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Madhya Pradesh High Court · body

2022 DIGILAW 1031 (MP)

Krishna Kumar Tiwari v. State of M. P.

2022-08-22

VISHAL DHAGAT

body2022
ORDER 1. Petitioner has filed this writ petition under Article 226 of the Constitution of India calling in question orders dated 23.2.2013 and 10.01.2012. 2. Learned counsel appearing for the petitioner submitted that petitioner was appointed on post of Accountant in Town Improvement Trust, Chhatarpur vide order dated 8.3.1989. Town Improvement Trust merged with Municipal Council, Chhatarpur in 1994 and petitioner continued his service with Municipal Council, Chhatarpur. Petitioner was transferred to Ajaygarh, District-Panna on 9.11.2009 and discharging his work of Chief Municipal Officer, Ajaygarh. It is submitted that petitioner was placed above respondents No.3 and 4 in the seniority list published on 10.1.2012. Respondents No.3 and 4 were promoted vide order dated 23.2.2013 on post of CMO but petitioner who was senior to said respondents was not promoted. Petitioner preferred a representation before authority but same was not considered and decided. Petitioner was senior to private respondents in year 1997 to 2007 however, all of sudden in year 2010-2011, respondent No.3 was shown senior to petitioner. Gradation list was not communicated, therefore, same was not challenged by petitioner. 3. Learned counsel appearing for respondents submitted that gradation list of 1997, 2000, 2005 was not final gradation list but was only provisional. Final gradation list was published in year 2011. In said list, private respondent was senior to petitioner. It is further submitted that as per circular of State Government dated 31.5.2008, for the purpose of seniority surplus employee was not entitled to get benefit of past services. Such employees will be treated to be new entrance in service as per rule 12 (3)(c) of the Madhya Pradesh Civil Services (General Conditions of Services) Rules, 1961. As per circular and order of Urban Administration and Development Department dated 19.5.2009, employees of dissolved institute will be absorbed in Municipal Council and their seniority and fixation of pay shall be done in accordance with rule 12 of Rule, 1961. Proceedings of DPC were not defective and has considered each and every aspects. In view of same, there is no merits in the writ petition filed by the petitioner and same deserves to be dismissed. 4. Learned counsel appearing for the petitioner submitted that circular relied upon by the respondents is not applicable in case of petitioner and said circulars are in respect of public undertakings and not in respect of municipal services. In view of same, there is no merits in the writ petition filed by the petitioner and same deserves to be dismissed. 4. Learned counsel appearing for the petitioner submitted that circular relied upon by the respondents is not applicable in case of petitioner and said circulars are in respect of public undertakings and not in respect of municipal services. It is submitted that petitioner will be governed by consensual decision taken in meeting dated 9.11.1998 which includes representatives of State Government. As per said decision, if post and salary in institution to be dissolved and post in newly form institution is same on which absorption is to be made then benefit of seniority shall be given from date of appointment. In said circumstances, prayer is made for allowing the writ petition. 5. Heard the counsel for the petitioner as well as respondents. 6. Circular dated 31.5.2008 is in respect of decision taken by General Administrative Department in memorandum dated 11.2.2008 regarding absorption of employees of public undertaking in public services. Absorption of petitioner has taken place in year 1994. Circular dated 31.5.2008 is applicable for absorption of employees in respect of which decision has been taken by memorandum dated 11.2.2008. Memorandum dated 19.5.2009 is in respect of determination of inter-se seniority between erstwhile Town Improvement Trust and SADA and Municipal Services. According to said circular, determination of seniority, absorption and pay fixation shall be done in accordance with memorandum dated 31.5.2008 and rule 12 of the Rule, 1961. 7. On going through the minutes of meeting, it is found that consensus was arrived at regarding determination of inter-se seniority on 9.11.1998. From document filed along with rejoinder i.e. minute of meeting dated 9.11.1998, it is not clear that whether any circular, notification or order was made pursuant to decision taken on 9.11.1998. Minute of meeting dated 9.11.1998 only shows that consensus was arrived at but thereafter whether any notification, circular or order was issued pursuant to said consensual decision is not clear. On the other hand, circular filed by respondents shows that circulars dated 31.5.2008 and 19.5.2009 lay down that inter-se seniority between Town Improvement Trust (TIT), Special Area Development Authority (SADA) and urban body will be governed by the said circulars in accordance with rule 12 (3)(c) of Rule, 1961. 8. On the other hand, circular filed by respondents shows that circulars dated 31.5.2008 and 19.5.2009 lay down that inter-se seniority between Town Improvement Trust (TIT), Special Area Development Authority (SADA) and urban body will be governed by the said circulars in accordance with rule 12 (3)(c) of Rule, 1961. 8. Rule 12(2)(c) of the Madhya Pradesh Civil Services (General Conditions of Services) Rules, 1961 is reproduced as under:- 12. Seniority. - The seniority of the members of a service or a distinct branch or group of posts of that service shall be determined in accordance with the following principles, viz.,- (2) Seniority of Transferees. - (a) The relative seniority of persons appointed by transfer from one department to another department of the State Government shall be determined in accordance with the order of their selection for such transfer. (b) Where a person is appointed by transfer in accordance with the provisions in the Recruitment Rules, providing for such transfer in the event of non availability of suitable candidates by direct recruitment or promotion, such transferee shall be grouped with direct recruits or promotees, as the case may be, and he shall be ranked below all direct recruits or promotees, as the case may be, selected on the same occasion. (c) In the case of a person who is initially taken on deputation and absorbed later (i.e. where the relevant recruitment rules provide for "transfer on deputation/transfer") his seniority in the grade in which he is absorbed will normally be counted from the date of absorption. If he has however been holding already (on the date or absorption) the same or equivalent grade on regular basis, in his parent department, such regular service in the grade shall also be taken into account in fixing his seniority, subject to the condition that he will be given seniority, from the date he has been holding the post on deputation or the date from which he has been appointed on a regular basis to the same or equivalent grade in his present department whichever is later. Explanation. - The fixation of seniority of a transferee in accordance with the above rule will not however affect any regular promotions to the next higher grade made prior to the date of such absorption. In other words it will be operative only in filling up of vacancies in higher grade taking place after such absorption." 9. Explanation. - The fixation of seniority of a transferee in accordance with the above rule will not however affect any regular promotions to the next higher grade made prior to the date of such absorption. In other words it will be operative only in filling up of vacancies in higher grade taking place after such absorption." 9. Rule 12 is formulated for determination of the seniority of members of a service or a distinct branch or group of posts of that service. According to circulars dated 31.5.2008 and 19.5.2009 inter-se seniority of Town Improvement Trust (TIT), Special Area Development Authority (SADA) and urban body shall be governed as per rule 12 of Rule, 1961. Rule 12(2)(c) provides seniority in grade in which a servant is absorbed will normally be counted from date of absorption. However, if such persons is holding same or post of equivalent grade on regular basis in TIT or SADA then such regular service in grade shall also be taken into account in fixing his seniority subject to condition that he will be given seniority from the date he was holding the post on deputation or on the date he has been appointment on regular basis (absorbed) on same or equivalent grade. 10. In view of rule 12(2)(C), Departmental Promotion Committee ought to have taken into consideration the seniority of petitioner if he is working on same grade and same pay in TIT. As per proceedings of DPC which has been filed by the respondents, DPC met on 26.12.2012 and as per minutes, Office Superintendent Class-C, Revenue Inspector and Revenue Sub-inspector, Mukhya Lipik (chief clerk), Accountant and Assistant Grade-II were the post which were under zone of consideration for promotion to post of CMO, Class-C. It has been stated that petitioner was working as an Accountant, therefore, he was under zone of consideration. Petitioner has preferred a representation but same has not been considered. 11. In view of same, writ petition is disposed of with direction to respondents to conduct a review DPC for consideration of case of petitioner for promotion to the post of CMO, Class-C in accordance with rule 12(2)(c) of the Madhya Pradesh Civil Services (General Conditions of Services) Rules, 1961. 12. Respondents shall conduct aforesaid exercise within period of six months from date of passing of order. 13. With aforesaid direction, writ petition is disposed of.