Research › Search › Judgment

Madhya Pradesh High Court · body

2007 DIGILAW 351 (MP)

Umesh Kumar Gandhi v. State of M. P.

2007-03-23

DIPAK MISRA, R.K.GUPTA

body2007
ORDER R.K. Gupta, J. 1. The present petition is filed against the order passed by the State Administrative Tribunal on 6-2-1998, a copy of which is placed on record as Annexure-P-21 to the petition. 2. Though initially the present petition was filed by two petitioners, who were applicants in Original Application No. 1191/1996 before the Tribunal, during pendency of the present petition an application was moved on behalf of the Petitioner No. 1 for withdrawal of the writ petition by him. Accordingly this Court by an order dated 29-1-2007, permitted the petition to be withdrawn by the Petitioner No. 1. Accordingly the present petition is treated to be a petition at the instance of the Petitioner No. 2 i.e. Gopal Tamrakar. 3. The necessary facts are that the petitioner was appointed on the post of Suptd. of District Jail Class II in the year 1987 by way of Direct recruitment in accordance with the rules which were in vogue at that time, it is put forth that he has right to claim seniority over the persons who were promoted de hors the rules. The appointment of the petitioner was made in terms to the recruitment rules as the same was approved by the PSC. It was contended that so far as the Respondents No. 4 and 5 are concerned they were initially appointed as Welfare/Probationer Officer. It was also the claim that in terms to Recruitment Rules the Welfare/Probationer Officer were having a different channel of promotion and so far as the Suptd. Distt. Jail (Class II) is concerned he was having a different channel of promotion. Under the M. P. Class III (Ministerial and Non Ministerial) Service Recruitment Rules, 1974 Probation/Welfare Officer, they are in class III services. So far as the Supdt. of Distt. Jail Class II is concerned it was a higher post than Welfare/Probationer Officer. The State Government appointed 7th finance committee. The said committee submitted in its recommendation for the upliftment of jail administration. While doing so 20 new posts of Supdt. of District Jails were created. The State Government also appointed jail reform committee, which was headed by the Ex Minister Shri Ved Ram. The committee was known as "Ved Ram Committee". This committee also submitted its report for the upliftment of the jail administration. On the basis of the recommendations submitted 20 new posts in the cadre of Supdt. of District Jails were created. The State Government also appointed jail reform committee, which was headed by the Ex Minister Shri Ved Ram. The committee was known as "Ved Ram Committee". This committee also submitted its report for the upliftment of the jail administration. On the basis of the recommendations submitted 20 new posts in the cadre of Supdt. of District Jail were created in pay scale of Rs. 425-900. The order in this regard was issued by the State Government which is Annexure-P-1. The State Government thereafter issued an order which is Exhibit P-5 to the petition. 4. The State Government by the aforesaid order decided that out of total 20 posts created, 40% of the said posts may be filled up by promotion from senior jailer and jailers, 40% be filled up by way of direct recruitment, 20% be filled up by promotion from amongst the Welfare/Probationer Officers. The State Government decided that there is no difficulty in filling up the post towards the quota of 40% from senior jailors and the jailors and also there was no difficulty of fill up 40% of the said post by Direct recruitment. The State Government also decided that for the purposes of filling up 20% posts from Welfare/Probationer Officers it would be appropriate to make relevant amendment in the recruitment rules and till no amendment in the recruitment rule is made, the promotion can be given on ad hoc basis. 5. The present dispute relates to the promotion by the State Government to the category belonging to the 20% of quota which was to be filled up from the probation and welfare officers. The State Government passed an order Annexure- A-6 dated 14th August, 1984, by which the Respondent Nos. 4 and 5 in the present petition were given promotion on ad hoc basis on the post of Supdt. Jail Class II. It will also be proper to mention at this place that the Respondent No. 5 Shri B. L. Kori has already retired from services therefore at the time of hearing the learned Counsel for the petitioner has not made any grievance against, the grant of seniority to the petitioner below to the Respondent No. 5 Bhayalal Kori, who has already retired. While arguing the learned Counsel for the petitioner submitted that the case of the petitioner survives for grant of seniority above the Respondent No. 4 Shri S. K. Dave. 6. After giving promotion towards 20% quota to the Respondent Nos. 4 and 5 on ad hoc basis by an order Annexure-A-6 dated 14-8-1984 the State Government further passed an order Annexure-P-7 on 18th April, 1996, whereby the Respondent No. 4 was granted seniority from 22nd August, 1984 i.e. the date on which he joined to the post of Supdt. of Jail (Class II). 7. It would be relevant to mention here that the new Recruitment Rules came into force w.e.f. 9th March, 1994, which is Annexure P-3 to the petition. By the aforesaid rules the Welfare/Probationer Officers were given a different channel of promotion. The aforesaid rules, the State Government further prescribed the promotional quota to the Welfare/Probationer Officer towards 20% quota for their promotion as Supdt. Distt. Jail (class II). 8. On that basis the Government issued an order on 18th April, 1996 which is Annexure-P-7 to the petition, wherein the ad hoc appointment of the Respondent No. 4 was regularized and was also granted seniority from 22-8-1984. 9. The State Government subsequently passed an order on 29-11-1996 which is filed along with petition as Annexure-P-16-A and by this order the State Government cancelled the order dated 18-4-1996 by which the Respondent No. 4 was given seniority w.e.f. 22-8-1984. 10. This order was challenged by the Respondent No. 4 by filing original application before the Tribunal which was registered as O. A. No. 682/1997. So far as the present petitioners are concerned, they also filed an application before the Tribunal which was registered as O. A. No. 1191/1996. In this application the present petitioner challenged the order dated 18-4-1996. The Respondent No. 5 also filed an application before the Tribunal which was registered as O. A. No. 824/1995. By this he challenged the order dated 29-11-1996 Annexure-P-16-A by which earlier order of appointment was regularized and was granted seniority w.e.f. 22nd August, 1984, was cancelled. 11. All those petitions were heard together and were decided by a common order by the Tribunal. The Tribunal allowed the Original Application No. 682/1997 and Original Application No. 824/1997. The Tribunal held that the order dated 29-11-1996 Annexure-P-16-A deserves to be quashed and the order dated 18-4-1996 was directed to be restored. 11. All those petitions were heard together and were decided by a common order by the Tribunal. The Tribunal allowed the Original Application No. 682/1997 and Original Application No. 824/1997. The Tribunal held that the order dated 29-11-1996 Annexure-P-16-A deserves to be quashed and the order dated 18-4-1996 was directed to be restored. Consequently the Respondent Nos. 4 and 5 were directed to give seniority w.e.f. 22nd August, 1984. The same was also the result of Original Application No. 824/1997. 12. The application which was preferred by the present petitioner which was registered as O. A. No. 1191/1996, wherein the order dated 18-4-1996 was prayed for its quashment, the application was dismissed, because the Tribunal decided the case in favour of the Respondent Nos. 4 and 5 by giving them seniority w.e.f. 22nd August, 1984 by restoring the order dated 18-4-1996. The judgment passed by the Tribunal has been challenged by the petitioners by filing the present petition. 13. The learned Counsel for the petitioner submitted that on the date when the Respondents No. 4 and 5 were given ad hoc promotion on I4th August, 1984 Annexure-A-6 there had been no amendment in the Recruitment Rules of 1976 Annexure-P-2 regulating the promotion to the post of Supdt. District Jail (Class II) from the post of Welfare/Probation Officer. The appointment was directed to be on ad hoc, and PSC was not consulted. There had been no nominee of the PSC in the DPC. It is thus contended that after the recruitment rules were amended in the year 1994 and the promotional avenues to post against the 20% quota for Probation/Welfare Officer were given, to the post of Supdt. of Jail Class II, then under no stretch of imagination the Respondent No. 4 and 5 can be given their seniority from the date of their first ad hoc promotion and on that basis it is submitted that the order passed by the State Government dated 29-11-1996 Annexure-P-16-A is valid one. It is also contended that the promotion was not in accordance to the rules applicable on the date when the Respondent Nos. 4 and 5 were promoted on ad hoc basis as Supdt. It is also contended that the promotion was not in accordance to the rules applicable on the date when the Respondent Nos. 4 and 5 were promoted on ad hoc basis as Supdt. of Jail Class II therefore they have no right to claim seniority above the petitioner particularly when the Petitioner was directly recruited by applying the procedure as contemplated under the recruitment rules, therefore the persons appointed in accordance with rules shall have a right of preference with regard to their seniority over the persons those who have been appointed de hors to the rules. 14. For the purposes of appreciating the aforesaid contention it has to be seen that admittedly on the date when the aforesaid two Respondents were promoted on ad hoc basis as Supdt. of Jail Class II, 20% of promotional avenues for their promotion to this post were not available to the Welfare/Probation Officers. Admittedly the Respondent Nos. 4 and 5 were holding the post of Probation/Welfare Officers. The order passed by the State Government in this reference shall be relevant. By an order Annexure-P-5 the State Government has taken a decision that the promotion against 20% quota to be filled up from Welfare/Probation Officers shall be made by amending the relevant recruitment rules and till then they can be promoted on ad hoc basis. It was condition stipulated at the time of sanctioning of 20% additional vacancies that until the relevant provision is made in the recruitment rules by amending the same, the promotion can be regulated on ad hoc basis. 15. There is no dispute between the parties that for the purpose of direct recruitment to the post of Supdt. Distt. Jail (Class II) the nominee of PSC has to be there. It is also admitted that at the time when the Respondent Nos. 4 and 5 were considered for their ad hoc promotion neither the matter was consulted with the PSC nor any nominee was the member of the DPC which considered the cases of these Respondents for their promotion to the post of Supdt. Distt. Jail Class II. 16. On this basis it has to be seen whether the promotion of the Respondent Nos. 4 and 5 was in accordance with Recruitment Rules. Admittedly in the present case the matter was not referred to the PSC. In the DPC there was no nominee of the PSC as the member. Distt. Jail Class II. 16. On this basis it has to be seen whether the promotion of the Respondent Nos. 4 and 5 was in accordance with Recruitment Rules. Admittedly in the present case the matter was not referred to the PSC. In the DPC there was no nominee of the PSC as the member. The post on which these two Respondents have been promoted i.e. Supdt. of Jail was also not included in the Recruitment Rules. Therefore the only conclusion has to be reached by us that their appointment was de hors the rules. 17. The aforesaid aspect can also be considered from the another aspect. The matter with regard to the recruitment was governed by the M. P. Civil Services (General Condition of Service) Rules, 1967. Rule 7 of the aforesaid rules provides the method of recruitment and recruitment has to be made by the appointment, promotion and deputation. The proviso to the aforesaid rule further stipulates that the commission shall be consulted before a person is appointed to a service on the post if such consultation is necessary. 18. In this regard Rule 5 of the M. P. Public Service Commission (Limitation on Functions) Regulations, 1957 in which it relevant for the present purpose reads as under: 5(1) It shall not be necessary for the Commission to be consulted on the suitability of a person for appointment, promotion or transfer to a post, the period of which does not exceed six months. (2) In other cases where appointment, promotion or transfer to a service or post would otherwise require consultation with the Commission, it shall not be necessary to consult the Commission, if owing to an emergency the Commission cannot be consulted without detriment to public service: Provided that- (i) intimation of such appointment, promotion or transfer shall be sent to the Commission at the same time, and (ii) action to fill up that post in the normal way or to obtain the concurrence of the Commission, as the case may be. shall be initiated as early as possible. 19. According to Sub-rule (1) of Rule 5 consultation of the commission is not be necessary with regard to the suitability of a person for appointment or promotion to a post, if the period for the same does not exceed six months. shall be initiated as early as possible. 19. According to Sub-rule (1) of Rule 5 consultation of the commission is not be necessary with regard to the suitability of a person for appointment or promotion to a post, if the period for the same does not exceed six months. In pursuance of the decision taken by the State Government which is filed as Annexure-P-5, the promotion against 20% of quota for Welfare/Probation Officer was to be given not for period of less than six months but was decided to be given on a permanent basis, therefore it was decided by the State Government that the necessary amendment be made in the Recruitment Rules for opening the promotional avenues to Welfare/Probation officers for their promotion against 20% quota to the post of Supdt. of Jail (Class II). 20. The Apex Court in Masood Akhtar Khan and Ors. v. State of Madhya Pradesh and others, 1990(4) SCC 24 in paragraph 3 had opined: Mr. Ramarnurthi's second contention was that there were no special rules for appointment to the said posts and, therefore, it is the General Rules of 1961 (supra) which applied and according to Rule 12 of the said Rules, the seniority is to be counted from the date of initial appointment. We do not read any such provision in Rule 12. On the contrary Rule 12(a)(i) makes it clear that where the appointment has to be made in consultation with the Commission, the seniority is firstly from the date of the selection by the Commission and secondly according to the order of merits given by the commission. Hence, none of the authorities relied upon by Mr. Ramamurthi, viz. Direct Recruit Class if Engineering Officers Association v. State of Maharashtra, D, N. Agrawal v. State of Madhya Pradesh and Union of India v. Ansuekhar Git in helps him. These authorities unequivocally make it clear that if the initial appointment is not made according to the Rules, subsequent regularization of his service does not entitle an employee to the benefit of intervening service for seniority. 21. The Apex Court considered the applicability of Rule 5 of the M. P. PSC (Limitation on Functions) Regulations, 1957. The Apex Court came to the conclusion that it was not intended by the State Government that the post on which the petitioners were appointed was the tenure post. 21. The Apex Court considered the applicability of Rule 5 of the M. P. PSC (Limitation on Functions) Regulations, 1957. The Apex Court came to the conclusion that it was not intended by the State Government that the post on which the petitioners were appointed was the tenure post. Infact the State Government intended to appoint persons on permanent basis, therefore even though the word 'temporary' or 'adhoc' is mentioned in the order of appointment that will not make the said appointment to be for a short period i.e. less than six months. The Apex Court further held that since the post was intended to be permanent one therefore the appointment has to be made on regular basis in consultation with the PSC as per regulations of M. P. Public Service Commission (Limitation on Functions) Regulations 1957. 22. It is worth noting one of us (R. K. Gupta, J.) in W. P. No. 6738/2003 has held that when the appointment is made without consulting the PSC under Rule 5 of the M. P. Public Service Commission (Limitation on Functions) Regulations 1957, the appointment is de hors the rules and the persons promoted de hors the rules cannot claim their seniority from the date of their ad-hoc appointment. 23. On the basis of discussion as above we find that the promotion of the Respondent No. 4 was de hors the rules as the same was effected without consulting the PSC. The State Government passed the order of promotion of the Respondent No. 3 on 14th August, 1984 by way of Annexure-P-6. Subsequently by an order Annexure-P-16-A dated 29th November, 1996 conferred the seniority on the Respondent No. 4 on the post of Supdt. of Distt. Jail Class II from the date i.e. 22nd August, 1984 and on this date there was no channel of promotion provided in the Recruitment Rules to the Probation/Welfare Officers. Since the rule itself does not provide the promotional avenue toward 20% quota applicable to the Welfare and Probationer Officer, action of the State Government was neither lawful nor justified in giving seniority to the Respondent No. 4 w.e.f. 22nd August, 1984. The question with regard to the seniority has to be considered with respect to the post borne in the cadre. The post of Supdt. Of Distt. The question with regard to the seniority has to be considered with respect to the post borne in the cadre. The post of Supdt. Of Distt. Jail Class II was borne in the cadre but the post of Welfare/Probation Officer were not in the channel of promotion, therefore, the persons so promoted on ad hoc basis without there being any channel of promotion provided in the rules w.e.f. 22nd August, 1984. There was no question of granting any seniority to the Respondent No. 4 from 22nd August, 1984. However the State Government after when the Recruitment Rules were amended in the year 1994 considered the case of the Respondent No. 4 in the DPC in the year 1996 and granted the regular promotion also. The said promotion was in accordance with the rules. Therefore, the seniority of the Respondent No. 4. has to be counted from the date of his regular promotion and accordingly the Respondent No. 4 shall be entitled to his seniority from the date he was promoted as Supdt. of Distt. Jail after following due procedure in terms of the recruitment rules w.e.f. 29-11-1996. So far as the petitioner is concerned the petitioner's seniority under the circumstances has to be counted from the date he was appointed in the year 1987 by way of direct recruitment by following the procedure as provided under the rules. Thus the petitioner would be entitled to claim the said seniority after his confirmation in terms to Rule 12 of the M. P. General Condition of Service Rules, 1961 which provides that the seniority of a person appointed by way of direct recruitment on probation on his confirmation he shall be entitled to his seniority from the first date of appointment and accordingly the petitioner shall be entitled to his seniority from the date of his first appointment i.e. as Supdt. of Distt. Jail Class II since 1987. 24. On the basis of the aforesaid discussion we are inclined to allow the present petition and direct the Respondent/State Government to recast the seniority list in accordance with the observations made hereinabove within a period of one month and thereafter determine the amount of other consequential benefits i.e. his promotion on the next higher post by counting his seniority from 1987 as Supdt. of Jail class II by holding a review DPC within four weeks therefrom. of Jail class II by holding a review DPC within four weeks therefrom. Till then the Respondent No. 4 shall continue to work on the present post and in case he retires then retiral benefits shall be recomputed on that basis. Be it noted, we have fixed the time limit as the petitioner is going to refix on 31-5-2007. 25. The petition is allowed. There shall be no order as to costs. Petition allowed.