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2011 DIGILAW 798 (MP)

State of M. P. v. Jagdish Prasad Yadav

2011-07-21

B.K.DUBE, S.N.AGGARWAL

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JUDGMENT (Oral) Aggarwal, J. -- 1. This appeal has a chequered history. Respondent No.1 is the only contesting respondent in this appeal. He alongwith respondent No.2 was appointed in the services of State of Madhya Pradesh as Lower Division Clerk on 18.6.1987. The ranking of respondent No.1 in the merit list of LDCs was higher to respondent No.2. Respondent No.1 was at serial number 5 and respondent No.2 was at serial number 10 in the select list of LDCs, pursuant to which, they were appointed vide order dated 18.6.1987. In due course of time, both respondent No.1 and respondent No.2 were promoted as Assistant Grade II (UDC) vide order dated 18.3.1992. Thereafter, respondent No.1 was promoted as Assistant Inspector (Handloom) on ad hoc basis vide order dated 6.4.1995 and shortly thereafter, respondent No.2 was promoted as Accountant on 15.11.1996. The pay-scale of the post of Assistant Inspector (Handloom) was lower than the pay-scale attached to the post of Assistant Grade II (UDC). Respondent No.1 was not willing to work on the post of Assistant Inspector (Handloom) to which he was promoted on ad hoc basis and, therefore, he wrote to the appellants for his reversion to the post of Assistant Grade II (UDC) and consequently on his said request, he was reverted by the appellant to the post of Assistant Grade II (UDC) vide order dated 14.7.1998. While reverting him to the post of Assistant Grade II (UDC), it was mentioned that the period of service rendered by him as Assistant Inspector (Handloom) shall not be counted for reckoning his seniority in the cadre of Assistant Grade II (UDC). 2. After respondent No.1 was reverted to the post of Assistant Grade II (UDC) vide order dated 14.7.1998, he was promoted to a higher post of Accountant with effect from 30.3.2000. Though respondent No.1 was admittedly senior in the cadre of Assistant Grade II (UDC), his promotion as Accountant came in place later in point of time in 2000 whereas respondent No.2 who was junior got promotion to the said post in the year 1996. This all happened because of promotion of respondent No.1 to the post of Assistant Inspector (Handloom) on ad hoc basis on 6.4.1995 from which post he was reverted back to the post of Assistant Grade II (UDC) vide order dated 14.7.1998. This all happened because of promotion of respondent No.1 to the post of Assistant Inspector (Handloom) on ad hoc basis on 6.4.1995 from which post he was reverted back to the post of Assistant Grade II (UDC) vide order dated 14.7.1998. Since the promotion of respondent No.1 as Accountant came in place later than the promotion of respondent No.2, the seniority of respondent No.1 in the cadre of Accountants was shown at serial number 32 whereas the seniority of respondent No.2 who stood promoted as Accountant in the year 1996 was shown at serial number 25. 3. After respondent No.1 was promoted as Accountant on 30.3.2000, he was allocated to the State of Chhattisgarh on creation of a new State of Chhattisgarh with effect from 1st November, 2000. Respondent No.1 was aggrieved by his allocation to the State of Chhattisgarh and also by his 'late promotion to the post of Accountant, therefore, he filed two separate applications before the Madhya Pradesh State Administrative Tribunal (for brevity, "SAT") which were registered as O.A. No.1218/02 and O.A. No.289/02 respectively. 4. The Division Bench of SAT vide its order dated 5.10.2002 in O.A. No.1218/02 dismissed the challenge of respondent No.1 made by him against his allocation to the State of Chhattisgarh. However, while dismissing O.A. No.1218/02, the SAT took note of the pendency of the other application of respondent No.1 being O.A. No.289/02 relating to his promotion to the post of Accountant and observed that in case respondent No.1 succeeds in O.A. No.289/02, then the question of his allocation of State of Chhattisgarh will be re-opened. Aggrieved by the said order of the SAT dated 5.10.2001, respondent No.1 preferred a writ petition being Writ Petition No.2281/02 in which Division Bench of this Court vide its interim order dated 23.10.2002 stayed the allocation of respondent No.1 to the State of Chhattisgarh. However, subsequently, said writ petition of respondent No.1, being Writ Petition No.2281/02 was finally dismissed by the Division Bench of this Court by a short two lines order dated 25.4.2008 which reads as under : "Merely by the fact that the petitioner is claiming promotion, his allocation could not have been stayed. Order Annexure P-l passed by the State Administrative Tribunal is proper and no case for interference in the said order is made out. Writ petition is, therefore, dismissed." 5. Order Annexure P-l passed by the State Administrative Tribunal is proper and no case for interference in the said order is made out. Writ petition is, therefore, dismissed." 5. Consequent upon dismissal of the above mentioned writ petition of respondent No.1, he was relieved by the State of Madhya Pradesh in 2009 and he has now joined the service in the State of Chhattisgarh. As on date, respondent No.1 is employed in the State of Chhattisgarh, we would like to note, at this stage, that deployment of respondent No.1 at Chhattisgarh is subject to final outcome of the case relating to his promotion (O.A.289/ 02) as it was clearly mentioned in the order of the SAT dated 5.10.2002 that in case respondent No.1 succeeds in O.A. No.289/02, then the question of his allocation to the State of Chhattisgarh shall be re-opened. 6. O.A. No.289/02 filed by respondent No.1 relating to his promotion, upon abolition of SAT in the year 2003, was transferred to this Court and was registered as Writ Petition No.6687/03 and the same was dismissed by this Court vide its order dated 21.7.2009. The order of dismissal dated 21.7.2009 was reviewed by this Court vide its order dated 31.3.2010 in Review Petition No.273/09 and finally the challenge made by respondent No.1 to his late promotion after the promotion of his junior namely respondent No.2 herein, was accepted by this Court vide its judgment dated 21.10.2010 in Writ Petition No.6687/03. The appellants were directed by the Writ Court to consider respondent No.1 for his promotion to the post of Accountant at par with respondent No.2 and if found fit for promotion then to reconsider his allocation to the State of Chhattisgarh. The directions given by the Writ Court in its order dated 21.10.2010 in Writ Petition No.6687/03 are to the following effect: "1. The order dated 14.7.1998, Annexure A-7 is hereby quashed to the extent that where it has been mentioned that the petitioner would not be entitled to count his service for the purpose of seniority in the ministerial cadre rendered by him as Assistant Inspector; 2. The respondents No.1 and 2 are directed to count the entire service of the petitioner rendered by him from the date of his promotion to the post of Upper Division Clerk (Assistant Inspector, Handloom) for the purpose of seniority; 3. The respondents No.1 and 2 are directed to count the entire service of the petitioner rendered by him from the date of his promotion to the post of Upper Division Clerk (Assistant Inspector, Handloom) for the purpose of seniority; 3. Respondents No.1 and 2 are further directed to consider the case of the petitioner for promotion to the post of Accountant at par with respondent No.3 and if he be found suitable for promotion, then he shall be given seniority and promotion prior to respondent No.3 to the post of Accountant accordingly. Because petitioner was not considered for promotion to the post of Accountant at par with respondent No.3 because at the relevant time he accepted his posting as Assistant Inspector, Handloom, hence he would not be entitled for salary if he be promoted as Accountant as par with respondent No.3, however, he shall be entitled for other benefits i.e. continuity in service and fixation of salary; 4. The petitioner has been allocated to State of Chhattisgarh counting his seniority to the post of Accountant from the date of his promotion to the post of Accountant w.e.f. 30.3.2000. However, if he be found eligible for promotion to the post of Accountant at par with respondent No.3 then the respondents No.1 and 2 shall also reconsider the case of the petitioner of allocation also; 5. Necessary orders be passed within a period of three months from the date of receipt of a certified copy of this order; 6. Looking to the facts of the case, there shall be no order as to costs." 7. The appellants being the State are aggrieved by the aforesaid directions given by the Writ Court and have challenged the same in the present appeal. 8. We have heard Shri Vivek Khedkar, learned Deputy Advocate General appearing on behalf of appellants-State and also respondent No.1 who appeared in person. We have also carefully gone through the entire record including the impugned judgment. In our considered opinion, the impugned judgment is based on sound reasoning and hardly calls for any intererence by us in the facts and circumstances delineated by us herein above. We have also carefully gone through the entire record including the impugned judgment. In our considered opinion, the impugned judgment is based on sound reasoning and hardly calls for any intererence by us in the facts and circumstances delineated by us herein above. Learned counsel appearing on behalf of the appellants-State could not give any convincing reason why respondent No.1 should not be considered for his promotion to the post of Accountant at par with respondent No.2, who admittedly was junior to respondent No.1 in the feeder cadre of Assistant Grade II (UDC). 9. Mr. Khedkar, learned Deputy Advocate General appearing on behalf of appellants-State contends that respondent No.1 was not entitled for counting of his service rendered by him as Assistant Inspector (Handloom) from 6.4.1995 to 14.7.1998 while reckoning his seniority in the feeder cadre of Assistant Grade II (UDC). This argument, in our opinion, is completely devoid of any merit because we are of the view that the appellant being the instrumentalities of the State cannot be allowed to forfeit the service of the respondent No.1 for the period from 6.4.1995 to 14.7.1998 as during the said period, he admittedly had rendered services in a higher rank than the post held by him in the feeder cadre. In case, the appellants are allowed not to count the service of respondent No.1 either in the feeder cadre or in any other cadre, then it will amount to forfeiting his service for a particular period without there being any fault on his part. It is not disputed by the learned Deputy Advocate General appearing on behalf of appellants-State that respondent No.1 was allocated to the State of Chhattisgarh on creation of a new State of Chhattisgarh with effect from 1st of November, 2000 as he on that date was lower in seniority than respondent No.2 in the cadre of Accountants. It may be noted that the respondent No.1 was shown junior to respondent No.2 in the cadre of 'Accountants' on the date of creation of a new State, i.e., State of Chhattisgarh with effect from 1st of November, 2000 because in 1996 when respondent No.2 was promoted as Accountant, respondent No.1 was not considered for his promotion to the said post, though he admittedly was senior to respondent No.2 on that day. The respondent No.1 was not considered for promotion to the post of Accountant in 1996 as he, at that time, was working as Assistant Inspector (Handloom) in ad hoc capacity. In the facts and circumstances of the case, we do not find any infirmity or illegality in the direction given by the Writ Court to the appellants in the impugned order for considering respondent No.1 for promotion to the post of Accountant at par with respondent No.2 and if found fit for such promotion to reconsider his allocation to the State of Chhattisgarh. 10. Mr. Vivek Khedkar, learned Deputy Advocate General appearing on behalf of the appellants-State further contends that the question of allocation of respondent No.1 to State of Chhattisgarh has to be considered by the Union of India and not by the State of Madhya Pradesh and, therefore, according to him, directions for re-opening the case of respondent No.1 for his allocation to the State of Chhattisgarh could not have been given in the absence of Union of India being before the Court. We do not find any merit in this contention as well for two reasons and they are (i) it is not shown before us whether the appellants have taken any objection or not before the Writ Court about non-impleadment of Union of India as party-respondent in the case and (ii) the question of reopening the case of respondent No.1 for his allocation to the State of Chhattisgarh is dependent upon his being found fit for promotion to the post of Accountant prior to the date of promotion of respondent No.2 to the said post. In case, respondent No.1 is found fit for his promotion to the post of Accountant prior to promotion of respondent No.2 on the said post, the appellants can write to the Union of India for re-considering allocation of respondent No.1 to the State of Chhattisgarh in terms of their policy applicable for allocation of employees of one State to another State. In case, any such request is made by the appellants to the Union of India, the Union of India is obliged to consider the same expeditiously as per rules and its policy applicable on the issue referred to it. 11. In case, any such request is made by the appellants to the Union of India, the Union of India is obliged to consider the same expeditiously as per rules and its policy applicable on the issue referred to it. 11. We are informed by the learned Deputy Advocate General, appearing on behalf of the appellants-State that the time of three months given by the Writ Court in the impugned order for considering the case of respondent No.1 for his promotion to the post of Accountant has already expired during the pendency of the present appeal. Learned counsel appearing on behalf of the appellants-State, therefore, requests for extension of time given by the Writ Court for consideration of respondent No.1 for his promotion. We accept this request made by the learned Deputy Advocate General and grant eight week's further time from today to the appellants to consider the case of respondent No.1 for his promotion to the post of Accountant at par with respondent No.2 and if found fit for said promotion, then to recommend his case to the Union of India for reconsidering his allocation to the State of Chhattisgarh. In case, any such recommendation for re-considering the allocation of respondent No.1 to the State of Chhattisgarh is made by the appellants, then the concerned Ministry in the Union of India is directed to decide the question of respondent No.1’s allocation to the State of Chhattisgarh afresh in view of the subsequent events, as expeditiously as possible but not later than eight weeks of receipt of request in this regard from the appellants. 12. In view of the foregoing and having regard to the facts and circumstances of the case, we do not find any merit in the present appeal which fails and is hereby dismissed subject to extension of time given herein above. Parties are left to bear their own costs.