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Madhya Pradesh High Court · body

2011 DIGILAW 294 (MP)

Haribai Raikwar v. State of M. P.

2011-03-03

RAJENDRA MENON

body2011
ORDER 1. Claiming seniority and promotion over respondent Nos. 4 and 5, particularly respondent No.4, in the cadre of Grade III Employee, petitioner has tiled this writ petition. 2. It is the case of the petitioner that she was appointed as a daily wage employee on 1.3.1987, her services were regularized on 1.3.1990 and even though she is shown to be senior to respondents 4 and 5, respondent 4 and 5 have been promoted in Grade III post whereas petitioner has not been promoted. 3. Records indicate that on the basis of vacancies available a selection process was undertaken and after allocation of marks, appointments were made to the post of employees initially on daily wage basis, as is evident from the select list prepared by the respondents vide selection procedure -- Annexure R/3. In the selection procedure petitioner received 36 marks out of 50 and was kept at Serial No.4 in the merit list, whereas respondent No.4 Shri Ashok Kumar Koshti having received 40 marks out of 50 was kept at Serial No.1. Even though the selection was made in proceedings held on 9.3.1987 on the basis of the aforesaid merit prepared, but regular appointment to the post were ordered on 1.3.1990 vide Annexure P/1. According to the petitioner after the regular appointments were ordered on 1.3.1990, various seniority lists were prepared using the criteria of granting seniority to the persons, who had worked as daily wage employee between 9.3.1987 up to 1.3.1990 and the person with the maximum number of days on which work was performed was granted seniority. Accordingly, various seniority list were prepared vide Annexures P/2, P/3, and P/4, in which the petitioner is shown to be senior in some places and respondent No.4 in some place. Be it as it may be, contending that considering the total length of service calculated on the number of days work performed between 9.3.2007 to 1.3.1990, petitioner is senior to respondent No.4 and, therefore, petitioner's claim for promotion could not have been ignored, petitioner has filed this writ petition. 4. Be it as it may be, contending that considering the total length of service calculated on the number of days work performed between 9.3.2007 to 1.3.1990, petitioner is senior to respondent No.4 and, therefore, petitioner's claim for promotion could not have been ignored, petitioner has filed this writ petition. 4. Shri Uttam Maheshwari, learned counsel for the petitioner, invites my attention to the circulars issued by the Government in the matter of calculating the seniority of employees, who are employed on daily wages and subsequently regularized in the regular establishment and submits that the seniority has to be determined by taking note of the number of days work performed by an incumbent as a daily wage employee and if the said principle is followed, petitioner would be senior to respondent No.4, ignoring this petitioner is not promoted whereas respondent No.4 has been promoted. 5. Respondents have filed reply and it is stated by them that the procedure for determining seniority as canvassed by the petitioner is applicable only when the person appointed as a daily wage employee and subsequently regularized without undergoing any selection on merit. It is the case of the respondents that in the present case, the initial appointment of the petitioner and respondent No. 4 so also Smt. Savitri Vyaas and others was undertaken on merit in the selection process, which was held on 9.3.1987 and as respondent No.4 Shri Ashok Kumar Koshti was at serial No. 1 in the select list, as per merit, his representation has been considered and he has been granted seniority on his own merit keeping in view the application filed by him before the State Administrative Tribunal and the direction issued in his case, in W.P.No. 20884/2003, by a Bench of this Court. 6. 6. Shri Rajesh Tiwari, learned Government Advocate, invites my attention to the selection process undertaken on 9.3.1987, the marks obtained by the petitioner and Shri Ashok Kumar Koshti and argues that by virtue of Rule 12 (1) (a), of the Civil Services (General Conditions of Services) Rules, 1961, seniority has to be determined on the basis of merit obtained in the selection process and as respondent No.4 is more meritorious than the petitioner in the selection process, he has been granted seniority over and above the petitioner and in the OPC held, on 22.9.2006, he has been recommended for promotion on the basis of his seniority and accordingly promoted as Assistant Grade III on the then available vacant post. Accordingly, Shri Rajesh Tiwari submits that the respondents have not committed any illegality and the petition is liable to be dismissed. 7. I have heard learned counsel for the parties and perused the records. 8. From the records it is clear that the initial appointment of the petitioner and respondent No.4 was undertaken by a selection process which was held on 9.3.1987. In the selection process, interviews and other selection methods were followed and on the basis of the process initiated petitioner received 36 marks out of 50 and respondent No.4 received 40 marks out of 50. Accordingly, respondent No.4 Shri Ashok Kumar Koshti was kept at Serial No. 1 of the select list and petitioner was placed at Serial No.4. When the seniority list was initially prepared on 1.4.99 vide Annexure P/2, Shri Ashok Kumar Koshti was placed at Serial No.7 and petitioner at Serial No.9 on the basis of their merit in the select list. However, subsequently when this seniority was disturbed and the seniority was calculated by giving weightage to the number of days work was performed by an employee between 9.3.1987 to 1.3.90, it seems that respondent No.4 Shri Ashok Kumar Koshti challenged the same by filing an application before the State Administrative Tribunal, Jabalpur and on winding up of the Tribunal matter was transferred to this Court and was registered as W.P.No. 20884/2003, and a Bench of this Court disposed of the Writ petition on 29.6.04 vide Annexure R/1. In pursuance to the directions issued by this Court matter was again examined, and the respondents found that seniority in this case has to be determined in accordance to Rule 12 (1) (a) of the Civil Services (General Conditions of Services) Rules, 1961, which contemplates grant of seniority to the most meritorious person as per the merit list prepared at the time of selection Accordingly, taking note of the fact that in this case, the initial appointment on 9.3.1987 was made on the basis of selection undertaken on merit, seniority list has been prepared and respondent No.4 is placed above the petitioner considering his merit in the original select list prepared on 9.3.1987. In doing so, respondents have not committed any error which warrants interference. The aforesaid action of the respondents is strictly in accordance to the requirement of Rule 12 (1) (a), of the Civil Service (General Conditions of Services) Rules, 1961, and the petitioner's contention that the seniority has to be determined by taking note of the number of days work performed as a daily wage employee cannot be accepted for the simple reason that the seniority has to be determined on the basis of merit in the select list as the selection has been done on the basis of selection process. after determination of merit. That apart, the OPC having recommended the case of respondent No.4 for promotion, considering his seniority so determined, no case is made out for interference into the matter on the grounds raised by the petitioner. 9. Accordingly, finding no case for interference on the grounds raised, the petition is dismissed. No order as to costs. 10. Original Records of the OPC be returned back to Shri Rajesh Tiwari.