Manoj Kumar Meshram vs State of Madhya Pradesh

K.K. Trivedi, J.—Heard on the question of admission.

The grievance of the petitioner is that though he was put in the waiting list of candidates selected by the M.P. Public Service Commission for direct recruitment on the post of Assistant Director Horticulture, in the year 2003, his candidature for appointment on the said post was not considered despite issuance of the circular by the State Government on 2.4.2003. The petitioner was appointed vide order dated 31.1.2003 on the post of Senior Horticulture Development Officer, which post was inferior to the post of Assistant Director Horticulture. After issuance of the circular dated 2.4.2003 various representations were made by the petitioner, but no action whatsoever has been taken by them, therefore, this writ petition is required to be filed. On the basis of these submissions, the following reliefs are claimed :-

"(i) call for the entire record pertaining to instant subject matter from the respondents;

(ii) direct the respondents to treat the petitioner as having been appointed on the post of Assistant Director, Horticulture w.e.f. 30.4.2003 by giving the benefit of circular dated 2.54.2003 since he was selected through Public Service Commission against the quota of direct recruitment and the vacancy of the SC category in promotional quota was vacant at that time.

(iii) Consequently, direct the respondents to grant the benefit of seniority and consequential benefit treating the petitioner to have been appointed on the post of Assistant Director Horticulture w.e.f. 30.4.2003 and consequently direct the respondents to issue promotion order of the petitioner on the post of Deputy director, Horticulture a day before the date three promotion to the post of Deputy Director, Horticulture were effected against SC category posts by the respondents i.e. on 13.9.2013.

Though it is, vehemently contended by learned counsel for the petitioner that in terms of circular dated 2.4.2003, a post of Assistant Director Horticulture available in promotion quota was required to be filled in by appointment of petitioner on the said post pursuance to the selection made by the M.P. Public Service Commission, but the whole claim made by the petitioner is apparently misconceived. In fact, in the M.P. Public Service Commission (Promotion) Rules, 2002 (hereinafter referred to as Rules of 2002 for short), reservation of post for the Scheduled Caste and Scheduled Tribe employees have been made. This fact was brought to the notice of the State Government that since suitable candidates belonging to the aforesaid reserved category were not available in the feeder cadre for promotion on the next higher post, the promotional posts were lying vacant in reserved category and were carried forward for a long time. The Government decided to take out 50% posts so carried forward on account of non-availability of the suitable candidates from promotion quota for the purposes of filling the said post by direct recruitment of the said category candidates. However, before even issuance of the circular on 2.4.2003, the process for recruitment of persons like petitioner was started with effect from 6.2.2003. Only four posts, two for the Scheduled Caste and two for Scheduled Tribe candidates were shown in the said advertisement for direct recruitment on the post of Assistant Director Horticulture. Any vacant post in terms of the circular dated 2.4.2003 was not to be included in the said advertisement. The petitioner took part in the selection, was selected and was put in the reserved/ waiting list and not on the merit list. It is not in dispute that those two who were selected against the Scheduled Caste category post, were appointed and have already joined. Therefore, there was no question of considering the case of the petitioner for appointment against any reserved post available in promotion quota.

Even otherwise, the Rules of 2002 are made in exercise of legislative power by the State Government. If any amendment is required to be done, that, too, is to be done in the same manner in which the Rules were made and not otherwise. The circular dated 2.4.2003 cannot be said to be an amendment in the Promotion Rules of 2002. On this count as well, the petitioner would not be entitled to any relief. Even otherwise, the petitioner has not raised his grievance for a considerable long time as from the documents placed on record it is clear that for the first time, the representation was made by the petitioner before the Director of Horticulture on 9.9.2006 and not prior to this date. This shows that the petitioner was not vigilant to make his claim within time. How the selection of 2003 could be altered on making of a representation by the petitioner at such a belated stage.

The well settled law is that a post in the direct recruitment quota can be utilised for promotion of any candidate if the direct recruitment is not possible expeditiously. On availability of the direct recruit to occupy the post, the promotee can be sent back to his/her substantive post, but in case of direct recruitment against promotion quota, this analogy would not be acceptable, as the direct recruitee has to be thrown out of the employment in case promotion is made on the said post which is filled in by direct recruitment. This being the simple reason unless the specific post said to be reserved for promotion of reserved category employees are taken out of the purview of that quota and are marked in the direct recruitment, said post cannot be automatically utilised for direct recruitment on the strength of the circular dated 2.4.2003.

For these reasons, the writ petition is wholly misconceived deserves to be and is hereby dismissed, without notice to the other side.