The central legal point established in the judgment is the strict adherence to the 'seniority subject to fitness' criteria for promotion, the assessment of suitability based on service record and ACRs, and the prohibition of making a comparative assessment of merits. The judgment also emphasizes the requirement for valid and communicated reasons for downgrading ACRs and the prohibition of mala fide actions by the DPC.

ORDER :

The petitioner is aggrieved by the order dated 20-10-2015, whereby her juniors, respondents No. 5, 6 and 7 have been promoted on the post of Class I Officer (Gynecologist).

2. The petitioner’s case is that she joined the medical service on 20-7-1998 after clearing the PSC. It is contended that as per the gradation list of 2011 (Annexure P-1), petitioner is senior to private respondents No. 5, 6 and 7 as the name of petitioner find place at seniority No. 1904 and respondents No. 5, 6 and 7 at seniority No. 2083, 2140 and 2169 respectively. The gradation list of 2012, 2013 and 2014 (Annexure P-2) again shows that the petitioner is senior to respondents No. 5, 6 and 7.

3. Shri Anubhav Jain, learned counsel appearing for the petitioner has submitted that promotions were due on the post of Gynecologist and Anesthetic. In the list (Annexure P-4) of all the candidates, who were in the zone of consideration for promotion, petitioner’s name was at Sl. No. 40, whereas respondent No. 5, 6 and 7 were at Sl. No. 41, 44 and 47 respectively. The promotion in question is from Class II post to Class I post and therefore, as per Rule 4(1) the criteria is seniority subject to fitness, but the Departmental Promotion Committee (DPC) instead of applying the criteria seniority subject to fitness made comparative assessment of the merit by fixing the bench mark for the candidate, which is impermissible, as per the promotion rules. Reliance is placed on (2006) 6 SCC 698, Union of India vs. Lt. Gen. Rajendra Singh Kadyan and another, 2016(4) M.P.L.J. 540, S. K. Bhadania and others vs. M. P. Housing Board and others and 2009(2) M.P.L.J. 659, Bharat Bhushan Sharma vs. State of M. P. and others.

4. Per contra, Shri S. P. Mishra, learned Govt. Advocate for respondent No. 1 to 3/State has supported the impugned order, it is submitted that the DPC fixed the Bench Mark of minimum 10 marks on the basis of evaluation of the ACRS pertaining to the proceeding 5 years. The petitioner did not achieve the bench mark as she was awarded 9 marks on the basis of her ACRs, hence her name was not recommended for the promotion. It is further submitted that as the private respondents No. 5, 6 and 7 were found fit on the basis of criteria/Bench mark fixed by the DPC, therefore on the basis of recommendation of the DPC, they were accordingly promoted by the State Government on 20-10-2015.

5. Shri Abhimanu Singh, learned counsel appearing for the respondent No. 4/PSC also supported the impugned order. It is submitted that the petitioner was not found fit for promotion because she did not score the requisite 10 marks. It is stated that thereafter the DPC met on 12-8-2013 and 11-8-2015, at that stage also, the petitioner did not found fit for promotion as she did not score 10 marks, on the consideration of her five years ACRs. However, in furtherance to proceedings of last DPC held on 21-1-2016, she has been promoted to the post of Gynecologist (Class-I).

6. None appeared on behalf of respondents No. 5 to 7, though served.

7. No other point is raised by learned counsel for the parties.

8. I have heard the learned counsel for the parties at length and perused the record.

9. Before adverting to the rival contentions, I deem it proper to refer to the relevant Rules the M. P. Public Services (Promotion) Rules, 2002, which prescribed the basis of promotion. The relevant rules are reproduced herein as under :

4. Determination of basis for promotion. - (1) Promotion from class IV to higher pay scale of Class IV, class IV to class III, class III to higher pay scale of class III, Class III to Class II, class II to higher pay scale of Class II and Class II to class I posts shall be made on the basis of “seniority subject to fitness”.

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

6. Promotion on the basis of seniority