Madhya Pradesh High Court
Santosh Yadav vs The State Of Madhya Pradesh on 28 January, 2020
Author: Subodh Abhyankar
Bench: Subodh Abhyankar
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HIGH COURT OF MADHYA PRADESH:JABAPLUR
SB: Hon'ble Shri Justice Subodh Abhyankar, J
WRIT PETITION NO.13711 OF 2016
Santosh Yadav.
Vs.
State of M.P. & others.
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Shri M.P.S.Raghuvanshi, learned counsel for the petitioner.
Shri R.B.Singh, learned Govt. Advocate for the respondents-
State.
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ORDER
(Passed on the 28thday of January, 2020) This petition has been filed under Article 226 of the Constitution of India by the petitioner, a Sub Inspector of Police, against the show cause notice dated 11.9.2015 passed by the respondents whereby the petitioner has been directed to show cause as to why on the basis of revised merit list with regard of Subedar/Sub Inspector/Platoon Commander Selection, 2008 the petitioner be not allotted the post of Platoon Commander.
2. Brief facts of the case are that in July, 2011 an advertisement was issued by the VYAPAM inviting applications for the post of Subedar/Platoon Commander/ Sub Inspector. Pursuant to the aforesaid advertisement, 2 written examination was also conducted on 25.9.2011 and the result was declared on 31.12.2011 by issuance of the select list wherein the petitioner was placed at Sl.No.3 in the waiting list whereas one Gajendra Singh was at Sl.No.1 and Jitendra at Sl.No.2. The case of the petitioner is that all the aforesaid three persons including the petitioner received 213 marks in the written examination, however, Gajendra Singh, who was at Sl.No.1 was selected as Naib Tahsildar through Public Service Commission and accordingly he did not join and otherwise also he had already refused his appointment.
3. According to the petitioner, on 3.2.2012, a selection list of 14 persons belonging to Scheduled Caste was published as 14 posts which were earlier reserved for the Ex-Servicemen and due to non-availability of Ex- Servicemen these posts were converted in SC/ST category as per Rule 11(8) of the Madhya Pradesh Police Executive (non-gazetted) Service Recruitment Rules 1997. The further case of the petitioner is that in the month of February 2012 two writ petitions viz. WP No.3134/2012 and WP No.3135/2012 were filed before the Indore Bench of this Court wherein the main challenge was to the list of 14 persons of SC/ST category issued on 3.2.2012. When these 3 petitions were pending, the main selectees whose result was earlier declared on 30-31.12.2011, their basic training started from 31.5.2012 and subsequently, on 19.6.2012, the petitioner was offered the post of Platoon Commander, however, for claiming his appointment for the post of Sub Inspector, he filed WP No.4824/2012 at Gwalior Bench of this Court, which was finally decided on 14.2.2013 and while allowing the said writ petition, the following observations were made by the Gwalior Bench, which read as under:-
"10. On the basis of aforesaid analysis, petitioner deserves to succeed. Accordingly, this Court is of the opinion that the petitioner is entitled to get up-gradation in the wait list by one number, and therefore, if by such up-gradation, he is entitled for the post of Sub-Inspector (District Executive Force), the appointment order is required to be issued on the said post. Consequently, petition is allowed. The respondents are directed to treat the petitioner's position upgraded by one number and pass necessary appointment orders on post of Sub Inspect (District Executive Force). Let this exercise be completed forthwith. No costs."
4. Pursuant to the aforesaid order, the petitioner was also granted appointment on the post of Sub Inspector of Police on 22.4.2013. Subsequently, on 6.8.2013 the orders were passed in the aforesaid WP Nos.3134/2012 and 3135/2012 by the Indore Bench of this Court by setting 4 aside the list of 14 SC/ST candidates dated 3.2.2012 and it was directed to the respondents for re-allocation of the posts based upon on the merits of the candidates. Thereafter, on 17.10.2014, WP No.5820/2012 filed by one Rajesh Singh Sikarwar was dismissed by the Gwalior Bench of this Court wherein the said Rajesh Singh Sikarwar who was posted as Plantoon Commander had sought his appointment on the post of Sub Inspector, on the ground that once having joined the post of Platoon Commander, he cannot be allowed to claim the post of Sub-Inspector over and above the waiting list candidates who are offered posts in order of their merits and according to the vacancies. Thereafter, on 11.9.2015, the respondents issued the impugned show cause notice to the petitioner as to why he should not be reverted to the post of Platoon Commander from the post of Sub Inspector in the light of the order passed by the Indore Bench.
5. Learned counsel for the petitioner has submitted that the appointment of the petitioner on the post of Sub Inspector was on account of writ of mandamus issued by this Court in WP No.4824/2012 and the aforesaid order was not challenged by the respondents before the Division Bench and has already been complied with vide order dated 5 22.4.2013. Hence, in view of the same it is submitted that the aforesaid order cannot be undone by an executive order. It is further submitted that the petitioner was not a party to the Writ Petitions Nos.3134/2012 and 3135/2012 which were filed before the Indore Bench of this Court, hence the said order is not binding on him on this count as well. In support of his contention Shri MPS Rahuvanshi, learned counsel for the petitioner has also relied upon a decision of the Hon'ble Apex Court in the case of Sankar Deb Acharya and others vs. Biswanath Chakraborty and others, reported in (2007) 1 SCC 309. Learned counsel for the petitioner has also relied upon a Division Bench judgement of the Gwalior Bench of this Court dated 10.01.2018 in WA No.256 of 2014 wherein this Court, while taking into account the aforesaid decisions of the Indore Bench has observed that the fact regarding the equal pay in respect of all the posts concerned was not brought to the knowledge of the Single Judge as also of the Division Bench of the Indore Bench of this Court. Thus, Shri Raghuvanshi has submitted that the decision rendered by the Indore Bench in WP Nos.3134/2012 and 3135/2012 is not a binding precedent.
6. On the other hand learned counsel for the respondents has opposed the prayer of the petitioner and 6 has submitted that the respondents have rightly issued the show cause to the petitioner in accordance with the order passed by this Court in WP Nos.3134/2012 and 3135/2012.
7. Heard the learned counsel for the parties and perused the record.
8. From the record, this Court finds that the petitioner's appointment on the post of Sub Inspector was pursuant to an order dated 14.2.2013 passed by the Gwalior Bench of this Court in WP No. 4824/2012 whereby in para 10 of the said order the following observations were made:-
"10. On the basis of aforesaid analysis, petitioner deserves to succeed. Accordingly, this Court is of the opinion that the petitioner is entitled to get up-gradation in the wait list by one number, and therefore, if by such up-gradation, he is entitled for the post of Sub-Inspector (District Executive Force), the appointment order is required to be issued on the said post. Consequently, petition is allowed. The respondents are directed to treat the petitioner's position upgraded by one number and pass necessary appointment orders on post of Sub Inspect (District Executive Force). Let this exercise be completed forthwith. No costs."
Admittedly, the aforesaid order has not been challenged by the respondents before the Division Bench and the same has already attained the finality, so much so that it has already been executed by the respondents and the petitioner has already been appointed on the post of Sub-Inspector on 7 22.4.2013.
9. So far as the effect of the order passed by the Indore Bench of this Court in WP Nos.3134/2012 and 3135/2012 is concerned, at this juncture, it would be germane to refer to its relevant paras which read as under:-
"It was categorically observed by this court on 30/3/2012 that the persons who are less meritorious will not be sent for training by the State Government and in fact, the respondent - State was restrained to give effect to the consolidated select list of 14 candidates. It is really unfortunate that inspite of there being a categoric direction restraining the respondents to send persons to training with a defiant attitude the State Government has appointed and sent respondent Nos. 4 and 5 for training. Not only this, later on, this Court has observed that the training of respondent No. 4 and 5 shall be subject to the final outcome of the Writ Petition and, therefore, keeping in view the interim orders, this Court is of the considered opinion that the entire selection list deserves to be reviewed to the extent stated above and the State Government deserves a command to reallocate the post as per the merit list prepared by them, meaning thereby, to be more specific, a person higher in merit has to be placed above than the person lower in merit and the higher post carrying higher pay scale has to be offered to a person who is more meritorious than the persons who is less meritorious based upon the preference submitted by them. The Writ Petition is allowed with the following directions :
(A) The revised select (Annexure P/5) is quashed.
(B) The appointment order of respondent 8 No.4 and 5 appointing them to the post of Sub - Inspector of Police are hereby quashed.
(C) The respondents are directed to carry out the exercise of reallocation of post based upon the merit list meaning thereby, exclusively on merit within a period of 60 days from the date of receipt of Certified Copy of this order.
(D) the respondents are also directed to grant the benefit of notional seniority to the petitioner on the post of Sub -
Inspector of Police and he shall be entitled for all consequential benefits except backwages. Similarly, in case respondents No.4 and 5 are found eligible for some lower post, they shall also be entitled for all consequential benefits on reallocation except backwages.
(E) The aforesaid exercise be concluded within a period of 60 days from the date of receipt of Certified Copy of this order. In Writ Petition No. 3135 / 2012 which is also being disposed of by this common order, the only difference is that the petitioners are members of Schedule Tribes and they are also claiming appointment on the post of Sub - Inspector/ Subedar (Police) by virtue of their performance in the examination and they are certainly more meritorious than respondent Nos. 4 to 10. The respondent Nos. 1 to 3 in the present case also shall carry out the exercise of reallocation as stated in the preceding paragraphs within the same period as stated above.
The petitioners in the present case are having 195, 195, 194, 194, 193 marks respectively, whereas, the respondents No.4 to 10 are having 190, 189, 188 and 188 etc., marks, respectively, meaning thereby that the 9 respondents are less meritorious than the petitioners and, therefore, the Writ Petition No. 3135 / 2012 also stands allowed with similar relief to the petitioners."
Admittedly, the counsel for the petitioner in the Indore Bench did not draw the attention of learned Single Judge of the Indore Bench to the order dated 14.2.2013 passed by the Gwalior Bench in W.P.No.4824/2012 which led to passing of the order dated 060.2013 passed in W.P.No. 3134/2012 and W.P. No.31352012 running contrary to Gwalior Bench order. It would be apt to refer to the judgment of the Hon'ble Apex Court in the case of Sankar Deb Acharya (supra), the relevant para of the said judgment is reproduced as under:-
"16. It appears that pursuant to a writ of mandamus issued by the Division Bench on 5.5.2000 the Government of West Bengal issued a fresh promotion order under the memo dated 28.3.2001. In the said memo the Government has acknowledged the mistake committed in the order dated 11.9.1991 in ignoring the Rules for the determination of merit-cum-seniority. In the said order the Government has considered the entire Rules relevant for determination of merit-cum- seniority and grant of higher scale to the eligible officers and the same order was passed in accordance with the Rules.
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18. Aggrieved by the order of the Tribunal of remand the private respondents herein filed WPST No.1044 of 2002 before the Division Bench 10 of the Calcutta High Court. The Division Bench of the High Court after hearing the parties by the impugned judgment and order set aide the directions of the Tribunal of remand of the matter for re-consideration. The High Court was of the view that the controversy has been finally settled in terms of the judgment and order passed in CO No.590(W) of 1988 by learned Single Judge, affirmed in appeal. The High Court further directed the authorities to act in terms of the promotion order dated 11.9.1991 by setting aside the order dated 28.3.2001 which was issued pursuant to a writ of mandamus issued by the Division Bench of the High Court.
19. The High Court order is assailed mainly on two grounds (a) that the directions in the impugned judgment run counter to the Rules, and
(b) that the impugned judgment is contrary to earlier orders passed by the co-ordinate Bench of the High Court. In short, the impugned judgment of the High Court has set-aside two orders of the co-ordinate Benches, passed earlier.
20. The impugned judgment of the High Court has relied on the judgment in CO No.590(W) of 1988. As already noticed, the judgment in the aforesaid matter was confined to the imposition of additional condition, which has no relevancy in the facts of the present controversy. The High Court also erred in directing to restore the promotion order dated 11.9.1991, which was set aside earlier by co-ordinate Bench by its judgment dated 27.11.1995 in FMAT No.589 of 1993. The High Court was also clearly in error in setting aside the order dated 28.3.2001 which was passed pursuant to a writ of mandamus issued by the co-ordinate Bench earlier in WPST No.8 of 1998 on 5.5.2000. In any event, in our view, the impugned order of the High Court is unsustainable in law."
(emphasis supplied) If the facts and circumstances of the case on hand are 11 tested on the anvil of the aforesaid dictum of the Hon'ble Apex Court, then this Court has no hesitation to come to a conclusion that the respondents have erred in issuing the impugned show cause notice dated 11.09.2015 to the petitioner as also in reverting him from the post of Sub Inspector to the post of Platoon Commander as in the present case also a mandamus was issued by the writ Court in W.P.No. 4824/2012, directing the respondents to appoint the petitioner on the post of Sub-Inspector. Thus, the operation of the said order cannot be nullified by any other order passed by the Co-ordinate Bench of this Court which had no occasion to consider the same.
10. So far as the decision dated 10.1.2018 of the Division Bench of Gwalior Bench of this Court passed in W.A. No.256/2014 is concerned, this Court also finds that the Division Bench has also distinguished the order of the learned Single Judge of Indore Bench in WP Nos.3134/2012 and 3135/2012 dated 6.8.2013 as also of the order of Division Bench in Writ Appeal No.1109/2013 arising out of the order passed by the said order dated 6.8.2013 of the Indore Bench on the ground that the fact that all the posts viz. Subedar/Sub Inspector/Platoon Commander carry equal pay was not brought to the knowledge of the learned Single 12 Judge as also of the Division Bench in Writ Appeal. Thus, the aforesaid order passed by the Indore Bench of this Court in WP Nos.3134/2012 and 3135/2012 and which has also been affirmed by the Division Bench at Indore in W.A. No.1109/2013 have been held to be inconsequential.
11. On the aforementioned analysis, the petition stands allowed and the impugned show cause notice dated 11.9.2015 is hereby quashed. No costs.
(SubobhAbhyankar) Judge 28/01/2020 Digitally signed by MANJOOR AHMED Date: 2020.01.29 11:08:30 +05'30' Ansari