Avadh Shrotriya vs State of M.P.

Hon''ble Shri N.K. Mody, J.—The prayer in the petition is that the order dated 18/07/06 Annexure P/6 issued by the respondent be modified to the extent that the petitioner be held to be entitled for promotion from the post of CEO Gd.-III (Class-II) to the post of CEO Gd.-II (Class-I) not with retrospective effect from 28/05/97, but with the retrospective effect from 01/04/94 and consequently the order dated 28/08/98 Annexure P/1 issued by the respondent be reviewed by cancelling and quashing the order dated 28/10/98 and also the respondent be directed to issue consequential promotion order for the post of CEO Gd.-I (Class-I) with retrospective effect from April 1999 in the pay scale of Rs. 12,000-16,500 and thereafter from April, 2004 in the pay scale of Rs. 14,300-18,300. Learned counsel for the petitioner submits that the petitioner was working as CEO Gd.-III. It is submitted that the petitioner was promoted as CEO Gd.-II w.e.f. 01/04/94. It is submitted that vide order dated 29/10/98 it was directed that the petitioner is entitled for promotion w.e.f. 29/10/98 and not from 01/04/94. It is submitted that order was also issued for recovery of the amount for excess payment. It is submitted that the petitioner filed a writ petition before this Court which was numbered as WP.No. 1662/98 and the same was decided on 25/02/05 with certain directions. It is submitted that in compliance of that detailed representation was submitted by the petitioner on 06/04/05, which was decided by the competent Authority vide order dated 18/07/06, wherein it was held that the petitioner is entitled for promotion w.e.f. 28/05/97 and not from 01/04/94. It is submitted that the order dated 18/07/06 is illegal, incorrect and deserves to be quash. It is submitted that no reason has been assigned by the respondent while granting the promotion w.e.f. 28/05/97. It is submitted that in the similar circumstances Jawaharsingh who is co-employee was promoted and the case of the petitioner is identical to the case of Jawaharsingh. It is submitted that the petition filed by the petitioner be allowed and necessary directions be issued by quashing the order whereby promotion has been given to the petitioner w.e.f. 28/05/97.

Learned counsel for the respondents submit that in compliance of the order dated 25/02/05 passed by this Court the case of the petitioner was considered by the review DPC and it was found that the petitioner is entitled for promotion w.e.f. 28/05/97. It is submitted that initially the petitioner was promoted vide order dated 01/04/94 mistakenly as no DPC was held and also seniors to the petitioner were not promoted by that time. It is submitted that since in compliance of the order passed by this Court DPC was held and promotion was granted w.e.f. 25/05/97, therefore, the petition filed by the petitioner has no merits. It is submitted that since in compliance of the wrong order dated 01/04/94 excess payment was made to the petitioner, therefore, the same has rightly been ordered to be recovered. It is also submitted that the petitioner is claiming parity with the case of Jawaharsingh, but the case of the petitioner is quite distinguishable from the case of Jawaharsingh. It is submitted that the petition filed by the petitioner be dismissed.

From perusal of the record it is evident that the petitioner was promoted vide order dated 01/04/94. Promotion order was cancelled vide order dated 29/10/98 with a direction that the petitioner be treated as promoted w.e.f. 29/10/98. Petitioner approached this Court and in compliance of order passed by this Court again the order was passed on 18/07/06 by the respondents and the promotion was granted w.e.f. 28/05/97. In the order Annexure P/6 it is no where stated that the review DPC was held on which date. It is also not clear from the order that how the promotion was given to the petitioner w.e.f. 28/05/97. So far as payment of excess amount is concerned, undisputedly it is not the case of the State that excess payment was made to the petitioner on account of fraud or misrepresentation on the part of petitioner, therefore, keeping in view the settled position of law as laid down by the Hon''ble Apex Court in the matter of Shyambabu Verma Vs. Union of India this Court is of the view that no amount can be recovered from the petitioner on account of excess payment, for which petitioner was not at fault. Since in the order Annexure P/6 dated 16/07/06 it is not specified that on what date the DPC was held and how the petitioner was given the benefit of promotion w.e.f. 28/05/97, therefore, the petition filed by the petitioner is disposed of with a short direction that the petitioner shall move an appropriate representation before the competent Authority with a request that the promotion be granted to the petitioner w.e.f. 01/04/94 instead of 28/05/97. In the representation petitioner shall narrate full facts that how the petitioner is entitled for promotion w.e.f. 01/04/94 and how the case of the petitioner is identical to the case of Jawaharsingh. Upon submission of the representation alongwith certified copy of the order passed today, the competent Authority shall look into the record of the petitioner and shall also take into consideration the recommendations of DPC and shall pass a reasoned order holding that the petitioner is entitled for promotion w.e.f. 01/04/94 or 28/05/97. It will be the duty of the competent Authority to pass a reasoned order on merits. The competent Authority shall also either give the benefit to the petitioner, which was given to Jawaharsingh or shall assign the reason why the case of the petitioner is distinguishable. So far as recovery is concerned, that part of the order stands quashed. Needful be done within three months from the date of receipt of representation. With the aforesaid observations, petition stands disposed of.