Research › Search › Judgment

Madhya Pradesh High Court · body

2013 DIGILAW 733 (MP)

Satish Chandra Shrivastava v. State of M. P.

2013-07-01

Sujoy Paul

body2013
ORDER 1. In this writ petition filed under Article 226 of the Constitution, the petitioners have prayed for a command for the respondents to consider their cases of promotion on the post of Assistant Engineer against 11 vacant posts available prior to 13.7.1998. A further prayer is made that the said consideration must be based on the rules which were applicable before 1998. 2. The case of the petitioners is that they were senior and were eligible for consideration for promotion. However, the respondents did not convene the DPC for a considerable long time and in the meantime, certain employees were merged in the present department and they became senior to the petitioners. A DPC was convened at a later point of time and the petitioners’ right of consideration was taken away. By taking this Court to various documents and pleadings, Shri D.K. Katare, learned counsel for the petitioners submits that the posts were lying vacant at the relevant time and, therefore, the respondents ought to have convened DPC to consider the case of the petitioners. He relied on (1983) 3 SCC 284 (Y.V. Rangaiah and others v. J. Sreenivasa Rao and others) followed in 2003 (1) MPHT 52 (Kamlesh Kumar Kaurav v. Chambal Kshetriya Gramin Bank and others) to submit that old vacancies are to be filled up by the old rules. 3. Smt. Nidhi Patankar, learned Government Advocate for the State and Shri S.P. Jain, learned counsel for the Board, submit that the posts were not lying vacant. Even if the posts were lying vacant, there was no compulsion for the employer to fill up the posts immediately. It is based on the need of the employer to fill up the posts. The employees have a right of consideration and not a right of promotion under the law. 4. I have heard learned counsel for the parties and perused the record. 5. It is gathered that this Court on 18.9.2006 heard the matter to some length. The contention of the petitioners was recorded that a DPC was held in the year 1998 to consider the cases of Sub-Engineers for promotion on the post of Assistant Engineers. 4. I have heard learned counsel for the parties and perused the record. 5. It is gathered that this Court on 18.9.2006 heard the matter to some length. The contention of the petitioners was recorded that a DPC was held in the year 1998 to consider the cases of Sub-Engineers for promotion on the post of Assistant Engineers. Since it was not clear whether DPC was convened after 1995 till 1999, a direction was given to the Board to state categorically whether any DPC for consideration of cases of Sub-Engineers for promotion on the post of Assistant Engineers has been held after 1995 till 1999. In turn, the respondent No. 2 filed an affidavit of Dr. M.P.Patel, Deputy Director of the Board, who stated that from 1996 till 1999, no meting of DPC was convened for considering the cases of incumbents. A meeting of DPC was held on 10.10.2005 to consider the eligible incumbents. On the basis of 2005 DPC, promotion order dated 13.10.2005 was issued whereby certain seniors to the petitioners were promoted. Respondents have also denied that at the relevant time, posts were lying vacant. 6. Madhya Pradesh Rajya Krishi Vipdan Board Seva Vishyak Viniyam, 1988 (hereinafter called as “Regulation”) makes it clear that promotions can be made as per the requirement of the employer. Normally, the DPC meeting may take place in one year. Thus, there is no statutory mandate which makes it obligatory on the part of the employer to convene the DPC every year. The stand of the petitioners is that posts were lying vacant whereas the employer has taken a contrary stand. 7. In the opinion of this Court, the basic question is whether employer was obliged to convene DPC from 1998 itself ? 8. In the opinion of this Court, this question is no more res integra. The apex Court in (1977) 1 SCC 606 (Union of India and others v. Majji Jangamayya and others) opined as under:- “No employee has any right to have a vacancy in the higher post filled as soon as the vacancy occurs. Government has the right to keep the vacancy unfilled as long as it chooses.” 9. In (1987) 4 SCC 566 (K.Madhavan and another vs Union of India and others) the apex Court opined that an employee becomes eligible for certain post, but he cannot claim appointment to such post as a matter of right. 10. Government has the right to keep the vacancy unfilled as long as it chooses.” 9. In (1987) 4 SCC 566 (K.Madhavan and another vs Union of India and others) the apex Court opined that an employee becomes eligible for certain post, but he cannot claim appointment to such post as a matter of right. 10. This Court in Anil Singh and another vs. State of MP and others, reported in 2007(1) MPLJ 319, opined as under in para 12 :- “12. It may be seen in the present case that learned counsel for the respondents relied upon the judgment passed by the apex Court in AIR 1977 SC 757 , Union of India and others v. Majji Jangamayya and others and submitted that it is for the competent authority to decide as to when the vacancies are to be filled up by way of promotion. A candidate has no right to be promoted on a higher post as and when vacancies arises. The State Government has a right to keep the vacancies unfilled as long as he chose. On the basis of the judgment passed by the apex Court in Majji Jangamayya (supra), it is thus apparent that merely because vacancies have arisen, the State Government cannot be compelled to fill up the said vacancies as soon as vacancies occurred. The State Government has to exercise its discretion as to when the vacancies as such have to be filled up. The ratio of the judgment is squarely applicable in the present case and it is held that rule of holding the DPC every year to regulate promotion to the post of Head Constables (GD) is not a mandatory and it depends upon various circumstances and the rule as such does not stipulate any consequences of not following the same i.e. not filling up the vacancies every year. Therefore, the rule as such is not mandatory. Thus, even though the State Government has not proceeded to fill up the vacancies of Head Constables (GD) as soon as it has arisen by holding the annual DPC yet no fault can be found of the State Government merely because the persons those who applied have already crossed their age of 40 years.” 11. Thus, even though the State Government has not proceeded to fill up the vacancies of Head Constables (GD) as soon as it has arisen by holding the annual DPC yet no fault can be found of the State Government merely because the persons those who applied have already crossed their age of 40 years.” 11. A bare perusal of the aforesaid legal position makes it clear that even if the posts were lying vacant and the petitioners were eligible, it was not mandatory for the employer to fill up those posts at that point of time. Accordingly, no fault can be found in the action of the employer in not convening the DPC in 1998 and filling up the posts in 2005 by way of promotion. No mandamus in the said backdrop can be issued for filling up the posts by holding a retrospective DPC. 12. In the light of aforesaid legal position, I find no substance in the petition. Petition is accordingly dismissed. No costs.