Madhya Pradesh High Court
Satyendra Tripathi vs General Administration Department on 19 March, 2018
1
HIGH COURT OF MADHYA PRADESH: BENCH AT
INDORE
W.P.No.4165/2017
(Satyendra Tripathi Vs. State of M.P. & Others)
19.03.2018
Ms. Meena Chapekar, learned counsel for the petitioner.
Shri Kamal Airen, learned counsel for the respondent
Nos.2 and 3.
The petitioner has filed the present petition seeking direction to the respondent to appoint him on the post of Sub- Engineer in compliance of circular dated 16.11.1999.
The petitioner was initially appointed as daily wager in the Madhya Pradesh Agricultural Marketing Board. Thereafter, vide order dated 13.05.2008, the petitioner was regularized on the post of Assistant Draftsman and posted at Regional Office of the Mandi Board.
After completing 5 years of service, the petitioner submitted a representation to the respondent that he be appointed to the post of Sub-Engineer in light of the circular dated 16.11.1999 because he is possessing the minimum educational qualification for the said post. Thereafter, he submitted another representation dated 03.09.2013 to the respondent No.3. Vide letter dated 09.09.2013 the respondent No.3 has forwarded his representation to the respondent No.2 for taking appropriate action. Later on, the petitioner came to know that certain posts of Sub-Engineer (Civil) have fallen vacant, therefore, he submitted another representation on 26.11.2016. Vide letter dated 26.11.2016, the respondent No.4 send a recommendation in favour of the petitioner to the 2 respondent No.2.
The Professional Examination Board, Bhopal published an advertisement inviting applications of examination for certain posts including posts of Sub-Engineer (Civil). As per the advertisement, 33 posts of Sub-Engineer are lying vacant in the respondent/Board.
Being aggrieved by the issuance of the said advertisement, the petitioner has filed the present petition on the ground that he is working since last 18 years and as per the circular dated 16.11.1999, the 5% posts are liable to be filled by Draftsmen/Assistant Draftsmen and the respondent cannot fill entire posts by way of direct recruitment. By way of additional document, the petitioner has filed gradation list of Assistant Draftsman as on 01.04.2011 in which his name is at Serial No.7. According to the petitioner one candidate at Serial No.1 has retired and the candidate from Serial No.2 to 4 are ineligible candidates for appointment to the post of Sub- Engineer for want of Diploma in the Civil Engineering. The candidate at Serial No.5 is Virendra Kumar Sharma has also filed petition i.e. W.P.No.5806/2015 before this Court seeking same the relief of appointment on the post of Sub-Engineer, therefore, 5 posts can be filled from the petitioner as well as Virendra Kumar Sharma.
After notice, the respondents have filed return by submitting that the circular dated 16.11.1999 is not applicable to the Mandi Board. Vide order dated 30.03.2009 and 24.10.2013, the representation of the petitioner has already been rejected. The petitioner has already been regularized vide order dated 13.05.2008 as Assistant Draftsman, therefore, he is 3 not entitled for regularization on a higher post for want of provision in the Rules.
I have heard Ms. Meena Chapekar, learned counsel for the petitioner and Shri Kamal Airen, learned counsel on behalf of respondent.
The petitioner was initially appointed as Daily Rated Employee. Thereafter, vide order dated 13.05.2008, he was regularized as Assistant Draftsman in the pay scale of Rs.4000-100-6000/-. The petitioner has accepted the said order and started working as Assistant Draftsman.
The State Government issued a circular dated 16.11.1999 directing the Public Works Department/ Public Health Engineering Department, Water Resources Department/Panchayat and Rural Development Department to reserve 5% quota for appointment to the post of Sub-Engineer from the inservice Diploma/Degree Holder, Tracer and Assistant Draftsman. The said circular has not been made applicable for Mandi Board. Even otherwise, as per the circular, 5 % posts were directed to be reserved and filled by way of direct appointment. The services of the Officers and Employees working in the Mandi Board governed under the Rajya Mandi Board Sewa Viniyam, 1998.
Since, the services of the petitioner has been regularized, therefore, his services are also governed under the aforesaid Rules. As per Rule 6, there are 4 modes of appointment; (i) Direct appointment;(ii) Promotion as per schedule 7 & 8 (iii) Deputation, reappointment direct appointment and merger from the Government Department/Corporations and (iv) By way of Compassionate Appointment. Rule 6(3) provides for 4 appointment by way of regularization. Rule 14 provides appointment by promotion as given under Schedule 7 & 8.
The post of Sub-Engineer (Civil) is included in the Schedule I appended to the Rules which is an independent cadre. The post of Sub-Engineer is also included in Schedule 6 to be filled by way of Direct Recruitment, therefore, the post of Sub-Engineer is to be filled by way of direct appointment. The post of Sub-Engineer has not been kept in the Schedule 7 & 8 in which all the posts are liable to be filled by way of promotion. The Assistant Draftsmen are liable to be promoted to the post of Draftsmen and Draftsmen are liable to be promoted to the post of Assistant Engineer and post of Draftsman and Sub-Engineer are equivalent posts.
At present, the petitioner is working as Assistant Draftsman and there is no channel of promotion from post of Assistant Draftsman to Sub-Engineer. As held above the post of Sub-Engineer is post of direct recruitment. In the Rajya Mandi Board Sewa Viniyam, 1998, there is no provision for reservation of 5% posts for selection from the Diploma or degree holder for Tracer and Draftsman.
Hence, no direction can be given to the respondent for appointment of the petitioner to the post of Sub-Engineer. Even otherwise, the writ petition filed by Virendra Kumar Sharma i.e. W.P.No.5806/2015 has also been dismissed by this Court on 20.09.2017.
Relevant portion of the order dated 20.09.2017, passed in W.P.No.5806/2015 is reproduced below:
"This Court has carefully gone through the writ petition as well as reply filed by the respondents. The 5 petitioner is undoubtedly an Assistant Draftsman. He was appointed as an Assistant Draftsman and he was regularized by the respondents by an order dated 13/05/2008 as Assistant Draftsman. Merely because he is holding higher qualifications, it does not mean that he is entitled for regularization on the post of Draftsman / Sub Engineer. The order passed by the respondent is on record and the same reflects that the petitioner has been regularized on the post on which he was appointed as a "Daily Wager".
The circular issued by the State Government also provides for regularization on the post on which an employee is appointed as a "Daily Wager". No statutory provision of law has been brought to the notice of this Court entitling the petitioner to be regularized on the higher post.
In the considered opinion of this Court, the order passed by the respondents do not warrant any interference. So far as the petitioner's claim for the post of Draftsman / Sub Engineer is concerned by way of promotion, there statutory recruitment rules and in case posts are available, the respondents shall hold a DPC for considering the cases of all the eligible employees for promotion keeping in view the statutory recruitment rules in accordance with law.
As the respondents are proceeding ahead with the direct recruitment for the post of Draftsman / Sub Engineer, the respondents are directed to hold a DPC simultaneously for promotion keeping in view the provisions as contained under the Recruitment Rules for the purposes of promotion. The respondents shall take into account the criteria prescribed under the Recruitment Rules for promotion while considering the case of the petitioner as well as other identically placed employees."
That Virendra Kumar Sharma has also filed writ appeal (W.A.NO.116/2017) filed against the order dated 20.09.2017 but the same has also been dismissed as withdrawn.
In view of the above, petition stands dismissed.
(VIVEK RUSIA)
jasleen Judge
Digitally signed by
Jasleen Singh Saluja
Date: 2018.03.21
18:35:16 +05'30'