Ramesh Chandra Sharma vs State of M.P.

Sujoy Paul, J.—In this petition filed under Article 226 of the Constitution, the petitioner has prayed for setting aside the order dated 16.5.2011 (Annexure P-1) with further prayer that he be given consequential monetary benefits. By amending the petition, the petitioner has prayed for quashing the order dated 3.2.2011 (Annexure P-11). It is further prayed that he be directed to be considered for promotion on the post of Deputy Registrar w.e.f. 1995 with seniority at appropriate place. Shri Rajendra Tiwari, learned senior counsel fairly submits that the petitioner is not pressing the relief in as much as the financial consequential benefits are prayed for in the relief clause.

This matter has a chequered history. The parties have fought a long drawn battle in the corridors of the court. The petitioner was selected by the selection conducted by the PSC for the post of Assistant Registrar in the Co-operative department of Govt. of M.P. The petitioner was not relieved by the Forrest department wherein he was serving at that point of time. Since petitioner was not relieved, he filed O.A. No. 918/1988 before the then M.P. Administrative Tribunal. On abolition of the Tribunal, the matter was transferred to this Court and was re-registered as W.P. No. 1564/05. This Court by order dated 9.8.2007 (Annexure P-3) allowed the writ petition and passed directions to treat the petitioner as Assistant Registrar from the date of his appointment. By taking this Court to para 12 and 13 of the order passed in W.P. 1564/05, it is contended by learned senior counsel that in view of this order, at best, petitioner can be deprived from arrears of salary for the period he was deprived to join the Cooperative Department. It is further submitted that the order of writ court got stamp of approval from the Division Bench in W.A. No. 79/09. The Apex Court also dismissed the SLP No. 3252/10 (Annexure P-5) filed by the Govt.

Shri Rajendra Tiwari, learned senior counsel submits that the petitioner was all along willing to join the cooperative department but was deprived to do so because of reasons solely attributable to the respondents. This Court in explicit terms made it clear that petitioner must be treated as Assistant Registrar for all purposes minus the consequential monetary benefits. This goes without saying that petitioner must be treated on the rolls of the Co-operative department w.e.f. 1.1.1988. He submits that petitioner has already passed the examination while working in Forest department and, therefore, there was no occasion for the respondents to pass the order dated 3.2.2011 (Annexure P-11). Learned counsel further submits that the petitioner''s seniority has to be counted from the date of his initial appointment. He is required to be given proper placement as per rules.

Attacking on the second aspect regarding non-consideration for promotion, it is urged that the DPC proceeding (Annexure R-1) makes it clear that petitioner is deprived from consideration because he was not in the feeder post in the cooperative department for five years. Secondly, his ACRs. for last five years were not written by the cooperative department and it was written by the Forest department. He submits that the reasons assigned by the DPC runs contrary to the order passed by this Court and affirmed by Supreme Court.

Per contra, Mrs. Nidhi Patankar, learned Govt. Advocate supported the order and the proceedings of the DPC. She submits that the order passed by the writ court makes it clear that the petitioner was given ''notional benefits'' from the date of his initial appointment. The order of writ appellate court makes it clear that there was a delay on the part of the petitioner also because his writ petition was dismissed on 3.7.1993 and was restored only on 5.5.2005. In addition, the attention of this Court is drawn on the Statutory Recruitment Rules namely, M.P. Cooperative (Gazetted) Service Recruitment Rules, 1965. It is submitted that the DPC was convened in accordance with the aforesaid recruitment rules read with M.P. Public Services (Promotion Rules) 2002. She submits that the recruitment rules make it clear that an officer who has rendered five years on the post of Assistant Registrar alone is entitled to be promoted as Deputy Registrar. The petitioner joined as Assistant Registrar only on 17.6.2010 and, therefore, on the date of DPC he did not complete five years of service. In addition, the ACRs. of five years which were required to be written by the cooperative department were not there because the petitioner has rendered actual service in the forest department. Thus, the ACRs. which were placed before the DPC were of forest department, which do not make him eligible to be considered under the rules.

By taking this court to Union of India (UOI) and Another Vs. M. Bhaskar and Others, it is submitted that the person became eligible when he really starts working on a substantive post. Mere promotion with retrospective effect on notional basis does not make him entitled to be considered for promotion.

In rejoinder submission, Shri Tiwari, learned senior counsel relied on the judgment of this court reported in M.K.S. Engineering Pvt. Ltd. Vs. State of M.P. and Others, By relying on the legal maxim, the Court opined that "Actus Curiae Neminem Gravabit" i.e. "the act of the Court shall prejudice no man". To elaborate, the learned senior counsel submits that if the litigation continued in the corridors of the court for considerable long time, by no stretch of imagination, the petitioner can be deprived from the fruits of the litigation.

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

The core issue is based on the interpretation of the directions given by the writ court in W.P. No. 1564/2005. Para 12 and 13 of the said order reads as under:-

Consequently, the petition of the petitioner is allowed. The petitioner be deemed to be as Assistant Registrar, Co-operative Societies in pursuance to the order of appointment dated 01.01.1988 and he shall be entitled for all consequential benefits as if he was Assistant Registrar, Co-operative Societies from the aforesaid date of appointment order including fixation of pay scale and other benefits if the petitioner was in continuous service.

Looking to the facts of the case the petitioner will not be entitled difference of arrears of salary. The respondents are directed to issue the order of posting of the petitioner as Assistant Registrar Co-operative Societies within a period of four weeks from the date of receipt of a certified copy of this order." (Emphasis supplied).

A minute reading of this order makes it clear that this Court directed that petitioner should be deemed to be an Assistant Registrar w.e.f. 01.01.1988. Thus, by way of creating fiction it was directed that petitioner should be treated as Assistant Registrar by giving him all consequential benefits except the monetary benefits, i.e., arrears of salary. In no uncertain terms it was made clear that petitioner should be treated ''as if he was Assistant Registrar'' from the aforesaid date of appointment with benefits of fixation of pay, salary and other benefits. This order of writ court is not disturbed by the Division Bench and the Supreme Court. Thus, the parties are bound by this order. No doubt, in M. Bhaskar (supra), the Apex Court considered the matter arising out of Patna Bench order of Tribunal wherein the employee was given notional promotion from 21.10.1988 and started actual working from 21.9.1989, and the question was from which date his experience should be counted. In the facts and circumstances of that case, the Apex Court opined that the services for the purpose of eligibility will be counted from the date he actually started working. The said judgment cannot be mechanically made applicable in the present case. In the peculiar facts and circumstances of this case, it cannot be forgotten that this court in specific terms made it clear that the petitioner must be treated as Assistant Registrar from the date of his initial appointment. This is settled in law that a judgment may be treated as precedents by considering the relevant facts on which the said judgment is based. In the present case, the rights of the petitioner are already crystallized in the order passed in W.P. 1564/05(s) which was upheld upto Supreme Court. In M. Bhaskar (supra), there was no prior adjudication before order of Tribunal by any Court and, therefore, the said judgment is distinguishable. The Apex Court held that the judgments of Courts cannot be read as euclid''s theorem. It depends on the facts and circumstances in which judgments are delivered. Even a single fact may change the precedential value of the judgments. see (2003) 2 SCC 111 (Bhavnagar University vs. Palitana Sugar Mill (P) Ltd. and others) and Sushil Suri Vs. C.B.I. and Another,

In the light of aforesaid, in my view, the judgment of Bhaskar (supra) cannot be pressed into service in the peculiar facts and circumstances of this case.

So far objection based on recruitment rules and ACR is concerned, in my view, the judgment of this Court in W.P. No. 1564/05 addresses this aspect also. Once it is held that petitioner is deemed to be as Assistant Registrar w.e.f. 1.1.1988 with all consequential benefits except monetary benefits, as a corollary it must be treated that petitioner is working as Assistant Registrar w.e.f. 1988. If because of the reasons attributable to the respondents or because of the reason that earlier litigation was pending, petitioner could not actually work in Co-operative department, he can not be deprived from the fruits of the judgment passed in W.P. 1564/05. Any other interpretation will make the directions passed in W.P. 1564/05 as redundant. Thus, I am of the view that the respondents shall treat the petitioner as if he has served as Assistant Registrar in the Co-operative department from 1.1.1988 and his eligibility, experience and ACR must be treated in that light. If respondents contention is accepted, the inevitable effect would be as if petitioner is a fresh entrant in Co-operative department w.e.f. 17.6.2010. This will be against the clear direction and spirit of the earlier judgment. As per the legal maxim "Actus Curiae Neminem Gravabit" i.e. "the act of the Court shall prejudice no man" also the act of the Court was in no way prejudice the petitioner. On the basis of aforesaid analysis, in my view, the respondents have erred in not treating the petitioner as eligible in the DPC in question. Those reasons for which he was held ineligible are improper and runs contrary to the directions issued by this Court in W.P. 1564/05. Those reasons cannot be an impediment for the petitioner for the purpose of consideration.

On the basis of aforesaid analysis, respondents are directed to convene a review DPC for the DPC convened by Annexure R-1 by treating the petitioner as eligible. In other words, the petitioner cannot be treated as ineligible on the grounds on which his case was earlier not considered/rejected which is disapproved by this Court in the present order. The respondents shall convene the said review DPC within 60 days from the date of communication of this order and consider the case of the petitioner in accordance with law. The outcome of the DPC shall be communicated to the petitioner.

Petition is allowed to the extent indicated above.