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Madhya Pradesh High Court · body

2005 DIGILAW 464 (MP)

Ramesh Chandra Sharma v. State of M. P.

2005-04-01

K.K.LAHOTI

body2005
ORDER 1. Petitioner Ramesh Chandra Sharma filed this petition on 27 .6.1988 seeking following reliefs: (1) Strike down the DPC proceedings (Annexure G) dated 5.2.1988; (a) Strike down the sanction given by the Public Service Commission and the order dated 8.6.1988 Annexure L. (2) Quash promotion order of respondent No.6. Sanjay Pandey as Assistant Engineer; (3) Quash the approval given by the Public Service Commission for promotion of respondent No.6 Sanjay Pandey as Assistant Engineer; (4) Direct the respondents to consider the case of the petitioner for appointment as Assistant Engineer from the date he was recommended by the State Government and the Commissioner. Municipal Corporation: and (5) Any other writ/writs. order/orders direction/directions deemed fit and proper in the circumstances of the case. 2. The case of the petitioner is that he was appointed as Sub-Engineer in the Municipal Corporation. Baraseoni. on 18.9.1976 and was transferred in the same capacity to Mudwada Katni on 25.7.1978. The petitioner is a Graduate Engineer. Respondent No.6 Sanjay Pandey. a Diploma-holder. was initially appointed as Sub-Engineer in the year 1979. His services were terminated. He was again appointed on 18.6.1981. The Municipal Council Murwada Katni. was upgraded as Corporation on 1.11.1981. There are no service rules governing the services of the Corporation employees and usually the rules which are followed are M.P. Municipal Services (Scale of Pay and Allowances) Rules, 1967 and the M.P. Municipal Employees Recruitment and Conditions of Service Rules, 1968. The qualification for the post of Engineer in M.P. Municipal Services (Scale of Pay and Allowances) Rules are as follows: "(1) Graduate in Civil Engineering from a University recognized by the Government of Madhya Pradesh (ii) Diploma in Civil Engineering from an institute recognised by the M.P. Government with practical experience of atleast 10 years in a Government Department or in a local body as Overseer." 3. The Municipal Corporation. Katni was considering to fill up a post of Assistant Engineer. The petitioner considering himself eligible for appointment as Engineer submitted his application on 5.1.1981 to the then Commissioner. Municipal Corporation, Katni. The Commissioner vide certificate dated 5.1.1981 (Annexure A), found the petitioner eligible for promotion on the post of Assistant Engineer. Again by letter dated 11.2.1981 (Annexure-C). the case of the petitioner was recommended by the Commissioner. It appears that the then Hon' ble Minister, Urban Administration and Environment Department. Municipal Corporation, Katni. The Commissioner vide certificate dated 5.1.1981 (Annexure A), found the petitioner eligible for promotion on the post of Assistant Engineer. Again by letter dated 11.2.1981 (Annexure-C). the case of the petitioner was recommended by the Commissioner. It appears that the then Hon' ble Minister, Urban Administration and Environment Department. M.P., on 14.2.1981 directed Commissioner to appoint petitioner as Assistant Engineer, but the petitioner was not promoted. On 7.4.1984 the Urban Administration Department also wrote a letter Annexure E to the Commissioner for the promotion of the petitioner on the post of Assistant Engineer. The same was repeated vide letter Annexure E-l dated 5.9.1985. It is alleged that the then Commissioner and the Executive Engineer were interested in promoting respondent Sanjay Pandey out of turn. So the case of the petitioner was not considered. It is also pleaded that in the year 1986. the Municipal Commissioner considered the proposals of the petitioner and respondent Sanjay Pandey and found that the petitioner being Degree-holder. is entitled for promotion. and respondent No.6 Sanjay Pandey. who had not completed ten years' service and was a Diploma-holder. cannot be considered for promotion. Thereafter. the DPC convened its meeting to consider the case of petitioner on the basis of ACR. On 5.2.1988 the DPC held its meeting and recommended the case of respondent No.6 for the promotion on the post of Assistant Engineer (Civil) and thereafter respondent No. 6 was promoted as Assistant Engineer. This action of the respondent has been challenged by the petitioner on following grounds: (a) The criteria fixed by the DPC was not correct. (b) One of the members. Shri S.G. Pathak was on leave on the date and was not present. (c) No DPC was convened on 5.2.1988 and proceedings were drawn on 10.2.1988. (d) One Shri K.L. Pandey. Revenue Inspector, tiled a Misc. Petition before the High Court which was registered as MP No. 866/88 in which various allegations were made about the DPC. (e) The petitioner filed his objections to the Public Service Commission against the approval of selection of respondent No.6 raising various objections, but the selection of respondent No.6 was approved by the PSC and he was appointed on the post of Assistant Engineer. 4. Respondents 2, 3 and 6 have tiled separate returns and supported the selection of respondent No.6 on the post of Assistant Engineer. 5. 4. Respondents 2, 3 and 6 have tiled separate returns and supported the selection of respondent No.6 on the post of Assistant Engineer. 5. The learned counsel appearing for petitioner contended that wrong criteria was fixed by DPC. Single Bench of this Court of MP No. 3472/88 (Kishori Lal Pandey v. Municipal Corporation, Karni) has found promotion arbitrary and set aside it. The petitioner's datas were wrongly placed before the DPC. The CR of 1983 of the petitioner was not considered. In the year 1986. the petitioner was awarded 'Ka' but he has been shown 'Kha' in the proceedings. AC Rs of the year 1986 produced before the Court are tampered with. He has also shown a photocopy of ACR of 1986 in which he has been awarded 'ka' by the by the Commissioner while in the ACR produced by the Corporation. the petitioner has been awarded 'Kha'. The petitioner, in column No.7 of the DPC which relates to adverse note, it has been mentioned that there is one warning. two DEs were pending and the petitioner resigned on 15.9.1981 and has resumed the duty on 18.1.1983. All the three facts are incorrect and were wrongly placed before the DPC. The petitioner has been wrongly awarded three marks while as per criteria fixed by DPC. the petitioner was entitled for higher marks. Because of all this, the petitioner's case has been prejudiced. That the promotion of Shri K.L. Pandey was also considered by the same DPC on the same day and Court has set aside the promotion order. The petitioner was senior and degree holder. He was appointed more than 11 years back from the date of consideration. That if ACR of 1983 was not available then the petitioner ought to have been awarded average mark for that year. but without awarding any mark for that year, the case of the petitioner has been considered. That as per criteria for the appointment on the post of Engineer, the petitioner is a graduate in Civil Engineering from a recognised University and respondent No.6 is a Diploma holder, and he was not entitled for consideration as he was not having experience of at least 10 years in the Municipal Council. In aforesaid circumstances, respondent No.6 was not entitled even for consideration on the aforesaid date. 6. The learned counsel appearing for respondent No.6 supported the promotion order. In aforesaid circumstances, respondent No.6 was not entitled even for consideration on the aforesaid date. 6. The learned counsel appearing for respondent No.6 supported the promotion order. It is contended that in the case, Rules namely M.P. Municipal Employees Recruitment and Conditions of Service Rules, 1968 will apply (in short, "Rules of 1968"). Under rule 12, the criteria is merit-cum-seniority. The petitioner submitted his resignation from the service, but he was subsequently taken hack in service and there was break in the service. That DPC proceedings cannot be examined like an appeal and the scope of interference is limited. 7. The learned counsel appearing for petitioner in reply to the aforesaid contentions submitted that the Rules of 1968 will not apply and in fact Rules of 1967 shall apply and under Rules of 1967, respondent No.6 was not entitled for appointment/promotion as Assistant Engineer. 8. Considering the controversy involved, following points emerge in this petition for decision: (A) Whether the proceedings of the DPC are fair. (B) Whether the correct datas were placed before the DPC. (C) Whether respondent No.6 was entitled for appointment on the post of Assistant Engineer on the date of DPC. (D) Whether the petitioner was wrongly withheld from the promotion on the post of Assistant Engineer. 9. From the perusal of the facts, it is not in dispute that on 5.2.1988 when the DPC convened its meeting, the petitioner had already completed 11 years of service and the respondent No.6 had completed six years of service. The educational qualification of the petitioner is B.E. and LL.B. He is a degree holder engineer. The respondent No.6 is a Diploma holder. 10. Except M.P. Municipal Services (Scale of Pay and Allowances) Rules, 1867 (hereinafter referred as "Pay Rules, 1967"), for Municipal Corporation on the date of the meeting of the DPC. there was no other service recruitment rule. The Municipal Corporation has taken into consideration the relevant rules, namely M.P. Municipal Services (Scale of Pay and Allowances) Rules, 1967 and M.P. Municipal Employees Recruitment and Conditions of Service Rules, 1968 (hereinafter referred to as "Service Rules. 196W'). As per Schedule III under rule 6, the qualification for direct recruitment on the post of Engineer is as under: Engineer For direct recruitment AA Rs. 300-15-405- 1. Graduate in Civil Engineering from EB 20-425- 225-550 a University recognized by the 550-EB-25-700 Government of Madhya Pradesh. 2. 196W'). As per Schedule III under rule 6, the qualification for direct recruitment on the post of Engineer is as under: Engineer For direct recruitment AA Rs. 300-15-405- 1. Graduate in Civil Engineering from EB 20-425- 225-550 a University recognized by the 550-EB-25-700 Government of Madhya Pradesh. 2. Diploma in Civil Engineering from an institute recognised by the M.P. Government With practical experience of at-least 10 years in a Government Department or in a local body as Overseer A Rs. 240-12-1/2 1. Overseer's Diploma in Civil Engineer 315-EB-340 from an institute recognised by the 15-370-20-450 State Government 2. Previous experience of Overseer's post in a Municipal Council of 6 years or above. Under Service Rules, 1968, a procedure for recruitment by promotion is envisaged. The relevant rules are 12 and 13. which are quoted as under: "12. Recruitment by Promotion - (a) Recruitment by promotion shall be made on consideration of merits, seniority being taken into account where merits are equal. (2) In selecting candidates for promotion regard shall be had to (i) tact and energy; (ii) intelligence and ability; (iii) integrity; and previous record of service. (3) In the case of posts carrying a maximum monthly salary not exceeding Rs. 95/- the Chief Municipal Officer and in other cases the District Selection Committee shall consider the cases of all the eligible candidates and may in his or its discretion interview any of the candidates. (4) The Chief Municipal Officer or the District Selection Committee, as the case may be, will select candidates and will arrange their names in the order of preference. Where the Chief Municipal Officer is the competent authority for making appointments the orders will be issued by him. In other cases the District Selection Committee shall recommend the names of the candidates found suitable for promotion to the Standing Committee. The Standing Committee will then make a final selection. 13. Probation and Confirmation -- (1) All appointment to the Municipal Service or post whether by direct recruitment or by promotion will he made on probation. The period of probation in the case of direct recruitment will he two years during which the selected candidates will he required to undergo training. The period of probation in the case of promotion will he one year. The period of probation in the case of direct recruitment will he two years during which the selected candidates will he required to undergo training. The period of probation in the case of promotion will he one year. If it appears at any time during or at the end of the period of probation that a probationer had not made sufficient use of his opportunities or if he has otherwise failed to give satisfaction, he may, after the approval of the District Selection Committee, if directly recruited he removed from the service, or if appointed by promotion, reverted to the post from which he was promoted: 1. (x x x) 2. (1-a) Appointing Authority may for sut1icient reasons, extend the period of probation for a period not exceeding six months in the case of direct recruit and one year in the case of promote. (2) The discharge of a candidates during or at the end of the period of probation will not entitle him to any compensation. (3) On the successful completion of probation, the probationer shall be confirmed in the service or post to which he has been appointed." Under rule 12 of Service Rules, 1968, the criteria for recruitment by promotion is based on merit-cum-seniority, but when the merits are equal, seniority shall be taken into account. The aforesaid provision also provides that while selecting candidate for promotion, tact, energy, seniority, intelligence, ability, integrity and previous record of the employee shall be taken into consideration. The District Selection Committee will select candidate and will arrange their names in order of preference. After recommendation of the names of the candidates found suitable for promotion by the District Selection Committee then the Standing Committee will make a final selection. Section 58 of M.P. Municipal Corporation Act, 1956 (hereinafter referred as the Act) provides appointment and conditions of service of Corporation officers and servants. For ready reference, section 58 is quoted herein under : "58. Appointment and condition of service of Corporation officers and servants -- (1) Subject to the rules made by the State Government in respect of the Set-up, Strength, Recruitment. For ready reference, section 58 is quoted herein under : "58. Appointment and condition of service of Corporation officers and servants -- (1) Subject to the rules made by the State Government in respect of the Set-up, Strength, Recruitment. Appointment, Pay-scales, Allowances and other conditions of service of officers and servants of the Corporation, the Corporation shall appoint such of tickers and servants as may be necessary for the efficient performance of the functions of the Corporation; Provided that - (i) the power of appointing any person on a municipal post which carries a maximum scale of pay as the State Government may, from time to time, by an order in writing specify, shall vest in the Mayor-in-Council or the Commissioner; (ii) any appointment made within his power by the Commissioner shall be reported for information to the Mayor-in-Council; (iii) every appointment to be made by the Mayor-in-Council shall be subject to the prior confirmation for the State Government. The decision of the State Government in this behalf shall be final. (2) Notwithstanding anything contained in sub-section (1). in emergent situations. the Mayor-in-Council may make ad hoc appointments for a period not exceeding six months. with prior permission of the State Government. (3) The State Government may depute to any post under the Corporation carrying maximum scale of pay (as the State Government may. from time to time. by an order in writing specify) such servants of the State Government as it may consider necessary. (4) The terms and conditions of deputation of servants of the State Government including disciplinary control shall be such as may be prescribed. (5) Notwithstanding anything contained in this Act or any rules or byelaws made there under. the State Government may. subject to the conditions specified in sub-section (6), transfer on deputation (any officer or servant of a Municipal Corporation) to any other Municipal Corporation and it shall not be necessary for the State Government to consult either the Corporation or the Officer or Servant concerned before passing an order of transfer on deputation under this sub-section. the State Government may. subject to the conditions specified in sub-section (6), transfer on deputation (any officer or servant of a Municipal Corporation) to any other Municipal Corporation and it shall not be necessary for the State Government to consult either the Corporation or the Officer or Servant concerned before passing an order of transfer on deputation under this sub-section. (6) The officer or servant transferred under sub-section (5) shall,- (a) have his lien on the post held in the parent Corporation; (b) not be put to disadvantageous position in respect of pay and allowances which he would have been entitled to had he continued in the parent Corporation; (c) be entitled to deputation allowances at such rate as the State Government may by general order specify; and (d) be governed by such other terms and conditions including disciplinary control as the State Government may, by general or special order, specify." 11. The State Government on the date of convening of the meeting of the DPC had not framed any rules in respect of recruitment on the post of Engineer. For the purpose of appointment directly or by promotion the procedure envisaged under the aforesaid Rules was taken into consideration. Though the State Government has framed the rules by enactment M.P. Municipal Corporation (Appointment and Conditions of Service of Officers and Servants) Rules. 2000 with effect from 9.2.2001 which are not applicable in the case, hence not quoted. 12. In the year 1981, Katni Mudwara Municipal Corporation was of category 'AA' Corporation. The Corporation was following the Municipal Services (Scale of Pay and Allowances), Rules 1967 and the qualification for appointment was graduate in Civil Engineering from a University recognised by the Government of M.P. or Diploma in Civil Engineering from an Institute recognised by the M.P. Government with practical experience of at-least ten years in a Government Department or in a local body. If the aforesaid criteria is taken into consideration, respondent No.6 was not eligible for consideration for promotion on the post of Assistant Engineer on 5.2.1988. The Service Rules 1968 though provides recruitment by promotion, hut there is no provision for grant of relaxation in this regard. In these circumstances, prima facie under the aforesaid Rules, respondent No.6 was not eligible for consideration for promotion on the relevant date. The Service Rules 1968 though provides recruitment by promotion, hut there is no provision for grant of relaxation in this regard. In these circumstances, prima facie under the aforesaid Rules, respondent No.6 was not eligible for consideration for promotion on the relevant date. Even for the sake of argument, if it is assumed that as a special case and on the basis of merits, respondent No. 6 was considered for promotion as Assistant Engineer then the following glaring facts reveal from the proceedings of the DPC : (i) That ACR of 1983 was not placed before the DPC. If the aforesaid ACR of the petitioner was not available, then respondents ought to have taken into consideration the average marking for that year, but the petitioner was not given any consideration or average marking in this regard in the DPC proceedings. (ii) That the petitioner has seriously contested that in the year 1986, he was awarded category 'Ka' of which photo copy has been shown by the petitioner, while from the perusal of the ACR record of petitioner produced by the Corporation, it appears that there is some interpolation/correction in the record. From the perusal of the ACR, it appears that in columns 7 and 8 of the ACR, the petitioner has been found 'very good', but when general remark was given, it appears that there arc corrections or interpolation, which is apparent from the perusal of the aforesaid. (iii) That the petitioner was not facing any DE on the date of DPC, but in his datas, it was placed before the DPC that two enquiries were pending against him. There is nothing on record showing that within a period of 5 years, preceding to the DPC any warning was issued to the petitioner, but the DPC proceedings show that one warning was issued to him. (iv) In the aforesaid proceedings, it appears that the DPC was informed that the petitioner's resignation was accepted and he was reinstated on duty. fact has been seriously disputed by the petitioner on the ground that it was wholly irrelevant before the DPC. Respondent No.6 has been awarded four marks in the year 1983, while the petitioner has not been given any due adjustment in this regard. For the year 1986, though the petitioner was entitled for three marks, as he earned 'Ka' category. fact has been seriously disputed by the petitioner on the ground that it was wholly irrelevant before the DPC. Respondent No.6 has been awarded four marks in the year 1983, while the petitioner has not been given any due adjustment in this regard. For the year 1986, though the petitioner was entitled for three marks, as he earned 'Ka' category. The petitioner has been given wrongly minus marking in the said proceedings. (v) In the same DPC, the Promotion Committee considered the case of promotion of Revenue Inspectors, K.L. Pandey, and G.P. Khare on the basis of same criteria which were fixed in respect of petitioner and respondent No.6. The matter was assailed by K.L. Pandey before this Court and this Court while considering the case of K.L. Pandey has not approved the proceeding of the DPC. In view of the aforesaid contentions, the following factual position emerges that: (A) Respondent No.6, who was a Diploma-holder Officer, was not entitled for promotion on the post of Assistant Engineer as he had not completed 10 years service as Overseer. (B) That the correct dates were not placed before the DPC. (C) That the petitioner was not awarded any marks in the year 1983 and there is error in respect of ACR of 1986. The petitioner has been given minus marking in the said proceedings. The DPC has considered the entire case on the aforesaid premises which in the opinion of this Court is not correct. (D) Apart from this, the Public Service Commission has also not given its due consideration on the recommendations of DPC. 13. Though the learned counsel appearing for respondent No.6 tried to convince this Court that the criteria of merit-cum-seniority was rightly adopted as envisaged under rule 12 of the Recruitment Rules, 1968 which provides criteria of merit-cum-seniority. Respondent No.6 was a meritorious candidate and was rightly selected for promotion. The petitioner resigned from the service and thereafter he was reinstated by the respondents. The petitioner was also suspended and a departmental enquiry was initiated against him. All these facts were rightly considered by the DPC. Considering the contention of the respondent No.6 it is not in dispute that the petitioner was suspended and a DE was initiated. But the said enquiry was dropped and the entire period of suspension was treated on duty and the petitioner was paid all the emoluments of the period of suspension. All these facts were rightly considered by the DPC. Considering the contention of the respondent No.6 it is not in dispute that the petitioner was suspended and a DE was initiated. But the said enquiry was dropped and the entire period of suspension was treated on duty and the petitioner was paid all the emoluments of the period of suspension. The petitioner's resignation matter was considered by the State Government and vide order dated 18.11.1983, the petitioner was reinstated with all the benefits and he continued in the service. This fact finds place on page 7 in the service book. When the State Government had decided the matter and the petitioner was directed to be continued in service, then this fact was wrongly placed before the DPC for consideration. Apart from this, respondent failed to produce any material that on the date of the DPC any departmental enquiry was pending against the petitioner. 14. In the aforesaid circumstances, the proceedings before the DPC were defective and the case of the petitioner deserves to be reconsidered by the DPC Consequently. this petition is allowed. The DPC proceedings dated 15.2.1988 so far as petitioner and respondent No.6 are concerned are hereby quashed and respondents are directed to hold a review DPC within a period of 90 days from today. As respondent No.6 has been given promotion by the aforesaid DPC and it is stated by the petitioners that he has been given further promotion by the respondents, in aforesaid circumstances, in the interest of justice, it is directed that till the decision of the review DPC, the position as on today shall be maintained. The respondent if choose so, may maintain the status of respondent No.6, but shall not deprive the petitioner for his legitimate benefits, seniority and dues if he is found entitled for the promotion as on 5.2.1988. 15. In view of the aforesaid, this petition is allowed and following directions are issued: (i) That the proceedings of the DPC, dated 5.2.1988 so far as it relates to petitioner and respondent No. 6 are concerned are hereby quashed. (ii) Respondents are directed to convene a review DPC as on 5.8.1988 for consideration of the case of petitioner vis a vis respondent No.6 in accordance with law. The review DPC shall be held by the respondents within a period of three months from today. (ii) Respondents are directed to convene a review DPC as on 5.8.1988 for consideration of the case of petitioner vis a vis respondent No.6 in accordance with law. The review DPC shall be held by the respondents within a period of three months from today. (iii) Respondents shall maintain status quo as on today for a period of three months and tile then shall not revert respondent No.6 from his present post. (iv) Liberty is granted to respondents to give due seniority and promotion to the petitioner if the respondents decide not to disturb the position of respondent No.6 as on the date, but the petitioner shall not be deprived any of his legitimate benefits and consequential reliefs merely on this ground. (v) The petitioner shall be entitled for the cost which is certified Rs. 1,000/- payable by respondents 2, 3 and 6.