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Madhya Pradesh High Court · body

2012 DIGILAW 771 (MP)

Ashok Mishra v. State of M. P.

2012-07-31

ALOK ARADHE

body2012
JUDGMENT : In this petition, the petitioner inter alia seeks quashment of the order dated 29.1.2011 (Annexure P-1) as well as the order dated 5.3.2011 (Annexure P-2) by which the order of absorption of the petitioner dated 14.2.1996 and his promotions on the post of Deputy Controller and Joint Controller vide orders dated 31.7.1997, 17.9.199and 15.9.2005 .respectively have been cancelled and the petitioner has been relieved w.e.f. 8.3.2011 directing him to join his parent department. In order to appreciate the petitioner's challenge to the impugned orders, few facts need mention which are stated infra. 2. The petitioner was employed as Steno grade - II in the pay-scale of Rs. 1640-290in the Water Resources Department. The petitioner submitted an application on 10.12.199for his deputation of M.P. Professional Examination Board (in short 'the Board'). The Board decided to take the services of the petitioner on deputation. Accordingly, by communication dated 28.12.199the Engineer-in-Chief of water Resources Department was apprised that Board has taken a decision to take the services of the petitioner on deputation on the post of personal assistant. Accordingly, a request was made to relieve the petitioner. In view of the communication sent by the Board, the Engineer-in-chief vide order dated 2.1.1991 lent the services of the petitioner on deputation to the Board for a period of two years. The petitioner was relieved on 2.1.1991 and joined the services of the Board on 2.1. 1991 itself. 3. A meeting of the Board was held on 24.10.1994 to review the set up of the posts in the Board. A decision was taken to upgrade the post of personal assistant to the post of Assistant secretary and accordingly the pay-scale in respect of the aforesaid post was upgraded from pay-scale of Rs. 1640-290to Rs. 2200-4000/-. In pursuance of the decision taken by the Board an order dated 19.12.1994 was passed with regard to upgradation of the aforesaid post. Thereafter the Board in its meeting dated 3.5.1995 considered the cases of all the eligible persons for selection on the post of Assistant Secretary. By taking into account the performance of the petitioner on the post of personal assistant, the petitioner was selected for the post of Assistant Secretary. Thereafter the Board in its meeting dated 3.5.1995 considered the cases of all the eligible persons for selection on the post of Assistant Secretary. By taking into account the performance of the petitioner on the post of personal assistant, the petitioner was selected for the post of Assistant Secretary. The matter relating to absorption of services of the petitioner on the post of Assistant Secretary was referred to the Minister, Water Resources Department as well as the General Administration Department of the Government of M.P. and Finance Department. Thereafter vide order dated 14.02.1996 the services of the petitioner were absorbed in the Board in the pay-scale of Rs. 2200-4000/-. 4. In view of the paucity of employees, the Board in its meeting held on 4.3.1997 decided to relax the requirement of minimum qualifying service of five years for consideration for the post of Deputy Controller as one time measure. Thereafter the cases of all eligible candidates were considered for promotion to the post of Deputy Controller. The petitioner along with one M. M. Kureshi, was promoted on ad hoc basis on probation for a period of two years, on the post of Deputy Controller vide order dated 31.7.1997. Thereafter, the meeting of the departmental promotion committee was held and in view of the recommendation of the departmental promotion committee the petitioner was promoted to the post of Deputy controller on regular basis vide order dated 17.9.1999. 5. In pursuance of the recommendation of the meeting of the departmental promotion committee on 26.8.2003 the petitioner was promoted to the post of Joint Controller vide order dated 15.9.2005. The petitioner thereafter was served with a show-cause notice dated 29.1.2011 by which petitioner was asked to show cause as to why his order of absorption as well as the orders of promotions be not cancelled as the same are in violation of the Rules. The petitioner submitted reply to the aforesaid show-cause notice. However, vide order dated 5.3.2011 (Annexure P-2) the order of absorption of the petitioner dated 14.2.1996 was cancelled on the ground that the same is violative of Rule 7 of the M.P. Civil Services (General Conditions of Service) Rules, 1961 .and that the petitioner did not tender his resignation prior to absorption of his services which was required under circular dated 6.1.1986 issued by the General Administration Department. The order of promotion dated 31.7.1997 by which the petitioner was promoted to the post of Deputy Controller was cancelled on the ground that under 1996 Rules, the petitioner was required to have minimum five years of qualifying service which he did not have. The order of promotion of the petitioner dated 15.9.2005 on the post of Joint Controller was cancelled on the ground that at the relevant time there was only one vacant post of Joint Director which was occupied by one A. K. Kalia and, therefore, the petitioner could not have been promoted to the said post. In the aforesaid factual backdrop, the petitioner has approached this Court. 6. Learned senior counsel for the petitioner submitted that at the relevant time, the services of the petitioner were absorbed and even when he was promoted to the post of Deputy Controller as well as to the post of Joint Controller, no statutory rules were in vogue governing the service conditions of the employees of the Board. It was further submitted that the services of the petitioner were absorbed after obtaining permission from his parent department as well as the General Administration Department. The State Government itself held that in view of Rule 34 of the Civil Services (Pension) Rules, there was no requirement of tendering the resignation prior, to order of absorption. The order of absorption was not passed in contravention of any statutory rules. It was also submitted that the Board had relaxed the condition with regard to having minimum qualifying service for promotion to the post of Deputy Controller as one time measure and, therefore, the promotion of the petitioner to the post of Deputy Controller cannot be branded as contrary to the Rules. 7. Learned senior counsel also submitted that the requirement of five years qualifying services was relaxed not only in case of the petitioner but in cases of several other employees as well. It was further urged that since in the meeting of the departmental promotion committee Mr. A. K. Kalia was not found fit for promotion to the post of Joint Controller therefore the petitioner who was found fit for promotion, was promoted to the said post and it was directed that the salary of aforesaid Mr. A. K. Kalia be drawn against the vacant post on deputation. It was also urged that the state Government has supported the stand of the petitioner. A. K. Kalia be drawn against the vacant post on deputation. It was also urged that the state Government has supported the stand of the petitioner. Learned senior counsel has drawn the attention of this court to correspondences annexed with I. A. No. 6297/2012 and has contended that Water Resources Department has repeatedly informed the Board that lien of the petitioner with Water Resources Department has come to an end and, therefore, it is not possible to restore the lien. It is further contended by learned senior counsel that in the writ petition which was filed by Mr. A. K. Kalia, the Board in paragraph 8 of the return has supported the case of the petitioner and had stated that neither absorption nor promotion of the petitioner is illegal. It is also contended that it is well settled in law that lien stands terminated if an incumbent of the post acquires a permanent post. In support of his submission, learned senior counsel has placed reliance on the decisions in T. R. Sharma v. Prithvi Singh, AIR 1976 SC 367 , Ramlal Khurana v. State of Punjab, AIR 198SC1985, Dr. S. K. Kacker v. All India Institute of Medical Sciences and Others, (1996) 1SCC 734, Surender Singh Gaur v. State of M.P., (2006) 1SCC 214 and State of Rajasthan v. S. N. Tiwari, (2009) 4 SCC 700 . 8. Learned Government Advocate for the respondents 1 and 2 has supported the submissions made by learned senior counsel for the petitioner. On the other hand, learned counsel for the respondent No. 3 While opposing the submissions made by learned senior counsel for the petitioner, has submitted that the post of personal assistant was upgraded to the Assistant Secretary and, therefore, the post ought to have been filled up in the manner prescribed under Rule 7 of the M. P. Civil Services (General Conditions of Service) Rules, 1961. It is further submitted that neither any advertisement nor any application was invited for filling up the post of Assistant Secretary and, therefore the absorption of the petitioner in the Board amounts to backdoor entry and in violation of Rule 7 of the 1961 Rules. It is also contended that the petitioner had not tendered his resignation as required by the circular dated 6.1.1986 issued by the General Administration Department and, therefore, the order of absorption is per se illegal. It is also contended that the petitioner had not tendered his resignation as required by the circular dated 6.1.1986 issued by the General Administration Department and, therefore, the order of absorption is per se illegal. It was also submitted that the procedure prescribed under 1996 Rules for promotion to the post of Deputy Controller has not been followed and despite the fact that the petitioner did not have requisite qualifying service of five years, he was promoted to the post of Deputy Controller. It is further submitted that the Board has no authority to grant relaxation contrary to the statutory rules. It is further urged that the promotion of the petitioner to the post of Joint Controller is also illegal as the relevant point of time no post of Joint Controller was vacant. It is also contended that if an order of absorption is passed contrary to the statutory rules, the same can always be cancelled and there is no legal impediment in restoring the lien of the petitioner. It is also submitted that it is well settled in law that the power to do something implies the power to undo the thing done. In support of his submissions, learned counsel for the respondent No. 3 has,placed reliance on the decisions in Sampat Prakash v. State of Jammu and Kashmir, AIR 197SC 1118, G. Muiyappa Naidu v. State of Karnataka, (1976) 4 SCC 543 , Rahakant Jha v. Chief Commissioner and others, (1987) 3 SCC 5 Secretary, State of Karnataka and Others v. Uma Devi and Others, (2006) 4 SCC 1 and M. P. Dwivedi v. M. P. Vidhan Sabha Secretariate, Bhopal, ILR (2008) M. P. 1622 and State Bank of India v. Andrew, 1997 ILR (KER)-3-826 9. I have considered the respective submissions made by learned counsel for the parties. The seminal issue which emanates for consideration is whether the order of absorption of services of the petitioner as well as the orders of promotions are legal and valid. I have considered the respective submissions made by learned counsel for the parties. The seminal issue which emanates for consideration is whether the order of absorption of services of the petitioner as well as the orders of promotions are legal and valid. The term 'absorption' in service jurisprudence implies that an employee is not holding a particular post in his own right by virtue of either recruitment or promotion but is holding the same by virtue of being brought to the post either by deputation or by transfer and subsequently on absorption on that post he becomes the holder of that post in his own right and looses the lien in the post held by him in the parent department. It is pertinent to mention here that at the time when the order of absorption of sendees of the petitioner was passed on 14.2.1996 and the petitioner was promoted to the posts of Deputy Controller as well as Joint Controller vide orders dated 31.7.1997,17.9.199and 15.9.2009, no statutory rules were framed by the Board governing the service conditions of its employees. In view of the memorandum dated 4.4.1996, by order dated 1.10.1996 the Board framed a set of rules, which are known as Professional Examination Board (Service and Recruitment) Rules, 1996 which came into force with effect from 1.10.1996. The aforesaid rules have no statutory force as the same were framed in pursuance of the memorandum dated 4.4.1996 issued by the General Administration Department of the Government of M. P. It appears that the Board framed another set of Rules vide order dated 11.9.2000, namely, Professional Examination Board (Service Recruitment) Rules, 1999. The aforesaid rules are also not statutory in nature. 10. The State Government enacted the M. P. Vyavsayik Pariksha Mandal Adhiniyam, 2007 (in short 'the Act') which came into force on 15.10.2007. Section 24 (2) (k) of the Act empowers the Board to make regulations with regard to appointment of officers, clerks and other servants of the Board and the conditions of service. The respondent No. 3 has not placed on record any regulations which might have been framed by the Board in exercise of power under Section 24 (2) (k) of the Act. The respondent No. 3 has not placed on record any regulations which might have been framed by the Board in exercise of power under Section 24 (2) (k) of the Act. Thus, from the above narration of the fact, it is clear that the statutory rules were not in vogue when the services of the petitioner were absorbed in the Board and when he was promoted to the post of Deputy Controller and Joint Controller. In case of M. B. Hiregondra v. State of Karnataka, AIR 1992 SC 410 , the Supreme Court has held that in the absence of recruitment rules, he appointment cannot be said to be illegal. 11. After the Board had selected the petitioner for appointment on the post of personal assistant, the matter relating to absorption of services of the petitioner was referred to the Minster of Water Resources Department as well as the General Administration Department of the Government of M. P. who accorded the approval for absorption of services of the petitioner with the condition that he should submit his resignation from the post held by him in the water Resources Department with effect from 15.9.1995. Thereafter the matter pertaining to absorption of services of the petitioner was referred to the Finance Department. The State Government considered the matter and came to the conclusion that in view of Rule 34 of the M. P. Civil Services (Pension) Rules, 1976, it is not necessary for the petitioner to tender resignation in view of the circular dated 6.1.1986. Thereafter the services of the petitioner were absorbed in the Board in pay-scale of Rs. 2200-400vide order dated 14.2.1996. Thus, it is apparent that before the order regarding absorption of services of the petitioner was passed by the Board, approvals from the parent department i.e. Water Resources Department, General Administration Department of the Government of M. P. as well as the State Government were taken. The order of absorption of services of the petitioner was passed on 14.2.1996 i.e. at the time even when the 1996 Rules which even otherwise had no statutory force were not in existence. It is well settled in law that in the absence of rules, an appointing authority can make appointment in exercise of its executive powers. [SeeB. N. Nagarjun and Others v. State of Mysore and Ors., AIR 1966 SC 1942 and State of Jharkhand and Ors. It is well settled in law that in the absence of rules, an appointing authority can make appointment in exercise of its executive powers. [SeeB. N. Nagarjun and Others v. State of Mysore and Ors., AIR 1966 SC 1942 and State of Jharkhand and Ors. V Byay Kumar, AIR 2008 SC 1446 ]. 12. The submission made by learned counsel for the respondent No. 3 that the order of absorption of the petitioner is violative of rule 7 of the M. P. Civil Services (General Condition of Services) Rules, 1961 may be examined. Rule 7 of the aforesaid Rules deals with the methods of recruitment. It provides that a candidate shall be selected for appointment to a service or post by direct recruitment, promotion or transfer of person or persons already employed in another service or post. The petitioner has been selected on the post of personal assistant. Thus he has been directly recruited on the post in question. Therefore, even assuming that the provisions of the 1961 Rules apply to the case of the petitioner yet the selection of the petitioner on the post in question cannot be said to be in violation of Rule 7 of the 1961 rules. While considering the case of the petitioner for selection to the post in question, cases of all eligible candidates were considered by the respondent No. 3 -Bard and, thereafter the petitioner was selected on the post in question. The Additional Secretary of the State Government vide note-sheet dated 11.1.1996 held that in view of Rule 34 of the M. P. Civil Services (Pension) Rules, 1976, it is not necessary for the petitioner to submit resignation. The note prepared by the additional Secretary was approved by the Secretary. Therefore, it’ cannot be said that the absorption of services of the petitioner is in violation of clause 3 of the circular dated 6.1.1986. Thus, the order of absorption of services of the petitioners does not suffer from any infirmity. 13. Rule 2of the 1996 Rules as well as rule 1of the 199Rules which were framed by the Board governing the service conditions of its employees which are non-statutory in nature contain the power of relaxation. Thus, the order of absorption of services of the petitioners does not suffer from any infirmity. 13. Rule 2of the 1996 Rules as well as rule 1of the 199Rules which were framed by the Board governing the service conditions of its employees which are non-statutory in nature contain the power of relaxation. In view of paucity of employees, the Board in its meeting dated 21.8.1997 decided to relax the requirement of qualifying service .of five years for consideration for promotion to the post of Deputy Controller as one time measure. The aforesaid condition was relaxed in cases of several other employees including the petitioner. Thereafter the cases of eligible employees were considered for promotion to the post of Deputy Controller and the petitioner along with one M. M. Kureshi was promoted to the post of Deputy Controller on ad hoc basis for a period of two years vide order dated 31.7.1997. Thereafter the matter for promotion on the post of Deputy Controller was considered by the Departmental Promotion Committee and the petitioner was promoted on the post of Deputy Controller on regular basis vide order dated 17.9.1999. Since, under the 1996 Rules the Board had the power to grant relaxation therefore, it cannot be said that the order of promotion of the petitioner on the post of Deputy Controller has been passed in violation of the 1996 Rules which have no statutory force. Similarly in view of the recommendation made by the departmental promotion committee on 26.8.2003, the petitioner was promoted to the post of Joint Controller vide order dated 15.9.2005. In the aforesaid meeting of the departmental promotion committee, aforesaid A. K. Kalia was not found fit for promotion. It is pertinent to mention here that being aggrieved by his supersession, aforesaid A. K. Kalia preferred a writ petition before this Court, namely, W. P. No. 11413/2006 (S) in which in paragraph 8 of the return filed on behalf of the Board, the Board took a stand that neither the order of absorption of cervices of the petitioner nor his promotion is illegal. However, paragraph 8 of the return was substituted by moving an application for amendment on the ground that officer-in-charge of the case did not obtain the approval of the Chairman or the Director before filling the return. Suffice it to say, the same appears to be nothing but an afterthought. However, paragraph 8 of the return was substituted by moving an application for amendment on the ground that officer-in-charge of the case did not obtain the approval of the Chairman or the Director before filling the return. Suffice it to say, the same appears to be nothing but an afterthought. Since, in the meeting of the departmental promotion committee the aforesaid A. K. Kalia was not found fit for the post of Joint Controller. Thereafter the petitioner was promoted to the post of Joint Controller and salary of the aforesaid A. K. Kalia was directed to be drawn against the vacant post on deputation. Thus, no fault can be found with the order of promotion of the petitioner to the post of Joint Controller. 14. It is pertinent to mention here that the petitioner was promoted as Deputy Controller vide order dated 31.7.199and had successfully completed five years of service on the aforesaid post. Similarly, the petitioner was promoted to the post of Joint Controller, vide order dated 15.9.2005 and had successfully completed five years of service on the said post. Therefore, in. view of Rule 3 of the Government Servants (Temporary and Quasi permanent Services) Rules, 1960, the petitioner had acquired the status of quasi permanent servant and, therefore, he could not have been reverted to his substantive post without compliance with provisions of Article 311 of the Constitution of India. [SeeA. D. Tannirwar v. State of M. P. and Another, 1976 MPLJ 667 and N. C. Gupta v. State of M. P. 197[1] WN SN 146] 15. The matter may be examined from another angle also. Fundamental Rule 14-A (d) provides that lien of a government servant on a post shall stand terminated on his acquiring a lien in a permanent post outside the cadre on which he is borne. The petitioner's services were duly absorbed in the Board vide order dated 14.2.1996 therefore his lien on the post, which was held by him in Water Resources Department had come to an end in view of Fundamental Rule 14.-A (d). The State Government also by communications dated 2.5.2011, 23.7.2011 and 8.12.2011 informed that the lien of the petitioner in the water Resources Department has been terminated. The State Government also by communications dated 2.5.2011, 23.7.2011 and 8.12.2011 informed that the lien of the petitioner in the water Resources Department has been terminated. The petitioner has successfully worked in the Board for a long period of more than sixteen years and has attained the experience therefore at this point of time it would be unjust to send back the petitioner to his parent department. [SeeState of Punjab and Others v. Inder Singh and Others, (1997) 8 SCC 372 , A. C. Thalwal v. High Court of M. P. and Others, (2000) 7 SCC 1 and Buddhi Nath Chaudhary and Others v. Abahi Kumar and Others, (2001) 3 SCC 328 ]. 16. This court vide order dated 14.9.2011 had directed that in case the petitioner reports for duty in the parent department, the parent department, shall not refuse joining to the petitioner. Thereafter vide order dated 9.7.2012, the contention of learned counsel for the respondent No. 3 was noted that in compliance of the order dated 14.9.2011 the petitioner had not submitted his joining in Water Resources Department and therefore, this Coulrt observed that the conduct, if any, of the petitioner in this regard shall be taken note of at the time of final hearing. From perusal of order dated 14.9.2011, it is clear that an option was given to the petitioner to report to the parent department i.e. water Resources Department. Therefore, even assuming that the petitioner did not submit his joining in Water Resources Department, the same has no impact on the merits of the case. Hence, this court heed not' further dilate on the aforesaid issue. 17. In view of the preceding analysis, the orders dated 29.1.2011 and 5.3.2011 are hereby quashed. The respondent No. 3 is directed to permit the petitioner to join his duty forthwith and to award him all the consequential benefits. Accordingly, the writ petition is allowed.