Madhya Pradesh High Court
Nanhe Singh Maravi vs The State Of Madhya Pradesh on 19 June, 2017
1
HIGH COURT OF MADHYA PRADESH : JABALPUR
(Single Bench : Before Justice J.K. Maheshwari)
Writ Petition No. 3158/2013
Nanhe Singh Maravi
Vs.
State of M.P. and others
Writ Petition No. 10850/2013
Smt. Usha Kosta & others
Vs.
State of M.P. and others
Writ Petition No. 18999/2014
Yogesh Patidar & others
Vs.
State of M.P. and others
Writ Petition No. 10828/2014
Anil Ahirwar & others
Vs.
State of M.P. and others
Writ Petition No. 15738/2016
Sanjeev Vimochan Tiwari
Vs.
State of M.P. and others
**************
Shri L.C.Patne with Shri Abhay Pandey and Shri Sanjay
Kumar Agrawal, counsel for the petitioners.
Shri Girish Kekre, GA for the respondents/State.
**************
ORDER
(19.06.2017)
1. All these writ petitions have been filed under Article 226 of the Constitution of India seeking direction to command the respondents for issuance of appointment orders in favour of petitioners on the post of Registration Clerk in the regular scale of pay Rs.5200- 20200+GP 1900 with all consequential and monetary benefits including arrears of salary and to fix their seniority as Registration 2 clerk with effect from the date of their appointment on the post of Assistant Grade III.
2. The facts unfolded in the present cases are, the Govt. of Madhya Pradesh has issued an advertisement Annexure P-3 for the posts of Registration Clerks and Assistant Grade III. It is not in dispute, the post of Registration Clerk is specified in Schedule I of Madhya Pradesh Registration and Stamp Class III Non Ministerial Service Recruitment Rules, 2007 (hereinafter referred to as 'the Non Ministerial Rules) and the post of Assistant Grade III is specified in Schedule I of Madhya Pradesh Registration and Stamp Class III Ministerial Service Recruitment Rules, 2007 (hereinafter referred to as 'the Ministerial Rules). It is also not in dispute that the aforesaid posts were to be filled up through competitive exam conducted by M.P. Professional Examination Board, Bhopal (for short MPPEB). The Registration Department supplied the information to the MPPEB, that total 61 posts of Registration Clerk are vacant and to be filled up as per the procedure prescribed in Non Ministerial Rules, following the reservation roster. The descriptions of the vacancies category wise have been forwarded along with the authentication certificate of the Inspector General, Registration, M.P. specifying, the post of Registration Clerk which is of direct recruitment under the Non Ministerial Rules, further declaring that in the information, nothing has been concealed by the Department.
3. The petitioners have applied for the post of Registration Clerk and after following the process of selection, in the result petitioners found place in the selection list. Thereafter, vide communication 3 Annexure P-8 of the department options were sought from the petitioners to the post of Assistant Grade III in place of Registration Clerk on the pretext of decision of State Government with respect to amalgamation of the post of Registration Clerk and Assistant Grade III. Believing the said fact would be true, petitioners have furnished their consent for their appointment on the post of Assistant Grade III and accordingly by the orders of different dates i.e. 12,10.2012, 3.11.2012 and 26.12.2012, they were appointed as Assistant Grade III, in place of Registration Clerk. Petitioners have joined the duties and started functioning as Assistant Grade III. On coming to know that plea of amalgamation of the posts mentioned in the communication Annexure P-8 asking consent, was incorrect and till date amalgamation of both the posts by amendment in the rules or by the cabinet decision, have not been made, however, the representation Annexure P-12 dated 17.6.2013 was submitted by them, which remained unresponsed. Being aggrieved by the same, petitioners have knocked the door of this Court seeking appropriate directions.
4. The respondents have filed the brief reply in W.P. No. 3158/2013 inter alia contending, that petitioners were applied for both the posts i.e. Registration clerk as well Assistant Grade III. The posts of Assistant Grade III were 149 and Registration Clerk were 61, total 210. All the petitioners were given appointment as Assistant Grade III as per their consent, however, they may not raise any grievance due to not appointing them as Registration Clerk. It is said that there is no element of arbitrariness or discrimination, however 4 no cause of sue survive to the petitioners. It is also stated that it is not their case that person securing less marks have been appointed as Registration Clerk ignoring their preference. In case the State Government has taken categorical stand that selection 210 posts were made and the order of appointment for the post of Assistant Grade III has been made, the plea of having cause of action or any discriminatory action is not made out particularly the qualification and the responsibilities of both the posts are same. It is said both the posts are interchangeable and mostly petitioners are working in the office of Sub Registrar and discharging the duty of Registration Clerk, which may be ordered by administrative arrangement. However, the discretion exercised by the State Government cannot be said to be arbitrary, therefore, interference in this petition is not warranted.
5. It is to be noted here that this Court while hearing this petition on 29.8.2016 was of the view that para-wise reply ought to be filed more particularly to the allegations that the posts of Registration Clerk and Assistant Grade III have not yet amalgamated because both the posts are governed by different sets of recruitment rules. Whether the amendment in the respective rules have been made by the respondents. As per direction additional reply in the nature of complete consolidated reply has been filed attaching the copy of the letter (R-1) dated 25.4.2009 of the Additional Secretary, Commercial Tax Department addressed to the Inspector General, Registration indicative of amalgamation of the posts of Registration clerk and Assistant Grade III to which amendment in the rules is proposed. It 5 is stated that the department asked consent from the selected candidates to join on the post of Assistant Grade III in place of Registration clerk, which was consented by them. As per the consent, petitioners have submitted their joining and accordingly, they are working on the post of Assistant Grade III in place of Registration clerk. However, looking to their own consent, no direction can be issued in these petitions. .
6. Shri Girish Kekre, learned Government Advocate has made an attempt to explain the order passed by Gwailior Bench in W.P. No. 4217/2013 (Divya Goyal Vs. State of M.P. and another) decided on 31.10.2014, against which a writ appeal filed was dismissed. The SLP filed before Hon'ble the Supreme Court has also been dismissed. In the facts, it is stated that in the said judgment, petitioner had not submitted the consent after selection, however, petitioners cannot claim parity from her, after giving consent by their own in response to the Departmental correspondence. In such circumstances, petitioners do not have any cause to file this petition and to seek relief as prayed for.
7. It is relevant to note that this Court put forth the queries while directing to file detailed return, which is answered in Para-15 of the additional return contending, the posts of Registration Clerk and Assistant Grade III have not yet been amalgamated making amendment in their respective rules. It is admitted that the aforesaid two posts are governed by two separate set of rules and those rules have not yet been amended. It is said the appointment on the post of Registration Clerk is not banned and the appointment of Divya 6 Goyal, petitioner before Gwalior Bench is made in furtherance to the direction of the Court order, however, the petitioners cannot claim parity in the matter of appointment at par to Divya Goyal.
8. After having heard learned counsel for both the parties and on perusal of the undisputed facts of the case, the advertisement was issued by the respondent Department for the post of Assistant Grade III and the said post falls under Schedule I of the Ministerial Rules and also for the post of Registration Clerk, the said post falls under Schedule I of Non Ministerial Rules. As per the respondents, petitioners have submitted their application forms for both the posts, but nothing has been brought on record to indicate the same. On the contrary, the said fact do not find support from their own document (P-8) by which the consent was sought by the Department to appoint petitioners as Assistant Grade III. As per the language of the said letter, it is apparent that the names of the petitioners were found place in the merit list of Registration Clerk, however, on account of amalgamation of both the posts, the consent for appointment on the post of Assistant Grade III was sought from the petitioners. On the other hand, petitioners have specifically averred in the writ petition that they had applied for the post of Registration Clerk and this fact finds support from their selection letters specifying the post of Registration Clerk. In addition, averments of writ petition have not been specifically denied in the return. In view of the aforesaid, it can safely be concluded that petitioners have applied for the post of Registration Clerk and they were selected as Registration Clerk, to which intimations were given to them by the respondents. 7
9. It is not in dispute that recruitment on the post of Registration Clerk is governed by Non Ministerial Rules while the recruitment on the post of Assistant Grade III is governed by Ministerial Rules of the Department. The said fact finds support from the description of the Department furnished by them to MPPEB making request to conduct the examination for selection on theposts referred in letter. However, the MPPEB conducted the exams for the post of Registration Clerk as well Assistant Grade III and as per the options to the post and marks obtained by the candidates, they have been placed in the merit panel/selection list of registration clerk or of Assistant Grade III and accordingly intimations were furnished to the candidates. After completion of process of selection and on receiving the selection letters, the Department has issued the letter (P-8) dated 26.9.2012. On careful reading of the said letter, it is admitted by the Department that names of petitioners are in the selection list of Registration Clerk. But on account of communication of the Department regarding amalgamation of the said post and Assistant Grade III, consent was sought to accept appointment as Assistant Grade III in place of Registration Clerk. In this regard, it is to observe, when the recruitment on the post of Registration clerk is governed by Non Ministerial Rules and the recruitment on the post of Assistant Grade III governed by Ministerial Rules, decision of amalgamation of both posts merely on the basis of communication Annexure R-1 dated 25.4.2009 without amendment in the Rules is not permissible. It is not a case of the State Government that Cabinet has taken decision for amalgamation of both these posts. In absence thereto 8 communication of amalgamation vide Annexure-R-1 to the Inspector Genera, registration for both these posts do not have any recognition under the law. Any letter written by the Authority oblivious to the existing recruitment Rules and to ask consent from the selected candidates in furtherance to said letter to accept appointment of the posts for which they have not applied and selected is arbitrary and unlawful. In response to the said letter if any consent has been obtained from the petitioners, it cannot be recognized as valid and free consent and cannot be allowed to be acted upon to deny the legitimate claim of the petitioners.
10. Once selection is sought to be done by the State Government under the existing Recruitment Rules, the appointment must be made on the posts on which the candidates are selected. The State Government cannot offer the appointment to the selected candidate on the post to which he has not applied for and selected taking pretext on their consent for appointment as different post. It is not the case of the State Government that amendment in the existing Non Ministerial Rules or Ministerial Rules under which the post of Registration Clerk or Assistant Grade-III respectively falls have been made by the Government. On the date of advertisement and on last date of submitting the application form the post of Registration Clerk is in the first schedule of Non Ministerial Rules and the Post of Assistant Grade-III is in the first schedule of Ministerial Rules. Therefore, the appointments on both the posts shall be made under different set of Recruitment Rules. It is to observe here that amendment in the Rules if brought, it would apply prospectively not 9 retrospectively. In the said context, judgment of the Apex Court in the case of P. Mahendran and others Vs. State of Karnataka and others - AIR 1990 SC 405 is relevant wherein it has been held that every statutory rule are having prospective application unless it is expressly or by necessary implication made to have applicable with retrospective date. The Apex Court in the case of B.L.Gupta and another Vs. M.C.D. - 1998 SCC (L&S) 532 has reiterated the same principle holding that the statutory rules which were framed and the vacancies occurred under those Rules shall be filled up according to the said rules and not otherwise. The subsequent rules brought after the date of selection would apply prospectivly. Similar view has been consistently expressed by the Apex Court in the case of Madan Mohan Sharma & another Vs. State of Rajasthan & others - 2008 AIR SCW 1850 and Manoj Manu and another Vs. Union of India and others - (2013) 12 SCC 171.
11. In view of the foregoing discussion of fact and the legal position and looking to the facts of the present case wherein selections of the petitioners were made to the post of Registration Clerk under the Non Ministerial Rules and selection on the post of Assistant Grade III were made under the Ministerial Rules and both the Rules have not yet amended, however, merely on the basis of correspondence of the department regarding amalgamation of both these posts would not confer right to the State Government to appoint the petitioners on the post of Assistant Grade III, though they have applied and selected for the post of Registration Clerk. Such an act of the Government is oblivious of the existing Recruitment Rules. 10 However, the consent taken by the Government from the petitioners is not binding on them. Therefore, plea taken by the Government in their return in this regard is hereby repelled. In the sequel of the above discussion, a prudent man can understand that any action of the Government being royal employer is not justifiable, legal and rational and contrary to Rules. On asking consent by Government, if furnished by the petitioners, such consent can safely be held to be based on incorrect factual and illegal stand and having no sanctity under the law. Therefore, if the selection of petitioners made on the post of Registration Clerk as per Non Ministerial Rules and their names found place in the said selection list, they must be appointed as Registration Clerk and not on the post of Assistant Grade III, which governs by the different set of Rules merely relying upon the consent.
12. At this stage, the judgment of Divya Goyal (supra) is also relevant to be referred. In the case of Divya Goyal, she had applied for the post of Registration Clerk, her candidature was cancelled because she do not possess the qualification of typing test. On account of rejection of candidature, she approached before Gwalior Bench of this Court wherein the Court referring the rules found that passing of typing examination is not the eligibility prescribed for the post of Registration Clerk, however, held that order of rejection of candidature was invalid and on having her selection in the selection list of Registration Clerk under the same selection process, she was appointed as Registration Clerk. The order of Gwalior Bench of this Court has been affirmed by the Division Bench and in the S.L.P. filed 11 before the Apex Court by the State Government. Thereafter, the respondents without asking any consent offered the appointment to her on the post of Registration Clerk and accordingly, she has been appointed and working on the said post.
13. In view of the foregoing facts and discussion made hereinabove, it is apparent that consent sought by the respondents from the petitioners was contrary to the Non Ministerial rules and void ab initio. However, the ratio of Divya Goyal (supra) is relevant to the fact situation of the case. Therefore, in my considered opinion, the stand taken by the Government is fallacious and contrary to the provisions of the Rules, which cannot be allowed to stand.
14. Accordingly, all the writ petitions succeed and are hereby allowed. It is, however, directed that the appointment of the petitioners be accepted on the post of Registration Clerk as per their selection list modifying their orders of appointment as Assistant Grade III from the date of their initial appointment and they be allowed to continue to work on the post of Registration Clerk i.e. the post on which they were selected and appointed by following due process of law. All consequential benefits accrued on account of said modification of the appointment be also given to petitioners within a period of three months from the date of communication of this order. In the facts and circumstances of the case, parties are directed to bear their own costs.
(J.K.Maheshwari) Judge PB