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2013 DIGILAW 847 (MP)

Sitaram Baghele v. State of M. P.

2013-07-23

SUJOY PAUL

body2013
JUDGMENT Sujoy Paul, J. 1. By filing this petition under Article 226 of Constitution of India, the petitioner has prayed for following reliefs:- (1) The impugned order, Annexure P-10 may kindly be quashed and the respondents may kindly be directed to promote the petitioner in view of the orders, Annexure P-1 to P-3 (A-6 to A-8) to the post of Block Extension Educator in the senior pay scale with seniority from the date on which the juniors were promoted and arrears of pay and other consequential benefits as per revised pay scale which he would have got after promotion be directed to be paid with interest; (2) Any other relief which this Hon'ble Court deems fit in the facts and circumstances of the case be also allowed; (3) The cost of the petition may kindly be allowed to the petitioner. The grievance of the petitioner is that the persons whose names find place in the promotion order dated 11.09.1985 are juniors to the petitioner and they have been promoted on the promotional post of Block Extension Educator. Shri S.P. Shrivastava, learned counsel for the petitioner submits that gradation list makes it clear that petitioner is much senior than the persons who are promoted vide Annexure P-10. It is further submitted that in the State level seniority list the petitioner has been shown above the said employees, who have been promoted. 2. The respondents have not chosen to file return to refute the said contention of the petitioner and, therefore, it can safely be concluded that supersession of the petitioner is bad in law. 3. Shri Praveen Newaskar, learned Deputy Government Advocate for the respondents-State has supported the impugned order and submits that on the basis of material available on record, the petitioner has no case. 4. I have heard learned counsel for the parties and perused the record. 5. The relief clause makes it clear that the petitioner has challenged the promotion order dated 11.9.1985, Annexure P/10. By this order various employees were promoted on the post of Block Extension Educator. The petitioner has not chosen to implead any of them as a party respondent. The petition is also filed against the order of promotion dated 11.9.1985 on 13.12.2005. In other words, the petitioner has chosen to challenge his supersession and promotion of juniors after 10 years. Thus, the question is whether such petition can be entertained. 6. The petitioner has not chosen to implead any of them as a party respondent. The petition is also filed against the order of promotion dated 11.9.1985 on 13.12.2005. In other words, the petitioner has chosen to challenge his supersession and promotion of juniors after 10 years. Thus, the question is whether such petition can be entertained. 6. The petitioner has not challenged any vires of the rules or any policy decision of the Government which affects his seniority or promotion. In the event of such challenge, there may be no need to implead the affected parties but where there is no such challenge to policy or rule and challenge is only to the promotion orders of the juniors, the juniors are necessary parties. In other words, if the petitioner succeeds and the impugned order of promotion is set aside, it will have an adverse impact on the persons who were promoted by the said order. This cannot be done without hearing those parties whose rights are sought to be affected. A bizarre argument is advanced stating that the order of promotion of juniors may not be disturbed but a mandamus may be issued to promote the petitioner from a date earlier or from the date juniors were promoted. I am not able to persuade myself with this line of argument. This is a matter of common knowledge that whenever promotions are made, the same are made against certain number of vacant posts. In the event of supersession, those posts are occupied by the junior persons. If that promotion order is not under challenge and the promotion order is not set aside, any mandamus in favour of the petitioner to promote him will tantamount to enhancement of cadre strength. In other words, withstanding the promotion order herein because of which promotional posts are already occupied by the junior promotees, if petitioner is also directed to be promoted, it will have an impact of indirectly directing for creation of a post to accommodate the petitioner. I am afraid, this is beyond the jurisdiction of the writ Court. This is settled in law that the writ Courts normally cannot direct for issuance of promotion order. This view was taken by Supreme Court way back in Brooke Bond India (P) Ltd. vs. Workman, ( AIR 1966 SC 668 ). I am afraid, this is beyond the jurisdiction of the writ Court. This is settled in law that the writ Courts normally cannot direct for issuance of promotion order. This view was taken by Supreme Court way back in Brooke Bond India (P) Ltd. vs. Workman, ( AIR 1966 SC 668 ). The relevant paragraphs reads as under:- Even so after a finding of mala fides or victimisation, it is not the function of a tribunal to consider the merits of various employees itself and then decide whom to promote or whom not to promote. If it finds that promotions have been made which are unjustified on the ground of mala fides or of victimisation, the proper course for it to take is to set aside the promotions and ask the management to consider the cases of superseded employees and decide for itself whom to promote, except of course the persons whose promotion has been set aside by the tribunal. This Court in 2002 (94) FLR 1125 (The Executive Engineer, (ST/RE), Construction Division, Madhya Pradesh Electricity Board vs. Manik Chand and others) followed the ratio of the same. 7. The Apex Court in following judgments opined as under: Ramrao v. All India Backward Class Bank Employees Welfare Assn., (2004) 2 SCC 76 : indisputably, were necessary parties. In their absence, therefore, the writ petition could not have been effectively adjudicated upon. In absence of the "promotees" as parties, therefore, it was not permissible for the High Court to issue the directions by reason of the impugned judgment. Indu Shekhar Singh v. State of U.P., (2006) 8 SCC 129 : There is another aspect of the matter. The appellants herein were not joined as parties in the writ petition filed by the respondents. In their absence, the High Court could not have determined the question of inter se seniority. Union Public Service Commission v. S. Thiagarajan, (2007) 9 SCC 548 : Apart from the above we are also of the opinion that orders of the High Court and the Tribunal are liable to be set aside on the ground that the necessary parties have not been impleaded. Hence, the original application before the Tribunal was liable to be dismissed on this ground alone. Hence, the original application before the Tribunal was liable to be dismissed on this ground alone. Vijay Kumar Kaul v. Union of India, (2012) 7 SCC 610 : From the aforesaid enunciation of law there cannot be any trace of doubt that an affected party has to be impleaded so that the doctrine of audi alteram partem is not put into any hazard. 8. On the basis of aforesaid analysis and judgments of Supreme Court, this petition deserves to be dismissed for non-joinder of necessary parties and on the ground of delay. Resultantly, petition is dismissed. No costs.