Madhya Pradesh High Court
Sanjay Soni vs The State Of Madhya Pradesh Judgement ... on 3 October, 2013
1
HIGH COURT OF MADHYA PRADESH : JABALPUR
WRIT PETITION No.5135/2012
Sanjay Soni & others
Vs.
The State of Madhya Pradesh & others
____________________________________________________________
Present : Hon'ble Shri Justice K.K. Trivedi
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Shri Mrigendra Singh, learned Counsel for the petitioners.
Shri Vivek Agrawal, learned Deputy Advocate General for
respondents No.1 and 2.
Shri Prashant Singh, learned Counsel for respondents No.3, 4
and 5.
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O R D E R
(03.10.2013) By filing this writ petition initially the petitioners, four in number, working on the post of Sanitary Inspectors and officiating on the post of Chief Municipal Officer of various Municipal Councils and Nagar Panchayats, have approached this Court ventilating their grievances against circular dated 04.02.2012. It is contended that by such a circular, right of petitioners to be promoted on the post of Chief Municipal Officer, available under a previous circular of State Government, has been taken away. It is contended that in terms of certain decisions rendered by this Court in a different writ petition, such a circular is issued saying that those, who are not in the channel of promotion on the post of Chief Municipal Officer, under the provisions of the Madhya Pradesh Municipal Services (Executive) Rules, 1973 (herein after referred to '1973 Rules') and are working as Incharge Chief Municipal Officer, be removed from the post of Chief Municipal Officer. It is contended that such a 2 circular is called in question in one of the writ petition and the operation of the circular is stayed. It is further contended that since the persons like petitioners are working as Incharge Chief Municipal Officer, their right to be considered for regular promotion on the post of Chief Municipal Officer, is violated in such a manner and, therefore, the writ petition is required to be filed seeking quashment of the said circular as also seeking a direction against respondents to promote the petitioners on the post of Chief Municipal Officer.
2. During pendency of the writ petition since certain orders of posting and transfer have been issued, by making amendment in the writ petition the petitioners have called in question the said orders and have sought the relief for quashment of order dated 22.02.2013. After the amendment was allowed, on an application made by the petitioners, an order of interim stay was granted on 01.03.2013. By filing the I.A. for grant of interim relief, it is contended that the persons like petitioners could not have been dislodged from their posts as an interim protection was already granted to them on 21.01.2013 and an absolute stay with respect to posting order was also granted on 01.03.2013. It is contended that the conduct of the respondents if seen, it would be clear that only to circumvent the interim orders of this Court, such orders were issued.
3. By filing a return, the official respondents have contended that the petitioners would not be entitled to grant of any relief inasmuch as they are not working on the feeder post for promotion on the post of Chief Municipal Officer. Since they are working as Sanitary Inspectors, who are governed by a separate set of Rules known as Madhya Pradesh State Municipal (Health) Services Recruitment and Conditions of Service Rules, 2011, they have a channel of 3 promotion under their own Rules and are to be promoted as Health Officers. They cannot claim consideration of their claim for promotion on the post of Chief Municipal Officer. It is contended that the entire petition is misconceived and, thus, deserves to be dismissed. By filing an application to intervene, those who were posted in place of petitioners, have approached this Court. The respondent No.3 has also filed a detailed return pointing out the fact that in fact the order of posting in respect of respondent No.3 was issued. One of the petitioner, who was Sanitary Inspector, was shifted from the post of Incharge Chief Municipal Officer and in his place the respondent No.3 was posted. This being so, the claim made by the petitioners in their writ petition is wholly misconceived. After filing of the return the application for recall of the order has been filed by the respondent No.3. By filing certain reply to such I.A., the petitioner No.2 has pointed out that in fact deliberately the rights of petitioners were jeopardised with malafide intention.
4. Heard learned Counsel for the parties at length and perused the record.
5. The only issue is whether a person, who is serving in a different cadre, could be given the current charge of particular post, which is to be filled in partially by promotion, without availability of the channel of promotion to such a person. If the post of the petitioners is not in the channel of promotion nor is treated as feeder post for such promotion on the post of Chief Municipal Officer, can they be given the current charge of the post of Chief Municipal Officer. The 1973 Rules are made in exercise of powers conferred under the provisions of Section 355 read with Section 86 of the Madhya Pradesh Municipalities Act, 1961 (herein after referred to as '1961 Act'). Chapter XV of the 1961 Act deals with the Rules and Bye-laws. The power to 4 make Rules is given under Section 355 of the 1961 Act, which particularly prescribes Rules to be made for the purposes of constitution of Municipal services in the State and recruitment and appointments thereto. Section 86 of the 1961 Act prescribes constitution of State Municipal services. Three sets of State Municipal Services are required to be constituted, namely State Municipal Service (Executive), State Municipal Service (Health), and State Municipal Service (Engineering). Prior to making of the Rules in the year 2011, only the 1973 Rules were made by the State Government for the purposes of constitution of State Municipal Services (Executive). It is categorically prescribed under Section 87 of the 1961 Act that the Chief Municipal Officer of a Municipal Council shall be a member of the State Municipal Service (Executive) and shall be appointed by the State Government. Section 89 of the 1961 Act deals with the inter magnum period when the constitution of the State Municipal Service (Executive) is contemplated. Only in such circumstances when the constitution of the service was not completed, the Chief Municipal Officer could be appointed by the State Government on temporary basis.
6. As has been pointed out, 1973 Rules have been made with an object to constitute the State Municipal Service (Executive). The method of recruitment under the said Rules is prescribed in Rule 5, which is quoted herein below for ready reference :
"5. Method of recruitment.-- (1) Recruitment to the service shall be made :-
(a) by direct recruitment;
(b) by promotion :
Provided that the State Government may make temporary appointment for a total period not exceeding six months by direct recruitment to a permanent post in 5 the service if it is necessary in the public interest that appointment should be made immediately and the recruitment on the result of the selection by the Commission would take time.
(c) The filling up of vacancies in all classes of Municipal Councils by direct recruitment and by promotion shall be as shown in the Second Schedule.
(2) Subject to the provisions of these rules, the method or methods of recruitment to be adopted for the purpose of filling any particular vacancy or vacancies in the service, or such vacancies therein as may be required to be filled during any particular period of recruitment and the number of persons to be recruited by each method shall be determined on each occasion by the State Government.
(3) Reservation of vacancies to the extent of 15 per cent and 18 per cent of the number of vacancies to be filled shall be made in favour of candidates belonging to the Scheduled Castes and the Scheduled Tribes respectively. Candidates belonging to the Scheduled Castes and Scheduled Tribes, declared by the Committee to be suitable for appointment to the service with due regard to the maintenance of efficiency of Municipal administration and to the academic qualification may be appointed against the vacancies reserved for the candidates of the Scheduled Castes or the Scheduled Tribes, as the case may be. If sufficient number of candidates belonging to the Scheduled Castes and the Scheduled Tribes are not available for filling up all the vacancies reserved for them, the remaining vacancies shall be filled from amongst other candidates."
7. Rule 13 of the 1973 Rules prescribes the method of promotion, which for ready reference is reproduced herein below :
" 13. Promotions.-- (1) Subject to the provisions of Rule 5 of these rules, the post of Chief Municipal Officer in select Grade, Class-I, Class-II and Class-III shall be filled by promotion as laid down in the Second Schedule.6
(2) The Selection of candidates for departmental promotion to select Grade, Class-I, Class-II and Class-III, Chief Municipal Officers shall be made by a Committee consisting of the following :-
(i) Chairman, State Public Service Commission or his nominee-Chairman.
(ii) Secretary to Government Local Government Department-Member.
(iii) Director, Directorate of Urban Administration-Member Secretary.
The Committee shall meet atleast once in every year to consider all cases for promotion and submit its recommendations to the State Government. After the consideration, the Committee shall draw up a list of persons recommended for promotion and send the same to the State Government within a month from the date of meeting. In selecting the candidates for promotion, in addition to the minimum qualification prescribed in the rule, regard shall be had to--
(i) integrity;
(ii) tact and energy;
(iii) intelligence and aptitude; and
(iv) experience and record of service.
(3) On receipt of recommendations of the Committee, the State Government shall pass such orders, as they deem fit. The persons so selected shall be placed on a select list in order of their seniority and shall be appointed by the State Government when a vacancy occurs in the respective cadres.
(4) The select list shall be reviewed and revised every year by the State Government and shall be deemed to be a confidential document.
(5) The select list of candidates selected for appointment by promotion shall be maintained by the State Government for each grade separately.
(6) An officer's name may be removed by the State Government from the select list at any 7 time if the Government is satisfied with regard to his unsuitability for promotion."
8. The promotion is to be considered in respect of those officers and employees only, who are in the channel of promotion as prescribed in Second Schedule of 1973 Rules. If the entire Second Schedule is examined, it is seen that the posts of Chief Municipal Officer, graded in AA, A, B and C Municipal Councils are to be filled in by the procedure given thereunder. So far as Chief Municipal Officers of AA and A categories are concerned, such posts are to be filled in 100% by promotion. The posts of Chief Municipal Officers in B and C category Municipal Councils are to be filled in by 50% direct recruitment and 50% by promotion. The channel of promotion and the feeder posts for such promotion prescribed are that if a Chief Municipal Officer of A category has completed 7 years experience on the feeder post, he could be promoted on the post of Chief Municipal Officer of AA category Municipal Council. Similarly, the Chief Municipal Officer of B category Municipal Council, who has completed at least 7 years of experience as also the Revenue Officers of AA or A category Municipal Councils, if have completed 7 years of experience, they could be considered for promotion on the post of Chief Municipal Officer of A category Municipal Council. As far as the Chief Municipal Officers of C category Municipal Councils, Revenue Inspectors of Select Grade, Class-I and Class-II Municipal Councils having experience of 7 years working on their respective posts, could be promoted on the post of Chief Municipal Officer of B category Municipal Council. However, a preference is to be given to those, who have obtained a degree in the field of Local Self Government. Now as far as the promotion on the post of Chief Municipal Officer C category is concerned, for this only the Superintendent of Class A Municipal Councils having 7½ years experience, Revenue Inspectors of Class C Municipal Council having at least 7 years experience and Revenue 8 Sub Inspectors having experience of 9 years of service and the Ministerial Employees of the Municipal Councils having at least 10 years experience possessing the requisite qualifications, are the eligible candidates to be considered for promotion on this post.
9. Admittedly the petitioners are working in the Executive services of the Municipal Councils. Their post is not included in the Second Schedule of 1973 Rules. They are not working on the feeder post to be considered for promotion on the post of Chief Municipal Officer in C category Municipal Council or Nagar Panchayat. At any rate, they cannot be promoted on the said post. It has rightly been pointed out by learned Deputy Advocate General that separate channel of promotion is made available for Sanitary Inspectors and they can be promoted under the different Rules made in the year 2011, on the post of Health Officers but are not to be promoted on the post of Chief Municipal Officer at any rate. The petitioners are not working on a cadre post, which falls amongst the feeder posts for promotion on the post of Chief Municipal Officer. The reliance placed by the petitioners on circular dated 28.08.1991 is totally misconceived. As has been pointed out from Rule 5 of 1973 Rules, the enlargement of the feeder post, inclusion of certain more feeder posts without making an amendment in the 1973 Rules or the Schedule appended to the said Rules was not permissible even in exercise of administrative powers by the State Government. Such a circular will not give any benefit to the petitioners.
10. In the light of this, if the circular dated 04.02.2012 is examined, only this much is said that because of shortage of the Chief Municipal Officers, earlier action was taken to post certain persons as Incharge Chief Municipal Officers and that being so, when the entire Rules were examined by 9 this Court in earlier writ petition and direction was given that the posts of Chief Municipal Officers are to be filled in by the respondents in accordance to the provisions of 1973 Rules, it was necessary to send back those, who were not appointed on the feeder post for promotion on the post of Chief Municipal Officer but were made to function as Incharge Chief Municipal Officer to their substantive posts. If such instructions have been issued on the strength of an order passed by this Court, which has attained finality, how could it be said that the circular issued by the State Government is illegal or runs contrary to the provisions of the Rules. In view of this, challenge to the circular dated 04.02.2012 is not acceptable.
11. Now the only question is whether the petitioners could be permitted any longer to continue on the post of Chief Municipal Officer in incharge capacity ? In accordance to the service laws and the well recognized principles, it is clear that an employee is entitled to hold his substantive post on which he is appointed in accordance to the Rules. No employee can claim a posting on a different post dehors the Rules. Even if such an improper order was earlier issued, the said order will not constitute a right in favour of such an employee to claim his posting in such capacity. Such directions cannot be issued as no right to the petitioners is available in such circumstances even in exercise of powers under Article 226 of the Constitution of India by this Court. However, the grievance of the petitioners is also to be noted that such an order is issued only in respect of petitioners and in respect of few persons only whereas in the entire State large number of persons are working as Incharge Chief Municipal Officers, though they are not substantively holding the feeder post for their promotion on regular basis as Chief Municipal Officers.
1012. Keeping in view these submissions and in view of the discussions made herein above, while dismissing the writ petition and vacating the interim stay, it is directed that the State Government will ensure that in all such places where the Chief Municipal Officers are posted in the Municipal Councils and Nagar Panchayats in Incharge capacity, only those would be allowed to continue on the post who are holding substantive posts, which are in feeder cadre for regular promotion on the post of Chief Municipal Officer. All others, who are not substantively holding the feeder post for promotion on the post of Chief Municipal Officer would be sent back to work on their substantive post forthwith.
13. In the result, the writ petition fails and is hereby dismissed. However, there shall be no order as to costs.
(K.K. Trivedi) Judge Skc