Beejendra Shrivastava vs The State Of Madhya Pradesh
2023 Latest Caselaw 21764 MP

Madhya Pradesh High Court

Beejendra Shrivastava vs The State Of Madhya Pradesh on 19 December, 2023

                                  1


    IN THE HIGH COURT OF MADHYA PRADESH
                AT J A B A L P U R
                           BEFORE
               HON'BLE SMT. JUSTICE VINAY SARAF
                ON THE 19TH OF DECEMBER, 2023
                 WRIT PETITION NO.7389 of 2021
BETWEEN:-
1. BEEJENDRA SHRIVASTAVA S/O SHRI
RAM CHANDRA SHRIVASTAVA, AGED
ABOUT 59 YEARS, OCCUPATION: GOVT.
JOB IDGAH HILLS BHOPAL M.P.
(MADHYA PRADESH)

2. KADIR UI HASAN S/O SHARIK UL
HASAN, AGED ABOUT 57 YEARS,
OCCUPATION:     GOVERNMENT      JOB
HOUSE NO. 11, GALI NO. 2, AHMED ALI
COLONY AISHBAGH ROAD BHOPAL MP.
(MADHYA PRADESH)
3. YAHYA SIDDIQUI S/O MOHD. YUSUF
SIDDIQUI, AGED ABOUT 45 YEARS,
OCCUPATION: GOVERNMENT JOB H.NO.
52, HAWA MAHAL ROAD BHOPAL MP
(MADHYA PRADESH)

4. ARIF MOHD. S/O LATE SHRI MOHD.
AHMAD, AGED ABOUT 54 YEARS,
OCCUPATION: GOVERNMENT JOB R/O
H.NO. 77 JAISAR BANGLOW, EIDGAH
HILLS BHOPAL MP. (MADHYA PRADESH)

5. LILADHAR SISODIYA S/O LATE SHRI
BABULAL SISODIYA, AGED ABOUT 56
YEARS, OCCUPATION: GOVERNMENT
JOB R/O H.NO. 1/2 SARVODAYA COLONY
CTO BAIRAGARH BHOPAL MP. (MADHYA
PRADESH)

6. SANJEEV SHRIVASTAVA S/O LATE SHRI
HARINARAYAN SHRIVASTAVA, AGED
ABOUT    46   YEARS,   OCCUPATION:
GOVERNMENT JOB R/O H.NO. 16, B-
BLOCK PREMNAGAR COLONY NARIYAL
                                             2


KHEDA BHOPAL MP. (MADHYA PRADESH)
                                                            .....PETITIONERS
(BY R.K. VERMA- SENIOR ADVOCATE WITH SHRI R.M. TIWARI-ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH
THRO. PRINCIPAL SECRETARY URBAN
ADMINISTRATION AND DEVELOPMENT
DEPARTMENT       VALLABH    BHAWAN
BHOPAL (M.P.) (MADHYA PRADESH)
THE STATE OF MADHYA PRADESH
THROUGH        AARAKSHI     KENDRA
BAIRAGARH,       BHOPAL    (MADHYA
PRADESH)

2. MUNICIPAL CORPORATION BHOPAL
THR. ITS COMMISSIONER MUNICIPAL
CORPORATION BHOPAL, M.P. (MADHYA
PRADESH)


                                                            .....RESPONDENT
(BY SHRI V.P. TIWARI-GOVT. ADVOCATE, SHRI SARTHAK NEMA-ADVOCATE
 FOR RESPONDENT NO.2)


      This appeal coming on for hearing this day, the court passed the following:

                                         ORDER

With the consent of parties, the matter is heard finally.

2. The petitioners have approached to this Court under Article 226 of the

Constitution of India challenging the order passed by the Commissioner, Municipal

Corporation, Bhopal whereby the Commissioner has passed the order of cancelled

the promotion of the petitioners from their original post to the post of Filter

Operator.

3. The short facts of the case are that the petitioners no.1 to 5 were

appointed on the post of Filter Helper whereas the petitioner no.6 was appointed on

compassionate basis on the post of Filter Attendant.

4. According to the petitioner, the name of the petitioners were

recommended for promotion to the post of Filter Operator and by order dated

3.9.1998 and 17.12.1998, the petitioners were promoted on the post of Filter

Operator, however, the same was cancelled on the ground that the same was not in

accordance with the seniority list by order dated 10.3.1999. Thereafter the seniority

list was prepared and all the petitioners were once again promoted to the post of

Filter Operator by order dated 3.11.1999. The petitioners were performing their

duties on the post of Filter Operator and by order dated 3.6.2008, their promotion

was cancelled on the ground that they were not eligible for the promotion. The

order was passed on the basis of the earlier order dated 17.4.2000 allegedly passed

by the earlier Commissioner. However, the same was never communicated to the

petitioners and despite that order, they continued on the post of Filter Operator till

3.6.2008. The order passed on 3.6.2008 was challenged by the petitioners in

W.P.No.7884/2008 which was decided by order dated 25.1.2019 and order dated

3.6.2008 was set aside and the matter was remanded back to consider with the

directions. The relevant paragraphs of the order dated 25.1.2019 are as under:

"10. As noticed above, the parties are at loggerheads on the question of eligibility/qualification of the petitioners. The respondents have filed a chart Annexure R-2/3 which is reproduced

for ready reference:

^^fQYVj vkizsVj ds inksa ls inkour deZpkfj;ksa dk lsok foj.k**

in@ Ø- deZ- dk uke izFke 'kS{kf.kd fu;qfDr dk fjekdZ osrueku fu;qfDr ;ksX;rk izdkj frfFk

1 Jh equCcj gsYij 03-03-88 nloha fu;fer fQYVj vyh 775&1036 Qsy fu;qfDr vVsaMsaV iwoZ ls ds in fu/kkZfjr ij ugha ek-os-esa gSA dk;Zjr FkkA

2 Jh latho fQ- 01-09-94 10$2 vuqdaik lsok JhokLro vVsaMsaV foKku fu;qfDr vof/k 775&1036 10 o"kZ iw.kZ ugha

3 Jh fotsUnz iai pkyd 01-11-94 baVj fu;fer lsok JhokLro 775&1036 ehfM;sV osrueku esa vof/k vkVZl& iai pkyd 10 o"kZ m-iz- iw.kZ ugha gSA lsok 4 Jh yhyk/kj Jfed 01-11-94 gk;j fu;fer vof/k fllksfn;k 775&1036 lsds.Mjh osrueku 10 o"kZ vkVZl&87 iw.kZ ugha gSA lsok 5 Jh vkfjQ eks- dk;ZHkkfjr 20-11-89 gk;j fu;fer vof/k Jfed lsds.Mjh osrueku esa 10 o"kZ 725&900 vkVZl fnukad 01- iw.kZ 11-94 ugha gSA lsok 6 Jh ;kg;k Jfed 01-11-94 ,e-,- fu;fer vof/k flf)dh 775&1036 Qkbuy osrueku 10 o"kZ iw.kZ

ugha gSA lsok 7 Jh dnh:y gSYij Vw 21-03-89 gkbZ Ldwy fu;fer vof/k glu fQYVsa'ku 10$2 osrueku 10 o"kZ IykaV foKku ls iw.kZ 750&940 ugha gSA

11. In rejoinder, for petitioner no.1 (Munnawar Ali), although it is urged that he does possess the qualification, no proof thereof is filed.

12. During course of the hearing, learned Sr. Counsel contended that during pendency of this petition, petitioner no.1 has acquired the requisite qualification. In relation to petitioners viz. Sanjeev Shrivastava, Vijendra Shrivastava, Leeladhar Sisodiya, Yahya Siddiqui and Kadirul Hasan, it is urged by the Corporation that they have not completed ten years of service whereas learned Sr. Counsel urged that seniority list shows that they have completed ten years of service.

13. It is clear that on these aspects, learned counsel for the parties have taken a diametrically opposite stand: Learned Sr. Counsel for the petitioner contended that ten years of service means entire service rendered in the department whereas Shri Bhatnagar, learned counsel for the Corporation urged that ten years of service should have been completed on the post of Filter Attendant. The relevant portion of the Standing Order reads as under:

^^dk;kZy; fuxj fuxe Hkksiky

lkekU; iz'kklu foHkkx

LFkkbZ vkns'k Øekad 4 ¼16½@1988

iz'kkld] uxj fuxe] Hkksiky ds ladYi Øekad 917 fnukad 30-07-88 vuqlkj fQYVj vkijsVj ds fjDr inksa dh iwfrZ gsrq fuEufyf[kr iz.kkyh fu/kkZfjr dh tkrh gS %&

1- fQYVj vkijsVj ds fjDr in dh iwfrZ fu;fer osrueku esa dk;Zjr fQYVj vVsUMsVksa esa ls ;ksX;rk ,oa ofj"Brk ds vk/kkj ij inksUufr }kjk dh tkosxh tks %&

¼v½ gk;j lsds.Mjh ijh{kk mRrh.kZ gks]"

¼c½ 10 o"kZ dh lsok vof/k iw.kZ dj yh gksA

2- fQYVj vVsUMsaV ds fjDr in dh iwfrZ fu;fer osrueku esa dk;Zjr fQYVj gsYQjksa tks mDr fu/kkZfjr ;ksX;rk j[krs gks esa ls inksUufr }kjk dh tkosxhA

rnkuqlkj vko';d dk;Zokgh dh tkosA

¼izk:Ik vk;qDr }kjk vuqeksfnr½

dk;kZy; v/kh{kd

okLrs&vk;qDr

uxj fuxe Hkksiky**

14. A plain reading of this Standing Order makes it clear that gender post of Filter Operator is Filter Attendant. While prescribing the feeder post in Clause 1, it is made clear that such Filter Attendants shall be entitled to be promoted as per "merit and seniority" who possess the qualification of Higher Secondary and have completed ten years of service. A complete reading of Clause 1 of Standing Order shows that ten years' service has to be on the post of Filter Attendant. Clause 1 makes it clear that qualification and experience/eligibility is prescribed while mentioning the name of feeder post. Thus, the qualification and years of service/experience has to be on the feeder post.

15. In view of foregoing analysis, it is clear that whether the petitioners have completed ten years of service on the feeder post on the date of DPC and whether they possess qualification or not needs thorough scrutiny. If they possess the said qualification and experience on the date of DPC, the respondents may convene a review DPC or follow the recommendation or earlier DPC to consider their cases from that date.

16. No doubt, the impugned order is passed without following 'the principle of natural justice. Admittedly, it is passed after 8-9 years from the date of promotion but it is equally true that if the petitioners do not possess the requisite eligibility, qualification and experience etc. merely because

they have worked for few years on promotional post, no right is accrued in their favour. Normally, principle of natural justice is required to be followed when an adverse order may be the result of an administrative action.

17. However, this is trite law that natural justice is flexible and can be molded. Natural justice as described by the Supreme Court is after all "no unruly horse, no lurking land mine". It's unnatural expansion without reference to the facts can be "exasperating". See: Shiv Sagar Tiwari Vs. Union of India & Ors. (1997) 1 SCC 444.

18. In the factual matrix of this case, where eligibility and qualification and experience of petitioners are required to be examined, it will not be proper to interfere with the impugned order only on the ground of violacion of principle of natural justice. True it is that in the impugned cancellation of promotion order, the respondents have baldly stated that promotion orders were pregnant with irregularities, and no detailed reasons are assigned, it cannot be overlooked that if the stand of respondents is correct that petitioners did not have essential qualification and experience, their promotion can certainly be termed as illegal and irregular.

19. In the peculiar facts of this case, I deem it proper to apply the doctrine of post-decisional hearing. In Charanlal Sahu Vs. Unoin of India (1990) 1 SCC 613, it was held that in a given case, post- decisional hearing can obliterate the procedural deficiency of a pre-decisional, hearing. In Liberty Oil Mills Vs. Union of India (1984) 3 SCC 465, it was opined that an opportunity of making representation after the decision was taken, was held to be sufficient compliance. The application of principle of natural justice depends on facts of each case.

20. . Considering the aforesaid, I deem it proper to dispose of this petition on the following directions:

(i) The respondent/Corporation shall issue show cause notices to the petitioners assigning reasons for cancellation of promotion order within 21 days from production of copy of this order.

(ii) The petitioners shall file their reply to the said show cause notice within two weeks therefrom.

(iii) The respondent/Corporation shall take decision on show cause notices after considering all the points raised by the petitioners in their reply and without getting influenced by order dated 03-06- 2008 (Annexure P/1).

(iv) The reasoned order shall be communicated to the petitioners within 21 days from the date of submission of representations/reply.

(v) If the petitioners are found to be eligible and possessing eligibility and qualification on the date of DPC, and no other illegality in DPC was found, the respondents shall treat the cancellation order dated 3.6.2008 as cancelled and shall give effect to the promotion order dated 3.11.1999 on notional basis. In alternatively, if petitioners are eligible to be considered for promotion, it will be open to the respondents to convene a review DPC as on date of original DPC.

(vi) To clarify, in the event, the promotion order dated 3.11.1999 is given effect to, the petitioner shall reap seniority and benefit of notional fixation of pay. They shall not get arrears of pay of promotional post for the period they did not perform the duties of promotional post.

(vii) In the event, petitioners are not found eligible/suitable, the respondent shall pass a reasoned and speaking order and communicate the same to the petitioners within the aforesaid time. It is further clarified that in no case, the respondents shall recover the pay of promotional post for the period between 3.11.1999 and 3.6.2008. Putting it differently, since petitioners have performed their duties during this period on the promotional post and earned salary in lieu thereof, the recovery of salary for said period is clearly impermissible.

21. With the aforesaid directions, the writ petitions are disposed of."

5. In compliance of the order dated 25.1.2019, a fresh order was passed

by the Commissioner, Municipal Corporation, Bhopal after affording the

opportunity of hearing to the petitioners and once again the promotions of the

petitioners were cancelled by order dated 11.6.2019 on the ground that according

to the Standing Order of 1988, the qualification for the promotion on the post of

Filter Operator was that the candidate should be educated up to the Higher

Secondary and must have experience of ten years on the post of Filter Attendant.

As per the Standing Order, 1988, the Helper cannot be promoted on the post of

Filter Operator as the feeder post for the Filter Operator is Filter Attendant. After

considering the same, the order of promotion was cancelled and the same is under

challenge in the present petition.

6. Learned Sr. Counsel appearing on behalf of the petitioner vehemently

argued that the Standing order of 1988 will not be applicable to the case of the

petitioners and the Standing Order in force on the date of original appointment on

the post of Helper will be applicable and on that day, the Standing Order 1970-

1972 was in force. As per the said order, the Operator can be promoted from the

post of Helper. Therefore, the application of Standing Order, 1988 was erroneous

and the promotion order according to the applicable Standing Order could not have

been cancelled.

7. Learned Sr. Counsel further argued that the Standing order of 1970-

1972 was not taken into consideration at the time of passing the impugned order

therefore, the same is liable to be quashed. He relied on the judgment of the Apex

Court reported in (1972) 4 SCC 765 in the matter of Ex Major N.C. Singhal Vs.

Director General Armed Forces Medical Services, New Delhi & Anr. wherein the

Apex Court has held that the service condition could not be altered or modified to

the prejudice of the employee by subsequent administrative Instruction which was

given retrospective effect. He further relied on judgment of Apex Court reported in

AIR 1978 SC 1536 in the matter of Ram Sarup Vs. State of Haryana & Ors.

wherein the Apex Court has held that when the appointment of the employee is

irregular but as soon as he acquires the necessary qualification of experience of

working, his appointment must be regarded as having been regularized.

8. Learned Sr. Counsel further relied on the judgment of Apex Court

reported in (2022) 4 SCC 363 in the matter of Punjab State Cooperative

Agricultural Development Bank Limited Vs. Registrar, Cooperative Societies &

Anr. whereby the Apex Court has held that if the person while entering into service

has legitimate expectation that as per the then existing scheme of Rules, he may be

considered for promotion after certain years of qualifying service or with the age of

retirement which is being prescribed under the scheme of Rules but at a later stage,

if there is any amendment made either in the scheme of promotion or the age of

superannuation, it may alter other conditions of service, such scheme of Rules

operates in futero but at the same time, if the employee who had already been

promoted or fixed at particular payscale, and if that is being taken away by the

impugned scheme of Rules retrospectively, that certainly will take away the

vested/accrued right of the incumbent which may not be permissible or may be

violative of Article 14 and 16 of the Constitution.

9. Learned Sr. Counsel further relied on the judgment reported in (2019)

3 SCC 511 in the matter of Rakesh Bakshi & Anr. Vs. State of Jammu &

Kashmir & Ors. wherein the Apex Court has held that the legitimate claim of the

candidate must be decided with reference to the qualification possessed as on the

cut off date.

10. Learned Sr. Counsel on the strength of the aforesaid judgments

submitted that when the petitioners joined the services, the Standing order of 1970-

1972 was in force and as per the said standing order the feeder post for the operator

was Helper and, therefore, the promotion of the petitioners on the post of Filter

Operator was according to the Standing Order 1970-1972, therefore, their

promotion cannot be cancelled on the basis of the subsequent Standing Order of

1988 by which the feeder post for the Filter Operator was changed from Helper to

Filter Attendant. He prayed for quashment of the impugned order.

11. Learned counsel appearing on behalf of respondents submits that the

petitioners do not possess the requisite qualification for the post of Filter Operator

and the feeder post for the Filter Operator is Filter Attendant. Therefore, the

promotion order was rightly cancelled as none of the petitioner was having 10

years experience on the post of Filter Attendant and according to the Standing

Order dated 8.8.1988, the petitioners were not eligible. The order dated 11.6.2019

was passed after affording the full opportunities to the petitioners and after

considering the facts of the case in detail according to the directions issued by the

High Court in W.P.No.7884/2008. It is further argued on behalf of the respondents

that the Standing order 1970-1972 does not talk about Filter Operator and it is in

respect of only the Operator. Therefore, the same is not applicable to the case of

the petitioners.

12. Learned counsel for the respondents further argued that as the

petitioners were wrongly promoted on the post of Filter Operator, therefore, after

considering the eligibility, qualification and experiences of the petitioners, the

order was passed and the same is not liable to be set aside.

13. After hearing the parties, it appears that petitioners were originally

promoted to the post of Filter Operator in the year 1998 and thereafter vide order

dated 3.11.1999 once again they were posted on the post of Filter Operator and

worked on that post till 3.6.2012 when their promotions were cancelled.

14. The core question involves in the present matter is whether the

Standing Order 1970-1972 will be applicable or Standing order 1988 will be

applicable in respect of promotion of the petitioners. It appears that even in the

earlier round of litigation when W.P.No.7884/2008 was filed, the petitioners have

not raised that their appointment was according to the Standing Order 1970-1972,

on the contrary it was not controverted that the Standing Order of 1988 will not be

applicable and the petition was decided after considering the Standing Order 1988.

The directions were issued by this Court to decide the matter afresh after

considering the Standing Order 1988 and the eligibility criteria mentioned in the

Standing order of 1988. For the first time, in the present petition, the petitioners

have raised that the Standing Order of 1970-1972 will be applicable. However, the

said order of 1970-1972 is not clear and it talks about Operator only whereas the

Standing order of 1988 specifically issued in respect of Filter Operator.

15. It is also not in dispute that according to the qualification fixed by

Standing Order 1988, the petitioners are not qualified for the post of Filter

Operator. The petitioners submitted before this Court that earlier they were not

aware of the Standing Order 1970-1972 and therefore the said issue was not raised

before this Court in earlier round of litigation. But at the same time, the said

argument is contrary to the arguments raised by the petitioner in respect of

legitimate expectation. When they were not aware of Standing Order 1970-1972,

no question of legitimate expectation arises.

16. The impugned order has been passed as per the directions issued by

this Court in W.P.No.7884/2008 and therefore, no illegality has been committed by

Commissioner Municipal Corporation, Bhopal in passing the impugned order.

However, it appears that other similarly situated several employees were promoted

by order dated 4.3.2014 (Annexure P-19) but the claim of the petitioners were not

considered due to the pendency of W.P.No.7884/2008. The petitioners are also

entitled for the promotion as granted to the other Class IV employee by order dated

4.3.2014 therefore, the liberty is granted to the petitioners to submit the

representation for consideration of their case for promoted as granted to the other

Class IV employees as per order dated 4.3.2014 and if the representation is filed by

the petitioners, the same shall be considered by the Commissioner Municipal

Corporation Bhopal and if the petitioners are found entitled for promotion then the

same shall be given to the petitioners with fixing the seniority and with all

consequential benefits.

With the aforesaid, the present petition is disposed of.

(VINAY SARAF) JUDGE P