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Madhya Pradesh High Court · body

2019 DIGILAW 535 (MP)

Pradeep Kumar Tiwari v. State of M. P.

2019-07-24

SANJAY DWIVEDI

body2019
ORDER 1. Heard on the question of admission. 2. By the instant petition, the petitioner is claiming writ of mandamus be issued directing the respondents to issue the order of promotion in his favour to the post of Mining Officer from the date when his juniors were promoted in pursuance to the recommendation made by the DPC met on 20.8.2013. 3. The learned counsel for the petitioner submits that the case of the petitioner was also considered by the DPC, but because of criminal case pending against him the claim of the petitioner was not considered. She further submits that the criminal case was concluded vide order dated 4.3.2016, in which, the petitioner has been acquitted. 4. Per contra, the learned Government Advocate appearing for the respondents/State submits that the petitioner cannot be promoted for the reason that in pending SLP i.e. No. 13954/2016 (State of M.P. v. R.B. Rai), before the Supreme Court, an order of status quo has been passed and that order still exists, therefore, promotion cannot be granted to the petitioner because in pursuance to the said order, all promotion proceedings have been withheld by the State Government. 5. Considering the averments made in paragraph-5.6 of the petition that in pursuance to the representation made by the petitioner, a sealed cover has already been opened and in view of the recommendation of DPC, the case of the petitioner has also been placed for promotion before the Minister of the Department, but because of the interim order of status quo in case of R.B. Rai (supra), no further proceeding was initiated. 6. After considering the contention raised by the learned counsel for the parties and also taking note of the fact that the DPC was convened in the year 2013 and in view of the order issued by the Union of India clarifying that the case of promotion which have been recommended in the DPC convened prior to year 2013, there is no bar of the order of status quo passed by the Supreme Court in case of R.B. Rai (supra) and the same will not come in way. Taking note of that order this Court has decided W.P. No. 13241/2017 (Dhirendra Chaturvedi v. State of M.P. and others) and in paragraph-10 has observed as under : "10. Taking note of that order this Court has decided W.P. No. 13241/2017 (Dhirendra Chaturvedi v. State of M.P. and others) and in paragraph-10 has observed as under : "10. As far as the second aspect that the apex Court has granted status quo order in case of R.B. Rai (supra), order of promotion cannot be issued in favour of the petitioner. The petitioner has placed reliance upon an order passed in W.P. No. 45/2017 (Kushal Singh v. Revenue Department) decided vide order dated 4.10.2017, in which, the High Court after taking note of the order of status quo passed by the Supreme Court in SLP No. 13954/2016 in case of State of M.P. and others v. R.B. Rai, has observed that the said order would not come in the way in a case where issue of reservation is not involved. Here in this case also no issue regarding reservation is involved because the petitioner being a candidate of General Category is claiming promotion. Not only this, but in an advice taken from the Government of India as to whether promotion can be made to the officers of the Government as there is an order of status quo in a pending SLP before the Supreme Court. The clarification was made vide Office Memorandum dated 15th June, 2018 by the Government of India, in which, the State Government was also advised to take necessary action in accordance with the advice given in the said memorandum wherein the Government of India has clarified that there is no bar to issue the order of promotion of the officers asking promotion from unreserved category. It is clarified in the memorandum that at the most the order of promotion may contain a condition that, the same would be subjected to the final decision of the pending SLP before the Supreme Court. It is clarified in the memorandum that at the most the order of promotion may contain a condition that, the same would be subjected to the final decision of the pending SLP before the Supreme Court. The Office Memorandum dated 15th June, 2018 is as follows : "F.No. 36012/11/2016-Estt.(Res-I){Pt-II} Government of India Ministry of Personnel, Public Grievances and Pensions Department of Personnel and Training Establishment (Reservation-I) section ***** North Block, New Delhi Dated June 15, 2018 OFFICE MEMORANDUM Subject: Implementation of interim Orders/directions in Special Leave to Appeal (C) No. 30621/2011 arising out of final judgment and order dated 15.7.2011 in CWP No. 13218/2009 passed by the Hon'ble High Court of Punjab and Haryana and Special Leave to Appeal (C) No. 31288/2017 arising out of Hon'ble Delhi High Court judgment dated 23.8.2017 and other related Court casesregarding **** The Hon'ble Supreme Court vide its order dated 15.11.2007 in SLP (C) No. 28306/2017 has decided to refer to a Constitution Bench to examine whether its earlier decision in M. Nagraj and others v. Union of India and others, requires reconsideration or not, inter alia, on the issue as to whether test of backwardness would, at all, apply in case of SC and ST. 2. The Hon'ble Supreme Court in SLP (C) No. 30621/2011 has passed the following order on 17.5.2018 : "It is directed that the pendency of this Special Leave Petition shall not stand in the way of Union of India taking steps for the purpose of promotion from 'reserved to reserved' and 'unreserved to unreserved' and also in the matter of promotion on merits ……………." 3. Further, in the matter related to SLP (C) No. 31288/2017, connected to Special Leave to Appeal (C) No. 28306/2017, the Hon'ble Supreme Court held as under on 5.6.2018 : "Heard learned counsel for the parties. Learned ASG has referred to order dated 17.5.2018 in SLP (C) No. 30621/2011. It is made clear that the Union of India is not debarred from making promotions in accordance with law, subject to further orders, pending further consideration of the matter. Tag to SLP (C) No. 30621 of 2011." 4. The cadre controlling authorities of Central Government Ministries, Departments and Union Territories are to carry out promotions in accordance with the directions of the Hon'ble Supreme Court mentioned in paragraphs 2 and 3 above based on existing seniority/select lists. 5. Tag to SLP (C) No. 30621 of 2011." 4. The cadre controlling authorities of Central Government Ministries, Departments and Union Territories are to carry out promotions in accordance with the directions of the Hon'ble Supreme Court mentioned in paragraphs 2 and 3 above based on existing seniority/select lists. 5. Every promotion order must clearly mention the stipulation that the promotion shall be subject to further orders which may be passed by the Hon'ble Supreme Court. 6. All Ministries/Departments are requested to bring this to the notice of all concerned for information/ compliance. 7. State Governments are also advised to take necessary action in accordance with the above mentioned orders passed by the Hon'ble Supreme Court. (G. Srinivasan) Deputy Secretary to the Government of India Tel. : 23093074 To: 1. The Secretaries of all Ministries/ Departments of the Government of India. 2. Chief Secretaries of all State Governments. 3. Shri Maninder Singh, Learned Additional Solicitor General of India. 4. Department of Financial Services, New Delhi. 5. Department of Public Enterprises, New Delhi. 6. Railway Board, Ministry of Railways, Rail Bhavan, New Delhi. 7. Supreme Court of India/ Election Commission of India/ Lok Sabha Secretariat/ Rajya Sabha Secretariat/ Cabinet Secretariat/ Central Vigilance Commission/ President's Secretariat/ Vice President's Secretariat/ Prime Minister's Office/ Niti Ayog. 8. Union Public Service Commission/Staff Selection Commission. 9. Ministry of Social Justice and Empowerment, New Delhi. 10. Ministry of Tribal Affairs, New Delhi. 11. National Commission for Scheduled Castes, Lok Nayak Bhawan, New Delhi. 12. National Commission for Scheduled Tribes, Lok Nayak Bhawan, New Delhi. 13. National Commission for Backward Classes, Trikoot-1, Bhikaji Cama Place, R. K. Puram, New Delhi. 14. Office of the Comptroller and Auditor General of India. 15. Information and Facilitation Center, Dopt, North Block, New Delhi. 16. Director, ISTM, Old JNU Campus, Olof Plame Marg, New Delhi 110067. 17. NIC, Dopt - to upload the same on Dopt website. 18. Hindi section for providing the Hindi translation." In view of the above, when the petitioner is otherwise found eligible to be promoted to the post of Additional Director and posts fallen vacant during life time of the panel prepared by the DPC and the representation was made by the petitioner asking his promotion qua availability of vacancies, rejection taking shelter of the order of the status quo in the case of R.B. Rai (supra) does not seem to be proper. The order of status quo has been passed by the apex Court in respect of the fallout of the judgment of the Division Bench of this Court whereby the rules were struck down and pursuant to which ineligible employees were likely to be reverted. The status quo order, therefore, can be considered to avoid such a situation and to revert the ineligible employee who have granted promotion by applying the provisions of the Promotion Rules, 2002, that is basically without following the direction of the apex Court in case of M. Nagraj (supra) as the State Government has not assessed the quantifying data." 7. In view of the above, this petition is also allowed directing the respondents to open the sealed cover and if the recommendation is made in favour of the petitioner, then promotion order may be issued in favour of the petitioner giving him all benefits as have been extended to other similarly situated employees in pursuance to the recommenda-tion made by the DPC convened in the year 2013. 8. Accordingly, the petition filed by the petitioner stands allowed with the aforesaid observations. 9. The aforesaid exercise be completed by the respondent/Authority within a period of two months from the date of submitting the certified copy of this order.