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Madhya Pradesh High Court · body

2010 DIGILAW 1218 (MP)

M. I. Khan v. M. P. State Electricity Board

2010-12-09

ALOK ARADHE, S.R.ALAM

body2010
ORDER S.R. Alam, C.J. 1. Both these appeals arise from the order dated 28.1.2010 passed by learned single Judge in Writ Petition No. 2626/2008(S). As agreed to by learned Counsel for the parties, the appeals were heard together and are being decided by this common order. W.A. No. 137/2010 has been preferred by the employer, namely, M.P. State Electricity Board and its functionaries (in short 'the Board') whereas WA No. 93/2010 has been preferred by the employee (hereinafter referred to as 'the Petitioner'). 2. The short question that falls for our consideration in these appeals is whether the vacancies occurring prior to adoption of new Rules by the Board are also to be filled up as per the then Rules in vogue or as per new Rules. 3. The short facts which are relevant to appreciate the aforesaid question involved in these appeals are that the Petitioner entered in the services of the Board in the medical wing as Medical Officer in the year 1977. Vide order dated 1.5.1991 he was promoted as Senior Medical Officer. Aforesaid post was subsequently redesignated as Deputy Chief Medical Officer. The Petitioner was awarded higher pay-scale of Assistant Chief Medical Officer vide order dated 7.11.1996. The Board vide circular dated 5.1.2006 adopted the provisions of the M.P. Public Services (Promotion) Rules, 2002 (hereinafter referred to as 'the 2002 Rules'). Rule 7 (5) of the said Rules provides that meeting of the departmental promotion committee shall be held every year and it shall consider the suitability of the public servant for promotion separately with reference to the vacancies of each previous year starting with the earliest year onwards and shall prepare a select list for the relevant year accordingly. However, in contravention of the provisions of the 2002 Rules the meeting of the departmental promotion committee was held and Respondents 4 to 6 who are junior to the Petitioner were promoted to the post of Assistant Chief Medical Officer. 4. In the circumstances aforesaid, the Petitioner filed the writ petition inter alia, seeking relief of quashing the order of promotion of Respondents 4 to 6 dated 8.1.2008 and to command the Respondents to promote the Petitioner to the post of Assistant Chief Medical Officer with all consequential benefits. 4. In the circumstances aforesaid, the Petitioner filed the writ petition inter alia, seeking relief of quashing the order of promotion of Respondents 4 to 6 dated 8.1.2008 and to command the Respondents to promote the Petitioner to the post of Assistant Chief Medical Officer with all consequential benefits. The Petitioner also sought the relief of quashing of the order dated 25.5.2007 by which the Petitioner was communicated the adverse remarks and quashing of orders dated 5.1.2008 and 11.2.2008 by which his representation and the appeal against the adverse AC Rs respectively, were rejected. 5. A return was filed on behalf of Respondents 1 and 2 in which inter alia, it was stated that in the medical wing of the Board initially the hierarchy of the posts was as follows: (i) Medical Officer, (ii) Senior Medical Officer, (iii) Chief Medical Officer. On account of stagnation in the services of the Board, a time bound promotion scheme was introduced by medical wing of the Board. By order dated 28.1.1995 post of Chief Medical Officer was upgraded and made equivalent to that of Additional Chief Engineer. On account of upgradation of the post of Chief Medical Officer there was no post in medical wing of the Board equivalent to that of Superintendent Engineer and, therefore in order to meet the existing situation, the Board redesignated four posts of Senior Medical Officers as Assistant Chief Medical Officer in the Time Scale of pay of Rs. 8,300/- which was the pay-scale of Superintendent Engineer. The Board adopted the 2002 Rules by circular dated 5.1.2006. Only two posts of Assistant Chief Medical Officer were vacant for unreserved category. Rule 7(3) of the 2002 Rules provides that number of vacancies for promotion during the course of the year i.e. 1st January to 31st December are required to be worked out after taking into account the existing and anticipated vacancies on account of retirement and promotion to the higher posts or higher pay-scale of post. One post of unreserved category was likely to fall vacant in the year 2008. Thus for filling up three posts of Assistant Chief Medical Officers a panel was prepared. The departmental promotion committee considered the AC Rs for the period of five years commencing from the year ending March, 2003 to 2007 of all the eligible candidates including the Petitioner. One post of unreserved category was likely to fall vacant in the year 2008. Thus for filling up three posts of Assistant Chief Medical Officers a panel was prepared. The departmental promotion committee considered the AC Rs for the period of five years commencing from the year ending March, 2003 to 2007 of all the eligible candidates including the Petitioner. However, the Petitioner was not found fit for empanelment to the post of Assistant Chief Medical Officer as he could not secure the minimum benchmark grade. Thereafter in the year 2009 a meeting of the departmental promotion committee was held in which the case of the Petitioner was considered and as he was found suitable to be promoted to the post of Assistant Chief Medical Officer, accordingly, vide order dated 2.3.2009 he was promoted to the said post. The claim of the Petitioner that he is entitled to promotion since 1998 was denied. 6. Learned single Judge vide order dated 28.1.2010 held that in view of Rule 7 (5) of the 2002 Rules, the departmental promotion committee is required to consider suitability of public servants for promotion separately with reference to vacancies of each previous year starting with the earlier year onwards and has to prepare a select list for the relevant year. From perusal of the meeting of the departmental promotion committee held on 5.1.2008 learned single Judge found that the consolidated vacancy of all the years as on 5.1.2008 was determined and after taking note of AC Rs of five years prior to March, 2008 the exercise for ascertaining the suitability of candiates for promotion was conducted which is not in accordance with Rule 7 (5) of the 2002 Rules. It was further held by learned single Judge that since the Petitioner and Respondents 4 to 6 have already been promoted during pendency of the petition therefore, learned single Judge did not deem it appropriate to quash the promotion and without disturbing the promotions already made learned single Judge directed Respondents 1 and 2 to convene review DPC and to take steps for filling up the vacancies year-wise, strictly in accordance to the requirement of Sub-rules (5) and (6) of Rule 7 and thereafter make the promotions already granted to the Petitioner and the Respondents in accordance to the particular year in which they are found eligible for promotion after such reconsideration. It was further held that it is not necessary to go into the question of adverse confidential reports communicated to the Petitioner. However, it was observed that after the exercise for ascertaining the suitability of candidates for promotion is completed, in case the Petitioner has any further grievance in the matter, he may agitate the same afresh. Accordingly, the writ petition was disposed of. 7. Being aggrieved by the aforesaid order, the Petitioner has filed the writ appeal, namely, WA No. 93/2010 in which the grievance has been made that claim of the Petitioner should have been allowed in entirety by the learned single Judge. WA No. 137/2010 has been filed by Board inter alia, on the ground that Rule 7 (5) cannot be given retrospective operation. Rule 7 (5) does not mandate that promotion is to be given to a candidate who is found suitable for promotion to higher post from the year in which the vacancy has arisen. It has further been averred that the order of learned single Judge in so far as it directs the promotion in accordance to the particular year in which candidates are found eligible, is liable to be set aside. 8. Shri Sanjay Agrawal, learned Counsel for the Board submitted that M.P. Public Services (Promotion) Rules, 2002 were adopted by the Board vide circular dated 5.1.2006. Rule 7 (5) of the 2002 Rules do not have retrospective application therefore, learned single Judge erred in issuing a direction to Respondents 1 and 2 to take steps for filling up the vacancies year-wise strictly in accordance to the requirement of Sub-rules (5) and (6) of Rule 7 and thereafter make the promotions already granted to the Petitioner and the Respondents in accordance to the particular year in which they are found eligible for promotion after such reconsideration. It was further submitted by learned Counsel for the Board that in the year 2008 the meeting of the departmental promotion committee was held in which the case of the Petitioner was considered however, he was not found fit. Subsequently, the case of the Petitioner was again considered for promotion and since he was found fit for promotion he has already been promoted. The claim of the Petitioner for promotion to the post of Assistnat Chief Medical Officer since 1998 suffers from delay and laches. Subsequently, the case of the Petitioner was again considered for promotion and since he was found fit for promotion he has already been promoted. The claim of the Petitioner for promotion to the post of Assistnat Chief Medical Officer since 1998 suffers from delay and laches. In support of his submissions, learned Counsel for the Board has placed reliance on the decisions of the Supreme Court in Nani Sha and Ors. v. State of Arunachal Pradesh and Ors., (2007) 15 SCC 406 , State of Uttaranchal and Anr. v. Dinesh Kumar Sharma, (2007) 1 SCC 683 , Jagdish Ch. Patnaik and Ors. v. State of Orissa and Ors., (1998) 4 SCC 456 , State of Madhya Pradesh v. Srikant Chapehkar, (1992) 4 SCC 689 , N. Nagaraja v. Vasant K. Gudodagi and Ors., (1990) 3 SCC 42 and Y.V. Rangaiah v. J. Sreenivasa Rao, (1983) 3 SCC 284 . 9. On the other hand, Shri Rajneesh Gupta, learned Counsel for the Petitioner while opposing the submissions made on behalf of the Board, submitted that Rule 7 (5) applies to preparation of select list i.e. a stage prior to issue of order of promotion. He has drawn attention of this Court to a chart and stated that vacancies were available in the year 1998 however, they were not filed up by the Board. It is contended by learned Counsel for the Petitioner that for inaction on the part of the Board in not filling up the vacancies timely, the Petitioner cannot be permitted to suffer. Learned Counsel for the Petitioner submitted that learned single Judge erred in not deciding the issue with regard to adverse ACR of the year 2007, as the ACR of the year 2007 has affected the case of the Petitioner. It is further submitted by learned Counsel for the Petitioner that the case of the Petitioner ought to have been allowed in entirety. 10. We have considered the submissions made by learned Counsel for the parties. Admittedly, the provisions of the Madhya Pradesh Public Services (Promotion) Rules, 2002 which were framed by the State Government in exercise of power conferred by the proviso to Article 309 read with Article 16 and 335 of the Constitution of India, were adopted by the Board vide circular dated 5.1.2006. Admittedly, the provisions of the Madhya Pradesh Public Services (Promotion) Rules, 2002 which were framed by the State Government in exercise of power conferred by the proviso to Article 309 read with Article 16 and 335 of the Constitution of India, were adopted by the Board vide circular dated 5.1.2006. Rule 2 (n) defines 'select list' to mean a list of such public servants who are adjudged suitable to the next pay scale or the higher grade of the post as provided in the respective Recruitment Rules. Sub-rule (5) of Rule 7 of the 2002 Rules reads as under: 7. Promotion on the basis of merit-cum-seniority: - (5) The meeting of the Departmental Promotion/Screening Committee shall be held every year. It shall consider the suitability of the public servant for promotion separately with reference to the vacancies of each previous year starting with the earliest year onwards. The Departmental Promotion Committee/Screening Committee shall consider, the suitability of the public servants for promotion to fill up the unfilled vacancies of the earlier year or years separately and prepare the select list for the relevant year accordingly. Thereafter the Departmental Promotion Committee/Screening Committee shall consider the suitability of the public servants for promotion to fill up the existing and anticipated vacancies of the current year. 11. In V.Y. Rangaiah and Ors. v. J. Sreenivasa Rao and Ors., AIR 1983 SC 852 the Supreme Court while dealing with the provisions of the Andhra Pradesh Registration and Subordinate Service Rules in paragraph 9 of the judgment held as follows: The vacancies which occurred prior to the amended rules would be governed by the old rules and not by the amended rules. 12. The Apex Court again reiterated the similar view in State of Rajasthan v. R. Dayal and Ors., (1997) 10 SCC 419 and by placing reliance on the decision in Y.V. Rangaiah (supra) has held that the posts which fell vacant prior to the amendment of the rules would be governed by the original rules and not by the amended rules. As a necessary corollary, the vacancies that arose subsequent to the amendment of the rules are required to be filled up in accordance with the law existing as on the date when the vacancies arose. Even a carried-forward vacancy is required to be considered in accordance with the law existing unless suitable relaxation is made by the Government. 13. As a necessary corollary, the vacancies that arose subsequent to the amendment of the rules are required to be filled up in accordance with the law existing as on the date when the vacancies arose. Even a carried-forward vacancy is required to be considered in accordance with the law existing unless suitable relaxation is made by the Government. 13. In A. Manoharan and Ors. v. Union of India and Ors., (2008) 3 SCC 641 the Apex Court held as under: 25. Furthermore, the Regulations have been amended only with effect from 11.8.2004. It would have a prospective effect. It cannot be applied retrospectively. Any vacancy which has arisen prior to coming into force of the said amended Regulations must be filled up in terms of the law as was existing prior thereto. 14. Thus, in view of the exposition of law made by the Apex Court the vacancy has to be filled up in accordance with the law which exists at the time when the vacancy has occurred. 15. It is cardinal principle of construction that every statute is prima facie prospective unless it is expressly or by necessary implication made to have retrospective operation. [See: Zile Singh v. State of Haryana, AIR 2004 SC 5100 and C. Gupta v. Smithkline Pharmaceuticals Ltd., (2007) 7 SCC 171 ] Thus, in the backdrop of aforesaid well settled legal position, we have no hesitation in holding that the 2002 Rules do not have any retrospective operation and shall apply to the employees of the Board from 5.1.2006, i.e. the date when the same were adopted. Rule 7 (5) of the 2002 Rules provides that the meeting of the Departmental Promotion shall be held every year and it shall consider the suitability of the public servant for promotion separately with reference to the vacancies of each previous year starting with the earliest year onwards and shall prepare a select list for the relevant year accordingly. Rule 7 (5) does not apply to vacancies which have arisen before 5.1.2006 i.e. prior to it's adoption. It applies only to those vacancies which have arisen after 5.1.2006. That apart Rule 7 (5) in no way, provides that promotion is required to be given with effect from the date of occurrence of the vacancies. Rule 7 (5) does not apply to vacancies which have arisen before 5.1.2006 i.e. prior to it's adoption. It applies only to those vacancies which have arisen after 5.1.2006. That apart Rule 7 (5) in no way, provides that promotion is required to be given with effect from the date of occurrence of the vacancies. The said rule only provides the Departmental Promotion Committee shall prepare a select list to consider the suitability of the public servants for promotion to fill up the existing and anticipating vacancies of the current year. Therefore, in the absence of any stipulation in Rule 7 (5) of the 2002 Rules that promotion has to be given with reference to the year in which the vacancy has arisen, an employee has no right to claim promotion from the date when the vacancy has arisen in the cadre. Our conclusion is also fortified by well settled legal proposition that mere inclusion in the select list does not confer any indefeasible right on the employee to claim promotion. 16. The 2002 Rules were adopted by the Board in the year 2006 and the meeting of the Departmental Promotion Committee was held in the year 2008, but the Petitioner was not found fit. Subsequently, in the year 2009, the Petitioner was found fit and promotion has already been granted to him. Since, the Petitioner has already been promoted in the year 2009 and it has already been held that an employee has no right to claim promotion from the date when the vacancy has arisen in the cadre therefore, the claim of the Petitioner for promotion since 1998 cannot be entertained. Even otherwise, the claim of the Petitioner for promotion to the post of Assistant Chief Medical Officer suffers from delay and laches as the writ petition was filed before learned single Judge in the year 2008 after a period of ten years. Therefore, the relief of promotion with effect from 1998 cannot be granted as it suffers from delay and laches. Our view is supported by the judgments of the Apex Court rendered in P.S. Sadasivaswamy v. State of Tamil Nadu, AIR 1974 SC 2271 and State of Madhya Pradesh v. Srikant Chaphekar, (1992) 4 SCC 689 . 17. Therefore, the relief of promotion with effect from 1998 cannot be granted as it suffers from delay and laches. Our view is supported by the judgments of the Apex Court rendered in P.S. Sadasivaswamy v. State of Tamil Nadu, AIR 1974 SC 2271 and State of Madhya Pradesh v. Srikant Chaphekar, (1992) 4 SCC 689 . 17. In view of the discussions made above, the direction given by learned single Judge to the Board to convene a review DPC and take steps for filling up the vacancies year-wise strictly in accordance with the provisions contained in sub-rules (5) and (6) of Rule 7, cannot be approved. As noticed above, promotion against the vacancies is to be given as per existing Rules at the time of occurrence of the vacancies. Therefore, the W.A. No. 137/2010 preferred by the Board deserves to be allowed. However, the Board shall convene a review DPC to consider the suitability of the eligible candidates falling within the zone of consideration including Petitioner as well as Respondents 4 to 6 for filling up the vacancies which have arisen after 5.1.2006 separately and prepare a fresh select list year-wise strictly in accordance with the provisions of sub-rules (5) and (6) of Rule 7 of the Rules and thereafter make promotion already granted to the Petitioner as well as Respondents 4 to 6 in accordance with the particular year in which they are found eligible to promotion after such consideration. However, in respect of the vacancies which occurred prior to 5.1.2006 the D.P.C. shall consider the suitability of the candidates to fill up the vacancies in accordance with the Rules which were in vogue prior to 5.1.2006. 18. In the result, the W.A. No. 93/2010 preferred by the Petitioner fails and is hereby dismissed. However, W.A. No. 137/2010 is partly allowed and accordingly disposed of with the aforesaid direction. There shall be no order as to costs.