D.R. JHIRAD Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) WE propose to dispose of the two petitions Nos. 230 of 1972: D.R. Jhirad and two others v. State of Madhya Pradesh and three others and 793 of 1972: Chandrakant Keshavrao Pandey and two others v. State of Madhya Pradesh and nine others by this common order. Miscellaneous petition No. 230 of 1972 has been filed by Junior Employment Officers (J. E. Os.) and Miscellaneous petition No. 793 of 1972 by senior Statistical Assistants (S. As.). The contest is for promotion to the post of Employment Officer, State Employment Exchange. The contention of the J. E. Os. is that they form a separate category of service and belong to non -ministerial (executive) wing of the Employment Exchange, whereas the S. As. belong to ministerial wing. Though J.E. Os carry the scale of Rs. 190 -315 and S. As carry the scale of Rs. 190 -320, the nature of job they perform is superior, their responsibilities are greater and, therefore, their status higher than that of the S. As. The S. As. on the other hand contend that they are post -graduates, some of them are triple post -graduates and some even Law Graduates, whereas the J. E. Os. They are mere graduates and some only matriculates promoted as J. E. Os. They are, therefore, superior to the J. E. Os both in the academic qualifications and in the nature of job they perform. That since 1969, they have also been declared non -ministerial and the Government have recognized them as a superior class to the J. E. Os. If pay -scale is the criterion to judge superiority, they draw Rs. 5 more in the maximum and reach the higher stage quicker than the J.E. Os.

(2.) IT is an admitted position that the J. E. Os and Senior Statistical Assistants form independent categories. Their cadre strength has been separately determined. They are not inter changeable. Their gradation lists are separate. Not a single instance has been pointed out where a J. E. O. was ported to work as a Senior Statistical Assistant or a Senior Statistical Assistant to work as a J. E. O. While these two categories are separate and independent units, there are L. D. Cs., U. D. Cs. and Statistical Assistants (Junior Scale) who got promoted from their lower scales to higer. The Statistical Assistants (Junior Scale) who carry the pay -scale of Rs. 150 -290 and who are mere graduates, get promoted upon post -graduation as Senior Statistical Assistant or as J. E. Os. We are not concerned in these petitions with Statistical Assistants carrying the junior scale, because they are not the persons who could claim eligibility for promotion to the gazetted rank of Employment Officer till they first got promotion in the senior scale or as J. E. Os. The petitioners Jhirad and others (J. E. Os.) tried to create confusion by pleading that the Statistical Assistants could not be equated with them in the matter of promotion because they were to be first promoted as J. E. Os. and the next step was promotion as an Employment Officer. To remove the confusion, the Government came with clarification that never was a Statistical Assistant carrying senior scale promoted as a J. E. Os. It was Statistical Assistant of a junior scale who was either promoted as a J. E. O. or as a Statistical Assistant (Senior scale). The contest in the two petitions is between J. E. Os. and Statistical Assistants of senior scale.

(3.) THE Madhya Pradesh Employment Service (Gazetted) Recruitment Rules, 1966 came to be formulated under Article 309 of the Constitution and were brought into force with effect from 9 -6 -1967. Prior to these Rules, there were no definite instructions as to how promotions ought to be made to the posts of Employment Officers. The normal rule was to promote an incumbent from a lower scale to higher scale. But to begin with, only J. E. Os. came to be promoted as Employment Officers. The S. As. were dissatisfied with this and the J. E. Os. had a grievance that though they were performing more responsible job, their pay -scale was slightly inferior to S. As. It appears, the S. As. in the office, because of their higher pay -scale, thought that they were superior to J. E. Os. and were, therefore, slightly disrespectful to them. By letter dated 12th February, 1963 (Annexure 'A' in Misc. Petition No. 230/72), the Director of Employment and Training, Madhya Pradesh resolved the question of their status. He said that a J. E. O. was an Executive Officer whereas a Statistical Assistant was a Ministerial Officer. A. J. E.O. was, therefore, a superior Officer to a Statistical Assistant though carrying a lower pay scale. That the Statistical Assistant was subordinate to a J. E. O. The effect of this circular was that whenever the Employment Officer's chair fell vacant due to absence or illness, the J. E. O. was the person to hold current charge in preference to the Statistical Assistant. The promotions to the posts of Employment Officers came to be made from out of J. E. Os. respondents 3 to 6 were such J. E. Os. promoted in preference to S. As. prior to 1966. The petitioners Statistical Assistants - -in Misc. Petition No. 793 of 1972, though senior in length of service to the respondents 3 to 6, who were Junior Employment Officers, could not have challenged their appointments because there were no Rules of Promotion and the Government could make selection from out of any category. It is only after the 1966 Rules came into force that the eligible Statistical Assistants could claim to be considered for promotion to the post of Employment Officer. The petitioners in Misc. Petition No. 793/72, therefore, rightly conceded that the promotions made prior to 1966 were unaffected by the Rules, and they could challenge only those promotions made after 1966 Rules came into force. The grievance was, therefore, confined to promotions of respondents 7 to 9, who had lesser length of service as J. E. Os. than the petitioners as Statistical Assistants. They did not press the petition as against respondent No. 10, who was a Superintendent. The question of status as between a J. E. O. and a Statistical Assistant did not rest with the letter dated 12 -2 -1963. It appears, the question was reagitated after the 1966 Rules came into force. The Director had to reconsider the issue. By letter dated 28th June, 1971, the earlier communication dated 12 -2 -1963 was cancelled. The Director said that the matter as to who should hold the current charge of the Employment Officer in the event of his absence or illness, would depend upon the length of service of a J. E. O. or the Statistical Assistant attached to the unit. They were, as if, persons of equal status and one who had longer service to his credit, was the person entitled to bold the current charge. The J. E. Os. (Petitioners in Misc. Petition No. 230/72) have a grievance about this letter dated 28th June, 1971. It is Annexure 'F' in their petition. They want this communication to be struck down, having brought about equality in status between J. E. Os. and Statistical Assistants and having reduced their chances of promotion to the post of Employment Officer. According to them, they constituted a superior service and were the only persons eligible for promotion as Employment Officers. After their list was exhausted on seniority -cum -merit basis, the Statistical Assistants could be considered. They could not be placed together, nor could a separate combined list be prepared on the basis of length of service for the purposes of promotion. That places them much below in the combined list. It would be pertinent to reproduce the relevant rules under which the promotions are now being made. Madhya Pradesh Employment Service (Gazetted) Recruitment Rules, 1966: