Madhya Pradesh High Court
The State Of M.P. vs Prahlad Singh Tomar & Ors. on 29 September, 2021
Author: Chief Justice
Bench: Chief Justice
[1]
THE HIGH COURT OF MADHYA PRADESH
WP-5283-1999
( V.K. SHRIVASTAVA AND ANOTHER Vs PRAHLAD SINGH TOMAR AND OTHERS)
WP-1779-2000
( THE STATE OF MADHYA PRADESH Vs PRAHLAD SINGH TOMAR AND OTHERS)
Jabalpur, Dated : 29-09-2021
Per : Mohammad Rafiq, Chief Justice
Mr. Sanjay Ram Tamrakar, learned Advocate for the
petitioners in WP No.5283/1999.
Mr. Pushpendra Yadav, learned Additional Deputy Advocate
General for the appellant State.
These two writ petitions are directed against the common
judgment of erstwhile M.P. Administrative Tribunal, Bhopal Bench,
Bhopal dated 20.8.1999.
2. Respondent No.1-Prahalad Singh Tomar approached the
Tribunal assailing the seniority list Annexure A-2 and seeking a declaration that he is senior to the respondents No.2 to 11 in the Original Application, who are petitioners No.1 and 2 and private respondents No.3 to 10 in the present writ petitions. He also sought a declaration that he may be promoted to the post of Executive Engineer in the D.P.C. which is going to be held shortly. Even though service of notice was affected on all the private respondents before the Tribunal but none of them chose to file the return and the matter was decided after hearing the learned counsel for the respondent No.1-Prahalad Singh Tomar and the learned Government Advocate.
3. The facts of the cases as noticed from the impugned order are [2] that the respondent No.1/Original Applicant before the Tribunal was promoted to the post of Assistant Engineer on 19.1.1990 from the post of Sub-Engineer and became member of the Rural Engineering Services (Gazetted). He was given charge of the office of Executive Engineer, Raisen Division, Raisen vide order dated 22.10.1997. This order was passed on the basis of the original seniority as contained in Annexure A-4 showing the seniority position as on 1.4.1994 and Annexure A-5 showing the seniority position as on 1.4.1995. In both of which, he was shown senior to the private respondents before the Tribunal. However, vide order dated 1.4.1997 a provisional seniority list of Assistant Engineers as per Annexure A-7 was issued vide letter dated 16.6.1997 (Annexure A-6). In that seniority list, for the first time, the respondent No.1 herein/Original Applicant before the Tribunal was shown junior to the private respondents No.2 to 11 before the Tribunal. The Respondent No.1 herein/Original Applicant before the Tribunal submitted a representation against the said seniority list before the official respondent, on 14.7.1997, which however, was rejected by order dated 29.10.1997 vide Annexure A-
9. Hence he approached the Tribunal by filing the Original Application.
4. The facts which are not in dispute are that two petitioners and private respondents No.3 to 10 in W.P. No.5283/1999 were initially appointed as Assistant Engineer on adhoc basis in the year 1982. Their services were eventually regularized in terms of M.P. Regularisation of Adhoc Appointment Rules, 1986 (hereinafter referred to as in short "Rules of 1986") on the basis of the report of [3] the Screening Committee constituted sometime in the year 1987. Even though the Committee recommended the case of 15 incumbents including 10 private respondents before the Tribunal for regularization, however, due to non-availability of sufficient posts for direct recruitment under the Recruitment Rules of 1986, only 5 of them could be regularized on 30.6.1987. Therefore the private respondents before the Tribunal were regularized somewhat belatedly in the year 1990.
5. The respondents/State authorities however relying on the judgment of the Tribunal dated 31.12.1994 in the case of one S.P. Shukla passed in T.A. No.3931/1988 granted the benefit of seniority to the private respondents before tribunal over the Respondent No.1herein/Original Applicant before the Tribunal. The Tribunal has analized the provisions of Rules 10, 11 and 12 of the Rules of 1986 in para 5 and 6 of the judgment, which reads as under :-
"5. Rule 10 relating to waiting list as well as Rules 11 and 12 of M.P Regularisation of Adhoc Appointment Rules, 1986 are relevant to decide the seniority of the private respondents, which are reproduced as under:-
Rule-10 A waiting list of the person of the general category who cannot be immediately regularized by the aforesaid process for want of posts, but who are found suitable for regularization shall be prepared. Their appointment shall be made against the posts filling vacant in future and against the posts which could not be filled from the reserve quota:
Provided that such waiting list shall be varied only upto 30th June, 1987.
Rule 11 The selection list prepared by the Screening Committee and the appointments made from such Selection list shall be treated as a Selection List prepared and appointments made under the relevant recruitment rules.
Rule 12 A person appointed under these rules shall be entitled to seniority only from the date of the order of regular appointment and shall be placed below the persons appointed in accordance with the relevant recruitment rules prior to the appointment of such person under these rules.
If two or more persons are appointed together, their seniority inter-se shall be determined in the order mentioned in the order of appointment.[4]
6. Thus, as per Rule 10, the waiting list shall be treated as Selection List for regularization of the persons founds suitable. However, such waiting/selection list was varied only upto 30th of June, 1987 for appointment. As per Rule 12 the seniority has to be counted from the date of the order of the regular appointment and will be placed below the persons appointed in accordance with the relevant recruitment rules prior to the appointment of persons. Under Rule 11, to ascertain the seniority of the private respondents, vis-vis the applicant, the case of the private respondents has to be examined in the light of the aforesaid provisions contained under Rules 10, 11 and 12 of the Regularisation Rules of 1986."
6. According to the aforesaid view taken by the Tribunal, the persons appointed under aforementioned Rules of 1986 shall be entitled to seniority only from the date of the order of the regular appointment and shall be liable to be placed below the persons already appointed in accordance with relevant recruitment rules prior to his appointment. Undisputedly, the respondent No.1 was appointed as Assistant Engineer by way of promotion on regular basis prior to the regularization of the private respondents before the Tribunal. The Tribunal has discussed the judgment of S.P. Shukla in Para 10 of the impugned order and found that it was totally distinguishable from the present case. Dispute in the case of S.P. Shukla was that he was working as Sub Divisional Officer in the Rural Engineering Service Department. He appeared before the Committee for regularisation of his service as per Rules of 1986. However his services were terminated in accordance with the Rules of 1986 because the department took the view that he was not possessing the required qualification for regular appointment. He challenged the order of his termination before the Tribunal on the ground of violation of Articles 14 and 16 of the Constitution of India. The Tribunal eventually allowed the Original Application [5] with a finding that he did possess the required eligibility qualification and ultimately directed his reinstatement in service. The persons who were appointed after him were regularised in service and he was held entitled to seniority over such persons. Such are not the facts of present case because in the present matter there is no dispute about the eligibility qualification of any one of the incumbents including respondent No.1/original applicant before the Tribunal.
7. At this stage learned counsel for the petitioners submitted that this Court vide order dated 9th July, 2003 had directed that the status- quo orders of this Court dated 17.12.1999 and 28.7.2000 will not come in the way of the State Government for considering/ordering promotion of the petitioners to the post of Executive Engineer. Almost all the private respondents before the Tribunal have already retired from service and respondent No.1 herein/original applicant before the Tribunal is due to retire on 30.8.2021. Therefore, benefits availed by them should be allowed to be retained. It goes without saying that if any one of the parties in the meantime was promoted on the post of Executive Engineer, that should not affect the promotion of respondent No.1/original applicant before the Tribunal on the basis of the seniority restored pursuant to the order of the Tribunal. The private respondents may however retain the benefits, if any extend to them, by order of such promotion or otherwise. We therefore, do not find any merits in either of the writ petitions which are dismissed however with the aforesaid clarification.
(MOHAMMAD RAFIQ) (VIJAY KUMAR SHUKLA)
CHIEF JUSTICE JUDGE
skm
Digitally signed by SANTOSH
MASSEY
Date: 2021.09.30 17:18:36 +05'30'