Madhya Pradesh High Court
Dr. Rakesh Kumar Sharma vs Shri Gulshan Bamra on 8 February, 2023
Author: Rohit Arya
01
IN THE HIGH COURT OF MADHYA PRADESH
AT G WA L I O R
BEFORE
HON'BLE SHRI JUSTICE ROHIT ARYA
&
HON'BLE SHRI JUSTICE SATYENDRA KUMAR SINGH
ON THE 8th OF FEBRUARY, 2023
CONTEMPT PETITION CIVIL No. 2726 of 2022
BETWEEN:-
DR. RAKESH KUMAR SHARMA S/O
LATE SHRI K.P. SHARMA, AGED
ABOUT 62 YEARS, OCCUPATION:
1.
GOVT. SERVANT, R/o A-I CENTER
PORSA, MORENA (MADHYA
PRADESH)
DR. S.S. YADAV S/O LATE SHRI
RAGHUNANDAN SINGH, AGED
ABOUT 62 YEARS, OCCUPATION:
2. GOVT. SERVANT, R/o SERUM
INSTITUTE, JDVS OFFICE
CAMPUS, CITY CENTRE (MADHYA
PRADESH)
DR. RAGHVENDRA SINGH
KUSHWAH S/O SHRI KRISHNAPA
SINGH, AGED ABOUT 60 YEARS,
3.
OCCUPATION: GOVT. SERVANT
RINDERPEST SCHEME, (MADHYA
PRADESH)
4. DR. RAGHUBIR SINGH
BHADORIYA S/O LATE SHRI
DESHRAJ ISGH BHADORIYA,
AGED ABOUT 59 YEARS,
02
OCCUPATION: GOVT. SERVANT
V.E.O. VETERINARY HOSPITAL
CAMPUS GOHAD, (MADHYA
PRADESH)
DR. R.M. SWAMI S/O LATE SHRI
S.S. SWAMI,, AGED ABOUT 59
YEARS, OCCUPATION: GOVT.
5.
SERVANT A.I. CENTRE,
VETERINARY HOSPITAL CAMPUS
(MADHYA PRADESH)
DR. B.K. DUBEY S/O SHRI
SURENDRA SINGH CHAUDHARY,
AGED ABOUT 60 YEARS,
6. OCCUPATION: GOVT. SERVANT
OFFICE OF JOINT DIRECTOR
VETERINARY SERVICES, CITY
CENTRE (MADHYA PRADESH)
DR. M.S. KUSHWAH S/O LATE SHRI
V.S. KUSHWAH,, AGED ABOUT 59
YEARS, OCCUPATION: GOVT.
7.
SERVANT V.E.O. VETERINARY
HOSPITAL CAMPUS HAAT ROAD,
(MADHYA PRADESH)
.....PETITIONER
(BY SHRI PAWAN DWIVEDI-ADVOCATE)
AND
SHRI GULSHAN BAMRA
PRINCIPAL SECRETARY VALLABH
1.
BHAWAN BHOPAL (M.P.) (MADHYA
PRADESH)
DR. R.K. MEHIA, DIRECTOR
ANIMAL HUSBANDRY AND DAIRY
GOVERNMENT OF M.P.
2.
KAMDHENU BHAWAN, VAISHALI
NAGAR, KOTRA SULTANABAD,
BHOPAL (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI ANKUR MODY - LEARNED ADDITIONAL ADVOCATE
GENERAL)
This petition coming on for hearing this day, JUSTICE
03
ROHIT ARYA passed the following:
ORDER
On 13.12.2022 Shri Ankur Mody, learned Additional
Advocate General had placed on Board the order passed by the
Hon'ble Apex Court on 12.12.2022 in SLP No.22793/2022 for
deferment of hearing. Maintaining judicial discipline, this Court
deferred the hearing for 09.01.2023 as the SLP No.22793/2022
was posted for consideration before the Hon'ble Supreme Court on
04.01.2023. On 09.01.2023, at the request of Shri Mody the case
was posted for 01.02.2023. The hearing was again deferred on
1.2.2023 with the order for listing the case in the next week.
Accordingly, the case is posted today for consideration.
Before adverting to contentions advanced by the learned
counsel for the parties, it is expedient to reiterate the factual
background leading to filing of the instant contempt petition.
Petitioners are serving as Veterinary Assistant Surgeons and
became due for promotion as Deputy Director, Veterinary as far
back as on 2008 onwards. Due to inaction on the part of the State
Government in the matter of convening a DPC, petitioners had
preferred Writ Petition No.14029/2020 with the prayer seeking
writ of mandamus commanding respondents/State to convene
DPC and for considering their candidature for promotion to the
post of Deputy Director, Veterinary against unreserved posts. It
may also be stated that due to considerable delay in convening
DPC many incumbents eligible for said promotion had reached the
age of superannuation and denied the promotional benefits
otherwise due to them. Even during pendency of writ petition two
petitioners namely Dr. Rakesh Kumar Sharma-petitioner No.1 and
Dr. Rakesh Kumar Gupta- petitioner No. 11 reached the age of
superannuation without adjudication of their claim for promotion.
Before the writ court the respondent/State Government
under the pretext of the order passed by the Hon'ble Supreme
Court in SLP No. 13954/2016 dated 12.05.2016 took the stand that
State Government is unable to convene the DPC. The said order
was construed as if the Hon'ble Apex Court has restrained the
State Government to hold DPC for promotions in departments
under the Governance and Control of State Government. The writ
court relying upon the order of Hon'ble Apex Court dated
17.05.2018 in SLP No.30621/2011 (Jarnail Singh and ors. v.
Lachhmi Narain Gupta and ors.), arising out of the order dated
15.07.2011 passed in C.W.P. No.13218/2009 by the High Court of
Punjab & Haryana High Court, directed the State Government to
convene DPC and implement the recommendation for promotion
to unreserved post. The State Government preferred Writ Appeal
No.790/2022. The same has been dismissed on 20.09.2022. As the
State Government maintained inertia and since hell-bent upon not
to convene the DPC as ordered within the time stipulated in the
order, petitioners were constrained to file contempt petition even
after gap of two months. During pendency of contempt petition,
this Court has passed detailed orders on 28.11.2022 and
05.12.2022 but the government remained indifferent except filing
of SLP No.22793/2022, no sooner this Court ordered for personal
appearance of the Principal Secretary, Animal Husbandry and
ensured his appearance. It appears that while the Civil Appeal No.
629/2022 arising out of SLP No.30621/2011 was placed before the
Hon'ble Apex Court for consideration, a direction has been issued
to the authorities to undertake the exercise in terms of the
judgment of this Court passed in same Civil Appeal No.629 of
2022 "Jarnail Singh and Ors. vs. Lachhmi Narain Gupta and
Ors", reported in (2022) 10 SCC 595.
In the penultimate paragraph of the order, on a complaint of
petitioners against authorities not convening the DPC, Hon'ble
Apex Court in SLP (C) No. 22793/2022 directed the State to
obtain instructions and file an affidavit within a period of eight
weeks.
Shri Pawan Dwivedi, learned counsel for the petitioners
submits that as a matter of fact the subject matter of dispute before
the Hon'ble Apex Court related to proportionate representation of
backward classes in different services for promotional purposes.
The coordinate Bench of this Court in its decision dated
30.04.2016 passed in W.P. No.1942/2011 has found that the State
Government did not carry out proper exercise to ascertain
justifiable representations of backward classes in different services
under State on different posts attributable to non-collection of
quantifiable data. As a result, the Division Bench had quashed the
promotions of persons belonging to reserved categories in para 38
of the judgment and ordered their reversion. Because of such
alarming situation arising out of the impugned judgment, the State
rushed to Supreme Court filing SLP No.13954/2016. Hon'ble
Supreme Court protected the promotions by order of status quo on
12.05.2016. As a matter of fact, the said order by no stretch of
imagination could have been construed by the State to avoid
holding of the DPC for promotions for open category of the
unreserved posts affecting officials of various departments under
the State. Due to such unwarranted attitude of the Government
hundreds of officials seeking promotion against unreserved
category have been denied promotions and even reached the age
of superannuation. Petitioners are also victims of inaction of the
State Government and now standing at crossroads with no
certainty for conferment of benefit of promotions as per the
eligibility and selection by the DPC. A welfare state run by rule of
law is not expected to adopt such unscrupulous and 'don't care
attitude' towards its employees/officers who have served them for
few decades and likely to reach the age of superannuation. The
State Government while approaching the Supreme Court through
SLP No.22793/2022 is only to protect High officials against
contempt proceedings and did not take any serious steps for
clarification of the order of status quo passed by the Hon'ble Apex
Court on 12.05.2016. Its almost more than six years the entire
process of promotions across departments in the State of Madhya
Pradesh has been kept in limbo. Learned counsel further submits
that in fact and in effect the innocuous order of status quo passed
by Hon'ble Apex Court has been misused by the State Government
with some ulterior motives and a collateral purpose to deny
legitimate claim of officials for promotional benefits against
unreserved posts. Learned counsel therefore submits that in the
aforesaid backdrop of the factual matrix this Court may issue a
mandatory order against the respondents to purge the contempt
convening DPC for consideration petitioners' claims for promotion
against unreserved category as the same in no way tantamount to
violation of the order of Supreme Court or status quo. Learned
counsel submits that at the time of filing of the writ petition in
2020 there was 69 posts of Deputy Director in unreserved
category lying vacant and by now must have crossed hundred in
number.
On the contrary, Shri Mody submits that in the light of the
order passed on 31.01.2023 by the Apex Court, this Court may
again defer the hearing of the contempt case.
We have given our thoughtful consideration to the
submissions advanced by the learned counsel for the parties.
Indeed it is disturbing that bonafide claims of petitioners,
seeking consideration for promotion against unreserved category
on promotional post, have been denied, despite two judicial orders
passed by the writ court dated 09.03.2022 in W.P. No.14029/2020
and the writ appellate Court dated 20.09.2022 in W.A.
No.790/2022. In fact, State Government is not expected of such
indifferent attitude and reprehensible conduct in the context of
legitimate rights of its employees/officers for no justifiable
reasons. We find substantial force in the submission of Shri
Dwivedi on the touchstone of concept of justice, equity and good
conscience. In all fairness wisdom must prevail upon the State
Government to act fairly and reasonably in the context of the
matter at issue instead of taking recourse to avoidance and
indifference. Fundamental rights under Article 14 and 16 of the
Constitution of India available to petitioners neither can be
eschewed nor marginalized by the State in any manner
whatsoever.
However, maintaining judicial discipline, we defer to issue
mandatory directions today and leave it to the petitioners to seek
appropriate directions from the Apex Court.
List after three weeks, as prayed for.
(ROHIT ARYA) ( SATYENDRA KUMAR SINGH)
JUDGE JUDGE
VAN
VANDANA VERMA
2023.02.10
12:02:16 -08'00'
