Madhya Pradesh High Court
Jagdish Prasad Yadav vs State Of M.P. on 31 July, 2017
Author: Sanjay Yadav
Bench: Sanjay Yadav, S.K. Awasthi
1 WA.747.2010
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
DIVISION BENCH:
HON'BLE SHRI JUSTICE SANJAY YADAV
&
HON'BLE SHRI JUSTICE S.K. AWASTHI
WRIT APPEAL No.747 of 2010
Jagdish Prasad Yadav
Vs.
State of Madhya Pradesh and others
Appellant in person.
Shri Praveen Newaskar, learned Government Advocate,
for respondent No.1 and 2/State.
Dr. O.P. Saxena, learned counsel for respondent No.3.
Whether approved for reporting: Yes/No.
________________________________________________________
Reserved on : 18/07/2017
Posted on : 31/07/2017
ORDER
Per Justice Sanjay Yadav:
This intra-court appeal under Section 2(1) of the Madhya Pradesh Uchcha Nyayalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005 takes exception to the order dated 20/10/2010 passed in W.P.No.3986/2006(S) whereby learned Single Judge has dismissed the
2 WA.747.2010 petition on the finding that the Cadre of Inspector (Handloom) is a separate cadre and it is not a part and parcel of Ministerial Cadre and that a Writ Petition No.6687/2003 filed by the petitioner for consideration of his case to the post of Accountant has been allowed, and the petitioner cannot simultaneously claim the promotion to the post of Inspector (Handloom).
2. We observe from the relief sought in W.P.No.3986/2006(S) that it is in the context of the limited departmental examination conducted by the Department for appointment of Inspector and Assistant Inspector under rule 12A of the Madhya Pradesh Handloom Directorate Non Gazetted (Non-Ministerial) Service Recruitment Rules, 1989 (for short 'the Rules, 1987'), wherein the petitioner, besides, being eligible was adjudged suitable in the examination and was appointed as Assistant Inspector instead Inspector (Handloom) for which he first preferred an Original Application before the Madhya Pradesh State Administrative Tribunal, vide O.A.No.2698/2000 which was transferred to the High Court after closure of the Tribunal and was registered as W.P.No.5708/2003. The said writ petition was disposed of on 14.11.2005 with liberty to the petitioner to file fresh petition. That Writ Petition No.3986/2006(S) came to be filed for the relief for the post of Inspector (Handloom).
3. When the impugned order is tested on the anvil of these facts, it cannot be approved of and deserves to be and is hereby set aside.
4. The question now arises is as to whether the petitioner be relegated to the Writ Court after 17 years 3 WA.747.2010 from the year when he first filed the Original Application or we should dwell on the merits as the entire pleadings are complete and parties have also agreed to address on merits. Therefore, parties are heard finally.
5. Rule 12A of the Rules, 1987 provides as under:
12.A Direct recruitment by selection on post of Inspector/Assistant Inspector from Ministerial Staff through limited competitive examination:-
(i) For filling up the post of Inspector/Asstt.
Inspector by selection from amongst the Ministerial Staff of Directorate of Handloom and its subordinate offices, the appointing authority shall hold annually at such time as he may determine a limited competitive examination in accordance with the scheme laid down in Schedule V;
(ii) 16% and 20% of the available vacancies for such appointment shall be reserved for candidates who are members of Scheduled Castes and Scheduled Tribes respectively;
(iii) In filling the vacancies so reserved candidates, who are members of Scheduled Castes and Scheduled Tribes shall be considered for appointment in the order in which their names appear in the list referred to in sub-rule (i) above irrespective of their relative rank as compared with other candidates;
(iv) If sufficient number of candidates belonging to the Scheduled Castes and Scheduled Tribes are not available for filling all the vacancies reserved for them, the remaining vacancies may be filled from the candidates who have been declared successful in the limited competitive examination. The unfilled vacancies reserved for the candidates of Scheduled Castes and Scheduled Tribes shall lapse;
(v) List of suitable candidates recommended for appointment:-
4 WA.747.2010 A list arranged in order of merit of the candidates who have qualified themselves by such standard as has been laid down in Schedule V, and of the candidates belonging to Scheduled Castes and Scheduled Tribes who though not qualified by that standard and declared by the appointing authority to be suitable for appointment with due regard to the maintenance of the efficiency of administration, shall be prepared.
(vi) Subject to the provisions of these rules, candidates will be considered for appointment to the available vacancies in order in which their names appear in the list;
(vii) The inclusion of a candidate's name in the select list confers no right to the appointment, unless the appointing authority is satisfied after such enquiry as may be considered necessary, that the candidate is suitable in all respects for appointment to the service.
6. That, decision was taken by the competent authority on 01.11.1993 to fill-in 5 posts of Inspector (Handloom) and 5 posts of Assistant Inspector with a clear stipulation that the eligibility would be as per Schedule V which lays down the scheme for filling up posts of Inspector/Assistant Inspector by limited departmental examination from amongst the Ministerial Staff of the Directorate of Handloom.
7. That clause 2 of Schedule V lays down the eligibility as under:
"2. Eligibility.- (a) Only such members of ministerial staff of the Directorate of Handlooms shall be eligible for getting the benefit of this scheme who possess the following qualifications, namely:-
(i) Who have been working on any ministerial post in the Directorate of Handlooms for at least 5 years in permanent or officiating capacity;
5 WA.747.2010
(ii) Who possess the educational qualifications prescribed for direct recruitment for the post of Inspector/Asstt. Inspector in Schedule III;
(iii) Whose age on 1st January of the year in which selection is held does not exceed of 40 (Forty) years and for employees belonging to Scheduled Castes and Scheduled Tribes will be forty-five years.
(b) No person shall be allowed to appear more than three times in the examination under this scheme."
That the prescribed educational qualification of Inspector and Assistant Inspector as per Schedule III is "Bachelor Degree in Arts/Commerce/Science from a recognized University."
8. Pertinent it is to note that Rule 12A of the Rules, 1987 does not empower the competent authority to relax the eligibility criteria for appointment through limited departmental examination. Powers of relaxation as per rule 20 vests only with the Governor. In respect of the powers under Rule 8, the same shall be dealt with at appropriate stage.
9. That in furtherance to decision dated 01/11/1993, the limited departmental examination was held and a provisional select list was published vide Annexure P/7 wherein the respondent No.3 is at Sl.No.1; whereas, the petitioner is at Sl.No.6.
10. That by order dated 06/04/1995 against 5 posts of Inspector (Handloom), two persons have been appointed, viz., Shri H.C. Mishra and Shri R.K.Gangrade whereas, the petitioner alongwith Shri P.K.Shastri, Shri R.K.Chaurasiya and Shri O.P.Rathore were appointed as Assistant Inspector by order dated 06/04/1995.
6 WA.747.2010
11. Later on, by order dated 26/08/1995, Shri P.K.Shastri and Shri R.K.Chaurasiya have been given the appointment as Inspector (Handloom). And against one vacant post of Inspector (Handloom), respondent No.3 was given the appointment by order dated 11/05/1995 subject to following conditions:
"fu;qfDr dh 'krsZ fuEukuqlkj gksxh%& 1&;fn ifjoh/kk vof/k esa deZpkjh fujh{kd gkFkdj?kk ds in ds fy, mi;qDr ugha ik;k x;k rks mls ewy fyfid oxhZ; in ij izR;kofrZr dj fn;k tkosxkA 2&rduhdh ;ksX;rk f=o"khZ; fMIyksek à ¼i=ksokf/k à ½ dkslZ] Lukrd ijh{kk ds led{k ugha ik;s tkus ij bUgsa ifjoh/kk vof/k ds nkSjku Lukrd ds led{k ijh{kk mRrh.kZ djuk gksxh vU;Fkk bUgsa vius ewy in ij izR;kofrZr dj fn;k tkosxkA 3&lacaf/kr deZpkjh bl vkns'k dh izkfIr ds 15 fnol ds vUnj fujh{kd gkFkdj?kk ds in ij vfuok;Z :i ls dk;ZHkkj xzg.k dj izfrosnu izLrqr djsa vU;Fkk fu;qfDr fujLr dh tkosxhA "
12. Thereafter, by order dated 12/01/1998, the appointment of respondent No.3 was cancelled on the finding that he was not eligible for the post. The order was in the following terms:
"dk;kZy;hu vkns'k dzekad gk@LFkk@3@15@5659] fnukad 11-9-95 }kjk vkidks gkFkdj?kk lapkyuky; ds vjktif=r à  à ¼vfyfid oxhZ;à ½ lsok HkrhZ fu;e 1987 ds fu;e 13 vulwph 5 ds fcUnq dzekkad 2 ds :i fu;e ,d ,oa nks ds micU/kksa dsvuqlkj fujh{kd in ds fy;s vLFkkbZ :i ls fujh{kd à  à ¼gk-à ½ ds in ij nh x;h fu;qfDr ds laca/k esa vgZ ik= u gksus ds dkj.k vkidks lwfpr fd;k tkrk gS fd ;g lwpuk i= tkjh gksus ds 30 fnu i'pkr~ fujh{kd à ¼gk- à ½ ds in ij dh x;h vkidh vLFkkbZ fu;qfDr lekIr ekudj vkidh lsok;s ewy in à ¼lgk;d xzsMAA ds inà ½ ij izR;kofrZr ekuh tk;sxhA"
Evidently, the order has been passed by the Commissioner, Handloom and Handicrafts, Madhya Pradesh, Bhopal.
7 WA.747.2010
13. Later on, by order dated 02/04/1998, respondent No.3 was again re-appointed on the post of Inspector (Handloom).
14. Being aggrieved by the action taken by the respondents No.1 and 2 in appointing respondent No.3 as Inspector (Handloom), despite, he being not qualified to hold the post, the petitioner preferred a representation. As no action was taken, he filed an Original Application before the Madhya Pradesh State Administrative Tribunal forming subject-matter of O.A.No.2698/2000 which was transferred to the High Court after closure of the Tribunal. As noticed (supra), after transfer of the case and registered as W.P.No.5708/2003, the same was disposed of by this Court vide order dated 14/11/2005 with liberty to the petitioner to file a fresh petition for redressal of his grievance.
15. However, the said petition was dismissed by the impugned order.
16. Appellant who appeared in person reiterated the contention raised in the writ petition as regards the eligibility of respondent No.3 to hold the post of Inspector (Handloom) as he did not possess the qualification prescribed under rule 12A read with Schedule V (ii) of the Rules, 1987. It is alleged that as the respondent No.3 was not even a graduate on the date when the applications were invited, he has been favoured by giving him appointment with a grace that he may complete graduation within the probationary period. It is further contended that the respondent No.3 even thereafter did not acquire the qualification, i.e., 8 WA.747.2010 obtained graduation from a recognized institution but on the basis of one certificate issued by Kakatiya University, Warangal (A.P.) on 18/09/1996, he became a graduate whereas the eligibility was to be adjudged on the date when the notification for recruitment of limited departmental examination was issued on 01/11/1993. On these grounds, besides seeking quashment of the appointment of respondent No.3, Appellant also seeks a direction to the respondents/authorities that since he was eligible and there was a post of Inspector (Handloom) under the limited departmental examination category to promote him to the said post.
17. Learned counsel appearing for the respondent No.3, on his turn has to submit that though the respondent No.3 was not a graduate as on 01.11.1993 or on the date of appointment but because of relaxation given to him, he has acquired graduation degree during probation period and was regularized on 12/10/1995. It is contended that it was within the competence of the authority under clause (a) of sub-rule (2) of rule 8 of the Rules, 1987 to have extended the relaxation in respect of qualification. It is further contended that the respondent No.3 having worked for over 20 years after having adjudged suitable for the post of Inspector (Handloom) has no objection if the petitioner is extended the relief sought for, without disturbing the status of respondent No.3.
18. Considered the rival submissions.
19. The issue which crops up for consideration is as to whether it was within the competence of the Authority to have relaxed the condition of recruitment to the post 9 WA.747.2010 of Inspector (Handloom) ear marked to be filled through limited departmental examination under rule 12A of the Rules, 1987. The relevant rule as adverted (supra), nowhere lays down that even a candidate not eligible will be considered for recruitment. There is no previous sanction by Governor is brought on record to establish that the case of respondent No.3 was treated as special case and the relaxation was granted. Nor the order dated 01/11/1993 provides for relaxation. Combined reading of rule 12A, Schedule V and Schedule III read with the order initiating the recruitment process leaves no iota of doubt that it was only the ministerial personnel who eligible on the date of notification were to appear in examination. Rule 12A of the Rules, 1987 are not subjected to rule 8 as would empower the competent authority to invoke the provisions contained under rule 8(2)(a) of the Rules, 1987.
20. Admittedly, respondent No.3 was not possessing requisite qualification even till the date of his appointment to higher post.
21. In Secretary, State of Karnataka v. Umadevi (2006) 4 SCC 1 it is held:
"43. Thus, it is clear that adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution, a Court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution. Therefore, consistent with the scheme for public employment, this Court while laying down the law, has necessarily to hold that unless the appointment is in terms of the relevant rules 10 WA.747.2010 and after a proper competition among qualified persons, the same would not confer any right on the appointee. If it is a contractual appointment, the appointment comes to an end at the end of the contract, if it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued. Similarly, a temporary employee could not claim to be made permanent on the expiry of his term of appointment. It has also to be clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules. It is not open to the court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad hoc employees who by the very nature of their appointment, do not acquire any right. The High Courts acting under Article 226 of the Constitution of India, should not ordinarily issue directions for absorption, regularization, or permanent continuance unless the recruitment itself was made regularly and in terms of the constitutional scheme. Merely because, an employee had continued under cover of an order of the Court, which we have described as 'litigious employment' in the earlier part of the judgment, he would not be entitled to any right to be absorbed or made permanent in the service. In fact, in such cases, the High Court may not be justified in issuing interim directions, since, after all, if ultimately the employee approaching it is found entitled to relief, it may be possible for it to mould the relief in such a manner that ultimately no prejudice will be caused to him, whereas an interim direction to continue his employment would hold up the regular procedure for selection or impose on the State the burden of paying an employee who is 11 WA.747.2010 really not required. The courts must be careful in ensuring that they do not interfere unduly with the economic arrangement of its affairs by the State or its instrumentalities or lend themselves the instruments to facilitate the bypassing of the constitutional and statutory mandates."
22. In State of Bihar Vs. Upendra Narayan Singh and others [(2009) 5 SCC 65], it is held:
"67. By now it is settled that the guarantee of equality before law enshrined in Article 14 is a positive concept and it cannot be enforced by a citizen or court in a negative manner. If an illegality or irregularity has been committed in favour of any individual or a group of individuals or a wrong order has been passed by a judicial forum, others cannot invoke the jurisdiction of the higher or superior Court for repeating or multiplying the same irregularity or illegality or for passing wrong order ......... ."
23. In Harminder Kaur and others Vs. Union of India and others [(2009) 13 SCC 90], it is held:
"11. When appointments in public office are required to be made, the provisions of Articles 14 and 16 of the Constitution of India are required to be scrupulously followed. When a departure is made for not scrupulously following the conditions precedent laid down in the statutory rules as also the constitutional scheme, it is imperative that the same must be done within the four corners of the delegated power by the Authority concerned."
24. In Secretary, A.P., Public Service Commission Vs. B.Swapna and others [(2005) 4 SCC 154], it is held:
12 WA.747.2010 "15. Another aspect which this Court has highlighted is scope for relaxation of norms.
Although Court must look with respect upon the performance of duties by experts in the respective fields, it cannot abdicate its functions of ushering in a society based on rule of law. Once it is most satisfactorily established that the Selection Committee did not have the power to relax essential qualification, the entire process of selection so far as the selected candidate is concerned gets vitiated. In P.K. Ramchandra Iyer and Ors. V. Union of India and Ors. (1984 (2) SCC 141) this Court held that once it is established that there is no power to relax essential qualification, the entire process of selection of the candidate was in contravention of the established norms prescribed by advertisement. The power to relax must be clearly spelt out and cannot otherwise be exercised."
25. In K.Shekhar Vs. V. Indiramma and others [(2002) 3 SCC 586], it is held:
"24. The clause, far from allowing NIMHANS the power to dispense with the advertisement of any lower post as a pre-condition to appointment, indicates that only eligible persons could be considered for selection. Once the barrier of eligibility was crossed, the Selection Committee could consider the suitability of the candidate for the post advertised. It follows that the appellant should not have been called for interview at all. His application clearly showed that he did not fulfill the requisite eligibility criteria for the post he had applied for, because he lacked any post- doctorate experience at all. The power in the Selection Committee to relax the eligibility criteria cannot be read as including the power to do away with the criteria altogether."
26. In Food Corpn. of India and others Vs. Bhanu Lodh and others [(2005) 3 SCC 618], it is held:
13 WA.747.2010 "20. Learned counsel for the respondent contended that the directives issued by the appellants and their action in putting a freeze on the process of direct recruitment of candidates to the Deputy Manager's post was in contravention of the Food Corporation of India (Staff) Regulations, 1971. The contention is that, although Regulation 7(2) requires all appointments to be made only if a person satisfies the qualifications and is within the age limit prescribed, there is a power of relaxation vested in the Board, which may by order relax any of the provisions of the Recruitment Rules contained in Appendix I, if in its opinion it is necessary or expedient so to do. The learned counsel contend that the Board was therefore the only authority to arrive at the opinion that it was necessary and expedient to relax the maximum age limit, and in doing so the Board had absolute discretion and it was not open to the Central Government to interfere with such discretion by the so called exercise of its powers under section 6(2) of the Act. For this reason also, counsel contends that the action of the appellants is liable to be faulted.
21. In our view, the contention is without merit. In the first place, section 45 of the Act makes it clear that the power of the Food Corporation of India to frame regulations under the Act is subject to the general restriction that the regulations are not inconsistent with the Act and the Rules made thereunder. Section 6(2) is a provision of the Act itself which empowers the Central Government to issue directives and bind the Board of Directors of Food Corporation to comply with such directives. Hence, it is not possible to read any regulation framed under section 45 as inconsistent with or overriding a directives or instruction validly given by the Central Government to FCI under section 6(2) of the Act. Apart therefrom, we are not able to appreciate the argument that the power of the Board of Directors to relax the prescribed age limit can be exercised in such an 14 WA.747.2010 unreasonable manner as to distort the regulation itself. As we have noticed, the relaxation could not have been done for the benefit of persons who were over-aged by about 15 years. For both reasons, the contention fails."
27. In Ram Sarup Vs. State of Haryana and others [(1979) 1 SCC 168], it is held:
"2. It is clear on a plain reading of Sub-clause (1) of Rule 4 of the Punjab Labour Service (Class I & II) Rules 1955 that no person can be appointed as Labour-cum-Conciliation Officer unless he possesses the educational and other qualifications mentioned in that clause. The minimum educational and other qualifications required by a candidate in order to be eligible to be appointed by as Labour-cum-Conciliation Officer are that, in the first instance, he must be a graduate of a recognised university preferably in one of the social sciences such as Economics, Commerce, Sociology or Law; secondly, he must have five years experience of the working of Labour laws as Labour Inspector, Deputy Chief Inspector of Shops or Wage Inspector and lastly, he must hold a diploma in social welfare of a recognised university or institution. The appellant was undoubtedly a graduate of a recongnised university in Economics and he also held diploma in Social Welfare of a recognised university but admittedly he did not have five years' experience in the field of Labour Laws as Labour Inspector or Deputy Chief Inspector of Shops or Wage Inspector. He was a Statistical Officer for about six years and thereafter for a period of about ten months he held the post of Chief Inspector of Shops.
His experience of the working of Labour laws as Chief Inspector of Shops which is a post higher than the Deputy Chief Inspector of Shops was, therefore, limited only to a period of about a ten months & he did not satisfy the requirement of 5 years' experience. He was, in the circumstances, ineligible to be 15 WA.747.2010 appointed as Labour-cum-Conciliation Officer under Rule 4 Clause (1). But the argument was that by reason of Clause (2) of Rule 4 the minimum educational and other qualifications set out in Sub-clause (1) were applicable only to a candidate who was appointed by promotion and these qualifications could not possibly apply in case of direct recruitment or transfer. Now it is true that Clause (2) of Rule (4) deals with a case of recruitment by promotion and it requires in so many terms that the candidate who is to be promoted must possess the minimum qualifications prescribed for the higher post to which promotion is to be made and the proviso permits the government to relax these qualifications in case of an official who is of outstanding merit. But we fail to see how this clause which deals with the specific case of recruitment by promotion can possibly be read as cutting into the requirement imposed by Sub-clause (1) that every person appointed to the service must possess educational and other qualifications set out in that clause by limiting such requirement only to cases of recruitment by promotion. Clause (2) of Rule 4 does not seek to qualify Sub- clause (1) or to restrict its ambit and operation. What it does is merely to deal with specific cases of recruitment by promotion and to confer power on the Government to relax the requirement of qualifications in case of promotion, where the official to be promoted is of outstanding merit. Clause (1) of Rule (4) is absolute in its terms and does not permit appointment of any person as Labour-cum-Conciliation Officer unless he possesses the educational and other qualifications set out in that clause, regardless of whether the appointment is to be made by promotion or by direct recruitment or by transfer. The appellant could not, therefore, be legitimately appointed to the post of Labour-cum Conciliation Officer unless, amongst other things, he possessed five years' experience in the working of Labour laws as Labour 16 WA.747.2010 Inspector, Deputy Chief Inspector for Shops or Wage Inspector, which he admittedly did not. It is no doubt true that the Government at one time decided that the post of Statistical Officer and Labour-cum- Conciliation Officer should be made interchangeable but this decision was not implemented by carrying out the necessary amendments in the Punjab Labour Service (Class I & II) Rules 1955. The result was that the decision of the Government remained what we may call brutum fulman and it could not operate in derogation of the requirement of the statutory rules made in exercise of the power conferred under the proviso to Article 309 of the Constitution. The appointment of the appellant to the post of Labour-cum- Conciliation Officer was, therefore, clearly in breach of Rule 4, Clause (1) of the Rules."
28. In the case at hand, Rule 12A(i), (v) & (vi) of the Rules, 1987 postulates in clear terms that the post of Inspector/Assistant Inspector from amongst the ministerial staff can be filled up through limited Departmental Examination in accordance with the scheme laid down in Schedule V. And that the list in order of merit of the candidates who have qualified themselves by such standard as has been laid down in Schedule V shall be prepared. That subject to the provisions of rule 12A, the candidates are considered for appointment. Even the notification issued on 01/11/1993 clearly stipulated that the eligibility should be as per Schedule V. Rule 12A as quoted supra is not subjected to Rule 8 as would create any right in the appointing Authority to cause any relaxation. The power of relaxation as per rule 20 is with the Governor. Since, no such relaxation was accorded in favour of respondent No.3, in our considered opinion, he was not 17 WA.747.2010 eligible for being considered for appointment, as he admittedly, did not possess the requisite qualification. In view whereof, we have no hesitation in holding the appointment of respondent No.3 as Inspector (Handloom) void ab initio as would create any right in him to hold the post. Accordingly, his appointment as Inspector (Handloom) is quashed. Since the Appellant was eligible and was successful in the examination and since four posts of Inspector (Handloom) were filled by the seniors immediately above him, right accrued in favour of the Appellant on the fifth vacant post of Inspector (Handloom), which was filled through respondent No.3, the respondents No.1 and 2 are therefore directed to consider the Appellant for appointment to said post. Since the Appellant has been wrongly deprived of the post of Inspector (Handloom) he shall be entitled to all consequential benefits, except that the back wages shall be 25%.
29. The appeal is disposed of in above terms. There shall be no costs.
(Sanjay Yadav) (S.K. Awasthi)
Judge Judge
b/-