Dr. Rakesh Kumar Sharma vs The State Of Madhya Pradesh
2022 Latest Caselaw 3306 MP

                         1                                        W.P.No. 14029/2020

                HIGH COURT OF MADHYA PRADESH
                             BENCH AT GWALIOR


                               SINGLE BENCH:
                              ANAND PATHAK, J


                   WRIT PETITION NO.14029 OF 2020
                     Dr. Rakesh Kumar Sharma & Ors.
                                       Versus
                             State of M.P. and Anr.
---------------------------------------------------------------------------------------
Shri Pawan Kumar Dwivedi, learned counsel for the petitioners.
Shri    Devendra       Chaubey,       learned      Government        Advocate       for
respondents/State.
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                                     ORDER

th (Passed on this 9 day of March, 2022)

Instant writ petition is preferred by Eleven Petitioners / Veterinary

Assistant Surgeons, who were appointed as per details given in Para 5.1

to 5.11 in the writ petition. All the petitioners have been appointed on

regular basis in the cadre of Veterinary Assistant Surgeons (for brevity

"VAS") between year 1986 to 1988 by following due procedure. All the

petitioners have completed more than 30 years of service on the post of

VAS and received benefit of 3 rd Time Scale of Pay by different orders

passed in year of 2019-20 and copies of the same are enclosed with the

petition as Annexure P/4 collectively.

2. Grievance of the petitioners as reflected in the petition is that they

belong to Unreserved Category (for brevity "UR") and respondents have

not convened Departmental Promotion Committee (DPC) for promotion

on the post of Deputy Director from the feeder cadre of VAS as per

Madhya Pradesh Public Services (Promotion) Rules, 2002.

3. Precisely stated facts of the case are that petitioners were

appointed as VAS between the period 1986 to 1988 and received 3 rd

Time Scale of Pay. Earlier State of Madhya Pradesh framed Rules

regarding promotion of all the employees in various departments of State

Government, namely Madhya Pradesh Public Services (Promotion)

Rules 2002 (for brevity "Rules of 2002"). These rules provide in Rules 6

and 7 that the meeting of DPC shall be held every year.

4. Before the Rules of 2002 came into being, as submitted State

Government maintained the seniority in the Veterinary Department

strictly in accordance with the date of appointment of candidates and the

promotions were given as per the criteria prescribed in the recruitment

rules i.e. Madhya Pradesh Veterinary Services (Gazetted) Recruitment

Rules, 1966 (for brevity "Rules of 1966") but after the provision for

providing reservation in promotion was made, State Government

changed the criteria of granting seniority and disturbed the original

seniority of the persons. According to petitioners, this created anomalous

situation because candidates who came into reserved category were got

promoted earlier to the candidates of UR category.

5. It is further submitted that the post of Deputy Director is a 100%

promotional post. Statistically, respondent Department has total 204

sanctioned posts of Deputy Director, out of which 131 posts are of UR

category and rest of them are for reserved category. It is further clarified

by counsel for the petitioners that out of said 131 posts of UR category,

only 62 posts are filled at the time of filing of writ petition and rest 69

posts were lying vacant. These vacant posts are 100% promotional posts

in UR category.

6. Plight of petitioner further reflected in submissions that

respondents Department convened its last meeting of DPC in the year

2014 for both reserved and UR category. Since then no DPC for

promotion on the post of Deputy Directory, Animal Husbandry

Department (earlier it was Veterinary Services) has been held.

7. According to petitioners, last promotion in the UR category from

the cadre of VAS was done from the batch of 1986; whereas, in the

reserved category candidates up to the batch of 1994 have been

promoted on the post of Deputy Director.

8. In the case of R.B.Rai Vs. State of M.P. 2016 SCC online MP

747, Division Bench of this Court at Principal Seat Jabalpur declared the

provisions relating to reservation, backlog vacancies, carry-forward of

backlog vacancies and the operation of roster of the promotion Rules of

2002 as ultra vires and nonest in law. Consequent to it, all the

promotions made under the reserve category by following the promotion

Rules of 2002 have been held to be bad in law.

9. State of Madhya Pradesh filed SLP vide No. 13954/2016 before

the Supreme Court challenging the said order passed in the matter of

R.B.Rai (supra) and some interim orders have been passed earlier which

according to petitioners did not come in way of respondents to promote

petitioners because Hon'ble Supreme Court nowhere prohibited

promotion from the "reserved to reserved" and "unreserved to

unreserved" and also in the matter of promotion on merits. Said SLP and

other bunch of SLPs culminated into passing of final order recently by

Hon'ble Supreme Court in batch of petitions in which certain questions

were framed. These questions were formulated by the Supreme Court

and thereafter answered accordingly.

10. Therefore, in sum and substance, petitioners are seeking direction

to respondents to consider their names for promotion on the post of

Deputy Director in accordance with relevant Rules and DPC be

convened accordingly.

11. Learned counsel for the State opposed the prayer and submits that

so far because of pendency of the dispute before the Supreme Court no

promotions have been made. Learned counsel for the State on the basis

of short reply filed, relied upon mainly on pendency of SLP as according

to him, no legal right accrues in favour of petitioners till pendency of

the SLP. He supported the action of respondents.

12. Heard learned counsel for the parties at length and perused the

respective pleadings and record.

13. This is a case; where, petitioners who are working on the post of

VAS since their appointment between period 1986 to 1988 and still

working on the same post. Rules of 1966 (as amended) as referred by the

petitioners provide for promotion from the post of VAS to the post of

Deputy Director Veterinary Services now known as Deputy Director

Animal Husbandry Department. In schedule IV of the said Rules, entry

No. 4 provide for above said post of VAS and according to this entry, in

order to be eligible for promotion on the post of Deputy Director, at least

15 years of service must have been rendered on the post of VAS but

presently, all petitioners have rendered more than 30 years of service and

from their particulars, it appears that most of them are at the fag end of

their career and some might have been retired by now. Feeder cadre for

promotion on the post of Deputy Director is VAS and it is also true that

post of Deputy Director is 100% promotional post. Statistically as

presented by the petitioners regarding number of vacant seat, which

appears to be 131 (for UR category) and same has not been rebutted by

the respondents in any manner and it also remain unrebutted that out of

total 131 seats of UR category, only 62 posts are filled at present and rest

69 posts are lying vacant. In all probability, many more posts have been

rendered vacant by now because out of these 62 posts, many would have

been retired by now.

14. Be that as it may, from the pleadings, it appears that

respondents/Department convened the last meeting of DPC in year 2014

for reserved and unreserved category and almost eight years have passed

since then when posts are lying vacant and feeder cadre is available

and when petitioners are eligible, then the response of

respondents/Department appears to be unjust and improper. In service

jurisprudence, promotion has a wider connotation and ramification. It

inspires employees to strive for better performance and in absence

thereof, it would disincentivise the employees.

15. Even otherwise, earlier interim orders were such which gave

liberty to the respondents/Department to go for promotion from

unreserved category to unreserved category and also in the matter of

promotion on merits. This clarification was made by Supreme Court in

its interim order dated 17/5/2018. Not only this, in the matter of

Panchraj Tiwari Vs. Madhya Pradesh State Electricity Board and

Ors., (2014) 5 SCC 101, Hon'ble Supreme Court has held that chances

of promotion are not conditions of service, but negation of even the

chance of promotion certainly amounts to variation in the conditions of

service attracting infraction of Article 14 and 16 of the Constitution. No

employee has a right to particular position in the seniority list but all

employees have a right to seniority since the same forms the basis of

promotion.

16. Further in the case of Ajit Singh and Ors. Vs. State of Punjab

and Ors., (1999) 7 SCC 209, Hon'ble Supreme Court also mandated that

the word 'employment' being wider, there is no dispute that it takes

within its fold, the aspects of promotion to posts above the stage of

initial level of recruitment. It is further held in the said judgment that

Article 16(1) of the Constitution provides to every employee otherwise

eligible for promotion or who comes within the zone of consideration, a

fundamental right to be considered for promotion.

17. Not only this, during the pendency of SLP, coordinate Bench of

this Court at Principal Seat Jabalpur in the matter of Dhirendra

Chaturvedi Vs. State of M.P. and Ors., (W.P.No. 13241/2017 decided

on 16/4/2019), considering the above factual position and pendency of

SLP, ensured passing of directions to consider the case of promotion in

favour of then petitioners who were Officers in department of Public

Instructions.

18. Considering the facts and circumstances of the case and in

cumulative analysis, it appears that case of petitioners is made out for

consideration for promotional post of Deputy Director as per the relevant

Rules including the Rules of 2002.

19. Resultantly, petition is allowed and respondents are directed to

convene DPC as early as possible preferably within four months from

the date of receipt of certified copy of this order in coordination with

M.P. Public Service Commission, for consideration of promotion to the

post of Deputy Directors and ensure that as per the criteria / benchmarks

fixed by relevant rules as per the seniority amongst the suitable

candidates to be considered accordingly. There is no impediment for

promotion from unreserved to unreserved category as well as in the case

based upon merits. Needful be done within four months positively and

all authorities concerned shall cooperate in this regard.

20. Petition stands allowed and disposed of in above terms.

(Anand Pathak) Judge jps/-

JAI PRAKASH Digitally signed by JAI PRAKASH SOLANKI DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH GWALIOR, ou=HIGH COURT OF MADHYA PRADESH BENCH GWALIOR, postalCode=474001, st=Madhya Pradesh, 2.5.4.20=287738d30aabaeda9b10cecdf179cec865c7633f4cfb9e38ce14f

SOLANKI cbb05b9522a, pseudonym=560BC50AD082B9BE54EE290EC8CB2193780D8357, serialNumber=8D6BC1C9FCE36623D0BD6B8072A2D8C01433EBD48AE 4F609F108CA8F8DE6B522, cn=JAI PRAKASH SOLANKI Date: 2022.03.09 18:38:12 +05'30'