Madhya Pradesh High Court
Mukesh Kumar Gupta vs M.P. Madhya Keshtera Vidhut Vitaran ... on 15 March, 2019
Bench: Sanjay Yadav, Vivek Agarwal
1
WA.282.2019
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
DIVISION BENCH:
HON'BLE SHRI JUSTICE SANJAY YADAV
&
HON'BLE SHRI JUSTICE VIVEK AGARWAL
WRIT APPEAL NO.282 OF 2019
Mukesh Kumar Gupta
Vs.
Madhya Pradesh Madhya Kshetra Vidyut Vitaran Co. Ltd & Ors.
*********************
Shri B.P. Singh, learned counsel for the appellant.
Shri Vivek Jain, learned counsel for the respondents.
*********************
Whether approved for reporting : Yes/No
JUDGMENT
(15/03/2019) Per Justice Sanjay Yadav:
Challenge is to an order dated 16.11.2018 passed in WP.5980/2013; whereby, the claim of the appellant to set aside the order dated 06.07.2013 declining consideration for promotion/appointment to the post of Junior Engineer and for direction to consider him for promotion has been negatived.2
WA.282.2019 (2) The Writ Petition was decided on 03.02.2014 in the following terms:
"6. In the considered opinion of this court, once the punishment order was set-aside in appeal, the legal effect of appellate order would be as if the punishment never existed. In other words, the punishment order become a nullity in the eyes of law on its setting aside by the appellate order. The net result is that on the date of consideration of the case, there existed no punishment in the eyes of law. In that event, the respondents are obliged to convene a review DPC to consider the case of the petitioner for promotion. The reasons assigned for rejecting the representation are irrelevant to the issue. Even if petitioner is promoted on a subsequent date, that will not take away his right of consideration on a prior due date, when other persons were considered and his case was rejected by order dated 20.10.2012. The non-availability of a post at present also cannot be a ground for non- considering the case of the petitioner for promotion.
7. Resultantly, the impugned order dated 06.07.2013 (Annexure P-1) is set-aside. The respondents are directed to convene review selection committee/DPC when it was originally convened and petitioner's case was not considered. The petitioner's case be considered by applying same criteria which was applicable at that point of time. If upon consideration, petitioner is found suitable, he be promoted at par with other persons within the same date. The respondents shall also pass appropriate orders regarding the monetary benefits. The aforesaid exercise be completed within 90 days from the date of production of certified copy this order."
(3) The said order was, however, recalled by order dated 25.08.2014 passed in Review Petition 228/2014 holding that:
"Heard.
This review petition is directed against the order dated 3.2.2014 passed in WP No. 5980/2013. Shri Vivek Jain submits that the appointment on the post of Junior Engineer was by way of direct recruitment of departmental candidates. He submits that because of improper assistance, this Court 3 WA.282.2019 assumed that it is a matter of promotion on the post of Junior Engineer (Trainee). He submits that it is not a case of promotion and, therefore, the principle applicable for review DPC will not be applicable. He raised certain other points also.
Shri Alok Sharma, learned counsel for the respondent- employee fairly admits that the induction on the post of Junior Engineer (Trainee) was not by way of promotion. It was direct recruitment of departmental candidates.
In view of this stand of the parties, it is clear that an error apparent on the face of the record has crept in, whereby this Court treated the induction on the said post by way of promotion. Thus, I deem it proper to recall the order dated 3.2.2014 and place the writ petition for hearing afresh.
Resultantly, the order dated 3.2.2014 passed in WP No.5980/2013 is recalled. Review Petition is allowed. Writ Petition is restored to its original number.
A typed copy of the order be kept in the record of Writ Petition No.5980/2013."
Whereagainst, WA.271/2014 was preferred; wherein, the Division Bench taking note of the fact that the case was not of promotion but appointment to higher post amongst the departmental candidates and that the claim of the petitioner that he was not considered because of the currency of his punishment which was set aside, revived the writ petition observing that "The appellant is at liberty to convince the writ Court that he was eligible to be considered for appointment because his appeal was allowed."
(4) On remand, impugned order came to be passed. (5) Relevant facts going to the root of controversy may be noted 4 WA.282.2019 first. The petitioner was initially appointed as Testing Assistant Grade II in the erstwhile Madhya Pradesh Electricity Board by order dated 22.08.1995. While in service, in 2003, petitioner acquired Diploma in Electrical Engineering. After bifurcation of MPEB and creation of new Company; petitioner's service stood transferred to Madhya Pradesh Madhya Kshetra Vidyut Vitaran Company Limited. That prior to his allocation to new company, the petitioner after acquiring the Diploma in Electrical Engineering appeared in written test and interview for the post of Junior Engineer (T&D) as a departmental candidate in pursuance to the circular dated 04.04.2008. The examination was held on 27.07.2008 wherein the appellant was declared successful. However, after interview final selection list was not declared. That after bifurcation another circular was issued on 01/08/2012 for consideration of appointment on the post of Junior Engineer (D/C) on probation from the departmental candidates permanently absorbed, working on lower post than Junior Engineer and have acquired Diploma in Engineering (E/M/C/Radio & Electronics).
(6) Vide said circular, it was also informed that the opportunities to the departmental candidates shall only be available year on year basis subject to availability of vacancies in their respective wings as specified in the Resolution No.9 with 52 nd meeting of the Board of Directors held on 06th July, 2012". The last date for receiving 5 WA.282.2019 application was 21.08.2012.
(7) The eligibility criteria laid down was:
MADHYA PRADESH MADHYA KSHETRA VIDYUT VITARAN COMPANY LIMITED (GOVERNMENT OF M.P. UNDERTAKING) NISHTHA PARISAR, GOVINDPURA, BHOPAL (MP) 462023 No.MD/MK/01/Estt/4900 Bhopal, Dated: 01/08/2012 CIRCULAR Sub: Appointment on the post of Assistant Manager- Junior Engineer (Distribution)/(civil) on probation on acquiring Diploma in Engineering (Electrical)/Mechanical)/(Civil)/(Electronics)- Year 2012-13. Vide order No.MD/MK/01/Estt/4874 dtd. 1.8.2012, MP MKVVCL (henceforth referred to as Company), has decided that departmental candidates of erstwhile Madhya Pradesh State Electricity Board who have been permanently transferred and absorbed in M.P.M.K.V.V.Co. Ltd. and who are working on a post lower that Junior Engineers and have acquired Diploma in Engineering (Electrical)/(Mechanical)/(Civil)/(Radio & Electronics) branches during service may be considered for appointment on the post of Junior Engineer (Distribution)/ (Civil) on probation. Accordingly, applications are invited from eligible candidates as follows:
Eligibility Criteria:
(i) Candidate must have obtained Diploma in Engineering with atleast 50% marks from M.P. Govt. recognized Institutes through part time evening classes or full time Diploma in Engineering from any AICTE recognized Institute during or before Academic Session 2011-12 with prior permission of Company/ erstwhile M.P. State Electricity Board. Diploma through any other means or correspondence course will not be considered for this purpose.
(ii) Candidate must have put in atleast 4 years service on regular establishment in respective original cadres.
(iii) Candidate's performance during the last 4 years must be minimum 6 grade points (Two years of Grading 'B' and 2 years of Grading 'C' i.e. 2B + 2C) Vacancy:
Such opportunities to departmental candidates shall only be available year on year basis subject to availability of vacancies in their respective wings as specified in the resolution No.9 in the 52nd meeting of the Board of Directors held on 06th July, 2012 and accordingly Circular No.MD/MK/HR/4211 dtd. 12.7.2012 issued for this purpose (Annexure-1) 6 WA.282.2019 How to apply:
Last date for receipt of above application in MD office for the year 2012- 13 is fixed as 21.8.2012. Candidates are required to submit their application as per enclosed Annexure-2, to Controlling Officer and one advance copy to the GM (HR) O/o MD MP MKVVCL, Bhopal so as to reach this office on or before 21.8.2012. Applications received after 21.8.2012 shall not be considered for the year 2012-13. (Annexure-2) Earlier Circulars issued for the matter whatsoever by the erstwhile MPSEB including Circular No.01-05/1/146 dtd. 9.11.1989 and Circular No.CMD/MK/01/Estt/165-166 dtd.31.5.2003 stand cancelled and superseded by order No. MD/MK/01/Estt/4874 dtd.1.8.2012, please note.
Encl: Annexure 1,2 (Dr. Kedar Singh) CHIEF GENERAL MANAGER (HR & A) (8) The appellant applied for the post but was found unfit. The reason, as borne out from the communication dated 02/01/2013 was that, he was undergoing punishment of stoppage of one increment inflicted by order dated 10/01/2012. The said punishment was later on set aside by order in appeal on 20/10/2012. The order in appeal led the petitioner to file representation for consideration which was turned down vide communication dated 02.01.2013. On its challenge in WP.2446/2013, the petitioner by order dated 06.05.2013 was granted liberty to file fresh representation and direction to respondents to decide the same. The representation preferred by the petitioner was decided on 06.07.2013.
(9) The claim for reconsideration was turned down on two grounds; firstly, that on the date of consideration the petitioner was undergoing punishment. Secondly, by order dated 31.10.2012 the petitioner was 7 WA.282.2019 granted promotion on the post of Senior Testing Assistant. (10) On its challenge in WP.5980/2013, the same has been negatived by impugned order. Learned Single Judge declined to grant relief holding that:
"However, the present case is not of a promotion but it is a case of appointment. Therefore, if a person is not eligible on the last date of submission of application, then he cannot claim that since he was exonerated and the order of punishment was set aside at a later stage, therefore, the selection process for appointment should be done de novo because it should be presumed that there was no disqualification against the petitioner even on the date of submission of application for appointment. Under these circumstances, this Court is of the view that since the last date for submission of application for appointment on the post of Junior Engineer (Training) was 21.8.2012 and undisputedly there was an order of punishment against the petitioner and he was disqualified for appearing in the departmental examination for appointment on the post of Junior Engineer (Training) and merely because the punishment order was subsequently set aside would not entitle him for his consideration for appointment by holding the process of appointment de novo. Accordingly, this Court is of the considered opinion that the respondent No.2 did not commit any mistake in rejecting the representation."
(11) After hearing learned counsel for the parties, the question which crops up for consideration is whether the setting aside of punishment order would create a right in the petitioner for consideration of appointment.
(12) In given facts of the present case, evidently, on the date of consideration for appointment the petitioner was ineligible because of the currency of punishment of imposition of stoppage of one 8 WA.282.2019 increment by order dated 10/01/2012. The said punishment order was subsequently set aside in appeal. As a result whereof, it can not be said that there was no ineligibility enured by the petitioner on the date when he was considered for appointment.
(13) The proposition when tested on the anvil of disciplinary action/punishment, it sounds logical. Because setting aside of the order of punishment relates back to the date of issuance of charge- sheet/show-cause.
(14) But whether the said principle of relation back would apply in case of appointment is the question for consideration. (15) Trite it is that appointment is not a right though consideration is. In this context, reference can be had of the decisions in "The State of Haryana Vs. Subash Chander Marwaha and others [(1974) 3 SCC 220]", "Jatinder Kumar and others Vs. State of Punjab and Others [(1985) 1 SCC 122]", "Miss Neelima Shangla, Ph.D. Candidate Vs. State of Haryana and Others [(1986) 4 SCC 268]", "Shankarsan Dash Vs. Union of India [(1991) 3 SCC 47]", "Parveen Jindal and others Vs. State of Haryana and others [1993 Supp (4) SCC 70]" and "I.J. Divakar and others Vs. Government of Andhra Pradesh and another [AIR 1982 SC 1555]".
(16) If the appointment is not a right and if on the date of consideration an incumbent is found ineligible for such appointment, a 9 WA.282.2019 subsequent happening, in our considered opinion, will not revive a right of such incumbent to seek a direction for appointment on the said post. In "Council of Homeopathic System of Medicine, Punjab and others Vs. Suchintan and others [1993 (2) SLR 567], though in a different context, it has been observed by their Lordships:
"32. This Regulation deals with results and readmission to an examination. A close reading of the above brings out the following:
In clause (iv) as to what is to happen in the event of a candidate failing to pass in a subject or subjects is spoken to. He may be admitted to the supplementary examination. Such a supplementary examination is to ordinarily take place after six weeks from the publication of result of First Examination.
33. Supposing he passes in that subject or subjects in the supplementary examination he is declared to have passed at the examination as a whole. This should obviously be so;
because once he completes all the subjects, he has to necessarily be declared to have passed. Merely on this language, "declared to have passed at the examination as a whole", we are unable to understand as to how the "doctrine of relation back" could ever be invoked. The invocation of such a doctrine leads to strange results. When a candidate completes the subjects only in the supplementary examination, then alone, he passes the examination. It is that pass which is declared. If the "doctrine of relation back"
is applied, it would have the effect of deeming to have passed in the annual examination, held at the end of 12 months, which on the face of it is untrue."
(17) In the case at hand, as borne out from the facts on record that on the date of consideration, the appellant was not found suitable for appointment to the post of Junior Engineer as he was undergoing punishment. As the post which was to be filled was not a promotional post but was by way of an appointment, no right revived in favour of 10 WA.282.2019 the appellant for consideration for appointment to said post, later on with the setting aside of the order of punishment. (18) The impugned order dated 06.07.2013 passed by the authority concerned and the order dated 16.11.2018 passed in WP.5980/2013 when tested on the anvil of above analysis cannot be faulted with. Consequently, appeal fails and is dismissed. No cost.
(Sanjay Yadav) (Vivek Agarwal)
Judge Judge
pd
PAWAN
DHARKAR
2019.03.19
11:23:49
-07'00'