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Madhya Pradesh High Court · body

2012 DIGILAW 180 (MP)

Ramveer Singh Tomar v. State of M. P.

2012-02-08

J.K.MAHESHWARI

body2012
ORDER 1. The petitioners have filed this petition under Article 226 of the Constitution of India, seeking the following reliefs : “i) It is, therefore, most humbly prayed that the impugned order Annexure P-1 and P-1A may kindly be quashed with all consequential benefits. ii) Cost of the petition be awarded. iii) Any other order/direction deemed fit in the circumstances of the case may kindly be passed in favour of the petitioners.” 2. The facts, in brief, are that M.P. Agriculture (Horticulture) Non-Gazetted (Non-Ministerial) Service Recruitment Rules, 1987 (hereinafter referred to as ‘the Recruitment Rules of 1987’) has come into existence w.e.f. 5.2.1988 i.e. the date of its publication in the gazette. The services of the petitioners as well as respondent No.3 who are holding the post of Senior Horticulture Development Officer (hereinafter referred to as the ‘SHDO’), governed by the said rules. The respondent No.3 was initially appointed on ad hoc basis as per order dated 5.2.1986 for a period of six months or till appointment by the Mini Public Service Commission (in short it be called as “Mini PSC”) whichever is prior. The ad hoc appointment of respondent No.3 was not after following due process of law, however, grievance of petitioners is that seniority so granted to respondent No.3 over and above to them as per order Annexure P-1 dated 15.1.2009 and Annexure P-1A dated 17.2.2009 by the respondents 1 and 2 is not in conformity to the provisions of the Recruitment Rules of 1987 and also as per the M.P. Civil Services (General Conditions of Service) Rules, 1961 (hereinafter called as ‘the Rules of 1961’). It is said that after commencement of the rules and after issuing an advertisement for the posts of SHDO, selection was made by the Mini PSC.The petitioners as well as respondent No.3, both have participated in the same process of selection for the said post. In the merit list published by Mini PSC, petitioners and respondent No.3 were found place. The description of the place of merit of petitioners and respondent No.3 as per the merit list of Mini PSC and also specified in the appointment order dated 28.10.1989 Annexure P-4 is as under : The merit position of the petitioners and respondent No.3 as per the order of appointment Annexure A-3 No. Name of persons Sr. No. 1. The description of the place of merit of petitioners and respondent No.3 as per the merit list of Mini PSC and also specified in the appointment order dated 28.10.1989 Annexure P-4 is as under : The merit position of the petitioners and respondent No.3 as per the order of appointment Annexure A-3 No. Name of persons Sr. No. 1. Shyam Singh Sikarwar was not found place because he -dead- was appointed through promotion from the post of AHDO 2. Ramveer Singh Tomar (petitioner No.2) 2 3. Pankaj Sharma (petitioner No.3) 5 4. Surendra SinghTomar (petitioner No.4) 41 5. Roop Singh Bhadouriya (petitioner No.5 1 6. Ram Naresh Singh Tomar (respondent No.3) 93 3. The State Government has published gradation list showing the position as on 1.4.2005 wherein also the name of petitioners and respondent No.3 has been specified as per merit of Mini PSC. Because the petitioners found on a better position in merit, however, they were placed over and above to respondent No.3 in the seniority list so prepared in conformity of rule 12 of the Rules of 1961. The details of the petitioners and respondent No.3 in the gradation list is reproduced here as under : Seniority list published in the year 2006 showing the position as on 1.4.2005 Annexure P-5 No. Name of persons Sr.No. 1. Shyam Singh Sikarwar (petitioner No.1) 74 (dead) 2. Ramveer Singh Tomar (petitioner No.2) 105 3. Pankaj Sharma (petitioner No.3) 108 4. Surendra Singh Tomar (petitioner No.4) 137 5. Roop Singh Bhadouriya (petitioner No.5) 104 6. Ram Naresh Singh Tomar (petitioner No.3) 174 Feeling aggrieved by grant of seniority as per the merit of Mini PSC by the State Government, various employees appointed on ad hoc basis have submitted their representations claiming seniority of ad hoc period. To decide those representations State Government has constituted a committee of six persons. The said Committee on 14.9.2000 vide Annexure P-6 has resolved that the seniority of such SHDO’s be granted in accordance with the Recruitment Rules of 1987 as per merit list of Mini PSC. However, the representations filed by the ad hoc employees claiming seniority over and above the regular employees were rejected. Again on submitting a representation by the respondent No.3 a noting was put up by the Director, thereon it was instructed by respondent No.1 to take a decision in accordance to the rules. However, the representations filed by the ad hoc employees claiming seniority over and above the regular employees were rejected. Again on submitting a representation by the respondent No.3 a noting was put up by the Director, thereon it was instructed by respondent No.1 to take a decision in accordance to the rules. Thereafter as per the order Annexure P-1A passed by respondent No.2, respondent No.3 was made senior in the gradation list granting seniority of the ad hoc period. 4. It is urged by Mr. Sharma, learned counsel for the petitioners that the seniority so granted to respondent No.3 who was below in merit in the Mini PSC is not in conformity to the Recruitment Rules, 1987 as well as to the Rules of 1961. To buttress the said contentions, reliance has been placed on the decisions of the Supreme Court in the case of Masood Akhtar Khan v. State of Madhya Pradesh [(1990)14 Administrative Tribunals Cases 833], Chairman, School of Buddhist Philosophy, Leh, Lakakh ( J & K) v. Makhan Lal Mattoo [(1990)14 Administrative Tribunals Cases 836], D.N. Agrawal v. State of Madhya Pradesh [(1990)12 Administrative Tribunals Cases 926], G.C. Pillai v. Union of India [(1990)14 Administrative Tribunals Cases 263], Beer Singh v. Union of India [(1990)14 Administrative Tribunals Cases 279], Direct Recruit Class II Engineering Officers’ Association v. State of Maharashtra [(1990)13 Administrative Tribunals Cases 348], Rameshwar Deuri v. Union of India [(1990)13 Administrative Tribunals Cases 379]. The reliance has also been placed on the decision of the Supreme Court in the case of P. Mahendran Malteesh Y. Annigeri v. State of Karnataka [ AIR 1990 SC 405 ], to advance the arguments that the amendment has been made in sub-rule (1)(4) of rule 12 of the Rules of 1961 on 2.4.1998, however, until and unless it is expressly made applicable from the retrospective date, it would be applicable prospectively. In view of forgoing, it is urged that grant of seniority to respondent No.3 counting his ad hoc service and to place him over and above tothe petitioners is not in conformity to the rules as well as the provisions of law, however, orders may be set aside and the gradation list may be corrected accordingly. 5. The respondents 1 and 2 by filing return has not disputed the appointment of respondent No.3 on ad hoc basis in the year 1986. 5. The respondents 1 and 2 by filing return has not disputed the appointment of respondent No.3 on ad hoc basis in the year 1986. It is also not disputed that the appointment of SHDO is required to be made by Mini PSC as per the Recruitment Rules of 1987. It is said that respondent No.3 has continued regularly though on ad hoc basis, however, considering the amendment so introduced in rule 12(A) and (B) of the Rules of 1961, seniority has been extended to him after his appointment on regular basis from the date of initial appointment counting the period of ad hoc service. It is said that respondent No.3 continuously represented for grant the seniority to a proper place vide reprsentations of the year 2000, 2001, 2002, 2003, 2004 and 2007 and on consideration and also by meticulous analysis of the record, the period of ad hoc service rendered by respondent No.3 from 1986 to 1989 has rightly been counted for the purpose of seniority to the post in the said cadre in view of the amendment made on 2.4.1998 in those Rules of 1961, Rules of 1998. Thus, other averments so made in the petition have been denied by respondents 1 and 2 and prayed for dismissal of petition. 6. The respondent No.3, by filing return, has not disputed the date of appointment of the petitioners by Mini PSC and stated that he was appointed on ad hoc basis in the year 1986 looking to the shortage of the officers after issuance of the advertisement and conducting a written examination and interview, therefore, the seniority has rightly been granted from the date of initial appointment. In support of the fact that any advertisement was issued for ad hoc appointments and a written examination or interview was conducted, no document i.e. call letter or admission card has been filed to show that his appointment was after following due process of law or by adopting fair procedure. It is said that seniority has rightly been assigned in view of rule 12(4) of the amended Rules of 1961, however, prayed that the petition filed by the petitioners may be dismissed. 7. It is said that seniority has rightly been assigned in view of rule 12(4) of the amended Rules of 1961, however, prayed that the petition filed by the petitioners may be dismissed. 7. After hearing learned counsel for the parties and on perusal of the record, it is not in dispute that respondent No.3 was initially appointed on ad hoc basis on 5.2.1986 for a period of six months or till selection or appointment by Mini PSC whichever is prior, and continued in the same capacity. In the meantime Recruitment Rules of 1987 came into existence w.e.f. 5.2.1988. The post of Senior Horticulture Development Officer has been advertised through Mini PSC as per rules. The petitioners as well as respondent No.3 both appeared in the said selection process and as per the merit of candidates, recommendations were made by Mini PSC preparing the list of selected candidates for their appointment by the State Government, wherein petitioners found place over and above to respondent No.3 as apparent from the chart mentioned in para 2 of this order and also by Annexure P-4 dated 28.10.1989. However, it is a case in which appointment of respondent No.3 was initially made on ad hoc basis. He subsequently, applied through Mini PSC for selection and appointment on the same post wherein he got selected and found place below in merit from the petitioners in the same selection. As per rule 11 of the Recruitment Rules of 1987, after the procedure for direct recruitment, by rule 12 the list of candidates recommended by the Mini PSC shall be forwarded to the appointing authority in order of merit of the candidates who may have qualified by such standards as determined by the Mini PSC. It is made clear that the candidates belonging to the Scheduled Castes and Scheduled Tribes who, though not qualified by the standard but are declared to be suitable for appointment to the service with due regard to the maintenance of efficiency of administration, the list is required to be published for general information. The appointment to the available vacancies from the list shall be in the order in which the names appear in the list after satisfaction of the appointing authority. The appointment to the available vacancies from the list shall be in the order in which the names appear in the list after satisfaction of the appointing authority. Thus, the Recruitment Rules, 1987 recognizes the list arranged in order of merit by the Mini PSC and the appointments on the available vacancies shall be in the order in which the names appear in the list by the State Government. The inter se seniority of the persons so selected shall be determined after their appointment as per Rules of 1961. The unamended rule 12 which is relevant in the facts of the present case is reproduced as under : “12. Seniority. -- The seniority of the members of a service or a distinct branch or group of posts of that service shall be determined in accordance with the following principles, viz. -- (a) Direct recruits. -- (i) The seniority of a directly recruited Government servant appointed on probation shall count during his probation from the date of his appointment : Provided that if more than one person have been selected for appointment on probation at the same time, the inter se seniority of the persons so selected shall be according to the order of merit in which they were recommended for appointment by the Commission in those cases where the appointments are made after consulting the Commission, and according to the order of merit determined by the appointing authority at the time of selection in other cases. (ii) The same order of inter se seniority shall be maintained on the confirmation of the normal period of probation. If, however, the period of any direct recruits is extended, the appointing authority shall determine whether he should be assigned the same seniority as would have been confirmed on the expiry of the normal period of probation or whether he should be assigned a lower seniority.” Bare reading of aforesaid, it is apparent that the seniority of directly recruited Government servant appointed on probation shall be counted from the date of his appointment. The proviso makes it clear that if more than one person has been selected for appointment on probation at the same time, the inter se seniority of the persons so selected shall be according to the order of merit in which they were recommended for appointment by the Commission. The proviso makes it clear that if more than one person has been selected for appointment on probation at the same time, the inter se seniority of the persons so selected shall be according to the order of merit in which they were recommended for appointment by the Commission. Thus, the joint reading or rule 12 of the Recruitment Rules of 1987 as well as Rules of 1961 makes it clear that the Commission is required to prepare a list of suitable candidates for appointment as per standard so determined and shall recommend for appointment to the available vacancies in order in which the names appear in the list. After issuance of the orders of appointments in order in which names appear in the select list, the appointment orders were issued and as per rule 12 of the Rules of 1961 while determining the inter se seniority of the persons so appointed by the same selection shall be in order of the merit of selection made by the Commission. The State Government has issued the gradation list showing the position as on 1.4.2005. In the said list the petitioner and respondent No.3 has been placed at appropriate place observing the aforesaid rules. The representations submitted by various persons have been rejected as per the decision of the Committee formed by the State Government vide Annexure P-6. In such circumstances, the changing of seniority by passing the order Annexure P-1 and P-1A is not in conformity to the rules. 8. Surprisingly, after taking decision by the Government merely on a representation of respondent No.3, a note was put up by respondent No.2 before respondent No.1. On issuing instructions by respondent No.1, the respondent No.3 has been made senior from the petitioners ignoring the document Annexure P-6. The aforesaid conduct has not been explained by the State Government in their return. As per the judgment of the apex Court in the case of Masood Akhtar Khan (supra), while interpreting the Rules of 1961, the apex Court observed that the appointment has to be made in consultation with the Commission, the seniority is firstly from the date of selection by the Commission and secondly according to the order of merits given by the Commission for determination of inter se seniority. However, the aforesaid legal position cannot be disturbed by an arbitrary act of respondents making respondent No.3 senior from petitioners ignoring the Recruitment Rules of 1987 and also the Rules of 1961. 9. As per the return filed by the respondents, it is apparent that the order Annexure P-1 and P-1A has been passed in view of rule 12(4) of General Condition of Services Rules, 1961. The said amendment in Rules of 1961 which has come into existence on 2.4.1998. In the present case, the appointment of petitioner and respondent No.3 have been ordered as per Annexure P-4 dated 28.10.1989 following due procedure by Mini P.Sc. Thus rule 12(4) which has been amended in the year 1998 having no application for determination the seniority of the petitioners and respondent No.3 recruited in the year 1989. The amendment brought on 2.4.1998 in the Rules of 1961 cannot be made applicable retrospectively. My view fortifies from the judgment of P. Mahendran Malteesh Y. Annigeri (supra). Thus it is to be held that passing an order Annexure P-1 and P-1A making respondent No.3 senior from petitioners on the post of SHDO granting seniority of the period of ad hoc appointment is not in conformity to the Recruitment Rules of 1987 or the prevalent unamended Rules of 1961. 10. In view of forgoing discussion, I am of the considered opinion that the order granting seniority to respondent No.3 passed by respondents 1 and 2 contrary to the provisions of the Rules which cannot be sustained in law. Therefore, the Order Annexure P-1 dated 15.1.2009 and order Annexure P-1A dated 17.2.2009 passed by respondents 1 and 2 are hereby quashed. In the facts and circumstances of the case, parties to bear their own cost. .............