IMPORTANT POINT
DPC can assign higher place in select list to a junior officer having exceptional merit and suitability after giving due consideration to ACRs and other materials.
High Court cannot sit in appeal over DPC decision.

Judgment

Dipak Misra, J.

Leave granted in the Special Leave Petition (C) No.28755 of 2009.

2. The present appeals, one preferred by the aggrieved officer, H.S. Sidhu and the other by the State, call in question the legal vulnerability of the judgment and order dated 24.03.2009 passed by the Division Bench of the high Court of Madhya Pradesh at Jabalpur, in Writ Appeal Nos. 370, 371, 411 and 442 of 2008 whereby it has concurred with the view expressed by the learned Single Judge vide order dated 04.03.2008 in Writ Petition No.23798 of 2003 and W.P.S. No.1119 of 2005.

3. It is seemly to state that the grievance is common in all the appeals. The facts, on a perusal of the order passed by the learned Single Judge as well as by the Division Bench, appear to be complex but they are actually not so. Complexity has been created with ingenious artificiality. Reference to certain dates, the factual position admitted at the Bar, and the relevant rules would suffice the narration. It is not in dispute that the appellant, H.S. Sidhu, and the 1st respondent, Devendra Bapna, were initially appointed as Assistant Directors as direct recruits through the Public Service Commission and their service conditions are governed by the Madhya Pradesh Fisheries (Gazetted) Service Recruitment Rules, 1987 (for brevity, 'the 1987 Rules') with certain incorporation from the Madhya Pradesh Services (General Conditions of Service) Rules, 1961 (For short, 'the 1961 Rules'). There is no cavil over the fact that they were promoted to the post of Deputy Directors and in that cadre Devendra Bopana was treated as senior to the appellant H.S. Sidhu.

4. The question of filling up the post of Joint Director, which is a promotional post from the cadre of Deputy Director, arose in the year 1996. At that juncture, a list of officers who had come within the zone of consideration for the promotion to the post of Joint Director was drawn up and in the said list, the name of Devendra Bopna appeared at serial no.3 and that of H.S. Sidhu at serial no.5. When the matter was placed before the Departmental Promotion Committee (DPC), it referred to the seniority and gradation list, the rule application for promotion, and took into consideration the ACRs and accordingly placed H.S. Sidhu at serial no.1 and Devendra Bapna at serial no.3 in the select list. The DPC for drawing the selection list in the aforesaid manner, ascribed the following reason :

“As per M.P. Fisberies (Gazetted) Service Recruitment Rules, 1987 of Sub rule 15(3) DPC found exceptional merit and suitable to Shri Harpal Singh Sidhu and given higher place against the senior officers.”

5. It is apt to note here that as there were four posts available in the cadre of Joint Director, both H.S. Sidhu and Devendra Bapna were allowed to officiate as Joint Directors. However, as H.S. Sidhu was treated senior to Devendra Bapna, he preferred OA No.927 of 1997 assailing the determination of seniority in the cadre of Joint Director. After abolition of the State Administrative Tribunal, the matter stood transferred to the High Court of Madhya Pradesh at Jabalpur which was registered as W.P. No.23798 of 2003. At this juncture, it is necessary to note that while both of them were officiating as Joint Directors, the post of Director fall vacant and both of them were considered. The DPC, considering the merit and suitability of H.S. Sidhu, recommended him to be promoted to the post of Director. The said exercise was carried out during the pendency of the writ petition no.23798 of 2003 where the cavil related to the fixation of seniority.

6. After the appellant was promoted temporarily to the 1st respondent herein in Writ Petition No.1119 of 2005. The learned Single Judge dealt with both the writ petitions together and came to hold that the writ petitioner should have been treated as senior to the appellant herein and, accordingly, directed as follows :

“In view of the aforesaid, respondents are directed to re-fix the petitioner's seniority