The main legal point established is that the DPC proceedings must adhere to the prescribed procedure under the applicable Promotion Rules, and promotions should be based on merit and vacancies as per the rules.

Judgment:

K.K. Trivedi, J.

1. By this petition under Article 226 of the Constitution of India, the petitioner is denied consideration for promotion-on the post of Professor and a junior to her, namely, the respondent No. 6 has been promoted on various grounds, inter alia that a Departmental Promotion Committee (hereinafter referred to as the DPC for brevity) meeting was held in which the claims of persons like petitioner were to be considered, but instead of granting promotion to the petitioner in appropriate manner, by order dated 12-4-2010 Annx. P/13, the respondent No. 6 has been promoted on the post of Professor, it is contended that the petitioner became eligible to be considered for promotion from the post of Reader to the post of Professor in the year 2006, but such a consideration was not done. When the representations were made, it was said that in the Academy where the petitioner was posted, post was not available in the concerned subject, therefore, the petitioner could not be promoted. It is further contended that though the petitioner was senior to respondent No. 6, yet her claim was not considered in appropriate manner. Refuting such allegations, the respondents No. 1 to 4 have filed their return and categorically contended that services or the petitioner are governed by the Rules known as Madhya Pradesh Academy of Administration Service (Gazetted) Recruitment Rules, 1997 (hereinafter referred to as the Rules for brevity) and as per Rules, the post of Professor Public Administration is to be filled up 100% by promotion from Reader/Select Grade pay scale on completion of six years of service and taking into consideration last five years Annual Confidential Reports (hereinafter referred to as ACRs for brevity). It is contended that a meeting of DPC was held on 1-1-2010, but the claim of the petitioner could not be considered for want of current ACRs. It is contended that wrongly it was alleged that respondent No. 5, who was Officer Incharge of the Academy, has deliberately misplaced the ACRs of the petitioner. It is contended that by mistake the ACR of the year 2009 of the petitioner was placed in some other file and when enquiry was conducted in this respect, suitable orders have been passed against the concerning officer by the respondents showing displeasure. A review DPC has been held in which the case of the petitioner is considered, but looking to the fact that the age of retirement of the petitioner was challenged in a writ petition which was pending before this Court, it was decided that the review DPC will be held only after decision in the said case. However, on an advise received from the counsel, a DPC meeting was held on 29-6-2010, the case of the petitioner was considered taking into note of ACR from the year 2004-2005, 2008-2009 and the petitioner is not found fit for promotion as she could not touch the benchmark. This being so, it is contended that rightful consideration of the petitioner has been done in the matter of promotion and the petitioner would not be entitled to any relief whatsoever claimed in the present writ petition. However, they have further categorically mentioned in para 7 of their return that the Rules known as Madhya Pradesh Public Service Commission (Promotion) Rules, 2002 (hereinafter referred to as the Promotion Rules for short), were framed and have been made applicable in the matter of promotion of the persons like petitioner and in accordance to those Rules since the petitioner has not achieved the benchmark, she has not been promoted.

2. The rejoinder has been filed by the petitioner categorically stating that ACR of the year 2009 was not to be taken into consideration as the vacancy was of the year 2004 and the ACR from the year 1999 to 2004 were to be taken into consideration. It is further contended that though the consideration is done at a later year, but the respondent No. 6 has been granted promotion with retrospective effect vide order dated 12-4-2010, and this shows