GIRDHARI LAL GAUR Vs. MUNICIPAL CORPORATION

JUDGEMENT

(1.) INVOKING the extra -ordinary jurisdiction of this court under Article 226 of the Constitution of India, the petitioners have prayed for issue of writ of certiorari for quashing of the standing order No. 3/1989 dated 27 -1 -1989, the minutes of the DPC dated 13 -6 -1989 as well as the order of promotion dated 26 -6 -1989 in respect of respondents 3 and 4 and to command the respondents to consider the case of the petitioner for promotion to the post of Chief Sanitary Inspector with effect from 26 -6 -1989 and confer him all consequential benefits.

(2.) THE facts which are essential to be stated is that the petitioners, two in number, were promoted to the post of Sanitary Inspector in Health Department of the Municipal Corporation, Bhopal, sometimes in May and June of 1968. Their promotion on the said post was concurred with by the Madhya Pradesh Public Service Commission and the same was intimated to them on 12 -5 -1977 by the Additional Commissioner of the Corporation. While the petitioners were functioning in the said post, the respondent No. 3 was promoted to the post of Sanitary Inspector on 3 -7 -1978 for a period of six months subject to concurrence of Public Service Commission. As pleaded, the said respondents continued in the said post without the concurrence of the Public Service Commission till he was further promoted to the Chief Sanitary Inspector on 29 -6 -1989 in violation of the provisions of section 58(1)(I) of the M. P. Municipal Corporation Act, 1956 (hereinafter referred to as 'the Act'). It is urged that the respondent No. 3 was even not entitled to be promoted to the post of Sanitary Inspector as he lacked 5 years of qualifying service. It is further putforth that the respondent No. 4 was promoted to the post of Sanitary Supervisor on 27 -6 -1983. The said respondent had not put in the requisite qualifying service for 5 years for higher services but he was promoted to the post of Sanitary Inspector by order dated 24 -12 -1985. Similar assertions have been made assailing his promotion to the post of Chief Sanitary Inspector.

(3.) A counter -affidavit has been filed by answering respondents 1 and 2 contending, inter alia, that the respondents 3 and 4 were promoted as Sanitary Inspectors as per procedure prevailing in the Corporation and Public Service Commission had concurred with in respect of the third respondent on 15 -2 -1983 for the post of Sanitary Inspector and in respect of respondent No. 4 on 7 -10 -1987. These documents have been brought on record as Annexure R -1 and Annexure R -2. It is putforth that the State Government has issued instructions for representation of Scheduled Caste and Scheduled Tribes for Municipal Services and the same has been adopted by the Bhopal Municipal Corporation. It is the stand of the Corporation that an amendment was incorporated on 26 -10 -1988 under section 58 of the Act whereby it has been laid down that promotion in respect of certain posts the concurrence of Public Service Commission was not necessary and, therefore, the promotion of the respondents were not invalid. It is contended that averments have been made on the foundation of un -amended provisions and, therefore, the writ petition deserves to be thrown overboard. It is the stand of the Corporation that it had no recruitment rules and, therefore, the condition of the Services were to be governed by the Standing Order of M. P. Government by which the Municipal Corporation has to act till the recruitment rules are framed. The Commissioner had issued the Standing Order No. 39576, adopting the policy as per Annexure R -4. Roster for promotion is required to be maintained where the number of post are more than 20 and the respondents No. 3 and 4 were promoted as they belong to Scheduled Caste as Scheduled Tribe Candidates were not available.