W. A. No.972/2006
19.10.2011
We have heard both sides.
By the order dated 9.7.2007 notice was directed to be issued
to the private Respondents No. 3 to 5 by registered post. Notices
were actually issued and according to the office report dated
21.2.2011 Respondents No. 3 and 4 have been served and on that
date service was awaited on Respondent No. 5.
Since notices were issued by registered post and the
undelivered cover has not been received back and there is nothing
to indicate that the registered notice was not issued at the correct
and complete address of Respondent No. 5, therefore, Respondent
No. 5 is presumed to be served as provided under Rule 13 of
Chapter 15 of M.P. High Court Rules, 2008.
The dispute in this appeal is that the Respondent No. 3, 4
and 5 were junior to the appellant. When the case for promotion to
the next higher post was taken up the service records of the two
petitioners in the writ petition were not available and, therefore, the
cases of Respondents No. 3, 4 and 5 who were juniors to
petitioners in W. P. No.872/1994 were considered for promotion
and they were recommended for promotion. While making this
recommendation it was specifically observed that the cases of two
petitioners would be considered when their service records become
available and if they are granted promotion, their seniority would
be protected.
It is thus obvious that the appellant was not found unfit for
promotion when the cases of respondents No. 3, 4 and 5 were
considered and recommended for promotion, not on account of
any fault on the part of the appellant. The case of the appellant for
promotion was deferred as his service records were not available.
As soon as service records of the appellant were available his case
was considered and he was found suitable for promotion and was
granted promotion, vide order dated 12.8.1988.
The appellant came to know that he had been shown junior
to the Respondents No. 3 to 5 in the year 1993 when gradation list
was published showing the position as on 1.4.1993. The appellant
accordingly submitted a representation for assigning him his due
seniority. Thereafter he filed a writ petition in the year 1994. The
learned Single Judge by the impugned order dated 6.3.2006 has
dismissed the writ petition, on the ground that the private
respondents were promoted in 1988 and their promotions were
challenged by the appellant in the writ petition after six years i.e.
1994. Thus, the challenge to the promotions of private respondents
is belated.
In our considered view the approach of the learned Single
Judge cannot be sustained, because the appellant was not
questioning the promotion granted to the private respondents, but
was seeking restoration of seniority in the gradation list published
in the year 1993.
Considering the above circumstances we set aside the order
of learned Single Judge and direct that the seniority of the
appellant above the private respondents will be restored to the
same position, as the appellant and private respondents occupied
prior to the promotion. The appellant would be at liberty to submit
a representation to the competent authority with regard to the
consequential benefits, if any.
Accordingly, the writ appeal is allowed as indicated above.
(Sushil Harkauli) (Alok Aradhe)
Acting Chief Justice Judge
AK
