Madhya Pradesh High Court
Ramakant Shukla vs The State Of Madhya Pradesh on 28 June, 2018
HIGH COURT OF MADHYA PRADESH : JABALPUR
SINGLE BENCH : JUSTICE MS.VANDANA KASREKAR
Writ Petition No.5722/2015
Ramakant Shukla
Vs.
State of M.P. and Others
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Shri Rahul Diwaker, learned counsel for the petitioner.
Smt. Nirmala Nayak, learned Government Advocate for the
respondents/State No.1, 2 and 4.
Shri Sheetal Tiwari, learned counsel for respondent no.3.
Shri V.K. Shukla, learned counsel for respondents No.5 to
7.
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ORDER
(28/06/2018) The petitioner has filed the present petition challenging the order dated 15.04.2015 passed by respondent no.3.
2. The petitioner was initially appointed on the post of Shiksha Karmi Grade-III under the Shiksha Karmi (Recruitment and Conditions of Service) Rules, 1998. In the year 2008, the State Government enacted the Madhya Pradesh Nagreeya Nikay Adhyapak Samvarg (Employment and Conditions of Services) Rules, 2008 and the old Rules of 1998 were repealed, these Rules are referred as Rules of 2008. As per the Rules of 2008, the services of the Shiksha Karmis and the 2 W.P. No.5722/2015 Samvida Shala Shikshaks appointed by the Nagreeya Nikay i.e. either by the Municipal Corporations or the Municipalities shall be merged on the post of Varisht Adhyapak, Adhyapak and Sahayak Adhyapak as the case may be in terms of Rule 5 of the Rules of 2008. In compliance of the Rules of 2008, the services of the petitioner were merged on the post of Sahayak Adhyapak and thereafter in the year 2011, the petitioner was promoted to the post of Adhyapak Mathematics. Since, then the petitioner is working on the said post.
3. The State Government by exercising the powers given under Section 95 read with Section 70 of the Madhya Pradesh Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 has framed the Rules known as Madhya Pradesh Panchayat Adhyapak Samvarg (Employment and Conditions of Services) Rules, 2008. Under the said Rules, the services of the Shiksha Karmis appointed by the Jila Panchayat or Janpad Panchayat under the Madhya Pradesh Shiksha Karmi (recruitment and conditions of service) Rules, 1997 and the Samvida Shala Shikshak appointed by the Jila Panchayat or Janpad Panchayat under the Madhya Pradesh Panchayat 3 W.P. No.5722/2015 Samvida Shala Shikshak (Condition of Employment and Contract) Rules, 2005 have been merged on the post of Adhyapak, Varisht Adhyapak and Sahayak Adhyapak. The petitioner had learnt that the private respondents and various other people who were appointed as Shiksha Karmis and Samvida Shala Shikshak under provisions of the Rules framed under the Panchayat Raj Adhiniyam have been merged in the Municipal Corporation Singrauli.
4. The appointment order of respondents no.5 was issued by the Chief Executive Officer Janpad Panchayat Chitrangi, District Sidhi. The appointment was only for a particular school and his job shall not be transferable and the services shall be governed by the Madhya Pradesh Panchayat Samvida Shala Shikshak (Condition of Employment and Contract) Rules, 2005 and after coming into the force of the rules, the services of respondent no.5 and 6 have been merged on the post of Adhyapak. The services of the Adhyapak Samvarg who were appointed by the Nagreeya Nikay i.e. the Municipal Corporations and the Municipalities are governed by the Rules of 2008. The services of the Adhyapak Samvarg appointed by the Jila or Janpad Panchayat under the 4 W.P. No.5722/2015 Panchayat Raj Adhiniyam. The petitioner has applied under the Right to Information Act and the petitioner has obtained the first appointment order of respondent no.5 which is dated 26.11.2006 issued by the Chief Executive Officer Janpad Panchayat Chitrangi, District Sidhi (now District Singrauli).
5. After perusal of the order of respondent no.5 reveals that the appointment order was only for a particular school and his job shall not be transferable and the appointment order reveals that the services of the petitioner shall be governed by the Madhya Pradesh Panchayat Samvida Shala Shikshak (Condition of Employment and Contract) Rules, 2005 which means that the respondent no.5 has been appointed under the Panchayat Raj Adhiniyam. Thereafter, the services of respondents no.5 and 6 have been merged on the post of Adhyapak in the respondent no.3. Corporation. On 23.12.2014 seniority list was published by respondent no.3 in which the name of the petitioner was mentioned below in the name of respondents no. 5 to 7 in the list of Adhyapak of Mathematics and Science subject. Respondent no.3 thereafter issued an order dated 15.04.2015 along with the final list of the candidates whose cases shall be considered for promotion 5 W.P. No.5722/2015 and directed the candidates to appear for counseling on 22.04.2015 so that the final order can be passed. The petitioner has came to know that the 'No Objection Certificate' has been issued by respondent no.3 for transfer or merger of respondents no.5 to 7. Being aggrieved by this, the petitioner has filed the present.
6. Learned counsel for the petitioner argues that the order dated 06.06.2011 by which the services of respondents no.5 and 6 have been transferred from the Government Higher Secondary School, Chitrangi which falls under the jurisdiction and control of the Janpad Panchayat Chitrangi District Singrauli to the Government Higher Secondary School Panjraha, District Singrauli which falls under the jurisdiction and control of the Municipal Corporation Singrauli is illegal and arbitrary. He further submits that as per the Rules, the services of the Shiksha Karmi are working in the Janpad Panchayat cannot be transfer/merge into the Municipal Corporation. He further submits that the petitioner has submitted number of representations to the respondents, however no action has been taken in the matter. In the year 2014, when the respondents have published the seniority list 6 W.P. No.5722/2015 in which the name of the petitioner has been shown below the name of respondents no.5 to 7. He submitted again representation, however, no response has been given by the respondents. He further argues that the respondents have convened a DPC on 07.04.2014 for considering the promotions of Adhyapak to Varisht Adhyapak and the Sahayak Adhyapak to Adhyapaks for the Municipal Corporation on the basis of the seniority list as on 01.04.2014 and now in pursuance of the said DPC, respondent no.3 has issued the impugned order dated 15.04.2015 along with the final list of the candidates whose cases shall be considered for promotion and they were directed to appear for counseling on 22.04.2015. The petitioner was shocked to see the final list because as his name does not found place in the said final list and respondents no. 5 to 7 who are not employees of the municipal corporation has been included in the said list. He further submits that the transfer/merger of respondents no.5 to 7 in the municipal corporation is also illegal, arbitrary and contrary to the section 58 of the Municipal Corporation Act. The said section contemplates that only the employees of Municipal Corporation can be transferred to another 7 W.P. No.5722/2015 municipal corporation after obtaining NOC from the Municipal Corporation. In the present case, the petitioner came to know under the Right to Information Act that no No Objection Certificate has been issued by the Municipal Corporation Singrauli for transfer of respondents no.5 to 7 in the Municipal Corporation, Singrauli. In such circumstances, he prays that the petition deserves to be allowed.
7. Respondents no.1, 2 and 4 have filed their reply and in the reply they have stated that the answering respondents are concerned they have no role play in the matter because petitioner and respondent no.5 to 7 were the Shiksha Karmies and after abolition of the post of Shiksha Karmis they have absorbed in the cadre of Adhyapak. The appointment of the petitioner was made by respondent no.3 whereas the appointment of respondents no.5 to 7 were made by the Janpad Panchayat. The petitioner and respondents no.5 to 7 were absorbed in the cadre of Adhyapak and the gradation list of Adhyapak has to be made separately by the Municipal Corporation and also by the Panchayat separately because the Schools functions under the Municipal Corporation and Panchayats are different and separate 8 W.P. No.5722/2015 gradation list is prepared.
8. Respondent no.3 has also filed the return. In the said return, the respondent has stated that the petitioner was appointed in the year 1998 on the post of Shiksha Karmi Grade-III. His services are being governed under the Rules know as M.P. Municipal Shiksha Karmi (Recruitment and conditions of Service) Rules, 1998. Thereafter, the State Government has framed the new rules in the year 2008. Under these rules, the services of the petitioner was merged on the post of Sahayak Adhyapak thereafter in the year 2011, the petitioner was promoted from Sahayak Adhyapak to Adhyapak. Respondent no.3 further submits that under the Rules of 1998, qualifications and experience for promotional post is given in Schedule IV. As per the said schedule for promotion to the post of Varisht Adhyapak, a candidate should be holding the post graduate degree in the related subject and experience of not less than seven years in the post held. Respondent no.3 further submits that the petitioner does not fulfilled the eligibility criteria and he was not having seven years experience for Adhyapak which was necessary requirement for promotion. Respondent no.5 who was 9 W.P. No.5722/2015 appointed as Shiksha Karmi Grade-II in the year 2006 and further merged with Adhyapak in the year 2008, his services were merged on 06.06.2011 at the Government Higher Secondary School, Panjreh which comes under the jurisdiction of answering respondent. The said order passed by respondent no.4 with the approval of respondent no.2. Respondent no.6 was also appointed as Shiksha Karmi Grade-II in the year 2006 which was subsequently merged with Adhyapak in the year 2008, his services were also absorbed on 03.07.2010 at Government Girls Higher Secondary School, Baidhan by respondent no.4 with the approval of respondent no.2. Thus, as per respondent no.3. as the petitioner was lacking qualification for promotion on the said post, therefore, the petition deserves to be dismissed.
9. Heard learned counsel for the parties and perused the record.
10. The petitioner was initially appointed by respondent no.3 on the post of Shiksha Karmi Grade-III vide order dated 19.08.1998, his services were regularized on the post of Shiksha Karmi. The State Government has framed the Rules in the year 2008. Under the said rules, the services of 10 W.P. No.5722/2015 the petitioner were merged on the post of Sahayak Adhyapak and thereafter in the year 2011, the petitioner was promoted on the post of Adhyapak Mathematics. The services of the petitioner are governed by the Rules of 2008 known as Madhya Pradesh Nagreeya Nikay Adhyapak Samvarg (Employment and Conditions of Services) Rules, 2008 and under the Rule 5 of the said Rules, the services of the petitioner were merged on the post of Sahayak Adhyapak. The next promotional post from the post of Adhyapak is the Varisht Adhyapak and the minimum qualification for promotion on the said post is that the candidate must have passed the Masters Degree in relevant subject with B.Ed or its equivalent and seven years experience on the post held as per the Rules of 2008. Respondent no.3 in his return has submitted that as the petitioner was not holding the qualification as prescribed under the Rules, therefore, his case was not considered for promotion. So far as, absorption of respondents no.5 and 6 on the post of Adhyapak in respondent no.3 is concerned, the services of the petitioner are governed by the Madhya Pradesh Nagreeya Nikay Adhyapak Samvarg (Employment and Conditions of 11 W.P. No.5722/2015 Services) Rules 2008. While respondent no.5 to 7 were initially appointed in the Panchayat Department and, therefore, their services are governed by the Madhya Pradesh Panchayat Samvida Shala Shikshak (Condition of Employment and Contract) Rules, 2005 and, therefore, the services of the respondents no.5 to 7 could not be merged in the Municipal Corporation i.e. respondent no.3 where the set of Rules governing the Adhyapak Samvarg are absolutely different.
12. Learned counsel for the petitioner further stated that before their absorption 'No Objection Certificate' has been obtained by the State Government while the respondent no.3 has filed the copies of No Objection Certificate issued by the Chief Executive Officer as well as by the Principal of Higher Secondary School. The Chief Executive Officer has no authority to issue the 'No Objection Certificate'. Section 58 of the Municipal Corporation Act provides that no employee of the Municipal Corporation can be sent on Deputation/transfer to any other Municipal Corporation without obtaining 'No Objection Certificate' from the Municipal Corporation. In the present case, as 'No Objection 12 W.P. No.5722/2015 Certificate' has not been obtained from respondent no.3, therefore, impugned order dated 15.04.2015 is hereby quashed.
13. This Court in the case of Munna Lal Karosiya Vs. State of M.P. and Others reported in 2009(3) M.P.L.J., 697, has held that an employee of one Municipal Corporation in absence of any Rules, could not be absorbed in the other Municipal Corporation. In the present case also there is no Rules for appointment on absorption.
14. Accordingly, in light of the judgment passed in the case of Munnal Lal Karosiya (supra), the said writ petition is allowed in terms of following directions.
1. The impugned order dated 15.04.2015 is hereby quashed.
2. Respondents are directed to prepare and publish a seniority list as on 01.04.2014 and placed the petitioner at proper place in the seniority list.
3. The respondents are further directed to consider the case of the petitioner for promotion to the post of Varisht Adhyapak Mathematics and Physics by constituting the review DPC and if the petitioner is found fit, then he be promoted from the post of Varisht Adhyapak w.e.f. the date 13 W.P. No.5722/2015 on which the other persons have been promoted along with all consequential benefits.
15. The said exercise be carried out within a period of three months from the date of receipt of certified copy of this order.
Certified copy as per rules.
(Ms. Vandana Kasrekar) Judge Tabish Digitally signed by MOHAMMAD TABISH KHAN Date: 2018.06.28 16:38:11 +05'30'