HIGH COURT OF MADHYA PRADESH BENCH AT GWALIOR

1 W.P. No.64/2014
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
JUSTICE SUJOY PAUL.
Writ Petition No.64/2014
Ram Sewak Shakya
vs.
State of M.P. & Ors.
------------------------------------------------------------------------------------------Shri B.P. Singh, Advocate for the petitioner.
Ms. Nidhi Patankar, Government Advocate for the
respondents/State.
------------------------------------------------------------------------------------------ORDER
(27/11/2014)
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 20.05.2013, and to issue the
appointment order on the post of Sub-Engineer (Civil) w.e.f.
31.05.2013, 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 25.09.1991. 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 26.02.1995
(Annexure
P-1).
The
petitioner
filed
W.P.No.643/2010
seeking difference of wages from the date of classification
i.e., 26.02.1995. This court by order dated 10.05.2011,
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
2 W.P. No.64/2014
the respondents by filing Writ Appeal No.16/2012 which was
dismissed on 13.01.2012. The respondents then filed S.L.P.
(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
03.12.2012
shows
that
the
department
treated
the
petitioner as permanent Time Keeper w.e.f. 26.02.1995. By
order dated 10.12.2012 (Page 28), the petitioner's case was
recommended for consideration. Another recommendation
was made on 15.01.2013 (Annexure P-6). An experience
certificate dated 31th December, 2012 was issued certifying
that the petitioner is working since 25.09.1991 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 17.05.2013. 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
17.05.2013. At this stage, the petitioner informed the
3 W.P. No.64/2014
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 31.05.2013. In turn, the Government
filed I.A.No.4 before the Apex Court which was taken up on
14.08.2013. 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 14.08.2013 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.
4 W.P. No.64/2014
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
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tk,axsA
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. 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
5 W.P. No.64/2014
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
13.02.2013 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 31.05.2013. 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. 26.02.1995. 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 14.08.2013 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 17.05.2013, 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
6 W.P. No.64/2014
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 & 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. 31.05.2013 with all
consequential benefits. No costs.
(ra)
(Sujoy Paul)
Judge