State of M.P. and Another vs S.P. Singh Gaharwar

Shantanu Kemkar, J.—This case has got a chequered history, which we are stating very briefly, as under:-

In the year 1979-80, the respondent (writ petitioner) was appointed on the post of Range Officer in the Forest Department of the State Government. Though not very relevant but since pleaded, it is stated that the writ petitioner had appeared in the examination conducted by the Madhya Pradesh Public Service Commission (for short, MPPSC) in the year 1983 for the post of Assistant Conservator of Forest and was declared successful in the written examination. The call letter for appearing in the interview could not reach in time, and therefore, he was debarred from the further selection process of that year. On being represented, he was called in an interview, in which he was declared unsuccessful.

Thereafter, again in the year 1984, he appeared in the examination conducted by the MPPSC for the said post of Assistant Conservator of Forest, in which he succeeded in the written examination as well as in the personal interview. However, as per his merit position, his name was kept in the waiting list prepared in the year 1985 at Serial No. 7.

When the matter stood thus, after more than 16 years, the respondent/writ petitioner approached the Madhya Pradesh State Administrative Tribunal, Bench at Bhopal (for short, the Tribunal) in Original Application No. 822/2001, seeking promotion on the said post on out of turn basis with a further prayer to grant him benefit of his selection on the post of Assistant Conservator of Forest from the waiting list of the year 1985, which was prepared for the candidates who succeeded in the MPPSC Examination of the year 1984.

The Tribunal vide order dated 20-12-2001 disposed of the said OA with direction to the appellants herein to consider the case of the writ petitioner for promotion on out of turn basis, in accordance with rules and regulations or as per the earlier Government instructions followed in other cases, however, no directions were issued giving him benefit of waiting list of the year 1985.

When the said order passed by the tribunal on 20-12-2001 was not complied with, the writ petitioner filed Contempt Petition No. 1105/2004 before this Court as in the meanwhile the Tribunal was abolished. The said contempt petition was disposed of by the learned Single Judge of this Court vide Order dated 5-11-2004 directing the appellants herein to give effect to the order dated 20-12-2001 passed by the Tribunal in the said Original Application No. 822/2001 within a period of four months.

After passing of the aforesaid orders by the Tribunal and by the learned Single Judge of this Court, the writ petitioner submitted a representation on 15-9-2006 before the appellants.

The appellants/State, after seeking opinion of the MPPSC, examined the respondent/writ petitioner''s claim and observed thus on 9-10-2007 and on 29-10-2007.:-

Thereafter, it appears from the records that the matter was further processed by the appellants from time to time and on the basis of some recommendations of the Public Representatives, the writ petitioner''s matter was further processed and the following decision was taken on 22-2-2008, which reads thus:-

Thereafter, as would be clear from the original records, no order of appointment was issued in favour of the writ petitioner and instead of it, again the matter was processed from time to time. The subsequent relevant order-sheets reads thus:-

As would be clear from the aforesaid proceedings that in spite of a decision being taken for giving him of benefit of selection from waiting list of the year 1985, but no orders in regard to the writ petitioner''s claim for out of turn promotion or on the basis of his name in the waiting list of the year 1985 was actually issued. When the matter stood thus, the writ petitioner got a regular promotion from the post of Forest Ranger to the post of Assistant Conservator of Forest vide order dated 6-1-2009.

After getting the regular promotion, the writ petitioner submitted a representation on 9-1-2009 claiming seniority on the post of Assistant Conservator of Forest from the date of his selection with effect from 1985 basing his claim on the decision taken by the State Government on 22-2-2008, as extracted above from the note sheets of the original record.

When the said representation dated 9-1-2009 was not decided by the appellants, he filed a Writ Petition No. 1124/2009 (s) before this Court. The said writ petition was disposed of vide order dated 2-3-2009, directing the appellants herein to examine the writ petitioner''s claim and take appropriate decision on the representation keeping in view Annexure P/6 and P/7 filed with the aforesaid writ petition.

In pursuance to the aforesaid orders dated 2-3-2009 passed by this Court in Writ Petition No. 1124/2009 (s), the appellants examined the writ petitioner''s representation and rejected the same vide order dated 13-1-2010. The relevant portion of the said order dated 13-1-2010 reads thus:-

Feeling aggrieved by the said order dated 13-1-2010 passed by the State Government, the respondent herein filed Writ Petition No. 5338/2010 (s) before this Court. The writ Court, after considering the averments made by the parties and after giving opportunity of hearing to them, allowed the writ petition on 6-9-2011 and quashed the order dated 13-1-2010. The learned Single Judge, while allowing the writ petition, directed the appellants herein to grant proper seniority to the writ petitioner on the basis of select list of the year 1985 by placing him over and above those persons who have been appointed as a result of subsequent selection. It is this order passed by the learned Single Judge, which has been assailed in this writ appeal.

We have heard learned counsel for the parties at length and perused the original record produced by the State.

The perusal of the record and the decisions taken by the State Government from time to time, as would be clear from the order sheets, which have been extracted above for ready reference, it is very clear that though on 22-2-2008 a decision was taken by the appellants to appoint the writ petitioner on the post of Assistant Conservator of Forest on the basis of the waiting list of the year 1985, but it was not given effect to and no order giving appointment to the writ petitioner was ever issued. On the other hand, a close scrutiny of the subsequent order sheets make it clear that on the basis of further examination of the matter, it was not thought fit to issue the appointment order on the basis of the waiting list of the year 1985 in favour of the writ petitioner.

It appears that by misinterpreting the communications received from the MPPSC from time to time on the basis of recommendations of the public representative, the note sheet was prepared on 22-2-2008 in favour of the writ petitioner for extending him the benefit of appointment on the basis of the waiting list of selected candidates of the year 1985.

Undisputedly, the waiting list of the year 1985 prepared by the MPPSC remained valid only for a period of 18 months. In the circumstances, on the basis of some appointments/promotions being made even after 1 or 2 years of the period of expiry of the select list, that too, for justifiable reason like the Court order, the writ petitioner''s claim treating him at par with those appointees cannot be accepted. Therefore, even if the decision to appoint the writ petitioner was taken on 22-2-2008, the same has rightly not been given effect to by the appellants, realizing the fact that such appointment in the year 2008 at such a belated stage on the basis of a lapsed and stale select list of the year 1985 would be contrary to law. It is not the case of the writ petitioner that on the basis of a decision taken by the State Government on 22-2-2008, he was ever appointed on the said post. It is very clear from the facts that after the said selection in the waiting list of the year 1985, he filed OA before the Tribunal in 200J that too for out of turn promotion with no specific pleadings about claiming appointment on the basis of the select list of the year 1985. Thereafter, for the alleged noncompliance of the order dated 20-12-2001 passed by the Tribunal, he filed Contempt petition in the year 2004. Thereafter, it appears from record that on being represented by political public representative, a decision in his favour was taken on 22-2-2008.

Treating the said decision to be an order issued for his appointment on the post of Assistant Conservator of Forest, learned Single Judge has allowed the writ petition, by placing reliance on Rule 12(1) of Madhya Pradesh Class-Ill (Non-Ministerial) Forest Services Recruitment Rules, 1967 providing with the seniority of persons directly appointed on a post, according to Rules, shall be determined on the basis of the order of merit, in which they are recommended for appointment irrespective of date of joining persons appointed as a result of earlier selection shall be senior to those appointed as a result of subsequent selection. In our considered view, when the said decision dated 22-2-2008 was not given effect to and when there was no order of appointment in favour of the writ petitioner, the benefit of Rule 12(1) of the Rules could not have been extended in favour of the writ petitioner.

From perusal of the entire record and the order dated 13-1-2009, it is clear that the State Government by misconstruing the reply sent by the MPPSC to the queries raised by the State Government from time to time had wrongly interpreted and wrongly assumed that the MPPSC has given no objection to the writ petitioner''s appointment on the post of Assistant Conservator of Forest on the basis of the select list of the year 1985. On going through the correspondences of the MPPSC, which is available on record and which is referred in the order dated 13-1-2009, it is clear that the MPPSC had never given its no objection to the appointment of the writ petitioner which was sought to be made on the basis of his selection from the waiting list of the year 1985.

In the circumstances, when there was no order of appointment and no concurrence of the MPPSC was available on record, the writ petitioner could not have been assigned the seniority treating him to be appointed on the basis of select list prepared in the year 1985. Therefore, we are of the view that the order passed by the learned Single Judge having been passed upon wrong assumption that the writ petitioner was appointed vide order dated 22-2-2008 on the basis of his selection from the waiting list of 1985, and therefore, he is entitled for counting his seniority from the year 1985 cannot be sustained and is liable to be set aside. In the circumstances, we allow this writ appeal and set aside the order passed by the learned Single Judge. No order is to costs.