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Madhya Pradesh High Court · body

2014 DIGILAW 1547 (MP)

Ram Sewak Shakya v. State of M. P.

2014-11-27

SUJOY PAUL

body2014
ORDER 1. This petition filed under Article 226 of the Constitution of India seeks a direction to the respondents to declare the result of the petitioner of the Limited Departmental Examination (LDE), held on 20.5.2013, and to issue the appointment order on the post of Sub-Engineer (Civil) w.e.f. 31.5.2013, the date when other similarly situated persons were appointed. 2. Shri B.P. Singh, learned counsel for the petitioner submits that the petitioner was initially appointed as a daily wager on 25.9.1991. He worked as a pump driver. The said post was re-designated as time keeper. The petitioner was classified as permanent employee on the post of Time Keeper by order dated 27.11.2004 but he was not given pay scale on the permanent post of Time Keeper. The classification order was made effective from 26.2.1995 (Annexure P-1). The petitioner filed W.P.No.643/2010 seeking difference of wages from the date of classification i.e., 26.2.1995. This Court by order dated 10.5.2011, Annexure P-2; decided the said petition and directed that the petitioner shall get the benefit of classification as permanent employee from the date of classification order and not for the earlier period. This order was challenged by the respondents by filing Writ Appeal No.16/2012 which was dismissed on 13.1.2012. The respondents then filed SLP (C) No (s).23983/2012, challenging the aforesaid orders of this Court. In the meantime, by gazette notification dated 24.11.2011 (Annexure P-3), the department amended the recruitment Rules of 1976. The petitioner treating himself as eligible candidate submitted his candidature for the post of Sub-Engineer (Civil). The petitioner's application was forwarded by the respondent No.5. The document dated 3.12.2012 shows that the department treated the petitioner as permanent Time Keeper w.e.f. 26.2.1995. By order dated 10.12.2012 (Page 28), the petitioner's case was recommended for consideration. Another recommendation was made on 15.1.2013 (Annexure P-6). An experience certificate dated 31th December, 2012 was issued certifying that the petitioner is working since 25.9.1991 and he has experience of 21 years. 3. In the meantime, the aforesaid SLP was listed before the Supreme Court. The Supreme Court passed an interim order on 17.5.2013. This order reads as under :- “Heard Ms. Vibha Datta Makhija, learned counsel for the petitioner. She has stated that the respondent is eligible to be considered to appear in the Limited Departmental Examination for the purpose of promotion. In the meantime, the aforesaid SLP was listed before the Supreme Court. The Supreme Court passed an interim order on 17.5.2013. This order reads as under :- “Heard Ms. Vibha Datta Makhija, learned counsel for the petitioner. She has stated that the respondent is eligible to be considered to appear in the Limited Departmental Examination for the purpose of promotion. After hearing learned counsel for the parties, we direct that the respondent may be permitted to appear in the Limited Departmental Examination whenever it is held. However, the result shall be subject to the outcome of the special leave petition. I.A. is disposed of accordingly.” (Emphasis supplied) 4. Thereafter, the petitioner was permitted to appear in the Limited Departmental Examination. The petitioner, in turn, appeared in the examination but his result was not declared in obedience of apex Court order dated 17.5.2013. At this stage, the petitioner informed the department that he is ready to forgo the financial benefits/difference of wages and therefore the benefit of promotion and seniority be given to him. The department wrote a letter to the standing counsel of Government of Madhya Pradesh on 31.5.2013. In turn, the Government filed I.A.No.4 before the apex Court which was taken up on 14.8.2013. On the said date, the apex Court passed following order :- “The exemption from filing O.T. is allowed. I.A.No.4 – In this application, it has been stated that the respondent has given up his claim for higher salary provided he is given the promotion and seniority. This request has been accepted by the petitioners. In view of the above, learned counsel for the petitioners submits that the special leave petition be disposed of as having become infructuous. The special leave petition is disposed of as such. (Emphasis supplied) 5. The grievance of the petitioner is that despite the aforesaid order of Supreme Court, the result of the petitioner has not been declared. 6. Ms. Nidhi Patankar, learned Government Advocate relied on various paragraph of the return. It is submitted that a wrong communication was made by the then Executive Engineer (P.H.E.) to the standing counsel and resultantly, order dated 14.8.2013 was passed by the Supreme Court. It is further mentioned that petitioner never completed 10 years of service in the department which is minimum eligibility condition for the purpose of appearing in the said departmental examination. It is submitted that a wrong communication was made by the then Executive Engineer (P.H.E.) to the standing counsel and resultantly, order dated 14.8.2013 was passed by the Supreme Court. It is further mentioned that petitioner never completed 10 years of service in the department which is minimum eligibility condition for the purpose of appearing in the said departmental examination. The reliance is placed on the service book Annexure R-1. In addition, it is submitted that the petitioner has not completed 10 years from the date he acquired the qualification of diploma in Civil Engineering. 7. No other point is pressed by the learned counsel for the parties. 8. I have heard the learned counsel for the parties and perused the record. 9. Before dealing with the rival contention advanced at the bar, I deem it proper to re-produce the relevant portion of Schedule II of the Recruitment Rules which reads as under :- vuqlwph & nks ¼fu;e& 6 ¼2½ nsf[k,½ foHkkx lsok dk inksa dh Hkjs tkus okys inksa dh izfr'kr foHkkxh; p;u vfHk;qfDr;ksa dk uke in uke la[;k lfefr lh/kh Hkjrh lsok ds vU; lsok }kjk fu;e lnL;ksa ls 6¼1½¼d½ dks O;fDr;ksa inksUufr ds }kjk vLFkk;h fu;e 6 LFkkukarj.k ¼1½¼[k½ }kjk 1 2 3 4 5 6 7 8 yksd mi;a=h 974 90 izfr’kr 1- eq[; vfHk;ark *1 mi;a=h ¼flfoy½ ds 5 LokLF; flfoy izfr’kr 1 v/;{k izfr'kr in vkfVZfQlj ;kaf=dh izfr’kr 2- v/kh{k.k ;a=h mi&vkfVZfQlj rFkk foHkkx 2 ¼:ikadu½ losZ;j vkSj fu;fer lnL; LFkkiuk esa dk;Zjr 3- v/kh{k.k ;a=h deZpkfj;ksa tks flfoy ¼iz 'kk-½lnL; bathfu;fjax esa mikf/k@3 4- eq[; iz'kklfud o"khZ; fMIyksek rFkk mDr vf/kdkjh & inksa ij 10 o"kZ dk lnL; &lfpo dk;kZuqHko j[krs gSa dh inksUufr }kjk Hkjs tk,axsA *2 mi;a=h ds 5 izfr'kr in vuqjs[kd@lgk;d ekufp=dkj rFkk vU; rduhdh in ij dk;Zjr deZpkfj;ksa ftuds ikl flfoy bathfu;fjax es rhu o"khZ;@ikVZ Vkbe fMIyksek ,oa in ij U;wure 10 o"kZ dk dk;kZuqHko gks] dh lhfer ijh{kk vk;ksftr dj Hkjs tk,axsA 10. Shri B.P. Singh, learned counsel for the petitioner submits that petitioner is eligible against the vacancy mentioned in column 8 (2). He submitted that petitioner is entitled for consideration against five percent post for which any employee of technical post having ten years experience can be considered. 11. In the opinion of this Court, a plain reading of said eligible condition shows that against five percent posts, tracer, Asstt. He submitted that petitioner is entitled for consideration against five percent post for which any employee of technical post having ten years experience can be considered. 11. In the opinion of this Court, a plain reading of said eligible condition shows that against five percent posts, tracer, Asstt. Draft Man and other employees working on technical posts who are having diploma in Civil Engineering and ten years experience can be considered. I am unable to read the rule in the manner suggested by the learned Government Advocate. Rules no where prescribe that ten years experience should be after acquiring the qualification of diploma. Apart from this, the document dated 13.2.2013 shows that the department has considered S/Shri Raj Kishore Dohre, Vishal Raj Mehra, Ramakant Patel and Shamin Ahmed. Shri Raj Kishore Dohre acquired qualification of Diploma in March 2012. Despite that, he was held to be eligible and was considered and promoted by order dated 31.5.2013. Thus, it is clear that the petitioner was subjected to a discriminatory and step motherly treatment. Apart from this, even the service book of the petitioner Annexure R-1 shows that he was classified as permanent Time Keeper w.e.f. 26.2.1995. Thus, it is crystal clear that the petitioner has completed ten years of service and was having qualification of diploma in Civil Engineer. The respondents have erred in not treating him as eligible. 12. The order dated 14.8.2013 shows that the apex Court has accepted the contention of the petitioner/State Government that the respondent/present petitioner has given up his claim for higher salary provided he is given promotion and seniority. In no uncertain terms, the State has made a statement before the Supreme Court that “this request has been accepted by the petitioners”. The petition was accordingly disposed of by the Supreme Court. Similarly, on 17.5.2013, the State Government made a statement before apex Court that present petitioner is eligible to appear in LDE. 13. In the opinion of this Court, the respondents are bound by their own statement/stand made before the highest Court of the country. The petitioner who is eligible cannot be deprived from the fruits of consideration. It is unfortunate that despite very clear order of the Supreme Court, the respondents have taken a different stand in the return. The said stand, on merits also is incorrect and runs contrary to the eligibility condition prescribed in the recruitment rules. 14. The petitioner who is eligible cannot be deprived from the fruits of consideration. It is unfortunate that despite very clear order of the Supreme Court, the respondents have taken a different stand in the return. The said stand, on merits also is incorrect and runs contrary to the eligibility condition prescribed in the recruitment rules. 14. This is settled in law that right of consideration for promotion is not only statutory right, it is a fundamental right flowing from Articles 14 and 16 of the Constitution of India. The respondents by not declaring the result of the petitioner have infringed the said fundamental right of the petitioner. 15. Resultantly, this petition is allowed. The respondents are directed to declare the result of the petitioner for the post of Sub-Engineer (Civil) within three weeks. If the petitioner is selected for appointment, he be given appointment with his batch-mates w.e.f. 31.5.2013 with all consequential benefits. No costs. B. P. Singh for petitioner; Ms. Nidhi Patankar, Government Advocate for respondents/State.