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Madhya Pradesh High Court · body

2003 DIGILAW 969 (MP)

S. v. Shrivastava VS Nepa Mills Ltd.

2003-08-08

DIPAK MISRA

body2003
JUDGMENT By this writ petition preferred under Article 226 of the Constitution of India the petitioner has prayed for issue of a writ of certiorari for quashing the order dated 11.4.1990, Annexure-A, by which the respondent No. 4 was posted as Assistant Manager in the Security Department of Napa Mills Limited. It is not disputed that the Nepa Mills Limited is a Central Government undertaking. It is further prayed to consider the case of the petitioner for promotion when his juniors Shri R.S. Vyas and other respondents, namely, respondents 5 to 7 were considered for promotion. The petitioner was employed as an Officer in the Security Department of the respondent No.1. He was confirmed in the post as Security Officer vide order dated 8.10.1979. The respondent No.4 was not confirmed on the post of Inspector. By order dated 26.10.1981 the respondents Nos. 6 and 7 were given lift by two stages at the same time from the post of Assistant in the pay scale of Rs. 380-695 to the post of Assistant Welfare Officer in the pay scale of 550-1100. Though the respondent No.4 was not confirmed his case alongwith others was considered for promotion to the higher post. It is pleaded that respondent No.4 could not have been considered for promotion ignoring the case of the petitioner. Various other averments have been made to his non-consideration. It is pertinent to mention that the learned counsel has drawn the attention of this Court to Annexure-A dated 11.4.1990 by which the respondent No.4 was transferred to the Security Department as Assistant Manager. Learned counsel for the petitioner has drawn the attention to Annexure-L dated 16.1.1982. The said annexure reads as under: "Matter was discussed with CMD and PIRM and I have been directed to inform you that since Shri R.S. Vyas, Shri Badri Yadav and Shri Bhagwan Singh are not posted in the Security Deptt. it does not affect your seniority or otherwise. As such your claim for promotion as requested vide your above mentioned application does not hold good and that you would be promoted in the Security Deptt. as and when vacancy arose." It is submitted by Mr. it does not affect your seniority or otherwise. As such your claim for promotion as requested vide your above mentioned application does not hold good and that you would be promoted in the Security Deptt. as and when vacancy arose." It is submitted by Mr. Shrivastava that as initially the petitioner was assured that the respondents were not going to be posted in the security Department and the same does not affect his seniority and his case would be considered for promotion in the Security Department as and when such vacancy arises, vide Annexure-L but the petitioner was compelled to visit this Court when Annexure-A came into existence in the year 1990. A return has been filed by the respondents No.1 to 3 contending, inter alia, that the petitioner was promoted to the post of Assistant Officer (Security) and cannot claim the status of officer (security). It is also urged that the entire petition is based on the assumption that he is an officer (Security) which is misconceieved. It is also urged that Nepa Mills Limited is not a State under Article 12 of the Constitution and hence, no writ would lie. It has been brought to the notice of the Court that a Division Bench of this Court has passed an order holding Nepa Limited to be other authority. The said order has been assailed in Civil Appeal No. 7256/89. Various other averments have been stated to show how the petitioner was not entitled to be promoted alongwith others. The main question that arises for consideration whether a writ would lie against Nepa Mills or to what relief the petitioner is entitled. As far as the first aspect is concerned it is not disputed that the Division Bench of this Court has already determined that Nepa Mills is other authority under Article 12 of the Constitution. In Special Leave Petition the Hon'ble Supreme Court while granting leave, passed the following order :- "Special leave to appeal is granted. Tag on with Civil Appeal No. 2876/86. Issue notice returnable in four weeks on application for stay. Pending notice the operation of the order of the High Court shall remain stayed." This Court had granted time to the petitioner and also asked Mr. S.K. Yadav, learned Government Advocate to find about the, position of the aforesaid civil appeal before the Apex Court. Issue notice returnable in four weeks on application for stay. Pending notice the operation of the order of the High Court shall remain stayed." This Court had granted time to the petitioner and also asked Mr. S.K. Yadav, learned Government Advocate to find about the, position of the aforesaid civil appeal before the Apex Court. The learned counsel has submitted that no such case is pending. On a perusal of the order passed by the Apex Court it transpires that the Apex Court had directed the civil appeal to be tagged with SLP No. 2876/86. The said Civil Appeal No. 2876/86 has been disposed of and the judgment is reported in AIR 1991 SC 101 (Delhi Transport Corporation v. Delhi Transport Mazdoor Congress). On a perusal of the cause title, the civil appeal does not seem to be in feature in the same. Be that as it may, without getting into the said controversy I am inclined to direct that as Annexure-L was issued to the petitioner he remained in a state of confusion, otherwise he might have approached this Court on earlier occasion. In view of this I am inclined to grant leave to the petitioner to make a representation to CMD Nepa Mills within a period of eight weeks who shall hear him on the question of seniority and, if necessary, shall also hear the persons who are likely to be affected and pass a cogent and reasoned order within a period of two months from the date of filing of the representation. If the petitioner is aggrieved by the order passed by the said authority he may approach the appropriate legal forum. Accordingly, the writ petition stands disposed of. There shall be no order as to Costs.