NAKSHATRA SINGH DHALIWAL Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) THE petitioner was appointed Circle Organiser, Tribal and Harijan Welfare Department, with effect from 23rd April 1963. Certain post of Debt Relief Inspectors were advertised. The petitioner applied for the post of Debt Relief Inspector and was selected. He was appointed Debt relief Inspector on 20th September 1965. By order, dated 15th May 1973, 62 persons were appointed as officiating Area Organisers/development assistants/district Tribal Welfare Assistants in a joint cadre by promotion from the officers working as Circle Organisers, Debt Relief Inspectors and statistical Assistants. Respondents 7 to 24 were also appointed as Development Assistants by this order. The petitioner by this petition under Article 226 of the Constitution prays for quashing of the order (Annexure VII), dated 15th May 1973, in so far as it relates to respondents 7 to 24.

(2.) RECRUITMENT to the joint cadre of Area Organisers, District Tribal welfare Assistants and Development Assistants is governed by the Madhva pradesh Tribal and Harijan Welfare (Gazetted) Service Recruitment Rules, 1969. These Rules were made by the Governor of Madhya Pradesh under article 309 of the Constitution by a Notification, dated 2nd July 1970, published in the Madhya Pradesh Gazette, dated 2nd October 1970. There are three modes of recruitment: (a) by direct recruitment, i. e. , by selection and examination; (b) by promotion of members of the service; and (c) by transfer of persons who hold such posts in such services as may be specified in this behalf. In the instant case, we are concerned only with appointments by promotion. We shall, therefore, only refer to those provisions of the Rules which deal with this aspect. Rule 13 provides for Constitution of a Committee for making a preliminary selection for promotion of eligible candidates. Rule 14, which provides for conditions of eligibility for promotion; Rule 15, which deals with preparation of list of suitable officers; Rule 16, which relates to consultation with the Commission; Rule 17, which deals with the preparation of select list and Rule 18, which provides for appointment to the service from the select list, read as follows :

(3.) A perusal of the relevant rules brings out certain anomalies. The first anomaly that appears to us is that in the Schedule Auditors can also be considered for promotion to a post in the joint cadre. There is, however, no mention of Auditors in Rule 14, which provides for conditions of eligibility for promotion. In case of conflict between a positive statutory provision and matters included in a Schedule, the normal rule is that the positive statutory provision prevails. This question, however, does not arise in the instant case; because, although Auditors were not considered for promotion, no person holding the post of Auditor has come forward to challenge the promotions.