Madhya Pradesh High Court
Rajesh Kumar Dubey vs The State Of Madhya Pradesh on 25 July, 2017
1 W.P. No.7608 of 2016
HIGH COURT OF JUDICATURE MADHYA PRADESH,
JABALPUR
SINGLE BENCH: HON'BLE SHRI SUBODH ABHYANKAR, J
WRIT PETITION NO.7608 OF 2016
Rajesh Kumar Dubey and others
Vs.
State of Madhya Pradesh and others
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Present:
Shri D.K.Dixit, Advocate for the petitioners.
Shri Pushpendra Yadav, Government Advocate for the
respondents/State.
Shri Anoop Nair, Advocate for the intervener.
Shri Manas Mani Verma, Advocate for the respondent No.3.
Whether Approved for Reporting : Yes
Law Laid Down : In the case of promotion, it is not always that only the
old Rules shall be applicable but each case has to be scrutinized on the
basis of facts and circumstances prevailing in that particular case. The
law laid down in the case of Richa Mishra vs State of Chhattisgarh,
(2016) 4 SCC 179 cannot always be applied in all the cases of promotion
where the petitioners are claiming applicability of old Rules.
Significant Paragraph Nos.17, 18 & 19.
ORDER
(Passed on this the 25th day of July, 2017) The petitioners before this Court are presently posted as Development Extension Officer (DEO) at various district places and they are aggrieved by the issuance of advertisement dated 22.3.2016 issued by the respondent No.3/Madhya Pradesh Public Service Commission for filling up 71 vacancies of Block Development Officer. Through the advertisement dated 22.3.2016 the applications are invited for appointment for the post of Block Development 2 W.P. No.7608 of 2016 Officer through limited competitive examination and the contention of the petitioners is that if the aforesaid examination takes place then their right to be promoted to the post of Block Development Officer (BDO) shall be adversely affected because prior to the aforesaid advertisement as per the applicable Rules, 50% of such post were to be filled up by direct recruitment and 50% were the promotional posts but in the amended rules all the promotional posts are to be filled up to the tune of 25% only which is the subject matter of the petition.
2. In brief the facts of the case are that the petitioners were initially appointed in the year 1983 on the post of Assistant Development Extension Officer in various districts of Madhya Pradesh. The blocks were merged into Janpad Panchayat and subsequently the petitioners were promoted on the post of Development Extension Officer and were again posted in various districts.
3. According to the petitioners, their services are governed by the Rules known as Madhya Pradesh Panchayat and Rural Development Class III (Ministerial and Non-Ministerial) Service Recruitment Rules, 1992 (hereinafter referred to as the 'Rules of 1992') and for the first time the provision is made for promotion of the Assistant Development Extension Officer to the post of Development Extension Officer and as per these rules the promotions from the post of Assistant Development Extension Officer is provided to the post of Block Development Officer after completion of 15 years of service as per Schedule IV appended to the Rules. The petitioners have also filed both the rules as Annexures P/1 and P/2.
3 W.P. No.7608 of 20164. The petitioners were promoted on the post of Development Extension Officer on 30.8.2014 and hence they were entitled to promotion on the post of Block Development Officer. A seniority list has also been issued in this behalf by the respondent No.1 showing position as on 1.4.2014 and as on 1.4.2014 it is mentioned that the total number of posts and the posts which are filled and 50% posts are reserved for promotion and out of these 142 posts, only 40 are working meaning thereby that 102 posts are vacant since long. According to the list, the petitioners No.1, 2, 3 and 4 stand at Sr. No.36, 55, 33 and 25 respectively, hence it is submitted that otherwise they are eligible for promotion.
5. On 17.1.2014 a notification was issued by the respondent No.1 seeking amendment in the Rules filed as Annexure P/2 and in these amended Rules the provision for promotion of the Development Extension Officer to the post of Block Development Officer has been made for the first time with the condition that the person who has completed 18 years of service as Assistant Development Extension Officer and Development Extension Officer out of which three years' regular service on the post of Development Extension Officer will be entitled for promotion and the another amendment is that the post of Block Development Officer is to be filled up through limited competitive examination carving out 25% of post from 50% quota provided for promotion from the post of Development Extension Officer who are graduate and completed 5 years of service and Assistant Development Extension Officer who are graduate and completed 10 years of service. The notification dated 17.1.2014 is filed as Annexure P/7. In the light of the aforesaid amendment, in the Gazetted Rules, 1988, now the vacancies are to be filled up through limited competitive examination for which the 4 W.P. No.7608 of 2016 respondent No.3 is directed to make the temporary arrangement. Hence, vide Advisement Annexure P/8 applications are invited up to 7.5.2016 whereby 71 posts which are available for promotion under 50% reserved quota have been taken out and now have filled up as mentioned above. When the petitioners came to know about such development, being aggrieved by the same they have filed this petition.
6. The contention of the petitioners is that the vacancies which are lying vacant since long and were not filled up are now being filled up as per the amended rules which cannot be allowed. It is submitted that it is settled law that if the vacancies were lying prior to framing of the new Rules have to be filled up as per the old Rules. In the present case, the amendment is made only vide Annexure P/7 in the year 2014 by them. The vacancies were available much prior to the amendment came into effect hence it is submitted that these vacancies can be filled up only by applying the old provisions. It is further submitted that even after framing of the Rules in the year 1992 where the posts of Development Extension Officer has been created but no provision has been made till 2014 providing channel of promotion to the Development Extension Officer and in the present scenario the old vacancies are being filled up according to the amendment can be said to be the new Rules as it has no retrospective effect.
7. It is further submitted that the amendment can be made applicable only on the post which became vacant after the date of notification Annexure P/7 and has no applicability in respect of the posts lying vacant prior to the amendment, hence it is prayed that the advertisement issued in this behalf Annexure P/8 be quashed. The petitioner has also relied upon the decision rendered by the Apex 5 W.P. No.7608 of 2016 Court in the Case of Richa Mishra vs State of Chhattisgarh, reported in (2016) 4 SCC 179 : AIR 2016 SC 753, Y.V. Rangaiah and others vs. J. Sreenivasa Rao and another reported in (1983) SCC 284; P. Ganeshwar Rao and others vs. State of Andhra Pradesh and others, 1988 (Supp) SCC 740; and B.L.Gupta and another vs. M.C.D., (1998) 9 SCC 223.
8. In return, it is submitted by the respondents that the posts of Block Development Officer were required to be filled up 50% by direct recruitment and 50% from Assistant Extension Development Officer, who have completed 15 years of experience and the channel of promotion was prescribed in Schedule IV Entry 8 appended to the Rules of 1988 and subsequently in the year 1992 Rules were framed which were known as M.P. Panchayat and Rural Development Class III (Ministerial and Non-Ministerial) Service Recruitment Rules, 1992. It is further submitted that earlier the posts of Block Development Officer were to be filled up 50% by direct recruitment and 50% from Assistant Extension Development Officer who have completed 15 years of service experience. The channel of promotion was prescribed in Schedule IV Entry 8 appended to the Rules 1988. Subsequently in the year 1992, Rules were framed which were known as M.P. Panchayat and Rural Development Class III (Ministerial & Non-Ministerial) Service Recruitment Rules, 1992, whereby posts of Development Extension Officer was created between the post of Assistant Extension Development Officer and Block Development Officer and as per the 1992 Rules, post of Development Extension Officer was 100% promotional posts, which were to be filled up from Assistant Extension Development Officer, who have completed 5 years of service.
6 W.P. No.7608 of 20169. It is further submitted that in the Rules of 1988, feeder post for Block Development Officer was Assistant Extension Development Officer but when the 1992 Rules came into force, the post of Development Extension Officer was re-created and the same became the feeder post of Block Development Officer. 1988 Rules were amended in the year 1994, provided replacing Assistant Extension Development Officer to Development Extension Officer. It is further submitted that in the year 1999 Rules of 1988 were again amended whereby eligibility for promotion on the post of Block Development Officer was amended as minimum 18 years of service on the post of Assistant Extension Development Officer and Development Extension Officer, in which at least three years regular service on the post of Development Extension Officer. After 1994 promotion channel for the post of Block Development Officer was fixed as AEDO-DEO-BDO and the post of Block Development Officer were required to be filled up 50% by direct recruitment and 50% by way promotion of Development Extension Officer.
10. It is further submitted that in the year 2014 further amendments were made whereby 50% posts are required to be filled up by direct recruitment, 25% are required to be filled up by promotion from eligible DEO and remaining 25% are required to be filled up by limited competitive examination and the petitioners were working on the post of Development Extension Officer have challenged the advertisement for limited competitive examination on the ground that vacancies for which examinations are being conducted have been occurred prior to amendment of the year 2014. The respondents have further submitted that the department is conducting DPC every year but on account of non-availability of number of eligible candidates the post of Block Development 7 W.P. No.7608 of 2016 Officer remained vacant and the persons who were eligible have already been promoted on the post of Block Development Officer and for remaining posts no eligible candidates were found by the DPC convened from time to time. Resultantly, it is submitted that the petitioners who were promoted on the post of Development Extension Officer in the year 2014 prescribed under the new mode of policy and prior to that petitioners and other similarly situated employees did not fulfill criteria prescribed in the unamended rules, therefore it is open to the State Government to fill up the said vacancies as per new amendment rules. It is further submitted that the case of Richa Mishra (supra) of which counsel for the petitioners relied upon is not applicable in the facts and circumstances of the case.
11. In the rejoinder the petitioners have submitted that the petitioners were already eligible for promotion on the post of Block Development Officer as soon as they have completed 15 years of service as per Rules 1988 i.e. before the amendment and if they would have been considered as Assistant Development Extension Officer for the promotion on the post of Block Development Officer, must have been promoted.
12. Heard learned counsel for the parties and perused the record.
13. From the record, it is apparent that the petitioners were initially appointed on the post of Assistant Development Extension Officer in the year 1983. Subsequently, they were governed by the Rules of 1992 in which for the first time a provision was made for promotion of the Assistant Development Extension Officer to the post of Development Extension Officer and as per these rules the promotions from the post of Assistant Development Extension 8 W.P. No.7608 of 2016 Officer is provided to the post of Block Development Officer after completion of 15 years of service as per Schedule IV appended to the Rules.
14. On 17.1.2014 the notification was issued by the respondent No.1 amending the Rules providing for promotion of the Development Extension Officer to the post of Block Development Officer with the condition that the person who has completed 18 years of service as Assistant Development Extension Officer and Development Extension Officer, out of which three years' regular service on the post of Development Extension Officer will be entitled for promotion. It was also provided that the post of Block Development Officer is to be filled up through limited competitive examination carving out 25% of post from 50% quota provided for promotion from the post of Development Extension Officer who are graduate and completed 5 years of service and Assistant Development Extension Officer who are graduate and completed 10 years of service.
15. Subsequent to these amendments, the petitioners were promoted on the post of Development Extension Officer on 30.8.2014 w.e.f. the instant date. A seniority list has also been issued in this behalf by the respondent No.1 and the petitioners No.1, 2, 3 and 4 stand at Sr. No.36, 55, 33 and 25 respectively. It is pertinent to mention here that neither the petitioners have challenged the aforesaid promotion on the ground that the same ought to have been given w.e.f. a prior date as they had already acquired the requisite qualification nor the amendment in the Rules has been challenged and as such, the Rules have become the final.
16. Through this petition, the petitioners are now challenging the advertisement Annexure-P/8 dated 22.03.2016 which has been 9 W.P. No.7608 of 2016 issued on the basis of the aforesaid amendment notification dated 17.01.2014.
17. In the considered opinion of this court, the impugned advertisement dated 22.03.2016 cannot be assailed in the absence of any challenge to the date of their own promotion which admittedly took place on 30.08.2014 i.e. much after 17.01.2014 when the Amendment Rules came into force. In the Amendment Rules it is provided that to be promoted on the post of BDO, a person must have completed at least three years as the DEO but since the petitioners have completed barely 2 years only on the post of DEO, they cannot claim any right to the posts of BDO.
18. As contended by the respondents that they are conducting DPC every year but on account of non-availability of number of eligible candidates the post of Block Development Officer remained vacant and the persons who were eligible have already been promoted on the post of Block Development Officer and for remaining posts no eligible candidates were found by the DPC convened from time to time. In respect of the aforesaid contention, the petitioners' stand is that had if as per 1988 Rules if the post of DEO could not have been constituted, the petitioners must have been promoted in the year 1988 from the post of ADEO directly but that has not been done and they have suffered for no apparent reason. But, a perusal of Schedule 2 of the Rules of 1988 reveals that so far as the post of DEO is concerned, it is clearly provided that 50% of the seats are to be filled up through direct recruitment and 50% from the promotion and if the eligible candidates are not found for promotion then it should be filled up through deputation from other departments, thus it cannot be said that merely by completing a certain number of years on the post of ADEO, an 10 W.P. No.7608 of 2016 employee would automatically become eligible to be promoted to the post of DEO. The decisions relied upon by the petitioners are also not applicable in the facts and circumstances of the case. In the case of Richa Mishra (Supra) in which all the other decisions have also been taken note of, it is provided in para 19 as under:-
"19. No doubt, under certain exceptional circumstances, the Government can take a conscious decision not to fill the vacancies under the old Rules and, thus, there can be departure of the aforesaid general rule in exceptional cases. This legal precept was recognised in Rajasthan Public Service Commission v. Kaila Kumar Paliwal in the following words:
"30. There is no quarrel over the proposition of law that normal rule is that the vacancy prior to the new Rules would be governed by the old Rules and not by the new Rules. However, in the present case, we have already held that the Government has taken conscious decision not to fill the vacancy under the old Rules and that such decision has been validly taken keeping in view the facts and circumstances of the case."
This position is reaffirmed in State of Punjab v. Arun Kumar Aggarwal (SCC p. 411, para 30)."
19. Thus, there is no thumb rule as to the applicability of the old rules in the matters of promotion and from the facts and circumstances of the present case it is held that the Respondents have taken a conscious decision not to fill the vacancies under the old Rules. In the result, the petition is liable to be and is hereby dismissed.
20. No costs.
(Subodh Abhyankar) Judge 25/07/2017 DV