LAWS(MPH)-2013-7-89

SUBHASH SAXENA Vs. STATE OF MP

Decided On July 22, 2013
SUBHASH SAXENA Appellant
V/S
STATE OF MP Respondents

JUDGEMENT

(1.) SINCE these petitions are interconnected, with the consent of parties, matters are analogously heard and decided by this common order.

(2.) BRIEF facts necessary for adjudication of these matters are as under:- The petitioner was appointed on the post of Sub-Engineer in Special Area Development Authority (SADA) Malajkhand on 24.6.1982. On 12.1.1988 the petitioner was transferred by the State Government to SADA Chirmiri. The transfer order dated 12.1.1988 was subsequently modified on 20.12.1988 and the petitioner was transferred by the State Government to Gwalior Development Authority (GDA) Gwalior. On 29.12.1988 the petitioner joined at Gwalior. On 9.11.1995 the State Government passed an order directing that the petitioner shall be treated to be an employee of Housing and Environment Department because SADA, Malajkhand stood abolished on 22.6.1995. The petitioner contended that other similarly situated persons, who were transferred to GDA like petitioner, have been promoted by GDA on 30.11.1995 (Annexure P/13). By placing reliance on the judgment of this Court, delivered in Misc.Petition No. 1905/1992 (S.C.Hiranandani and others vs. State of MP and others), it is contended that Madhya Pradesh Special Area Development Authority (Chairman and Officers and Servants Recruitment and Conditions of Service) Rules, 1976 (hereinafter called as "1976 Rules") shall govern the service conditions of the employees working under Development Authorities. The Rules are made in exercise of power conferred by Sections 67(2) and 85 of Nagar Tatha Gram Nivesh Adhiniyam, 1973 (hereinafter called as "Adhiniyam"). The State Government created State cadre by Annexure P/5 dated 30.5.1996 which included the petitioner's post of Assistant Engineer. On 6.2.1999 a seniority list was published showing the position as on 1.7.1995 which reflects the name of the petitioner. A seniority list (Annexure P/9) was issued wherein the petitioner's seniority was shown from 7.9.1987. The petitioner was satisfied with this seniority list but the private respondents were aggrieved with the said seniority list. Against this seniority list, B.B.Mathur and D.D.Mishra, Assistant Engineers of GDA preferred objection/representation to the State Government. In turn, the State Government passed the impugned order dated 30.7.2003 (Annexure P/10), whereby it is mentioned that from July 1995, M.P.Development Authorities Services are constituted. In the seniority list issued by GDA showing the position as on 30.6.1995 only such Assistant Engineers' names can be mentioned who were appointed by GDA before 30.6.1995. It is further mentioned that the GDA issued the seniority list showing the position as on 30.6.1995 which includes the name of Subhash Saxena, the present petitioner, who was not an employee of GDA as on 30.6.1995. In fact the petitioner was an employee of SADA Malajkhand and was working on deputation to GDA. Accordingly, his seniority position needs to be mentioned in the concerned SADA and not in the establishment of GDA. It is further mentioned that GDA is not competent to decide regarding the service conditions of petitioner including his career advancement/promotion. This order is challenged in Writ Petition No. 8199/2003 with further prayer that the respondents be directed not to delete the name of petitioner from final gradation list, Annexure P/9, and consider his case for promotion in the next DPC. It is relevant to mention here that the petitioner is seeking enforcement of the gradation list with a prayer not to delete his name from final gradation list (Annexure P/9). This gradation list, Annexure P/9, gives seniority to the petitioner from 7.9.1987. In Writ Petition No. 189/2007, the petitioner has prayed for a direction to assign proper seniority to the petitioner in the seniority list dated 29.11.2006, wherein the petitioner's seniority is counted from 20.12.1994. It is prayed that the petitioner's seniority be counted from 7.9.1987 as Assistant Engineer in GDA. If the reliefs claimed in both the petitions are examined minutely, it is clear that the petitioner is claiming that his seniority as Assistant Engineer in GDA be counted from 7.9.1987.

(3.) THE said prayer is opposed by Mrs. Sangita Pachauri, learned Deputy Government Advocate, Shri P.D.Bidua, learned counsel for GDA and Shri D.K.Katare and Shri H.D.Mishra, learned counsel for the private respondent.