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Madhya Pradesh High Court · body

2011 DIGILAW 198 (MP)

Jandel Singh v. State of M. P.

2011-02-11

A.K.SHRIVASTAVA

body2011
ORDER 1. By this petition under Article 226 of the Constitution of India, the petitioner has challenged the validity of the impugned order (Annexure P/1), by which the claim of the petitioner for promotion from the post of Class-IV to Assistant Grade-III has been denied on account of non-availability of the vacant post of Class-III. 2. Sans unnecessary details facts lie in narrow compass. Suffice it to say that the petitioner is serving as Class-IV employee in Family Welfare and Health Department of the State of Madhya Pradesh. In the department, there are three posts of Assistant Grade-III, which are to be filled on promotion basis promoting Class-IV employees to Assistant Grade-III. The roster system is also applicable in the department and accordingly one post of Assistant Grade-III is kept vacant for suitable candidate of Scheduled Caste and Scheduled Tribe for their promotion on this post. 3. Admittedly, the petitioner is a general candidate. 4. The contention of the learned counsel for the Petitioner is that in the earlier round of litigation (Writ Petition No. 1909/2008 [S] (Jandel Singh v. State of M.P. and others), a return was filed on behalf of the respondents and in paragraph 3 thereof, it was stated that the case of the petitioner would be considered in the next DPC and, therefore, that petition was disposed of by giving direction to the respondent to consider the case of the petitioner for promotion. 5. The contention of the learned counsel for the petitioner is that without holding any meeting of the DPC, straightway the order Annexure P/1 dated 4.7.2009 has been passed by the Principal. Health & Family Welfare Training Centre to the effect that no post is vacant to promote Class-IV employee to Assistant Grade-III and, therefore, the case of the petitioner was not recommended. Learned counsel for the petitioner submits that the stand of the respondents runs dehors to the contentions, which were put forth by them in the return which was filed in the earlier round of litigation and also in the light of Annexure P/9 dated 11.10.2007, wherein it has been mentioned that one post of LDC is lying vacant and it was asked to inform that which of the employee is competent to be promoted on the post of Class-III. Learned counsel submits that now turning their stand, the respondents have come forward that no post of general category is vacant and therefore the case of the petitioner is not being sent for consideration to promote him on the post of Assistant Grade-III. 6. It has been further contended by Shri Sharma learned counsel for the petitioner by placing heavy reliance on Annexure P/2 dated 7.7.1990 that Bhagwan Das Sahu was promoted from the post of Class-IV to Assistant Grade-III and thereafter again he was promoted to the post of Assistant Grade-II and, therefore the post of Bhagwan Das Sahu has fallen vacant and hence the stand taken by the respondents that no post is lying vacant is ex facie incorrect. 7. On the other hand, Shri Praveen Newaskar learned Dy. Government Advocate in support of the impugned order Annexure P/1 dated 4.7.2009 has argued that in the earlier round of litigation, only this much was stated that the case of the petitioner would be considered in the DPC, but nowhere it was so stated that any post of Assistant Grade-III of General category is lying vacant, on which the name of the petitioner would be considered for promotion by the DPC. 8. On the pleadings made in paragraph 1 of the return as well as by putting emphasis on Annexure R/1 dated 2.2.1985, which is the office order in respect to Bhagwan Das Sahu, it has been contended by the learned Dy. Government Advocate that so far as the contention of the petitioner with regard to Bhagwan Das Sahu is concerned, he (Bhagwan Das Sahu) was appointed as Class-IV employee in the year 1985. Thereafter, having faced the selection process, he was selected and appointed on the post of Clerk-cum- Typist by order dated 23.11.1989 and not by promotion. Hence, it has been put forth by the learned Dy. Government Advocate that the petitioner is misinterpreting that the post of Bhagwan Das Sahu is lying vacant, since he has been promoted as Assistant Grade-II. 9. Considering the rival contentions as put forth by the learned counsel for the parties and after having heard them at length, I am of the view that this petition deserves to be dismissed. 10. Government Advocate that the petitioner is misinterpreting that the post of Bhagwan Das Sahu is lying vacant, since he has been promoted as Assistant Grade-II. 9. Considering the rival contentions as put forth by the learned counsel for the parties and after having heard them at length, I am of the view that this petition deserves to be dismissed. 10. The main contention of the learned counsel for the petitioner is that in the earlier round of litigation (Writ Petition No. 1909/2008 [S]) (Jandel Singh v. State of M.P. & Others), it was admitted by the respondents that one post of Class-III is lying vacant and in this regard my attention has been drawn to paragraph 3 of the return by both the learned counsel for the parties. On bare perusal of the return of that petition, I find that nowhere the respondents have ever stated or admitted in their return that one of general category of Class-III is lying vacant. It would be apt to quote the entire paragraph 3 of the return filed in (Writ Petition No. 1909/2008 [S], which reads thus: "(3) That, in this regard, it is very humbly submitted that the case of the petitioner is under consideration in pursuant to the circular issued by the State Government as referred by the petitioner in this petition and further case of the petitioner is under consideration before the Departmental Promotion Committee and the proceedings are going on. The petitioner should wait for the decision of the DPC and therefore directly petitioner has filed the petition without waiting the decision of the DPC therefore present petition is premature and devoid of substance and therefore the same deserves to be dismissed at this stage." The purpose of quoting paragraph 3 of return filed in earlier petition is that there is no admission as such of the respondents that one post of general category is lying vacant, on the contrary, I find that in the entire paragraph 3 of the return only this much has been pleaded that in pursuant to the circular issued by the State Government, the case of the petitioner is under consideration before the DPC and the proceedings are going on and therefore the petition is prmature. Hence, I am of the view that the contention of the learned counsel for the petitioner that there was an admission of the respondents that one post of general category is lying vacant, is not correct. 11. So far as the application of letter Annexure P/9 dated 11.10.2007 of principal, Health and Family Welfare (respondent No.4) in the present case is concerned, it is gathered that only this much has been mentioned in this document that one post of LDC in the office is lying vacant, which is to be filled according to the roster system by promoting Class- IV employee to the post of LDC and it was requested by respondent No.4 to the Chief Medical and Health Officer, Gwalior (respondent No.3) to examine the record of the concerning employees and to prol110te a suitable candidate. In this letter too, nowhere it is mentioned that one post of general category is lying vacant. Therefore, according to me, the contention of the learned counsel for the petitioner that one post of general category is still lying vacant, does not appear to be correct. 12. So far as the contention of the learned counsel for the petitioner that the post of Class-III employee of general category in the department is lying vacant because Bhagwan Das Sahu has been further promoted to the post of Assistant Grade-II and in that regard sufficient light has been thrown in Annexure P/2 dated 7.7.1990 is concerned, I am of the view that even if casually it has been written in this document Annexure P/2 that Bhagwan Das Sahu has been promoted from Class-III Post, it would not mean that indeed he was promoted on this post because this order was passed in respect of passing of typing examination only and therefore this letter Annexure P/2 is also not helpful to the petitioner. 13. On going through the averments made in the reutrn as well as on going through Annexure R/1 dated 2.2.1985, it is gathered that indeed Bhagwan Das Sahu was not promoted, but was directly appointed on the post of Assistant Grade-III although he was serving as Class-IV employee. 13. On going through the averments made in the reutrn as well as on going through Annexure R/1 dated 2.2.1985, it is gathered that indeed Bhagwan Das Sahu was not promoted, but was directly appointed on the post of Assistant Grade-III although he was serving as Class-IV employee. Therefore, I am of the view that the contention of the learned counsel for the petitioner that Bhagwan Das Sahu was promoted and not directly recruited and on account of his promotion to the post of Assistant Grade-II, the post of Assistant Grade-III has fallen vacant, cannot be accepted. 14. Admittedly, one post of Assistant Grade-III is lying vacant in the department, but it is reserved for the member of Scheduled Caste and Scheduled Tribe Community, Admittedly, the petitioner is not a member of that community and, therefore the petitioner is not having any claim to consider him for promotion on the said post since he belongs to general category. However, it is made clear that as and when the post of general category would lie vacant, the case of the petitioner may be considered. 15. With the aforesaid observation, this petition is dismissed.