesh and Ors.) decided on 3.3.06, a division bench's judgment of this Court in the case of Narmada Prasad Saxena v. State of M.P. and Ors. 2005 (2) MPJR 495 and another judgment of this Court in the case of Badrilal v. State of M.P. and Ors. 2005 (2) M.P.L.J 33, a judgment of the Supreme Court in the case of B.V. Sivaiah and Ors. v. K. Addanki Babu and Ors. so also on another judgment of the Supreme Court in
the case of Harigovind Yadav v. Rewa Sidhi Gramin Bank and Ors. 2006 ILR 931 argued that procedure followed in the present case is not based on the principle of 'seniority-cum-merit' but claim of the petitioner is rejected after evaluating the comparative merit of the candidates whose cases were taken up by the DPC. Taking me through the DPC held on 1.8.95 and 28.8.97, Shri Arvind Dudawat points out that in the said DPC criteria fixed was for evaluating the confidential records of five years and then to promote only those persons who had obtained minimum four 'Kha' entries i.e. 'very good' entries and one 'gha' entry i.e. 'good' entry, it is stated by Shri Arvind Dudawat that in the said process petitioner whose earned three 'very good' entries for the year 1998, 1999 and 2000, whose records were also 'good' prior to 1993 having earned two 'good' entries for the year 1993 and 1994 and two 'very good' entries for the year 1991 and 1992 has been ignored and promotion denied after evaluating the inter se merit of the candidates. It is pointed out by Shri Arvind Dudawat that for the year 1999 petitioner had obtain one outstanding entry which is 'ka'. However, in the year 1995 and 1996 as petitioner was facing a departmental enquiry, the recommendation was kept in a sealed cover and after exoneration of the petitioner in the proceedings, the recommendations have been opened but promotion still denied on the ground that petitioner did not earn four 'very good' entires during the previous five years. Accordingly, Shri Arvind Dudawat submits that in evaluating the case of the petitioner contrary to the rules, respondents have committed error and therefore, he seeks interference in the matter.
4. Shri Praveen Newaskar, learned Deputy Government Advocate for the respondents/State by producing the relevant DPC record points out that in the present case, a Departmental Promotion Committee has considered the claim of the petitioner with regard to his promotion on 1.1.95, 1.1.96 and 1.1.97 respectively and as his case was not recommended by the DPC it is stated that petitioner is not eligible for promotion. Accordingly, he prays for dismissal of this petition.
5. I have heard learned Counsel for the parties and perused the record.
6. Grant of senior pay scale is governed by the provision of Rule 21 of the M.P. State Administrative Service Rules, 1975. According to the aforesaid rules eligible persons working in the junior scale of the State Civil Services are entitled for promotion or appointment on the senior pay scale who have completed eight years of service on First January of the year, who have passed the prescribed departmental examination and whose cases are considered by a committee consisting of members as per the Schedule IV, in Sub-rule 3 it is stipulated that promotion shall be granted on basis of 'seniority-cum-merit'. In the present case, it is not in dispute that petitioner fulfills all the conditions stipulated in the rules and was eligible for consideration as per the aforesaid rules. Claim of the petitioner was considered for the years as on 1.1.95, 1.1.96 and 1.1.97, DPC's were held on 1.8.95, 28.8.97 respectively for considering the case along with record. In the DPC, as petitioner was under suspension facing a departmental enquiry, the recommendations was kept in a sealed cover. However, after his exoneration, the sealed cover was opened and finding the petitioner's case is not recommended by the Departmental Promotion Committee, the communication in question was made to the petitioner on 28.7.98 intimating him the position.
7. A perusal of the proceedings of the DPC indicates that the CR grading of the petitioner from 1991 up to 2000 are as under:
1991 -outstanding 'ka'
1992 -very good 'kha'
1993-94 -good 'gha'
1995 -good 'gha'
1996-97 - suspended facing departmental enquiry.
1998-99-00 -very good 'kha'.
The Departmental Promotion Committee has fixed the criteria for recommending the cases of only such persons who had received four 'kha' entries i.e. 'very good' entries during the preceding five years and one 'gha' entry during the preceding five years. On the ground that petitioner had not received four Kha during the preceding five years, his case has been rejected.
8. The question now which requires consideration, as to whether this procedure followed in the DPC for evaluating case of the employee on the basis of receiving four 'very good' entries and one 'good' entry for the preceding five years is in accordance to the principle of 'seniority-cummerit' or amounts to consideration on the principle of 'merit-cumseniority'. Admittedly, when promotion is to be made on the basis of 'seniority-cum-merit', seniority has to be given due weightage and a employee who is senior and otherwise eligible for promotion has to be promoted if there is no adverse material in his service record. Comparison of the inter se merit of various persons and rejecting a senior person after evaluating the inter se merit is not permissible when promotion is based on the principle of 'seniority-cum-merit'.
9. In the case of Bhagwan Das Sargaiyan (supra), a bench of this Court has considered similar criteria followed by a Departmental Promotion Committee wherein the DPC had evaluated the case of a employee by fixing the criteria of evaluating last five years A.C.R. and the criteria fixed was that in last five years, three years C.R. should be good and last two years C.R. should be invariably good. After taking note of the principle laid down by the Division Bench in the case Narmada Prasad Saxena (supra) and after considering the principle of 'seniority-cum-merit', the learned judge has evaluated the principle in the following manner:
The principles of equality is applicable to employment at all stages and in all respects, namely, initial recruitment, promotion, retirement, payment of pension and gratuity. With regard to promotion the normal principles are either merit-cumseniority or seniority-cum-merit. Seniority-cum-merit means that gives the minimum necessary merit requisite for efficiency of administration, the senior though the less meritorious shall have priority. This will not violate Article 14, 16(1) and 16(2) of the constitution of India. See State of Kerala and Anr. v. N.M. Thomas and Ors. .
Where the criteria for promotion is seniority-cum-merit, the seniority is determinative factor and not the merit. The Rule required promotion to be made by selection on the basis of 'seniority subject to the fitness of the candidate to discharge the duties of the post from among persons eligible for promotion'.
After so holding the procedure followed is held to be not in conformity to the principle of 'seniority-cum-merit' and matter has been remanded back for fresh consideration. In the case of B.V. Sivaiah (supra) decided by the Supreme Court, the question has been considered and the criteria followed for consideration on the basis of 'seniority-cum merit' is so dealt with in para 18 of the aforesaid judgment:
18. We thus arrive at the conclusion that the criterion of seniority-cum-merit in the matter of promotion postulates that given the minimum necessary merit requisite for efficiency of administration, the senior, even though less meritorious, shall have priority and a comparative assessment of merit is not required to be made. For assessing the minimum necessary met, the competent authority can lay down the minimum standard that is required and also prescribe the mode of assessment of merit of the employee who is eligible for consideration for promotion. Such assessment can be made by assigning marks on the basis of appraisal of performance on the basis of service record and interview and prescribing the minimum marks which would entitle a person to be promoted on the basis of seniority-cum-merit.
10. From the perusal of the aforesaid criteria, it is clear that given the minimum necessary merit requisite for efficiency of administration, the senior, even though less meritorious, shall have priority in the matter of granting promotion. Recently, the matter was again considered by the Supreme Court in the case of Harigovind Yadav (supra) and the criteria laid down in the case of B.V. Sivaiah (supra) has been approved and it is held by the Supreme Court that in the said case also that while considering cases for promotion on the basis of 'seniority-cum-merit' by comparing the inter se merit of various candidates, a senior candidate cannot be rejected. A complete reading of the judgment rendered by the Supreme Court in the cases of Harigovind Yadavj (supra) and B.V. Sivaiah (supra) indicates that what is permissible is only fixing a minimum standard or criteria and comparison of the inter se merit or the comparative the merit of various candidates is not permissible.
11. In the present case, DPC has prepared a merit list of candidate, persons, who have got four or more Ka or Kha i.e. outstanding or very good entry are placed at the top, after evaluating the number of very good entries for various years list is prepared in the decentry order and consequently petitioner is held ineligible on the ground that he has not received four very good entries in the preceding five years. The list is prepared after evaluating the inter se merit of various candidate. Even though petitioner has earned two very good entries and one outstanding entry for the preceding five years his claim is rejected. This procedure followed by the respondents is clearly unsustainable, it does not fix any minimum criteria for grant of promotion, but is after evaluating inter se merit of a candidate and is clearly contrary to the principle of 'senioritycum-merit'. Petitioner up to 1995 having received two good, two very good and one outstanding grading cannot be ignored for promotion if the principle of 'seniority-cum-merit' is to be followed. That being so, this Court is of the considered view that in evaluating the claim of the petitioner the Departmental Promotion Committee has deviated from the rules fixed for promotion, the criteria followed is not of 'seniority-cummerit' but it isof 'merit-cum-seniority'. Normally when the proceedings of the DPC are held to be improper, matter is required to be remanded back for fresh consideration, however, in the present case, petitioner's claim has to be considered for promotion on 1.1.95 and if five years grading prior to 1.1.95 are taken note of, it would be seen petitioner has received good grading for the year 1993-94, very good entries for the year 1991-92 and outstanding grading for the year 1990. Once these grading are taken into consideration as evident from the record of DPC produced by the State Government, there is no reason why the petitioner cannot be granted benefit of promotion, this Court is of the considered view that in the facts and circumstances of the present case, no useful purpose will be served by remanding the matter back as petitioner had got 'good' CR grading and is entitled to be promoted on the basis of principle of 'seniority-cum-merit'. Recently a Division Bench of this Court in a Writ Appeal No. 613/07 decided on 22.11.07 considered this question and directed for promotion without remanding the matter back for reconsideration to the promotion committee. The question is so considered and decided by the learned Division Bench:
8. On this root question, whether writ Court should directly order for promotion of an employee or should only give direction to consider his case for promotion, as per the decision of the constitutional Bench, it is true that generally in such cases the Court should not order for directing promotion to the employee and direction should be given to consider the case. As per Regulation 70-A, if the appellant is found suitable for promotion he can be granted out of turn promotion. It is also true that in the return, State has not stated anything that the respondent was not found otherwise unsuitable for promotion on any other ground. Therefore, if the respondent was found suitable then he was entitled for out of turn promotion. While rejecting the case of the respondent, Screening Committee has not recorded such a finding that he is not fit for promotion. Under Article 226 of the Constitution of India while issuing the mandamus the High Court is fully competent in appropriate cases to issue such directions. If the circumstances permits and case is made out legally and if it is found that the person was not otherwise found unsuitable for promotion and a case of discrimination is made out, then certainly there can be any embargo on the powers of the High Court to issue such a directions....
12. Considering the same, it is directed that as petitioner has received good and very good entries for the five years between 1991 to 1995 is eligible for promotion on the post in question. Accordingly, this petition is allowed and it is directed that petitioner be granted senior pay scale as per Rule 21 of the Service Rule of 1975 with all other consequential benefit w.e.f. 1.1.95.
13. Accordingly, petition stands allowed and disposed of with the aforesaid without any order so as to costs.