Madhya Pradesh High Court
Laxmi Prasad Pathak vs The State Of Madhya Pradesh on 5 September, 2017
1
HIGH COURT OF MADHYA PRADESH BENCH AT INDORE
(SB: HON. SHRI JUSTICE PRAKASH SHRIVASTAVA)
W.P. No.3781/2014
Laxmi Prasad Pathak .... Petitioner
S/o Late Shri Ramlala Pathak
Vs.
State of M.P. and others .... Respondents
----------------------------------------------------------------------------------------
Shri Piyush Mathur, learned senior counsel with Shri Akash
Vijayvargiya, learned counsel for the petitioner.
Shri Piyush Shrivastava, learned counsel for respondents
No.1 and 2.
Shri V.P. Khare, learned counsel for the respondent No.3.
Shri S.C. Bagadiya, learned senior counsel with Shri
Kamlesh Mandloi, learned counsel for the respondent No.5.
None for the other respondents.
----------------------------------------------------------------------------------------
Whether approved for reporting :
ORDER
(Passed on 05th September, 2017) 1] By this writ petition petitioner has challenged the order
dated 28.3.2014 whereby the inter-se seniority of the petitioner and respondent No.5 has been determined, as also the proceedings of the review DPC dated 23.5.2012 whereby the respondent No.5 has been found eligible for promotion to the post of Dy. Labour Commissioner.
2] The case of the petitioner is that he was initially appointed as Labour Officer in 1988 and was promoted as Assistant Labour Commissioner on 26.6.1995. The DPC for promotion to the post 2 of Dy. Labour Commissioner was held on 30.12.2002. According to the petitioner the respondent No.5 was not eligible for consideration because he had not completed 5 years service as Assistant Labour Commissioner yet his name was considered. The petitioner's name was recommended for promotion to the post of Dy. Labour Commissioner whereas the name of respondent No.5 was kept in the supplementary waiting list. In pursuance to the recommendation of DPC petitioner was promoted as Dy. Labour Commissioner vide order dated 21.3.2003. Since in the DPC dated 30.12.2002 name of Shri Rohan Singh Yadav who was senior to respondent No.5 was kept in circulation for want of requisite ACRs, probably for that reason the name of respondent No.5 was kept in the supplementary list. Another DPC was conducted on 27.9.2003 and the name of respondent No.5 was cleared for promotion to the post of Dy. Labour Commissioner while Rohan Singh Yadav was denied the said promotion. Consequently vide order dated 1.1.2004 the respondent No.5 was promoted as Dy. Labour Commissioner. Being aggrieved with this, Rohan Singh Yadav had filed W.P. No.1587/2004 before the Gwalior Bench which was dismissed by the learned Single Judge vide order dated 21.9.2011 but the Division Bench had allowed Writ Appeal No.5901/2011 vide order dated 27.1.2012 holding that the respondent No.5 was not eligible because relaxation of experience condition was improper. The review petitions at the instance of the State and respondent No.5 were also dismissed by common order dated 16.3.2012. As a consequence thereof the respondent No.5 was reverted to the post of Assistant Labour Commissioner vide order dated 18.6.2012 but since his case was considered in the review DPC dated 23.5.2012 and recommended for promotion, therefore, on 19.6.2012 he was promoted as Dy. Labour Commissioner and by 3 the impugned order dated 28.3.2014 the respondent No.5 was given seniority above the petitioner as Dy. Labour Commissioner. 3] A reply has been filed by the respondents No.1 and 2 supporting the impugned orders and taking the stand that on account of excellent ACRs and meritorious service, the respondent No.5 was placed at the top in the list and that the respondent No.5 had completed the qualifying service on the cut off date in 2002, hence his case was rightly considered in the DPC. Separate reply has been filed by respondent No.5 supporting the impugned action and taking the plea that he is more meritorious and having better record than the petitioner, hence DPC has rightly given 20 points as per the ACRs and that he had completed the minimum period of 5 years for promotion as Dy. Labour Commissioner on the cut off date when DPC was held in 2002.
4] Both the aforesaid respondents have also taken the plea that the integrity of the petitioner is doubtful and the raid of Lokayukta had taken place at his house in which the disproportionate assets were found and departmental enquiry has been initiated against him.
5] Learned counsel for the petitioner submits that the respondent No.5 could not be considered in the review DPC dated 23.5.2012 in view of the judgment of Division Bench of the Gwalior Bench and the relaxation of minimum period of 5 years given to the respondent No.5 is already held bad by the Gwalior Bench and no reasons have been assigned for giving 20 points to the respondent No.5 in the DPC and he had worked only for one day in 1997 yet he has been given A+ Grade. He further submits that the M.P. Public Services (Promotion) Rules, 2002 are not applicable in the present case because the rules had not come into force on 1.1.2002 which was the cut off date for holding the 4 DPC.
6] Learned counsel for the State has supported the impugned orders submitting that Division Bench at Gwalior had not considered the issue of completion of 5 years on the cut off date by the respondent No.5 and it was open to the respondents to include the name of respondent No.5 in the review DPC because the direction of the Division Bench was not confined for holding review DPC for Shri Rohan Singh Yadav only and the respondent No.5 has rightly been given 20 points based on his ACRs and that in terms of Rules of 2002 respondent No.5 had completed 5 years service and was eligible for consideration.
7] Learned counsel for the respondent no.5 has submitted that the Gwalior Bench judgment will not act as res judicata because the present petitioner was not a party to those proceedings. He further submits that the Gwalior Bench judgment is not relevant in view of provisions contained in Section 40, 42 & 43 of the Evidence Act and even if the Gwalior Bench judgment is taken into account, then the specific plea of the respondent No.5 in the reply as well as in review petition was that he had completed 5 years service and the Gwalior Bench proceeded on the wrong premises that admittedly the respondent No.5 had not completed 5 years. He submits that in terms of Rules of 2002, 5 years service was completed by the respondent No.5 as Assistant Labour Commissioner and he had excellent ACRs, therefore, he has rightly been given 20 points and placed above the petitioner in the seniority list.
8] I have heard the learned counsel for the parties and perused the record.
9] The impugned order dated 28th March, 2014 reveals that in the review DPC the case of the respondent No.5 has been considered, and on the examination of his five years ACR in the 5 review DPC he was given 20 marks which is in the "excellent" category. It has further been found by the DPC that he had completed five years service as on 1/1/2002 as per Rule 7(3) of the Madhya Pradesh Public Services (Promotion) Rules 2002 and that his down grading of one ACR in the earlier DPC without assigning any reason was improper and contrary to Rule 7(9) of the Rules of 2002. Accordingly, the respondent No.5 has been promoted as Assistant Labour Commissioner and has been placed at Sl.No.1 in the select list of the original DPC held on 30/12/2002. Accordingly, his seniority has been fixed.
10] The first issue is whether after the judgment of the division bench at Gwalior, the review DPC could have considered the case of the respondent No.5.
11] The record reflects that the original DPC was held on 30/12/2002 and initially vide order dated 21/3/2003 one Dr.Vasudev Sarkar and petitioner were promoted, thereafter respondent No.5 was promoted on 1/1/2004. One Rohan Singh Yadav had filed WP No.1587/2004 before the Gwalior Bench aggrieved with his super-session on the post of Deputy Labour Commissioner and the promotion of the respondent No.5 by the DPC held on 30th December, 2002. The writ petition was dismissed by the learned Single Judge by order dated 21/9/2011 and in WA No.590/2011 by the order dated 27/1/2012 division bench at Gwalior had taken the view that no order of relaxation of condition of five years experience on the existing post in favour of the respondent No.5 was passed in accordance with Article 166(2) of the Constitution nor there was any such order of the Council of Ministers. Hence, the Gwalior Bench held that for want of relaxation of condition, the promotion of the respondent No.5 herein to the post of Deputy Labour Commissioner vide order dated 1/1/2004 was not sustainable and accordingly quashed it 6 and directed the State to act in accordance with law and consider the case of the appellant therein for promotion.
12] The record reflects that the State government in para 5.4 in the reply as also the respondent No.5 in para 5.4 in its separate reply in above WP No.1587/2004 had taken the specific plea that when the DPC was held, the respondent No.5 had completed five years of qualifying service as per the requirement of Rule 6(2) of the M.P. Public Service (Promotion) Rules, 2002. The issue considered by the division bench was only in respect of the relaxation of clause relating to five years service. The order of the division bench reflects that the issue as to whether the respondent No.5 had in fact completed the requisite five years service on the existing post as per Rules were not gone into. That apart, the effect of the Promotion Rules of 2002 was also not pointed to the division bench. If on the basis of the undisputed dates and application of the relevant Rules it has been subsequently found by the review DPC that the respondent No.5 in fact had completed five years of eligible service, then the same cannot be held to be running contrary to the earlier division bench judgment, specially when there is no finding by the division bench about completion of 5 years service on the relevant date of the DPC.
13] Since the review DPC has been held as per the direction of the division bench, therefore, all those persons who were eligible and within the zone of consideration have been considered by the respondents and no error in this regard has been committed.
14] The next question which arises is as to whether the respondent No.5 has in fact completed five years service and he has rightly been granted seniority by placing him at the top of the select list of the original DPC of 2002?
15] The dispute is about the promotion from the post of 7 Assistant Labour Commissioner to the Deputy Labour Commissioner. The promotion is governed by the M.P. Labour (Gazettee) Service Recruitment Rules, 1985 (for short "Recruitment Rules of 1985"). Rule 14 of the Rules provided for eligibility for promotion as under:-
"14-- Conditions of eligibility for promotion/transfer.-- [1]Subject to the provisions of sub- rule (2) the committee shall consider the cases of all persons who, on the 1st day of January of that year had completed such number of years of service (whether officiating or substantively) on the posts from which promotion is to be made or on any other post or posts declared by the Government equivalent thereto as specified in column (3) of Schedule IV and are within the zone of consideration in accordance with the provisions of sub-rule (2):
Provided that the services of the released officers of Emergency Commission and Short Service Commissions, after their appointment in the service, shall be counted from the date from which they have been appointed in service in accordance with the General Administration Department Memo No.2266- 1987-I (3)-67, dated the 21st October, 1967:
Provided, further that no junior person shall be considered for select grade/promotion in preference to the person senior to him on the basis of his completing the prescribed period of service under this rule:
[2] The zone of consideration for selection shall ordinarily be limited to seven times the number of officers to be included in the select list, in respect of posts to be filled on the basis of merit-cum-seniority and five times the number of officers to be included in the selection list in respect of posts to be filed on the basis of seniority-cum-merit:
Provided that if suitable officers are not available in the zone so determined in the required number, the zone may be enlarged to the extent considered necessary by the Committee by mentioning the reasons in writing therefor."
[16] The Schedule IV Column 3 requires five years experience 8 for promotion to the post of Deputy Labour Commissioner. As per Rule 14(2) above, the promotion was to be done on the basis of merit-cum-seniority.
[17] The undisputed fact is that the respondent No.5 was promoted as Assistant Labour Commissioner on 30 th December, 1997 and the original DPC was held on 30th December, 2012 considering the position as on 1/1/2002.
[18] The Madhya Pradesh Public Services (Promotion) Rules 2002 (for short "Rules of 2002") have come into force on 15/6/2002 ie. from the date of its publication in the M.P. Gazettee.
[19] As per explanation to Rule 7(3), the calendar year of joining the feeder post is relevant and not the date of joining for the purpose of calculating the period of qualifying service on 01 st January of the relevant year in which the DPC is convened. Rule 7(3) provides as under:-
"[3] The names of only such public servants shall be considered for promotion who have completed the requisite number of years of service in the feeder cadre/part of the service/pay scale of posting according to the Recruitment Rules for promotion and who are within the zone of consideration. In addition to this, in view of inclusion, in the select list, the names of two public servants or 25 percent of the number of the public servants included in select list whichever is more, the names of the required number of the public servants included in select list whichever is more, the names of the required number of the public servants who are in the zone of consideration shall be considered for each category to fill up the unforeseen vacancies occurring during the course of the aforesaid period.
Explanation:-- Manner of computation for eligibility for promotion:-- Period of qualifying service on 1 st January of the relevant year in which Departmental Promotion Committee/Screening Committee is convened shall be counted from the calendar year in which the public servant has joined the feeding cadre/part of the 9 service/pay scale of the post and not from the date of joining of the cadre/part of the service/pay scale of post."
[20] This position has further been clarified in the GAD Circular dated 6/7/2002 in Clause 2(3) which reads as under:-
¼3½inksUufr ds fy;s ik=rk gsrq x.kuk dh jhfr A Li"Vhdj.k fu;e 6 ¼2½ ,oa fu;e 7 ¼3½A& lacaf/kr o"kZ dh ftlesa foHkkxh; inksUufr lfefr vkgwr dh tkrh gS izFke tuojh dks vgZdkjh lsok dh vof/k dh x.kuk ml dSys.Mj o"kZ ls dh tk,xh] ftlesa yksd lsod QhMj laoxZ@lsok ds Hkkx@in ds osrueku esa vk;k gS vkSj QhMj laoxZ@ys[kk ds Hkkx@in ds osrueku esa vkus dh rkjh[k ls x.kuk ugha dh tk,xhA mnkgj.kkFkZ] yksd lsod dh inksUufr tuojh esa gqbZ gks] tqykbZ esa vFkok fnlEcj esa] vgZdkjh lsok dh x.kuk ds fy;s ml dSys.Mj o"kZ dks ,d o"kZ ekuk tk;sxkA [21] So far as the issue of applicability of the Rules of 2002 to the DPC held considering the position of 31/12/2002 is concerned, it is the settled position in law that the existing Rules ie. the Rules in force at the time of consideration are applicable and not the law existing on the date when the vacancy arises.
[22] Supreme Court in the matter of Deepak Agarwal and another Vs. State of U.P. And others (2011)6 SCC 725 in this regard has held as under:-
"26] It is by now a settled proposition of law that a candidate has the right to be considered in the light of the existing rules, which implies the `rule in force' on the date the consideration took place. There is no rule of universal or absolute application that vacancies are to be filled invariably by the law existing on the date when the vacancy arises. The requirement of filling up old vacancies under the old rules is interlinked with the candidate having acquired a right to be considered for promotion. The right to be considered for promotion accrues on the date of consideration of the eligible candidates. Unless, of course, the applicable rule, as in Y.V. Rangaiah's case (supra) lays down any particular time frame, within which the selection process is to be completed. In the present case, consideration for promotion took place after the amendment came into 10 operation. Thus, it can not be accepted that any accrued or vested right of the appellants have been taken away by the amendment. The judgments cited by learned counsel for the appellants namely B.L. Gupta Vs. MCD (supra), P. Ganeshwar Rao Vs. State of Andhra Pradesh (supra) and N.T. Devin Katti & Ors. Vs. Karnataka Public Service Commission & Ors (supra) are reiterations of a principle laid down in Y.V. Rangaiah's case (supra).
27] All these judgments have been considered by this Court in the case of Rajasthan Public Service Commission Vs. Chanan Ram & Anr. (supra). In our opinion, the observations made by this Court in paragraphs 14 and 15 of the judgment are a complete answer to the submissions made by Dr. Rajiv Dhawan. In that case, this Court was considering the abolition of the post of Assistant Director (Junior) which was substituted by the post of Marketing Officer. Thus the post of Assistant Director (Junior) was no longer eligible for promotion, as the post of Assistant Director had to be filled by 100% promotion from the post of Marketing Officer. It was, therefore, held that the post had to be filled under the prevailing rules and not the old rules.
28] In our opinion, the matter is squarely covered by the ratio of the judgment of this Court in the case of Dr. K. Ramulu (supra). In the aforesaid case, this Court considered all the judgments cited by the learned senior counsel for the appellant and held that Y.V. Rangaiah's case (supra) would not be applicable in the facts and circumstances of that case. It was observed that for reasons germane to the decision, the Government is entitled to take a decision not to fill up the existing vacancies as on the relevant date. It was also held that when the Government takes a conscious decision and amends the Rules, the promotions have to be made in accordance with the rules prevalent at the time when the consideration takes place."
[23] Similar is the view taken by this court in the matter of Dr.Ashok Virang Vs. State of Madhya Pradesh 2014(4) MPLJ 752 and subsequent judgment of the supreme court in the matter of State of Tripura and others Vs. Nikhil Ranjan Chakraborty and others AIR 2017 SC 697.11
[24] Having regard to the aforesaid, I am of the opinion that the Rules of 2002 which were prevailing at the time of consideration by the DPC have rightly been applied by the DPC. In terms of Rule 7(3) of the Rules of 2002, the respondent No.5 had minimum five years of experience as required by the Column 3 of Schedule IV of the Rules of 1985 when DPC was held considering the position on cut off date of 1.1.2002.
[25] So far as awarding 20 points in the DPC is concerned, the relevant merit position of the petitioner and respondent No.5 as disclosed in the reply of respondent No.5 is as under:-
Name 1996 & 1997 & 98 1998 & 1999 & 2000 &
97 99 2000 2001
Petitioner [k [k d d Not
available
P.K. Dubey +d + +d +d +d +d
[26] In view of the fact that respondent No.5 had A+ for all five years, he has rightly been granted 20 points in the review DPC. In the earlier DPC held on 30.12.2002 though 19 points were given to the respondent No.5 but no reason was assigned to reduce the point as per the requirement of Rules. [27] The name of respondent No.5 has been kept at Sl.No.1 in the select list of the DPC held on 30/12/2002 following the requirement of Rule 7(9) of Rules of 2002 which provides for placing the public servants grade as "outstanding" on the top of the select list followed by those grade "very good" etc. Rule 7(9) reads as under:-
"[9] The Departmental Promotion/Screening Committee shall make a relative/comparative assessment of the merits of public servants who are within the zone of consideration and make an overall grading of the public servants merit on the basis of their service records and place them in the categories as "Outstanding", "Very Good", "Good", "Average" and 12 "Poor" as the case may be. However, only those public servants who are graded as "Very Good" and above will be included in the select list, by placing the public servants graded as "Outstanding" on top followed by those graded as "Very Good", subject to availability of vacancies, with the public servants with the same grading maintaining their inter-se-seniority in the feeder cadre/part of the service/pay scales of post."
[28] That apart, it is also worth noting that the scope of judicial review in the promotion matter is limited and in the absence of flagrant violation of statutory rules or mala-fides, no interference is warranted and this court does not exercise the appellate jurisdiction in such matters.
[29] Having regard to the aforesaid, I am of the opinion that the impugned order does not suffer from any error, therefore, no case for interference is made out.
[30] The writ petition is accordingly dismissed.
(PRAKASH SHRIVASTAVA) Judge vm