1. ln this petition fifed under Article 226 of the Constitution, petitioner

has challenged his supersession. The petitioner was appointed as Forest Guard and is admittedly senior to respondent No.4 and 5. The respondents have

promoted certain juniors of the petitioner on the higher post of Vanpal in the pay scale of Rs. 3500-5200/-by order dated 21.10.2002. After filing the representations, petitioner has challenged the said order and his supersession.

2. Shri Alok Sharma, learned counsel for the petitioner by placing reliance on M.P. Public Service (promotion) Rules 2002 (in short’2002 Rules’) submit that as per said rules, the criteria for promotion was ‘seniority subject to fitness’. Learned counsel for the petitioner submits that where the petitioner is admittedly senior to the private respondents herein, question of considering the comparative merits of the candidates in the criteria of ‘seniority subject to fitness’ does not arise. He submits that ACR is never communicated to him, therefore, his supersession by DPC was impermissible and liable to be interfered.

3. Smt. Patanker, learned Government Advocate, on the other hand supported the order of promotion of juniors. It is stated that although petitioner was senior but his case was duly considered in DPC held on 29.11.2002, which was supplemented by DPC held on 10.12.2002. It is further stated that after due assessment of record of petitioner vis-a-vis other eligible candidates, the petitioner was not found fit for promotion as he could not secure minimum prescribed bench mark.

4. I have heard learned counsel for the parties and perused the record.

5. The stand taken by respondents in not promoting the petitioner is of two fold - (i) Petitioner’s record was considered/compared by DPC vis-a-vis other eligible candidates and petitioner was not found fit. (ii) Petitioner was not found fit for promotion as he could not secure minimum prescribed bench mark as held by DPC. The relevant portion of return reads as under :-

“Petitioner was duly considered in the DPC held on 29.11.2002 which was supplemented to the DPC held on 10.12.2002 and in the aforesaid DPC after due assessment of the record of the petitioner vis-a-vis to other eligible candidate, petitioner was not found fit for promotion as he could not secure minimum prescribed bench mark as laid down by DPC thus writ petition filed by the petitioner is without merit and deserves to be dismissed.”

6. In support of second contention, proceedings of DPS are filed as Annexure R/1, which shows that DPC has fixed the bench mark of 10 marks on the basis of ACR valuation. In other words, only those candidates whose service records are not poor and who have secured 10 marks on the basis of ACR gradings would be considered fit for promotion.

7. So far the first stand of the State is concerned, in the considered opinion of this Court, the said stand is impermissible. Rule 6(7) of 2002 Rules read as under :-

“(7) For filling up the posts by this method, the Departmental Promotion Committee shall consider the case of each public servants separately on the basis of his own merit, that is to say, that there shall be no need to make a comparative assessment of the merits of public servant. The Departmental Promotion Committee shall consider the records of each public servant separately and shall categorise them as ‘fit’ or ‘not fit’.”

A minute reading of this rule shows that the DPC is equipped with power to consider the record of each employee separately and categorize them as ‘fit’ or ‘not fit’. However, while doing so, the DPC cannot be permitted to make the comparative assessment of merits of public servant in the criteria of ‘seniority subject to fitness’. Thus, the stand of respondents that the petitioner’s service record was compared vis-a-vis other persons cannot be upheld as per sub Rule (7) aforesaid. The Apex Court in ¼2000½ 6 SCC 698 (Union of India and Others Vs. Lt. Gen. Rajendra Singh Kadyan and another) in para 12 held as u