Madhya Pradesh High Court
Dubey Singh Marco vs The State Of Madhya Pradesh on 5 September, 2023
Author: Nandita Dubey
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SMT. JUSTICE NANDITA DUBEY
ON THE 5 th OF SEPTEMBER, 2023
WRIT PETITION No. 22058 of 2023
BETWEEN:-
DUBEY SINGH MARCO S/O LATE KASHIRAM SINGH MARCO,
AGED ABOUT 50 YEARS, OCCUPATION: POSTED AS SENIOR
CONSTABLE, ZONAL OFFICE CRIMINAL INVESTIGATION
DEPARTMENT (CID), JABALPUR, R/O H-4, VETERINARY CAMPUS,
CIVIL LINE, DISTRICT JABALPUR (MADHYA PRADESH)
.....PETITIONER
(BY SHRI R.K. TRIPATHI - ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH THROUGH ITS
PRINCIPAL SECRETARY, POLICE HOME AFFAIRS
DEVELOPMENT DEPARTMENT, VALLABH BHAWAN,
BHOPAL (MADHYA PRADESH)
2. DIRECTOR GENERAL OF POLICE, POLICE HEADQUARTERS
DEPARTMENT, BHOPAL (MADHYA PRADESH)
3. DEPUTY INSPECTOR GENERAL OF POLICE, POLICE
HEADQUARTERS, BHOPAL (VISBAL) (MADHYA PRADESH)
4. SHRI NAND RAM KHARAIYA THROUGH ITS DEPUTY
INSPECTOR GENERAL OF POLICE HEAD QUARTER,
BHOPAL (CRIME INVESTIGATION DEPARTMENT)
(MADHYA PRADESH)
.....RESPONDENTS
(BY MS. PRIYANKA MISHRA - GOVERNMENT ADVOCATE)
This petition coming on for admission this day, the Court passed the following:
ORDER
The petitioner has filed the present petition being aggrieved by the order dated
31.03.2021 (Annexure P/1), whereby the respondent No.1 has not considered the
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Signed by: BHARTI GADGE
Signing time: 9/5/2023
4:50:45 PM
petitioner for promotion on the post of Assistant Sub Inspector while junior to him;
respondent No.4/Nand Ram Kharaiya and other persons were considered for promotion
as Officiating Assistant Sub Inspector.
2. It is submitted by learned counsel for the petitioner that the petitioner was
entitled for promotion after completing three years of service. It is prayed that the
respondents may be directed to convene a DPC against vacant post.
3. In the instant case, the respondent authorities have taken shelter of the interim
orders passed by the Apex Court in the case of State of M.P. Vs. R.B. Rai, SLP
No.13954/2016, wherein the issue involved was with regard to the reserved category. The
aforesaid position has been clarified by this Court in the case of Dhirendra Chaturvedi
Vs. State of M.P. , W.P. No. 13241/2017 vide order dated 16.04.2019. This aspect has
also been considered by the Gwalior Bench while deciding W.P. No.14029/2020 and the
Court has held thus:-
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 reserved 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 4 W.P.No. 14029/2020 other
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Signing time: 9/5/2023
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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 W.P. No. 15842/2021 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%
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Signing time: 9/5/2023
4:50:45 PM
promotional post. Statistically as presented by the petitioners regarding
number of vacant seat, which appears to be 131 (for W.P. No. 15842/2021
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.
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Signing time: 9/5/2023
4:50:45 PM
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.
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Signed by: BHARTI GADGE
Signing time: 9/5/2023
4:50:45 PM
4. The ratio of aforesaid decision will mutatis mutandis apply to the facts of the
present case also.
5. Resultantly this petition is allowed. As 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.
(NANDITA DUBEY)
JUDGE
b
Signature Not Verified
Signed by: BHARTI GADGE
Signing time: 9/5/2023
4:50:45 PM
