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Madhya Pradesh High Court · body

2013 DIGILAW 858 (MP)

Madhumati Joshi v. State of M. P.

2013-07-24

K.K.TRIVEDI

body2013
JUDGMENT K.K. Trivedi, J.:- By this petition under Article 226 of the Constitution of India, the petitioner has called in question the number of orders by which the gradation list was issued to the petitioner, namely, the order dated 12-11-1997, 19-8-1998, 25-9-1999, 9-11-2000 and 20-10-2000, and lastly the order by which the petitioner is called upon to file an appeal against the rejection of her representation. It is contended by the petitioner that she was initially appointed in the year 1979 in the work charged establishment and was subsequently appointed on the post of Lower Division Clerk vide order dated 1-6-1985. The petitioner was confirmed on the said post with effect from 1-4-1993 vide order dated 30-4-1993. A Directorate of Pension and Employees Welfare was started by the State Government. Some persons were needed to be posted in the said directorate. On demand, the petitioner was asked to give her consent for deputation posting in the Directorate of Pension and Employees Welfare. Since such a consent was given by the petitioner, she was posted in the Directorate of Pension and Employees Welfare and was relieved vide letter dated 1-10-1988. In fact, the petitioner never gave consent for her permanent transfer in the Directorate of Pension and Employees Welfare and that is why she was asked to be relieved to be posted on deputation for one year. In the letter of relieving, it was categorically said that the petitioner will get the similar benefits of pay and allowances as she was getting in her parent department. Pursuance to such a letter, the petitioner was relieved on 13-10-1988 and she gave her joining in the Directorate of Pension and Employees Welfare. However, since the lien of the petitioner was not suspended in her parent directorate, the same was to be maintained. When a gradation list was issued in the year 1990, the name of the petitioner was included in the said gradation list at appropriate place at Serial No. 2 of the temporary persons because at that time, the confirmation order was not issued. The fact remains that seniority of the petitioner was to be maintained in her parent department. Subsequently, the respondents issued a gradation list in the year 1997 showing the position of the employees of the Directorate of Small Savings and State Lotteries and the seniority of the petitioner was disturbed. The fact remains that seniority of the petitioner was to be maintained in her parent department. Subsequently, the respondents issued a gradation list in the year 1997 showing the position of the employees of the Directorate of Small Savings and State Lotteries and the seniority of the petitioner was disturbed. Instead of showing her at the appropriate place, she was shown junior to many persons who were earlier shown junior to her in the gradation list of 1990. When the petitioner came to know about such a gradation list, she made a representation, but nothing was communicated to her. Instead of correcting the mistake committed, the same mistake was repeated in the year 1998, 1999 and 2000. When the petitioner lastly submitted the representation, it was informed to her that since she has gone to work in the Directorate of Pension and Employees Welfare and since after closure of the said directorate, she came back in the Directorate of Small Savings and State Lotteries and was absorbed from the date of joining in the said directorate, therefore, she will get the seniority only from the date she came back in the directorate. Ultimately, it was also informed to her that in case she is aggrieved by any decision so taken by the Directorate of Small Savings and State Lotteries, she can file an appeal before the State Government. She made the representation to this effect, but nothing was done, therefore, the writ petition was required to be filed. 2. This Court has entertained, the writ petition, admitted the same on 18-8-2001. The notices were issued to the respondents. It was categorically directed by this Court that any promotion made on the basis of impugned seniority list shall be subject to the final outcome of this writ petition. However, despite grant of opportunities, the return has not been filed by the respondents. When the case was listed on 18-11-2011, this Court directed to list the petition for final hearing. When the matter was listed for final hearing, an attempt was again made to obtain time to file return by the respondents. On 5-1-2012, again the time was allowed for the said purpose, but no return whatsoever has been filed. When the case was listed on 18-11-2011, this Court directed to list the petition for final hearing. When the matter was listed for final hearing, an attempt was again made to obtain time to file return by the respondents. On 5-1-2012, again the time was allowed for the said purpose, but no return whatsoever has been filed. A prayer is again made for grant of time, but looking to such conduct of the respondents, it is not justified to extend any further opportunities to file the return specially keeping in mind the pendency of the present petition in this Court for a long period of 12 years. 3. It is clear from the order passed by the respondents themselves that the petitioner was working as a work charged employee and on 1-6-1985, she was appointed on a substantive vacant post of Lower Division Clerk in the Directorate of Small Savings and State Lotteries. Such an order was issued by a competent authority i.e. the Director of Small Savings and State Lotteries. The petitioner joined on the said post and continued to work. Since a new Directorate of Pension and Employees Welfare was established by the State Government, some correspondence was done by the Director of Pension with the Directorate of Small Savings and State Lotteries asking for providing ministerial employees to work in the new Directorate of Pension and Employees Welfare. From perusal of the memo dated 1-10-1988, it is clear that a proposal of transfer of service was made with the consent of the employee concerned and if the employee was not willing to go on transfer to the new directorate, he/she be posted on deputation in the new directorate, reserving his right available in his parent department. The letter dated 1-10-1988 is relevant which is quoted hereinbelow:- 4. Pursuance to this correspondence, it appears that the petitioner was asked to give her consent for transfer. She was to be relieved for joining in the Directorate of Pension and Employees Welfare on deputation. This relieving was not properly done. There was some mistake in relieving and it appears that the petitioner was relieved to join for appointment in the Directorate of Pension and Employees Welfare as is indicated in the order of relieving dated 13-10-1988. The said order of relieving is reproduced below:-- 5. This relieving was not properly done. There was some mistake in relieving and it appears that the petitioner was relieved to join for appointment in the Directorate of Pension and Employees Welfare as is indicated in the order of relieving dated 13-10-1988. The said order of relieving is reproduced below:-- 5. This particular finding is recorded only because the lien of the petitioner was never suspended in the Directorate of Small Savings and State Lotteries as is reflected in the gradation seniority list showing the position as on 1-4-1990. It was categorically recorded in the said gradation list that the petitioner was on deputation. Had it not been so, such a fact would not have been recorded in the said gradation list. Secondly, there is no rebuttal of the allegations made by the petitioner that her lien was not suspended in the Directorate of Small Savings and State Lotteries. That being so, the petitioner was to remain in the gradation list of Directorate of Small Savings and State Lotteries and was required to be considered for confirmation as per the availability of the vacancies. However, the petitioner has not placed on record any such document to show that any confirmation had taken place in the Directorate of Small Savings and State Lotteries. On the other hand, she has placed an order issued by the Directorate of Pension and Employees Welfare relating to confirmation of petitioner. It is not known as to how such an order could be issued if the petitioner has not substantially been appointed in the Directorate of Pension and Employees Welfare. The respondents have not placed on record any such order of the said directorate which was subsequently abolished in the year 1995. If the said Directorate of Pension and Employees Welfare was abolished, naturally those who have come in the services of the said directorate were to be sent back to the parent department where they were initially appointed and they were to be given the placement in their parent department on the substantive post held by them. This fact was for the first time recorded in the gradation seniority list issued in the year 1997 where the petitioner was shown below many of the persons serving in the Directorate of Small Savings and State Lotteries. This fact was for the first time recorded in the gradation seniority list issued in the year 1997 where the petitioner was shown below many of the persons serving in the Directorate of Small Savings and State Lotteries. For the first time, it was said that the petitioner has become surplus employee of Directorate of Pension and Employees Welfare and was being absorbed in the Directorate of Small Savings and State Lotteries. How such an entry was made in the gradation list, was not explained. How the petitioner would become surplus, if she was on deputation in the Directorate of Pension and Employees Welfare after the closure of the said directorate, has not been stated by the respondents. Only this much is inferred from the subsequent seniority list that the petitioner was being treated as surplus employee of Directorate of Pension and Employees Welfare. 6. From the document placed on record as Annx. P/10, a memo issued by the Directorate of Small Savings and State Lotteries, it appears that the petitioner has made an application for her appointment in the Directorate of Pension and Employees Welfare, therefore, it was not to be treated that the petitioner had continued in the employment of respondent No. 2 any longer. Such a fact is not right as the petitioner was sent on deputation to work in the Directorate of Pension and Employees Welfare as is indicated in the gradation list circulated by the respondent No. 2. That being so, in fact there was no objective decision on the claim made by the petitioner. Had it not been so that the petitioner was on deputation, she would not have taken back in the services of the Directorate of Small Savings and State Lotteries on closure of the Directorate of Pension and Employees Welfare nor her joining would have been accepted on 21-11-1995 if there was no post available to accommodate the petitioner in the said directorate. This being so, the reason assigned to reject the claim of the petitioner is not proper. 7. Normally, if an employee seeks recruitment in another services, he or she has to make an application and the said application is required to be considered, recruitment is required to be done in terms of the Rules made by the State Government. This being so, the reason assigned to reject the claim of the petitioner is not proper. 7. Normally, if an employee seeks recruitment in another services, he or she has to make an application and the said application is required to be considered, recruitment is required to be done in terms of the Rules made by the State Government. If there was no recruitment made by the Directorate of Pension and Employees Welfare only the employees working in other directorate were asked to give their services in the said directorate, it was to be treated that the petitioner was on deputation in the Directorate of Pension and Employees Welfare. She was not to be denied the seniority in her parent department i.e. in the Directorate of Small Savings and State Lotteries. That being so, the rejection of the claim of the petitioner is not sustainable. 8. Accordingly, the writ petition is allowed. The respondents are directed to assign the seniority to the petitioner on the post of Lower Division Clerk in appropriate manner, keeping in mind the initial date of appointment of petitioner in the Directorate of Small Savings and State Lotteries as was made vide order dated 1-6-1985 and to grant all privileges of such seniority to the petitioner including confirmation on the post and consideration of claim for promotion on the next higher post in case it is found that any junior to the petitioner is promoted on the said post. Let the aforesaid exercise be completed within a period of four months from the date of receipt of certified copy of the order passed today. The writ petition is allowed to the extent indicated hereinabove. There shall be no order as to costs.