Madhya Pradesh High Court
Balveer Chavand vs The State Of Madhya Pradesh on 25 April, 2025
Author: Vijay Kumar Shukla
Bench: Vijay Kumar Shukla
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IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIJAY KUMAR SHUKLA
ON THE 25th OF APRIL, 2025
WRIT PETITION No. 10735 of 2023
BALVEER CHAVAND
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri L.C Patne, learned counsel for the petitioner.
Shri Sudarshan Joshi, learned counsel for the respondent/state.
Ms.Neha Nayak, learned counsel for the respondent no.3.
ORDER
The present petition is filed under Article 226 of the Constitution of
India challenging the order dated 26.11.2015 (Annexure P/7) issued by the
respondent no.1 promoting respondent no.3 from the post of Company
Commander to the post of Assistant Commandant and non-consideration of
the petitioner's case for promotion from the post of Company Commander
(Inspector Cadre) to the post of Assistant Commandant (Deputy
Superintendent of Police Cadre). The petitioner has also challenged the order
dated 12.07.2021 (Annexure P/15) so far it relates to not handing over the
charge of the post of Assistant Commandant to the petitioner instead of
promoting him on the aforesaid post by conducting a meeting of review
DPC.
2. The facts which are relevant for adjudication of the present case
are stated in brief that petitioner entered into the services of Respondent
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No.1/department as Platoon Commander on 29.4.1999 and was promoted to
the post of Company Commander, SAF on 3.9.2004. In the gradation list of
Company Commander showing position as on 1.4.2015 his name appears at
Sr. No.19 and that of Respondent No.3 at Sr. No. 20. Thus, the petitioner is
senior to Respondent No. 3 in the cadre of Company Commander. While he
was posted as Company Commander in 32rd Battalion, SAF, Ujjain, he was
punished with major punishment of withholding of one increment with
cumulative effect by order dated 27.6.2014 which upon an appeal being
preferred by the petitioner was converted to that of minor punishment i.e.
without cumulative effect by order dated 31.10.2014. The petitioner was also
communicated with adverse remarks in his ACRs for the year 2013-14 by
order dated 24.9.2014. Even these remarks were expunged by the
Respondent No.2 by order dated 30.3.2015.
3. It is submitted that in the meantime, the Commandant, 32rd
Battalion, SAF, Ujjain, vide his letter dated 31.10.2014 submitted
information regarding petitioner for consideration of his case for promotion
to the post of Assistant Commandant in the ensuing meeting of DPC but he
has mentioned that the petitioner is in the shadow of major punishment of
withholding of one increment with cumulative effect imposed upon him vide
order dated 27.6.2014. It is precisely for this reason alone, the DPC did not
consider the case of the petitioner and by the impugned order dated
26.11.2015 issued by Respondent No. 1, various persons junior to the
petitioner including respondent no.3 came to be promoted on the post of
Assistant Commandant (Deputy Superintendent of Police Cadre) vide
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Sr.No.10 under Company Commander Cadre.
4. Being aggrieved by the impugned promotion order, the petitioner
preferred a representation which was forwarded by Inspector General of
SAF, Indore by his letter dated 2.12.2015 to Respondent No. 2. Acting upon
the aforesaid letter, the Respondent No.2 enquired about the effect of
modified punishment inflicted upon. The petitioner and the Commandant
32rd Battalion SAF, Ujjain in his letter dated 28.12.2015 informed the
Respondent No. 2 that the effect of the punishment of the petitioner remained
from 1.7.2014 to 30.6.2015, meaning thereby the petitioner became entitled
to get promotion on the post of Assistant Commandant w.e.f. 1.7.2015 at par
with persons junior to him. In the meanwhile, the constitutional validity of
M.P. Public Service (Promotion) Rules, 2002 came to be challenged before
this Court on the ground that the State Government has not undertaken
exercise of collecting quantifiable data before providing reservation in
promotion.
5. A Division Bench of this Court in the case of R.B. Rai v. State of
M.P. & Others 2016 SCCOnline MP 747 has declared the provisions relating
to reservation in promotion in public services in the State of Madhya
Pradesh as unconstitutional. The State of Madhya Pradesh being aggrieved
by the judgment rendered by the Division Bench of this Court had
approached before the Apex Court by filing a Special Leave Petition (Civil)
No. 13954 of 2016 wherein by an interim order dated 12.5.2016 the Apex
Court has directed "status quo" to be maintained in the matter. This SLP is
still pending before the Apex Court wherein leave has been granted by the
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Apex Court and the same has now been registered as Civil Appeal No. 5247
of 2016.
6. It is submitted that on account of pendency of aforesaid litigation
whenever the petitioner requested for his promotion from the post of
Company Commander to the post of Assistant Commandant by submitting
various representations, he was assured that soon after finalization of the
aforesaid litigation that his case for promotion shall be considered by holding
meeting of review DPC. The petitioner further submits that the Respondent
No.2 by issuing an order dated 2.3.2020 has upgraded the petitioner's ACR
for the year 2013- 14 from "Average" to "Good". Thus, there remained no
disability in considering the petitioner's case for promotion for the post of
Assistant Commandant and to grant him promotion w.e.f. 1.7.2015. That
instead of holding review DPC and promoting the petitioner on the post of
Assistant Commandant taking shelter of pendency of the said case before the
Apex Court, the petitioner was handed over the charge of post of Assistant
Commandant by order dated 12.07.2021.
7. Learned counsel for the petitioner argued that because of minor
punishment of stoppage of one annual increment without cumulative effect
on 01.07.2015 the case of the petitioner for promotion was not considered by
the DPC held on 07.09.2015. He further argued that the eligibility for
promotion was to be seen on the basis of gradation list as on 01.01.2015 but
the DPC was held on 07.09.2015 and on the date of DPC, the effect of the
punishment was already over and therefore, his non-consideration for
promotion to the next cadre is illegal and arbitrary. On the said date, the
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petitioner was fully suitable for promotion. He further referred circular
Annexure P/18 dated 26.08.2015, which was issued in reference to the letter
of PHQ dated 25.08.2015 by which the records were sent to be placed before
the DPC. He produced a copy of the letter dated 25.08.2015 before this court
during the course of arguments, which is referred in Annexure P/18 by
which the record of all eligible officers within the zone of consideration for
promotion was called for placing the same before DPC. Thus, non-
consideration of the case of petitioner for promotion is attributed to the
negligence of the respondent in not placing the requisite information and
record before the DPC.
8. Learned counsel for the respondent/state supported the non-
consideration of the case of the petitioner for promotion and the promotion
of respondent no.3. In para no.6 and 7 of the reply, it has been stated that on
the date of DPC, the punishment of the petitioner was in existence. The
modified order of punishment of withholding of one annual increment
without cumulative effect was effective from 01.07.2014 to 30.06.2015,
therefore, his case has not been considered for promotion by the respondent.
9. The respondent no.3 has also filed the reply and supported the
said action.
10. The matter was heard on 17.02.2025 and after hearing learned
counsels, this Court asked the respondents to address on the point that
whether the suitability has to be seen as per the date as on 01st January of the
year or on the date of the DPC.
11. I have heard learned counsel for the parties.
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12. The sole question for consideration is that whether the suitability
has to be seen on the cut off date i.e. 01.01.2015 as the gradation list as on
the said date 01.01.2015 or suitability has to be seen on the date of DPC i.e.
07.09.2015.
13. The DPC record has been filed by the petitioner alongwith the
rejoinder as Annexure P/16. From the said minutes, it is manifest that the
incumbent working as Inspector/equivalent cadre as on 01.01.2015 were
considered for promotion to the post of Assistant Commandant (Deputy
Superintendent of Police). The said DPC was for promotion to the cadre of
Deputy Superintendent of Police/equivalent cadre from the post of Inspector
and equivalent care, which was held on 07.09.2015 and on the said date, the
petitioner was not under the shadow of punishment in as much as major
punishment of withholding of one annual increment with cumulative effect
imposed upon him by order dated 27.06.2014 was converted to that of minor
punishment without cumulative effect and the effect of minor punishment
had come to an end on 27.06.2015. The DPC was held on 07.09.2015.
14. Further, perusal of the DPC Annexure P/18, it is manifest that the
name of the petitioner was considered and he was not found fit on the ground
that his ACR for the year 2013-14 contains adverse remarks and the
petitioner was under the shadow of punishment. The same is contrary to the
record. The order of major punishment of withholding of one increment with
cumulative effect addressed by dated 27.06.2014 was already converted in
minor punishment of withholding one increment without cumulative effect
by order dated 31.10.2014. The adverse remark recorded in the ACR for the
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year 2013-14 were also expunged by order dated 30.03.2015. The DPC was
held on 07.09.2015 and on the said date, the adverse ACRs were not existing
and the petitioner was not under the shadow of punishment. As per the letter
dated 26.08.2015 Annexure P/15, which was issued in reference to the
communication sent by the PHQ to all the police unites dated 25.08.2015, it
was desired that the information regarding eligible candidates be sent prior to
holding of the DPC. It appears that the respondent did not make available the
modified order of major punishment into minor punishment and the order of
expunging the ACR of year 2013-14 before the DPC. For the said lapse, the
petitioner cannot be held responsible. The respondents were under obligation
to send all the requisite informations regarding all the incumbent who were
within the zone of consideration on the date of DPC.
15. This court do not find any merit in the contention of the learned
counsel for the respondent that the suitability has to be seen as on
01.01.2015, which was the cut off date for considering the candidates within
the zone of consideration on the basis of gradation list showing position of
the Inspectors as on 01.01.2015. There is distinction between the eligibility
and suitability. The "suitability" cannot be confused with eligibility". In the
'Major Law Laxicon' by P. Ramanatha Iyer about the word following view
is expressed-"the word 'suitable' does not require a definition because any
man of experience would know who is suitable. However, each case has to
be viewed in the context in which the word "suitability" or "suitable" is
used, the object of the enactment and the purpose sought to be achieved." A
constitution Bench of Apex Court in State of J & K vs. Trilokinath Khosa
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(1974) 1 SCC 19 and another Bench in State of Orissa vs. N.N. Swami
(1977) 2 SCC 508 opined that eligibility must not be confused with the
suitability of the candidate for appointment. These judgments were
considered by Calcutta High Court in 2013 SCC Online 22909 (All b. Ed.
Degree Holders Welfare Association vs. State of West Bengal ) . In (2009) 8
SCC 273 (Mahesh Chandra Gupta vs. Union of India) it was again held that
suitability of a recommendee and the consultation are not subject to judicial
review but the issue of lack of eligibility or an effective consultation can be
scrutinized. The Supreme Court in (2014) 11 SCC 547 (High Court of
Madras vs. R. Gandhi) while dealing with appointment on a constitutional
post opined that 'eligibility' is an objective factor. When 'eligibility' is put in
question, it could fall within the scope of judicial review. The aspect of
'suitability' stands excluded from the purview of judicial review. At the cost
of repetition, the Apex Court opined that 'eligibility' is a matter of fact
whereas 'suitability' is a matter of opinion.
16. In view of the aforesaid, the writ petition is allowed and the
respondents are directed to consider the case of the petitioner for promotion
on the post of Assistant Commandant by constituting a Review DPC taking
into consideration the expunged ACRs for the year 2013-14 and also the
modified order of minor punishment and and if the petitioner is found
suitable, the petitioner shall be promoted to the post of Assistant
Commandant with effect from 01.07.2014 from the date of promotion of
respondent no.3 with all consequential benefits. The respondents shall
constitute the review DPC within the period of 60 days from the date of
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filing of a copy of the order passed today.
With the aforesaid, the present petition stands allowed and disposed
of.
(VIJAY KUMAR SHUKLA)
JUDGE
Sourabh
