Madhya Pradesh High Court
Virendra Kumar Soni vs M.P.State Agriculture Marketing Board on 18 December, 2017
1 R.P. No.492 of 2017
HIGH COURT OF JUDICATURE MADHYA PRADESH,
JABALPUR
REVIEW PETITION NO.492 OF 2017
Virendra Kumar Soni and another
Vs.
M.P. State Agricultural Marketing Board
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Present :-
Shri Mukesh Agrawal, Advocate for the petitioners.
Shri Pranay Choubey, Advocate for the respondent.
ORDER
(Passed on this the 18th day of December, 2017) This review petition has been filed by the petitioners against the order dated 4.7.2017 passed by this Court in W.P. No.12149/2012 (Virendra Kumar Soni & another vs M.P. State Agriculture Marketing Board) whereby the writ petition was dismissed rejecting the claim of the petitioners seeking promotion.
2. Counsel for the petitioners has submitted that in the writ petition the following reliefs were sought:-
"(i) The Hon'ble High Court may kindly be pleased to issue an appropriate writ, order or direction to call for the entire 2 R.P. No.492 of 2017 record from the respondent with regard to promotion to the post of Assistant Engineer from the post of Sub Engineers and Draftsman for its perusal.
(ii) The Hon'ble High Court may kindly be pleased to issue an appropriate writ, order or direction against the respondent to grant promotion to the post of Assistant Engineers from the post of Sub Engineers to the petitioners after their completion of 8 years of service as per rules framed by the respondent with all consequential monetary benefits.
(iii) The Hon'ble High Court may kindly be pleased to issue an appropriate writ, order or direction to declare the petitioners are entitled to hold the post of Assistant Engineers from the date they are eligible as per rules.
(iv) Any other appropriate writ, direction or order against the respondents be issued in favour of the petitioners with cost of the petition."
3. Learned counsel for the petitioners has submitted that the petitioners have sought promotion to the post of Assistant Engineer from the post of Sub Engineers after completion of eight years' of service as per rules framed by the respondent vide Annexure-P/1 for which approval was also made vide Annxure-P/2 by the Joint Director. Thus the contention of the petitioners was that they should have been promoted on the basis of the gradation list of 1998 or soon afterwards against 07 3 R.P. No.492 of 2017 posts of Assistant Engineers from the quota of Diploma Holder Sub Engineers which were vacant at the time of DPC held on 26.5.2008, and this Court after considering the rival submissions has observed in para 12 and 13 as under :
"12. The aforesaid objection of common gradation list has been dealt with by the respondent in their reply wherein it is stated that a common/qualification wise gradation list has been prepared wherein the diploma and degree holders have been kept in one list only and the other four diploma holders who were senior to the petitioners have been placed above them and promoted on the post of Assistant Engineers.
13. As per the minutes of the meeting held by DPC, the promotions have been granted on the basis of seniority-cum-merit basis and as stated by the respondents the petitioners were in the zone of consideration but other four diploma holders who were senior to them have been promoted, which statements appear to be correct and there appears to be no violation of the reservation roster as well. It may be true that the State has not prepared separate gradation list for diploma and degree holders as directed by the Apex Court but there appears to be no prejudice caused to the petitioners on account of this lapse on the part of the State."
4. Learned counsel for the petitioners has further submitted that so far as pleadings of the respondents are concerned, this Court has also taken note of the same in para 5 of the order, which reads as under :
4 R.P. No.492 of 2017"5. In return, the respondent has submitted that as per the Rajya Mandi Board Seva Viniyam, 1998, in case of diploma holders, the minimum experience is 8 years whereas in case of degree holders, it is 4 years. It is further submitted by the respondent that a combined qualification wise gradation list has been prepared of diploma holder and degree holder Sub-Engineers and in para 5 & 6 of the reply, the following pleadings have been made:
"5. That, presently the qualification wise gradation list has been prepared and published showing position as on 01.04.2013, copy of which is filed herewith as Annexure R/1. The names of both the petitioners appear at serial no.11 and 16 respectively. It is submitted that for filing up 10 posts in respective categories under 50% Diploma holder Sub-Engineer quota and 02 posts under 20% of Degree holder Sub-Engineers quota, DPC which took place on 13.08.2013 at Bhopal. The names of both the petitioners were under the zone of consideration for the posts under respective quota with the DPC was as under:-
Diploma Holders Sub-Engineers - UR - 04 (50% Quota) SC - 02 ST - 04 Total 10 posts Degree Holders Sub-Engineers - UR - 02 (20% Quota) SC - 00 ST - 00 Total 02 posts
6. That, the DPC considered all the eligible Sub- Engineers from the respective zone of consideration and 04 Diploma holders incumbents under UR category senior to the petitioners (from Serial No.2 to 4) have been found fit against 04 UR vacancies. Names of candidates at serial no.6 & 7 were kept in the waiting list. Likewise, against 02 UR vacancies under Degree holder quota the Committee found two incumbents from 5 R.P. No.492 of 2017 the gradation list of Degree holders namely, Shri Brajesh Jain and Shri Ashok Kumar Sharma fit for promotion and according their names have been recommended. Copy of the promotion order dated 16.08.2013 is filed herewith as Annexure R/2. The minutes of DPC will be produced before this Hon'ble Court for due satisfaction, if occasion so arises."
5. Learned counsel for the petitioners has further submitted that this Court has passed the order on the basis of aforesaid pleadings wherein the respondents have narrated the fact in respect of the gradation list as on 01.04.2007 whereas the petitioners' claim was for the year 1998 only, hence the pleadings made by the respondents were misleading which led to passing of an order dismissing the petition.
6. On the other hand, learned counsel for the respondent has opposed the review petition and has also filed a return. The respondent has also relied upon the judgments rendered by the Apex Court in the case of Aribam Tuleshwar Sharma vs Aribam Pishak Sharma and others, (1979) 4 SCC 389 as also in the case of Lily Thomas v. Union of India and others, (2006) 6 SCC 224 regarding the power of review of the Court. It is further submitted that even referring to the minutes of the DPC which took place on 26.05.2008, the same do not give any 6 R.P. No.492 of 2017 cause to the petitioners to seek review of the judgment as this Court has rightly considered the Minutes of the DPC which took place on 13.08.2013. It is further submitted that the minutes of the DPC of 2008 reveals that the DPC considered all the eligible Sub Engineers in order of their seniority, however, while segregating the eligible candidates under the respective quota, the D.P.C. accepted inter-se seniority in Diploma holders quota from the date of initial appointment, whereas in the Degree holders quota the seniority was determined as per the amended Regulations and it is further submitted that the gradation lists published prior to the amendment in the Regulations are not relevant for the present adjudication and no advantage can be sought by the petitioners in respect of the gradation list as on 01.04.2013 which also could not be amended.
7. Heard learned counsel for the parties and perused the record.
8. After perusing the record, this Court is of the opinion that while considering the case of the petitioners this Court has not taken into consideration the fact that the petitioners are 7 R.P. No.492 of 2017 claiming their promotion since 1998 i.e. the year in which they first became eligible for the promotion. In such circumstances the gradation list of the year 1998 or the immediate subsequent gradation list should have been taken into consideration as their case was also recommended vide Annexure-P/2 whereas the DPC which was convened on 26.05.2008 has taken into account the gradation list as on 01.04.2007 which in the considered opinion of this Court ought not to have been considered while considering the case of the petitioners who had already become entitled for the promotion in the year 1998 itself after completing 8 years in service as Sub-Engineers. Thus, apparently, the aforesaid aspects could not be taken into consideration by this court while passing the order under review which deserves to be recalled and now it is directed that since the petitioners completed 8 years as Sub Engineers in the year 1998 itself hence they are entitled to be promoted as Assistant Engineers as per the Promotion Rules.
9. So far as the aforesaid judgments cited by the respondents are concerned, the same are of no help to them and in fact it has been held by the Apex court that review can be 8 R.P. No.492 of 2017 made only in the cases where there appears to an error on the face of record which this court finds to be present in the case on hand.
10. As a result, this review petition is allowed, the order dated 4.7.2017 passed in W.P. No.12149/2012 is hereby recalled and the writ petition No.12149/2012 stands allowed. Now it is directed that the respondents shall consider the petitioners' case for promotion taking into account the fact that the petitioners became eligible to be promoted in the year 1998 itself and shall pass the appropriate order within a period of 3 months from today, all the consequential benefits be also accorded to them.
(Subodh Abhyankar) Judge 18/12/2017 DV