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Madhya Pradesh High Court · body

2013 DIGILAW 404 (MP)

Hari Narayan Sharma v. State of M. P.

2013-03-22

K.K.TRIVEDI

body2013
JUDGMENT : This petition was originally filed as O.A. No. 173/1999 before the M. P. State Administrative Tribunal and came on transfer to this Court after closure of the Tribunal and is registered as writ petition. 2. The grievance of the petitioner is that while he was working on the post of Constable (Trade-Welder) in the Motor Transport Workshop of Police Department at Rewa, he took part in the trade training for the purposes of his inclusion in the fit list for promotion on the post of Head Constable. On successfully passing the said training, the name of the petitioner was brought in the fit list for promotion. It appears that owing to want of vacancies, the petitioner was not promoted. However, in terms of the GOP, which was in vogue at the relevant time, petitioner was not required to appear in the trade test once again for his inclusion in the select list. The DPC if was convened, the name of the petitioner was not considered. In the year 1997 the petitioner could know that certain juniors to him have been given the placement in the fit list and they have been promoted, therefore, he made representation before the authorities. The said representation was not being considered, therefore, he was required to approach the Tribunal. It is contended that since in the year 1995 the GOP was further amended and it was provided that those who have earlier passed the trade test and have been brought in the fit list, if have not been promoted, they were required to take part in the trade test once again for reconsideration of their case for bringing them in the fit list afresh. It was said in the said GOP that the validity of the fit list was 18 months only or till the promotions are made, which ever is earlier. If the petitioner was required to take part in the trade test, he should have been informed about such fact so that he could have taken part in the said test once again. Thus, it is contended that in fact the petitioner was denied the lawful claim in illegal and arbitrary manner and juniors to him have been promoted, therefore, action on the part of the respondents is bad in law. Thus, it is contended that in fact the petitioner was denied the lawful claim in illegal and arbitrary manner and juniors to him have been promoted, therefore, action on the part of the respondents is bad in law. In view of the aforesaid, the petitioner has claimed the following reliefs : "That by issuance of a writ in the nature of : I) Certiorari quashing the select list of 1997. II) Certiorari quashing the order dt. 3-9-1997 promoting the respondents No. 6 and 7 superseding the petitioner. III) Mandamus directing the respondents to include the petitioner's name in the select list of 1997 above respondents No. 6 and 7. IV) Mandamus commanding the respondents to consider the petitioner for promotion after inclusion of his name in the select list of 1997 and promote him accordingly prior to respondents No. 6 and 7. V) Mandamus commanding the respondents to promote the petitioner one day before the date of the promotion of respondents No. 6 and 7 assigning him proper seniority above the respondents No. 6 and 7 and pay him all arrears of salary for the entire period from the date of his promotion i.e. one day prior to the promotion of respondents No. 6 and 7. VI) Any other writ order or direction as the Hon'ble Tribunal deem fit in the circumstances of the case together with awarding cost of the petition. That by issuance of a writ in the nature of certiorari, this Hon'ble Court may kindly be pleased to quash the select list dt. 3-8-1996 so far it relates to the respondents No. 8 and 9. That by issuance of a writ in the nature of certiorari, this Hon'ble Court may kindly be pleased to direct to hold the trade test for the petitioner as per norms as existed on 3-8-2006 and if the petitioner passes/qualifies in the trade test, direct the respondents to include the petitioner's name in the select of 1996, above the respondent No. 8 and 9 giving him the consequential benefits including seniority." 3. On receipt of the notice of the original application, the respondents have filed their return and have refuted the allegations made in the petition. On receipt of the notice of the original application, the respondents have filed their return and have refuted the allegations made in the petition. It is contended that in fact the GOP No. 56/1993 was issued on 20-10-1993 wherein it was provided that if a Constable has passed the trade test, he would not be required to pass the said test once again for bringing his name in the fit list. However, the said GOP was amended vide order dated 25-2-1995 and it was specifically provided that those who have been brought in the fit list on account of passing of the trade test, but have not been promoted on the promotional post for want of vacancy, will require to take part in the trade test once again if the fit list prepared has lost its validity on expiry of 18 months period. The petitioner was required to take part in the trade test after the expiry of the fit list prepared in the year 1991. He did not participate in the said test and, therefore, his name was not brought in the fit list. The petitioner since has not passed the training as was required, his representation was rejected by the D.I.G., SAP, Jabalpur on 22-9-1999. As far as the others are concerned, it was contended that those persons have passed the trade test and their names were brought in the fit list of the trade in which the petitioner was also working. All these persons have been promoted in accordance to their seniority and placement in the fit list. Thus, it is contended that no illegality whatsoever is committed in passing the order in respect of the other respondents. It is contended that the petition is liable to be dismissed. 4. A rejoinder has been filed by the petitioner controverting such statements and stating that if the DPC had met prior to 25-2-1995, in terms of the unamended GOP of the year 1993, the petitioner was not required to take part in the trade test once again for inclusion of his name in the fit list. Once he was already brought in the fit list and if any fit list was prepared after expiry of the fit list in which the name of the petitioner was included, without even passing the trade test, the name of the petitioner was required to be included in the said fit list. Once he was already brought in the fit list and if any fit list was prepared after expiry of the fit list in which the name of the petitioner was included, without even passing the trade test, the name of the petitioner was required to be included in the said fit list. Had it been done, the petitioner would have been promoted when the juniors to him were promoted. It is further contended that in the year 1997 the select list was issued on the basis of consideration done in the year 1995 and in the said DPC the claims of two juniors to the petitioner were considered and they were promoted subsequently by the order referred to herein above. It is contended that both the juniors belongs to reserved category and as only two vacancies were there in the trade concerned, in fact the policy of reservation was violated and 100% reservation was given by promotion of reserved category candidates. To these submissions of the petitioner, an additional return has been filed but again nothing much is said except making allegations against the petitioner saying that he was placed under suspension because he ran away from the training and absconded for a period of 99 days. Again he was suspended because of misconduct and that being the conduct of the petitioner, he was not entitled to grant of promotion. The petitioner has filed an additional rejoinder placing on record certain orders passed by the concerned authority with respect to suspension of the petitioner. It is contended that the petitioner was harassed by the Deputy Commandant of SAP, who was after the petitioner because of certain personal reasons. It is pointed out that both the suspension orders were set aside by the higher authorities saying that they were not legally issued in accordance to the provisions of the law. Thus, it is contended that the petitioner was deliberately denied the promotion and as such was entitled to the reliefs claimed in the petition. 5. Heard learned Counsel for the parties at length and perused the record minutely. 6. It was the specific case of the petitioner that his name was brought in the fit list in the year 1991. It is the admitted position that the validity of the fit list was 18 months. 5. Heard learned Counsel for the parties at length and perused the record minutely. 6. It was the specific case of the petitioner that his name was brought in the fit list in the year 1991. It is the admitted position that the validity of the fit list was 18 months. How the fit list was again prepared, has not been spelled out by the respondents in their return. If the fit list was prepared before 25-2-1995, the provisions of unamended GOP No. 56 of 1993 would be applicable. This has not been demonstrated by the respondents whether the fit list was revived after the date on which the amendment in the GOP was made. It is necessary to be examined and clarified because the right of the petitioner could not have been taken away in that manner. If the fit list was prepared prior to 25-2-1995 under the unamended provision of GOP No. 56 of 1993, the effect would be, the petitioner would be brought in the fit list once again without forcing him to go for the trade training as he had already passed the trade training once and his name was already brought in the fit list of the year 1991. This is more so important because it is the specific stand of the respondents in their return that when the name of the petitioner was brought in the fit list, he was at S. No. 4. As there were only three vacancies available, on the strength of the fit list of the year 1991, prepared on 30th October, 1992, and the petitioner was at S. No. 4 of the select list, only his three seniors were promoted on 27-8-1993. The fit list itself is brought on record by the respondents as Annexure R-1 which indicates that the petitioner had not only completed the trade training within time and was working in the trade at the relevant time but was found fit in all respects for promotion on the next higher post. If that was the situation, the validity of the fit list was for a period of 18 months and, therefore, if any vacancy occurred in between, the petitioner was required to be promoted. If that was the situation, the validity of the fit list was for a period of 18 months and, therefore, if any vacancy occurred in between, the petitioner was required to be promoted. It is not disclosed by the respondents that after the expiry of the fit list, the petitioner was informed about a change in the GOP No. 56 of 1993, asking him to take part in the trade test once again for the purposes of revival of his name in the fit list. Merely because the petitioner had not passed the trade test once again, could it be said that he was not found fit for inclusion of the name in the fit list without asking the petitioner to take part in the trade test. This being so, there is sufficient force in the submissions made by learned Counsel for the petitioner. 7. Apart from this, if the vacancies were there, it was the general duty of the respondents to inform the persons, who were earlier in the fit list but could not be promoted on account of non-availability of the post with respect to any change made in the criteria for consideration for bringing a person in the fit list again. The validity of the fit list was fixed by the respondents. They were aware of the fact that the validity of the fit list would be over on a particular date. They were required to inform all those, who were already brought in the fit list to take part in the trade training once again. It is also to be seen that trade training is also provided only and only by the department and it cannot be obtained by any employee on his own. This being so, the petitioner was in fact denied an opportunity to take part in the promotional process, despite the fact that once he had successfully completed the said process and was brought in the fit list for promotion. The contention raised by the learned Government Advocate cannot be accepted that the petitioner was responsible on his own to take part in the trade test and since he had not taken part in the said test, he was not entitled to be included in the fit list. Such submissions of learned Government Advocate are to be discarded outrightly. 8. The other submissions made by learned Government Advocate also have no force. Such submissions of learned Government Advocate are to be discarded outrightly. 8. The other submissions made by learned Government Advocate also have no force. The orders placed on record by the petitioner with his additional rejoinder are not controverted. On first occasion when the petitioner was suspended, the allegation was made against him that he has not joined the training at Gwalior and ran away and because of such reason, he was placed under suspension. The entry made in the service roll of the petitioner has been produced on record as Annexure R-6, which indicates that the petitioner was placed under suspension vide order dated 25-10-1996. The reason of suspension is only this much that he avoided to join the training and on false pretext of illness remained absent for a period of 99 days. To this when the order passed by the competent authority revoking the suspension of the petitioner is examined, as has been placed on record as Annexure P-6, it reveals that the suspension of the petitioner was set aside by the Deputy Inspector General of SAP, Jabalpur saying that it was ordered by the Deputy Superintendent of Police without following the instructions of the higher authorities and the order passed was against the law. On second occasion when the petitioner was placed under suspension on 3-6-1997, the said order was also interfered by the higher authorities saying that the same is also not found in accordance to law. Not only this, the petitioner was attached at Jabalpur and the record relating to complaint made against him was summoned by the Commandant of the SAP. This being so, such a submission made by learned Government Advocate that looking to the conduct of the petitioner he was not entitled to grant of promotion, cannot be accepted. The fact remains that the petitioner was not offered full opportunity to take part in the trade test for the purposes of inclusion of his name in the fit list for promotion on the post of Head Constable (Trade-Welder). 9. In view of the discussions made herein above, the writ petition is allowed. The fact remains that the petitioner was not offered full opportunity to take part in the trade test for the purposes of inclusion of his name in the fit list for promotion on the post of Head Constable (Trade-Welder). 9. In view of the discussions made herein above, the writ petition is allowed. Since the petitioner was required to take part in the trade test, in terms of the amended provisions of GOP No. 56 of 1993, trade test be conducted for him separately and after passing of the said test, the name of the petitioner be included in the fit list for the year in which the juniors of the petitioner were brought in the fit list for the purposes of promotion on the post of Head Constable (Trade-Welder). In case the petitioner is found fit for such promotion, necessary orders of promotion be issued in favour of the petitioner promoting him on the said post with all consequential benefits, such as pay, allowances and seniority. Let the aforesaid exercise be completed within six months from the date of the order. 10. The writ petition is allowed to the extent indicated hereinabove. However, there shall be no order as to costs. Petition allowed.