Ramcharan vs State of Madhya Pradesh and Others

Hon''ble Shri Justice K.K. Trivedi

The grievance set forth by the petitioner appears to be that he was considered for promotion on the post of Chief Engineer as was done in the year 2001 but was not promoted as his name was included in the list of Officers, who were not found fit for such promotion and the juniors to him were promoted by the orders issued in this respect. Later on the petitioner could know that the juniors were promoted only because of an error committed by the respondents in not considering the petitioner in appropriate manner. He submitted a representation, which was considered and a direction was given for holding a review DPC. On the recommendation of the said review DPC, the petitioner was promoted on the post of Chief Engineer vide order dated 11.12.2001. Since the juniors to the petitioner were promoted on 20.06.2001, it was necessary to grant seniority to the petitioner with retrospective effect as he was not responsible for not considering his case in appropriate manner. It is contended by the petitioner that certain persons were promoted on ad hoc basis on the post of Engineer-in-Chief without considering the claim of the petitioner and thereby again he was superseded. In fact the petitioner, who is a member of scheduled caste community, should have been given the benefit of promotion by reserving a vacancy of Engineer-in-Chief. However, since the rules made in this respect were subjected to judicial scrutiny before the M.P. Administrative Tribunal and said litigation was pending, only an adhoc promotion of such persons was ordered. Thereafter when the rules were affirmed by the order of the Division Bench of this Court, re-screening was required to be done but this was not done and since no benefit of reservation is extended to the petitioner after revising his seniority, he is required to approach this Court by way of filing of this writ petition. Many reliefs have been claimed by the petitioner, which are reproduced :

(a) To call for the following records for satisfaction of this Hon''ble Court:-

(i) Proceedings of the DPC/Screening Committee Meeting in respect of promotion of Supdt. Engineer to Chief Engineer concerning to respondent No. 3 and the petitioner.

(ii) Proceedings of the DPC/Screening Committee Meeting held after 11 JUN 2002 in respect of Chief Engineers to Engineer-in-Chief.

(iii) Proceedings of the DPC/Screening Committee Meeting in which B.O. Joshi and K.P. Choubey were found fit for promotion to Engineer-in-Chief.

(iv) Panel of working Engineer-in-Chief in which name of B.O. Joshing was included and sent to GAD to work as Secretary, Water Resources Department under GAD (Annexure P-9)

(v) Copy of the requisition where under NVDA has demanded services of an officer of the rank of Engineer-in-Chief for posting and to work as Member Engineering in NVDA.

(vi) Proceeding of the DPC/Screening Committee Meeting recommending A.K. Sujatiya for promotion to Engineer-in-Chief (Annexure P-12).

(b) To quash the impugned order No. F-19-27/2003/P/ 31 dated 11 JUN 2004 (Annexure P-1).

(c) To direct the respondents No. 1 and 2 to quash the promotion orders (P-17, P-18) and to hold Review DPC for promotion of Chief Engineer to Engineer-in-Chief separately year wise for the year 2002, 2003 and 2004.

(d) To direct the respondents No. 1 and 2 to revise the seniority of the petitioner in the feeder cadre of Chief Engineer as per representation dated 24 May 2004 (Annexure-P-4).

(e) After revision of seniority as per (d) above and Review DPC as per (c) above, if the petitioner comes within the zone of consideration and found eligible, then he may be considered for promotion to the post of Engineer-in-chief with consequential benefits.

(f) Any other relief as deemed fit by this Hon''ble Court.

It is contended that the petitioner would be granted the benefit of promotion even when he stood now superannuated from service with retrospective effect because of the fact that juniors to him were favoured by the respondent-State. It is not in dispute that the petitioner stood superannuated on 31st August, 2005.

A return has been filed by the respondents and it is contended that such a claim of reservation is not available to the petitioner inasmuch as there is only one post of Engineer-in-Chief and if there is one single post, the provisions of reservation are not attracted. As far as the consideration of the claim of the petitioner as Chief Engineer is concerned, it is contended that after deciding the representation of the petitioner since it was found that the DPC held on 12th June, 2000 has considered the ACRs of the petitioner written during the period of his suspension and treating the same as adverse has found the petitioner unfit for promotion, the State Government decided to review the case of the petitioner by taking into consideration the ACRs of the previous years as prescribed. Accordingly, a review DPC was held on 28.07.2001, which found the petitioner fit for promotion and accordingly after approval, the order was issued. It is contended that since the petitioner had not completed the requisite years of two years of working on the post of Chief Engineer, when the vacancy became available, a person senior to the petitioner was considered and promoted. As is indicated by the petitioner himself, there was only one post of Engineer-in-Chief and as such the reservation was not applicable. It is contended that the rightful claim of the petitioner has been grated by the State itself and for many other reliefs, which are being claimed by the petitioner, he is not entitled to because of the fact that there was no reservation available on the post of Engineer-in-Chief and no junior to the petitioner was promoted on the said post. It is contended that the petition is liable to be dismissed.

By filing the rejoinder the petitioner has tried to emphasis that the reservation should have been made available. Certain documents have been placed on record to indicate that some of the persons like juniors to the petitioner were given the posting as Chief Engineer on a subsequent date but were given the march over and above the petitioner in the matter of promotion on the post of Engineer-in-Chief. It is contended that certain Chief Engineers were posted as Engineer-in-Chief in different departments and authorities and such a benefit should have been extended to the petitioner. Thus, it is contended that still the petitioner is entitled to the relief claimed.

Heard learned Counsel for the parties at length and examined the record. DPC proceedings have also been shown to the Court by the learned Government Advocate.

The only issue now remains to be adjudicated whether any ex cadre post could be treated as a post within the setup of the statutory rules where the sanctioned strength of the post, the hierarchy etc. have been mentioned? It is the submission of learned Counsel for the petitioner that there were more posts of Engineer-in-Chief. However, the petitioner himself has filed a notification of the year 1993 issued in respect of the sanctioned post in the particular services. In the gazetted services of the M.P. Irrigation Engineering & Geological Services, there was only one post of Engineer-in-Chief. Likewise, everywhere the post of Engineer-in-Chief is the only one post sanctioned in the top cadre. The said officer in fact is the head of office of the entire department. If there were certain other posts available in other department or agency or authorities and the same are equated with the post of Engineer-in-Chief, the same cannot be formed the post in the cadre of Engineer-in-Chief within the setup in the service rules. Therefore, it has to be inferred that there was only one post of Engineer-in-Chief and as such rule of reservation would not be applicable on such a post. The law in this respect is well settled that if there is only one post available in the entire setup, the same is not to be reserved as has been held by the Apex Court in the case of Post Graduate Institute of Medical Education and Research, Chandigarh Vs. Faculty Association and Others, . Such a claim made by the petitioner that as per the reservation, the entitlement of the petitioner should have been considered, cannot be granted.

Now remains the only thing whether after fixation of seniority of the petitioner on the post of Chief Engineer on account of his promotion, the consideration of claim of the petitioner was done for posting on the aforesaid post of Engineer-in-Chief even in ex cadre in other authorities or not. It is not clear from the record that the seniority of the petitioner was fixed on the post of Chief Engineer after his promotion on 11th December, 2001 vis-�-vis those juniors who were promoted by order dated 20.06.2001 or not. The claim of the petitioner was not considered for promotion in appropriate manner on the post of Chief Engineer because of the error committed by the DPC. If the ACRs of the petitioner were adverse only because same were written when the petitioner was under suspension, the same were not to be taken into consideration by the DPC. This particular aspect was considered by the State Government and while allowing the representation of the petitioner, it was rightly ordered that the claim of the petitioner be considered for promotion on the post of Chief Engineer, taking into account the ACRs of the previous years as per the provisions of the rules. The review DPC has found the petitioner fit for promotion after due consideration. This being the lapses on the part of the State, the petitioner could not have been denied the benefit of seniority over and above his juniors. In fact the merit list prepared by the DPC of the year 2000 should have been re-arranged putting the petitioner at appropriate place and giving him the benefit of seniority from the date the juniors to him were promoted. This being so, it is not correct on the part of the respondent-State to say that merely because the petitioner was promoted by a prospective order after his due consideration by the review DPC, the grievance of the petitioner is looked after in appropriate manner. It is further not clear whether whenever the posting of such Chief Engineer on ex cadre post of Engineer-in-Chief was done, the claim of the petitioner was considered or not. The DPC of 25.11.2005 has been shows to this Court. The another DPC was held on 30.01.2006. A reference in these DPCs has been found that earlier DPC was held on 15.06.2004. If the said DPC was also for the purpose of considering the cases for posting of Chief Engineers as Engineer-in-Chief against the ex cadre post, whether the claim of the petitioner was also considered or not is not clear. However, again it is reiterated that benefit of reservation would not be available to the petitioner but the DPC was required to see that the petitioner was also one of the candidates for consideration and in case he satisfied the norms prescribed by the DPC, he should have been promoted and posted on the ex cadre post of Engineer-in-Chief. Though in respect of certain persons the orders were issued on 21st December, 2005 and 23rd February, 2006 but in the said DPCs on the basis of which said orders were issued, the petitioner would not have been considered as he stood superannuated on 31st August, 2005. Therefore, it was necessary on the part of the respondents to indicate that the petitioner was considered in the DPC so held even for the ex cadre posting of Chief Engineer as Engineer-in-Chief in different authorities or not after fixation of his seniority. This has not been done in appropriate manner.

Resultantly, the writ petition is disposed of with a direction to the respondents to fix the seniority of the petitioner as Chief Engineer, over and above his juniors who were promoted vide order dated 20.06.2001, on account of promotion of petitioner by a subsequent order dated 11.12.2001, and to hold a review DPC on the basis of such seniority in case it is found that the petitioner was not considered by the DPC of 15.06.2004. In case it is found that the petitioner would be eligible, for such benefit of posting as Engineer-in-Chief, the order with retrospective effect be issued giving benefit of promotion to the petitioner. Needless to say, since the petitioner has now retired, he will get nothing but notional fixation of pay on such promotion and benefit of revision of pension and retiral dues. Let this exercise be completed within a period of three months from the date of receipt of certified copy of the order passed today. The petition is disposed of with the aforesaid directions. There shall be no order as to costs.