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Madhya Pradesh High Court · body

2012 DIGILAW 899 (MP)

Nihal Chandra Jain v. State of M. P.

2012-09-14

S.C.SHARMA

body2012
ORDER 1. The petitioner before this Court has filed this present writ petition for issuance of an appropriate writ, order or direction directing the respondents to promote the petitioner to the post of UDT, in terms of Circular of the State Government dated 6.1.1968 and keeping in view the judgment delivered in the case of Sultan Khan Qureshi v. State of M.P. [Writ Petition No.6176/2003]. 2. The contention of the petitioner is that he was appointed as Lower Division Teacher/Assistant Teacher on 28.7.1955 and was confirmed to the post of Assistant Teacher/LTD on 28.7.1955. Petitioner has further stated that he has cleared BTI Examination in the year 1962 and has also obtained a degree of graduation in the year 1969. Learned counsel for the petitioner has drawn attention of this Court towards a policy framed by the State Government dated 6.1.1978 in the matter of promotion from the post of Assistant Teacher/LDT to the post of UDT and the same provides that 5 years experience on the post of LDT including B.Ed./BTI and a Graduation Degree as a qualification for promotion. Learned counsel for the petitioner has vehemently argued before this Court that the petitioner became eligible in the year 1966 itself as he has completed 5 years of service, keeping in view the judgment delivered in the case of Muralidhar Neema v. State of M.P. and others [T.A. No.166/1988] and, therefore, the action of the respondent in denying the benefit of retrospective promotion to the petitioner and the order rejecting the petitioner’s case dated 22.2.2012 deserves to be set aside. Learned counsel for the petitioner has pointed out before this Court that the details mentioned in the order dated 22.2.2012 (Annexure R-1) are factually incorrect and keeping in view the judgment delivered in the case of Sultan Khan Qureshi v. State of M.P. [Writ Petition No.6176/2003], the petitioner is also entitled for retrospective promotion. 3. A reply has been filed on behalf of the respondent State and the stand of the State Government is that the petitioner is not entitled for promotion with retrospective effect. 3. A reply has been filed on behalf of the respondent State and the stand of the State Government is that the petitioner is not entitled for promotion with retrospective effect. It has also been stated that the petitioner was initially appointed in Ujjain Division as Assistant Teacher and he has not disclosed the fact of his transfer to Indore and seniority of LDT/Assistant Teacher is maintained at Divisional level and therefore, the petitioner is not entitled for the relief, as granted by the Court in the case of Sultan Khan Qureshi v. State of M.P. [Writ Petition No.6176/2003]. The respondents have also stated that they have rejected petitioner’s application for grant of promotion by passing a speaking order. 4. Heard learned counsel for the parties at length and perused the record. 5. In the present case, on 28.7.1955 he has obtained BTI Examination in the year 1962 and has obtained a degree in graduation in the year 1969. The Circular dated 6.1.1968 does not refer to seniority at all. The circular refers to qualifications only obtained by a teacher, i.e., graduation and a BTI Degree and a LDT becomes entitled for promotion in case he holds a B.Ed./BTI certificate as well as the graduate degree and 5 years experience on the post of LDT. This Court in the case of Sultan Khan Qureshi v. State of M.P. [Writ Petition No.6176/2003], in para 12 has held as under : “12. Refuting the said, Shri L.C. Patne, learned counsel appearing for the petitioner has relied upon the judgments of the apex Court in the case of Lt. Governor Delhi v. Dharmpal [ (1990)4 SCC 13 ]; K.C. Sharma v. Union of India [ (1997)6 SCC 721 ], and State of Karnataka v. C. Lalitha [ (2006)2 SCC 747 ], and it is urged, that if the similarly situated persons have benefited under the orders of the Tribunal/Court, petition claiming relief at par to them cannot be dismissed on the point of limitation in those cases question of limitation is not germane, because, it will ultimately affect the post retiral and pensionary benefits having recurring loss to the employee. It is further said that the said question has also been considered by this Court in the case of Mrs. Shobha Shekatkar (supra), and the plea of limitation has been rejected. It is further said that the said question has also been considered by this Court in the case of Mrs. Shobha Shekatkar (supra), and the plea of limitation has been rejected. Having heard learned counsel on this point and after going through the judgment of the Supreme Court S.S. Rathore (supra), it is clear that the said judgment does not deal with the issue of discrimination, though the other judgments cited above, deals the issue of discrimination. It is seen that while deciding the case of Murlidhar Neema (supra), the Tribunal had issued the direction in general which were upheld upto the apex Court by dismissing the SLP. Thus, the said direction is applicable in rem and not personam. In the reply, nothing is explained, what steps were taken by the respondent to implement those directions. However, non-consideration of senior Assistant Teachers and promotion of incumbent juniors, who are possessing the qualification required, writ at large. It is further required to be observed that in my view, issuance of direction by Tribunal for creating supernumerary post is not proper, but on consideration if an employee is found fit he is entitled for notional benefits because incumbent juniors were promoted discriminating the senior Assistant Teachers. Thus, I am in agreement to the submission as made by Shri Patne and accordingly the objection of delay, latches and limitation as raised by the respondents is rejected.” 6. This Court has carefully gone through the aforesaid judgment as well as the basic judgment delivered in the case of Murlidhar Neema (supra), and is of the considered opinion that the petitioner is also entitled for the same relief which has been extended to Murlidhar as well as Sultan Khan (supra). 7. Resultantly, the order passed by the respondents (Annexure R-1) is accordingly quashed. Respondents are directed to reconsider the case of the petitioner keeping in view the circular dated 6.1.1968. It is needless to mention that the petitioner shall be entitled for notional fixation of salary by extending him the benefit as has been extended to Sultan Khan. However, he shall be entitled for revised pension as well as arrears of revised pension. The aforesaid exercise shall be concluded within 4 months from the date of receipt of certified copy of this order. Writ petition stands allowed. No order as to costs.