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Madhya Pradesh High Court · body

2013 DIGILAW 247 (MP)

S. K. Gupta v. State of M. P.

2013-02-25

K.K.TRIVEDI

body2013
JUDGMENT : This writ petition under Article 226 of the Constitution of India has been filed seeking to challenge the order dated 7-8-2011 passed by the respondent-State, by which approval of promotion of the petitioners on the post of Assistant Engineer, as was granted on 23-9-2008 has been withdrawn with immediate effect, contending that the petitioners who were appointed initially as Sub Engineer in the Municipal Corporation, Bhopal, were considered for promotion on the post of Assistant Engineer in the Departmental Promotion Committee meeting held in the year 2008. In terms of the provisions of section 58 of the M. P. Municipal Corporation Act, 1956 (hereinafter referred to as the Act for brevity), the approval from the State Government was sought, which was accorded on 23-9-2008. Accordingly, the order of promotion was issued on 24-9-2008. However, because of the withdrawal of the order of approval now the consequential effect would be reversion of the petitioners on the post of Sub Engineer, therefore, they are required to approach this Court. 2. Briefly stated facts giving rise to filing of this writ petition are that the petitioners two in number were appointed on different dates on the post of Sub Engineer vide orders dated 20-4-1990 and 27-10-1986. These orders of appointment were issued only after selection of the petitioners by the Selection Board as prescribed. There were two posts of Assistant Engineer available which according to the M. P. Municipal Corporation (Appointment and Conditions of Service of Officers and Servants) Rules, 2000 (hereinafter referred to as 2000 Rules for brevity) were to be filled in by promotion. A Departmental Promotion Committee meeting was held on 7-7-2008. The petitioners were found to be eligible having obtained the degree of Bachelor of Engineering in the year 2001 and 2004 respectively and the select panel was sent for approval before the State Government. Since the approval was granted on 23-9-2008, the order of promotion was issued on 24-9-2008 and pursuance to said order of promotion, the petitioners took over the charge and started working on the promotional post. However, some complaint was made stating that the petitioners were illegally promoted as in terms of the Rules, they were ineligible to be considered for promotion being diploma holders at the time of initial appointment as Sub Engineers, therefore, the promotion of the petitioners was bad. However, some complaint was made stating that the petitioners were illegally promoted as in terms of the Rules, they were ineligible to be considered for promotion being diploma holders at the time of initial appointment as Sub Engineers, therefore, the promotion of the petitioners was bad. Without granting any opportunity of hearing, the order impugned was issued, therefore, the petitioners are required to approach this Court. 3. The writ petition was entertained, the notices were issued to the respondents in response to which the respondents No. 1 and 2 have filed their return categorically contending that in terms of the provisions of Rules, the procedure as laid down under the M. P. Public Works Department Engineering (Gazetted) Recruitment Rules, 1969, the petitioner could not be promoted on the post of Assistant Engineer treating them as degree holder Sub Engineers, on completion of 8 years of service, inasmuch as, the petitioners have not completed the requisite 8 years of service as degree holder Sub Engineer from the date of obtaining the degree. An amendment was made in the Rules of Public Works Department and according to that amendment if the seniority of the petitioners are fixed, the petitioners would not be entitled to be considered for promotion as degree holder Sub Engineer. This being the error committed in consideration of the case of petitioners, the order was rightly issued withdrawing the earlier approval granted in respect of promotion of petitioners. It is, thus, contended that the order impugned has rightly been issued and no interference in the order is called for. As far as the respondents No. 3 and 4 are concerned, a common return has been filed by the Municipal Corporation contending that the Departmental Promotion Committee considered the cases of persons like petitioners for promotion only because none of the reserved category candidates were available for promotion fulfilling the criteria. In terms of the Recruitment Rules, the petitioners were considered and since the recommendations were duly approved by the State Government, the order of promotion was issued in respect of petitioners. It is contended that since the order impugned has been issued, the order of promotion of the petitioners has been cancelled, but since the interim relief is granted by this Court to the petitioners in the writ petition, the status-quo with respect to the posting of petitioners is being maintained. It is contended that since the order impugned has been issued, the order of promotion of the petitioners has been cancelled, but since the interim relief is granted by this Court to the petitioners in the writ petition, the status-quo with respect to the posting of petitioners is being maintained. Two other Sub Engineers working in the Corporation have moved I.A. No. 5531/2001 seeking intervention in the writ petition to oppose the same. The said I.A., has been allowed by this Court and interveners were heard. 4. Though a rejoinder has been filed by the petitioners to the return filed by the State Government, but almost the same contentions have been reiterated with respect to the claim of promotion. It is contended that the seniority of the petitioners is to be fixed from the date of initial appointment as Sub Engineer and not from the date of acquiring the degree of Bachelor of Engineering. Referring to the law laid down by the Apex Court in that respect, it is contended that consideration of the petitioners was rightly done for grant of promotion on the post of Assistant Engineer and, therefore, the petitioners would be entitled to the relief claimed in the writ petition. 5. Heard learned counsel for the parties at length minutely perused the record and the Rules. 6. The short question which is required to be answered in this writ petition is whether as a whole the procedure of promotion prescribed in the Public Works Department, including the quota fixed for promotion on the post of Assistant Engineer has to be adopted by the Municipal Corporation in terms of the 2000 Rules or not. Undisputedly, the provisions for promotion in the Municipal Corporation services have been prescribed in Rule 10 of the 2000 Rules which is relevant for the purposes of interpretation and, therefore, the same is reproduced in full :- "10. Promotion. - (1) Subject to the provisions of Rule 4, the Committee specified in Schedule IV shall select candidates for departmental promotion on the posts as shown in column (2) of Schedule-III. Promotion. - (1) Subject to the provisions of Rule 4, the Committee specified in Schedule IV shall select candidates for departmental promotion on the posts as shown in column (2) of Schedule-III. (2) When a post to be filled by promotion fall vacant and in the opinion of the appointing authority the filling up vacant post is necessary in the interest of the Corporation, then the Commissioner, shall prepare the seniority list of officers/employees shown in column (3) of Schedule-III, their character rolls, the details of award/punishment given to such Officers/Employees and submit before the Committee specified in Schedule-IV. (3) Subject to the provisions of sub-rule (4), the Committee shall consider the cases of all persons, who on the 1st January of that year has completed such number of years of service (whether officiating or substantive) as specified in column (4) of Schedule-III on the posts specified in column (3) of Schedule-III from which promotion is to be made and are within the zone of consideration in accordance with the provisions of sub-rule (4): Provided that no junior person shall be given preference over his senior merely on the ground of having completed the prescribed number of years service. (4)(a) The selection of candidates eligible for promotion shall be made on the basis of merit-cum-seniority in respect of Class I officers and seniority subject to fitness in respect of Class II, III and IV Officers/Employees. (b) The reservation for the posts of Scheduled Castes, Scheduled Tribes and Other Backward Classes and zone of consideration shall in accordance with the provisions of rules made or instructions issued in this behalf by the State Government from time to time for the Government Servants. (5) The Committee shall prepare a list of such persons who fulfil the conditions prescribed in sub-rule (3) and to whom the Committee considers to be suitable for promotion to the service. The list shall be sufficient to cover the anticipated vacancies on account of retirement and promotion during the course of one year from the date of preparation of select list. (6) The names of persons included in the list shall be arranged in order of seniority on the post as specified in column(3) of Schedule-III. (7) The Committee shall submit the select list to the appointing authority within one week from the date of meeting of the Committee. (6) The names of persons included in the list shall be arranged in order of seniority on the post as specified in column(3) of Schedule-III. (7) The Committee shall submit the select list to the appointing authority within one week from the date of meeting of the Committee. (8) Appointment by promotion shall be made by the appointing authority in the order in which the names appear in the select list: Provided that if the appointing authority is not agree with any name in the list then such name may be removed from the list after giving sufficient and clear reasons in writing." 7. Sub-rule (1) of Rule 10 of 2000 Rules prescribed constitution of the Committee as specified in Schedule-IV for the purposes of making a select list of candidates for promotion on the post shown in column (2) of Schedule-III of the Rules. Sub-rule (2) of the Rule 10 of the 2000 Rules prescribed that when a post to be filled in by promotion falls vacant and in the opinion of the appointing authority the filling up vacant post is necessary in the interest of Corporation, then the Commissioner shall prepare the seniority list of officers/employees shown in column (3) of Schedule-III, their character roles, details of award/punishment given to such officers/employees and submit before the Committee specified in Schedule-IV. Sub-rule (3) of Rule 10 of 2000 Rules prescribed that subject to the provisions of sub-rule (4), the Committee shall consider the cases of all persons, who on the 1st January of that year have completed such number of years of service (whether officiating or substantive) as specified in column (4) of sub-rule (3) on the post specified in column (3) of Schedule-Ill from which promotion is to be made and are within the zone of consideration in accordance with the provisions of sub-rule (4). 8. The posts are sanctioned in the Municipal Corporation service for which the method of recruitment is shown in Schedule-I of the 2000 Rules. The Assistant Engineer is a post mentioned in the said Schedule at Serial No. 19 and it is categorically said that 50% posts are to be filled in by direct recruitment and 50% by promotion. The remark column made in the said Schedule with respect to the post of Assistant Engineer is blank. The Assistant Engineer is a post mentioned in the said Schedule at Serial No. 19 and it is categorically said that 50% posts are to be filled in by direct recruitment and 50% by promotion. The remark column made in the said Schedule with respect to the post of Assistant Engineer is blank. Schedule-II of the 2000 Rule is irrelevant for the purposes of deciding this controversy involved in this matter, therefore, the same is not being referred. Schedule-III of the 2000 Rules is most important which contains eligibility for promotion and which is required to be looked into and interpreted, therefore, the entry with respect to the post of Assistant Engineer shown in Serial No. 9 is reproduced as a whole for consideration :- SCHEDULE-III [See Rule 10(1)] Eligibility for Promotion S. No. Name of the post to which promotion is to be made Name of the post from which promotion is to be made Minimum years service required on the post shown in column (3) for promotion To the post Shown in column (2) 9 Assistant Engineer Sub-Engineer/ Draftsman According to the criterion Government (PWD). As would be clear from the prescription of subject in column (4) of the Schedule-Ill, only the minimum years service required on the post shown in column (3) for promotion to the post shown in column (2) is to be taken from the Public Works Department Service Rules of the State of Madhya Pradesh and nothing more. As has been described herein above, Schedule-I prescribed a quota for promotion, but there is no further sub-quota prescribed on the post to be filled in by promotion as is prescribed in the Public Works Department, therefore, it is clear that the Rule Making Authority was not intending to make prescription of the same quota in the 2000 Rules as is given in the Service Rules governing the Engineering Services in the Public Works Department. Had it been so, the Rule Making Authority would have categorically prescribed quota for promotion of diploma holder Sub Engineers and degree holder Sub Engineers separately as has been prescribed by bifurcating promotion quota in the Rules of Engineering Services of the Public Works Department. For the said purposes, the Rule governing the services of the Public Works Department are looked into. For the said purposes, the Rule governing the services of the Public Works Department are looked into. The M. P. Public Works Engineering (Gazetted) Service Recruitment Rules, 1969 (hereinafter referred to as Gazetted Rules for short) have been referred in the proceedings conducted by the respondent-State and, therefore, it would be appropriate to see how the promotion quota is prescribed in the said Rules of Public Works Department. Under the said Rules the post of Assistant Engineer is required to be filled in 60% by direct recruitment and 40% by promotion. In Schedule-II of the Gazetted Rules, a further sub quota is prescribed by saying that 33% posts are to be filled in by promotion of diploma holder Sub Engineers, 4% posts are to be filled in by promotion of Graduate Sub Engineers and Draftsman and 3% posts are to be filled in by promotion of Draftsman and Head Draftsman. This particular Schedule or Scheme of promotion has not been adopted by the Rule Making Authority while making prescription of promotion in the 2000 Rules referred to herein above. Of course, a minimum years of service is prescribed in the Gazetted Rules, where it is said that a Graduate Sub Engineer on completion of 8 years of service is to be considered for promotion on the post of Assistant Engineer. Yet, another minimum years of service is prescribed, but that is made applicable for diploma holder Sub Engineers who are to be considered for promotion in their quota as prescribed. Precisely, the Scheme made in the Gazetted Rules was not adopted as a whole by the Rule Making Authority while making 2000 Rules because there is no prescription of a quota for promotion of diploma holder Sub Engineers and degree holder Sub Engineers separately made in the 2000 Rules. Schedule of 2000 Rules as referred to herein above nowhere make such distinction between the two Sub Engineers, one a diploma holder and another a degree holder. For this simple reason, it has to be held that in terms of the 2000 Rules and specifically in terms of the provisions made in Schedule-Ill of the 2000 Rules, only 8 years minimum service was to be treated as the eligibility condition prescribed for consideration of the claim of persons who have obtained a degree of Bachelor of Engineering, for promotion on the post of Assistant Engineer. 9. 9. This being so, when the posts became available in the Municipal Corporation Bhopal, the decision was taken by the competent appointing authority to make recruitment on the post of Assistant Engineer by promotion. It is not that the post on which any of the petitioner was promoted does not fall in the quota of promotion, therefore, treating that the petitioners were Graduate Sub Engineers, who have completed more than 8 years of service in the department, their claims were rightly considered and they were rightly promoted. In fact, persons like interveners were inducted in service sometime in the year 2003. Vacancies became available in the year 2008. None of the interveners have completed the requisite 8 years of service for promotion on the post of Assistant Engineers and, therefore, they were not to be considered at all for promotion. The interveners were appointed after the appointment of petitioners and at any rate, they could not have been treated senior to the petitioners in any manner, having been appointed on 16-4-2003 and 22-4-2003 respectively. If the criteria was only requisite years of service, which according to the analysis made herein above was 8 years, none of the interveners have completed the requisite years of service to be considered for promotion and were thus not in the zone of consideration. If any complaint was made by them as has been categorically averred by the official respondents in their return, it was not to be looked into nor any heed was to be paid to such a complaint as the interveners have no locus to challenge the promotion of the petitioners. This being so, making application of the Gazetted Rules or any amendment made in the Non-Gazetted Rules, the petitioners were not to be denied the benefit of promotion which they have earned on account of consideration of their claim. Such a consideration as has been reflected in the return of the respondents is totally unjustified and not acceptable. 10. It has been contended by the official respondents that in fact on the complaint made by the interveners, matter was referred, the provisions of the 2000 Rules were seen and as it was found that there was an amendment made in the Gazetted Rules on 17-5-1985, the petitioners were not found to be eligible for promotion. 10. It has been contended by the official respondents that in fact on the complaint made by the interveners, matter was referred, the provisions of the 2000 Rules were seen and as it was found that there was an amendment made in the Gazetted Rules on 17-5-1985, the petitioners were not found to be eligible for promotion. Of course, the Gazetted Rules were amended, but that amendment was with respect to prescription of quota for promotion on the post of Assistant Engineer and that particular Scheme of promotion or prescription of quota was not adopted by the Rule Making Authority in terms of the provisions of the 2000 Rules referred to herein above and, therefore, withdrawal of the approval of promotion of petitioners could not be said to be justified. It is further contended that there was an amendment made in the Non-Gazetted Service Rules of the Public Works Department and such a prescription was again made. However, this amendment would also not help the respondents as the Scheme which was made under the said amended provision of the Non-Gazetted Rules was again not adopted nor was again made applicable in the 2000 Rules as a whole. Only a limited part of the said Scheme was adopted, in specific words saying "the minimum years of service required on the post". 11. The law on the question of interpretation of statute or the statutory provision is very clear. Nothing is to be inserted or substituted in the words used in the statute. If the clear meaning of the provisions of Rules is available, addition or omission of word is not permissible. As has been pointed out herein above, in sub-rule (3) of Rule 10 of the 2000 Rules, specific provision as to what is to be taken into consideration from the adopted Gazetted Rules has been made and, therefore, neither any meaning can be attributed nor any other criteria could be treated to be adopted for the purposes of consideration of claim for promotion of a Sub Engineer of Municipal Corporation, on the post of Assistant Engineer. It is to be seen that similar provisions of the Rules were examined by the Apex Court in the case of M. B. Joshi and others vs. Satish Kumar Pandey, 1993 (Suppl) 2 SCC 419 and the Apex Court has categorically held that even when the specific quota for promotion of diploma holder Sub Engineers and Graduate Sub Engineers on the post of Assistant Engineer is made, the seniority is to be counted from the initial date of appointment and not from the date of acquiring the degree of Bachelor of Engineering. In view of the law laid down by the Apex Court also, the findings recorded by the respondent-State cannot be sustained. 12. This being so, the order impugned issued by the respondents is unsustainable in the eye of law. Resultantly, the writ petition is allowed. The order dated 7-3-2011 Annx. P/6 is hereby quashed and the order dated 23-9-2008 is restored. 13. The writ petition is allowed to the extent indicated hereinabove. There shall be no order as to costs. Petition allowed.