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Madhya Pradesh High Court · body

2008 DIGILAW 1104 (MP)

Rambhuwan Prasad Shukla v. State of M. P.

2008-09-04

R.S.JHA

body2008
ORDER R.S. Jha, J. 1. The petitioner, who is an accountant working in the Forest Department, has filed this petition seeking relief of consideration of his case for promotion on the post of Head-Clerk/Assistant and has also assailed the validity of order dated 15-3-2000 by which respondent No. 3 has been promoted on the ground that the petitioner who is senior to respondent No. 3, has been ignored. 2. The case of the petitioner is that the petitioner was initially recruited as a Daftari in the year 1961, was subsequently appointed as a Lower Division Clerk by order dated 17-8-1962 and thereafter promoted as an Upper Division Clerk by order dated 14-10-1971. It is submitted that though the petitioner did not pass the accounts training examination, as he was never sent for training, he was promoted on the post of accountant by order dated 4-3-1974 and was shown at serial No. 3 of the gradation list of accountants while respondent No. 3 was shown at serial No. 5. It is submitted by the Learned Counsel for the petitioner that by circular dated 24-11-1984 and 18-1-1996 the condition for passing accounts training examination in respect of the persons who had completed 45 years of age, was relaxed and, therefore, the petitioner who was senior to respondent No. 3, was entitled to be considered and promoted on the post of Head-Clerk and he could not have been superseded by the respondent No. 3, who was promoted as a Head-Clerk by the impugned order dated 15-3-2000 only on account of not having passed the accounts training examination. 3. It is submitted by the Learned Counsel for the petitioner that the petitioner's services are governed by M.P. Class III (Ministerial) Forest Service Recruitment Rules, 1978 which do not prescribe passing of an accounts training examination as an essential qualification for being considered for promotion on the post of Head-Clerk and in such circumstances, non-consideration of the petitioner's case is contrary to the provisions of the Rules of 1978 and amounts to denial of the petitioner's right to be considered for promotion in spite of being senior, in accordance with the provisions of the rules. Learned Counsel for the petitioner has also filed a copy of an order passed by the M.P. State Administrative Tribunal, in the case of T.A. No. 3636/88, S.K. Saxena vs. State of M.P. and others, decided on 3-11-1997 in support of the aforesaid contention wherein a similarly placed person, who had not passed the accounts training examination, was permitted to continue on the post of accountant. 4. Per contra, the Learned Counsel appearing for the respondent/State submits that in accordance with the provisions of Rule 14 of the Rules of 1978, the petitioner was necessarily required to pass the accounts training examination as that is an essential requirement for being promoted on the post of accountant and as the petitioner, admittedly, has not passed the accounts training examination, he cannot be considered for promotion on the post of Head-Clerk, though he is being permitted to be continued on the post of accountant. Learned Counsel for the respondent/State has also filed a copy of the circular issued by the State Government on 3-6-1997 by which the previous circulars of the State, dated 11-7-1985 and 18-1-1996 exempting persons who have attained the age of 45, from passing accounts training examination, have been withdrawn and passing of the accounts training examination has been made essential irrespective of the age of the employee. The respondents have also relied upon a Division Bench judgment of this Court in M. P. No. 32 of 1978, M. F. Siddique vs. Govt. of M.P. and others, dated 27-7-1981, which has been filed as Annexure R-2, wherein similar issues raised by the petitioner therein were considered and the petition was dismissed. 5. I have heard the Learned Counsel appearing for the parties at length. Rule 14 of the Rules of 1978 specifically provides that promotions to clerical posts, for which accounts training is compulsory, is to be made only from the persons in the junior posts who have successfully completed accounts training and those who are promoted without the aforesaid qualifications in exceptional cases, where qualified accounts trained persons are not available, shall have to pass the accounts training within a period of two years from the date of promotion, otherwise they shall be reverted. 6. 6. In the case of M.F. Siddique (supra) a Division Bench of this Court was required to consider a rule that was nearly in similar terms in the M.P. Class III (Ministerial) Forest Service Recruitment Rules, 1967 which have been replaced by the Rules of 1978. The issue as to whether accounts training is compulsory for promotion on the post of accountant or not was extensively dealt with in the following terms in paragraphs 3 and 4 of that judgment: 3. The question before us is whether passing of accounts examination or training is necessary for the post of Head-clerk. Recruitment to the post of Head-clerk in Forest Department is covered by Rule 14 of the Madhya Pradesh Class III (Ministerial) Forest Service Recruitment Rules, 1967. That rule provides that promotions to the clerical posts in which accounts training is compulsory will be made only from the persons in the junior posts who have been qualified in accounts. Persons who are promoted without qualifying in the prescribed course or accounts will have to qualify in accounts within a period of two years from the date of promotion. The accounts training scheme for the Forest Department was approved by the Government on 7th August, 1968 (Annexure R-II). Paragraph 2 of this scheme provides that the training will be compulsory for Accounts, Cashiers, Store-clerks and other Class III Ministerial Servants of the Forest Department who are concerned with the maintenance and rendering of accounts. Another Government order relevant on the point is Annexure R-VI which was passed on 7th April, 1975. It clarifies the position that accounts training is compulsory for Accountants and higher posts in the clerical cadre. From these orders it is clear to us that accounts training was compulsory for the post of Head-clerk which was a post higher to the post of Accountant. The whole case of the petitioner is that he was exempted from training and, therefore, it was not necessary for him to pass the accounts training examination. There is no specific order produced before us by the petitioner exempting him from accounts training. The mere fact that the petitioner was confirmed as an Accountant by order of the Conservator of Forests, dated 15th January, 1967 with effect from 1st April, 1966 does not mean that specific exemption was granted to the petitioner for passing the accounts training. There is no specific order produced before us by the petitioner exempting him from accounts training. The mere fact that the petitioner was confirmed as an Accountant by order of the Conservator of Forests, dated 15th January, 1967 with effect from 1st April, 1966 does not mean that specific exemption was granted to the petitioner for passing the accounts training. At any rate, the confirmation on the post of Accountant may be good for the post of Accountant and it may not be open to the Government to revert the petitioner to a post lower to that post on the ground that he does not possess the accounts training, but it cannot be said that the petitioner can be taken to be accounts trained for the post of Head-clerk to which he was promoted until further orders in 1973. Paragraph 5 of the order dated 7th April, 1975 goes to show that before formulation and implementation of the accounts training scheme, employees who had completed 45 years of age and who had sufficient experience of Account's work were exempted from undergoing accounts training. At the last hearing we directed the petitioner to file an affidavit as to when he completed 45 years of age. The affidavit filed by the petitioner goes to show that he completed 45 years on 26th March, 1974, much after the accounts training scheme was implemented. We are satisfied that the petitioner was not granted exemption and could not be granted exemption in accordance with paragraph 5 of the order dated 7th April, 1975. It is contended in the affidavit filed by the petitioner that as he completed 45 years of age before the order dated 7th April, 1975 and had worked as Accountant, he should be taken to have passed the accounts training. Paragraph 5 of the said order, however, states the fact that exemptions were granted to employees who had completed 45 years of age before the implementation of the accounts training scheme and who had sufficient experience in accounts and if any such exemption had not been granted to a person, he could be granted exemption even now. What is necessary for exemption under paragraph 5 is completion of 45 years of age at the time of implementation of the accounts training scheme which took place in 1968. At that time the petitioner was below 45 years. What is necessary for exemption under paragraph 5 is completion of 45 years of age at the time of implementation of the accounts training scheme which took place in 1968. At that time the petitioner was below 45 years. We, therefore, hold that the petitioner was neither granted exemption nor he is entitled to grant of exemption from undergoing accounts training. The petitioner was, therefore, not qualified to continue as Head-clerk or to be confirmed on that post. The petitioner's reversion is, therefore, valid. We may also point out that at some stage while representing his case to the authorities the petitioner produced a copy of the order of confirmation as accountant passed by the Conservator of Forests on 15th January, 1967 which mentioned that he was exempted from accounts training. The return filed by the respondents goes to show that the statement in that copy that the petitioner was exempted from accounts training was an interpolation made by him. It seems that it is for that reason that that document has not been filed before us. 4. Learned Counsel for the petitioner strongly relied upon a decision of a Division Bench in Narbada Prasad Dwivedi vs. State of M.P. and anr., M. P. No. 669 of 1979 decided on 13-1-1981. The petitioner in that case was confirmed as Accountant in 1966 with effect from 1961. He was then promoted to the post of U.D.C. Grade I. Instead, the finding reached was that no rule or executive instruction was pointed out which made it necessary that persons holding the posts of U.D.C. Grade I should pass the accounts training. It was in this background that it was held that reversion of the petitioner was bad. In that case the State Government did not produce the accounts training scheme for the Forest Department made by the Government on 7th August 1968 (Annexure R-III) and the order of the Government dated 7th April, 1975 (Annexure R-VI). The said scheme and the order, as observed by us, show that accounts training was compulsory for Accountants and higher posts in the clerical cadre in the Forest Department. As the relevant material was not placed for consideration in Narbada Prasad's case, the decision in that case cannot be of binding effect in the present case and cannot help the petitioner. 7. As the relevant material was not placed for consideration in Narbada Prasad's case, the decision in that case cannot be of binding effect in the present case and cannot help the petitioner. 7. A perusal of the judgment in the case of M.F. Siddique (supra) clearly establishes that in view of the scheme framed by the State Government dated 7th August, 1968 and 7th April, 1975 passing of accounts training examination was necessary and compulsory for promotion on the post of accountant and higher posts. It is also clear that in the case of M.F. Siddique (supra) the denial of promotion on the post of Head-Clerk from the post of accountant on the ground of not possessing the requisite qualification was upheld. The rule position being similar even after coming into force the 1978 Rules, the law laid down by the Division Bench in the case of M.F. Siddique (supra) squarely applies to the petitioner's case also and I am in respectful agreement with the same. 8. The issue as to whether the requirement of passing of the accounts training examination stands waived on attaining the age of 45 also deserves to be rejected on account of the subsequent circular of the State, dated 3-6-1997, a copy of which has been filed by the respondents as Annexure R-I, whereby both the earlier circulars dated 11-7-1985 and 18-1-1996 have been rescinded and it has been clarified that there would be no exemption from passing the accounts training examination on account of age. It is also evident from a perusal of Annexure R-II filed along with the return, which is a letter of the Chief Conservator of Forests, dated 3-10-1981', that in view of the judgment of the Division Bench of this Court in the case of M.F. Siddique (supra), passing of the accounts training examination for being considered for the promotion on the post of accountant and higher posts has been made compulsory. 9. 9. In view of the aforesaid facts and circumstances, specifically, in view of the provisions of Rule 14 and the judgment of the Division Bench of this Court in the case of M.F. Siddique (supra) the contention of the petitioner that he is entitled to be considered for promotion on the post of Head-Clerk in spite of not having cleared the accounts training examination, deserves to be and is hereby rejected and on the same count the challenge by the petitioner to the promotion of respondent No. 3 by the impugned order dated 15-3-2000 also deserves to be and is hereby rejected. 10. The petition filed by the petitioner being meritless is accordingly dismissed. In the peculiar facts and circumstances of the case, there shall be no order as to costs. Petition dismissed