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2024 DIGILAW 500 (CHH)

Poornima Shrivastava W/o C. K. Shrivastava v. State of Chhattisgarh

2024-07-12

RAKESH MOHAN PANDEY

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ORDER : 1. The petitioners have preferred this petition seeking the following reliefs: “(i) This Hon'ble Court may kindly be pleased to issue an appropriate writ directing the respondents to produce all the relevant records pertaining to the case of petitioners, if the Hon'ble Court may so desire. (ii) This Hon'ble Court may kindly be pleased to issue an appropriate writ quashing the order dated August 9, 2011 (Annexure-P-1); order of the MIC, Chirmiri dated 30/01/2012 (Annexure-P-2); order dated 31/03/2012 (Annexure-P-3) and order dated 12/06/2012 (Annexure-P- 4). (iii) This Hon'ble Court may kindly be pleased to issue an appropriate writ directing the respondents to allow the pay scale as per the recommendation of 6th Pay Commission and direct the payment of the same along with all the increments and consequential benefits from the date of their promotion i.e. June, 2008. (iv) Issue any other order or orders, writ or writs, direction or directions as this Hon'ble court may deem fit in the facts and circumstances of the case in favor of the petitioners, in the interest of justice. (v) Cost of the petition may be allowed.” 2. The facts of the present case are that at the relevant time, the petitioners were posted under the Municipal Corporation, Rajnandgaon. Their services were governed by the Municipal Corporation Act, 1956 and the Rules made there under i.e. the Chhattisgarh Municipal Corporation (Appointment and Conditions of Service of Officers and Servants) Rules, 2007 (for short ‘Rules 2007’). Petitioner No. 2-C.K. Shrivastava was initially appointed to the post of Revenue Inspector and promoted to the post of Property Tax Officer vide order dated 19.06.2008 whereas, petitioner No. 1-Mrs. Poornima Shrivastava who was holding the post of Property Tax Officer, was promoted to the post of Estate Officer on the same date. The separate orders were passed regarding their promotion. The petitioners were promoted by the Departmental Promotion Committee and the meeting was held on 30.04.2008 and 20.05.2008, respectively. The decision of the Departmental Promotional Committee (DPC) was affirmed by the resolution of the Mayor-in-Council on 03.05.2008 and 03.06.2008, respectively. The order of promotion was sent to the State Government for approval vide order dated 18.07.2008. The petitioners were promoted by the Departmental Promotion Committee and the meeting was held on 30.04.2008 and 20.05.2008, respectively. The decision of the Departmental Promotional Committee (DPC) was affirmed by the resolution of the Mayor-in-Council on 03.05.2008 and 03.06.2008, respectively. The order of promotion was sent to the State Government for approval vide order dated 18.07.2008. The State Government vide order dated 09.08.2011 declined to approve the promotion orders of the petitioners and thereafter, the benefit of the 6th pay commission was also denied vide orders dated 31.03.2012 and 12.06.2012 by the Commissioner of Municipal Corporation, Rajnandgaon and Chirmiri, respectively. The petitioners have challenged all four orders by filing this petition. 3. Learned counsel appearing for the petitioners argued that though the petitioners were promoted to the post of Property Tax Officer and Estate Officer, respectively, by the Competent Authority, they have again been reverted to the post of Revenue Inspector and Property Tax Officer, respectively, without affording any opportunity of hearing and that too after a lapse of five years. He further argued that the decision taken by respondent No. 1 is contrary to Rules 4 & 10 of the Rules, 2007. He also argued that the members of the DPC include one member from the State Government, therefore, there was no requirement to refer the matter to the State Government for approval. He further contended that the decision of the State and the Commissioner are violative of Articles 14 & 16 of the Constitution of India. 4. Learned counsel for the petitioners has placed reliance on the judgment passed by the Hon’ble Supreme Court in the matter of Bhagwan Shukla S/o Sarabjit Shukla vs. Union of India and Others, (1994) 6 SCC 154 where it is held that the punishment of reduction of basic pay has civil consequences, therefore, a show cause ought to have been afforded to such delinquent employees. 5. On the other hand, the learned counsel for the State would oppose the submissions made by counsel for the petitioners. He submitted that the orders passed vide Annexures - P/3 & P/4 are consequential or pursuant to the order passed by the State of Chhattisgarh whereby the State Government declined to approve the recommendation of promotion to the petitioners. He further submitted that it is not a case of reversion. He submitted that the orders passed vide Annexures - P/3 & P/4 are consequential or pursuant to the order passed by the State of Chhattisgarh whereby the State Government declined to approve the recommendation of promotion to the petitioners. He further submitted that it is not a case of reversion. He also submitted that though the names of the petitioners were considered for promotion by the Departmental Promotional Committee and were referred to the State Government for approval, in the absence of approval from the State Government the petitioners cannot take a plea that they were promoted. He also submitted that no right accrued in favour of the petitioners in the absence of a specific order passed by the State Government. He further argued that the petitioners were aware of the fact that the recommendation made by DPC and resolution passed by the Mayor-in-Council has been referred to the State Government, therefore, the allegations made by the petitioners in the present petition are misconceived. 6. Heard counsel appearing for the parties and perused the documents present on the record. 7. Admittedly, the petitioners were holding the post of Revenue Inspector and Property Tax Officer, respectively. The Departmental Promotional Committee proposed their names for promotion to the post of Property Tax Officer and Estate Officer vide its meeting dated 19.06.2008. The Mayor-in-Council also passed a resolution in favour of the petitioners and the matter was referred to the State Government for approval on 18.07.2008. The petitioners were fully aware of the fact that the recommendation of the Departmental Promotion Committee and the decision of the Mayor-in-Council had been placed before the State Government for approval but they were under the impression that they had been promoted, though no specific order was issued by the State Government in this regard. Also, mentioning the designation of the petitioner as Property Tax Officer and Estate Officer in the official letter would not confer any right in favour of the petitioners in the absence of any specific order. 8. Rule 10 of the Rules, 2007 deals with Promotion which reads as under: “10. Promotion: (1) Subject to the provisions of Rule 4, the Committee specified in Schedule IV shall select candidates for departmental promotion on the posts as shown in column (2) of Scheduled III. 8. Rule 10 of the Rules, 2007 deals with Promotion which reads as under: “10. Promotion: (1) Subject to the provisions of Rule 4, the Committee specified in Schedule IV shall select candidates for departmental promotion on the posts as shown in column (2) of Scheduled III. (2) When a post is to be filled by promotion fall vacant and in the opinion of the appointing authority the filling up the vacant post is necessary in the interest of the Corporation, then the Commissioner, shall prepare the seniority list of Officers/Employees shown in column (3) of Schedule III, their character rolls, the details of award/punishment given to such Officers/Employees and submit before the Committee specified in Schedule IV. (3) Subject to the provisions of sub-rule (4), the Committee shall consider the cases of all persons, who on the 1st January of the year has completed such number of years of service (whether officiating or substantive) as specified in column (4) of Scheduled III on the posts specified in column (3) of Schedule III from which promotion is to be made and are within the zone of consideration in accordance with the provisions of sub-rule (4): Provided that no junior person shall be given preference over his senior merely on the ground of having completed prescribed number of years service. (4) (a) The selection of candidates eligible for promotion shall be made on the basis of merit-cum-seniority in respect of class I officers and seniority subject to fitness in respect of Class II, III and IV Officers/Employees. (b) The reservation for the posts of Scheduled Castes, Scheduled Tribes and Other Backward Classes and zone of consideration shall be in accordance with the provisions of rules made or instructions issued in this behalf by the State Government from time to time for the Government Servants. (5) The Committee shall prepare a list of such person who fulfill the conditions prescribed in sub-rule (3) and to whom the committee considers to be suitable for promotion to the service. The list shall be sufficient to cover the anticipated vacancies on account of retirement and promotion during the course of one year from the date of preparation of select list. (6) The names of persons included in the list shall be arranged in order of seniority on the post as specified in column (3) of Schedule III. The list shall be sufficient to cover the anticipated vacancies on account of retirement and promotion during the course of one year from the date of preparation of select list. (6) The names of persons included in the list shall be arranged in order of seniority on the post as specified in column (3) of Schedule III. (7) The Committee shall submit the select list to the appointing authority within one week from the date of meeting of the Commission. (8) Appointment by promotion shall be made by the appointing authority in the order in which their names appear in the select list: Provided that if the appointing authority is not agreed with any name in the list then such name may be removed from the list after giving sufficient and clear reasons in writing.” 9. Section 58 of the Municipal Corporation Act, 1956 (for short ‘the Act 1956’) deals with Appointment and Conditions of Service of Corporation Officers and Servants. Section 58(1) of the Act, 1956, reads as under: “58 (1) Subject to the rules made by the State Government in respect of the Set-up. Strength, Recruitment, Appointment, Pay-scales, Allowances and other conditions of service of officers and servants of the Corporation, the Corporation shall appoint such officers and servants as may be necessary for the efficient performance of the functions of the Corporation: Provided that: (i) the power of appointing any person on a municipal post which carries a maximum scale of pay as the State Government may, from time to time, by an order in writing specify, shall vest in the Mayor-in-Council or the Commissioner. (ii) any appointment made within his power by the Commissioner shall be reported for information to the Mayor-in-Council. (iii) every appointment to be made by the Mayor-in-Council shall be subject to the prior confirmation for the State Government. The decision of the State Government in this behalf shall be final.” 10. On a bare reading of the aforesaid provisions, it is apparent that in case of promotion, if the appointing authority does not agree with any name in the list then such name may be removed from the list after giving sufficient and clear reasons in writing. 11. The decision of the State Government in this behalf shall be final.” 10. On a bare reading of the aforesaid provisions, it is apparent that in case of promotion, if the appointing authority does not agree with any name in the list then such name may be removed from the list after giving sufficient and clear reasons in writing. 11. With regard to approval of the State Government, Section 58(1) (iii) of the Act, 1956 specifically says that every appointment to be made by the Mayor-in-Council shall be subject to the prior confirmation of the State Government and the decision of the State Government in this behalf shall be final. 12. The judgment Bhagwan Shukla (supra) cited by learned counsel for the petitioners is of no help because it is not a case of reduction of salary. It is a case where after the passing of the resolution of promotion in favour of the petitioners, the names of the petitioners were referred to the State Government for confirmation but the State Government has not conferred the power to the Municipal Corporation to promote the officers of pay-scale more than Rs. 5,000-9,000/-. Thus, the State Government has assigned sufficient reason while declining to approve the recommendations. 13. Taking into consideration the above-stated facts, in the opinion of this Court, no case is made out for interference. 14. Accordingly, this petition fails and is hereby dismissed. No costs.