Ashok Kumar Chouksey and Others vs State of M.P. and Others

K.K. Trivedi, J.—By this writ petition the petitioners, who are all working as Laboratory Attendant, have come before this Court ventilating their grievances with respect to the order dated 23rd August, 2004, by which their claim for upgradation as Laboratory Technician and Laboratory Assistant has been rejected. It is contended by the petitioners that all the petitioners are identically placed to those persons, who have filed a writ petition before this Court, which was subsequently transferred to the Tribunal and was registered as T.A. No. 1237/1988 (Nand Kishore & others Vs. State of M.P. & others). It is contended by the petitioners that their claim is identically placed, the relief was already granted by the Tribunal, which was extended to the persons like petitioners herein as the SLP filed before the Apex Court was rejected. When the claim was made by the petitioners that since the issue has already been put at rest, similar benefit be granted to the persons like petitioners, the order impugned was issued saying that the petitioners are not identically placed and, therefore, are not entitled to grant of similar benefit and their claims have been rejected. Therefore, they are required to approach this Court by way of filing present writ petition. It is contended that though the claim of the petitioners was considered in the light of the law laid-down by the Tribunal and in some of the original applications, which were filed claiming the similar benefit and an order was prepared to grant the benefit of promotion to the petitioners with retrospective effect but since this order was not implemented, representation made by the petitioners was rejected, they were required to approach this Court by way of filing this writ petition. In brief, the claim made by the petitioners is that there are statutory provisions made for recruitment in the non-executive posts. Such recruitment rules are known as Madhya Pradesh Non-Gazetted Class-III Services (Collegiate Branch) Recruitment & Promotion Rules, 1974 (herein after referred to as ''Rules''). Earlier there were sanctioned posts of Laboratory Assistant, which were to be filled in only be direct recruitment. Subsequently, the amendment in the rules was made and it was prescribed that 50% posts of Laboratory Assistant were to be filled in by promotion and 50% by direct recruitment. The Laboratory Attendants having the qualification were entitled to be considered for promotion on putting in 5 years service. A further amendment in the rules was made sometime in the year 1991 and it was said that the Laboratory Attendants having qualification for appointment on the post of Laboratory Technician only would be promoted. The claim was made in the Tribunal that such prescription of the qualification was only prospective as the amendment was prospective and it was not retrospective. Since there was a quota prescribed for promotion of Laboratory Attendants, the persons who were working in Class-IV services on the post of Laboratory Attendant, should have been promoted as Laboratory Assistant. It will not be out of place to mention here that later on nomenclature of the post of Laboratory Assistant was changed to Laboratory Technician. The Tribunal reached to the conclusion that if some of the persons were promoted in between when there was no prescription of such qualification, even when they were having no such qualification, the persons before the Tribunal were also entitled to the similar benefit. The petitioners also contended that they were also appointed in the similar manner prior to the coming into force of the amendment made in the year 1991 and, therefore, their service conditions would remain the same as were available on the date when they were recruited. They will also be entitled to grant of benefit of promotion on the post of Laboratory Technician on completion of requisite years of service. This consideration was done but instead of issuing the orders, though vacancies were there, the representation of the petitioners was rejected and as such the order impugned is bad in law.

The respondents have come with the stand that such a claim made by the petitioners is wholly misconceived. According to the respondents, since the petitioners were having no qualification, as is necessary, they cannot be said to be identically placed. It is contended that when the vacancies became available, the recruitment rules were already amended and in terms of the amendment made in the rules, the petitioners were to be considered. Nothing is to be granted to the petitioners violating the statutory service rules. Thus, it is contended that the persons like petitioners are not entitled to the relief claimed and their petition is liable to be dismissed.

Heard learned Counsel for the parties at length and perused the record.

The well settled position of law is that in the service jurisprudence, equality is to be granted in terms of the law laid-down by the Courts of law. It is not in dispute that the issue relating to grant of promotion was the subject matter before the M.P. State Administrative Tribunal and the Tribunal has passed the order in the case of Nand Kishore & others (supra). The stand taken in the said return was identical to whatever stated in the return filed before this Court in the writ petition. After careful reading of the rules, the Tribunal has come to the definite finding that the persons like petitioners were qualified to be given the benefit of promotion. Relevant findings recorded by the Tribunal are required to be reproduced for proper appreciation

We have perused the documents filed by both parties. When the applicants were recruited no recruitment rules were in existence. However, they are now governed by M.P. Non-gazetted Class-III (Collegiate Branch) Recruitment and Promotions Rules, 1974 and M.P. Class IV Service (Collegiate Branch) Recruitment and Promotion Rules, 1977. It is clear that after these rules came into force employees working substantively in Class-III and IV posts were absorbed in their respective cadres. Any modifications of Rules prescribing higher qualifications would be effective prospectively and did not effect those recruited earlier to the date of enforcement of rules and had become members of service already. Thus the orders of 1996 after these rules came into force did not permit promoting a class of Lab Attendants to higher post on the basis of qualification which did not affect their work. This order is not according to Rules nor as per recommendations of expert body, and is thus an executive order by which applicants have been discriminated in an arbitrary fashion in violation of Art. 14 and 16 of the Constitution and therefore not sustainable legally. The objection of Respondents about limitation has no merit. The applicants have challenged the impugned order on the grounds of denial of equal opportunity and violation of Art. 14 and 16 of the Constitution. In addition the respondents have issued orders in 1986 (Annexure-D) by which matriculates prior to 27.12.76 were given advantage and therefore there is no question of application being barred by limitation.

This order of the Tribunal was duly affirmed by the Apex Court by dismissing the SLP on 23.07.1993. Immediately thereafter the claim was made by the persons like petitioners, who were appointed in similar manner before the amendment in the rules. It is to be seen that the benefit of the order passed in the case of Nand Kishore & others (supra) was extended by the State Government vide order dated 16.12.1994 in respect of some of the persons. However, why this benefit was not extended to the persons like petitioners is not clear. After considering the law laid-down by the Tribunal, again similar benefit was extended. This being so, persons who were given the similar benefit, were not to be treated as a class. In respect of the persons like petitioners when original application was filed immediately after decision in the case of Nand Kishore & others (supra), the Tribunal did not pass the similar orders, on the other hand the petition remained pending before the Tribunal till it was closed and ultimately the said petition of the petitioners came on transfer to this Court where it was registered as W.P. No. 11381/2003. It will not be out of place to mention here that the original application filed by the petitioners was numbered as O.A. No. 1056/1997. The said petition of the, petitioners was disposed of by the order passed by this Court on 08.12.2003 in the following manner.:

The petitioners, five in number, were appointed as Laboratory Attendants in between 1988 to 1990. Their ''claim is for promotional post, namely, Lab. Technician. It is submitted by Mr. Verma, learned counsel for the petitioners that the case of the petitioners is squarely covered by the decision'' rendered in the case of Nand Kishore & 26 others vs. State of M.P. & others (T.A. No. 1237/88) passed ''by the Tribunal. It is further contended by him that the State Government has accepted the judgment and issued an order promoting certain persons on 16.12.1994 and there is no distinction between the persons who have been conferred the benefit and the present petitioners.

It is submitted by Mr. Verma that whatever rules may be applicable, the petitioners would be eligible in view of the decision of the Tribunal rendered in the case of Satish Mariya vs. State of M.P. & others (O.A. No. 188/93). It is also put forth by Mr. Verma that certain persons who were appointed after the petitioners have been given the benefit in view of the order passed by the Tribunal in the case of Phoolchand Thakur and others vs. The State of M.P. & others (O.A. No. 532/95).

Mr. Rahul Jam, learned counsel for the State has submitted that the whole thing has to be scrutinized and without scrutiny this Court cannot pass an order extending the benefit to the petitioners. As certain facts are to be gone into, I am inclined to direct the petitioners to submit a representation to the respondent No. 1, Secretary, Higher Education annexing the necessary documents which would include the decision rendered by the Tribunal vide Annexures A-7, A-12 and A-13 within a period of two months from the date of receipt of the order passed today and the respondent No. 1 shall decide the matter by giving cogent and germane reasons on the anvil of the judgments passed by the Tribunal from time to time. The aforesaid exercise shall be completed within a period of three months from the date of receipt of the representation filed by the petitioners. This Court hopes and trusts that the respondent No. 1 shall scrutinise every facet and pass a reasoned order so that grievance of the petitioners shall stand mitigated and they would be given the benefit if it is lawfully due to them.

With the aforesaid directions, writ petition stands disposed of. There shall be no order as to costs.

There was nothing left to be adjudicated by the respondents as the claim of identically placed persons was already decided by the Tribunal, duly affirmed by the Apex Court and, therefore, similar benefit was required to be extended to the petitioners. In detail the representation was made by the petitioners and they have described each and every claim in the said representation, which has been placed on record as Annexure P-7. A careful perusal of this document will indicate that not only parity was indicated, it was also pointed out who were appointed when and within what time they were granted the benefit of promotion. Even this much was pointed out that some of those persons were appointed much after appointment of petitioners and thus junior to them. When these facts were placed before the Commissioner of the Higher Education, he directed that the order should be issued in respect of promotion of the petitioners. The order of promotion was prepared but could not be issued only because the order impugned was passed by the Director of Higher Education, Madhya Pradesh, Bhopal. This being so, it is not open to the respondents to say that the petitioners were not identically placed and were not entitled to grant of similar benefit.

The Apex Court in the case of State of Karnataka and Others Vs. C. Lalitha, has very categorically held that the equal treatment is to be extended in the case of similarly situated persons and has laid-down the principle in this respect in paragraphs 29 and 30 of the, report, which are reproduced thus:

Service jurisprudence evolved by this Court from time to time postulates that all persons similarly situated should be treated similarly. Only because one persons has approached the court that would not mean that persons similarly situated should be treated differently. It is furthermore well settled that the question of seniority should be governed by the rules. It may be true that this Court took notice of the subsequent events, namely, that in the meantime she had also been promoted as Assistant Commissioner which was a Category I post but the direction to create a supernumerary post to adjust her must be held to have been issued only with a view to accommodate her therein as otherwise she might have been reverted and not for the purpose of conferring a benefit to which she was not otherwise entitled to.

It is furthermore not in dispute that the correct position as regards her ranking amongst the successful candidates had not been brought to the notice of this Court and if it had been so done, this Court would have found that she was entitled only to the post of Assistant Controller of Accounts.

There is no doubt now left in view of the law laid-down by the Apex Court in the aforesaid case that the petitioners were also entitled to the benefit of promotion as was extended in case of others. As has been pointed out, the Joint Director has also found petitioners fit for such promotion and has prepared an order granting them benefit of promotion on the vacancies indicated in the order. However, such a benefit is not extended to the petitioners only because of the order of respondent No. 2. Consequently, it has to be held that the petitioners are entitled to the similar benefit as was granted to other similarly situated persons by virtue of the order passed by the M.P. State Administrative Tribunal in the case of Nand Kishore & others (supra).

Consequently, this writ petition is allowed. The order impugned dated 23.08.2004 (Annexure P-b) is hereby quashed. The order prepared for promotion of the petitioners giving benefit of promotion with effect from 16.12.1994 be immediately issued and implemented in case of the petitioners. However, the petitioners would be entitled to the notional fixation of their pay on the promotional post of Laboratory Technician and in case they have been extended the benefit of Kramonnati, they will not be put to financial loss. The petitioners will get the full seniority on the post of Laboratory Technician from the date aforesaid. The said period be treated as a period spent on the promotional post for the purposes of fixation of pension etc. of the petitioners. The petitioners will get the benefit of actual payment of salary from the date of order issued in their respect. The writ petition is allowed to the extent indicated herein above. There shall be no order as to cost.