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2009 DIGILAW 637 (MP)

State of M. P. v. Shyam Sunder Savita

2009-05-13

A.P.SHRIVASTAVA, SUBHASH SAMVATSAR

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JUDGMENT Samvatsar, J. -- 1. This writ appeal is preferred by the State being aggrieved by an order dated 13.3.2008 passed by the learned single Judge of this Court in W.P. No. 5143/06 (S) thereby allowing the petition filed by the present respondent. 2. Brief facts of the case are that the respondent was appointed on the post of Tahsil Organizer vide order dated 30.11.1984 in the pay-scale of Rs. 740-1180/-. This appointment was made in exercise of the powers conferred under the Adhiniyam known as Madhya Pradesh Gram Tatha Nagar Raksha Samiti Adhiniyam, 1999 and the Rules were framed thereunder section 21 known as Madhya Pradesh Gram Tatha Nagar Raksha Samiti Niyam, 2003. These rules govern the service condition of the respondent. As per the said Rules, no channel of promotion is provided from the post of Tahsil Organizer. However, the Government has prescribed a provision for grant of two higher pay-scales, firstly on completion of 12 years in service and secondly on completion of 24 years in service. 3. There is no dispute that the respondent was granted benefits of both these higher pay-scales. He filed the petition praying for relief that a policy for creating promotional posts be formulated with a specific timeframe so that the petitioner and other similarly situated persons may get the benefit of that policy. This petition is allowed by the impugned order. While allowing petition the writ Court has held that non-providing channel of promotion is arbitrary and illegal and further directed the respondents/State to provide two channels of promotion to the petitioner after completion of 12 years and 24 years in service. The writ Court also directed to comply with the aforesaid order within a period of three months. This order is assailed by the State Government in the present writ appeal. 4. The first contention of Shri Vivek Khedkar, learned Government Advocate appearing on behalf of the appellants/State is that the service conditions of the respondent are governed by the Statutory Rules namely, Madhya Pradesh Gram Tatha Nagar Raksha Samiti Niyam, 2003. He contended that the said Rules do not provide for channel of promotion from the post of Tahsil Organizer. He contended that the learned single Judge has no jurisdiction to direct for providing channel of promotion because the said direction will amount to amending the Rules. He contended that the said Rules do not provide for channel of promotion from the post of Tahsil Organizer. He contended that the learned single Judge has no jurisdiction to direct for providing channel of promotion because the said direction will amount to amending the Rules. He pointed out that these Rules cannot be challenged by the respondent-employee before this bench as per the Notification of Hon'ble the Chief Justice of this Court. This Notification provides that all the matters challenging rules, notification and the Acts are to be filed at the principal seat at Jabalpur and shall be heard by the bench comprising of Hon. the Chief Justice. Thus, the Judge sitting at Gwalior has no jurisdiction to issue any such kind of direction for amending the rules. Learned counsel also contended that the rules were not challenged by the petitioner in the present petition and therefore the petition was heard by this bench otherwise the petition was not maintainable. This argument raised by the counsel for the State has substantial force. 5. As per Notification No. 16/20/68-Judl.III, dated November 28, 1968 issued by the President under section 51 (2) of the States Reorganization Act, 1956 (No. 37 of 1956), Hon. the Chief Justice may order that any case or class of cases arising in any such district shall be heard at Jabalpur or at Gwalior. Thus, in exercise of such powers conferred by the Presidential order, Hon. the Chief Justice by orders dated 5.2.1976 directed that all the petitions under Articles 226/227 of the Constitution of India challenging the vires of any Act or statute or any order, or rule or regulation made under any Act or statute shall be heard only at the principal seat at Jabalpur. Hence, in the light of the aforesaid Notification and in view of the orders passed by Hon. the Chief Justice in pursuance of the Notification, such type of petitions cannot be heard at Gwalior bench. 6. In reply to this argument, Shri Anil Mishra, learned counsel appearing on behalf of the respondent contended that this Court can direct creation of avenues for promotion in the absence of rules. Learned counsel relied on the judgment of the apex Court in the case of Food Corporation of India v. Parashotam Das Bansal, (2008) 5 SCC 100 . 6. In reply to this argument, Shri Anil Mishra, learned counsel appearing on behalf of the respondent contended that this Court can direct creation of avenues for promotion in the absence of rules. Learned counsel relied on the judgment of the apex Court in the case of Food Corporation of India v. Parashotam Das Bansal, (2008) 5 SCC 100 . In that case, the petition was filed by the Engineer before Calcutta High Court for creation of promotional avenue and for formulating schemes. The Calcutta High Court dismissed the said petition. In para 13 of the judgment the apex Court has held that if there is no channel of promotion in respect of a particular group of officers resulting in stagnation over the years, the Court although may not issue any direction as to in which manner a scheme should be formulated or by reasons thereof interfere with the operation of existing channel of promotion to the officers. Thus, the apex Court in para 13 of the judgment has held that the Court should not issue direction in which manner, service rules should be framed. However, the apex Court in para 15 of the judgment has found that there were four promotional avenues available to the petitioner in that case namely, from Assistant Manager to Deputy Manager, from Deputy Manager to Joint Manager, from Joint Manager to Manager and from Manager to Executive Director. This fact was challenged by the Food Corporation of India in its return. It was also mentioned that 1/3rd of the officers in the cadre of Assistant Engineer are benefited by the said scheme. 7. Thus, the apex Court found that there was channel of promotion from the post of Assistant Engineer and ultimately directed the respondent-authority to grant benefit of selection grade. In this case also, the apex Court has not passed any direction for creating new channel of promotion. 8. The second case relied by the learned counsel for the respondent is in case of O.Z. Hussain v. Union of India, 1990 (Supp) SCC 688. From perusal of the said judgment we find that in that case the apex Court has passed direction under Article 32 of the Constitution of India for framing scheme for promotion. This judgment is not at all applicable in the present case. 9. From perusal of the said judgment we find that in that case the apex Court has passed direction under Article 32 of the Constitution of India for framing scheme for promotion. This judgment is not at all applicable in the present case. 9. The next judgment cited by the learned counsel for the respondent is in the case of Raghunath Prasad Singh v. Secretary, Home (Police) Department, Government of Bihar and others, 1988 (Supp) SCC 519. From perusal of the facts of this case it appears that in that case the petitioner claimed that he was entitled to exercise option and since option was not asked from him, he opted for Signal (Wireless) Wing which had a channel of promotion. When that was not accepted, he applied to the High Court for issuance of direction. The apex Court held that the High Court was right in finding against the petitioner therein that the option in terms of the instructions was available to those who came within the ambit and the appellant being a recruit of 1972-73 not in the combined cadre and therefore is not entitled to the benefit of option. However, before parting the apex Court has made observation that reasonable promotional opportunities should be available in every wing of public service. That generates efficiency in service and fosters the appropriate attitude to grow for achieving excellence in service. In the absence of promotional prospects the service is bound to degenerate and stagnation kills the desire to serve properly and hence issued directions to the State of Bihar to provide at least two promotional opportunities to the officers of the State. Thus, this judgment is also distinguishable. 10. The last judgment relief by the learned counsel for the respondent is in the case of State of Tripura and others v. K.K. Roy, (2004) 9 SCC 65 . Thus, this judgment is also distinguishable. 10. The last judgment relief by the learned counsel for the respondent is in the case of State of Tripura and others v. K.K. Roy, (2004) 9 SCC 65 . From perusal of the aforesaid judgment we find that the apex Court in para 8 of the said judgment has held as under : "The learned counsel appearing for the appellant, is, however, correct in his submission that the High Court in exercise of its jurisdiction under Article 226 of the Constitution of India could not have issued a writ of or in the nature of mandamus directing the appellant herein to grant a scale of pay which would be equivalent to Grade II or Grade I of the judicial service of the State." 11. In that case, the High Court has directed the respondent therein to be paid two promotions in the next Higher scale of pay upon his completion of 12 years and 24 years in service. Thus, in that case the apex Court has specifically laid down that the High Court had no jurisdiction to issue a writ of or in the nature of mandamus for creating promotional avenues. 12. In the present case, the writ is filed at Gwalior bench. As already stated above, in exercise of the powers conferred on the Chief Justice in pursuance of the Notification issued by the President of India dated 28.11.1968, the Chief Justice by order dated 5.2.1976 has directed that all the petitions under Article 226/227 of the Constitution of India challenging the vires of any Act or statue or any order or rule or regulation made under any Act or statute shall be heard at the principal seat at Jabalpur. The said Notification reads as under : "* * * * In exercise of the powers conferred on me by the proviso to the Notification No. 16/20/68-Judl. The said Notification reads as under : "* * * * In exercise of the powers conferred on me by the proviso to the Notification No. 16/20/68-Judl. III, dated November 28, 1968 issued by the President under S. 51 (2) of the States Reorganization Act, 1956 (No. 37 of 1956) establishing a permanent Bench of the Madhya Pradesh High Court at Gwalior; and in supersession of all previous orders so far issued in exercise of the powers under the aforesaid proviso, I hereby order that with effect from February 5, 1976 till further orders only the following cases arising from the revenue districts of Gwalior, Shivpuri, Datia, Guna, Vidisha (Bhelsa), Bhind and Morena, except those cases for which I may otherwise order, shall be heard at Jabalpur : (1) All petitions under Arts. 226/227 of the Constitution challenging the vires of any Act or statue or any order or rule or regulation made under any Act or statue, (2) All individual cases which I may hereafter order to be heard at Jabal pur." (Shiv Dayal) Chief Justice 5.2.1976 13. Apart from that, in the present case, the rules were not challenged by the petitioner which are statutory rules. In such circumstances, in absence of channel of promotion and in absence of jurisdiction to hear the matter challenging the rules, we hold that the writ Court has committed grave error in directing to create channel of promotion for the petitioner. Hence, we allow this appeal and set aside the impugned order passed by the learned single Judge.