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Madhya Pradesh High Court · body

2008 DIGILAW 364 (MP)

DEVENDRA BAPNA v. STATE OF M. P.

2008-03-04

R.K.GUPTA

body2008
Judgment ( 1. ) AS common questions are involved in both the petitions, they are being decided by a common order. The present petition i. e. W. P. No. 23798/03 is filed by the petitioner seeking seniority over respondent No. 4 on the post of Joint Director. The petitioner submitted a representation against the seniority assigned to the respondent No. 4 above to the petitioner and the said representation was rejected by order dated 11-8-1997 which is Annexure A/1 to the petition. ( 2. ) IN the present case, there is no dispute between the parties that petitioner was senior to the respondent No. 4. The petitioner was appointed as Assistant fisheries Officer on 15-11-1971 and respondent No. 4 was appointed as Assistant fisheries Officer in the year 1972. A gradation list was published by the respondents which is Annexure A/3 showing the position as on 31-3-1994. In this seniority list, the petitioner was placed at serial No. 1 and respondent No. 4 was placed below to the petitioner. ( 3. ) THE petitioner was selected by the Public Service Commission for the post of Assistant Director and was placed at Serial No. 1 in the panel and so far as respondent No. 4 is concerned, he was also selected by the Public Service commission and was placed at serial No. 4 in the waiting list. The petitioner was placed in the main merit list. ( 4. ) THE petitioner was appointed to the post of Assistant Director in october, 1978 and was promoted to the post of Dy. Director by an order dated 24-7-1990. So far as respondent No. 4 is concerned, he was promoted in the year 1991. On the basis of the aforesaid facts, it is clear that petitioner was assigned higher seniority than the respondent No. 4. According to the channel of promotion, from the post of Assistant Director, the promotion is to be regulated to the post of Joint Director then to the post of Director. The matter with regard to promotion to the post of Joint Director is regulated by the Recruitment Rules which are known as M. P. Fisheries (Gazetted) Service Recruitment Rules, 1987. ( 5. ) ACCORDING to Rule 15, the promotions are to be regulated by applying the rule of "merit cum seniority". The matter with regard to promotion to the post of Joint Director is regulated by the Recruitment Rules which are known as M. P. Fisheries (Gazetted) Service Recruitment Rules, 1987. ( 5. ) ACCORDING to Rule 15, the promotions are to be regulated by applying the rule of "merit cum seniority". Sub-rule (3) of Rule 15 further provides that if the Junior Officer who, in the opinion of the Committee is of exceptional merit and suitability, he may be assigned a higher place of merit than that of the officer senior to him. ( 6. ) THERE is no dispute that in terms to Rule 15 (3), the DPC found respondent No. 4 more meritorious than the petitioner and was placed at serial no. 1 in the merit list and the petitioner was placed at serial No. 3 for promotion to the post of Joint Director. Accordingly the order of promotion was passed by the respondents which is Annexure A/2. The order of promotion annexure A/2 states that this is a temporary promotion in the pay scale of Rs. 3700-5000/- and the persons are promoted on officiating basis. ( 7. ) THE main grievance of the petitioner is that once the petitioner in the feeder post was senior to the respondent No. 4 then on such promotion, the respondent No. 4 should not have been assigned a higher seniority i. e. above to the petitioner merely because respondent No. 4 was found to be an officer of excellent merit and suitability by the DPC in terms to Rule 15 (3) of the recruitment Rules and thus it is submitted that inter se seniority between the two officers promoted by the same DPC and by the same order, the seniority in the feeder post has to be maintained. ( 8. ) RESPONDENTS in the return have stated that by virtue of Rule 15 (3) if the dpc found a person to be of exceptional merit then the junior person has to be placed in the merit list above to the senior and accordingly the seniority has been assigned to the junior above to the senior. ( 9. ) BEFORE appreciating the rival contentions of the parties, it would be appropriate to refer to the recruitment rules. Rule 15 (3) of the M. P. Fisheries (Gazetted) Service Recruitment Rules, 1987 reads as under :- "15. ( 9. ) BEFORE appreciating the rival contentions of the parties, it would be appropriate to refer to the recruitment rules. Rule 15 (3) of the M. P. Fisheries (Gazetted) Service Recruitment Rules, 1987 reads as under :- "15. Preparation of list of suitable officers.- (1) the Committee shall prepare a list of such persons who satisfy the conditions prescribed in rule 14 above and as are held by the Committee to be suitable for promotion/transfer to the service. The list shall be sufficient to cover the anticipated vacancies on account of retirement and promotion during the course of one year from the date of preparation of the select list. A reserve list consisting of 25% of the number of persons included in the said list shall also be prepared to meet the unforeseen vacancies occurring during the course of the aforesaid period. (2) The selection for inclusion in such list shall be based on merit and suitability in all respects with due regard to seniority. (3) The names of the officers included in the list shall be arranged in order of seniority in the service or posts as specified in column (2) of schedule IV, at the time of preparation of each select list : provided that any junior officer who in the opinion of the committee is of exceptional merit and suitability may be assigned in the list a higher place than that of the officer senior to him. Explanation - A person, whose name is included in a select list but who is not promoted during the validity of the list shall have no claim to seniority over those considered in a subsequent selection, merely by the fact of this earlier selection. 4. The list so prepared shall be reviewed and revised every year. 5. If in the process of selection, review or revision, it is proposed to supersede any member of the Service, the committee shall record its reasons for the proposed supersession. " ( 10. ) APART from the aforesaid rule, the relevant rule i. e. Rule 12 of the M. P. Civil Services (General Conditions of Service) Rules, 1961 was also relevant and rule 12 of the Rules of 1961 reads as under :- "12. Seniority.- The seniority of the members of service of a district branch or group of posts of that service shall be determined in accordance with the following principles, viz. Seniority.- The seniority of the members of service of a district branch or group of posts of that service shall be determined in accordance with the following principles, viz. (a) Direct recruits.- (i) The seniority of a directly recruited government servant appointed on probation shall count during his probation from the date of appointment viz: (ii) The same order of inter se seniority shall be maintained on the confirmation of such direct recruits if the confirmation is ordered at the end of the normal period of probation. If, however, the period of probation of any direct recruits is extended, the appointing authority shall determine whether he should be assigned the same seniority as would have been assigned to him if he had confirmed on the expiry of the normal period of probation or whether he should be assigned a lower seniority. " (b) Promoted Government Servant.- A promoted Government servant shall count his seniority from the date of his confirmation in the service to which he has been promoted and shall be placed in the gradation list immediately below the last confirmed member of that service but above all the probationers : provided that where two or more promoted Government servants are confirmed, with effect from the same date, the appointing authority shall determine their inter se seniority in the service in which they are confirmed, with due regard to the order in which they were included in the merit list, if any, prepared for determining their suitability for promotion and their relative seniority in the lower service from which they have been promoted. (c) Officiating Government Servant.- The inter se seniority of government servant promoted to officiate in a higher service or a higher category of posts shall, during the period of their officiation, be the same as that in their substantive service or grade irrespective of the dates on which they began to officiate in the higher service or grade : provided that - (i) If they were selected for officiation from a list in which the names of government servants considered suitable for trial in a promotion, to the higher service or grade were arranged in order of merit, their inter se seniority shall be determined in accordance with the order of merit in such list; (ii) The seniority of a permanent Government servant appointed to officiate in another service, or post by transfer shall be determined ad hoc by the appointing authority. Provided that the seniority proposed to be assigned to such Government servant shall be determined and intimated to him in the order of appointment, (iii) Where a permanent Government servant is reduced to a lower service, grade or category of posts, he shall rank in the gradation list of the latter service, grade or category of posts above all the others in that gradation list, unless the authority ordering such reduction by a special order indicates a different position in the gradation list for such reduced government servant. (iv) Where an officiating Government servant is reverted to his substantive service or post, he shall revert to his position in that gradation list relating to his substantive appointment which he held before he was appointed to officiate in the other service or post. " ( 11. ) THE aforesaid Rule 12 subsequently was amended by the State government and the new rule 12 has been substituted by the State Government in m. P. Civil Services (General Conditions of Service) Rules, 1961. The aforesaid rule 12 has been substituted with effect from 2-4-1998. It is not quoted as it is not relevant. ( 12. ) ON the basis of the aforesaid, it is clear that when the order of promotion was passed on 23-7-1996 (Annexure A/2) in pursuance to the recommendations of the DPC, the un-amended Rule 12 which has been quoted hereinabove was holding the field and was applicable. It is not quoted as it is not relevant. ( 12. ) ON the basis of the aforesaid, it is clear that when the order of promotion was passed on 23-7-1996 (Annexure A/2) in pursuance to the recommendations of the DPC, the un-amended Rule 12 which has been quoted hereinabove was holding the field and was applicable. However, it is pertinent to mention here that respondents have not filed any circular issued by the State government with reference to fixation of inter se seniority. ( 13. ) ON the basis of the aforesaid, the matter has to be examined in terms to m. P. Civil Services (General Conditions of Service) Rules, 1961. According to the same, the inter se seniority of promoted government servant is to be fixed from the date of his confirmation in the service to which he has been promoted and shall be placed in the gradation list immediately below the last confirmed member of that service but above all the probationers. The proviso appended to rule 12 (b) further states where two or more promoted Government servants are confirmed with effect from the same date, the appointing authority shall determine their inter se seniority in the service in which they are confirmed, with due regard to the order in which they were included in the merit list, if any, prepared for determining their suitability for promotion and their relative seniority in the lower service from which they have been promoted. ( 14. ) ON the basis of the aforesaid rule, it is clear that the competent authority after the confirmation of the promoted Government servant shall fix the seniority and while fixing the seniority, due regard shall be given to the merit list in which order they have been placed and their relative seniority in the lower service from which they have been promoted shall also be considered. Rule 12 (b)holds the field with regard to fixation of seniority of the promoted Government servant. ( 15. ) APPLYING the aforesaid test as contemplated under Rule 12 (b), if the order of promotion dated 23-7-1996 (Annexure A/2) is seen then it is a case of temporary promotion of the petitioner as well as respondent No. 4 on officiating basis. Once it is found that the promotion is of officiating basis then Rule 12 (c)also governs the field. ) APPLYING the aforesaid test as contemplated under Rule 12 (b), if the order of promotion dated 23-7-1996 (Annexure A/2) is seen then it is a case of temporary promotion of the petitioner as well as respondent No. 4 on officiating basis. Once it is found that the promotion is of officiating basis then Rule 12 (c)also governs the field. Rule 12 (c) reads as under :- "12 (c) Officiating Government Servant.- The inter se seniority of government servant promoted to officiate in a higher service or a higher category of posts shall, during the period of their officiation, be the same as that in their substantive service or grade irrespective of the dates on which they began to officiate in the higher service or grade : provided that - (i) If they were selected for officiation from a list in which the names of government servants considered suitable for trial in a promotion, to the higher service or grade were arranged in order of merit, their inter se seniority shall be determined in accordance with the order of merit in such list; (ii) The seniority of a permanent Government servant appointed to officiate in another service or post by transfer shall be determined ad hoc by the appointing authority. Provided that the seniority proposed to be assigned to such government servant shall be determined and intimated to him in the order of appointment, (iii) Where a permanent Government servant is reduced to a lower service, grade or category of posts, he shall rank in the gradation list of the latter service, grade or category of posts above all the others in that gradation list, unless the authority ordering such reduction by a special order indicates a different position in the gradation list for such reduced government servant. (iv) Where an officiating Government servant is reverted to his substantive service or post, he shall revert to his position in that gradation list relating to his substantive appointment which he held before he was appointed to officiate in the other service or post. " ( 16. ) IN this reference, this Court had an occasion to consider the effect of rule 12 (c) in a judgment reported in 1985 MPLJ 778 , Vasant Kumar Jaiswal vs. State of M. P. and in paragraph 5 and 6 following ratio has been laid down :- "5. " ( 16. ) IN this reference, this Court had an occasion to consider the effect of rule 12 (c) in a judgment reported in 1985 MPLJ 778 , Vasant Kumar Jaiswal vs. State of M. P. and in paragraph 5 and 6 following ratio has been laid down :- "5. Taking note of the aforesaid constitutional obligation, let us find out if the petitioners interpretation is the only interpretation of the Rule or if there could be any other interpretation of the same. The Rule is, no doubt, inartistically worded and can be read in the manner as the petitioner is reading it, but on a deeper understanding, the said reading does not appear to be correct. The use of the words "inter se seniority" in relation to promotion, would only imply determination of seniority between those who have been promoted at the same time. If so read, the rule would mean that seniority of persons promoted together, would remain the same as in the lower cadre as long as they are officiating in the higher cadre. Such a reading of the rule would avoid unreasonableness and the consequent unconstitutionality and would make the rule fully and effectively workable. The submission of the learned counsel for the petitioner, however, is that such a reading would bring the first part of the rule in conflict with the second part which requires the seniority to remain as same as in the lower cadre "irrespective of the dates on which they began to officiate in the higher service of grade. " It is true that the subsequent part of the rule, if read as the petitioner wants it to be read, would make the earlier interpretation unworkable, but the petitioners reading of the earlier part of the rule does not appear to be correct. Several persons may be promoted together and yet may not join the promoted cadre on the same date. It is not unusual to find persons who, though promoted, are not relieved due to administrative exigencies to take up higher assignment immediately. If this was to affect their seniority, they would suffer for no fault on their part. In such a case, the normal rule of counting the seniority from the date of continuous officiation, would result in injustice and would become unreasonable. If this was to affect their seniority, they would suffer for no fault on their part. In such a case, the normal rule of counting the seniority from the date of continuous officiation, would result in injustice and would become unreasonable. Under the circumstances, the rule, in order to survive the test of Articles 14 and 16 of the Constitution, should be read to mean that seniority between persons promoted together to officiate in higher cadre, would be the same as in their substantive cadre-irrespective of the date from which they joined their service in the promoted cadre. This reading of the rule makes it just and proper and brings it in line with the law on the subject. This interpretation of the rule would lead to an inevitable conclusion that the petitioners claim to his seniority is devoid of any substance and is not supported by Rule 12 (c) of the Rules. " 6. The decision of this Court in Umesh Narayan Mishra s case (supra) is said to be supporting the submission of the petitioner and, hence, may be examined. In the said case, this Court was considering the seniority of extra Assistant Conservator of Forest, who had been promoted to that cadre on an officiating basis. The seniority list was prepared on the basis of directions contained in a memo dated 8-2-1978 and not on the basis of rule 12 (c) as in existence. The said memo had the effect of enforcing a decision to amend Rule 12-without actually affecting the amendment. The ambit and scope of Rule 12 (c) was not examined in the aforesaid case as it was accepted that the list was not prepared in accordance with rule 12 (c ). This Court, therefore, quashed the list. The said decision is, therefore, not an authority for deciding the real meaning, scope and ambit of Rule 12 (c) of the Rules. Indeed, in the instant case, the respondents claim that the seniority list is prepared in accordance with rule 12 (c ). Under the circumstances, the aforesaid judgment does not help the petitioner in any manner. " ( 17. ) THE aforesaid judgment has been confirmed by the Apex Court in a judgment reported in AIR 1987 SC 2322 . ( 18. Under the circumstances, the aforesaid judgment does not help the petitioner in any manner. " ( 17. ) THE aforesaid judgment has been confirmed by the Apex Court in a judgment reported in AIR 1987 SC 2322 . ( 18. ) ON the basis of the aforesaid ratio it is seen that the order of promotion dated 23-7-1996 (Annexure A/2) was a temporary promotion and petitioner as well as respondent No. 4 both were allowed to officiate on the post of Joint director then keeping in view the nature of promotion, Rule 12 (c) would also have the application in the present case. Since Rule 12 (c) has already received consideration of this Court in the judgment of Vasant Kumar (supra) which also has been confirmed by the Apex Court in AIR 1987 SC 2322 (supra) then if the two persons are allowed to be officiating on a higher post as they were found fit by the same DPC and by the one order they have been promoted then the seniority in the feeder post would be the relevant factor for the purpose of reckoning the seniority on the higher post. ( 19. ) THERE is no dispute in the present case that petitioner was senior to respondent No. 4, therefore, the petitioners seniority in the feeder post has to be reckoned and accordingly the petitioner shall be granted seniority above to respondent No. 4 on the post of Joint Director. ( 20. ) THE question has to be also considered in the light of Rule 12 (b ). Rule 12 (b) has already been referred to and discussed in earlier paragraphs. According to the same, the inter se seniority of a promoted government servant has to be reckoned from the date of his confirmation in the post on which he is promoted. The proviso attached to this also states that if two or more promoted government servants are confirmed with effect from the same date then the appointing authority shall determine their inter se seniority in the service in which they are confirmed, with due regard to the order in which they were included in the merit list, if any, prepared for determining their suitability for promotion and their relative seniority in the lower service from which they have been promoted. ( 21. ( 21. ) THE respondents have not filed any document and have also not stated in their return that respondent No. 4 was confirmed earlier to petitioner on the post of Joint Director so that a case could have been made out in favour of respondent No. 4 on the basis of confirmation that respondent No. 4 was confirmed earlier so that there would not have any dispute with reference to fixation of inter se seniority between the promotees, i. e. petitioner and respondent no. 4. ( 22. ) APART from the aforesaid, proviso further states that the competent authority has to apply his mind for fixing the inter se seniority of two or more promoted government servants who are confirmed by the same order and with same date on the promoted post Respondents have not placed any order and have not made any averments in their return that the respondent No. 4 was confirmed and the petitioner was not confirmed then it is very difficult to hold that in the absence of any confirmation of the petitioner as well as respondent No. 4 on the post of Joint Director, the respondent No. 4 can be assigned a higher seniority than the petitioner on the post of Joint Director by exercising the powers vested with the competent authority under the proviso appended to Rule 12 (b) which will be applicable only after when the promoted government servants are confirmed then such confirmation would be the date for fixing the seniority and in the absence of any confirmation as such, the proviso shall have no application. The fixation of seniority would only arise after confirmation and not before that. ( 23. ) SINCE the respondents have not stated in their return that respondent no. 4 was confirmed earlier to the petitioner, therefore, in terms to Rule 12 (b) it is very difficult to hold that merely because respondent No. 4 was placed in a higher rank in merit of Joint Director than the petitioner, respondent No. 4 would be entitled to get higher seniority than the petitioner. ( 24. ) RULE 15 (3) which has already been quoted relates to preparation of merit list after the selection by the DPC and if a person is found to be of more meritorious then he can be assigned a higher seniority in the merit list. ( 24. ) RULE 15 (3) which has already been quoted relates to preparation of merit list after the selection by the DPC and if a person is found to be of more meritorious then he can be assigned a higher seniority in the merit list. This has to be applied as a criteria for promotion which is "merit cum seniority". This rule has to do nothing with fixation of seniority. Rule 15 does not state that after when a junior is found to be of more meritorious and suitable then after his promotion, he would also have a right to claim seniority over his senior. The purpose under rule 15 only seems to be that an officer who is of exceptional merit and suitability should not be deprived of his promotion on the ground of seniority because when the rule of "merit cum seniority" is applied then merit has to be given preference and not the seniority and for this reason a person who is junior but is of exceptional merit and suitability has to be placed above to his senior in the merit list so that the chances of promotion will not be adversely affected because of the seniority. This alone is the purpose of assigning the higher merit rank in the merit list to a junior by the DPC but the rule does not provide for conferring seniority also on the basis of exceptional merit. Rule 12 (b) which governs the field for the purpose of fixation of seniority of two or more promoted officers. ( 25. ) COUNSEL appearing on behalf of the respondents have not argued anything that either Rule 12 (b) or 12 (c) have no application in the present case. ( 26. ) ON the basis of the aforesaid, I am inclined to hold that respondent No. 4 could not have been assigned a higher seniority on the post of Joint Director over the petitioner who was senior in the feeder post and accordingly it is directed that the respondents shall pass appropriate orders within two months from the date the certified copy of this order is submitted by the petitioner to the respondents and shall also provide all consequential benefits to the petitioner for the next higher post. ( 27. ( 27. ) THE next petition i. e. W. P. S No. 1119/2005 relates to the aspect that the respondent No. 4 from the post of Joint Director has further been promoted to the post of Director. ( 28. ) THE tribunal while admitting the petition i. e. W. P. No. 23798/03 passed an order on 8-11-1997 that respondent No. 4 should not be given regular charge of the post of Director. During the pendency of the petition, the respondent No. 4 was further promoted to the post of Director by an order dated 13-9-2004 (Annexure P/7) passed in W. P. S. No. 1119/05. This order has been challenged by the petitioner on the ground that case of seniority on the post of Joint Director was already pending i. e. W. P. No. 23798/03 and the tribunal has also passed an order of stay in favour of the petitioner that respondent No. 4 should not be given regular charge of the post of Director. The stay order was not vacated and the state Government by passing an order on 13-9-2004 (Annexure P/7) in W. P. S. No. 1119/05 promoted the respondent No. 4 on temporary basis as a Director. ( 29. ) SINCE I have already held earlier while deciding the W. P. No. 23798/03 that no higher seniority on the post of Joint Director would have been assigned to the respondent No. 4 above to the present petitioner and the seniority on the feeder post has to be counted because both i. e. petitioner and respondent No. 4 were considered by the same DPC and found fit and by a common order both were promoted to the post of Joint Director, therefore, the seniority on the feeder post would be reckoned on the post of Joint Director and respondent No. 4 shall be treated junior to the petitioner, therefore, the order passed in W. P. No. 1119/05 (Annexure P/7) is also quashed because this order of promotion is based upon wrong seniority of the respondent No. 4. The respondents in para 5 of the return filed in W. P. No. 1119/05 have stated as under :- "it is submitted that the name of the petitioner was also under the zone of consideration before the DPC met on 6-8-2004 for making the promotion to the post of Director Fisheries. The respondents in para 5 of the return filed in W. P. No. 1119/05 have stated as under :- "it is submitted that the name of the petitioner was also under the zone of consideration before the DPC met on 6-8-2004 for making the promotion to the post of Director Fisheries. Only one post of Director was to be filled up in accordance with the Rules of 1987 under the criteria of merit and suitability in all respect with due regard to seniority. The respondent no. 2 was senior to the petitioner in the feeder cadre of Joint Director. However, the previous five years Annual Confidential Reports from the year ending March, 1999 to year ending March, 2003 were taken into consideration for assigning the merit as per the yardstick evolved by the committee. On scrutiny it was found that the respondent No. 2 was holding the exceptional merit with two excellent (A+) remark and three very good (A) remarks whereas the petitioner was found to have held two good remarks (B) and three excellent (A+ ). Obviously, the respondent No. 2 was recommended for promotion to the post of director and subsequently he has been promoted vide order dated 13-9-2004, Annexure P/7. " ( 30. ) ON the basis of the same, it is clear that there had been only one post of director and the name of the petitioner was also within the zone of consideration before the DPC which met on 6-8-2004. It is also stated that respondent No. 4 was senior to the petitioner in the feeder cadre of Joint Director and on the basis of the confidential report of the respondent No. 4 he has been promoted and was assigned a higher seniority on the feeder post i. e. Joint Director and further for this reason the name of respondent No. 2 in W. P. No. 1119/05 and respondent no. 4 in W. P. No. 23798/03 was recommended for promotion. ( 31. ) ON the basis of the return it is clear that respondent No. 2/4 was given preference over the petitioner only because of his wrong seniority on the post of joint Director and for this reason he was promoted. ( 32. 4 in W. P. No. 23798/03 was recommended for promotion. ( 31. ) ON the basis of the return it is clear that respondent No. 2/4 was given preference over the petitioner only because of his wrong seniority on the post of joint Director and for this reason he was promoted. ( 32. ) IN view of the aforesaid, respondents are directed to re-fix the petitioners seniority above to respondent No. 2/4 on the post of Joint Director and then to hold a review DPC of 6-8-2004 to consider the case of the petitioner, respondent No. 2/4 and other persons those who were within the zone of consideration when the original DPC met on 6-8-2004. The review DPC shall take place within a period of two months from the date the petitioner furnishes certified copy of this order to the respondents and the review DPC shall apply the same criteria which was applied by the original DPC to consider the case of the petitioner for his promotion on the post of Director. ( 33. ) ACCORDINGLY, both the petitions are allowed to the extent above. Petitions allowed.