Ram Ratan Rai vs State of M.P. and Others

Sujoy Paul, J.—By filing this petition under Article 226 of the Constitution of India, the petitioner has challenged the promotion order of respondent No. 3 dated 17.2.2003 (Annexure P-1) and prayed for a direction to promote him from the said date with all benefits.

The facts giving rise to this petition are as under:-

The petitioner was initially appointed on 3.9.1965 on the post of Computer. He was promoted as Market Price Inspector and then to the post of Assistant Statistical Officer. He was further promoted as Crop Survey Supervisor and then to the post of Assistant Commissioner (Statistics) on 25.6.1997.

The respondent-department by order dated 17.2.2003 (Annexure P-1) promoted Assistant Commissioners (Statistics) to the post of Deputy Commissioner (Statistics). The contention of the petitioner is of two fold. The department, as alleged has not followed the prescribed reservation quota as per the rules. It is contended that for scheduled castes, 16% posts should have been reserved as per roster. By placing reliance on the gradation list (Annexure P-3), it is stated that petitioner''s name is at serial No. 9 of the said list. In another seniority list (Annexure P-4) which was issued on 29.7.2003 showing the position as on 1.4.2003, only four posts of Deputy Commissioners are there. On the basis of these four posts reflected in Annexure P-4, it is contended that 16% reservation for Scheduled Caste were not followed. One Shri C.L. Nimb (SC) was already promoted to the post of Joint Director on 31.3.2003. One Shri Amar Singh Tundela was promoted to the post of Deputy Commissioner (Statistics) on 30.8.2002, which is prior to passing of impugned order. Shri Suresh Darshani was retired on the date when gradation list Annexure P-4) was issued. Thus, the next contention advanced is that calculation of vacancy was not proper.

Shri S.P. Shrivastava, learned counsel for the petitioner, vehemently argued that under the recruitment rules of the department there was no provision in taking into account anticipated vacancies and, therefore, the respondents have erred in taking into account anticipated vacancies and promoting the persons beyond the available vacant post. Alternatively it is argued that even if anticipated vacancies were required to be taken into account, yet another vacancy was to arise because of retirement of one Shri Suresh Darshani, who was due for retirement on 30.6.2003 and if this vacancy would have been taken into account, the petitioner would have been promoted. The petitioner has annexed the rules Annexure P-2 in support of his contention.

Per contra, Mrs. Pachori, learned Dy. G.A. supported the order and relied on various paragraphs of the return. It is contented in the return that by preparing the chart (page 2), the zone of consideration was drawn as per the roster and as per the vacancies available in accordance with law. In the aforesaid chart the name of eligible employees, its category and the serial number in the seniority list is shown. It is mentioned that at the relevant time there were three posts of Deputy Commissioners for which D.P.C. was convened on 23.10.2002. The D.P.C. considered the seniority position as on 1/4/2002 of the Assistant Commissioners. It is further contented that the vacancies were calculated as per the reservation rules in vogue, it is stated that according to 100 point roster the point No. 1 is reserved for S.T. candidates and the post at point No. 2 was reserved for general category candidates. The promotion of respondent No. 3 who belongs to Scheduled Caste category was made in accordance with letter of the Government dated 6.7.2002. The said letter is filed as Annexure R-1. On the strength of this letter, it is contended that once the reserved category candidate is selected and promoted on the basis of his seniority and merit, he has a right of consideration against unserved category in addition to the reserved percentage. The promotion of respondent No. 3 was made on the basis of this letter. The petitioner has not chosen to file any rejoinder to rebut the factual averments of the said return.

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

The bone of contention of the petitioner is that the vacancies are not properly calculated. The anticipated vacancies could not have been taken into account and respondent No. 3 could not have been considered against a general category vacancy. The petitioner relied on the recruitment rules of the department viz., Madhya Pradesh Survey Settlement and Land Records (Gazetted Class II) Service. On the strength of this rule, it is argued that the department could not have taken into account the anticipated vacancies. This argument needs to be dealt with. The impugned promotions were made on 17.2.2003. Before that M.P. Public Services (promotion) Rules, 2002 (hereinafter called as 2002 Rules) came into being on its publication in official gazette on 11.6.2002. Rule 3 of the said rules reads as under:-

Scope and application.- Without prejudice to the generality of the provisions contained in the Madhya Pradesh Civil Services (General Conditions of Service) Rules, 1961 and notwithstanding anything contained in any Service Rules, these rules shall apply to the establishment as defined in these rules, but shall not apply to the employments specified in clauses (1), (3) and (5) of Section 3 of the Madhya Pradesh Lok Seva (Anusuchit Jatiyon, Anausuchit Jan Jatiyon Aur Anya Pichhade Vargon Ke Liye Arakshan) Adhiniyam, 1994 (no. 21 of 1994). (Emphasis Supplied).

A bare perusal of this rule makes it crystal clear that by bringing 2002 Rules, all the service rules in question and on the subject including recruitment and promotion rules stood superseded. The Rule 7(4) of 2002 Rules permits the department to take into account the existing and anticipated vacancies.

On the basis of application of 2002 Rules, it is clear like noon day that the department was well within its authority in taking into account the anticipated vacancies. In the return the respondents have made it clear how reservation was made applicable and vacancies were calculated. The roster points so demonstrated by the respondents are not doubted by the petitioner by filing any rejoinder. This is also settled in law that the reserved category candidate who secures position on his own seniority or merits has a right to be considered for promotion against unserved vacancy also. Thus, there is no flaw in the action of the respondents in promoting the respondent No. 3. On the basis of aforesaid analysis, I find no reason to interfere in this matter. The petition is bereft of merit and is hereby dismissed. No cost.