SHRI MANINDRA MOHAN SHRIVASTAVA, J.

1. The petitioner filed an original application before the M.P. State Administrative Tribunal, Bench at Raipur which was registered as Original Application No.2182/02. Upon abolition of the Tribunal, the petition was transferred to this Court.

The petitioner has filed this petition aggrieved by his super-session in the matter of promotion to the post of Assistant District Excise Officer as also denial of benefit of scale promotion provided by the State vide various circulars dated 19/04/1999 (Annexure A/6), 12/10/1999 (Annexure A/7), 17/05/2000 (Annexure A/8) and 17/05/2000 (Annexure A/9).

2. Quintessential facts necessary for adjudication of controversy involved in the petition are stated infra.

The petitioner was initially appointed as Excise Sub-Inspector in the Excise Department of erstwhile state of Madhya Pradesh in the year 1982. He was confirmed in the service in the year 1987. Upon re-organisation of the State of M.P. under M.P./C.G. Re-organisation Act, 2000, petitioner's services were allocated to the newly carved out State of Chhattisgarh. In the seniority list, showing seniority position as on 01/04/01 published on 17/10/01 vide Annexure A/3, the petitioner was placed at serial no.58 whereas respondents 2, 3, 4 and 5 were placed at serial no. 59, 60, 62 and 63 respectively. Departmental Promotion Committee was convened to consider the cases of promotion on 13/02/02. The DPC did not find the petitioner fit for promotion resulting in his super-session and his juniors as aforesaid, were promoted to the post of Assistant District Excise Officer vide order dated 21/02/02 (Annexure A/10).

The petitioner also feels aggrieved as even the scale promotion was not granted to him. According to the petitioner, the petitioner was not even granted scale promotion which was due to him upon completion of 12/24 years of service. Ventilating these grievances, the petitioner filed an original application filed before the Tribunal which has now come before this Court for decision.

3. Learned counsel for the petitioner contended that under the relevant applicable rules known as M.P. Excise Service Records Rules, 1966, the criteria for promotion from Class III to Class II post is seniority-cum-fitness. As the promotion from the post of Excise Inspector to Assistant District Excise Officer was a case of promotion from Class III to Class II post, the case of the petitioner was liable to be considered by applying the criteria of seniority-cum-fitness. As the petitioner's service records were un-blemish because by that time, no adverse remarks communicated to him, he was not given any major or minor penalty in the last five years preceding consideration, there was no Departmental Enquiry pending, the petitioner ought to be adjudged fit and given his seniority, he ought to be promoted to the next higher post of Assistant Excise Officer.

It is contended that the respondents adopted wrong criteria of fixing a minimum merit criteria by prescribing that out of five years ACRs, three of them were required to be graded as 'kha' and last one should not have been graded as 'Ga'. This amounted to fixation of minimum benchmark of merit, meaning thereby that the respondents, while considering the case of promotion, adopted the criteria of seniority-cum-merit, even though the petitioner by virtue of fitness, in the absence of any adverse material, was entitled to be promoted in preference to his juniors by applying the criteria of seniority-cum-fitness.

In the alternative, submission is that even though criteria could be applied, as grade 'Ga' has a deleterious effect in the context of the criteria fixed by the DPC, it constituted an adverse remark and therefore, this remark ought to have been communicated to the petitioner, well in advance, so that the petitioner could prefer his representation against those rem