Research › Search › Judgment

Madhya Pradesh High Court · body

2013 DIGILAW 913 (MP)

Mithlesh Giri Goswami v. State of M. P.

2013-08-05

K.K.Trivedi

body2013
ORDER 1. The only grievance of the petitioner in this writ petition is against the order dated 11.7.2011 said to be issued cancelling the promotion of the petitioner on the post of Revenue Sub-Inspector. It is contended that the petitioner was initially appointed in the Nagar Panchayat Palera, District Tikamgarh, and was working on the substantive post of Assistant Revenue Inspector. One other person was working as Revenue Sub-Inspector in the said Nagar Panchayat on his promotion on the said post vide order dated 18.10.1985. Said Shri Deendayal Goswami was transferred from the Nagar Panchayat Palera to some other Municipal Council where he was posted as Incharge Chief Municipal Officer. Since the post of Revenue Sub-Inspector was lying vacant, a resolution was passed by the President in Council of Nagar Panchayat Palera and the matter was referred for making promotion against the said post. Pursuance to the said resolution, certain information was asked for, which was sent.Thereafter, a Selection Committee meeting was held, the case of the petitioner was considered and he was promoted on the said post vide order dated 22.4.2008. The said order was issued after passing of the resolution by the President in Council of the Nagar Panchayat Palera. It appears that some complaint was made with respect to the promotion of the petitioner and upon some query, a report was submitted saying that the petitioner was illegally promoted de hors the circular of the State Government, therefore, the direction was given to convene a District Selection Committee meeting again where it was decided to revert back the petitioner on his substantive post. It is contended that all this was done only because some wrong information was submitted before the Legislative Assembly and this being so, the order impugned is bad in law. 2. This Court has entertained the writ petition and has granted an interim protection to the petitioner. Upon service of the notice of the writ petition, the official respondents have filed their return and have contended that on a report submitted by the Deputy Director, Urban Administration and Development, Sagar Division, Sagar, it was found that the promotion of the petitioner was de hors the circular of the State Government dated 9.6.1999. Upon service of the notice of the writ petition, the official respondents have filed their return and have contended that on a report submitted by the Deputy Director, Urban Administration and Development, Sagar Division, Sagar, it was found that the promotion of the petitioner was de hors the circular of the State Government dated 9.6.1999. There were instructions issued by the State Government to take action for cancellation of such illegal orders of promotion and that being so, it was not necessary to grant any opportunity of hearing to the petitioner and order was rightly passed directing cancellation of promotion of petitioner. The proceedings of subsequent District Selection Committee indicates that all the facts were taken into consideration and since it was found that promotion of the petitioner was against the circular of the State Government, rightly it was directed that he should be reverted back. This being so, it is contended that the entire petition being based on misconceived facts is liable to be dismissed. 3. By filing a rejoinder, the petitioner has pointed out that circular issued by the State Government on 9.6.1999 does not contain any condition that even the vacancies, which occurred on account of transfer of a Municipal employee from the Municipal Council to another, cannot be filled in by promotionof any other employee of the very same Municipal Council. It is contended that the circular has been misread by the respondents and a valid order of promotion of the petitioner is illegally interfered with only because of political interference. This being so, it is contended that the order impugned is still bad in law and is liable to be quashed. 4. After hearing learned counsel for the parties at length and perusing the circular dated 9.6.1999, it is clear that there was no such specific direction issued by the competent authority that if a vacancy has occurred on account of transfer of an employee from one place to another, it cannot be filled in by promotion of other employee serving in the very same Municipal Council. In fact, the object of the said circular is that the vacancy so become available on account of transfer of a Municipal employee from one municipality to another is not required to be filled in by direct recruitment as the lien of the transferred employee is always protected against the said vacancy in his original Municipal Council. In fact, the object of the said circular is that the vacancy so become available on account of transfer of a Municipal employee from one municipality to another is not required to be filled in by direct recruitment as the lien of the transferred employee is always protected against the said vacancy in his original Municipal Council. However, the promotion can always be made against such vacancy as the employee promoted on the said post can be sent back to his substantive post in case the transferred employee returns back to the original Municipal Council. This being the reason, the promotions were always made on officiating basis so that working in the particular Municipal Council on account of transfer of one employee from one Municipal Council to any other Municipal Council may not adversely affect. If it is not permitted and no posting is made in place of the transferred employee, the work of the Municipal Council or Nagar Panchayat is bound to be affected. 5. This was the reason, the resolution was passed by the President in Council of Nagar Panchayat Palera, as is clearly indicated in the resolution dated 8.3.2008. It was pointed out to the said council that because single post of Revenue Sub-Inspector had become vacant on account of transfer of the incumbent working on that post to another Municipal Council, entire work of recovery of taxes and other work assigned to the said post were adversely affected. For this reason, the resolution was passed to make promotion of a candidate on the said post. This was rightly referred to the District Selection Committee and the said Committee after getting the reports from the Nagar Panchayat, decided to consider the cases of eligible candidates. The said Committee resolved to select the petitioner and when the recommendations were received by the President in Council of Nagar Panchayat Palera, rightly the resolution was passed and the order of promotion was issued in respect of the petitioner. All these aspects have neither been considered in the report submitted by the Deputy Director Urban Administration and Development, Sagar Division, Sagar, nor these facts have been explained as to why promotion was also bar under the circular of the State Government. The entire circular relates to the direct recruitment on such fortuitous vacancies which occurred on account of transfer of a Municipal employee from one Municipal Council to another. The entire circular relates to the direct recruitment on such fortuitous vacancies which occurred on account of transfer of a Municipal employee from one Municipal Council to another. This being the reason and a specific condition mentioned in para 5 of the circular, it was wrongly construed as if the promotion on the said post was also not permissible. The entire circular relates to the direct recruitment on such fortuitous vacancies which occurred on account of transfer of a Municipal employee from one Municipal Council to another. This being the reason and a specific condition mentioned in para 5 of the circular, it was wrongly construed as if the promotion on the said post was also not permissible. For the convenience, the circular of the State Government dated 9.6.1999 is reproduced for ready reference:- ^^e/; izns’k ‘kklu] uxjh; iz’kklu ,oa fodkl foHkkx ea=ky; Hkksiky] fnukad 9 twu 1999 dzekad 120@60@18&6@99 izfr] leLr eq[; uxjikfydk vf/kdkjh] uxjikfydk@uxjiapk;r e/; izns’k fo”k; % uxjikfydk@uxjiapk;rksa ds deZpkfj;ksa ds LFkkukarfjr inksa ij inksUufr ,oa fu;qfDr ds laca/k esaA 1- ‘kklu ds /;ku esa ;g yk;k x;k gS fd fofHkUu uxjikfydk@uxjiapk;rksa ds deZpkfj;ksa vFkkZr~ uxjikfydk lsok ds lnL;ksa dk LFkkukarj tc muds ¼ewy fudk; ftlesa mudh izFke fu;qfDr p;u ds i’pkr~ gqbZ gS½ ls vU; LFkkuh; fudk; esa fd;k tkrk gS rks ewy fudk; esa tc inksUufr;ka dh tkrh gSa rks ,sls LFkkukarfjr deZpkjh dks inksUufr ds fy, fopkj.k esa ugha fy;k tkrk gSA bldk rdZ ;g fn;k tkrk gS fd ;g deZpkjh vc ml ewy fudk; esa inLFk ugha gSA nwljh vksj tc ,slk LFkkukarfjr deZpkjh u, fudk; esa igqaprk gS rks bl u, LFkkuh; fudk; esa tc inksUufr;ka gksrh gSa rks ml LFkkukarfjr deZpkjh dk uke Hkh inksUufr gsrq fopkj.k esa fy;k tkrk gSA ;g O;oLFkk fu;eksa ds furkar foijhr gSaA bl izfdz;k ds dkj.k ;g ns[kk x;k gS fd dbZ ckj ik= deZpkjh inksUufr;ksa ls oafpr jg tkrs gSaA 2- vr% funsZ’k fn, tkrs gSa fd ftl LFkkuh; fudk; esa uxjikfydk lsok dk dksbZ deZpkjh ewy :i ls fu;qDr fd;k x;k gks mlh fudk; esa mlds laoxZ dh indze lwph esa mldk uke vafdr jgsxk vkSj ;fn ,slk deZpkjh tc ewy fudk; ls LFkkukarfjr gksdj vU; LFkkuh; fudk; esa tkrk gS rks ewy fudk; dh indze lwph ls mldk uke foyksfir ugha fd;k tk,xkA tc Hkh dHkh ewy fudk; esa inksUufr;ka dh tkuk gksrk gks LFkkukarfjr gksdj ckgj x, ,sls deZpkjh dk uke Hkh fopkj.k esa fy;k tk,xk vkSj ;fn og inksUufr ds fy, mi;qDr ik;k tkrk gS rks mls bl rF; ds gksrs gq, Hkh og rRle; ewy fudk; esa inLFk ugha gSA izksQkekZ inksUufr nh tk,xh mls inksUufr ls bl vk/kkj ij oafpr ugha fd;k tk,xk fd mldh lsok,a ewy fudk; esa rRle; miyC/k ugha gSA 3- mijksDr dk LokHkkfod ifj.kke ;g gksxk fd tc u, fudk; esa inksUufr gksxh rks bl LFkkukarj ij vk, gq, deZpkjh dk uke inksUufr gsrq fopkj esa ugha fy;k tk,xk vFkkZr~ bl LFkkukarj ij vk, gq, deZpkjh ds dkj.k fudk; ds ewy deZpkfj;ksa dks inksUufr ij dksbZ foijhr izHkko ugha iMs+xkA 4- vr% funsZf’kr fd;k tkrk gS fd mijksDr fn, x, funsZ’kks ds izdk’k esa LFkkukarfjr deZpkfj;ksa dh inksUufr ds laca/k esa dk;Zokgh dh tk,A 5- ;g Hkh ns[kus esa vk;k gS fd ewy fudk; esa inLFk fdlh deZpkjh dk tc LFkkukarj gks tkrk gS rks fjDr in ds fo:) fudk; )kjk ubZ fu;qfDr;ka ;g ekudj dj nh tkrh fd in fjDr gSA ;g loZFkk vfu;fer gSA LFkkukarj ds dkj.k fjDr gq, in dh iwfrZ ubZ fu;qfDr ls ugha dh tk ldrh D;ksafd LFkkukarfjr deZpkjh dk lafofy;u ewy fudk; esa cuk jgrk gSA vr% ;g /;ku esa j[kk tk, fd bl rjg dh dksbZ fu;qfDr u dh tk, vkSj ;fn bl rjg dh dksbZ fu;qfDr dh tk,xh rks mlds fy, lacaf/kr fudk; ds eq[; uxjikfydk vf/kdkjh dks O;fDrxr :i ls mrjnk;h ekuk tk,xkA ‘kklu ds ikl fjDr inksa dh iwfrZ ds fy, izdj.k Hkstrs le; ;g Li”V mYys[k gksuk pkfg, fd fjDr in ftl ij fu;qfDr dh tkuk gS LFkkukarj ds dkj.k fjDr ugha gqvk gSA vkj-,u- oekZ ¼voj lfpo½ e/; izns’k ‘kklu] uxjh; iz’kklu ,oa fodkl foHkkx i`-dz- ,Q&4@313@99@18&1 Hkksiky] fnukad 9-6-1999 izfrfyfi % 1- lapkyd] uxjh; iz’kklu ,oa fodkl] e/; izns’k] HkksikyA 2- leLr milapkyd] uxjh; iz’kklu ,oa fodkl dh vksj lwpukFkZ ,oa vko’;d dk;Zokgh gsrqA voj lfpo e/; izns’k ‘kklu] uxjh; iz’kklu ,oa fodkl foHkkx** 6. What was specifically mentioned in the circular was ‘Nai Niyukti’ and common meaning of this word would be direct recruitment. Why direct recruitment was restricted, is obvious. In case the person who is transferred, having lien on the post, is re-transferred on the post, a direct recruit cannot be permitted to continue on the said post because the post is to be occupied by the person, who has the lien on the said post. Further, lien of two persons cannot be created on one vacancy. In such circumstances, the direct recruit is required to be removed from the services and, therefore, it was rightly restricted by the State Government that no direct recruitment would be made on such fortuitous vacancies which occurred on account of transfer of a Municipal employee from one Municipal Council to another. However, the promotion will not be treated as direct recruitment or ‘Nai Bharti’. It is the principle of Service Jurisprudence that all promotions are made on officiating temporary basis. Only when an employee is confirmed on the promitonal post, his lien is suspended from the substantive post and shifted to the promotional post. This being the reason, a promotee always retains his lien on his substantive post till he is confirmed on the promotional post. The promotee in such a case would be entitled to work on the promotional post, get the salary of the said post till the original incumbent who has lien on that post is not come back. The moment person having lien on the post is re-transferred, the promotee will have to be reverted back to his substantive post. That way, neither the promotee is required to be removed from the post nor any orders are required to be issued in respect of original holder of the post, who has the lien on that post. This being so, the promotion is always permitted on such fortuitous vacancy and, therefore, no restriction was put in the circular dated 9.6.1999 in respect of promotion on said post. The entire circular is misread and misconstrued by the respondents and they have wrongly resolved to cancel the promotion of the petitioner. 7. In view of the discussions made hereinabove, this petition is allowed. The order dated 11.7.2011 and the resolution passed by the District Selection Committee in this respect are hereby quashed. The entire circular is misread and misconstrued by the respondents and they have wrongly resolved to cancel the promotion of the petitioner. 7. In view of the discussions made hereinabove, this petition is allowed. The order dated 11.7.2011 and the resolution passed by the District Selection Committee in this respect are hereby quashed. The petitioner be allowed to continue on his post till the original holder of the post is sent back to work on the promotional post. However, the order of confirmation of the petitioner on the said post cannot be given a stamp of approval. The petitioner cannot be treated to be confirmed on the promotional post. 8. The writ petition is allowed to the extent indicated hereinabove. However, there shall be no order as to costs. .............