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Madhya Pradesh High Court · body

2013 DIGILAW 170 (MP)

Shreeram Namdeo v. State of M. P.

2013-02-07

RAJENDRA MENON

body2013
JUDGMENT : Challenging the order-dated 11-8-2006 passed by the Collector, Jabalpur cancelling the order granting change of cadre to the petitioner from the post of Driver to that of Office Assistant Grade III; order-dated 29-12-2006 passed by the Collector, Jabalpur dismissing the review application; and, order-dated 22-2-2008 passed by the Commissioner, Jabalpur Division rejecting the appeal of the petitioner, this writ petition has been filed. 2. Records indicate that petitioner was initially appointed in the revenue department as a driver in the year 1993. Petitioner was a Graduate in Commerce and had passed the Typing Examination. It seems that petitioner submitted an application and sought for change of cadre from the post of Driver to that of Office Assistant Grade III. The matter was examined and vide order dated 3-2-2005 petitioner was permitted change of cadre. In the meanwhile, respondent No. 4 Shyam Narayan Choubey, who was working in the Department, filed a writ petition before this Court being WP(S) No. 5026/2005 and contended that he is also a driver, a Graduate having passed the Typing Examination and, therefore, like the petitioner he should also be granted change of cadre. Petitioner was impleaded as respondent No. 3, in the said petition. After taking note of the grievance of Shyam Narayan Choubey, the said writ petition was disposed of on 22-3-2006 vide order - Annexure P/9, and the State Government was directed to examine the claim of the petitioner in the said writ petition - Shyam Narayan Choubey, and take action for granting him benefit of change of cadre. It seems that while examining the claim of Shyam Narayan Choubey, it was found that change of cadre is not permissible and as change of cadre granted to the petitioner is contrary to the mandate of the circular and the policy of the State Government, a show-cause notice was issued to the petitioner and thereafter the change of cadre cancelled by the impugned order and, therefore, petitioner is before this Court. 3. Shri K. N. Pethia, learned counsel for the petitioner, invites my attention to a circular - Annexure P/2 dated 12-6-1980 and submits that in this circular certain provisions are made for permitting change of cadre from the post of Driver to that of Assistant Grade III, on the candidate fulfilling the stipulations contained in the circular. 3. Shri K. N. Pethia, learned counsel for the petitioner, invites my attention to a circular - Annexure P/2 dated 12-6-1980 and submits that in this circular certain provisions are made for permitting change of cadre from the post of Driver to that of Assistant Grade III, on the candidate fulfilling the stipulations contained in the circular. It is stated that petitioner was permitted change of cadre in the year 2005 after his case was examined in detail. That apart, he points out that even if the contention of the State Government that the circular - Annexure P/3 dated 3-10-2002 is only applicable for permitting change of cadre in case of a surplus driver, he brings to the notice of this Court cases of more than 10 employees in whose case change of cadre from the post of Driver to that of Assistant Grade HI has been granted, and argues that in their cases even though they were not surplus, they have been granted change of cadre and similar benefit is denied to the petitioner. The documents filed by the petitioner are Annexures P/4, P/5, P/6 and P/7 and again Documents 1 to 9, along with the application I.A. No. 4607/2012. All these documents have been filed to contend that in the case of more than 10-12 employees, similarly situated, even though they were not surplus, change of cadre is permitted and in spite of permitting change of cadre in the case of similarly situated persons who have been working in the revenue department, benefit is not extended to the petitioner. 4. On notices being issued, respondents have filed reply and it is stated by them that while the case of Shyam Narayan Choubey was being examined in the light of the order passed in his writ petition, it transpired that the circular -Annexure P/3 dated 3-10-2002 is only applicable to drivers who have been declared as surplus and as the petitioner was not declared surplus, it is stated that a mistake has been committed and the same is corrected. 5. The aforesaid submissions made by the parties were taken note of by this Court and on 10-8-2010, State Government was directed to file the circulars and documents on the basis of which change of cadre has been permitted and in the cases of many employees as stated by the petitioner, the change of cadre was granted. 5. The aforesaid submissions made by the parties were taken note of by this Court and on 10-8-2010, State Government was directed to file the circulars and documents on the basis of which change of cadre has been permitted and in the cases of many employees as stated by the petitioner, the change of cadre was granted. Even though the order was passed on 10-8-2010, more than 2½ years have passed, neither any circular is brought to the notice of this Court nor is any affidavit of the competent authority filed to show as to how and in what manner change of cadre as contended by the petitioner has been granted to various other employees. That being so, this Court is required to decide the matter on the basis of the material available on record. 6. Having heard learned counsel for the parties and on a perusal of the records, it is seen that the only circular with regard to change of cadre of a Driver to that of Assistant Grade HI is a circular dated 3-10-2002 - Annexure P/3 filed by the petitioner and during the course of hearing of this writ petition, the learned Government Advocate for the State, even on 10-8-2010, made a statement that apart from this circular there is no other circular. The circular dated 3-10-2002 does permit change of cadre from that of Driver to Assistant Grade III, but it indicates that a surplus driver can be permitted change of cadre to Assistant Grade III. That being so, respondents may be right in contending that circular -Annexure P/3 is applicable to such of the drivers, who are surplus in the department and who want change of cadre. To that extent, contention and justification given by the respondents can be accepted. However, if the record is further scrutinized, it would be seen that in case of various employees, more than ten in number, who are working as driver, change of cadre has been permitted and in their cases even though there is nothing to show that they are not surplus drivers, the change of cadre is permitted and they are made Assistant Grade III. Shri Pethia, learned counsel for the petitioner, submits that the pay-scale of the Driver and of an Assistant Grade III are identical and there is no extra financial burden on the State Government and, therefore, the change has been granted. 7. Shri Pethia, learned counsel for the petitioner, submits that the pay-scale of the Driver and of an Assistant Grade III are identical and there is no extra financial burden on the State Government and, therefore, the change has been granted. 7. Records indicate that on 25-4-1988, vide Annexure P/4, one Shri Hemant Kumar Mishra, a Jeep Driver working in the Treasury and Accounts Department, Jabalpur was permitted change of cadre from that of Driver to Assistant Grade III. Similarly, vide Annexure P/5 in the year 1993, Shri Santosh Singh - an employee working in the office of SDO, Sihora was granted change of cadre. Thereafter, vide Annexure P/6, on 29-12-1994, one Kishore Kumar Rajak; and, on 18-8-2003, vide Annexure P/7 one Shri Norbet Pasana, were granted the benefit of change of cadre. Petitioner has filed various documents -Annexures P/7 and P/8 to show change of cadre permitted in the case of various employees and in Document Nos. 1 to 7, filed along with I.A. No. 4607/2012, more than seven examples are given where change of cadre has been permitted. Document No. 1 is an order dated 1-7-2005, wherein one Shri Shyam Babu Verma, a driver working in the Narmada Valley Development Authority, is permitted change of cadre after approval of the Chief Minister. Similarly, vide Document No. 2, on 16-2-2005, one Shri Lakhan Lal Jatav is granted change of cadre. Similar orders have been passed in the case of various other employees, as seen from Document Nos. 3, 4, 5, 6 and 7, filed along with this application. All these documents show that in various departments, including the revenue department, change of cadre of drivers are permitted. On the contrary, the change is granted on recommendations made either by the Collector or a Minister or Head of the Department or even the Chief Minister. It is, therefore, a case where there is no set norm or procedure for change of cadre, but in a given case change of cadre is permitted and there is nothing to show that only in case of a surplus employee the change of cadre is permitted. The documents available on record and the examples given by the petitioner with regard to change of cadre does show that change is permitted in cases where the driver is not even surplus, but on administrative consideration or recommendations made by certain authorities. 8. The documents available on record and the examples given by the petitioner with regard to change of cadre does show that change is permitted in cases where the driver is not even surplus, but on administrative consideration or recommendations made by certain authorities. 8. In the case of the petitioner also, the competent authority had recommended and the State Government permitted him change of cadre and his case was akin to that of various employees who have been permitted change of cadre. Therefore, it is a case where a pick and choose formula has been adopted and even though more than ten employees have been granted the benefit, only the benefit extended to the petitioner is withdrawn for reasons which cannot be upheld by this Court. The action of the respondents in not permitting the petitioner to continue with the change of cadre granted in the year 2005 and withdrawing the benefit only because respondent No. 4 claimed for the same, is nothing but an arbitrary action and as the change of cadre has been permitted in the case of many other employees, as detailed hereinabove, I see no reason why similar benefit should not be granted to the petitioner, as no financial liability would be imposed upon the State Government as both the cadre of Driver and Assistant Grade HI are identical in nature. 9. Keeping in view the aforesaid, a case of discrimination with regard to the petitioner vis-a-vis other employees, who are similarly situated, is made out and as the respondents have violated the mandate of Article 14 of the Constitution in the matter of granting similar benefit to the petitioner, this petition is allowed. 10. Orders impugned i.e. the order-dated 11-8-2006 passed by the Collector, Jabalpur cancelling the order granting change of cadre to the petitioner from the post of Driver to that of Office Assistant Grade III; the order dated 29-12-2006 passed by the Collector, Jabalpur dismissing the review application; and, the order dated 22-2-2008 passed by the Commissioner, Jabalpur Division rejecting the appeal of the petitioner, are quashed. The order granting change of cadre to the petitioner issued on 3-2-2005 is restored and benefits be granted to the petitioner treating him to have been permitted change of cadre from the post of Driver to that of Assistant Grade III on 3-2-2005. 11. With the aforesaid observations, the petition stands allowed and disposed of. The order granting change of cadre to the petitioner issued on 3-2-2005 is restored and benefits be granted to the petitioner treating him to have been permitted change of cadre from the post of Driver to that of Assistant Grade III on 3-2-2005. 11. With the aforesaid observations, the petition stands allowed and disposed of. Petition allowed.