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2005 DIGILAW 302 (CHH)

Alok Chandravanshi v. Union Of India (Uoi)

2005-09-06

SUNIL KUMAR SINHA

body2005
ORDER Sunil Kumar Sinha, J. 1. The 14 petitioners, who are presently working on various posts in Chhattisgarh State Industrial Development Corporation (C.S.I.D.C.) have filed this writ petition for issuance of writ of mandamus directing the Madhya Pradesh Financial Corporation (M.P.F.C.) for considering their cases for promotion to the next higher post. 2. The brief facts are that prior to the re-organization of the erstwhile State of Madhya Pradesh, the petitioners were working with the Madhya Pradesh Financial Corporation. After the re-organization and bifurcation of the States, the M.P.F.C. continued in the State of Madhya Pradesh but in the State of Chhattisgarh, the C.S.I.D.C. came into existence. As an effect of the reorganisation, various employees including the petitioners have been posted in the State of Chhattisgarh because of their allocation. The case of petitioners is that the bifurcation of the M.P.F.C. is yet to complete and the allocation of the employees of M.P.F.C. to C.S.I.D.C. in Chhattisgarh is yet to attain the finality as the matter of their allocation is still pending with the committee constituted by the Central Government, but in the meanwhile, the M.P.F.C. is holding DPC for promotion of its employees, which are in the zone of consideration, to the higher cadre but in this process of promotion, the employees, who are presently working under M.P.F.C. are being considered and the employees working with C.S.I.D.C. are not being considered. Therefore, if, after finalization of the process of bifurcation and allocation, these petitioners or any one of them are finally allocated to the State of Madhya Pradesh with the M.P.F.C they shall be put to a disadvantageous position because many similarly placed co-employees working with the M.P.F.C. would enjoy the promotional post and they shall have to work on their respective posts presently held by them. 3. The M.P.F.C. (respondent No. 6 herein) has filed its return. It is submitted by the M.P.F.C. that out of 14 persons, who have exercised their option to serve in the State of Chhattisgarh, as many as 8 of them were already serving/posted in State of Chhattisgarh even before its formation. Out of the remaining 6 persons, while 5 persons were posted in State of Chhattisgarh before the cut off date (31-3-2003) pursuant to their option, the remaining one was transferred to Chhattisgarh pursuant to the allocation made effective from 1-4-2003. Out of the remaining 6 persons, while 5 persons were posted in State of Chhattisgarh before the cut off date (31-3-2003) pursuant to their option, the remaining one was transferred to Chhattisgarh pursuant to the allocation made effective from 1-4-2003. It is further submitted that some of the petitioners, who had earlier given their options for Chhattisgarh, tried to revoke their options and return to the State of Madhya Pradesh. The petitioner Nos. 4, 5, 6, 11, 12, 13 and 14 belong to this category. Out of the aforesaid 7 employees all except the petitioner No. 4 tried to withdraw their options by directly representing to the Kapoor Committee which is a committee constituted by the Government of India to resolve the disputes/grievances of the affected employees. The case of petitioner No. 4 has also been forwarded to the Kapoor Committee on the basis of an order passed by the Indore Bench of High Court of Madhya Pradesh in W.P. No. 966 of 2003. It has also been submitted that the Government of India is yet to take a final decision in this matter after recommendations of the Kapoor Committee, and since the business/work of the M.P.F.C. was being adversely affected because of the vacancies and it needed best personnels available for filing up of the vacant post, it decided to fill up the said posts by promotions on the basis of DPC recommendations in accordance with Rules. It is further submitted that the petitioners will not be eligible for consideration to the next higher post in M.P. Financial Corporation until they are finally allocated and transferred to the M.P.F.C. by the Government of India on the basis of the recommendations of the Kapoor Committee. Finally respondent No. 6 has given an undertaking in Para 1.6 of their return which is as follows: The answering respondent wishes to assure this Hon'ble Court as well as the petitioners that should any or all of them be allocated and transferred back to MPFC by the Government of India, the answering respondent will immediately proceed to consider the case of all such petitioners as per applicable Rules on the basis of their eligibility and merit and if so found fit., promotion will be granted without any delay, even if it requires the creation of additional posts if any. 4. 4. At the arguments, learned Counsel for the petitioners submitted the same points which are mentioned herein above. In addition to it, he also submitted that presently, the process of selection for promotional post among the persons working in M.P.F.C. has been completed but the results have not been announced so far due to an interim order of stay granted by this Court on 7-4-2005. He prays that either the petitioners may also be directed to be considered, setting aside the entire process of promotion already undertaken by the M.P.F.C. or the promotions may be held up till the decision of Government of India comes in the matter of final allocation of the petitioners. 5. On the other hand, learned Counsel for the M.P.F.C. submitted that the process of promotion among the employees, presently working in M.P.F.C. Indore, have been completed and the results are to be announced but the same has been withheld due to the interim order, referred to above. This has caused great hardship to the Corporation as its work is being adversely effected due to non-filing of the promotional posts which accrued as an effect of re-organization of erstwhile State of Madhya Pradesh, therefore, they may be allowed to announce the results of the promotion so as to carry out the proper functioning of the M.P.F.C. So far as the interest of the petitioners are concerned, it is fully protected by the undertaking given by the M.P.F.C. He further submitted that "as soon as the petitioners or any one of them are finally allocated or transferred to the M.P.F.C, Indore, their status on 31-3-2003 (Cut off date) will be determined and their cases for promotions will be considered giving respect to their status on the cut off date and for this, if some posts becomes sought, though it may not happen on the present statistics, their promotion will be considered even if it requires the creation of additional posts". After making this statement in reference to the above undertaking, he prayed for disposal of the petition on the above terms. 6. I have heard learned Counsel for the parties at length and have also perused the records of the writ petition. 7. After making this statement in reference to the above undertaking, he prayed for disposal of the petition on the above terms. 6. I have heard learned Counsel for the parties at length and have also perused the records of the writ petition. 7. As an effect of coming into force of the M.P. Reorganization Act, 2000 (herein after referred to as 'the Act'), the two successor States namely State of Madhya Pradesh and Chhattisgarh were created on the appointed day. Section 59 of the Act lays down the Provision as to Madhya Pradesh State Financial Corporation. Sub-section (3) of Section 59 provides that the Board of Directors of the Corporation may, with the previous approval of the Central Government and shall, if so required by the Central Government, convene at any time after the appointed day a meeting for the consideration of a scheme for the reconstitution or reorganization or dissolution, as the case may be, of the Corporation, including proposals; regarding the formation of new Corporations, and the transfer thereto the assets, rights and liabilities of the existing Corporation. Sub-section (4) of Section 59 provides that the scheme so framed in the general meeting shall be certified by the Central Government and upon such certification, the scheme shall, notwithstanding anything to the contrary contained in any law for the time being in force, be binding on the Corporations affected by the scheme as well as the shareholders and creditors thereof. It appears that in pursuance of the aforesaid powers, a scheme was constituted under Section 59(3) of the Act and was sent for certification to the Central Government. The Central Government vide its order dated 23rd June, 2003, certified the aforesaid scheme under Section 59(4) of the aforesaid Act making it effective from first of April, 2003. 8. Sub-para (a) of Para XVII of the aforesaid scheme provides that the members of the staff other that the Managing Director shall also be allocated to the respective institutions in the investment ratio as per Govt. guidelines. It further provides that no class four employees, drivers, shall be sent to Chhattisgarh against their willingness. 8. Sub-para (a) of Para XVII of the aforesaid scheme provides that the members of the staff other that the Managing Director shall also be allocated to the respective institutions in the investment ratio as per Govt. guidelines. It further provides that no class four employees, drivers, shall be sent to Chhattisgarh against their willingness. Sub-para (b) of Para XVII provides that on transfer of the staff to the respective institutions, the services rendered by them to the M.P.F.C. upto the cut-off date, i.e., 31-3-2003 or till such time the reorganization of M.P.F.C. and creation of any such institution for the State of Chhattisgarh, actually takes place, shall count for leave, gratuity, provident fund and all other benefits which are at present being enjoyed by the staff. A bare perusal of Para XVII shows that in fact, these are terms on the final allocation of the employees to a particular successor State securing their respective rights in their services so that they may not be deprived of the service benefits which they were entitled for in usual course of their services. 9. Thereafter, a committee in the chairmanship of Shri R.P. Kapoor, I.A.S. (Retd.) was constituted by the Central Government under Section 43 of the Reorganisation Act to make recommendations to the Central Government for apportionment of the assets and liabilities of inter-State Corporation/Companies/State Public Sector Undertaking in terms of provisions of the aforesaid Act, 2000 and for considering the representations from the employees of the Corporations/Companies/State Public Sector Undertaking and make appropriate recommendations to the Central Government. 10. Now question arises as to whether in light of the aforesaid facts and circumstances, when the representations are pending before the Kapoor Committee and matter of settlement of employees of M.P.F.C. has not attained its finality, the M.P.F.C. may be allowed to make promotions of its present working employees or not ? In this writ petition, I am not entering into the controversy about the final allocation of the employees of the M.P.F.C. or C.S.I.D.C. My consideration is limited to the interest of the petitioners and also to the interest of the present employees working with the M.P.F.C. and to the interest of the M.P.F.C. to the extent of its smooth functioning in the State. 11. 11. If we go through the certified scheme, it would appear that in any case, when the bifurcation of the M.P.F.C. would attain its finality the division between the assets and liabilities including those of the employees shall not disturb the scale of investment ratio. This has been defined in Paragraph XVII - (a) and (b) of the aforesaid scheme. The word 'investment ratio' is defined in the definition clause of the scheme (at Serial No. IV), it is as follows: (IV) Investment Ratio: The "Investment Ratio" shall mean the ratio between the aggregate of the principal loans outstanding, as on the effective date for computation of Investment ratio, i.e., 31-10-2000, from the industrial concerns which have been granted loans by the Madhya Pradesh Financial Corporation and allocated on the basis of the physical location of the fixed assets of the concern lying within the different jurisdictions of the respective Corporation/Agency viz., the reconstituted Madhya Pradesh Financial Corporation and the 'Designated Agency for Chhattisgarh. All assets, liabilities and employees shall also be bifurcated in the same investment ratio and in case immovable property in Chhattisgarh is less/more than the entitlement, it would be suitably compensated/adjusted by other liquid assets. 12. Sub-clause (2) of this clause clearly indicates that all the assets and liabilities and the employees shall also be bifurcated in the same investment ratio. That is to say that the number of employees to be allocated in a particular Corporation either in the State of M.P. or in the State of Chhattisgarh is fixed which admittedly is calculated in the ratio of 82.25 : 17.75 in both the States respectively. This statistic has not been challenged or disputed by either party. If the promotions are allowed to be done in the M.P.F.C. certainly, it would be a promotion among the existing 82.25% of the employees who are presently working with the M.P.F.C. Even if some of them are promoted to the higher post and ultimately they are allocated to the other State, their substantive posts held on the cut off date or the promotional posts, as the case may be, shall fall vacant on their such allocation. Another situation may also arise that some of the employees, presently working in the C.S.I.D.C. may also be finally sent to the M.P.F.C. which the petitioners apprehend, but in any case, the constant ratio of 82.25 : 17.75 in between these two States shall not be disturbed and in the said situation, the rights of the present petitioners, are not going to the effected only on the ground that in case, they are finally allocated to the State of M.P., there would be no vacant post for their promotion and they shall have to work on the present post till the vacancies in the next higher posts are created. In the aforesaid situation of bifurcation on the principles of constant investment ratio, their rights are fully protected in light of the undertaking made by the M.P.F.C. in Para 1.6 of their return and also in light of the statement made by Shri Shekhar Bhargava, Sr. Advocate appearing on behalf of the M.P.F. C. which goes to show that seniority will be determined on the cut-off date and they shall be considered for promotion on the basis of their seniority on the said date. The doubt in the mind of the petitioners that even after giving undertaking for their promotions, they may not be promoted for want of vacant promotional post is baseless. As I have already said above that if the allocation is to be made on the basis of investment ratio and thereby number of the employees to be finally allocated to both the States are fixed, then the right of the petitioners, if finally sent to the M.P.F.G, is fully protected because in any case, the promotional posts which are held to be available today will be available for them because the M.P.F.C. and C.S.I.D.C. both are bound to take the employees at the constant rate of investment ratio. 13. I do not find any force in the arguments advanced by the learned Counsel for the petitioners that if the M.P.F.C. is allowed to make present promotion, it shall adversely effect the rights of the petitioner and in case, the petitioners or any one of them are finally allocated to the State of M.P., they shall be put to a disadvantageous position. 14. 14. Therefore, I dispose of this writ petition on the following terms: (1) The M.P.F.C. is free to complete the process of promotion of the employees working with them and the stay order granted by this Court on 7-4-2005 is uplifted. (2) On the basis of undertaking given by the M.P.F.C. in this Court if the petitioners or any of them are allocated and transferred back to the M.P.F.C. by the Government of India, the M.P.F.C. will immediately proceed to consider the cases of all such petitioners as per applicable rules on the basis of their eligibility and merits and if so found fit, the promotion will be granted without any delay, even if it requires creation of additional post, if any. (As per undertaking in Para 1.6 of their return) (3) There status for consideration for promotion will be determined as on 31-3-2003 (cut-off date) mentioned in Para I (ii) of the scheme. 15. With above declarations and observations, this writ petition stands finally disposed of. There shall be no orders as to the costs.