Research › Search › Judgment

Madhya Pradesh High Court · body

2008 DIGILAW 1099 (MP)

DEVENDRA KUMAR TRIPATHI v. STATE OF M P

2008-09-02

R.S.JHA

body2008
Judgment ( 1. ) WITH the consent of the learned counsel for the parties, the petition is heard finally. ( 2. ) THE petitioner has filed this petition being aggrieved by the resolution of respondent No. 2 dated 26-3-2007, Annexure P-9, whereby the petitioners case for promotion has been sent for approval to the State Government. ( 3. ) THE case of the petitioner before this Court is that the petitioner, who is at present working as a Steno-typist in the establishment of the respondent No. 2 having been finally appointed on that post on 22-12-2004, is entitled to be considered for promotion on the post of Stenographer as per the provisions of the M. P. Development Authority Services (Officers And Servants) Recruitment Rules, 1987. It is further submitted that the petitioner was considered by a Departmental promotion Committee convened by the respondent for promotion on the post of stenographer but his case was deferred as clarification regarding the requirement of five years service on the post of Steno-typist was sought and it was ultimately decided that the petitioner should be treated as Steno-typist with effect from 23-1-1991 and his case should be considered for promotion on the post of Stenographer. Accordingly, the Departmental Promotion Committee, on reconsideration of the petitioners case, found him fit for promotion on the post of Stenographer and directed placing the proceedings for approval before the Board of the respondent no. 2. On 30-10-2006 the Board considered the recommendation of the departmental Promotion Committee and requested the Joint Director, Town and country Planning, Jabalpur and the Chief Executive Officer of the Jabalpur development Authority to scrutinize the petitioners case and give their opinion in that respect. Both the Joint Director as well as the Chief Executive Officer gave an opinion that the promotion proceedings in respect of the petitioner were in accordance with law and, therefore, the Board in a subsequent meeting held on 26-3-2007 again considered the petitioners case of promotion but instead of taking a decision thereon decided to send the matter for approval of the State Government. The petitioner being aggrieved by the aforesaid decision of the Board has filed the present petition. ( 4. The petitioner being aggrieved by the aforesaid decision of the Board has filed the present petition. ( 4. ) IT is submitted by the learned counsel for the petitioner that the provisions of rule 7 (a) and 7 (b) of the Rules 1987 clearly provide that cases of eligible persons belonging to Class III posts, like the petitioner, should be considered by a departmental Promotion Committee which should prepare a list of approved candidates and place it before the Board of the authority for approval. The rules further provide that on approval by the Board, order of promotion in respect of selected persons should be issued. It is submitted that there is no provision in the rules of 1987 which prescribes or provides that the cases of Class III employees working in the Development Authority should be referred to the State Government for approval or which requires that promotion in their respect can be made only after taking approval of the State Government. It is asserted that in accordance with the provisions of the Rules of 1987, as the petitioners case was recommended by the Committee of the Board should have granted approval for promotion. It is submitted that the impugned resolution of the respondent authority dated 26-3-2007 by which the petitioners case has been referred to the State Government for approval is contrary to the provisions of the Rules 1987 and inspite of repeated representations being made by the petitioner no action has been taken by any of the respondents as a result of which the petitioner inspite of approval by the board for his case of promotion in the year 2006 has not been granted promotion as there has been no response in the intervening period by the State Government. ( 5. ) THE learned counsel appearing for the respondents 2 and 3 has filed a return and submitted that the petitioners case was considered for promotion by a departmental Promotion Committee which recommended his case to the Board. It is further stated that the Board after getting the matter examined by the Joint director, Town and Country Planning has sent the petitioners case for promotion for approval to the State Government and as soon as the appropriate directions are issued by the State Government consequential orders would be issued. It is further stated that the Board after getting the matter examined by the Joint director, Town and Country Planning has sent the petitioners case for promotion for approval to the State Government and as soon as the appropriate directions are issued by the State Government consequential orders would be issued. It is submitted that the petitioners case for promotion is pending before the State government and, therefore, the respondent authorities who have done their part cannot issue an order of promotion until and unless his case is approved by the state Government. However, the return filed by the respondents 2 and 3 is silent in respect of the contention of the petitioner to the effect that procedure of seeking the States approval in cases of promotion of Class III employees is not contemplated by the Rules of 1987 or the contention of the petitioner that such a procedure is contrary to the procedure prescribed under the Rules of 1987. ( 6. ) SHRI Om Namdeo, learned Government Advocate appearing for respondent no. 1 submits that the case of the petitioner has been sent by the Authority to the state. However, in all fairness, the learned Government Advocate does not dispute the fact that as per the provisions of rule 7 (a) and 7 (b) of the Rules 1987, approval of the State Government for making promotion of Class III employees is not contemplated and that the authority competent to make promotions in respect of class III employees is the respondent No. 3 after approval of the Board. ( 7. ) TO properly appreciate the contentions of the learned counsel for the parties, it is necessary to take into consideration the provisions of rules 7, 8 and 17 of the m. P. Development Authority Services (Officers And Servants) Recruitment rules, 1987, which read as under: "7. Selection Committee.- (a) The appointments to the Development authority Services Class I and Class II shall be made on the recommendation of a Selection Committee constituted by the State Government for the purpose. Such Selection Committee shall consist of- (i) Special Secretary to Government of M. P. Chairman housing and Environment. (ii) Director, Town and Country Planning Member, (iii) Chief Engineer/addl. Commissioner Member (Teach.) M. P. Housing Board. (iv) Chairman of Any Development Authority/town Improvement Trust/sada to be Member nominated by Government. Such Selection Committee shall consist of- (i) Special Secretary to Government of M. P. Chairman housing and Environment. (ii) Director, Town and Country Planning Member, (iii) Chief Engineer/addl. Commissioner Member (Teach.) M. P. Housing Board. (iv) Chairman of Any Development Authority/town Improvement Trust/sada to be Member nominated by Government. (v) Executive Director, M. P. Vikas Pradhikaran sangh Member (b) In case of Class III, and Class IV posts, the Chairman shall constitute the Committee consisting of - (i) Chief Executive Officer Member (ii) Senior Engineer Member (iii) Regional Joint Director or his Member representative. ( 8. ) APPOINTING Authority.- (1) All appointments to Authority Services, Class I and Class II shall be made by the State Government. (2) All appointments to the Authority Services, Class iii and Class IV shall be made by the Chairman with prior approval of the Board. 17. Appointment by Promotion.- (1) The appointment by promotion to Class I and Class II services shall be made on the recommendation of the Committee as referred to in Rule 7 (a)and to Class III services on the recommendation of the Committee referred to in Rule 7 (b ). (2.) The Committee shall meet at intervals ordinarily not exceeding one year. (3) Promotion to M. P. Development Authority services I, II and III shall consider cases of persons who on 1st day of January of that year in which committee meets,had completed service (whether officiating or substantive) in the post and have educational qualifications as specified in schedule II. (4) In selecting candidates for promotion regard shall had to - (i) fact and energy; (ii) intelligence and ability; (iii) integrity; and (iv) previous record of service. (5) The selection for inclusion in selection list shall be on seniority cum merit basis. " 8. A perusal of the aforesaid rules makes it abundantly clear that the Chairman of the Authority, i. e. , the respondent No. 3 in the present case, is required to constitute a Committee consisting of Chief Executive Officer, Senior Engineer and Regional Joint Director or his representative to consider cases of promotion to Class III and Class IV posts. Rule 8 (2) which prescribes the appointing authorities, states that all appointments to Class III and Class IV shall be made by the Chairman with prior approval of the Board. Rule 8 (2) which prescribes the appointing authorities, states that all appointments to Class III and Class IV shall be made by the Chairman with prior approval of the Board. Rule 17 which deals with appointment by promotion makes the provision of Rule 7 (a) and (7 (b) applicable in respect of promotion to all posts. A perusal of Rule 17 further indicates that while this rule refers to the appointing authority, it does not confer the power of promotion upon any authority different or other than the authorities named in Rule 8 of the Rules 1987. Schedule III appended to the Rules, framed under Rule 17 (3), prescribes five years continuous service on the post of Steno-typist along with passing of such tests as prescribed from time to time as the requisite experience and qualifications for consideration for promotion on the post of stenographer. ( 9. ) IN view of the above provisions of the rules, there is no iota of doubt that the promotions on Class III and Class IV posts have to be made by the Chairman of the Development Authority concerned with the pri6r approval of its Board. In the instant case, the petitioners case was duly considered by the Committee constituted by the Chairman and was sent for approval of the Board. It is evident from a perusal of Annexure P-9, filed along with the petition, that the petitioners case after approval was considered by the Board in its meeting held on 26-3-2007 but instead of taking a decision thereon by either approving or disapproving the recommendation of the Committee, the Board took a decision to forward his case to the State Government for approval. Apparently, the procedure adopted by the board is not in conformity with the Rules of 1987. The Board may adopt a procedure as it did in its previous meeting held on. 30-10-2006 of seeking the opinion of the Joint Director, Town and Country Planning or such other related and concerned authority, but it is not required to send the case for approval to the state Government as that kind of prior approval is neither contemplated nor prescribed by the statutory provision. ( 10. 30-10-2006 of seeking the opinion of the Joint Director, Town and Country Planning or such other related and concerned authority, but it is not required to send the case for approval to the state Government as that kind of prior approval is neither contemplated nor prescribed by the statutory provision. ( 10. ) IN view of the aforesaid facts and circumstances, i am of the considered opinion that the decision of the Board of the respondents 2 and 3 to refer the case for promotion of the petitioner for approval to the State Government in its meeting held on 26-3-2007 is apparently contrary to the provisions of Rule 8 of the Rules of 1987 and, therefore, the aforesaid decision of the Board of the respondent jabalpur Development Authority dated 26-3-2007 referring the case for promotion of the petitioner for approval deserves to be and is accordingly quashed. As a consequence, the respondents 2 and 3 are directed to consider the case of the petitioner as required by the procedure prescribed by Rules 7 and 8 of the Rules 1987 and take a decision in accordance with the procedure prescribed therein after taking into consideration all aspects in respect thereto as this Court has not expressed any opinion about the entitlement and right of the petitioner for promotion on the post of Stenographer and has left the matter open to be decided by the authority in accordance with the procedure prescribed in the Rules 1987. In other words the petitioners case for promotion be reconsidered by the Board at its own level, in accordance with the rules and a positive or negative resolution may be passed so as to enable the respondent authority to pass consequential orders in that respect. The aforesaid exercise be undertaken expeditiously preferably within a period of three months from the date of furnishing a copy of this order. The petition is accordingly allowed with the aforesaid directions. c. c. as per rules. Petition allowed.