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Madhya Pradesh High Court

Laxman Lillore vs The State Of Madhya Pradesh on 19 October, 2016

     HIGH COURT OF MADHYA PRADESH, PRINCIPAL SEAT AT
                       JABALPUR.

SINGLE BENCH:            JUSTICE SUJOY PAUL
                            W. P. No. 11044/2016

                                Laxman Lillore
                                      Vs.
                           State of M.P. & another
____________________________________________________________
     Shri A.P. Singh, learned counsel for the petitioner.
       Shri Girish Kekre, learned Government Advocate for the
respondents-State.

____________________________________________________________ (Order) 19/10/2016 In this petition filed under Article 226 of the Constitution, the pivotal question involved is whether the respondent No.2 is competent to place the petitioner under suspension.

2. Shri A.P. Singh, learned counsel for the petitioner submits that the petitioner was given the pay scale of 6500-10500 by order dated 11-02- 2009 (Annexure P/1). As per this order, the petitioner became a 'Gazetted Officer' and hence the Commissioner is not competent to place him under suspension. Reliance is placed on order of Gwalior Bench passed in WP. No.4764/10 (Parimal Singh Prajapati vs. State of M.P. and others) wherein it is held that since the Field Officer/petitioner is getting the scale of Gazetted Officer, the Commissioner is not competent to place him under suspension.

3. Shri Kekre, learned Government Advocate opposed the same by contending that when the order of Parimal Singh Prajapati (supra) was passed by Gwalior Bench, there were no recruitment rules. However, the

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Madhya Pradesh Resham Udyog Tratiya Shreni (Lipik Vargiya Avam Alipik Vargiya) Sewa Bharti Niyam, 1991 came into being w.e.f. 04-09- 2013. As per these statutory rules, the post of petitioner is a Class-3 post. No executive instructions can prevail over the statutory rules. By order dated 21-10-1986 (Annexure R/2), the petitioner was appointed by the Commissioner/Director (respondent No.2). Thus, as per Rule 9 of M.P.C.S. (CCA) Rules, 1966, the petitioner can be placed under suspension by the said authority.

4. No other point is pressed by the parties.

5. I have heard the parties at length and perused the record.

6. The bone of contention of the petitioner is based on the executive order dated 11-02-2009 (Annexure P/1) whereby the persons carrying the pay scale of 6500-10500 were treated as 'Gazetted Officers'. It is seen that as per the statutory recruitment rules, the post of the petitioner is classified as Class-3 post. Despite passing of executive order dated 11-02-2009, in the statutory rules (Annexure R/1) the post of the petitioner is classified as Class-3 post. Similar question was considered by the Division Bench in 2013 (3) MPLJ 508 (Arun Prakash Yadav vs. State of M.P.). In the said case certain police officers were given the pay scale and status of Gazetted Officer by passing an administrative order. However, in the recruitment rules they were still shown as non gazetted employees. The Division Bench opined that merely because an executive order is passed, they cannot enjoy the gazetted status because in the recruitment rules they are still shown as non gazetted employees. Para 14 of the said judgment reads as under:-

"14. The contention of the learned counsel for petitioner that mere declaration of the post of Inspector as Gazetted Class-II inducts the post of Inspector into the Gazetted service constituted under the Gazetted Rules, deserved outright rejection for the reasons that the Gazetted Rules categorically prescribe three kinds of persons forming the Gazetted cadre under Rule 4 which does not contemplate a fourth kind (i.e., Inspector) who claims his existence in the Gazetted service

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merely by implication based upon declaration on Inspector as gazetted. If such a course of action of induction by implication is permitted, then the sanctity of the Recruitment Rules shall stand eroded and arbitrariness will come into play bestowing unbridled power to the executive of making recruitment by a mode foreign to the recruitment rules by merely getting an executive order passed in favour of a select few without amending the Recruitment Rules. Moreover, it is further to be seen that the post of Inspector of Police continues till date to be the feeder post for filling up the Gazetted cadre comprising of the posts of various nomenclature falling broadly under three categories of SP, Additional SP and Dy. Sp comprised under the Gazetted Rules. Accordingly, this Court is of the considered view that the first contention of the learned counsel for the petitioner of seeking induction of the post of Inspector of Police by implication into the Gazetted cadre constituted under the Gazetted Rules deserves to be and is, therefore rejected."

7. Thus, I find force in the arguments of Shri Kekre that the judgment of Parimal Singh Prajapati (supra) is distinguishable because the effect of classification of the petitioner in the statutory recruitment rules was not there before the Gwalior Bench. I am bound by Division Bench judgment passed by this Court in Arun Prakash Yadav (supra). As per Rule 9 of the C.C.A. Rules, the Appointing Authority is competent to place the petitioner under suspension. The petitioner is admittedly appointed by the respondent No.2. For this reason also, I am unable to hold that the petitioner was placed under suspension by an incompetent authority. This is also trite that singular different fact may change the precedential value of a judgment. (See (2003) 2 SCC 111 Bhavnagar University vs. Palitana Sugar Mill (P) Ltd. and others). As noticed, when the Gwalior Bench judgment was passed in Parimal Singh Prajapati (supra), the petitioner's post was not classified in the statutory rules as Class-3 post. The Division Bench judgment in Arun Prakash Yadav (supra) has made it clear that by way of executive instructions, the effect of statutory rules cannot be diluted.

8. The suspension order is otherwise appeallable under the said rules. Thus, I am not inclined to entertain this petition and deem it proper to

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dispose of this petition by permitting the petitioner to prefer an appeal within three weeks from today before the competent appellate authority. In the said appeal, the petitioner can take assistance of document dated 20-06- 2016 filed with I.A. No.13295/16. If the appeal is preferred within aforesaid time, the competent appellate authority shall decide it on merits and impediment of delay will not come in the way of the petitioner.

9. As analyzed above, the judgment of Gwalior Bench is distinguishable in view of specific provision in the statutory recruitment rules and judgment of Arun Prakash Yadav (supra).

10. The petition is disposed of by reserving liberty to the petitioner to prefer an appeal. No cost.

(Sujoy Paul) Judge mohsin/