AJIT KUMAR SINGH Vs. STATE OF M.P.

JUDGEMENT

(1.) INITIALLY, this petition was filed challenging the validity of order dated 26.4.2007, by which the respondent No.3 was promoted on the post of Senior Accountant in a higher pay scale alleging that there was contravention of provisions of M.P. Public Service (Promotion) Rules, 2002 (hereinafter referred to as 2002 Rules for short), but since during pendency of the writ petition, the respondent No.3 was further promoted on the post of Accounts Officer on 16.8.2011, an amendment was made in the writ petition and a relief in respect of quashment of such an order was also claimed. It is contended by the petitioner that in the seniority list so issued, the petitioner was shown at Serial No.1 right from the date of his initial appointment. He was shown senior to the respondent No.3 even when the promotion as Accountant Grade-I was granted and this position is clear from the seniority list of the Accountant Grade-I, issued showing the position as on 1.1.2004. It is contended that in terms of the provisions of the 2002 Rules, the promotion from the post of Accountant Grade-I to the post of Senior Accountant was to be made on the basis of seniority-cum-merit and as such, the petitioner could not have been superseded in the matter of promotion. Placing on record the Departmental Promotion Committee proceedings, the petitioner has pointed out that the Departmental Promotion Committee made the application of criteria of merit-cum-seniority and selected the respondent No.3 for promotion only because he was said to be more meritorious than the petitioner, therefore, such a promotion was bad in law. Since there was a vacancy available, later on, the order was issued giving benefit of officiating charge with the special pay at 20% of the pay of the promotional post to the respondent No.3 even though he had not completed the requisite years of services for such regular promotion on the post of Accounts Officer by the subsequent order dated 16.8.2011, therefore, the petitioner being a senior person has been put to work under a junior. It is contended that such orders are bad in law and are liable to be quashed.

(2.) THE respondents in response to the writ petition by filing a return, have contended that 2002 Rules have no application, inasmuch as, the statutory Rules have been made by the Corporation which specifically provides consideration of the cases for promotion on merit-cum- seniority basis. It is contended that the merit of the persons who were within the zone of consideration was drawn and as it was found that the respondent No.3 was more meritorious than the petitioner, the promotion order was rightly issued in his respect. It is contended that since nothing wrong is committed in this respect, when a vacancy of the Accounts Officer occurred, keeping in view that the respondent No.3 could not have been regularly promoted, but was required to be given the charge of the post, the order was issued on 16.8.2011 and since he was discharging the duel duties, the 20% pay of the higher post was given to him as double duty allowance. Since this is only a step gap arrangement, the posting of the respondent No.3 as Accounts Officer is not required to be quashed.

(3.) UNDISPUTEDLY, first and foremost question is whether the 2002 Rules are applicable in the Corporation or not. Learned senior counsel for the petitioner has taken this Court to the preamble of the 2002 Rules. It is contended that 2002 Rules have been framed in exercise of powers conferred by proviso to Article 309 read with Article 16 and 335 of the Constitution of India and, therefore, the Rules are made for the purposes of determination of basis of promotion in the public services and on the post, and are relating to reservation in favour of Scheduled Caste and Scheduled Tribe. It is contended that the definition of the establishment as has been given in Rule 2(f) of the 2002 Rules, will make it clear that 'Establishment' means any office of the State Government or a local authority or Statutory authority constituted under any Act in which the State has not less than fifty one percent of the paid-up share capital. Further, reading the definition of 'Service' as given in Rule 2(o) of 2002 Rules, it is pointed out by learned senior counsel for the petitioner that 'Service' means a service of group of posts in connection with the affairs of the State other than the Indian Administrative Service, Indian Police Service and Indian Forest Service organised and designated as such by Government. Reading the provisions of Rule 3 of 2002 Rules, learned senior counsel for the petitioner pointed out that the 2002 Rules are made applicable to the establishment as defined in the Rules, but are not applied to the employment specified in Clauses (1), (3) and (5) of Section 3 of Madhya Pradesh Lok Seva (Anusuchit Jatiyon, Anusuchit Jan Jatiyon Aur Anya Pichhade Vargon Ke Liye Arakshan) Adhiniyam, 1994. Taking this Court to the provisions of Rule 6 of 2002 Rules, learned senior counsel for the petitioner pointed out that the provisions are specifically made fixing the criteria for consideration of promotion in case the criteria of seniority-cum-merit is applicable. Taking this Court to the provisions of Rule 7 of 2002 Rules, it is contended by learned senior counsel for the petitioner that for the purposes of consideration of promotion on the basis of merit-cum-seniority, a different criteria is laid down. Again the provisions of Rule 14 and 15 of 2002 Rules, have been read out and it has been contended by learned senior counsel for the petitioner that no doubt is left in view of the specific provisions made that all Service Rules regulating the recruitment to the Public Service and the post shall be deemed to have amended to the extent as provided in the 2002 Rules and, therefore, from the date the 2002 Rules have come into force, only such Rules would be applicable and not the provisions of the Regulations or Rules made by the respondent No.2.