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2013 DIGILAW 684 (MP)

Ramesh Yadav v. State of M. P.

2013-06-20

P.K.JAISWAL, S.R.WAGHMARE

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JUDGMENT : S.R. Waghmare, J.- By this Writ Appeal filed under Section 2 of M.P. Uchcha Nyayalaya (Khand Nyay Ko Appeal) Adhiniyam, 2005, appellant Ramesh Yadav has challenged the judgment of the learned Single Judge of this Court passed in Writ Petition No. 2393/2001 dismissing the petition. 2. Briefly stated the facts of the case in a nutshell are that the appellant was initially appointed on the post of Assistant Librarian in the year 1992 in the office of Indore Municipal Corporation. Thereafter being satisfied with his service record the Corporation passed a resolution dated 11/3/1987 to designate the appellant as a Chief Manager and revise his pay scale. The Corporation however, did not take any action on the resolution and the appellant was constrained to file a Writ Petition bearing No. 946/1990 before this Court for fixing his pay scale as well as for providing him the post of Chief Manager. The Writ Petition was disposed off with a direction to fix the salary and emoluments as per the notification by treating him to be in the pay scale equivalent to the post of Inspector. However, being superseded by one Subhash Rathore and Ramakant Pandey, who were working on the post of Assistant Managers, the appellant was constrained to file another Writ Petition bearing No. 2393/2001 and by the impugned judgment the learned Single Judge of this Court dismissed the Writ Petition and hence the present Writ Appeal. 3. Counsel for the appellant has vehemently urged the fact that it is clear that the petitioner was initially appointed as Assistant Librarian with effect from 11.7.1972. The respondent Indore Municipal Corporation passed a resolution dated 1/7/1999 that the appellant/petitioner be given the designation as Chief Manager, but it was not done and thereafter only in pursuance to the direction of this High Court in W.P.946/1990 the petitioner was given the designation of Chief General Manager and the pay scale of the aforesaid post of Rs.740-1180 with effect from 11.3.1987. Counsel contended that it was an admitted fact that the appellant was never promoted as Assistant Sub Inspector or thereafter as Inspector from the post of Chief Manager. Counsel contended that it was an admitted fact that the appellant was never promoted as Assistant Sub Inspector or thereafter as Inspector from the post of Chief Manager. Further Counsel submitted that in the Indore Municipal Corporation the service rules of the employees were introduced for the first time w.e.f. 30/3/1992 and named as Municipal Corporation Indore Employees Service Recruitment Rules 1992 and it was apparent from the same that the post of Chief Manager is equal to Bill Collector, Nakedar, Telephone Attendant and Record Keeper. And although in the aforesaid rules there was a provision for promotion to these posts to post of Sub Inspector (non-technical) and thereafter Inspector the further channel of promotion to the post of Sub-Inspector was denied to the petitioner as Chief Manager. Counsel candidly admittedly that the petitioner was given the pay scale of Inspector without his being promoted to the post of Sub Inspector or thereafter as Inspector. 4. Counsel further contended that the Rules of 1992 have further been replaced by the Recruitment rules in the year of 2001 named as M.P. Municipal Corporation (Officers and the Employees) Terms and Conditions rules 2001 and in the aforesaid rules, there is no provision for promotion from the post of Chief Manager Class-III to Class II. Counsel therefore, urged that the career of the appellant cannot be gagged by merely offering him enhanced salary. The next promotional post was admittedly that of the Assistant Officer Class II. And considering the fact that vide Annexure P/8 the resolution dated 1/7/1999 the respondent Corporation had categorically stated that there was no avenue of promotion left for the Chief Manager after being granted the revised pay scales. It was directed by Corporation vide Annexure P/8 that proper legal opinion be sought from the Government regarding promotion to be given to the petitioner after his designation as the Chief Manager and the State Government as well as this Court had directed to the respondent Municipal Corporation to consider Annexure A/9 the recommendation letter by the Commissioner Municipal Corporation to consider the appellant/petitioner for promotion. The State Government vide Annexure P/11 (to the petition) dated 13/4/2000 had directed that the Corporation should consider the post of Chief Manager equivalent to the post of Inspector and despite representation the present appellant/petitioner has not been considered by the respondent No.2 Indore Municipal Corporation. The State Government vide Annexure P/11 (to the petition) dated 13/4/2000 had directed that the Corporation should consider the post of Chief Manager equivalent to the post of Inspector and despite representation the present appellant/petitioner has not been considered by the respondent No.2 Indore Municipal Corporation. Counsel vehemently urged the fact that the learned Single Judge has disregarded Annexure P/11 as well as P/8 and prayed that the said impugned judgment be set aside and respondent/Corporation be directed to consider the appellant/petitioner for promotion to the post of Assistant Officer according to the eligibility of the appellant and be granted all the consequential benefits. 5. Per contra, Counsel for the respondents/State has vehemently urged the fact that according to the Rules, there is no provision for promoting the Chief Manager to the post of Assistant Officer either in the concerned Rules of 1992 or in the Rules of 2001. And in the circumstance the learned Single Judge had properly observed that granting of pay scale equivalent to that of the post of Sub Inspector to Inspector would not automatically entitle the appellant/petitioner for the post of Assistant Officer Class- II. The learned Single Judge had rightly observed that the petitioner had never been given the post of Sub Inspector or Inspector till date and in the circumstances no interference is called for in the impugned judgment. Counsel prayed that the appeal was without merit and the same be dismissed. 6. On considering the above submissions and on perusal of the impugned judgment, we are of the considered opinion that the appeal requires to be allowed primarily on the ground that after putting in so many years of service, the appellant cannot be left without a remedy since no provision has been made in the Rules for promoting a Chief Manager to the next promotional post of Assistant Officer in Class-II. However, we also find that the learned Single Judge had lost sight of the fact that the State Government itself vide letter dated 13/4/2000 by Avar Sachiv, General Administration Department, Bhopal (Annexure P/11) directed that the post of Chief Manager is to be considered equivalent to the post of Inspector and the new Rules would be applicable by considering the same. Then in the circumstances we do not find any reason for the respondent Municipal Corporation to deviate from the stand taken by the State Government. Then in the circumstances we do not find any reason for the respondent Municipal Corporation to deviate from the stand taken by the State Government. In this light, we find that the contentions put forth by the Counsel for the appellant are correct, valid and based on cogent reason. Hence, the present Writ Appeal is allowed and the impugned order is set aside. Consequently, the respondent Indore Municipal Corporation is directed to consider the representation of the appellant in the light of Annexure P/8 and P/11 to the W.P. 2393/2011 and the Rules of the Corporation for promotion to the post of Assistant Officer with all consequential benefits. The entire exercise be completed within a period of two months of receipt of copy of this order. 7. The appeal is, therefore, allowed to the extent herein above indicated. No order as to costs.