Laxman Prasad Baurowa (Majhi) vs Municipal Corporation, Jabalpur
2023 Latest Caselaw 4328 MP

                              1


IN THE HIGH COURT OF MADHYA PRADESH
            AT JABALPUR
                           BEFORE
             HON'BLE SHRI JUSTICE VIVEK AGARWAL
                  ON THE 20th OF MARCH, 2023
             WRIT PETITION (SERVICE) No. 7988 of 2004

BETWEEN:-

LAXMAN PRASAD BAUROWA (MAJHI), AGED
ABOUT 35 YEARS, S/O SOAIYA BARAUWA,
WORKING AS NOTICE WRITER, MUNICIPAL
CORPORATION, JABALPUR (MADHYA PRADESH)
                                                       .....PETITIONER
(BY SHRI DINESH UPADHYAY - ADVOCATE)

AND

MUNICIPAL    CORPORATION,             JABALPUR
THROUGH ITS COMMISSIONE,              JABALPUR
(MADHYA PRADESH)
                                                    .....RESPONDENTS
(BY SHRI ANSHUMAN SWAMY - ADVOCATE)

      This petition coming on for orders this day, the court passed the

following:

                               ORDER

Shri Anshuman Swamy, learned counsel for the respondent-

Municipal Corporation, Jabalpur is present with Shri Swapnil Wankhede,

Commissioner, Municipal Corporation, Jabalpur and Shri Indra Kumar

Verma, Superintendent of the Establishment, Municipal Corporation,

Jabalpur.

2. This petition is filed by the petitioner being aggrieved of order of

the respondent granting promotion to the petitioner from a Class IV post

of Haka Gang to the Class-IV post of Notice Writer on the ground that

there is no promotion channel for a Class-IV post to be promoted to a

Class IV post and in fact all other similarly situated persons were

promoted to a Class III post, therefore, petitioner is entitled to the same

relief.

3. Municipal Corporation was when directed to produce the file in

which case of promotion of the petitioner was dealt with, has now

informed that file is lost.

4. Today, Shri Anshuman Swamy has produced on record a letter

sent by the Establishment Superintendent, Municipal Corporation,

Jabalpur dated 13.03.2023 addressed to the Thana Incharge, Police

Station Omti, District Jabalpur, mentioning therein that vide order dated

07.03.2023, he had directed all the Departmental heads, Divisional

officers of Division No.1 to 16 of the Municipal Corporation, Jabalpur to

produce the file in which case of promotion of the petitioner was

processed within seven days. Since the file is not produced therefore, FIR

be lodged as there is apprehension of file being lost and stolen.

5. This letter is sent as per the directives of the Commissioner.

However, neither name of the person who was Incharge of the file has

been mentioned in the letter, nor on which date they discovered that file

was lost is mentioned.

6. In fact on 31.01.2023, Shri Indra Kumar Verma had appeared

before this Court and on instructions from Shri Indra Kumar Verma, Shri

Anshuman Swamy had made a statement that petitioner was not

promoted as Notice Writer. It is incorrectly mentioned in the impugned

order that he was promoted. This means that on the said date, Shri Indra

Kumar Verma had seen the file and had given instructions that petitioner

was not promoted as Notice Writer and it was incorrectly mentioned in

the impugned order.

7. Thus, it is evident that either Shri Indra Kumar Verma was guilty

of making a false statement before the High Court if record was not

available as is pointed out by Shri Anshuman Swamy or he is the person

responsible for loss of the file. It is a matter of enquiry for which this

Court hopes and trust that Commissioner will act like an officer, showing

his independence and allegiance to the office rather than to the

individuals and shall leave no stone unturned to bring out the truth.

8. It is surprising that the same Superintendent of Establishment who

had made a statement, was authorized to lodge FIR. The contents of the

communication dated 13.03.2023 are cryptic on face of it. There is no

mention of the date when the file was last seen. There is no mention of

the persons in whose custody file was assigned and from whose custody it

was probably lost.

9. Shri Swapnil Wankhede submits that there are around 4000

employees in the Municipal Corporation. That means that police is

required to inquire and investigate each of the 4000 employees if the

report dated 13.03.2023 made on the instructions of the Commissioner is

to be taken to be an attempt to lodge FIR to trace the file and find out the

guilty. For the convenience, contents of communication dated 13.03.2023

are reproduced hereinunder:-

"dk;kZy; uxj ikfydk fuxe] tcyiqj i= dzekad &[email protected]@1672 tcyiqj fnukad & [email protected]@2023

izfr]

Fkkuk izHkkjh Fkkuk vkserh] tcyiqj

fo"k; %& foHkkxh; inksUufr uLrh xqeus ,oa pksjh ds dkj.k nksf"k;ksa ij izFke lwpuk i= ntZ djus ds laca/k esAa

fo"k;kUrxZr ys[k gS fd ekuuh; mPp U;k;ky; esa nk;j ;kfpdk WP&[email protected] ds izdj.k esa Jh y{e.k c:vk ls lacfa /kr foHkkxh; inksUufr uLrh ds o"kZ 2003 esa inksUufr uLrh dk;kZy; esa miYc/k uk gksus ds dkj.k dk;kZy; i= dza- 1654 fnukad 07-03-2023 ds vuqlkj uLrh izLrqr djus funsZ'k fn;s x;s Fks tks vkt rd vkizkIr gSA vr% uLrh xqeus ,oa pksjh gksus dh vk'kadk ds dkj.k nksf"k;ksa ij izFke lwpuk i= ntZ djus dk d"V djsaA ¼vk;qDr egksn; ds vkns'kkuqlkj½

LFkkiuk v/kh{kd uxj ikfydk fuxe] tcyiqjA fnukad [email protected]@2023"

10. Thus, on face of it, it is evident that Commissioner is trying to save

the delinquents by directing lodging of a cryptic report without pointing

out as to who are the persons who can be deemed to be responsible for

maintenance and loss of the file.

11. After the saga of loss of file is concluded, Shri Anshuman Swamy

in presence of his two officers was requested to point out from the record

that promotion channel for Haka Gang was Notice Writer or under some

other provision of law, he was given pay-scale of Notice Writer vide

order dated 11.06.2003 in the third round of litigation then, he submits

that a coordinate Bench while dealing with the contempt proceedings

drawn against the Municipal Commissioner in Contempt Petition

No.258/2003 decided on 25.06.2004 observed as under:-

"The respondent has filed a reply in paragraph No.9 whereof the respondent has categorically stated that persons working in Class-IV are first required to be promoted to the immediate next higher scale of Rs.2750-4400/- and they cannot be straight-way promoted to the post carrying pay- scale of Rs.3050-4590/-. It is in keeping with the system of the promotion prevailing in the Corporation according to the rules followed that the petitioner has been promoted to the post of Notice Writer."

12. Shri Anshuman Swamy reading this observation submits that after

this observation, proceedings stands concluded and petitioner is not

entitled to claim promotion to a Class-III post.

13. In the opinion of this Court, for the inability of the Municipal

Corporation to bring on record the relevant Rules which may substantiate

the observations made by a coordinate Bench that a Class IV employee

was required to be promoted to the immediate next higher scale and they

could not have been straight-way promoted the post carrying pay-scale of

Rs.3050-4590/-, the said observation will at best be an obiter as it is not

supported by any documentary evidence, Rules, Regulations or any other

provision of law.

14. This clearly demonstrates that respondents are trying to give an

eye-wash. They are trying to blindfold the Court and believe in what they

are saying without being supported by any document. This Court cannot

afford to be 'Dhritarashtra' and permit the counsel and the officers of the

Municipal Corporation to be 'Sanjay', as neither they have that credibility

nor times are that wherein in absence of documentary evidence, things

may be believed as they are narrated. As per the Rule of law,

documentary evidence is to be produced to substantiate each and every

averment made in the reply or argued before the Court.

15. Another interesting aspect is that contrary to the stand noted by a

coordinate Bench in the said contempt petition, a stand was taken by the

Municipal Corporation on 31.01.2023 that it was not a case of promotion

and promotion was wrongly mentioned, again that statement is not

supported with any documentary evidence.

16. In view of such facts and also taking into consideration the fact

that vide Gazette notification dated 12.12.2012, State has amended the

Madhya Pradesh Municipal Corporations (Appointments and Conditions

of Services of Officers and Servants) Rules, 2000 and has substituted

Entry No.57 with 25% by promotion and 75% by Direct Recruitment and

further in Schedule III after S.No.31, it is provided that employees of IV

Class will be entitled to promotion to the post of Assistant Grade - III

(Typist) after completing minimum 5 years of service on IV Class post,

said amendment in the nature of substitution will be retrospective in the

light of the judgment of the Supreme Court in Government of India and

others Vs. Indian Tobacco Association, AIR 2005 SC 3685,

respondents are directed to issue appropriate orders of promotion of the

petitioner to a Class III post within 15 days from today, giving him all

consequential benefits of pay, seniority, etc.

17. Needless to say that Commissioner will be free to pursue the FIR

and disposal of this case will not exonerate him from pursuing the FIR

and taking action the delinquents responsible for loss of the file.

18. In above terms, this writ petition is allowed and disposed of.

(VIVEK AGARWAL) JUDGE

pp

Digitally signed by PUSHPENDRA PATEL Date: 2023.03.23 17:03:34 +05'30'