Madhya Pradesh High Court
Ramesh Chand Malviya vs The State Of Madhya Pradesh on 25 February, 2020
Equivalent citations: AIRONLINE 2020 MP 412
Author: Sanjay Dwivedi
Bench: Sanjay Dwivedi
1
W. P. Nos. 4347/ 2005 & 10276/ 2006
THE HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR
Writ Petition No. 4347/ 2005
Arvind Kumar Sharma
Versus
State of Madhya Pradesh & Others
&
Writ Petition No. 10276/ 2006
Ramesh Chand Malviya
Versus
State of Madhya Pradesh & Others
Date of Order 25.02.2020
Bench Constituted Single Bench
Order delivered by Hon'ble Shri Justice Sanjay
Dwivedi
Whether approved for
reporting
Name of counsels for For Petitioners: Shri D.K. Dixit,
parties Advocate.
For Respondents No.1 to 3/State:
Shri Vikalp Soni, Government Advocate.
For Respondents: Shri Devendra Gangrade, Advocate.
Law laid down Significant Para Nos.
Reserved on : 13.02.2020 Delivered on : 25.02.2020 2 W. P. Nos. 4347/ 2005 & 10276/ 2006 (O R D E R) In both the petitions, the issue involved is same; the petitioner in both the cases is claiming promotion on the basis of the fact that his juniors have been promoted. In W.P. No.4347/2005, the petitioner is claiming promotion over his juniors i.e. respondents No.4 to 6, whereas in W.P. No.10276/2006, the petitioner is claiming promotion over respondents No.4 to 7. Accordingly, both the petitions are being heard and decided concomitantly. For the purpose of clarity, facts of W.P. No.4347/2005 are being taken note of.
2. With consent of learned counsel for the parties, the matter is heard finally.
3. This petition under Article 226/227 of the Constitution of India is preferred by the petitioner claiming promotion to the post of Surveillance Worker or any other post provided under the Rules with all consequential benefits including seniority above respondents No.4 to 6. It is further claimed that respondents No.1 to 3 be directed to absorb the petitioner in a regular establishment from the date when 3 W. P. Nos. 4347/ 2005 & 10276/ 2006 respondents No.5 and 6 have been absorbed and promoted. The petitioner has also claimed arrears of salary w.e.f. the date of promotion i.e. 24.08.2004 when juniors to the petitioner have been promoted.
4. As per the facts of the case, the petitioner was initially appointed on 17.12.1990 in contingency establishment on the post of Ward Boy on the wages fixed by the Collector and his posting was at Community Health Centre, Babai, for 89 days. The petitioner has also claimed that vide order dated 07.07.1992 (Annexure- P/2), he has been regularized and absorbed on the post of Ward Boy against the vacant post and thereafter, he was absorbed in contingency establishment vide order dated 21.03.1991 (Annexure-P/3) and vide order dated 12.12.1994 (Annexure-P/4), the petitioner was granted regular pay-scale by the DPC (Departmental Promotion Committee) as he had completed three years of services.
5. As per the petitioner, a seniority list of Class- IV employees working in contingency establishment, was prepared showing their position as on 01.04.2004, in which the petitioner was placed at Sr.No.121, respondent 4 W. P. Nos. 4347/ 2005 & 10276/ 2006 No.4 was at Sr. No.124, respondent No.5 was at Sr.No.69 and respondent No.6 was at Sr. No.49. There were certain irregularities in the seniority list as respondent No.4 was appointed in the contingency services on 10.07.1990 whereas respondents No.5 and 6 were in regular service on 20.04.1991 and 01.10.1994, respectively.
6. Respondent No.4 was shown as regularly appointed in Class-IV services on 07.03.2003. It indicates that juniors to the petitioner have been placed above him and not only this, but vide order dated 29.12.2000, the post of respondent No.4 was changed and he was shown as a Field Worker and thereafter on 24.08.2004, he was shown as Superior Field Worker i.e. the promotional post and that has been done in view of the recommendations made by the DPC held on 18.08.2004. The respondents No.5 and 6 have also been promoted to the post of Lab Attendant, Dark Room Sahayak, that too in view of the recommendations of the DPC dated 18.08.2004.
7. The petitioner has claimed that he was senior to the private respondents, but his case was not considered for promotion and juniors have been 5 W. P. Nos. 4347/ 2005 & 10276/ 2006 promoted by the DPC held on 18.08.2004, and therefore, he claimed promotion w.e.f. the said date and also claimed the consequential benefits.
8. The respondents have filed their reply stating therein that the petitioner was never regularized and therefore, claiming promotion merely because private respondents have been promoted, is not proper. It is also stated by the respondents that there were certain irregularities found in the proceedings of DPC held on 18.08.2004, therefore, by issuing order dated 02.04.2005, the entire proceedings of DPC have been cancelled.
9. As per the respondents, the foundation of claiming promotion by the petitioner, since already dislodged, therefore, the petition is also liable to be dismissed as rendered infructuous.
10. A rejoinder has been filed by the petitioner pointing-out that the false stand has been taken by the respondents in their reply and has submitted that the orders of promotion of private respondents have not been cancelled and they are still enjoying the 6 W. P. Nos. 4347/ 2005 & 10276/ 2006 promotional post and it is also stated that in the reply submitted by the respondents, they have not specifically disclosed the fact as to why the claim of the petitioner has been ignored and private respondents though juniors to the petitioner have been given promotion without considering the claim of the petitioner.
11. Considering the facts of the matter and the arguments advanced by the parties, the basic contention of the respondents is that the proceedings of DPC held on 18.08.2004 which recommended promotion of private respondents, has been cancelled by the authority, however, several petitions have been filed by the persons who got benefited by the proceedings of the DPC dated 18.08.2004. The said petitions have been entertained and interim order has been granted and by virtue of the same, those persons including respondents No.4 to 6 are still working on the promotional post.
12. Other petitions in which the order of cancellation of the proceedings of DPC held on 18.08.2004 was challenged, are also listed and have been heard and the order cancelling the proceedings of DPC 7 W. P. Nos. 4347/ 2005 & 10276/ 2006 has been set-aside by this Court. Therefore, the basic stand of the respondents for not granting promotion to the petitioner, since does not exist, therefore, in the present circumstances, when the petitioner has been fighting for his promotion since long and his claim has been ignored without any sufficient reason, though the juniors to the petitioner have been promoted. In my opinion, he is also entitled to get the said benefit w.e.f. the date when his juniors have been promoted.
13. Learned counsel for the respondents submits that since DPC proceedings have been held illegal and cancelled, the petitioner cannot be granted any benefit of negative equity. He has placed reliance upon a decision reported in (2006) 3 SCC 330 parties being State of Uttar Pradesh & Others Vs. Rajkumar Sharma & Others.
14. But, in the present facts and circumstances of the case, when the order of cancellation of DPC proceedings has been held illegal and set-aside by this Court by the order passed today in W.P. No.4836/2005 and other connected petitions, at this stage, it is not 8 W. P. Nos. 4347/ 2005 & 10276/ 2006 proper to say that the petitioner is claiming negative equity and the law on which the respondents are relying upon, is applicable in the present case.
15. Considering the long history of this case and taking note of the law laid-down by the Supreme Court in the case of Hargovind Yadav Vs. Rewa Sidhi Gramin Bank & Others reported in 2006(2) MPJR 338, instead of directing the respondents to convene a DPC for considering the case of the petitioner for promotion, exercising the powers under Article 226 of the Constitution of India, the respondents are directed to promote the petitioner and provide him seniority over respondents No.4 to 6 from the date when the said private respondents have been promoted and the petitioner be also granted all consequential benefits.
16. It is further made clear that if ultimately, the private respondents No.4 to 6 and other similarly situated persons are removed from their promotional posts holding their promotion as illegal, the petitioner would also suffer the same consequence and his promotion would also be treated to be cancelled. 9
W. P. Nos. 4347/ 2005 & 10276/ 2006
17. Under such circumstances, this petition is allowed directing the respondents to grant promotion to the petitioner to the post, for which he is otherwise eligible to be promoted as per the Rules and grant him all consequential benefits including salary of promotional post.
18. With the aforesaid observations and directions, these petitions stand allowed.
Certified Copy as per rules.
No orders as to cost.
(SANJAY DWIVEDI) JUDGE Prachi Digitally signed by PRACHI PANDEY Date: 2020.02.26 16:40:28 +05'30'