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2013 DIGILAW 883 (MP)

Madhukant Tiwari v. State of M. P.

2013-07-31

K.K.TRIVEDI

body2013
JUDGMENT K.K. Trivedi, J.:- This order will also govern the disposal of W.P. No. 8516/2009 and W.P. No. 18109/2011. Since the petitions are directed against the same cause though by different petitioners, they were heard together and are being decided by this common order. For the purposes of this order, facts as have been mentioned in Writ Petition No. 5588/2009 are taken. 2. The petitioners who were working as Deputy Superintendent of Jail have approached this Court, ventilating their grievance with respect to the selection and appointment of respondents No. 3 to 7 on the post of Superintendent District Jail, contending inter alia that such a promotion was de hors the Rules i.e. M.P. Jail Services (Gazetted) Recruitment and Promotion Rules, 2002 (hereinafter referred to as Rules for brevity). It is contended that since amendment was made in the Rules only on 25-10-2008, the said amendment would be prospective in nature and, accordingly, all the vacancies are to be filled in by such a method as prescribed. It is contended that since the Departmental Promotion Committee (hereinafter referred to as the DPC for brevity) meeting was convened after making of the amendment in the Rules, vacancies were, to be filled in only by means as indicated in the amended provisions of the Rules and not otherwise. Since the DPC meeting was held on 25-6-2009, there was no question of considering the claim of persons like respondents No. to 7 for promotion on the post of Superintendent District Jail as they were not to be given the said benefit. By bifurcating the quota of promotion since limited posts were available, only such number of persons who were within the quota of said cadre of Senior Probation and Welfare Officer, were to be promoted. However, de hors the Rules, since the respondents No. 3 to 7 have been promoted acceding their quota, the order of promotion of respondents No. 3 to 7 is bad in law. However, de hors the Rules, since the respondents No. 3 to 7 have been promoted acceding their quota, the order of promotion of respondents No. 3 to 7 is bad in law. It is contended that since the quota which was earlier prescribed, was 20% for Senior Probation and Welfare Officer to be promoted on the post of Superintendent District Jail, which now by way of amendment has been reduced to 10% only such number of persons could have been promoted, but since senior persons like petitioners have been ignored and the persons who were not to be promoted, have been promoted, the order of promotion issued in respect of respondents No. 3 to 7, is bad in law. 3. Elaborating the contentions, the petitioners have contended that there were only 22 posts of Superintendent District Jail including the post of Superintendent Juvenile Institution Narsinghpur and Principal Jail Training. Out of these 22 posts, 40% posts were to be filled in by direct recruitment as per Schedule-II of the Rules. 60% posts were to be filled in by promotion, out of which 40% posts were to be filled in by promotion of Jailor and 20% posts were to be filled in by Senior Probation and Welfare Officer. By a Gazette Notification dated 25-10-2008, an amendment was made in the Rules. The entries made with respect to total sanctioned posts was changed. Total 23 posts were said to be sanctioned including the Superintendent District Jail, Principal Jail Training Centre, Administrative Officer Regional Jail Management and Research Centre. The bifurcation of the quota of promotion of 60% posts was amended and 50% posts were to be filled in by promotion of Jailor cadre officer and 10% posts were to be filled in from the cadre of Senior Probation and Welfare Officer. The persons like petitioner were appointed long back in the Jailor cadre. They were working on the post of Deputy Superintendent of Jail and were eligible to be considered for promotion in terms of Schedule-IV of the Rules. However, instead of considering the claim of petitioners when-the DPC meeting was held in the year 2009, the Senior Probation and Welfare Officer were promoted by the impugned order. This being so, challenging such action, the writ petition is required to be filed. However, instead of considering the claim of petitioners when-the DPC meeting was held in the year 2009, the Senior Probation and Welfare Officer were promoted by the impugned order. This being so, challenging such action, the writ petition is required to be filed. It is pointed out that on 3-9-2005, persons like respondents No. 3 to 7 were promoted from the post of Probation and Welfare Officer to the post of Senior Probation and Welfare Officer and just within no time they were made to work against the post of Superintendent District Jail vide order dated 17-11-2005. This is how the persons like respondents No. 3 to 7 were favoured superseding the claim of persons like petitioners who were senior enough to be promoted on the post of Superintendent District Jail. Thus, it is contended that since the entire action was bad in law when a representation was made, nothing was done, ultimately, the writ petition was required to be filed. 4. Upon service of the notices of the writ petition, the respondents No. 1 and, 2 have filed their return. It is contended by the respondents that the respondents No. 3 to 7 belonging to Probation and Welfare Officer were rightly promoted on the post of Senior Probation and Welfare Officer. The vacancy occurred in their quota for filling in the post of Superintendent District Jail. Looking to the amendment made in the Rules, since the vacancies have occurred prior to coming into force of the amended provision of the Rules, the same was considered and filled in, in accordance to the Rules as stood before the amendment. This being so, the right seniority was taken into consideration and promotion of the persons like respondents No. 3 to 7 was done. One of the candidate was considered and promoted in accordance to the provisions made in the Rules and rest of the persons have been promoted in their quota, therefore, there is no wrong committed by the respondents in promoting such officers. The petition being devoid of any substance, deserves to be dismissed. 5. Respondents No. 4, 5 and 7 have filed their independent return and have contended that the vacancies which occurred prior to coming into force of the amendment made in the Rules, were to be filled in by the procedure and manner indicated in the un-amended rules. The petition being devoid of any substance, deserves to be dismissed. 5. Respondents No. 4, 5 and 7 have filed their independent return and have contended that the vacancies which occurred prior to coming into force of the amendment made in the Rules, were to be filled in by the procedure and manner indicated in the un-amended rules. It is contended that in the past the DPC meetings were convened for consideration of the cases for promotion of the Deputy Superintendent of Jail for promotion on the post of Superintendent of District Jail against the 40% quota of the total sanctioned post. 9 posts were to be filled in by promotion from amongst the Jailor cadre. 8 posts were already filled in by promotion from the Jailor cadre. As far as the 20% posts which were to be filled in by promotion of Senior Probation and Welfare Officer, the same remained unfilled as none of the candidates were found fit for such promotion. The respondents No. 3 to 7 have not completed the requisite years of service for such promotion and, therefore, the same remained unfilled. These posts were carried forward as quota was not to be violated in any manner. Later on, when the DPC meeting was again convened, these carried forwarded vacancies kept for the Senior Probation and Welfare Officer, were taken into consideration. One more vacancy became available in the channel of promotion and, therefore, for the said posts, a DPC meeting was held in the year 2009. Since the vacancies were occurred prior to coming into force the amendment made in the Rules, the same were to be filled in by following the un-amended rules. That procedure was adopted and cases of those who were eligible to be considered for promotion were considered and resultantly orders were issued. That being so, it is contended that the petitioners would not be entitled to grant of any benefit in this petition. Subsequently, as per the vacancy available for the Jailor cadre, cases of petitioners were considered and since now all of them have been promoted, it is contended that the petition being devoid of any substance is liable to be dismissed. 6. Heard learned counsel for the parties at length and perused the record. 7. Undisputedly, the amendment was made in the Rules on 25-10-2008. 6. Heard learned counsel for the parties at length and perused the record. 7. Undisputedly, the amendment was made in the Rules on 25-10-2008. It is not made clear by the petitioners in their petition that all the posts of Superintendent in District Jail were already filled in from amongst the cadre of Senior Probation and Welfare Officer within their quota. Nothing has been indicated by the petitioners whether vacancies were available for promotion of Deputy Superintendent or Jailor cadre officers only for promotion on the post of Superintendent District Jail. If the petitioners say that the quota Rule was violated, in fact, it was their responsibility to indicate as to how much vacancies were available for filling up the posts of Superintendent District Jail from amongst the Jailor cadre and how many vacancies were available for promotion of Senior Probation and Welfare Officer. No distribution of such post is indicated by the petitioners in their entire petition nor any information in this respect has been obtained by the petitioners. Only this much is said that 6 Senior Probation and Welfare Officers have been promoted by the recommendation of the DPC dated 26-5-2009. The petitioners have also not filed rejoinder to the statements of fact as have been made by the respondents No. 4, 5 and 7 to deny that this was not the situation and that imaginary vacancies have been pointed out by the said respondents in their return. This being the necessary requirement of making a claim, unless the same is demonstrated in appropriate manner, it cannot be said that there was violation of quota Rules. Now adverting to the statements made by the respondents-State, it is contended by them that 40% vacancies of the posts of Superintendent District Jail were to be filled in by direct recruitment before amendment in the Rules, rest of the vacancies were to be filled in by promotion out of which 40% vacancies were diverted to be filled in by promoting Deputy Superintendent Jail and 20% to be filled in by way of promotion of Senior Probation and Welfare Officer. The respondents No. 1 and 2 have also not demonstrated that there were vacancies available for promotion of Senior Probation and Welfare Officer only. The respondents No. 1 and 2 have also not demonstrated that there were vacancies available for promotion of Senior Probation and Welfare Officer only. However, they have said that since the seniority was taken with effect from 1-1-2008, unamended rules were made applicable in the matter of consideration of promotion though the DPC meeting was held in the year 2009. 8. The only assistance is obtained by this Court from the statements of fact made by respondents No. 4, 5 and 7 in their return. Uncontroverted statements made by respondents No. 4, 5 and 7 in their return is that as per the unamended rules, 9 posts of Superintendent District Jail were to be filled in from amongst the cadre of Jailor to which the petitioners belong. Out of 9, 8 posts were filled in and only one vacancy was available. Thereafter, the DPC had taken into consideration the remaining vacancies and it was found that such vacancies were to be filled in by promotion of Senior Probation and Welfare Officer. However, suitable officers in sufficient number were not available, therefore, the vacancies were carried forward for promotion in the next year. The Rule contemplates that the DPC meeting is to be convened every year. As upto the year 2007, the suitable candidates were not available, though the persons like respondents No. 3 to 7 were made to work on officiating basis on the post of Senior Probation and Welfare Officer, but still they have not completed the requisite years of service and, thus, were not considered for promotion. When the DPC meeting was held in the year 2009, a decision was taken to consider the cases of those who have completed the requisite years of service as on 1-1-2008. The vacancies were against the quota of Senior Probation and Welfare Officer and, therefore, claims of such persons were considered. This being so, only the respondents No. 3 to 7 were to be considered and they have rightly been considered and promoted. Since now their quota is fulfilled, when the vacancies occurred on the post of Superintendent District Jail, the required number of officers from Jailor cadre were considered and gradually promoted on the aforesaid post in subsequent year. This being so, only the respondents No. 3 to 7 were to be considered and they have rightly been considered and promoted. Since now their quota is fulfilled, when the vacancies occurred on the post of Superintendent District Jail, the required number of officers from Jailor cadre were considered and gradually promoted on the aforesaid post in subsequent year. It is seen that such a statement has not been controverted by the petitioners and, as such, it cannot be said that there was any violation of the provisions of quota Rule or same was acceded or violated by the official respondents while promoting the respondents No. 3 to 7. 9. The Apex Court in the case of Y.V. Rangaiah and others v. J. Sreenivasa Rao and others, AIR 1983 SC 852 has dealt with the quota Rule, its application and the manner of filling the posts which are diverted in particular quota. It is specifically held by the Apex Court that the vacancy which occurred prior to the amended Rules would be governed by old Rules and not by the amended Rules. Only the vacancy which occurred after the amendment in the Rules are to be filled in by amended Rules. This being the prospective effect of amendment, it has to be held that if vacancies were there for promotion of Senior Probation and Welfare Officer, which could not be filled in before the amendment made in the Rules, the said vacancies were to be filled in only and only by means of unamended rules and not otherwise. Yet another situation is examined by the Apex Court in the Case of State of Rajasthan v. R. Dayal and others, (1997) 10 SCC 419 wherein the Apex Court has again reiterated that vacancies occurred prior to amendment of the Rules, would be governed by the original rules and not by the amended rules. It is further held that as a necessary corollary, the vacancy that arose subsequent to the amendment of the Rules are required to be filled in, in accordance with law existing on the date when the vacancy arose. 10. Now the question remains whether there were sufficient number of vacancies available to promote persons like respondents No. 3 to 7. It is further held that as a necessary corollary, the vacancy that arose subsequent to the amendment of the Rules are required to be filled in, in accordance with law existing on the date when the vacancy arose. 10. Now the question remains whether there were sufficient number of vacancies available to promote persons like respondents No. 3 to 7. As has been pointed out by the respondents No. 4, 5 and 7 i.e. upto the year 2004, no post of Superintendent District Jail were filled in by promotion of Senior Probation and Welfare Officer. Again in the year 2006, the said vacancies could not be filled in and were carried forward. In 2007, one additional post of Jail Superintendent was created and, therefore, the number of sanctioned posts increased from 22 to 23. As on 1-1-2008, there were 5 backlog posts of Superintendent District Jail available for promotion from amongst the Senior Probation and Welfare Officer. This being so, the DPC took a decision to convene its meeting for the purposes of consideration of cases of those who were working only on the post of Senior Probation and Welfare Officer for promotion and after due consideration respondents were promoted vide orders dated 20-7-2008, 18-10-2008 and 1-6-2010. The only requirement as indicated in the Rules was fulfilled and that being so, it cannot be said that the respondents No. 3 to 7 were illegally promoted superseding the claim of senior persons like petitioners. The respondents No. 3 to 7 have completed the requisite years of service by counting the services from the calender years and that being so there is no error in promoting respondents No. 3 to 7 by the impugned order. 11. From the discussions made hereinabove, there is no case made out to grant any relief to the petitioners. The petitions fail and are hereby dismissed. However, there shall be no order as to costs. Petitions dismissed.