Madhya Pradesh High Court
The State Of Madhya Pradesh vs Dattatreya Keshav Rao Muley on 3 March, 2025
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2025:MPHC-JBP:9847
1
IN THE HIGH COURT OF MADHYA
PRADESH
A T J A B A L PU R
BEFORE
HON'BLE SHRI JUSTICE SURESH KUMAR KAIT,
CHIEF JUSTICE
&
HON'BLE SHRI JUSTICE VIVEK JAIN
ON THE 3rd OF MARCH, 2025
WRIT APPEAL No. 3010 of 2024
THE STATE OF MADHYA PRADESH AND OTHERS
Versus
DATTATREYA KESHAV RAO MULEY
Appearance:
Dr. S.S.Chouhan, Government Advocate for appellants/State.
Shri Akash Choudhury, Advocate for respondent.
ORDER
Per: Hon'ble Shri Justice Suresh Kumar Kait, Chief Justice
The instant appeal is filed against the order dated 25.01.2024
passed in W.P. No. 12453 of 2009(S) by the learned Single Judge
whereby the writ petition filed by the respondent/writ petitioner was
allowed.
2. The appeal has been filed on the following grounds:-
grounds:
It is a settled law by the Hon'ble Supreme Court in the case
Aravali Golf Club v. Chander Hass (2008) I SCC 683
(2008) SCC (L&S) 289 also, a two-Judge Judge Bench considered the
issue relating to creation of posts and held:-
held:
"The court cannot direct the creation of posts. Creation
and sanction of posts is a prerogative of the executive or
legislative authorities and the court cannot arrogate to itself
this purely executive or legislative function, and direct
creation of posts in any organization. This Court has time
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and again pointed out that the creation of a post is an
executive or legislative function and it involves economic
factors. Hence
Henc the courts cannot take upon themselves the
power of creation of a post. Therefore, the directions given
by the High Court and the first appellate court to create the
posts of tractor driver and regularize the services of
the respondents against the said posts cannot be sustained
and are hereby set aside."
(a) A three Judge Bench of Supreme Court in the case of 'Official
Liquidator Vs. Dayanand and others', 2008 (10) SCC 1 has
categorically held that creation and abolition of posts formation
and structuring/r
structuring/re-structuring of cadres falls within domain of
employer. The relevant extracts of the judgment are reproduced
as below: -
"59. The creation and abolition of posts, formation
and structuring/restructuring of cadres, prescribing the
source and mode of recruitmentitment and qualifications and
criteria of selection, etc. are matters which fall within the
exclusive domain of the employer. Although the decision of
the employer to create or abolish posts or cadres or to
prescribe the source or mode of recruitment and laying aying
down the qualification, etc. is not immune from judicial
review, the Court will always be extremely cautious and
circumspect in tinkering with the exercise of discretion by
the employer. The Court cannot sit in appeal over the
judgment of the employerr and ordain that a particular post
or number of posts be created or filled by a particular mode
of recruitment. The power of judicial review can be
exercised in such matters only if it is shown that the action of
the employer is contrary to any constituti
constitutional or statutory
provisions or is patently arbitrary or vitiated by mala fides.
60. In State of Haryana v. Navneet Verma (2008) 2 SCC 65:
a Division Bench of two Judges referred to M. Ramanatha
Pillai v. State of Kerala (1973) 2 SCC 650, Kedar Nath Bahl
v. State of Punjab(1974) 3 SCC 21, State of Haryana v. Des
Raj Sangar (1976) 2 SCC 844, N.C. Singhal (Dr.) v. Union
of India (1980) 3 SCC 29 and Avas Vikas Sanghathan v.
Engineers Assn. (2006) 4 SCC 132 and culled out the
following principles: (Navneet Verma
Ver case (2008) 2 SCC 65,
SCC p. 70, para 14)" .
(b) The Hon'ble Single Judge has failed to observe that since the post
of Stenographer Grade
Grade-III
III had already been extinguished, the
writ petitioner could not be granted promotion on the said post.
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(c) The Hon'ble Supreme court in the case of Government of West
Bengal & Ors Vs. Dr. Amal Satpathi & Others (Diary
No. 43488/2023) has held as under :-
"18. Upon a bare perusal of Rule 54(1)(a) of the West
Bengal Service Rules, it is clear that promotion cannot be
retrospectively granted after retirement, as it requires the
actual assumption of duties and responsibilities of
the promotional post. In the present case, since respondent
No. 1 superannuated before the final approval of his
promotion, he could not have fformally assume the charge of
the promotional post of Chief Scientific Officer.
Therefore, although respondent No. 1 was recommended for
promotion, Rule 54(1)(a) of the West Bengal Service Rules
precludes him from getting the financial benefits of the
promotional
tional post without having taken on the
responsibilities of the said post i.e. Chief Scientific Officer."
21. While we recognize respondent No.1's right to be
considered for promotion, which is a fundamental right
under Articles 14 and 16(1) of the Constitution
tution of India, he
does not hold an absolute right to the promotion itself. The
legal precedents discussed above establish that promotion
only becomes effective upon the assumption of duties on the
promotional post and not on the date of occurrence of the
vacancy or the date of recommendation. Considering that
respondent No. 1 superannuated before his promotion
was effectuated, he is not entitled to retrospective financial
benefits associated to the promotional post of Chief
Scientific Officer, as he did not
n serve in that capacity."
3. According to the writ petitioner D.P. Bathav was though senior to
the petitioner in the cadre of Steno Typist, but was ineligible for
promotion to the post of Stenographer Grade
Grade-III. He was erroneously
promoted as Stenographer
grapher Grade III vide order dated 31st October, 2002.
4. Upon hearing rival parties, it is observed that the ppetitioner
etitioner had filed
appeal before the Commissioner, Jabalpur Division, Jabalpur wherein it
was contended that Shri Bathav was given promotion as a Stenographer
on the basis of a certificate not issued by a recognized institution,
therefore, directions were sought from the Department. Directorate of
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Culture vide its communication dated 25/09/2004 informed that
certificate issued by the Training Centres under the Directorate of Culture
in relation to Typing and Stenography are not recognized by the
Government,, as a result Shri D.P. Bathav was reverted to the post of
Steno Typist.
5. The case of the writ petitioner before the writ court was that after
reversion of Shri D.P. Bathav to the post of Steno Typist, as on the date
of promotion of Shri D.P. Bathav ppetitioner
etitioner was eligible, his case for
promotion should have been considered but arbitrarily and illegally from
a retrospective date the then Collector had shown the post to have been
abolished on the ground that it was post of dying cadre.
6. The issue before
efore the writ court was as to date when the post of
Stenographer was declared to be a dying cadre. In para
para-44 of appellants'
return, State has mentioned that out of three posts sanctioned in the
Office of respondent No.3, one post of Stenographer Grade III pertains to
set up of erstwhile District Planning Board. In the year 2002 District
Planning Board was abolished, therefore, State Government took a
decision to cut short 30% of the Clerical Staff in all the department of the
State Government. One post of Stenographer Grade III against which Shri
D.P. Bathav was promoted, was to be abolished as Mr. Bathav was
continuing on the aforesaid post, said post was treated to be post in dying
cadre and as Mr. Bathav stood retired on attaining his age of
superannuation
on on 31/03/2004, aforesaid post became automatically non
non-
existent.
7. In view of the above, the writ court has observed that the stand of the
State Government is absurd. Eligibility of the petitioner is to be adjudged
on the date on which Shri D.P. Bat
Bathav
hav was illegally promoted.
Admittedly on that date post in question was not abolished. Cleverly and
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cunningly State has not given the date of the circular by which post of
Stenographer was to be abolished or the Jila Yoj
Yojna
na Mandal was
abolished. Thus, ther
theree is an admission that on the date of promotion of
Shri Bathav, post of Stenographer Grade III was existing. Once the
promotion of Shri Bathav was found to have been made on the basis of an
illegal certificate which had no sanctity in the eyes of law, then as on the
date of promotion of Shri Bathav, case of the petitioner or other eligible
candidates should have been considered by constituting a review DPC.
The appellants have failed to do so and have taken a lame excuse which
appears to be prima facie mala fide that they were not interested in
granting promotion to the writ petitioner or to consider his case for
promotion in the garb of flimsy grounds raised by them in their return.
8. In view of the above, we do not find any illegality or perversity in the
order passed by the learned Single Judge and the same is hereby affirmed.
Accordingly, the appeal being devoid of merits is accordingly dismissed.
(SURESH
SURESH KUMAR KAIT
KAIT) (VIVEK
VIVEK JAIN)
JAIN
CHIEF JUSTICE JUDGE
MSP
MANVENDR
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PRADESH,
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f1b3504498290589d50b42155de9c43,
postalCode=482001, st=Madhya Pradesh,
serialNumber=58BFD009297C8990B6288F0D15
PARIHAR E55CD575416988807F9D09534E18795B5B728F,
cn=MANVENDRA SINGH PARIHAR
Date: 2025.03.06 10:38:40 +05'30'
