Madhya Pradesh High Court
Vijay Prakash Agarwal vs The State Of M.P on 18 May, 2010
W.P.No. 10952 / 2003 18-05-2010 None for the petitioner. Shri Akhilesh Jain, counsel for the petitioner. Shri Greeshm Jain, counsel for the respondents.
The petitioner has filed this petition being aggrieved by the order dated 29-11-1996 by which the petitioner has been reverted from the post of Head Clerk/Accountant to the post of Upper Division Clerk on account of the fact that he has not passed the accounts training examination within a period of two years as stipulated in his order of promotion dated 26-12-1985. Other persons mentioned in the order dated 29-11-1996 had filed W.P.No. 10983/2003 and W.P.No. 10937/2003 assailing the aforesaid order on the same grounds which have been dismissed by order dated 24-2-2009 in the following terms :-
"Writ Petition No. 10983 / 2003 & Writ Petition No.10937 / 2003 24/02/2009:
None is appearing for the petitioners. Shri S.S. Bisen, learned Government Advocate for respondents/State.
As common questions are involved in both these petitions, they are being heard and decided by this order.
2. In both the petitions challenge is made to orders dated 29/11/1996 and 05/12/1996, respectively by which petitioners are being reverted from the post of Head Clerk/Accountant to the post of Upper Division Clerk. Both the petitioners are working in the Cooperative Department, petitioner Tulsiram Nema in W.P. No.10937/03 is working in the office of Asst. Registrar Cooperative Society, Narsinghpur, so is the case with petitioner Shri Abhayraj Berdia in W.P. No.10983/03. So far as Tulsiram Nema is concerned he was appointed in the department as an L.D.C. on 01/06/1959. On 10/10/1969, he was promoted on the post of Upper Division Clerk. Vide order Annexure A-1, dated 17/06/1985, he was promoted on the post of Head Clerk/ Accountant. However, while so promoting a condition was imposed on the said order to the effect that his promotion is subject to the condition that he passes the 2 W.P.No. 10952/2003 accounts training examination within 2 years as required under Rule 14 of the M.P. Sub-ordinate Cooperative (Ministerial) Service Recruitment Rules, 1966, when after completing 2 years of service in the promoted post of Head Clerk/Accountant, petitioner sought exemption from qualifying in the aforesaid examination on the ground that he has completed 45 years of age and as per circular Annexure A-3 issued by the State Government he may be exempted from passing the examination, respondents rejected the claim and after issuing show cause notice have reverted the petitioner. Challenge to the aforesaid reversion is made on the ground that the exemption sought for by the petitioner as contained in Annexure A-3 is not been granted, the same amounts to arbitrary exercise of power by the State Government. That apart, contending that petitioner having worked for more than 2 years without any adverse effect cannot be reverted on the ground that he has not passed the requisite examination. Pointing out the case of one Abhayraj Berdia and P.S. Janghele, petitioner Tulsiram Nema prays for interference into the matter.
3. So far as petitioner Abhayraj Berdia in W.P.No. 10983/03, is concerned he was appointed as L.D.C and was promoted by the same order dated 17/06/1985, Annexure A-1, on the post of Upper Division Clerk and he is being reverted on same consideration, he has also challenged the reversion on the ground that he has worked for long period as Head Clerk/Accountant and now after 2 years he cannot be reverted.
4. Respondents have filed a return and in the return filed by the respondents it is stated that under Rule 14 of the Recruitment Rules of 1966, passing of the accounts training examination is a mandatory requirement for promotion on the post of Accountant/Head Clerk and as petitioners have not fulfilled the aforesaid statutory requirement, it is stated that they are to be reverted. So far as grant of exemption in accordance to circular Annexure A-3 is concerned, it is a case of respondents that the said circular is only applicable in case of departmental examination, but when passing of a particular examination, which is statutory requirement under Recruitment Rules, 1966, it is pointed out that the circular Annexure A-3 will not apply.
5. So far as discrimination vis-à-vis that of Shri Abhayraj Berdia and Shri P.S. Janghele is concerned, in para 7 of the return it is pointed out that action is being taken against these persons also, they are being reverted and it is seen that Abhayraj Berdia himself is the petitioner in one of the petition and is challenging reversion.
6. From the facts that have come on record it is clear that respondents have promoted the petitioners on the post of Head Clerk, vide order Annexure A-1 dated 17/06/1985 and a condition was imposed in the backside 3 W.P.No. 10952/2003 of the aforesaid order indicating that passing of the accounts training examination contemplated under Rule 14 of the Recruitment Rules is a necessary condition and in case the petitioners do not fulfill the aforesaid requisite condition within a period of 2 years, they shall be reverted. In both these cases petitioners have not passed the aforesaid examination, which is a mandatory and statutory requirement under Recruitment Rules, 1966, however, petitioners claim exemption on the basis of a circular dated 05/08/1978, Annexure A-3, the said circular is a notification issued by the State Government with regard to passing of departmental examination, it only says that in case of a employees, who have completed age of 45 years, requirement for passing the requisite departmental examination may be exempted. However, this rule does not say that statutory requirements contemplated under the Recruitment Rules are also to be exempted in case of employees, who have completed 45 years of age, but circular Annexure A-3, only exempts employees from passing departmental examination, when there is no statutory requirement of passing any such a departmental examination. In the present case, respondents have enforced a condition, which is stipulated in the appointment order Annexure A-1, and the said condition is a mandatory requirement under the recruitment rules, when the recruitment rules prescribed minimum qualification of passing accounts training examination as a pre-requisite for appointment to the post of Accountant/Head Clerk, no benefit can be granted to the petitioner ignoring or giving a go by to the aforesaid statutory requirement. That apart when the order of promotion itself contemplated a condition that the promotion is subject to compliance with the mandatory requirement under Rule 14 of the statutory rules, no case is made out for granting any relief deviating from the aforesaid statutory requirement. Claim of the petitioners on the basis of the circular Annexure A-3 for seeking exemption is not tenable for the simple reasons that Annexure A-3 will not have the effect of superseding a statutory requirement. Even in the circular Annexure A-3 it is clearly stipulated that the prescribed departmental examination to be passed will only be the one which is prescribed for effectively discharging the duties.
7. Accordingly, considering the aforesaid and finding no error in the orders passed by the respondents reverting the petitioners both the petitions are dismissed."
The petitioner's case being identical and the issue involved in the present petition being the same, the petitioner's case is squarely covered by the decision rendered by this Court in the aforesaid writ petitions decided on 24-2- 2009 as quoted above.
4 W.P.No. 10952/2003In the circumstances, the present petition is also dismissed in terms of and for the reasons mentioned in the aforesaid order. The petition is accordingly dismissed. In the facts and circumstances of the case there shall be no order as to costs.
(R.S.Jha) Judge mct