Madhya Pradesh High Court
Murarilal Yadav vs The State Of Madhya Pradesh on 21 August, 2012
1
HIGH COURT OF MADHYA PRADESH : JABALPUR
WRIT PETITION No.4105/2011
Murarilal Yadav
Vs.
State of Madhya Pradesh
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Shri K.C. Ghildiyal, learned Counsel for the petitioner.
Smt. Nirmala Nayak, learned Govt. Advocate, for the
respondent.
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Present : Hon'ble Shri Justice K.K. Trivedi
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O R D E R
(21st August, 2012) This petition is directed against the order dated 04.02.2011 by which the claim made by the petitioner for payment of salary of promotion on the post as Assistant Grade-I w.e.f. 19.09.1996 has been denied and by the order of the even date, the promotion of the petitioner on the post of Assistant Grade-I is said to be modified, on the grounds that the petitioner was initially appointed as Lower Division Clerk on 28.07.1976 in the establishment of Law & Legislative Affairs Department of Govt. of Madhya Pradesh and was posted in the office of the Advocate General. Later on the petitioner was promoted on the post of Upper Division Clerk vide order dated 28.02.1984. By an order dated 19.06.1996, the petitioner was promoted as Assistant Grade-I and on successfully completing the period of probation of 2 years, he was confirmed on the said post on 27.10.1998.
2. The petitioner was working as Assistant Grade-I when all of a sudden the order was issued on 09.03.2000 stating that the promotion of the petitioner as Assistant Grade-I 2 was erroneous and it is modified to the effect that he is deemed to be promoted on the post of Record Keeper w.e.f. 19.09.1996. The petitioner assailed the said order in O.A. No.1235/2000 before the M.P. State Administrative Tribunal, Bench at Gwalior. An interim stay was granted to the petitioner and he continued to work on the post of Assistant Grade-I. The said O.A. was transferred to the High Court, Bench at Gwalior, after closer of the Tribunal and was registered as W.P. No.5055/2003. The said petition was allowed vide order dated 06.07.2004 and the impugned order issued on 09.03.2000 was quashed. However, liberty was granted to the respondent to take appropriate steps after granting an opportunity of hearing to the petitioner. It is the case of the petitioner that the said order was not implemented for a period of two years and all of a sudden again in one envelop a show cause notice dated 28.11.2006 was sent to the petitioner along with the order dated 28.11.2006 changing the promotion of the petitioner from the post of Assistant Grade-I to the post of Record Keeper. The said order was again challenged in a writ petition before this Court, Bench at Gwalior, being W.P. No.6466/2006 (S). The said petition was again allowed vide order dated 18.02.2010 and again the impugned order was quashed. Liberty was again granted to the respondent to extend full opportunity of hearing to the petitioner and to pass an appropriate order. During the pendency of the aforesaid writ petition, by order dated 07.02.2008 the petitioner was promoted on the post of Section Officer and as such he was working on the said post. However, when a claim was made for payment of salary of the post of Assistant Grade-I pursuant to the promotion order, the said claim was rejected and it has been said that the petitioner is not entitled to the salary of the said post. Again the amended order has been issued treating the promotion of the petitioner on the post of Record Keeper and not on the post of Assistant Grade-I. By the order of the even date it is 3 said that in terms of the provisions of Fundamental Rules, the petitioner is not entitled to the salary of the post of Assistant Grade-I and, therefore, such a claim is rejected. It is contended that such action of the respondent is per se illegal, being violative of the provisions of statutory rules, therefore, the writ petition is required to be filed.
3. Return has been filed by the respondent and it is contended that by the order issued on 23.09.1995, one post each of Assistant Grade-I was upgraded to the post of Section Officer in the office of the Additional Advocate General at Indore and Gwalior and, therefore, there was no post of Assistant Grade-I available to consider promotion of the petitioner on the said post. This fact was categorically pointed out to the petitioner by a show cause notice dated 01.04.2010 in which it was specifically stated that in the year 1996 since there was no post of Assistant Grade-I available and only a post of Record Keeper alone was available, therefore, the promotion of the petitioner is to be treated only on the post of Record Keeper and not on the post of Assistant Grade-I. Because of these facts, since the promotion of the petitioner was erroneous, the reply to the show cause submitted by him was considered and not found satisfactory. In terms of the instructions issued by the General Administration Department of Govt. of Madhya Pradesh, such a promotion of the petitioner was erroneous and, therefore, it was rightly amended. As per entitlement, the petitioner was promoted as Record Keeper and thus no wrong was committed. Thus, it is contended that the petition is devoid of any substance and deserves dismissal summarily.
4. Heard learned Counsel for the parties at length and perused the record.
45. Statutory rules are made by the State Government known as Madhya Pradesh Law & Legislative Affairs Department (Recruitment & Conditions of Service) Rules, 1982 (herein after referred to as the 'Rules'). The rules prescribe the method of recruitment, which include direct recruitment by competitive examination or by selection, recruitment by promotion of members of the service and recruitment by transfer of persons from other services. The manner of promotion is prescribed in Rule 13 of the Rules aforesaid. A Committee is to be constituted and the said committee is required to consider the cases of eligible persons for promotion on the next higher post. The conditions of eligibility are prescribed in Rule 14 of the aforesaid Rules. The sanctioned posts are mentioned in Schedule-I appended with the Rules aforesaid. No post of Record Keeper is mentioned in the said Schedule. There are posts of Lower Division Clerk-cum-Typist, Upper Division Clerk, Assistant and the post of Section Officer (only these posts are mentioned because the dispute is relating to these posts only).
6. Schedule-IV of the Rules prescribes channel of promotion from the feeder post to the next higher post. Lower Division Clerk-cum-Typist can be promoted as Upper Division Clerk on completion of five years of service. The Upper Division Clerk can be promoted as Assistant on further completion of five years of service. The Assistant is to be promoted as Section Officer. There is no mention of Assistant Grade-III, Assistant Grade-II and Assistant Grade-I in the Schedule of the Rules. The nomenclatures of the posts, if changed, have not been corrected in the Schedule of the Rules aforesaid. This makes it clear that a Lower Division Clerk-cum-Typist can be promoted as Upper Division Clerk, which post has now been designated as Assistant Grade-II. This is not disputed that the petitioner was appointed as Lower Division Clerk and was later on 5 promoted as Upper Division Clerk. This being so, it is clear that the petitioner was working as Upper Division Clerk (now known as Assistant Grade-II) before his promotion as Assistant Grade-I. It appears that the nomenclature of the post of Assistant was changed to be Assistant Grade-I sometime but the said change was not incorporated in the Schedule of the Rules. This being so, it is to be seen whether the petitioner had completed the requisite years of service in the year 1996 when he was promoted as Assistant Grade-I or not.
7. Admittedly the petitioner was promoted on the post of Upper Division Clerk (Assistant Grade-II) in the year 1984. His name finds place in the order dated 28.02.1984 at S.No.10 of the Lower Division Clerks, who were promoted as Upper Division Clerks. If he was promoted as Upper Division Clerk (Assistant Grade-II) in the year 1984, he had completed 12 years of service, which is much more than what is prescribed in the Rules as Upper Division Clerk and was, thus, in the zone of consideration for further promotion on the post of Assistant. The order dated 23.09.1995 nowhere specifically prescribes that one post each of Assistant in the office of Additional Advocate General, Indore and Gwalior, are upgraded as Section Officer and no further posts were sanctioned. Which particular post was upgraded and whether any person was working on the said post or not, is not clear from the return. If the petitioner was well within the zone of consideration and Departmental Promotion Committee has considered his claim for promotion as Assistant Grade-I, how could it be said that such consideration was erroneous or illegal. The post of Record Keeper is neither in the Schedule of the Rules nor it has been pointed out that same has been separately sanctioned within the cadre of the ministerial staff and is in the channel of promotion of Upper Division Clerk. If the said post is not mentioned in the recruitment rules, how could it 6 be said that the claim of the petitioner was considered against the said post. The petitioner was in the zone of consideration for promotion on the post of Assistant Grade-I and if found fit and promoted as such, could be posted as Assistant Grade-I even against the vacant post of Record Keeper. At any rate the petitioner could not have been said to be promoted on the post, which was neither in the Schedule of the Rules nor was in the channel of promotion and, therefore, the stand taken by the respondent cannot be accepted. It is not stated by the respondent in the return that petitioner has worked only as Record Keeper and was not allowed to work as Assistant Grade-I. Further keeping in view the fact that the petitioner was promoted as Assistant Grade-I, he has been subsequently promoted on the post of Section Officer in the year 2008. This being so, it cannot be said that the petitioner was not entitled to be promoted on the post of Assistant Grade-I.
8. These aspects were considered by this Court on two occasions. In the original application, the very same stand was taken by the respondent, which was specifically turned down by the Court. It was held that nothing was placed on record to show that there was no vacancy even then the case of the petitioner was considered. If the petitioner was to be given promotion on an ex cadre post, at least his willingness should have been obtained. This was not done and, therefore, this Court has categorically held that such an action on the part of the respondent, that too without granting an opportunity of hearing to the petitioner, was not justified. Again the very same stand has been taken by the respondent but nothing has been placed on record to indicate that there was no vacancy available on the post of Assistant Grade-I after upgradation of the post. Even if there was no vacancy available, the petitioner could not have been considered for promotion on an ex cadre post. If the promotion was considered, in absence of any contrary 7 document, it has to be inferred that the vacancy was very much there against which the claim of the petitioner for promotion as Assistant Grade-I was considered. This being so, the stand of the respondent cannot be accepted at all. Further, the petitioner has worked as Assistant Grade-I and the said work of the petitioner was taken into consideration while considering his case for further promotion on the post of Section Officer and that is why the order of promotion was issued on 07.02.2008. This fact is not disputed by the respondent though specifically stated by the petitioner. The petitioner is, thus, entitled to the salary of the post of Assistant Grade-I from the date of his promotion on the said post and the said benefit cannot be denied in the garb of application of Fundamental Rules, which according to this Court, are not attracted at all in the present case.
9. Consequently, this writ petition is allowed. The orders dated 04.02.2011 contained in Annexure P-14 and P-15 are hereby quashed. The petitioner be deemed to be promoted on the post of Assistant Grade-I w.e.f. 19.09.1996 and be granted the benefit of salary of the said post from the date of promotion. All the arrears of salary be calculated and be paid to the petitioner within a period of three months from the date of receipt of certified copy of this order.
10. The writ petition is allowed to the extent indicated herein above. There shall be no order as to cost.
(K.K. Trivedi) Judge Skc