SUBHASH KUMAR DUBEY Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) BY filing this writ petition under Article 226 of Constitution of India, the petitioner initially claimed a relief of direction to the respondents to convene a Departmental Promotion Committee (hereinafter referred to as the DPC for brevity) and to consider the claim of the petitioner for grant of retrospective promotion. The petitioner has also claimed quashment of proceedings of D.P.C. dated 09.05.2005 as also quashment of orders dated 16.05.2005 and 09.12.1998. It is contended by the petitioner that in terms of the provisions of the Rules governing the services, the petitioner had attained the eligibility to be considered for promotion after completing three years of service, but instead of considering such claim only because on earlier occasion an ineligible employee was promoted on the post of Junior Accounts Officer, the DPC meeting was not convened. After filing of a return by the respondents, indicating that the petitioner was granted promotion in the year 2006 exhaustive amendment was made in the writ petition claiming retrospective promotion w.e.f. year 2001, and it was contended that only because timely the D.P.C. was not held the legitimate claim of the petitioner was not considered. It is thus contended that after quashment of all those proceedings, the respondents be commanded to grant the benefit of promotion to the petitioner with retrospective effect.

(2.) INITIALLY the return was filed by the respondents saying that since the petitioner has been promoted on the post of Junior Accounts Officer by an order issued in the year 2006, the claim made by the petitioner has been satisfied and the writ petition has rendered infructuous. However, when the amendment was made in the return, by filing an additional return, the respondents have very categorically contended that the petitioner was not entitled to grant of any promotion with retrospective effect in view of the fact that the petitioner has completed the eligibility conditions in the year 2001, and thereafter no DPC was convened for considering the claims of persons like petitioner. It is further contended that there was a considerable change in the setup as State Government took a decision to abolish the divisional office where the posts of Junior Accounts Officers were sanctioned. Since such a decision was taken in the year 1999, divisional offices were abolished, the petitioner had not attained the eligibility till that time to be considered, even if the respondent No.5 was promoted in his division by a divisional committee, such an order of promotion of respondent No.5, cannot be made a ground for grant of retrospective promotion to the petitioner, who was not eligible till the year 2001 for such promotion. Accordingly, it is contended that on merit as well the petitioner has no claim whatsoever and the petition is liable to be dismissed.

(3.) UNDISPUTEDLY , by now during pendency of the present petition, the petitioner has attained the age of superannuation and has retired. It appears that because of this reason, the respondent No.5 or any other person has not raised any objection with respect to whatsoever claim is made in the present writ petition as the interest of none of them would be adversely affected, in case any relief is granted to the petitioner. Now to examine the claim of petitioner on merits. It is not in dispute that the service of the petitioner was governed by the Rules known as M.P. Public Health and Family Welfare (Directorate of Health Services) Class III Ministerial Service Recruitment Rules, 1989 (hereafter referred to as '1989 Rules'). It is not in dispute that the posts of Junior Accounts Officers and the post of Camp Coordinator are included in the said Rules. It is specifically prescribed that there are four sanctioned posts of Junior Accounts Officers which are to be filled in 100% by promotion of the members of service. The channel of promotion is prescribed in Schedule IV of the 1989 Rules. The posts of Junior Account Officers can be filled in by promotion of Assistant Superintendent/ Manager Medical Store/ Auditor/ Camp Coordinator and Accountant (MDT). The Head Clerk division level, Assistant Head Clerks are to be promoted on the posts of Assistant Superintendent/Manager Medical Store/ Auditor/ Camp Coordinator /Accountant (MDT). The only essential qualification and experience prescribed for such promotion is passing of accounts training and three years of service on the Feeder post. The classification as given in the Rules nowhere prescribed that there are different division level posts. It is nowhere prescribed that the setup as indicated in the Schedule of 1989 Rules would be applicable only and only in the directorate of Health services and not at the division level. On the other hand, Schedule I (b) of the 1989 Rules categorically indicates that these posts are at division level as well. Such a classification is prescribed as per Rule 5 of 1989 Rules, where a power is provided to the State Government to increase or reduce the member of services included in the Rules either on permanent or temporary basis.