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Madhya Pradesh High Court · body

2012 DIGILAW 227 (MP)

Ram Kumar Baishander v. State of M. P.

2012-02-23

SUJOY PAUL

body2012
ORDER 1. By invoking the jurisdiction of this Court under Article 226 of the Constitution, the petitioner, a Surveyor, initially sought a direction for the respondents to follow the statutory recruitment rules and fill up the promotional quota for the post of Sub Engineer by convening a meeting of D.P.C. for the promotional post. However, during the pendency of the petition, the Gwalior Development Authority (GDA) passed an order dated 10.10.2008 whereby regularizing respondent No.3 on the promotional post of Sub Engineer. This order Annexure P-8 is called in question by filing an amendment. The amendment was allowed. Thus, now the relief sought is to quash the order dated 10.10.2008 and direct the respondents to consider the case of the petitioner is consonance with the statutory recruitment rules and convene a D.P.C. meeting. 2. Shri Anil Sharma, learned counsel for the petitioner, heavily relied on the seniority list of the feeder post of Surveyor (Annexure P-1) showing the position as on 1.4.2007. He submits that the petitioner’s name finds place at Sl. No.1, whereas the respondent No.3 is at No.2. He submits that petitioner is senior to respondent No.3 herein. The learned counsel by placing reliance on the statutory recruitment rules namely, Madhya Pradesh Development Authority Services (Officers and Servants) Recruitment Rules, 1987 (hereinafter referred to as the R.Rs.) submits that the Schedule III of the said rules prescribes the eligibility conditions for promotion on the post of Sub Engineer (Civil). Schedule III shows that eight years continuous service as Work Assistant Grade-I or Surveyor will make them eligible for promotion. Learned counsel submits that petitioner was eligible and his right of consideration for promotion is infringed. 3. Shri Sharma submits that the singular reason assigned by the G.D.A. for not considering him is that he does not possess the requisite minimum educational qualification for the post of Sub Engineer, i.e., Diploma in Civil Engineering. To attack this stand, Shri Sharma submits that the educational qualification is prescribed in Schedule II. On bare perusal of Schedule II, Shri Sharma submits that it relates to direct recruitment and is flowing from Rule 9 (2), which deals with the appointment/direct recruitment whereas Schedule III aforesaid is flowing from Rule 17 (3), which deals with promition. In other words, Shri Sharma submits that the requirement of educational qualification is only for the direct recruitment and not applicable for the promotion. In other words, Shri Sharma submits that the requirement of educational qualification is only for the direct recruitment and not applicable for the promotion. He submits that as per the said rules, 20% posts of Sub Engineers are to be filled up by way of promotion whereas remaining 80% would be by direct recruitment. Learned counsel further submits that since the aforesaid educational qualification is not prescribed for promotion, the respondents have wrongly applied it qua petitioner and snatched his fundamental right of consideration for promotion. He further submits that the seniority on the post of Surveyor is to be seen which is a feeder post and as per Annexure P-1, the private respondent herein is junior to the petitioner and, therefore, the petitioner has a preferential right for consideration for promotion. By attacking the impugned order dated 10.10.2008, the learned counsel for the petitioner submits that respondent No.3 could not have been regularized on the promotional post. He submits that the statutory post can be filled up only as per the statutory method prescribed under the rules and filling up the promotional post by way of regularization is totally unknown to law. In nut shell, Shri Sharma submits that Annexure P-8 dated 10.10.2008 is liable to be quashed and set aside and a mandamus may kindly be issued to the respondents to consider the case of the petitioner for promotion from the date private respondent has been promoted with all consequential benefits. 4. Per Contra, Shri Raghavendra Dixit, learned counsel for G.D.A. would submit that Schedule II is also applicable and the educational qualification prescribed in Schedule II is also the minimum educational qualification for the promotional post. The petitioner admittedly, is not possessing the qualification of Diploma in Civil Engineering and, therefore, he was rightly not considered by G.D.A. for promotion on the post of Sub Engineer. Shri Dixit supported the order dated 10.10.2008 and submits that the Government took a decision on 7.6.2008 (Annexure R-3) whereby the post of Sub Overseer aforesaid was upgraded/re-designated as Sub Engineer. Thereafter, the post of Sub Engineer became vacant and on the said post respondent No.3 was rightly regularized by convening a meeting of D.P.C. The learned counsel further submits that there is no illegality in the said order because earlier also certain persons were regularized in the same manner on the post of Sub Engineer. 5. Thereafter, the post of Sub Engineer became vacant and on the said post respondent No.3 was rightly regularized by convening a meeting of D.P.C. The learned counsel further submits that there is no illegality in the said order because earlier also certain persons were regularized in the same manner on the post of Sub Engineer. 5. Shri Rajendra Shrivastava, learned counsel for respondent No.3 has adopted the arguments of Shri Dixit and in addition to that submits that respondent No.3 along with certain other persons were compelled to file a writ petition before this Court which was registered as W.P.No.351/96. In the said case the following orders were issued by this Court :- “Admittedly, promotions have not been made according to the recruitment rules and, therefore, they have to be quashed and they are quashed. The only surveyor with seven years experience could be promoted on the post of Sub Engineer. The respondents would examine that if any of the respondents was holding the post of surveyor and completed seven years service then all other surveyors who were eligible for promotion, shall be considered for promotion. Remaining posts shall be filled by direct recruitment in which the respondents shall publish an advertisement and call names from the Employment Exchange. The selection shall be made according to law. However, if the eligible candidates are not available for promotion then the posts lying vacant should also be filled by direct recruitment. In the result, the petition succeeds and is allowed. However, there shall be no order as to costs.” 6. Shri Shrivastava submits that the respondent No.3 and his colleagues feeling aggrieved against the operative part of the order passed by the writ Court whereby it was directed that the remaining posts be filled up by way of direct recruitment, called the aforesaid part of the order in question in L.P.A. No. 237/97. Initially, in the L.P.A. on 24.9.97 the Division Bench of this Court granted stay in favour of the appellants but during the pendency of that L.P.A. order dated 10.10.2008 was passed and at that stage the aforesaid relief was extended in favour of the appellants therein and, therefore, by the order dated 18.11.2008 in W.A.No. 180/06 (renumbered case of earlier L.P.A.), this Court held that the writ appeal has rendered infructuous and it was accordingly dismissed. Shri Shrivastava submits that Schedule III does not contain any educational qualification as against any statutory post which clearly shows that for the purpose of determining the educational qualification of a statutory post one has to bank upon Schedule II. He further submits that there is no illegality in the order because the respondent No.3 was earlier erroneously regularized on the post of Surveyor and when similarly situated persons were regularized on the post of Sub Engineer, he preferred representations, filed writ petition and during the pendency of L.P.A./Writ Appeal aforesaid, the department on its own realized the mistake and rectified the same. He submits that the criteria for promotion as per Rule 17 (5) is seniority-cum-merit and his length of service and seniority is over and above the petitioner herein. For this purpose he heavily relied on Annexure R-3/1 and submits that his initial date of appointment is 5.6.1989 whereas the petitioner entered into service on a later date i.e., 26.2.1990. Shri Shrivastava further submits that respondent No.3 is B.E. (Civil) and, therefore, is more qualified than petitioner herein. The learned counsel for respondent No.3 submits that the writ appellate Court was informed that the required relief has been granted and the said Court was satisfied with the order dated 10.10.2008 and, therefore, the said Court held that the appeal has rendered infructuous. In the considered opinion of this Court, the argument is misconceived and cannot be accepted. Before the appellate Court the validity of order dated 10.102008 was not under challenge and the said appellate Court had no occasion to examine the correctness and validity of the said order. Accordingly, when the said order was brought to the notice of the Court, at that stage, the writ appellate Court found that no relief is due to the respondent No.3 because of the said order and only held that the appeal has rendered infructuous. In other words, no opinion is expressed by the writ appellate court about the validity or order dated 10.10.2008. This order is challenged before this Court in the present proceedings and, therefore, its validity is examined in extenso. No other point is pressed by the parties while arguing the matter. 7. I have bestowed my anxious consideration to the rival contentions of the parties and perused the record. This order is challenged before this Court in the present proceedings and, therefore, its validity is examined in extenso. No other point is pressed by the parties while arguing the matter. 7. I have bestowed my anxious consideration to the rival contentions of the parties and perused the record. The following questions need to be decided by this Court :- (i) What is the eligibility and educational qualification for the post of Sub Engineer? (ii) Whether the petitioner’s right of consideration for promotion is rightly declined by the G.D.A.? (iii) Whether the order dated 10.10.2008 regularizing respondent No.3 on the post of Sub Engineer is legal, proper and justified? Question No. (i) :- 8. Recruitment Rules clearly show that there are two separate methods of induction on the post of Sub Engineer. One is direct recruitment by filling 80% posts and secondly by promotion to fill up 20% posts. The promotional posts are to be filled up in consonance with Rule 17 of the said rules. Rule 17 reads as under :- “17. Appointment by promotion - (1) The appointment by promotion to Class I and Class II services shall be made on the recommendation of the Committee as referred to in Rule 7 (a) and to Class III services on the recommendation of the committee referred to in Rule 7 (b). (2) The Committee shall meet at intervals ordinarily not exceeding one year. (3) Promotion to M.P. Development Authority services I, II and III shall consider cases of persons who on 1st day of January of that year in which committee meets, had completed service (whether officiating or substantive) in the post and have educational qualifications as specified in schedule II. (4) In selecting candidates for promotion regard shall had to - (i) fact and energy. (ii) intellignce and ability, (iii) integrity, and (iv) previous record of service. (5) The selection for inclusion in selection list shall be on seniority cum merit basis.” 9. Schedule III is prepared in consonance with and as per the requirement of Rule 17. A microscopic reading of Schedule III shows that column 5 deals with requisite experience and qualification both. A bare perusal of this shows that against various posts apart from experience, qualification is also prescribed. For the post of Assistant Engineer (E & M), educational qualification of Diploma in Electrical/Mechanical Engineering is prescribed. A microscopic reading of Schedule III shows that column 5 deals with requisite experience and qualification both. A bare perusal of this shows that against various posts apart from experience, qualification is also prescribed. For the post of Assistant Engineer (E & M), educational qualification of Diploma in Electrical/Mechanical Engineering is prescribed. Similarly for certain other posts also educational qualification is prescribed such as Health officer. Thus, I am unable to agree with the arguments of the learned counsel for respondent No.3, that no educational qualification is prescribed in Schedule III and, therefore, the qualification mentioned in Schedule II has to be read for the purpose of promotion in Schedule III. This argument needs to be rejected for yet another reason that Schedule II speaks about “Educational qualification prescribed for direct recruitment and not for promotion.” 10. Thus, the rule-making authority in its wisdom prescribed an essential educational qualification only for the purpose of direct recruitment on the post of Sub Engineer and for the purpose of promotion experience of eight years as Surveyor or Work Assistant Grade-I was held to be sufficient. Thus, in the considered opinion of this Court, the petitioner was eligible having requisite years experience prescribed as per rules and educational qualification was not an impediment or requirement for him. Thus, the question No.1 is answered against respondents. Question No.(ii) :- 11. The question No.(ii) is based on the answer to question No.(i). This Court has already expressed its view that petitioner was eligible for consideration for promotion having requisite experience and educational qualification prescribed in the rules. Thus, in view of settled legal position that right of consideration is not only a statutory right but recognized as fundamental right flowing from Articles 14 and 16 of the Constitution. I am of the considered opinion that the petitioner’s statutory and fundamental right of consideration is taken away. This view is taken by the Supreme Court in catena of judgments including (1999) 7 SCC 209 (Ajit Singh and Others (II) Vs. State of Punjab and Others and in (2007) 6 SCC 704 (Union of India and Others Vs. Sangram Keshari Nayak) Question No.(III):- 12. So far the validity of order dated 10.10.2008 (Annexure P-8) is concerned, the basic contention of the respondents in support of that is that respondent No.3 is more qualified, from the date of his initial appointment he is senior qua present petitioner. Sangram Keshari Nayak) Question No.(III):- 12. So far the validity of order dated 10.10.2008 (Annexure P-8) is concerned, the basic contention of the respondents in support of that is that respondent No.3 is more qualified, from the date of his initial appointment he is senior qua present petitioner. The posts were re-disignated/upgraded and thereby one post of Sub Engineer became vacant against which respondent No.3 had a preferential right being similarly situated to certain other persons who were regularized earlier. 13. In the considered opinion of this Court, the contention of respondent No.3 that he is senior to the petitioner from the date of initial appointment totally misconceived for the purpose of considering a person for promotion. This is settled principle of Service Law that for the purpose of promotion the seniority of feeder post is only relevant. As per Anenxure P-1 the petitioner is clearly senior to respondent No.3 and that the respondent No.3 entered the department as a daily wager prior to that is totally irrelevant. So far the vehement argument of learned counsel for respondent No.3 that he was not promoted on the post of Sub Engineer but was regularized on the post needs to be analyzed. This is settled in law in view of catena of judgments that regularization cannot be a method of induction in service. The induction has to be in consonance with the method prescribed in the statutory recruitment rules. In ¼2009½ 13 SCC 90 (Harminder Kaur and Others Vs. Union of India and Others), the Supreme Court has held that regularization is not a permissible mode of induction. The following passage is relevant:- “Regularization is not a mode of appointment. When appointments in public office are required to be made, the provisions of Articles 14 & 16 of the Constitution of India are required to be scrupulously flowed. When a departure is made for not scrupulously following the conditions precedent laid down in the statutory rules as also the constitutional scheme, it is imperative that the same must be done within the four corners of the delegated power by the authority concerned.” 14. The question is when post of Sub Engineer is required to be filled up by only two methods, i.e., direct recruitment and promotion, impliedly other methods are barred. The question is when post of Sub Engineer is required to be filled up by only two methods, i.e., direct recruitment and promotion, impliedly other methods are barred. This is settled principle of law that if a thing is required to be done in the method prescribed in the rule, it has to be done in the same manner and other methods are barred. See 2011(2) M.P.L.J. 690 (Satyanjay Tripathy and another Vs. Banarsi Devi), wherein it is held as under :- “It is equally well settled legal principle that when a Statute prescribes a mode of doing an act in a particular manner, that act has to be done in that manner alone and other modes of its performance are forbidden. See : Bhagwant Rai and others Vs. State of Punjab and others, (1995) 5 SCC 440 and I.T.C. Bhadrachalam Paper Boards and another Vs. Mandal Revenue Officer, A.P. And others, (1996) 6 SCC 634 .” 15. Applying the aforesaid analysis, it is clear that petitioner is senior to respondent No.3 on the feeder post, he was having requisite experience and eligibility to be considered on the promotional post of Sub Engineer and filling up the said post of Sub engineer by way of regularization is impermissible in law. The said post could have been filled up only as per the method prescribed in the statutory recruitment rules. Merely because the said post was filled up by way of regularization on earlier occasion will not bestow any legal right in favour of the respondent No.3 to continue in the same manner. Illegality cannot be permitted to be perpetuated. See ¼2008½ 6 SCC 1, para 295 (Ashok Kumar Thakur Vs. Union of India and Others) and ¼2000½ 4 SCC 186 (G.S.I.R. And Others Vs. Dr. Ajay Kumar Jain), wherein it is held as under:- “The illegality offends the roots and foundation of the Constitution and cannot be allowed to be perpetuated.” 16. Once the illegality is called in question, this Court is under a legal obligation to examine the correctness, legality and validity of the same. In the opinion of this Court, there is no question of regularizing a person on the promotional post. Once the illegality is called in question, this Court is under a legal obligation to examine the correctness, legality and validity of the same. In the opinion of this Court, there is no question of regularizing a person on the promotional post. However, a minute reading of para 3 of order dated 10.10.2008 shows that the respondent No.3 has been considered by the Departmental Promotion Committee but while issuing the order G.D.A. issued order for his regularization on the post of Sub Engineer. In any case, the petitioner’s right of consideration for promotion is infringed and taken away. Apart from this, so far the question of up-gradation and re-designation of the post of Sub Overseer as Sub Engineer is concerned, at best, by this exercise a post of Sub Engineer has become vacant. The question is as to how it has to be filled up in accordance with law. In the opinion of this Court, the petitioner had a right of consideration as against this post and the criteria for promotion is also “seniority-cum-merit”. Thus, the petitioner being senior to the respondent No.3 herein has a preferential right over and above him for consideration. This post can be filled up only as per the method prescribed in the R.Rs. 17. On the basis of aforesaid facts, I am unable to uphold the order dated 10.10.2008 to the extent respondent No.3 herein is regularized on the promotional post. Accordingly, this order to the extent respondent No.3 is regularized on promotional post of Sub Engineer is quashed. The respondents are directed to convene a review D.P.C. and consider the case of petitioner and other eligible candidates within two months and then pass promotion order in accordance with law. Needless to mention that for the purpose of promotion, the respondents are bound to act in accordance with aforesaid R.Rs. The petition is allowed to the extent indicated above. No costs.