Research › Search › Judgment

Madhya Pradesh High Court · body

2013 DIGILAW 336 (MP)

PREMLATA SHRIVASTAVA v. PROJECT OFFICER

2013-03-12

SUJOY PAUL

body2013
ORDER : SUJOY PAUL, J. 1. By filing this petition under Article 226 of the Constitution, the petitioner has called in question the validity of order dated 26.4.2006 and order dated 31.5.2006. Brief facts necessary for adjudication of this matter are as under:-- The petitioner was initially appointed on 17.6.1987. On more than one occasion, she was terminated, but later on, the said orders were recalled and she was permitted to join back. She filed W.P. No. 879/99 which was decided by this Court on 25.8.2004 (Annexure P/5). In the said writ petition, the respondents were directed to reconsider the case of the petitioner for promotion to the post of Supervisor in accordance with Annexure P/2 with effect from the date it was granted to other similarly situated persons in 1996. In obedience of this order, the Collector, Sheopur, passed the order (Annexure P/9) dated 30.12.2004 and requested the Commissioner, Women and Child Development, to comply with the order passed by this Court. In turn, Annexure P/6 dated 17.6.2005 is passed by District Women and Child Development Officer, Sheopur, whereby the petitioner was considered and promoted on the post of Supervisor with effect from 27th March, 1996. In obedience of this order, petitioner resumed the charge on promotional post. 2. Shri D.P. Singh, learned counsel for the petitioner, submits that by impugned order dated 26.4.2006 (Annexure P/1) and 31.5.2006 (Annexure P/10), the petitioner's aforesaid promotion was cancelled without affording any opportunity to the petitioner. He assailed the said order on following grounds:-- (i) The promotion order Annexure P/6 dated 17.6.2005 was passed in obedience of the order passed by this Court. The said benefit could not have been taken away without following the principles of natural justice; (ii) The impugned order, Annexure P/1 and Annexure P/10, are passed on the dictate of the higher authorities which is impermissible in law; and (iii) The reasons assigned in the impugned order are even otherwise bad in law. He relied on following judgments in support of his contentions:-- (i) Rajesh Kumar and Others Vs. D.Commissioner of Income Tax and Others, AIR 2007 SC 181 ; (ii) Ashoka Smokeless Coal Ind. P. Ltd. and Others Vs. Union of India (UOI) and Others, (2007) 2 SCC 640 ; (iii) Mansukhlal Vithaldas Chauhan Vs. State of Gujarat, (1997) 7 SCC 622 ; (iv) Bahadursinh Lakhubhai Gohil Vs. D.Commissioner of Income Tax and Others, AIR 2007 SC 181 ; (ii) Ashoka Smokeless Coal Ind. P. Ltd. and Others Vs. Union of India (UOI) and Others, (2007) 2 SCC 640 ; (iii) Mansukhlal Vithaldas Chauhan Vs. State of Gujarat, (1997) 7 SCC 622 ; (iv) Bahadursinh Lakhubhai Gohil Vs. Jagdishbhai M. Kamalia and Others, (2004) 2 SCC 65 ; and (v) The Joint Action Committee of Airlines Pilots Associations of India and Others Vs. The Director General of Civil Aviation and Others, AIR 2011 SC 2220 3. Per contra, Smt. Sangeeta Pachauri, learned Deputy Govt. Advocate for the State, submits that orders, Annexure P/1 and P/10 are in accordance with rules. Since the order passed by the Writ Court in W.P. No. 879/99 was not complied with, a contempt petition was filed by the petitioner. When the respondents/contemners were noticed, under the pressure of the Court, District Women and Child Development Office issued Annexure P/6 to comply with the order and after dismissal of the contempt petition, it was found that the said order could not have been passed and accordingly on the directions of Law Department and on the directions of higher authorities/secretariat, the impugned order, Annexure P/6, is rightly cancelled. She submits that the aforesaid action is in accordance with law and no interference is warranted by this Court. 4. I have heard learned counsel for the parties and perused the record. 5. The petitioner visited this Court by filing W.P. No. 879/99. This Court disposed of the said petition with following directions:-- Accordingly, petition is allowed, respondents are directed to reconsider the case of the petitioner for promotion to the post of Supervisor in accordance with Annexure P/12 with effect from the date it was granted to the other similarly situated persons in the year 1996. Necessary action be taken for reconsideration the case of the petitioner within a period of three months from the date of receipt of certified copy of this order and necessary orders be passed thereof. Accordingly, petition stands allowed and disposed of with the aforesaid. A bare perusal of this direction, shows that petitioner's case was required to be considered for promotion qua similarly situated persons with effect from 1996. The respondents considered the petitioner and promoted her from 27.3.1996 by order dated 17.6.2005 (Annexure P/6). Accordingly, petition stands allowed and disposed of with the aforesaid. A bare perusal of this direction, shows that petitioner's case was required to be considered for promotion qua similarly situated persons with effect from 1996. The respondents considered the petitioner and promoted her from 27.3.1996 by order dated 17.6.2005 (Annexure P/6). This order was subsequently cancelled by impugned order by assigning following reasons:-- (i) As per the order of this Court, there was no need to promote the petitioner as Supervisor. The order was only for considering the petitioner. (ii) As per the opinion of Law Department, the promotion of the petitioner was against the rules because the post of Supervisor was declared as dying cadre with effect from 22.12.2005. 6. It is the stand of the learned Deputy Govt. Advocate that Annexure P/6 was passed because a contempt proceeding was initiated for complying with the order passed in W.P. No. 879/99. In anticipation of approval of the Government, the petitioner was promoted. However the petitioner's promotion was found to be erroneous for the reasons stated above. 7. Reasons assigned in order dated 22.12.2005 (Annexure R-1), 31.5.2006 (Annexure R/2) and 26.4.2006 (Annexure P/1) are same. The reasons are already reproduced hereinabove. The petitioner sought promotion and was directed to be considered by this Court from 1996. The respondents considered and found her fit for promotion from 27.3.1996. The promotion order was also issued. It is sought to be cancelled on the ground that post of Supervisor became dying cadre from 22.12.2005. In my opinion, this reason is wholly misconceived and arbitrary to annul the promotion of the petitioner. The petitioner's right of consideration accrued pursuant to Court's order from 1996. In that year the post was not in a dying cadre. Merely because the said post became in a dying cadre later on, will not preclude the petitioner from right of consideration from a particular date. In other words, subsequent declaration of cadre of Supervisor as dying cadre will not preclude the petitioner from the fruits of right of consideration from 1996. Accordingly, the said reason cannot be a ground to cancel the promotion of the petitioner. No other reason is assigned as to why the petitioner's promotion was found to be against the rules. In other words, subsequent declaration of cadre of Supervisor as dying cadre will not preclude the petitioner from the fruits of right of consideration from 1996. Accordingly, the said reason cannot be a ground to cancel the promotion of the petitioner. No other reason is assigned as to why the petitioner's promotion was found to be against the rules. It is fashionable to state that promotion was 'against the rules', however, the respondents have not indicated in Annexure P/1, Annexure R/1 and Annexure R/2 as to how the petitioner's consideration or promotion was contrary to rules. I am unable to approve the stand taken by learned Deputy Govt. Advocate that in a haste manner petitioner was promoted because a contempt petition was pending. After dismissal of contempt petition, it was found that promotion was erroneous. In my opinion, if there is a Court order directing consideration, the consideration has to be in accordance with law. Mere pendency of contempt petition cannot be a ground to pass an order in a haste manner. The cancellation of order after dismissal of contempt petition is also not proper unless such cancellation is based on justiciable reasons and sound principles. In the present case, the cancellation of promotion order is based on extraneous consideration and not in consonance with the directions passed by this Court in W.P. No. 879/99. I am also unable to uphold the reason assigned in Annexure P/1 wherein it is mentioned that petitioner was only required to be considered and there was no direction to appoint the petitioner on the post of Supervisor. 8. It is not the case of the respondents that upon consideration of the petitioner with similarly situated employees from 1996, she was not found eligible or suitable. Their case is that the post of Supervisor became a dying cadre from 2005 and there was no direction for promotion. Courts normally do not pass direction for promoting the employees. It only directs consideration. However, consideration includes a transparent, meaningful and lawful consideration. On the basis of aforesaid analysis, the reasons assigned by the respondents in cancelling the promotion order cannot be upheld and accordingly the impugned order, Annexure P/1, is set aside. The petitioner shall be entitled for all consequential benefits as if the impugned order is never passed. The petitioner shall also get Rs. 5,000 as costs for compelling her to file this avoidable, litigation.