The State Of M.P. vs Prahlad Singh Tomar & Ors.
2021 Latest Caselaw 6180 MP

                                    [1]


       THE HIGH COURT OF MADHYA PRADESH
                            WP-5283-1999
     ( V.K. SHRIVASTAVA AND ANOTHER Vs PRAHLAD SINGH TOMAR AND OTHERS)

                           WP-1779-2000
     ( THE STATE OF MADHYA PRADESH Vs PRAHLAD SINGH TOMAR AND OTHERS)


Jabalpur, Dated : 29-09-2021

        Per : Mohammad Rafiq, Chief Justice

        Mr. Sanjay Ram Tamrakar, learned Advocate for the

petitioners in WP No.5283/1999.

        Mr. Pushpendra Yadav, learned Additional Deputy Advocate

General for the appellant State.

        These two writ petitions are directed against the common

judgment of erstwhile M.P. Administrative Tribunal, Bhopal Bench,

Bhopal dated 20.8.1999.

2.      Respondent No.1-Prahalad Singh Tomar approached the

Tribunal assailing the seniority list Annexure A-2 and seeking a

declaration that he is senior to the respondents No.2 to 11 in the

Original Application, who are petitioners No.1 and 2 and private

respondents No.3 to 10 in the present writ petitions. He also sought a

declaration that he may be promoted to the post of Executive

Engineer in the D.P.C. which is going to be held shortly. Even

though service of notice was affected on all the private respondents

before the Tribunal but none of them chose to file the return and the

matter was decided after hearing the learned counsel for the

respondent No.1-Prahalad Singh Tomar and the learned Government

Advocate.

3. The facts of the cases as noticed from the impugned order are [2]

that the respondent No.1/Original Applicant before the Tribunal was

promoted to the post of Assistant Engineer on 19.1.1990 from the

post of Sub-Engineer and became member of the Rural Engineering

Services (Gazetted). He was given charge of the office of Executive

Engineer, Raisen Division, Raisen vide order dated 22.10.1997. This

order was passed on the basis of the original seniority as contained

in Annexure A-4 showing the seniority position as on 1.4.1994 and

Annexure A-5 showing the seniority position as on 1.4.1995. In both

of which, he was shown senior to the private respondents before the

Tribunal. However, vide order dated 1.4.1997 a provisional seniority

list of Assistant Engineers as per Annexure A-7 was issued vide

letter dated 16.6.1997 (Annexure A-6). In that seniority list, for the

first time, the respondent No.1 herein/Original Applicant before the

Tribunal was shown junior to the private respondents No.2 to 11

before the Tribunal. The Respondent No.1 herein/Original Applicant

before the Tribunal submitted a representation against the said

seniority list before the official respondent, on 14.7.1997, which

however, was rejected by order dated 29.10.1997 vide Annexure A-

9. Hence he approached the Tribunal by filing the Original

Application.

4. The facts which are not in dispute are that two petitioners and

private respondents No.3 to 10 in W.P. No.5283/1999 were initially

appointed as Assistant Engineer on adhoc basis in the year 1982.

Their services were eventually regularized in terms of M.P.

Regularisation of Adhoc Appointment Rules, 1986 (hereinafter

referred to as in short "Rules of 1986") on the basis of the report of [3]

the Screening Committee constituted sometime in the year 1987.

Even though the Committee recommended the case of 15

incumbents including 10 private respondents before the Tribunal for

regularization, however, due to non-availability of sufficient posts

for direct recruitment under the Recruitment Rules of 1986, only 5

of them could be regularized on 30.6.1987. Therefore the private

respondents before the Tribunal were regularized somewhat

belatedly in the year 1990.

5. The respondents/State authorities however relying on the

judgment of the Tribunal dated 31.12.1994 in the case of one S.P.

Shukla passed in T.A. No.3931/1988 granted the benefit of seniority

to the private respondents before tribunal over the Respondent

No.1herein/Original Applicant before the Tribunal. The Tribunal has

analized the provisions of Rules 10, 11 and 12 of the Rules of 1986

in para 5 and 6 of the judgment, which reads as under :-

"5. Rule 10 relating to waiting list as well as Rules 11 and 12 of M.P Regularisation of Adhoc Appointment Rules, 1986 are relevant to decide the seniority of the private respondents, which are reproduced as under:-

Rule-10 A waiting list of the person of the general category who cannot be immediately regularized by the aforesaid process for want of posts, but who are found suitable for regularization shall be prepared. Their appointment shall be made against the posts filling vacant in future and against the posts which could not be filled from the reserve quota:

Provided that such waiting list shall be varied only upto 30th June, 1987.

Rule 11 The selection list prepared by the Screening Committee and the appointments made from such Selection list shall be treated as a Selection List prepared and appointments made under the relevant recruitment rules.

Rule 12 A person appointed under these rules shall be entitled to seniority only from the date of the order of regular appointment and shall be placed below the persons appointed in accordance with the relevant recruitment rules prior to the appointment of such person under these rules.

If two or more persons are appointed together, their seniority inter-se shall be determined in the order mentioned in the order of appointment.

[4]

6. Thus, as per Rule 10, the waiting list shall be treated as Selection List for regularization of the persons founds suitable. However, such waiting/selection list was varied only upto 30th of June, 1987 for appointment. As per Rule 12 the seniority has to be counted from the date of the order of the regular appointment and will be placed below the persons appointed in accordance with the relevant recruitment rules prior to the appointment of persons. Under Rule 11, to ascertain the seniority of the private respondents, vis-vis the applicant, the case of the private respondents has to be examined in the light of the aforesaid provisions contained under Rules 10, 11 and 12 of the Regularisation Rules of 1986."

6. According to the aforesaid view taken by the Tribunal, the

persons appointed under aforementioned Rules of 1986 shall be

entitled to seniority only from the date of the order of the regular

appointment and shall be liable to be placed below the persons

already appointed in accordance with relevant recruitment rules prior

to his appointment. Undisputedly, the respondent No.1 was

appointed as Assistant Engineer by way of promotion on regular

basis prior to the regularization of the private respondents before the

Tribunal. The Tribunal has discussed the judgment of S.P. Shukla in

Para 10 of the impugned order and found that it was totally

distinguishable from the present case. Dispute in the case of S.P.

Shukla was that he was working as Sub Divisional Officer in the

Rural Engineering Service Department. He appeared before the

Committee for regularisation of his service as per Rules of 1986.

However his services were terminated in accordance with the Rules

of 1986 because the department took the view that he was not

possessing the required qualification for regular appointment. He

challenged the order of his termination before the Tribunal on the

ground of violation of Articles 14 and 16 of the Constitution of

India. The Tribunal eventually allowed the Original Application [5]

with a finding that he did possess the required eligibility qualification

and ultimately directed his reinstatement in service. The persons who

were appointed after him were regularised in service and he was held

entitled to seniority over such persons. Such are not the facts of present

case because in the present matter there is no dispute about the

eligibility qualification of any one of the incumbents including

respondent No.1/original applicant before the Tribunal.

7. At this stage learned counsel for the petitioners submitted that

this Court vide order dated 9th July, 2003 had directed that the status-

quo orders of this Court dated 17.12.1999 and 28.7.2000 will not come

in the way of the State Government for considering/ordering promotion

of the petitioners to the post of Executive Engineer. Almost all the

private respondents before the Tribunal have already retired from

service and respondent No.1 herein/original applicant before the

Tribunal is due to retire on 30.8.2021. Therefore, benefits availed by

them should be allowed to be retained. It goes without saying that if

any one of the parties in the meantime was promoted on the post of

Executive Engineer, that should not affect the promotion of respondent

No.1/original applicant before the Tribunal on the basis of the seniority

restored pursuant to the order of the Tribunal. The private respondents

may however retain the benefits, if any extend to them, by order of

such promotion or otherwise. We therefore, do not find any merits in

either of the writ petitions which are dismissed however with the

aforesaid clarification.

         (MOHAMMAD RAFIQ)                         (VIJAY KUMAR SHUKLA)
            CHIEF JUSTICE                                 JUDGE
skm

 Digitally signed by SANTOSH
 MASSEY
 Date: 2021.09.30 17:18:36 +05'30'