Sudhir Vyas vs The State of Madhya Pradesh

Rajendra Menon, J.—Shri D. K. Dixit, learned counsel for respondent No.2. Challenging an order passed by the respondents as contained in Annexure P/11 dated 29.12.2010 by which the orders passed earlier on 6.1.96 and 29.12.2008 have been canceled, petitioner has filed this writ petition. By the impugned order promotion granted to the petitioner on the post of Deputy Director (Executive) has been canceled. In the connected petition W.P. No.15887/2010 Shri Purshottam Sharma who is respondent No.2 in W.P. No.707/2011 has challenged the promotion granted to the petitioner on the post of Deputy Direction and in view of the order passed impugned in this writ petition, the said petition filed by Shri Purshottam Sharma, W.P. No.15887/2010 is now rendered infructuous.

It is the case of petitioner Sudhir Vyas in W.P. No.707/2011 that he was appointed as a Research Officer in the establishment of respondent No.1 vide order dated 2.4.1988. He was kept on probation for a period of two years. After successfully completing his probation he was confirmed on the post of Research Officer. Placing reliance on the Madhya Pradesh Hathkargha Sanchnalaya (Gazetted Bharti Seva Niyam), 1996 (hereinafter referred to as "Recruitment Rules of 1996"). It is a case of the petitioner that post of Research Officer is declared equivalent to the post of Assistant Director (Executive) by virtue of stipulations contained in Schedule 3 to the said Rules of 1996 and the mandate of Rule 14 thereof. Accordingly, contending that treating the petitioner to be equivalent to a post of Assistant Director (Executive) in accordance to the Recruitment Rules of 1996. Petitioner''s case was considered and vide order dated 6.1.96 he was promoted on the post of Deputy Director and his seniority was to be fixed in the said cadre of Deputy Director below one Shri M. K. Bangde and above one Shri S. Datta. The order in this regard is Annexure P/2. Vide Annexure P/3 on 22.8.1996 this order of promotion Annexure P/2 dated 6.1.96 was abruptly canceled without hearing the petitioner. Petitioner submitted representation and when nothing was done the order Annexure P/3 was challenged by him before the State Administrative Tribunal by filing an application u/s 19 of the Administrative Tribunal''s Act. The case was registered as O.A. No.69/97, after winding up of the Tribunal matter was transferred to this Court and was registered as W.P. No.23545/2003 but during the pendency of the writ petition when the impugned order dated 22.8.96 was canceled and the promotion granted to the petitioner on 6.1.96 was restored petition became infructuous. Order in this regard is Annexure P/4 dated 29.12.2008. When this writ petition was pending,

respondent No.2 Shri Purshottam Sharma who is said to be junior to the petitioner was promoted on the post of Deputy Director vide Annexure P/6 dated 8.10.97 and when the promotion of the petitioner ordered on 6.1.96 was restored, petitioner submitted a representation seeking promotion on the post of Deputy Director prior to respondent No.2. When the request was not heard, petitioner again filed a writ petition being W.P. No.5190/2010 and the petition was disposed of directing respondents to take action in the matter on 26.4.2010 vide Annexure P/7. Review petition filed by respondent No.2 was also disposed of vide Annexure P/8 on 28.7.2010 and after dismissal of the review petition, contempt proceedings were initiated and in the meanwhile respondent No.2 filed the writ petition No.15887/2010 seeking quashment of order dated 6.1.96 and 29.12.2008. In the meanwhile, after considering the representation and other orders, when the impugned action was taken, petitioner has filed this writ petition.

During the course of hearing in this writ petition, Shri Vipin Yadav submitted that the only question involved in this petition is as to whether the post of Research Officer is equivalent to that of Assistant Director as per Recruitment Rules of 1996 and therefore, promotion granted to the petitioner is valid. Referring to Rule 14 of Rules of 1996 it was argued by Shri Vipin Yadav that in view of the indications made in Schedule III to the Recruitment Rules of 1996 in directing the Research Officer (Executive) to be equivalent to a Assistant Director (Executive), it is a case of the petitioner that he is entitled for promotion and therefore, in denying promotion to the petitioner on the ground that a Research Officer does not form a feeder post for promotion to the post of Deputy Director, it is stated that respondents have committed an error.

Inviting my attention to an order Annexure P/2 passed on 6.1.96 promoting the petitioner on the post of Deputy Director by treating the post of Research Assistant to be equivalent to Assistant Director which is in conformity with the mandate of Rule 14 read with Schedule III of Recruitment Rules of 1996 and order passed vide Annexure P/4, Shri Vipin Yadav argues that as the petitioner is Research Officer which post is equivalent to that of Assistant Director (Executive), the respondents have committed an error in canceling the promotion of the petitioner. Shri S. K. Singh, learned counsel for the State Government and Shri D. K. Dixit, learned counsel for respondent No.2 refutes the aforesaid and points out that there is no order passed by the State Government declaring the post of Research Assistant to be equivalent to the post of Assistant Director (Executive). It is their case that under Schedule 1 to the Recruitment Rules in accordance to the mandate of Rule 5 various posts are classified along with their pay scale. The post of Assistant Director (Executive) and post of Deputy Director -cum-Deputy Registrar are some of the posts classified in Schedule I. Thereafter in Schedule II in accordance to provisions of Rule 6, the method of recruitment, the quota to be fixed for recruitment and the post to which recruitment are to be made are classified. Thereafter in Schedule III in view of the provisions of Rule 8 which pertains to the conditions and eligibility for direct recruitment, various posts for direct recruitment along with the age and qualification are laid down. It is the case of the respondents that indications made in Schedule III showing Research Officer to be equivalent to Assistant Director (Executive) is only for the purpose of considering them for the purpose of direct recruitment. It is stated that in Schedule IV under Rule 13 which contemplates the procedure for promotion, there is nothing to indicate that along with an Assistant Director (Executive) the Research Officer also forms and feeder post for promotion to the post of Deputy Director. It is stated that in the absence of a Research Officer being shown as feeder post for promotion in Column No.2 of the feeder post, contention of the petitioner cannot be accepted. Accordingly respondents contend that the indications of Research Officer being equivalent to Assistant Director in Schedule 3 cannot be read into provisions of Rule 2 for the purpose of forming a feeder cadre for promotion to the post of Deputy Director. Accordingly on the aforesaid ground, respondents resist the claim of the petitioner. I have heard learned counsel for the parties and perused the record. For the purpose of deciding the dispute between the parties, it is necessary to take note of various provisions of Recruitment Rules of 1996. Rule 8 of the said Rules lays down the conditions and eligibility of candidates for direct recruitment to various posts under the Rules. The age, qualification and various other criteria are laid down in Rule 8 and Schedule III classifies the name of the service, the age, qualification etc. of the persons to be recruited directly to the post mentioned in column No.2. In this column the post of Research Officer and Assistant Director (Executive) are clubbed together and are shown to be equal with identical criteria for age and qualification for the purpose of recruitment are laid down. Thereafter the method of direct recruitment and selection is contemplated under Rule 11 and the procedure for appointment by promotion is contained in Rule 13. Shedule IV is a Schedule to Rule 13 pertaining to promotion and in Column NO.2 the name of the service or post from which promotion is to be made to the post in Column No.3 are indicated. Admittedly, in Column No.2 the post of Research Officer does not form a feeder cadre. It is only post of Assistant Director (Executive) which is mentioned in this column. Learned counsel for the petitioner wants this Court to read the requirement of feeder cadre along with requirement of Rule 14 and to hold that every post which is shown to be equivalent to form a common post as far as feeder cadre in Schedule 4 is concerned. That being so, it would be appropriate to take note of mandate of Rule 14 which reads as under :

Conditions of eligibility for promotion (1) Subject to the provisions of sub rule (2), Departmental Promotion Committee shall consider the cases of all persons, who, on the first day of January of that year had completed service of such number of years whether in officiating or substantive capacity, on the post from which promotion is to be made or on any other post or posts declared by the Government equivalent thereto as specified in Column (4) of Schedule IV and are within the zone of consideration in accordance with the provisions of sub rule (2)

Emphasis supplied

If the aforesaid Rule is read in its close proximity it would be seen that the conditions of eligibility for promotion is stipulated therein and it is stated that all such persons would be eligible for promotion who are working either in substantive capacity or officiating capacity on the post from which promotion is to be made or any other post or posts declared by the Government to be equivalent thereto as specified, in Column No.4. As already indicated herein above, the feeder post is shown as Assistant Director (Executive). If the requirement of Rule 14 is analyzed, it would be seen that promotion is to be made from any post in which a incumbent is working either on officiating capacity or in a substantive capacity or on a post which has been declared by the Government to be equivalent thereto, to the post specified in Column No.4 of Schedule IV. Admittedly, in this case there is no declaration by the Government to the effect that the post of Research Officer and Assistant Director (Executive) are equivalent for the purpose of Schedule IV. The petitioner wants this Court to hold that the indications of both these posts have shown as equivalent to Schedule III is nothing but a declaration to that effect and therefore, the post of Research Officer is a feeder post as it is equivalent to the post of Assistant Director. If this contention of the petitioner was to be accepted then the wordings of the Rules would not have been in the manner as indicated in Rule 14. In Rule 14 the words used are "posts to be declared as equivalent by the Government". It does not say "posts which are equivalent or as specified in the Rules or as indicated in the Rules". In the Rules under Schedule III, the post of Research Officer is shown as equivalent to that of Assistant Director and if that be so and if the intimation of rule makers was to import this provision into Schedule IV then the words used in Rule 14 would have been "equivalent as specified in the Rules or as shown in the Rules" instead of "declaration by the Government". Use of words "as declared by the Government" clearly indicates that what is indicated in the Schedule to the Rules is not the one referred to in the Schedule III, it has to be so declared. What is shown in the rule under Schedule III is the one which is already prescribed and provided for. Use of specific words "declared by the Government" in Rule 14 clearly goes to show that the intention of the rule makers is that apart from the stipulations and specification made in the statutory rules a specific declaration is to be given by Government with regard to equation of a post because if the equation of post indicated in the Rules and the schedule thereto were sufficient enough then it was not necessary to use the words "declaration by the Government". Declaration is for something which is to be done separately as it is not provided in the Rules because if it is provided in the Rules then as it is already specified for, and therefore, for that no further declaration is required. In that view of the matter the interpretation given by the petitioner to Rule 14 cannot be accepted by this Court. Accordingly, I am of the considered view that the respondents are right in contending that the requirement of the Schedule i.e. Schedule III and IV of the Rules are different and in the absence of a Research Officer being shown as feeder post for promotion to the post of Deputy Director under Schedule IV or in an absence of separate declaration by the State Government in accordance to the requisite Rule 14 to the effect that post of Research Officer and that of Assistant Director are equivalent, contention of the petitioner cannot be accepted. If the reasoning given by the respondents in the impugned order Annexure P/11 is read in its totality, it would be seen that the Government and the competent authority has recorded a finding to the effect that the Research Officer is not a feeder post for promotion to the post of Deputy Director and as they have committed a mistake on earlier occasion they have corrected the same. Reasons given by the State Government in the order Annexure P/11 seems to be in confirmity to the Rules as discussed herein above. Merely because some mistake has been committed by the State Government which is now being corrected interference into the matter is not warranted as the mandate of the rules clearly establishes that the post of Research Officer is not a feeder post for a promotion to the post of Deputy Director and in the absence of separate notification issued by the State Government declaring both these posts to be equivalent, contention of the petitioner cannot be accepted. Accordingly, finding no merit in the contention raised by the petitioner warranting consideration, this petition is dismissed.