Jagdish Kumar Sharma vs State of M.P. and Others

Sujoy Paul, J.—Petitioner has filed this petition claiming the following reliefs:-

In the facts and circumstances of the case petitioner humbly prays to this Hon''ble High Court that a writ order or direction may kindly be issued, directing the respondents to promote the petitioner on the post of Assistant Commissioner in the grade of 6500-8000 which is the grade of Assistant Commissioner and thereafter to the post of Deputy Commissioner in the grade of 10000-15200 and respondents be directed to promote the petitioner with effect from the date from which he has got the eligibility criteria of experience of 8 years because promotion has not been granted only on account of inaction on part of respondents, if the petitioner is found fit for promotion on the post of Assistant Commissioner then it be directed that his case be considered for promotion on the post of Deputy Commissioner because he fulfills eligibility criteria, consequential benefit including monitory be also granted to the petitioner.

It is further prayed that the respondents be directed to take the work of Property Tax Officer from petitioner, the post which is in the set up of corporation and on which the person who is junior to the petitioner is discharging his duties

Any other relief which this Hon''ble Court deems fit in the facts and circumstances of the case may kindly be granted.

The brief facts necessary for adjudication of this matter are as under:-

Petitioner was initially appointed in the respondent-corporation as a daily wager employee in the year 1972. He was confirmed and occupied the post of clerk in the year 1973. In the year 1981, petitioner was made Assistant Sanitary Inspector. The petitioner filed a writ petition followed by a contempt petition namely MCC No. 40/1995, which was decided on 16/12/1996 Annexure-P/1. Pursuant to some directions issued in the said MCC, the department issued the order dated 16/01/1997 by giving retrospective promotion to the petitioner as Ward Officer w.e.f. 06/08/1983. The petitioner, thereafter filed WP 1244/1998, which was decided on 10/05/2001. Para 6 of this order reads as under:-

In the result, petition succeeds and is allowed. The respondents no. 1 to 3 are directed to assign correct seniority treating the petitioner to be promoted with effect from 06/08/1983. Since, the promotions are strictly based upon the seniority, the petitioner''s case should be considered and appropriate orders be passed and if he is found fit for promotion, he shall be deemed to be promoted from the date his juniors were promoted and he shall also be entitled for consequential benefits. In case his juniors have been further promoted, the petitioner is found fit for further promotion shall be considered for further promotion by the respondents. All the action shall be taken by the respondents positively within a period of six months from today

On the strength of this order, respondents have passed the order dated 06/07/2002 (page 74), whereby petitioner was made Assistant Property Tax Officer (APTO) w.e.f. 31/12/1984.

The grievance of the petitioner is that in the year 2000, the State Government had framed statutory rules in exercise of powers conferred u/s. Section 433 r/w Section 58 of M.P. Municipal Corporation Act, 1956. These rules are known as M.P. Municipal Corporations (Appointment and conditions of Officers and Servants) Rules, 2000 (hereinafter called as "2000 rules"). The rules came into force on 09/02/2001.

Shri Prashant Sharma learned counsel for the petitioner submits that a simple reading of schedule III of these rules shows that the post of Assistant Commissioner can be filled up from the feeder post of Assistant Revenue/ Property Tax Officer. 8 years is the eligibility service on the feeder post from where, promotion can be made. He submits that the respondents have prepared a set up, but despite the specific provision which shows that the post of Assistant Commissioner became promotional post, the said post was not created by the respondents. The petitioner became eligible for consideration for promotion on completion of 8 years and immediately after commencement of said rules, the respondents should have considered the case of petitioner for promotion because at that time, he had already completed 8 years on the feeder post of APTO. Criticizing the inaction of respondents in not creating the said statutory post, Shri Prashant Sharma submits that it was created later-on and petitioner was promoted as Assistant Commissioner w.e.f. 31/03/2010 Annexure R-2/4-4. He submits that if petitioner would have been promoted at appropriate time immediately after commencement of the rules, he would have been considered and further promoted on the post of Deputy Commissioner.

Per Contra, Shri J.P. Mishra learned counsel for the other side submits that no junior of the petitioner was promoted on the post of Assistant Commissioner. When the post was created and became vacant, in due course petitioner was considered and promoted. He submits that petitioner has not prayed for any relief from any particular date and, therefore, he has no right of promotion from a particular date.

I have heard learned counsel for the parties and perused the record.

The bone of contention of learned counsel for the petitioner is that as per the 2000 Rules, the promotional post of Assistant Commissioner should have been created and petitioner should have been considered on the said post from the said date. Thereafter, he should have been considered on the next post of Deputy Commissioner. The respondents have stated that when in administrative exigency posts were created, the petitioner was considered and was promoted from the date of his entitlement. There is no enforceable right in getting promotion from a particular date.

The Apex Court in Union of India (UOI) and Others Vs. Majji Jangamayya and Others, opined as under:-

No employee has any right to have a vacancy in the higher post filled as soon as the vacancy occurs. Government has the right to keep the vacancy unfilled as long as it chooses.

In K. Madhavan and Another Vs. Union of India (UOI) and Others, the Apex Court opined that an employee becomes eligible for certain post, but he cannot claim appointment to such post as a matter of right.

This Court in Anil Singh and another Vs. State of M.P. and others, , opined as under in para 12:-

It may be seen in the present case that learned counsel for the respondents relied upon the judgment passed by the Apex Court in Union of India (UOI) and Others Vs. Majji Jangamayya and Others, Union of India and others Vs. Majji Jangamayya and others and submitted that it is for the competent authority to decide as to when the vacancies are to be filled up by way of promotion. A candidate has no right to be promoted on a higher post as and when vacancies arises. The State Government has a right to keep the vacancies unfilled as long as he chose. On the basis of the judgment passed by the Apex Court in Majji Jangamayya (supra), it is thus apparent that merely because vacancies have arisen, the State Government cannot be compelled to fill up the said vacancies as soon as vacancies occurred. The State Government has to exercise its discretion as to when the vacancies as such have to be filled up. The ratio of the judgment is squarely applicable in the present case and it is held that rule of holding the DPC every year to regulate promotion to the post of Head Constables (GD) is not a mandatory and it depends upon various circumstances and the rule as such does not stipulate any consequences of not following the same i.e. not filling up the vacancies every year. Therefore, the rule as such is not mandatory. Thus, even though the State Government has not proceeded to fill up the vacancies of Head Constables (GD) as soon as it has arisen by holding the annual DPC yet no fault can be found of the State Government merely because the persons those who applied have already crossed their age of 40 years.

A bare perusal of the law laid down by the Supreme Court and followed by this Court makes it crystal clear that it is prerogative of the employer to fill up a particular post from a particular date. The employee has only a right of consideration and does not have a right of promotion. The petitioner is unable to show that any junior to him has been promoted prior to him on the post of Assistant Commissioner or Deputy Commissioner. The petitioner was totally unable to show and establish any legal, constitutional or statutory right of consideration from 2000 onwards. The employer in its administrative exigency has created the post and considered the petitioner in due course. No flaw can be found in the light of aforesaid judgments in the said action.

The petition is merit less and is hereby dismissed.