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Madhya Pradesh High Court · body

2013 DIGILAW 290 (MP)

H. P. Urmaliya v. State of M. P.

2013-03-05

K.K.TRIVEDI

body2013
JUDGMENT : This petition was originally filed as O.A. No. 304/1999 before the M. P. State Administrative Tribunal and the same has come on transfer to this Court after closer of the Tribunal and is registered as writ petition. 2. The claim made in the petition is that the petitioner was appointed as Lower Division Clerk in the Department of Agriculture at Jabalpur on 17-10-1964. lie was promoted on the post of Upper Division Clerk on 6-9-1975 and was confirmed on the said post with effect from 2-4-1983. Yet another promotion was given to the petitioner on 5-2-1985 when he was promoted on the post of Accountant. Lastly, the petitioner was promoted to the post of Auditor vide order dated 16-5-1996. According to the petitioner, his services were governed by the M. P. Subordinate Agricultural (Ministerial) Service Recruitment Rules, 1972 (herein after referred to as 'Rules'). According to the petitioner the next promotion channel provided under the Rules from the post of Auditor was on the post of Assistant Superintendent/Chief Auditor/Divisional Accountant. Instead of promoting the petitioner on the said post, he again was promoted on the post of Head Clerk vide order dated 6-4-1998 whereas the post of Head Clerk was equated with the post of Auditor in the same pay scale. In fact there was an error committed in promoting the petitioner on the equivalent post and, therefore, rights of the petitioner were prejudicially affected. Since thereafter the promotion was not made in respect of the petitioner whereas certain similarly situated persons were given higher rank, the representation was made and the matter was referred to the State Government and to the Director of Agriculture pointing out such mistake but since nothing was being done, the original application was required to be filed. It is, thus, contended that the petitioner was entitled to promotion on the post of Chief Auditor or Divisional Accountant as was done in respect of certain other persons w.e.f. 6-4-1998 and was further entitled to be considered for next promotion if any junior' to the petitioner was promoted in between. The petitioner has also claimed; consequential benefits of such promotion. It is stated that now since the petitioner has superannuated from service on 28-2-2005, he will be entitled to monetary benefits only. 3. Refuting the allegations made by the petitioner, a return has been filed by the respondents. The petitioner has also claimed; consequential benefits of such promotion. It is stated that now since the petitioner has superannuated from service on 28-2-2005, he will be entitled to monetary benefits only. 3. Refuting the allegations made by the petitioner, a return has been filed by the respondents. It is contended by them that the petitioner was rightly promoted on the post in terms of the provisions of the Rules. It is stated that the posts of Assistant Superintendent/Chief Auditor/Divisional Accountant are the post existing at State level and are not to be equated with the posts, which are sanctioned at Division level. A set up of 'the posts has been filed and it is contended that in view of the sanctioned strength of the posts, case of the petitioner was rightly considered and he was promoted on the post in appropriate manner. It is contended that since lawful claim of the petitioner was timely considered, he was promoted in appropriate manner, the entire petition being based on misconceived facts, is liable to be dismissed. A rejoinder has been filed by the petitioner but much or less the same averments have been made by him. 4. Heard learned Counsel for the parties at length and perused the record. 5. First of all the scheme of the Rules prescribed for promotion of the aforesaid non-gazetted employees is required to be seen. Rule 13 of the Rules prescribes the appointment by promotion. The said Rule says that a committee is to be constituted in terms of Schedule-IV of the Rules for considering the cases of employees to be considered for promotion and the said committee shall meet at intervals, normally not exceeding one year. The conditions of eligibility for promotion are prescribed in Rule 14 of the Rules, which prescribes the requisite years of service whether officiating or substantive as mentioned in the relevant Schedule of the Rules on completion of which an employee would become eligible to be considered for promotion to the next higher post. Rule 15 of the Rules prescribes preparation of the list of suitable officials and Rule 16 of the Rules prescribes for preparation of select list. Rule 17 of the Rules prescribes appointment from the select list. Rule 15 of the Rules prescribes preparation of the list of suitable officials and Rule 16 of the Rules prescribes for preparation of select list. Rule 17 of the Rules prescribes appointment from the select list. Thus, it is clear that the main crux is prescription of posts from which promotion is to be made and the name of service or post on which promotion is to be made. It is not in dispute that Schedule-IV of the Rules prescribes the posts in Column No. 2 from which promotion is to be made. It is also not disputed that the post on which promotion is to be made is prescribed in Column No. 3 of the Schedule. The posts of Assistant Superintendent/Chief Auditor/Divisional Accountant are promotional posts for Upper Division Clerk Grade-I/Head Clerk/Auditor. The entry at S. No. 3 of this Schedule reads Accountant/Upper Division Clerk Grade-II (at Directorate level)/Accountant (at Division level)/Assistant Auditors/Sub Auditors/Head Clerk-cum-Accountant/Store Keeper/Librarian/Accountant-cum-Store Keeper are all equated posts mentioned in this serial number in Schedule-IV. Similarly, the Upper Division Clerk Grade-II/Assistant Auditor/Sub Auditor at Division level all are to be promoted on the post of Accountant. 6. From the reading of this Schedule, it is clear that if an Upper Division Clerk is promoted as Accountant, which was in the case of present petitioner, he would be entitled to be considered for promotion on the post of Head Clerk/Auditor, which again was the case of the petitioner. However, once he is promoted as Auditor then he was to be considered for promotion on the post of Assistant Superintendent/Chief Auditor/Divisional Accountant and not on the post of Head Clerk as was done in his case by order dated 6-4-1998. If the petitioner was already promoted up to the post of Auditor, he could not have been promoted once again on the equivalent post of Head Clerk. This particular aspect has neither been explained nor justified by the respondents in their return. There is no whisper in the entire return as to how the petitioner, who was already promoted as Auditor vide order dated 16-5-1996, was again considered for promotion on the post of Head Clerk whereas in terms of Schedule-IV of the Rules referred to hereinabove, he should have been considered for promotion on the post of Assistant Superintendent/Chief Auditor/Divisional Accountant. There is no whisper in the entire return as to how the petitioner, who was already promoted as Auditor vide order dated 16-5-1996, was again considered for promotion on the post of Head Clerk whereas in terms of Schedule-IV of the Rules referred to hereinabove, he should have been considered for promotion on the post of Assistant Superintendent/Chief Auditor/Divisional Accountant. Precisely, this was the reason when the representation was made by the petitioner, the same was referred by the Joint Director, Agriculture, Jabalpur vide his memo dated 2-9-1998 to the Director of Agriculture, Madhya Pradesh, Bhopal. If there was any anomaly created in the Rules, that was to be removed only and only by the Stale Government. 7. Apart from the above, though it is contended that there was a divisional set up and a State level set up mentioned in the Rules, none is found in the Schedule appended with the Rules. Only the posts sanctioned in the ministerial services of the Department in Schedule-I have been shown, but it is nowhere indicated as to how many posts and to what extent and in which cadre they are sanctioned either in the Directorate or in the Divisional office or at the State level. Same is the situation when Schedule-II of the Rules is examined. Certain sanctioned posts have been designated such as Divisional Accountant and of course for the said post it can be said that the post is sanctioned at Division level but again specific posts are not mentioned, only the total number of sanctioned posts has been shown against the three equal cadre posts of Assistant Superintendent/Chief Auditor/Divisional Accountant. Thus, the entire stand taken by the respondents is misconceived and rather it runs contrary to the provisions of the Rules. The consideration for promotion in appropriate manner is a fundamental right. It is apparent from the records that such a right available to the petitioner for promotion on an appropriate post was neither considered nor was granted to the petitioner and thus such a right is denied to the petitioner. That being so, the stand taken by the respondents cannot be accepted. 8. Consequentially the petition is allowed. It is apparent from the records that such a right available to the petitioner for promotion on an appropriate post was neither considered nor was granted to the petitioner and thus such a right is denied to the petitioner. That being so, the stand taken by the respondents cannot be accepted. 8. Consequentially the petition is allowed. The respondents are directed to consider the case of the petitioner for promotion on the post of Assistant Superintendent/Chief Auditor/Divisional Accountant from the post of Auditor on which the petitioner was promoted in the year 1996, in accordance to his seniority by holding a review D.P.C. If on due consideration the petitioner is found fit for grant of such promotion, necessary orders of promotion be issued in that respect, with all consequential benefits such as pay, allowances and seniority of the promotional post. In case it is found that after fixation of seniority the petitioner would be entitled to be considered for further promotion on any higher post, that too be done. Since now the petitioner has retired, all the monetary benefits be paid to him within a period of four months from the date of order. The consequential revision of pension and other retiral dues be also done within the aforesaid period. 9. The writ petition is allowed to the extent indicated hereinabove. There shall be no order as to costs. Petition allowed.