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Madhya Pradesh High Court · body

2006 DIGILAW 1145 (MP)

ANIL SINGH v. STATE OF M. P.

2006-09-26

R.K.GUPTA

body2006
ORDER R.K. Gupta, J. As common questions are involved in both these petitions, they are being disposed of by this common order. Petitioners by way of filing the present petition have made the following relief: (i) Hon'ble Court be pleaded to call for the records of the entire selection process which was commenced from 8-8-2004 for promotion from the post of Constables (GD) to Head Constables (GD) by Respondent No. 4. (ii) Hon'ble Court be pleased to quash the selection process held on and from 8-8-2004 including the cadre course commenced from 17-8-2004 as being void, unlawful, arbitrary and violative of Articles 14 and 16 of the Constitution of India. (iii) Hon'ble Court be pleased to direct the Respondents to hold the fresh selection process for promotion from the post of Constables (GD) to Head Constables (GD) under Respondent No. 4 in accordance with law by separately preparing select list for vacancies arising in every year for which no recruitment process has been held during interregnum period from 1998-99 to 2003-04 and consider the cases of the Petitioner in accordance with their eligibility as existing in the respective years of which selection took place without raising the objection of the Petitioners' being over-aged or ineligible. (iv) Any other relief to which the Petitioner in the facts and circumstances of the case may be found entitled may also be kindly be granted in favour of the Petitioners. (v) Therefore, Hon'ble Court may be pleased to quash the impugned promotion order dated 25-10-2004 so far as it promotes the juniors of the applicants. The facts leading the present case are that the process of selection to fill up various vacancies from the post of Constables (GD) to Head Constables (GD) was initiated by the Respondent No. 4 with effect from 8-8-2004 including the cadre post which commenced from 17-8-2004. It is contended by the Petitioners that the same is bad in law. The further facts are also necessary that at the time when the said selection process was initiated the previous vacancies for the year 1998-99 to 2003-04 were clubbed and thereafter the procedure to fill up the said vacancies of Head Constables (GD) was initiated. It is contended by the Petitioners that the same is bad in law. The further facts are also necessary that at the time when the said selection process was initiated the previous vacancies for the year 1998-99 to 2003-04 were clubbed and thereafter the procedure to fill up the said vacancies of Head Constables (GD) was initiated. In the present case there is no dispute that all the Petitioners on the date when the said process of selection to fill up the vacancies to the post of Head Constables (GD) was initiated, all the Petitioners were beyond the age of 40 years. The relevant rules in this regard are filed by the Petitioners which is Annexure P/2 to the petition. According to the circular issued by the State Government dated 27-3-1997, the eligibility criteria for appearing in the examination with regard to the departmental candidates holding the post of Constable was made and accordingly on 31st March, the candidates should not be above 40 years or should have 20 years of service whichever is earlier. The Learned Counsel for the Petitioners further submitted that circular was issued by the Respondents which is Annexure P/10 to the petition by which the age of 40 years was relaxed to appear in the examination for the post of Head Constables. Learned Counsel for the Petitioners submitted that in terms to the rules, the promotions are required to be made every year and in case the process would have been started with regard to vacancies every year then all the Petitioners would have been within the age limit of 40 years but the Respondents did not fill up the vacancies and continue to postpone the process. It being the fault of the State Government, Petitioners meanwhile crossed the age limit of 40 years, therefore, Petitioners should not be permitted to suffer. It was also submitted that the act as such is arbitrary, therefore, the action as such is bad in law. The Learned Counsel for the Petitioners relied upon the following judgments: Vinod Kumar Sangal Vs. Union of India (UOI) and Others, , 1993 Supp (3) SCC 575, Syed Khalid Rizvi and others vs. Union of India and others, Union of India and others Vs. N.R. Banerjee and others, . The Learned Counsel for the Petitioners relied upon the following judgments: Vinod Kumar Sangal Vs. Union of India (UOI) and Others, , 1993 Supp (3) SCC 575, Syed Khalid Rizvi and others vs. Union of India and others, Union of India and others Vs. N.R. Banerjee and others, . The Apex Court was considering the impact of Rule 2 in 1989 Supp (1) SCC 393, State of Maharashtra vs. Jagannath Achyut Karandikar and Rule 2 of the aforesaid judgment is also reproduced as under: Subject to Rule 1, a candidate will be allowed to appear for the examination in three chances which must be availed of within a period of four years. This period of four years will not be extended for any reasons irrespective of the fact whether a candidate has availed himself of three chances ox not during the period. Similarly, no candidate will be allowed to take during this period more than three chances. A candidate who does not pass the examination at the end of nine years' service in the Upper Division, will lose his seniority to all those candidates who pass the examination before he passes it. The Apex Court considered that Rule 2 prescribes that a candidate has to pass the examination in three attempts within a period of four years failing which he shall not be allowed to take during this period more than three chances. The consequences were also mentioned that the period of four years in passing the examination on three attempts shall not be extended for any reason. On this the Apex Court considered the whole scheme of holding examination within a period of four years is also mentioned in Rule 2, therefore it is mandatory and no employee should be permitted to suffer for the fault of the State as the State failed to conduct the examination within a period of four years. In the present case it is seen that the responsibility as such of holding examination every year for the promotions under the circumstances has to be made directory and not mandatory. In the present case it is seen that the responsibility as such of holding examination every year for the promotions under the circumstances has to be made directory and not mandatory. The next judgment which the Learned Counsel for the Petitioners is relied is Vinod Kumar Sangal (supra) and in para 4 it is held that clubbing of vacancies of various years for preparation of select list without there being any mention as to vacancies as such are arisen of which year has also been held to be bad. In this regard para 4 is relevant which reads as under: Preparation of year-wise panels by DPC where they have not met for a number of years- Instructions already exists that DPCs should meet at regular intervals for the preparation of the select list and where no such meeting is held in any year, the appointing authority should record a certificate that there were no vacancies to be filled during the year. Administrative Ministries should obtain periodical information/ certificates on the regular holding of DPCs. (b) Where, however, for reasons beyond control, DPC could not be held in any year(s) even though the vacancies arise during that year (or years), the first DPC that meets thereafter should follow the following procedure: (i) Determine the actual number of regular vacancies that arose in each of the previous year/years immediately and the actual number of regular vacancies proposed to be filled in the current year separately. (ii) Consider in respect to each of the years those officers only who would be within the field of choice with reference to the vacancies of each year starting with the earliest year onwards. (iii) Prepare a "Selection List" for each of the years starting with the earliest year onwards. (iv) Prepare a consolidated 'Select List' by placing the select list of the earlier year above the one for the next and so on. On the basis of the aforesaid, it is clear that in that case, the dispute which was involved that DPC should meet on regular intervals for the preparation of the select list and where no such meeting is held in any year, the appointing authority should record a certificate that there were no vacancies to be filled during the year. On the basis of the aforesaid, it is clear that in that case, the dispute which was involved that DPC should meet on regular intervals for the preparation of the select list and where no such meeting is held in any year, the appointing authority should record a certificate that there were no vacancies to be filled during the year. Sub-rule (B) of Rule further empowered the DPC to determine the actual number of regular vacancies that arose in each of the previous year/years immediately and the actual number of regular vacancies proposed to be filled in the current year separately. It also provides to consider in respect to each of the years those officers only who would be within the field of choice with reference to the vacancies of each year starting with the earliest year onwards. In the present case Learned Counsel for the Petitioners had not been able to point out that a year-wise panel is to be made so that the submission so made by Learned Counsel for the Petitioners could have been accepted. The Learned Counsel for the Petitioners also relied upon N.R. Banerjee (supra) case. In paras 6 and 12 of the said judgment the Apex Court keeping in view the scheme of rule came to the conclusion that DPCs has to be convened every year, if necessary, on a fixed date, i.e. 1st of April or May. The Apex Court in para 12 of the judgment further held that preparation and finalization of the yearly panel unless duly certified by the appointing authority that no vacancy would arise or no suitable candidate was available, is a mandatory requirement. The Apex Court further held that if the annual panel could not be prepared for any justifiable reason, year-wise panel of all the eligible candidates within the zone of consideration for filling up the vacancies each year should be prepared and appointment made in accordance therewith. It may be seen that the Apex Court in para 12 of the said case has held that preparation and finalization of the yearly panel is a mandatory. In the present case, counsel for the Petitioners had not been able to show any analogous rules which were under consideration by the Apex Court Therefore, the said judgment is also of no help to the counsel for the Petitioners. In the present case, counsel for the Petitioners had not been able to show any analogous rules which were under consideration by the Apex Court Therefore, the said judgment is also of no help to the counsel for the Petitioners. Learned Counsel for the Petitioners also placed reliance in a judgment reported in The State of Andhra Pradesh Vs. T. Ramakrishna Rao and Others, and submitted that paragraph 12 of the aforesaid judgment is relevant. It may be seen that Apex Court was considering a case where applications were received in pursuance to an advertisement which was without any authority and subsequently when the same was cancelled an argument was submitted that the candidates those who were submitted the earlier applications they should not be put to any prejudice. The Apex Court came to the conclusion on the basis of the backdrop of the case that the applications which were earlier submitted could not be treated to be a valid applications as the advertisement itself was under the invalid rule. The Apex Court further came to the conclusion that fresh applications for holding fresh examination in respect of vacancies has to be done. Para 12 of the aforesaid judgment is relevant which is reproduced: 12. We fail to see either the justification or the necessity for such a direction. The unamended Rule 5, as it stood in 1968, having been held invalid the notice issued thereunder by the Commission calling for applications, the applications received in pursuance of that notice and the examination sought to be held thereunder and indeed all actions taken by the Commission thereunder fell through and must be regarded as invalid. The rule having then been struck down the only way the Commission could prepare a list for appointment would be under the amended Rule 5. Obviously that could only be done by calling for fresh applications and holding an examination under the amended Rule there being no other rule available to the Commission after Rule 5 had been struck down. In these circumstances, there was no question of any breach of Article 16, firstly, because there were no valid applications before the Commission since the applications filed by the Respondents and others in 1968 were bad as they had been called and made under an invalid rule. In these circumstances, there was no question of any breach of Article 16, firstly, because there were no valid applications before the Commission since the applications filed by the Respondents and others in 1968 were bad as they had been called and made under an invalid rule. Secondly, the Respondents had not acquired any right by merely applying for the posts either under that rule or otherwise, to be selected for the posts. The Commission, therefore, was perfectly justified in treating the earlier applications of the Respondents as invalid on the ground that they had been invited under an illegal rule and calling for fresh applications and holding a fresh examination in respect of all the 200 vacancies. There was thus no question of any breach of Article 16, nor of any violation of any right of the Respondents as none was acquired by them. Equally, there was no question of the amended Rule 5 being prospective or retrospective as the Commission had to act afresh under the amended rule, the unamended rule having been struck down and there being, therefore, no basis on which the applications of the Respondents made in 1968 could be treated as valid applications. It may be seen in the present case that Learned Counsel for the Respondents relied upon the judgment passed by the Apex Court in Union of India (UOI) and Others Vs. Majji Jangamayya and Others, and submitted that it is for the competent authority to decide as to when the vacancies are to be filled up by way of promotion. A candidate has no right to be promoted on a higher post as and when vacancies arises. The State Government has a right to keep the vacancies unfilled as long as he chose. On the basis of the judgment passed by the Apex Court in Majji Jangamayya (supra), it is thus apparent that merely because vacancies have arisen, the State Government cannot be compelled to fill up the said vacancies as soon as vacancies occurred. The State Government has to exercise its discretion as to when the vacancies as such have to be filled up. The State Government has to exercise its discretion as to when the vacancies as such have to be filled up. The ratio of the judgment is squarely applicable in the present case and it is held that rule of holding the DPC every year to regulate promotion to the post of Head Constables (GD) is not a mandatory and it depends upon various circumstances and the rule as such does not stipulate any consequences of not following the same i.e. not filling up the vacancies every year. Therefore, the rule as such is not mandatory. Thus, even though the State Government has not proceeded to fill up the vacancies of Head Constables (GD) as soon as it has arisen by holding the annual DPC yet no fault can be found of the State Government merely because the persons those who were applied have already crossed their age of 40 years. Learned Counsel for the Petitioners also submitted that the reason for not filling up the vacancies initially is shown by the Respondents that since there had been stay passed by the Tribunal, therefore, no DPC took place in the year in which vacancies have arisen. The Petitioners submitted that the reason as such assigned by the Respondent State Government is not correct. In this regard the order-sheet Annexure P/5 passed in O.A. No. 859/99 is perused. In the said case, the tribunal has merely directed that any selection made shall be subject to final decision of the case but has not directed that no selection could be made. Such an act it is contended by Learned Counsel for the Petitioners that the reason as such is being non-existing and also being incorrect which apparently shows the arbitrariness on the part of the Respondents in not filling up the vacancies. As this Court earlier has already held on the basis of Union of India (UOI) and Others Vs. Majji Jangamayya and Others, Majji Jangamayya (supra) that it is for the State Government to keep the vacancies unfilled and there is no vested right to the candidate to get his promotion to a higher post on occurrence of vacancy. As this Court earlier has already held on the basis of Union of India (UOI) and Others Vs. Majji Jangamayya and Others, Majji Jangamayya (supra) that it is for the State Government to keep the vacancies unfilled and there is no vested right to the candidate to get his promotion to a higher post on occurrence of vacancy. Even though State has come out with a reason that the case was pending before the tribunal where the stay was granted yet the State has power not to take steps to fill up the vacancies in the same year in which the vacancies have arisen. The power as such vested with the State Government and on the basis of the same it may be seen that no infirmity or mala fide can be imputed merely because a stand has been taken in the Court that vacancies could not be filled up because of the stay order. It may be seen that subsequently the State Government has realized the difficulty and rule with regard to 40 years as eligibility criteria was omitted by way of an order Annexure P/10. But this is a subsequent order and shall not apply to the vacancies for which the process was already initiated earlier to it. This question is also answered by the Apex Court in A.A. Calton Vs. Director of Education and Another, , Y.V. Rangaiah and others vs. J. Sreenivasa Rao and others, Y.V. Rangaiah and Others Vs. J. Sreenivasa Rao and Others, In view of the aforesaid, no case for interference is made out and accordingly the petitions are dismissed. Final Result : Dismissed