Madhya Pradesh High Court
Subhash Chandra Vyas vs The State Of M.P on 18 September, 2012
1
HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT AT
JABALPUR.
Writ Petition No.23904/2003
Subhash Chandra Vyas.
-Versus-
State of M.P. and others.
PRESENT : Hon'ble Shri Justice K.K. Trivedi.
Shri Hemant Shrivastava and Shri D.K. Mishra,
learned counsel for the petitioner.
Shri S.D. Tiwari, learned Govt. Advocate and Mr.
Yogesh Dhande, learned Deputy Govt. Advocate for
respondents.
ORDER
(18.9.2012) 1: The present petition was filed as Original Application before the M.P. Administrative Tribunal, Bhopal and has come before this Court after the closure of the Tribunal and has been registered as Writ Petition.
2: The main grievance of the petitioner is that despite his selection by the M.P. Public Service Commission for appointment on the post of Assistant Engineer, he has not been assigned seniority from the date of his selection by the M.P. Public Service Commission, on the post of Assistant Engineer (Civil) in Water Resources Department and has been granted the seniority from the date, his adhoc appointment was regularised. It is contended by the petitioner that such a 2 fixation of seniority is de hors the law laid down by the Apex Court. Further, it is contended that since there was a condition mentioned in the initial order of appointment that an adhoc appointee is required to appear in the selection to be held by the M.P. Public Service Commission on the first occasion and only after his selection, his appointment would be regularised and yet the petitioner has successfully passed the selection conducted by the M.P. Public Service Commission, but he has not been given the seniority from the initial date of appointment. After filing of the writ petition, the relief claimed in the writ petition was amended on account of the fact that the select list of the M.P. Public Service Commission in which the petitioner was also one of the selectee was challenged before this Court and the said select list was quashed, but in appeal to the Apex Court by some of the selectees, the order of this Court was set aside, matter was sent back for reconsideration after impleading all the selectees as party and the matter was decided by the Tribunal, which was constituted in between the period of litigation. Against the order of theTribunal, the writ petition was filed before this Court by the M.P. Public Service Commission and some of the selected candidates. The said writ petition was decided in the year 2006 and directions were given to give effect to the select list prepared by the M.P. Public Service Commission and to refix the seniority of those selected candidates by the M.P. Public Service Commission. In any case, if the petitioner was not to be given the seniority from the initial date of adhoc appointment, at least he was entitled to be granted the seniority from the date, the selection was made by the M.P. Public Service Commission, but this too was not done on account of which the petitioner has suffered the loss of promotion and other consequential benefits of such seniority. In view of the aforesaid, the petitioner claims the 3 similar benefits as were extended by the Division Bench of this Court.
3: Briefly the claim of the petitioner is that there were certain vacancies on the post of Assistant Engineer which were required to be filled in. The selection process was conducted by the department as looking to the emergent need of the Assistant Engineers, it was not possible to make selection through the M.P. Public Service Commission, which naturally would have taken much time. All this was done with the consent of the State department and thereafter the order of appointment was issued in respect of duly selected candidates, appointing them on adhoc basis on the post of Assistant Engineer in the pay scale of Rs.425-900. A condition was specifically mentioned that the adhoc appointment is made only till the selection is made by the M.P. Public Service Commission. All such adhoc appointees would be entitled to take part in the selection to be held by the M.P. Public Service Commission. Only after selection by the M.P. Public Service Commission, the order of appointment would be issued on regular basis. The name of the petitioner was mentioned at Serial No.16 of the order aforesaid. It is the case of the petitioner that the recruitment process was started by the M.P. Public Service Commission in the year 1980-1981. After completion of recruitment, a select list was prepared and published in which the petitioner was also included as a selected candidate, under the category of Scheduled Caste. However, the select list was challenged in a writ petition before this Court and the said writ petition was allowed by this court. The selectees have approached the Apex Court by filing a Civil Appeal No.2255/1985. The Apex Court has set aside the order of this Court on the ground that the persons who were necessary party, had not been impleaded as party before the Court and, accordingly, the matter was remanded to the 4 High Court. Since the Administrative Tribunals Act, 1985 came into force and a Tribunal was constituted on 2.8.1988 by the Notification, pursuance to the provisions of Section 29 of the aforesaid enactment, the said petition came on transfer to the Tribunal. In between pendency of this litigation, the State Government under the policy made for regularisation of adhoc appointment, regularised the services of the petitioner and passed the order in the year 1985. Again the name of the petitioner was mentioned at Serial No.255 of the said order dated 5.6.1985.
4: The matter relating to preparation of the select list was considered by the Tribunal and the same was disposed of by quashing the select list prepared by the M.P. Public Service Commission. The writ petition was filed before this Court by the M.P. Public Service Commission and some other persons and the said writ petitions were heard and decided by the Division Bench of this Court. By passing the specific order, this Court has held that the order passed by the Tribunal was not to be affirmed. After discussing various laws laid down, the Rules made by the State Government, the said writ petition was decided by this Court passed in the case of M.P. Public Service Commission Vs. Dashrath Singh and others [2006 (3) MPLJ 355]. Paragraph 8 of the order passed by this Court lays down certain directions which were to be complied with by the respondent-State. Since the benefit of this direction is claimed by the petitioner, the same is reproduced for proper appreciation :-
"8. Keeping in view the aforesaid analysis we proceed to enumerate our conclusions in seriatim :-
(i) The conclusion of the Tribunal upholding the selection undertaken by the PSC pursuant to the advertisement dated 30.10.1982 is given the stamp of approval.5
(ii) The opinion expressed by the Tribunal in quashing the select list by applying the criteria of minimum pass/qualifying marks in the written examination and the interview (Personality test) is held incorrect and unsound inasmuch as none of the persons who were selected by the PSC approached the Tribunal.
(iii) The direction of the Tribunal to prepare a fresh select list on the basis of aggregate marks secured by the candidates in the written examination and at the interview (personality test) is declared invalid and erroneous as that was not the lis before the Tribunal and accordingly all related directions in that regard, as a natural corollary, stand quashed.
(iv) The seniority of Dashrath, the applicant before the Tribunal, would be determined from the date of his regularisation I.e. 14.5.1987 as per Rule 12 of the 1986 Rules.
(v) As the direction given by the Tribunal to draw a different kind of merit list has been quashed by us, the select list prepared by the PSC on 10.7.1984 would prevail and seniority list of these candidates shall be drawn accordingly treating them as valid appointees.
(vi) Any candidate selected by the PSC by virtue of the select list prepared on 10.7.1984 cannot be deprived of the benefit because there was a further order regularising his services as the matter was subject to final order passed in the controversy in question.
(vii) The name of the petitioner in W.P.No.5842/2002 Vasudev Jotwani shall be incorporated in the gradation list as he was selected by the PSC. No opinion is expressed about his placement in the gradation list excepting directing that his name should be included."
5: On receipt of the notice of the petition, the respondents have filed a return. Only the technical objection is raised by the respondents and it has been said that the petitioner has come before the Tribunal much after the settlement of his seniority, claiming the benefit of the law laid down by the Apex Court in the year 1998, whereas, the order of regularisation was issued in the year 1985 with a clear stipulation that the 6 petitioner will get the benefit of regularisation from the date he is regularised by the State Government. It is contended that in view of this, even though the petitioner was one of the candidate selected by a Committee of the respondents, he would not be entitled to get the benefit of seniority for the period of adhoc appointment and the law laid down by the Apex Court as is being claimed by the petitioner would not be applicable to him. It is contended that since the fixation of seniority has already been done, for the first time, the representation was made by the petitioner on 9.1.1997 i.e. about ten years of fixation of his seniority, such a claim of the petitioner was barred by limitation and no relief whatsoever could be granted to the petitioner. Nothing more is stated by the respondents in their return. Except that certain persons who are going to be affected by grant of claim of seniority to the petitioner have not been impleaded as party in the present petition. The amendment has been made by the petitioner in the petition, two of the persons who are said to be the junior to the petitioner have been impleaded as party and the fact relating to passing of the order by the Division Bench of this Court in the case of Dashrath Singh (supra) have been pointed out and further relief is claimed from the date of appointment on the basis of the select list prepared by the M.P. Public Service Commission, in terms of the directions of the Division Bench of this Court though the relief with respect to the claim of seniority from the initial date of appointment on adhoc basis has not been foregone by the petitioner. No additional return whatsoever has been filed by the respondents to meet out any submission made by the petitioner in the petition by making amendment.
6: Heard learned counsel for the parties at length and minutely examined the record.
77: Undisputedly, the petitioner was put before a select Committee, for the purposes of making selection for appointment on adhoc basis. It was necessary on the part of the respondents to explain under what circumstances such a decision was taken, a departmental Selection Committee was made for the purposes of making selection of candidates for appointment on the post of Assistant Engineer (Civil). Undisputedly, at the relevant time, the Rules governing the field known as M.P. Irrigation (Engineering Services) Recruitment Rules, 1968 (hereinafter referred to as the Rules for short) were in vogue. The method of recruitment is prescribed under Rule 7 of the aforesaid Rules and sub-rule (4) of the aforesaid Rule 7 of the Rules, gives power to the State Government to adopt any other mode of recruitment. The said provision is reproduced for proper appreciation :-
"7(4). Notwithstanding anything contained in sub-rule (1), if in the opinion of the Government the exigencies of the service required, the Government may, after consulting the GAD adopted such methods of recruitment to the service other than those specified in the said sub-rule, as it may, by order issued in this behalf, prescribe."
8: Normally, the Assistant Engineers are not to be appointed by the Engineer in Chief even on adhoc basis. Such orders of appointment are to be issued only and only by the State Government which is the appointing authority of a Gazetted Officer, as has been specifically defined in the Rules. Under what circumstances, the process of selection was initiated departmentally, candidates were selected for their appointment by the Engineer in Chief as is reflected from the document Annx.A/3 have not been explained by the respondents in their return. The initial order of appointment issued in respect of petitioner on 13.9.1979, has not been explained by the respondents in their return. The order specifically says that the appointment order is being issued 8 after making of select list by the departmental Selection Committee strictly on the basis of its recommendation in anticipation of approval of the State Government. Unless the Engineer in Chief was authorised by the State Government to issue such an order of appointment of Assistant Engineer, he could not have issued such an order on 13.9.1979. This being so, the petitioner had already undergone the method of selection though not through the Public Service Commission, but by a departmental Selection Committee, most probably in terms of the directions issued by the State Government. Otherwise, the State would have taken the steps against such an officer for making illegal appointment instead of regularising the services of those Assistant Engineers. At the best, it could be said that the selection of the petitioner was made under a Scheme made by the State Government as prescribed in sub-rule (4) of Rule 7of the Rules and any condition could have been imposed that the said period would not be counted for the purposes of granting benefit of seniority. Only this much condition was mentioned that such an adhoc appointee will not claim his appointment on regular basis only on the strength of adhoc appointment.
9: The law in this respect specially in respect of selection of candidates, fixation of their seniority has been settled by the Apex Court in the case of The Direct Recruit Class-II Engineering Officers' Association and others Vs. State of Maharashtra and others (AIR 1990 SC 1607) and S.K. Chopra and others Vs. State of M.P. And others (1997 MPLSR 61). Keeping in view the aforesaid law laid down by the Apex Court, it has further been held by the Apex Court that in case a regularisation is done on a subsequent date on the basis of selection made by the M.P. Public Service Commission, the regularisation would relate back to the date of adhoc appointment and the period of adhoc appointment has to be 9 counted for the purposes of fixation of seniority. This appears to be so because an adhoc appointee is required to discharge same function as a direct recruit or a regular appointee is required to discharge. In view of this, if the petitioner was selected by the M.P. Public Service Commission subsequently, his selection would relate back to the date of his adhoc appointment as has been held in the case of S.K. Chopra (supra).
10 : Keeping the aforesaid situation in mind, now it has to be examined whether the petitioner was rightly selected by the M.P. Public Service Commission and his name was included in the select list or not. Undisputedly, the selection process was started by the M.P. Public Service Commission in the year 1980-1981 and the select list was published in the year 1984, which was called in question by Shri Dashrath Singh and some of the adhoc Assistant Engineers, who were not selected by the M.P. Public Service Commission for regular recruitment. This Court in the writ petition described herein above has quashed the said selection declared by the M.P. Public Service Commission on 10.7.1984 by an order dated 15.3.1985 passed in M.P.No.2094/1984. As stated herein above, the said matter travelled upto the Apex Court wherein the appeal was decided, the order of this Court was set aside and the matter was remitted back by this Court for hearing the matter afresh after impleading the selected candidate as party. The said matter was sent to the Tribunal as the same was constituted by that time where it was registered as T.A.No.1808/1988 and the same was decided against which the writ petition was filed before this Court and the Division Bench of this Court has set aside the impugned order of the Tribunal, and has decided the controversy as has been referred to herein above directing fixation of seniority of the persons who were selected candidates by the M.P. Public Service Commission. It is not in 10 dispute that the petitioner too was selected by the M.P. Public Service Commission. The natural corollary of such selection was that the seniority of the petitioner was to be fixed at least in terms of the directions of Division Bench of this Court and not from the date of his regularisation which was considered and directed subsequently during the pendency of the litigation with respect to the select list before this Court. As has been pointed out, the fact remains that since the select list issued by the M.P. Public Service Commission was quashed by this Court matter was pending before the Apex Court, a decision was taken by the State Government to regularise the services of those adhoc appointees and such an order was issued on 5.6.1985 regularising all those Assistant Engineers who were appointed on selection as adhoc Assistant Engineers. At any rate, the petitioner is not to be granted the seniority from the date of regularisation. There is no justification shown by the respondents as to why such a seniority as claimed by the petitioner is not available to him or as to why he cannot be granted the benefit of the period of adhoc appointment for the purposes of fixation of his seniority.
11 : In the case of S.K. Chopra (supra), the Apex Court has very minutely examined the provision of the Rules which are under consideration in the present writ petition. The preparation of the select list, action to be taken on the basis of such select list as prescribed in Rule 18 and 19 of the Rules were minutely examined and taken note of by the Apex Court in the aforesaid case. After examining the Scheme of the Rules, the Apex Court has categorically held and has reached to the conclusion that such a benefit of seniority from the date of adhoc appointment is to be granted by holding thus :-
"We are of the view that under the rules, the fact that a particular vacancy relates to the direct 11 recruit or the promotee is not relevant. The relevant rule itself assumes the appointment in Administrative Exigency. The appointments having been made in terms of the rules and continued thereafter the totality of the period has to be counted for fixation of seniority in the cadre of Assistant Engineers. The second contention of the learned counsel for the respondent that there was considerable delay in challenging the seniority list is only mentioned to be rejected.
We, therefore, allow the appeal and direct that seniority of the appellants be fixed in the cadre of Assistant Engineers by counting their total period of service from February 21, 1970. The consequent benefit of the said seniority shall be reflected in the seniority in the cadre of executive engineers for other consequential benefit, if any. The appeal is allowed. No costs."
If this was the situation, after rendering a law by the Apex Court, it was still required to be exhibited by the respondents that the petitioner was not one identically placed person and would not be entitled to the similar benefit as was extended by the Apex Court in the aforesaid case. As has been pointed out, nothing is said by the respondents except with respect to the plea of delay and laches, which has already been negatived by the Apex Court in such circumstances.
12 : Consequently, it has to be held that the petitioner was entitled to grant of seniority on the post of Assistant Engineer (Civil) from the date of his appointment on the said post on adhoc basis. The normal rule would not attract the grant of seniority from the date of regularisation in view of the fact that the petitioner was duly selected by the M.P. Public Service Commission on the first occasion when the process of recruitment was started after the adhoc appointment of petitioner as Assistant Engineer (Civil).
13 : In the result, the writ petition is allowed. The respondents are directed to fix the seniority of the petitioner 12 from the date of his adhoc appointment on the post of Assistant Engineer (Civil) and to grant him all the consequential benefits of fixation of such seniority. This order is being passed only because it is seen that the decision rendered in the case of S.K. Chopra (supra) was not brought to the notice of the Division Bench of this Court when the writ petition filed by the Dashrath Singh (supra), was decided and, therefore, it appears that the Division Bench has not granted relief to those selected candidates who were appointed on adhoc basis before their selection by the M.P. Public Service Commission.
14 : The writ petition is allowed and disposed of accordingly. There shall be no order as to costs.
(K.K.Trivedi) Judge 18/09/2012 13 HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT AT JABALPUR Writ Petition No.23904/2003 Subhash Chandra Vyas.
-Versus-
State of M.P. and others.
O R D E R
Post it for /9/2012
(K. K.Trivedi)
Judge
/09/2012