S K GUPTA Vs. STATE OF M P

JUDGEMENT

(1.) This writ petition under Article 226 of the Constitution of India has been filed seeking to challenge the order dated 7-8-2011 passed by the respondent-State, by which approval of promotion of the petitioners on the post of Assistant Engineer, as was granted on 23-9-2008 has been withdrawn with immediate effect, contending that the petitioners who were appointed initially as Sub Engineer in the Municipal Corporation, Bhopal, were considered for promotion on the post of Assistant Engineer in the Departmental Promotion Committee meeting held in the year 2008. In terms of the provisions of section 58 of the M.P. Municipal Corporation Act, 1956 (hereinafter referred to as the Act for brevity), the approval from the State Government was sought, which was accorded on 23-9-2008. Accordingly, the order of promotion was issued on 24-9-2008. However, because of the withdrawal of the order of approval now the consequential effect would be reversion of the petitioners on the post of Sub Engineer, therefore, they are required to approach this Court. Briefly stated facts giving rise to filing of this writ petition are that the petitioners two in number were appointed on different dates on the post of Sub Engineer vide orders dated 20-4-1990 and 27-10-1986. These orders of appointment were issued only after selection of the petitioners by the Selection Board as prescribed. There were two posts of Assistant Engineer available which according to the M.P. Municipal Corporation (Appointment and Conditions of Service of Officers and Servants) Rules, 2000 (hereinafter referred to as 2000 Rules for brevity) were to be filled in by promotion. A Departmental Promotion Committee meeting was held on 7-7-2008. The petitioners were found to be eligible having obtained the degree of Bachelor of Engineering in the year 2001 and 2004 respectively and the select panel was sent for approval before the State Government. Since the approval was granted on 23-9-2008, the order of promotion was issued on 24-9-2008 and pursuance to said order of promotion, the petitioners took over the charge and started working on the promotional post. However, some complaint was made stating that the petitioners were illegally promoted as in terms of the Rules, they were ineligible to be considered for promotion being diploma holders at the time of initial appointment as Sub Engineers, therefore, the promotion of the petitioners was bad. Without granting any opportunity of hearing, the order impugned was issued, therefore, the petitioners are required to approach this Court.

(2.) The writ petition was entertained, the notices were issued to the respondents in response to which the respondents No. 1 and 2 have filed their return categorically contending that in terms of the provisions of Rules, the procedure as laid down under the M.P. Public Works Department Engineering (Gazetted) Recruitment Rules, 1969, the petitioner could not be promoted on the post of Assistant Engineer treating them as degree holder Sub Engineers, on completion of 8 years of service, inasmuch as, the petitioners have not completed the requisite 8 years of service as degree holder Sub Engineer from the date of obtaining the degree. An amendment was made in the Rules of Public Works Department and according to that amendment if the seniority of the petitioners are fixed, the petitioners would not be entitled to be considered for promotion as degree holder Sub Engineer. This being the error committed in consideration of the case of petitioners, the order was rightly issued withdrawing the earlier approval granted in respect of promotion of petitioners. It is, thus, contended that the order impugned has rightly been issued and no interference in the order is called for. As far as the respondents No. 3 and 4 are concerned, a common return has been filed by the Municipal Corporation contending that the Departmental Promotion Committee considered the cases of persons like petitioners for promotion only because none of the reserved category candidates were available for promotion fulfilling the criteria. In terms of the Recruitment Rules, the petitioners were considered and since the recommendations were duly approved by the State Government, the order of promotion was issued in respect of petitioners. It is contended that since the order impugned has been issued, the order of promotion of the petitioners has been cancelled, but since the interim relief is granted by this Court to the petitioners in the writ petition, the status-quo with respect to the posting of petitioners is being maintained. Two other Sub Engineers working in the Corporation have moved I.A. No. 5531/2001 seeking intervention in the writ petition to oppose the same. The said I.A., has been allowed by this Court and interveners were heard.

(3.) Though a rejoinder has been filed by the petitioners to the return filed by the State Government, but almost the same contentions have been reiterated with respect to the claim of promotion. It is contended that the seniority of the petitioners is to be fixed from the date of initial appointment as Sub Engineer and not from the date of acquiring the degree of Bachelor of Engineering. Referring to the law laid down by the Apex Court in that respect, it is contended that consideration of the petitioners was rightly done for grant of promotion on the post of Assistant Engineer and, therefore, the petitioners would be entitled to the relief claimed in the writ petition.