Anoop Kumar Khare vs State of Madhya Pradesh and Others

Sujoy Paul, J.—In the instant writ petition the grievance of the petitioner is that he was appointed as Assistant Grade-III w.e.f. 4.10.1990. Thereafter by order dated 20.8.1997 (Annexure P-2) the petitioner was sent on deputation for three years to Betwa River Council. In obedience of this order, the petitioner joined the borrowing department. With effect from 6.10.2002 by order dated 30.9.2002 (Annexure P-3), the petitioner was repatriated on completion of deputation period. Resultantly, by order dated 16.10.2002 (Annexure P/4) the petitioner was posted in Rajghat Canal Project, Datia. The petitioner is aggrieved by the action of the respondents whereby his juniors were promoted on the post of Asstt. Grade-II by order dated 15.1.2004 (Annexure P/6). The petitioner preferred a specific representation dated 27.1.2004 mentioning that his juniors have been promoted and petitioner was deprived from his right of consideration and promotion. His representation could not fetch any result and respondents passed an order that since the promotion order is issued on the basis of seniority list dated 1.4.2002, which does not contain the name of the petitioner, petitioner''s case will be considered in future DPCs. This communication dated 29.3.2004 was received by the petitioner and then he filed this petition.

In nutshell, the case of the petitioner is that the petitioner was on deputation from 20.8.1997 to 16.10.2002. Even if the petitioner was on deputation, his lien was there on his post in the parent department. The petitioner was repatriated before the DPC was held and, therefore, whether or not his name was reflected in the seniority list, he should have been considered.

I have heard learned counsel for the parties on this aspect.

Stand of the State is that the DPC was convened on 31.1.2003 on the basis of gradation list showing position as on 1.4.2002. In the seniority list aforesaid the name of petitioner did not figure and, therefore, the petitioner''s case was rightly not considered.

In the considered opinion of this Court, the stand taken by the respondents is unsustainable in law. If an employee is sent on deputation, his lien (a title to hold the substantive post) continues in the parent department. In all fairness, the employee who is being sent on deputation, his name must figure in the seniority list. A note may be appended that he is on deputation. By no stretch of imagination such employees who are on deputation can be treated to be outside the cadre strength or not on the rolls of the department. The respondents have first erred in not reflecting the name of the petitioner in the gradation list and again erred in not considering the case of the petitioner if his juniors were considered in the DPC convened on 31.1.2003. The aforesaid factual matrix shows that the seniority list was showing the position as on 1.4.2002. Admittedly, on that date the petitioner was on deputation. He joined the parent department after getting relieved from the borrowing department in October, 2002. The DPC took place on 31.1.2003. The seniority list ought to have reflected the name of the petitioner and even if it was not reflected, on petitioner''s joining back he should have been given appropriate seniority position considering his length of service. Thus, in my considered opinion, the right of consideration of the petitioner for promotion, which is statutory as well as fundamental right flowing from Article 16 of the Constitution, is taken away. The right of consideration is not an empty formality and such consideration must be an effective and meaningful consideration.

As analyzed above, it is clear that the respondents have erred in not considering the case of the petitioner for promotion in the DPC held on 31.1.2003.

Accordingly, the respondents are directed to forthwith assign appropriate position to the petitioner in the seniority list showing position as on 1.4.2002 and convene review DPC to consider the case of the petitioner by applying the same standard and criteria which was applied in the main DPC held on 31.1.2003. If the petitioner is found suitable and promoted, he shall get all consequential benefits from the date his juniors were given. With the aforesaid direction, petition is allowed. No costs.