Madhya Pradesh High Court
Ishwar Prasad Pandey vs The State Of Madhya Pradesh on 27 March, 2023
Author: Chief Justice
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE RAVI MALIMATH,
CHIEF JUSTICE
&
HON'BLE SHRI JUSTICE VISHAL MISHRA
ON THE 27 th OF MARCH, 2023
WRIT APPEAL No. 216 of 2023
BETWEEN:-
ISHWAR PRASAD PANDEY S/O SHRI TILAKNAND
PANDEY, AGED ABOUT 71 YEARS, OCCUPATION: LAB
ATTENDANT (RETIRED) T.R.S. COLLEGE, REWA R/O
BODA BAG REWA (MADHYA PRADESH)
.....APPELLANT
(SHRI DILEEP KUMAR PANDEY - ADVOCATE - ABSENT)
AND
1. THE STATE OF MADHYA PRADESH THROUGH
SECRETARY HIGHER EDUCATION DEPARTMENT
VALLABH BHWAN BHOPAL (MADHYA PRADESH)
2. THE COMMISSIONER, HIGHER EDUCATION
SATPUDA BHAWAN, REWA (MADHYA PRADESH)
3. PRINCIPAL, T.R.S. COLLEGE, REWA DISTRICT
REWA (MADHYA PRADESH)
.....RESPONDENTS
(SHRI B.D. SINGH - GOVERNMENT ADVOCATE FOR RESPONDENTS NO.1
AND 2)
This appeal coming on for admission this day, Hon'ble Shri Justice
Vishal Mishra passed the following:
ORDER
The office note indicates that appellant's counsel Shri Arun Kumar
Pandey has filed an adjustment note for the dates 27.03.2023 to 01.04.2023.
Signature Not Verified
Signed by: SHALINI
LANDGE
Signing time: 4/1/2023
6:01:46 PM
However, Vakalatnama indicates that another advocate Shri Dileep Kumar
Pandey has also entered appearance for the appellant.
2. In terms of the order dated 24.03.2023 passed in W.P. No.7295 of 2023
(In Reference (Suo Moto) vs. Chairman, State Bar Council of M.P. and others),
all the advocates were directed to attend to the Court work forthwith. In spite of
the same, there were certain advocates who appeared on 25.03.2023 and certain
who did not.
3. In view of the fact that there may be a possibility that each and every
advocate may not be aware of the order passed, they were extended the benefit
of doubt so far as 25.03.2023 is concerned.
4. On behalf of appellant, Shri Dileep Kumar, Advocate has entered
Vakalat. However, learned counsels for the appellant is deliberately absent
today. Hence, issue a show cause notice against him as to why proceedings for
contempt should not be initiated for disobeying the order dated 24.03.2023
passed in W.P. No.7295 of 2023 and to submit reply by 10.04.2023.
5. As far as merits of the case are concerned, this appeal has been filed by
the writ petitioner challenging the order dated 14.11.2022 passed in Writ Petition
No.14565 of 2008 whereby writ petition has been dismissed.
6. It is the case of the writ petitioner that he was appointed on contingency
post in the respondents' department on 26.10.1967. Thereafter, he was
promoted to the post of Laboratory Attendant on 06.11.1984. Similarly situated
employees like petitioner filed a writ petition seeking promotion to the post of
the Laboratory Assistant from Laboratory Attendant on completion of five
years of service on the said post. They have been extended the benefit in
pursuance to the order passed by the Court. The Commissioner of the Higher
Education Department has issued the order on 13.10.2000 by which it was held
Signature Not Verified
Signed by: SHALINI
LANDGE
Signing time: 4/1/2023
6:01:46 PM
that the Laboratory Assistant who has completed five years of service be
granted the payscale of Laboratory Assistant. Several representations before the
respondents have been submitted seeking the similar relief but the same was not
considered by the authorities. Therefore, petitioner preferred a writ petition
before this Court.
7. Learned Writ Court has considered merits of the case and has placed
reliance upon the judgment passed by the Hon'ble Supreme Court to the effect
that the employer is the best judge to ascertain the promotion as per the
provisions of Madhya Pradesh Non-Gazetted Class-III Services (Collegiate
Branch) Recruitment & Promotion Rules, 1974, (hereinafter referred to as ' the
Rules of 1974'), therefore, no interference could be called for and dismissed the
writ petition. Learned Writ Court has rightly rejected the claim of the petitioner.
Further consideration was made with respect to the course of 'Uttar Madhyama'
to be treated as equivalent to Higher Secondary Examination but learned Writ
Court after scrutiny has not found the same to be equivalent and the petition
was dismissed. The ground of the petitioner was that once the similarly situated
employee has been extended the benefit, the same ground of claim arises to the
petitioner also.
8. It is his case which has already been considered by this Court in the
case of Dhani Ram Dubey Vs. State of M.P. reported in (2014) 1 MPLJ 180
wherein it is held that those Laboratory Assistants who have completed five
years of service are entitled to promotion. It is further argued that the certificate
of 'Uttar Madhyama' which is in Sanskrit subject be treated to be equivalent to
Higher Secondary Certificate, therefore, the interference is called for.
9. The claim of the petitioner is with respect to promotion to the post of
Signature Not Verified
Signed by: SHALINI
LANDGE
Signing time: 4/1/2023
6:01:46 PM
Laboratory Assistant on competition of five years of service as Laboratory
Attendant in view of the circular issued by the Government. The essential
qualification being Higher Secondary Certificate with Science subject or any
equivalent subject or any certificate from any recognized University or Board.
The petitioner being 'Uttar Madhyama' with Sanskrit subject from Awdesh
Pratap Singh University, Rewa (M.P.) seeks relief and to be treated as
equivalent to the Higher Secondary Examination conducted by the State of
Madhya Pradesh.
10. Similar issue came up for consideration before this Court in the case of
Smt. Radha Mishra Vs. Secretary, Board of Secondary reported in (2008) 2
MPHT 421 wherein the Hon'ble Court has held as under :-
"7. It is crystal clear in view of the aforesaid language that the
said circular was not issued firstly for equating the examination
of Higher Secondary with Uttar Madhyama for the purpose of
students appearing in the various courses conducted by the
Board of Secondary Education. Secondly, no material has been
placed by the petitioners on record to demonstrate that this
circular has ever been adopted by the Board of Secondary
Education. Thirdly and lastly, no provision could have been
shown which may be invoked by the petitioner to claim that the
examination of Uttar Madhyama has been ever equated during
the relevant period with the examination of Higher Secondary
School Certificate Examination conducted by the Board for
allowing admission to various academic courses.
8. As regards rule making power of the State Government, it is
not shown to have been exercised by the State Government. No
such rules are placed before me to show that the examination of
Higher Secondary was equated with Uttar Madhyama
examination by framing necessary rules. As regards, circular
contained in Annexure P-3 it is already held to be for limited
purpose which cannot be invoked by the petitioners to claim
admission on its basis. As regards law laid down in the case of
Bimlesh Tanwar (supra), it may be seen that the circular marked
as Annexure P-3 was merely issued for the purpose of
employment. It was never meant to fill up the gap in the matter of
Signature Not Verified
Signed by: SHALINI
LANDGE
Signing time: 4/1/2023
6:01:46 PM
admission by the Board for D.Ed. Course. In this view of the
matter, reliance on the aforesaid decision is also out of place."
11. Admittedly, petitioner has qualified the said examination with Sanskrit
subject. The petitioner has not passed the Higher Secondary Examination with
Science subject, therefore, could not claim similar relief as that of the alleged
similarly situated employee. However, otherwise also as per the rules, the
requirement is not fulfilled by the petitioner. Therefore, the claim could not be
considered by the learned Writ Court. The learned Writ Court has placed
reliance upon the Rules of 1974 and the judgment passed by the Hon'ble
Supreme Court in the case of North Delhi Municipal Corporation Vs.
Kavinder and Others reported in (2021) 11 SCC 353 to hold that the
employer is the best judge to ascertain the eligibility of the candidate or an
employee. The petitioner has failed to establish that the certificate of 'Uttar
Madhyama' in Sanskrit subject is equivalent to that of the Higher Secondary
Examination with the Science subject. Therefore, once, the claim is not
established, no benefit can be extended to the petitioner. The order passed by
the learned Writ Court is just and proper and the case of the petitioner has been
appreciated in right perspective. Therefore, no interference is called for.
12. The writ appeal sans merit and is accordingly dismissed. No order as
to costs.
13. Pending interlocutory application stands disposed off.
(RAVI MALIMATH) (VISHAL MISHRA)
CHIEF JUSTICE JUDGE
Sha
Signature Not Verified
Signed by: SHALINI
LANDGE
Signing time: 4/1/2023
6:01:46 PM
