Madhya Pradesh High Court
Fagan Singh Wrkade vs The State Of Madhya Pradesh on 2 September, 2025
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IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK JAIN
ON THE 2 nd OF SEPTEMBER, 2025
WRIT PETITION No. 24370 of 2018
FAGAN SINGH WRKADE
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Abhishek Pandey - Advocate for the petitioner.
Shri Praveen Namdeo - Government Advocate for the respondent -
State.
Ms. Akashmi Trivedi - Advocate for the respondent Nos.3 & 4.
ORDER
By way of present petition challenge is made to order Annexure P-6,
whereby the petitioner has been superseded by the respondent No.5 in the
matter of promotion on the post of the Revenue Sub Inspector by Municipal
Council, Malajkhand, District Balaghat.
2. It is the case of the petitioner that the petitioner was appointed in the
year 1987, whereas the respondent No.5 was appointed in the year 2004, but
despite that position the respondent No.4 has stole a march over the
petitioner in the matter of promotion to the post of the Revenue Sub
Inspector, despite both of them being of the same category, i.e. Scheduled
Tribe.
3. The respondents have defended the petition on the ground that as
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per the minutes of Departmental Promotion Committee placed on record
with reply of State as Annexure R-1 the case of the petitioner as well as
respondent No.5 was considered by the DPC and since the respondent No.5
attained 25 marks as per his ACR criteria in the preceding five years,
whereas the petitioner obtained only 23 marks in the preceding five years,
therefore, the respondent No.5 got promoted to the post of Revenue Sub
Inspector, because in view of Rule 12 of M.P. Municipal Employees
Recruitment and Conditions of Services Rules 1968, the required criteria is
of consideration of merits, seniority being taken into account where merits
are equal. Therefore, the respondents have argued that the merits of the
petitioner and respondent No.5 were not equal, because the petitioner
attained 23 marks in the last preceding five years as per ACR criteria
whereas the respondent No.5 attained 25 marks and therefore, the respondent
No.5 has rightly taken march over the petitioner and the respondent No.5 has
rightly superseded the petitioner.
4. Upon hearing the rival parties, it is seen that the respondents have
relied on Rule 12 of Rules of 1968 framed under M.P. Municipalities Act,
1961. As per Rule 12, the promotions are to be made on consideration of
merits, seniority being taken into account when their merits are equal. To
ensure fair play, where the promotion is on basis of merits cum seniority,
then there should be a fixed benchmark merit set up by the employer, on
attaining which, all the employees would be considered for promotion in the
order of seniority. In the present case, the respondents have construed the
said provision in the manner that even if a person has one more point in the
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preceding five years by translating the ACR criteria of points, then the
seniority would be of no avail. Even the State Government by way of
framing M.P. Public Service Promotion Rules, 2002 has provided a cut-off
of 17 points in preceding five years in cases of promotions on the basis of
merit-cum-seniority above which all persons feeder cadre cum in the zone of
consideration and then they are promoted on the basis of seniority.
5. In the case in hand, the petitioner has attained three A+ gradings and
two A gradings in the last five years, whereas the respondent No.5 has
attained five A+ gradings in the last five years and only on account of the
respondent No.5 getting two more points on the basis of his ACRs, that the
petitioner has been superseded. The criteria to be followed of M.P. Public
Service Promotion Rules 2002, or of the Rules of 1968 is no longer res-
integra, and stands decided by the Co-ordinate Bench of this Court in W.P.
No.7542 of 2010. In the aforesaid case, the Co-ordinate Bench has held that
the promotion will be made after enforcement of M.P. Public Service
Promotion Rules, 2002 only by adopting the criteria for assessment as
engrafted the said rule and not in any other manner. The Co-ordinate Bench
has held as under:-
"The present petition has been preferred by the petitioner under
Article 226 of Constitution of India seeking following reliefs :-
(i) It is therefore prayed that this Hon'ble Court may kindly
be pleased to quash order dated 01.10.2018 (Annex.P/6) and
further direct the respondents authority to consider claim of
the petitioner with regard to promotion on the post of
Revenue Sub Inspector and pass order of promotion in favour
of the petitioner with the date from which the petitioner is
entitled and further to pay all the arrears to the petitioner.
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(ii) Any other relief or writ or direction or order which this
Hon'ble court may deem fit and proper looking the facts and
circumstances of the case be awarded to the petitioner
including the cost of the litigation.
2. Precisely stated, facts of the case are that petitioner was
appointed on 12.02.1986 on the post of Cashier (Assistant Grade-
III) in office of Municipality, Raisen (respondent No.6 herein).
Respondent No.8 (private respondent) was appointed on
12.09.1995 on the post of (Assistant Grade-III). In April 2000,
service of petitioner was attached with the office of District Urban
Development Authority (Project), Raisen (respondent No.4 & 7
herein) with the consent of Municipality, Raisen. In the seniority
list of Assistant Grade-III, which was prepared by respondent
No.6, name of the petitioner stands on top of the list at serial No.1
and the name of respondent No.8 stands at serial No.2 as per
seniority.
3. On 29.10.2007, President-in-Council passed a resolution for
filling up the vacant post of Head Clerk/Head Accountant through
promotion from the post of Assistant Grade-III. District Selection
Committee was constituted with three members at the helm.
Deputy Director, Urban Administration, Bhopal Division
(respondent No.3 herein) was the Chairman of the Committee. On
11.04.2008, Selection Committee selected respondent No.8 for
promotion on the post of Head Clerk/Head Accountant in place of
petitioner as per Rule 12 of the M. P. Municipal Employees
Recruitment and Service Conduct Rules, 1968 [hereinafter
referred to as "Rules of 1968" for brevity] and as per Rule 3 of the
M. P. Municipal Services (Scale of Pay and Allowances) Rules,
1967 [hereinafter referred to as "Rules of 1967" for brevity].
4. Being crestfallen by the said decision, petitioner filed an
objection on 13.06.2008 before the Chief Municipality Officer,
Raisen about alleged injustice perpetrated over him because
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respondent No.8 was promoted whereas he was 10 years junior to
him.
5. It appears that petitioner filed a representation/appeal to
Commissioner, Urban Administration and Development
(respondent No.2 herein) on 24.06.2008, but since no affirmative
steps were taken, therefore, he preferred a writ petition vide W.P.
No.10512/2008 in which certain directions were given to the
respondents vide order dated 25.09.2008 for consideration of his
representation.
6. On 05.11.2009, Commissioner considered the matter and
remanded back the case for reconsideration of the promotion of
petitioner before the District Promotion Committee. On
18.03.2010, Promotion Committee passed the order as per
direction of the Court as well as Commissioner and affirmed the
previous promotion order of respondent No.8. Therefore, this
petition has been preferred.
7. It is the submission of learned counsel for the petitioner that
between the year 2000 to 2008 when the petitioner was on
deputation at District Urban Administration and Development
Department and therefore, reporting/accepting and approving
authority of petitioner were of District Urban Administration
Department and not from Mincipality. Petitioner received A+ in
last five years ACRs which were considered for promotion.
Therefore, it is not the case where petitioner was less meritorious
than respondent No.8.
8. Sheet anchor of the case of petitioner is that as per Rule 4 of
M.P. Public Services (Promotion) Rules, 2002 [hereinafter
referred to as "Promotion Rules of 2002" for brevity] promotion
from class-III to higher pay scale of class-III or class-III to class-
II, all shall be made on the basis of seniority, subject to fitness and
criteria adopted by the DPC for promotion from Assistant Grade-
III to Head Clerk/Head Accountant was Merit-cum-Seniority,
which was an erroneous approach. He referred the
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proceedings/DPC minutes dated 11.04.2008 to substantiate his
arguments that criteria adopted was merit-cum-seniority, which is
not at all applicable as per Rule 4 of Promotion Rules of 2002. He
further referred the Rule 2 (f) (Establishment) and 2 (h) (Public
Service & Posts) to submit that Municipality falls under local
authority and therefore, is covered by the Promotion Rules of
2002. He further refers Rule 3 (Scope and Application) of
Promotion Rules of 2002 to submit that Rules of 2002 shall have
the over-riding effect over all other Service Rules. Rule 6 of
Promotion Rules of 2002 provides for promotion on the basis of
seniority, subject to fitness. He further refers Rule 15 of
Promotion Rules of 2002 (Amendment in the Recruitment Rules)
to bring home the analogy that all Rules regulating the recruitment
to the State Public Services and the Posts shall be deemed to have
amended to the extent as provided in the Promotion Rules of
2002, meaning thereby that the Promotion Rules of 2002 was
having over-riding effect over all other Service Rules including
the M. P. Municipal Services (Scale of Pay and Allowances)
Rules, 1967.
9. It is further submitted that although Rule 12 of Promotion Rules
of 1968 talks about Recruitment by Promotion on consideration of
merits, in which seniority being taken into account where merits
are equal. This suggest that criteria is based upon merit-cum-
seniority but same is not in synergy with Promotion Rules of 2002
and therefore, deserves to be discarded and the procedure as
prescribed in Promotion Rules of 2002 would prevail. Here in the
present case adherence to merit-cum-seniority is an arbitrary and
illegal exercise. Therefore, said procedure deserves to be set-aside
and petitioner deserves to be promoted on the post of Head
Clerk/Head Accountant.
10. Learned Government Advocate for the respondent/State
opposed the prayer and referred the facts that after the order dated
25.09.2008 passed in W.P. No.10512/2008(s) Commissioner,
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Urban Administration and Development had gone through the
whole case again and given an opinion about the seniority of
petitioner and remanded the matter back to the DPC to decide
afresh. DPC was re-convened and found the seniority of petitioner
over and above respondent No.8, but again decided in favour of
respondent No.8 on the ground that he is more meritorious
because of his past 5 ACRs carried Outstanding grading whereas,
he scored 20 marks (A+) whereas petitioner's last 5 ACRs carried
Very Good remarks (A). Therefore, respondent No.8 is more
meritorious than petitioner.
11. He also referred the fact that although petitioner placed his
ACRs as written by his borrowing department when he was on
deputation, but since those ACRs were not directly received from
the Project Officer of District Urban and Development
Administration, therefore, those ACRs were not considered.
Although, no doubt was raised over the authenticity of such ACRs
but because the mode of communication was not appropriate as
per the DPC, therefore, petitioner's ACR and grading given by
borrowing department were not considered.
12. Learned counsel for respondent Nos.5 & 6 also opposed the
prayer and submitted that Rules of 1968 are Special Statute in
respect of employees of Municipality and therefore, these Rules
are passed in exercise of power under Section 355 R/w Section 95
of the M.P. Municipalities Act 1961, therefore, it shall prevail over
the Promotion Rules of 2002 being Special Statute.
13. Learned counsel for respondent No.8 also opposed the prayer
and supported the impugned action. According to him, he is
working on promoted post for last 14 years and therefore, equity
has been raised in his favour. He prayed for dismissal of this
petition.
14. Heard learned counsel for the parties at length and perused the
documents appended thereto.
15. This is the case where petitioner is seeking promotion from the
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post of Assistant Grade-III to Head Clerk/Head Accountant.
Promotion, in the service journey of an employee, is an important
milestone which drives the employee to work hard and diligently
to reach to such milestone. Therefore, as a model employer, it is
the duty of State (Municipality herein) to ensure the provisions of
seamless promotional avenues to its employees.
16. It is true that Rule 12 of Rules of 1968 provides recruitment by
promotion on the touch stone of Merit-cum-Seniority but after
promulgation of Promotion Rules, 2002 under the proviso to
Article 309 Constitution of India read with Article 16 and 335 of
Constitution of India, the State Government has framed the Rules
of 2002, giving overriding effects over all other Service Rules.
First of all Rule 12 of Rules of 1968 is reproduced for ready
reference as under :-
"12. Recruitment by Promotion. (1) Recruitment by
promotion shall be made on consideration of merits, seniority
being taken into account where merits are equal.
(2) In selecting candidates for promotion regard shall be had
to -
(i) tact and energy;
(ii) intelligence and ability;
(iii) integrity; and
(iv) previous record of service.
(3) In the case of posts carrying a maximum monthly salary
not exceeding Rs.95/- the Chief Municipal Officer and in
other cases the District Selection Committee shall consider
the cases of all the eligible candidates and may in his or its
discretion interview any of the candidates.
(4) The Chief Municipal Officer or the District Selection
Committee, as the case may be, will select candidates and
will arrange their names in the order of preference. Where
the Chief Municipal Officer is the competent authority for
making appointments, the orders will be issued by him. In
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other cases the District Selection Committee shall
recommend the names of the candidates found suitable for
promotion to the Standing Committee. The Standing
Committee will then make a final selection.
17. Similarly, departmental set up as per Rule 6 of Rules of 1967
has been mentioned in Schedule-III appointed with Rules of 1967
and said schedule has been placed by the petitioner as Annexure-
P/9 in which at serial No.5, in respect of Chief Head Clerk and
Head Accountant, minimum requirement mentioned is 3 years
experience as Clerk along with higher secondary qualification of
high school examination or equivalent. Here, petitioner very well
completed three years and was working since 1986 and thus
completed almost 22 years whereas respondent No.8 completed
only 13 years because he was working since 1995. Promotion
Rules of 2002 came into existence on 11.06.2002 and Sections 3
and 15 if read in tandem then it makes the picture clear that these
rules were having overriding effects on other service rules
prevailing in the State. Rules 3 and 15 of Rules of 2002 are
reiterated for ready reference :-
"3. Scope and application. - Without prejudice to the
generality of the provisions contained in the Madhya Pradesh
Civil Services (General Conditions of Service) Rules, 1961
and notwithstanding anything contained in any Service
Rules, these rules shall apply to the establishment as defined
in these rules, but shall not apply to the employments
specified in clauses (1), (3) and (5) of Section 3 of the
Madhya Pradesh Lok Seva (Anusuchit Jatiyon, Anusuchit
Jan Jatiyon Aur Anya Pichhade Vargon Ke Liye Arakshan)
Adhiniyam, 1994 (No. 21 of 1994).
15. Amendment in the Recruitment Rules.- All rules
regulating the recruitment to the State Public Services and
the posts shall be deemed to have amended to the extent as
provided in these rules."
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18. Perusal of Rule 15 of Promotion Rules of 2002 infact reveals
that all Rules regulating the recruitment to the State Public
Services and the posts shall be deemed to have amended to the
extent as provided in these Rules, meaning thereby that no further
amendment or alteration was required to be made in Service Rules
like Rules of 1967 or Rules of 1968. Both these Rules shall deem
to be amended to the extent as provided in Promotion Rules of
2002..
19. When a statute specifically gives overriding effect over other
statutes to the extent which subsequent statute prevails would
render the provisions of earlier rules ineffective, redundant or
repugnant to the subsequent Act or Rules. Therefore, Promotion
Rules of 2002 would prevail over all other Service Rules.
20. This Court may profitably refer to the judgment of Apex Court
in the case of Sarwan Singh and Anr. Vs. Kasturi Lal, AIR 1977
SC 265. Para 20 and 21 of the said judgment, read as under:-
"20. Speaking generally, the object and purpose of a
legislation assume greater relevance if the language of the
law is obscure and ambiguous. But, it must be stated that we
have referred to the object of the provisions newly
introduced into the Delhi Rent Act in 1975 nor for seeking
light from it for resolving in ambiguity, for there is none, but
for a different purpose altogether. When two or more laws
operate in the same field and each contains a nonobstante
clause stating that its provisions will override those of any
other law, stimulating and incisive problems of interpretation
arise. Since statutory interpretation has no conventional
protocol, cases of such conflict have to be decided in
reference to the object and purpose of the laws under
consideration. A piquant situation, like the one before us,
arose in Shri Ram Narain Vs. The Simla Banking &
Industrial Co. Ltd., AIR 1949 SC 614, the competing statutes
being the Banking Companies Act, 1949 as amended by Act
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52 of 1953,and the Displaced persons (Debts Adjustment)
Act, 1951. Section 45A of the Banking Companies Act,
which was introduced by the amending Act of 1953, and
Section 3 of the Displaced Persons Act 1951 contained such
a nonobstante clause, providing that certain provisions would
have effect "notwithstanding anything inconsistent therewith
contained in any other law for the time being in force ......"
This Court resolved the conflict by considering the object
and purpose of the two laws and giving precedence to the
Banking Companies Act by observing: "It is, therefore,
desirable to determine the overriding effect of one or the
other of the relevant provisions in these two Acts, in a given
case, on much broader considerations of the purpose and
policy underlying the two Acts and the clear intendment
conveyed by the language of the relevant provisions therein.
"(p. 615). As indicated by us the special and specific purpose
which motivated the enactment of Section 14-A and Chapter
IIIA of the Delhi Rent Act would be wholly frustrated if the
provisions of the Slum Clearance Act requiring permission of
the competent authority were to prevail over them. Therefore,
the newly introduced provisions of the Delhi Rent Act must
hold the field and be given full effect despite anything to the
contrary contained in the Slum Clearance Act.
21. For resolving such inter se conflicts, one other test may
also be applied through the persuasive force of such a test is
but one of the factors which combine to give a fair meaning
to the language of the law. That test is that the later
enactment must prevail over the earlier one. Section 14A and
Chapter IIIA having been enacted with effect from December
1, 1975 are later enactments in reference to Section 19 of the
Slum Clearance Act which, in its present form, was placed
on the statute book with effect from February 28, 1965 and
in reference to s. 39 of the same Act, which came into force
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in 1956 when the Act itself was passed. The legislature gave
overriding effect to Section 14A and Chapter IIIA with the
knowledge that Sections 19 and 39 of the Slum Clearance
Act contained non- obstante clauses of equal efficacy.
Therefore the later enactment must prevail over the former.
The same test was mentioned with approval by this Court in
Shri Ram Narain's case (Supra) at page 615."
21. Apex Court in the case of Union of India, represented by the
Secretary, Ministry of Home Affairs and Ors. Vs. Ranjeet Kumar
Saha and Another, (2019) 7 SCC 505 given guidance as under:-
"18. The courts, as a rule, lean against implying repeal unless
the two provisions are so plainly repugnant to each other than
they cannot stand together and it is not possible on any
reasonable hypothesis to give effect to both at the same time.
If the objects of the two statutory provisions are different and
the language of each statue is restricted to its own objects or
subject, then they are generally intended to run in parallel
lines without meeting and there would be no real conflict
though apparently it may appear to be so on the surface.
Statutes in pari materia although in apparent conflict, should
also, so far as reasonably possible, be construed to be in
harmony with each other and it is only when there is an
irreconcilable conflict between the new provision and the
prior statute relating to the same subject-matter, that the
former, being the later expression of the legislature, may be
held to prevail, the prior law yielding to the extent of the
conflict."
22. Although, here it appears that Promotion Rules of 2002 carry
nonobstante clause and overriding effects over other statutes vis-a-
vis Rules of 1967/Rules of 1968 but as referred above, Promotion
Rules of 2002 is the later expression of the legislature, therefore,
has to prevail over the prior law yielding to the extent of the
conflict.
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23. Rule 4 of Promotion Rules of 2002 provides determination or
basis for promotion. Rule 4 is reproduced for ready reference as
under:-
"4. Determination of basis for promotion - (1) Promotion
from class IV to higher pay scale of class IV, class IV to
class III to higher pay scale of class III, class III to class II,
class II to higher pay scale of class II and class II to class I
posts shall be made on the basis of "seniority subject to
fitness". (2) Promotion from class I to higher pay scale of
class I posts shall be made on the basis of "merit-cum-
seniority":
24. In present context, promotion is sought for the post of
Assistant Grade-III to Head Clerk. In other words, it is a
promotion from class-III to higher pay scale of class-III or at best
to class-II and therefore, it would be governed on the basis of
Seniority, subject to Fitness. Rule 6 provides mechanism for
promotion on the basis of seniority subject to fitness, which is
relevant in the present case. Rule 6 (7) and Rule 6 (9) of Rules of
2002 are worth reiteration for ready reference :-
Rule 6 -Promotion on the basis of seniority subject to
fitness.-
Rule 6 (1) ......
Rule 6 (2) .......
Rule 6 (3) .......
Rule 6 (4) .......
Rule 6 (5) .......
Rule 6 (6) .......
"Rule 6 (7) For filling up the posts by this method, the
Departmental Promotion Committee shall consider the case
of each public servants separately on the basis of his own
merit, that is to say, that there shall be no need to make a
comparative assessment of the merits of public servant. The
Departmental Promotion Committee shall consider the
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records of each public servant separately and shall categorise
them as 'fit' or 'not fit'.
Rule 6 (8) ...
Rule 6 (9) The names of public servants included in each list
shall be arranged in the same order of their seniority as they
existed in the cadre/part of the service/pay scale of post from
which promotion is to be made."
25. Perusal of the said provisions makes it further clear that at
first, respective merit of candidates ought to have been determined
and when it is found all those persons found fit for consideration
for promotion, then in the same order of their seniority as they
existed in the cadre/part of the service, they have to be promoted.
26. Here it appears that respondents proceeded on illegal
assumption of merit-cum-seniority whereas it had already stood
amended by the deeming provision as contained in Rule 15 of
Promotion Rules, 2002. A 14 fiction has been created by said
deeming provision which renders the Service Rules like Rules of
1967 and Rules of 1968 as amended or have to fall in line with the
spirit and contents of Rules of 2002.
27. Here respondents erred in not adhering to the criteria of
senioritycum-merit and caused illegality and arbitrariness. They
had to adhere to that norms and it appears that just to give favour
to the respondent No.8, this mechanism has been devised.
28. So far as submissions of the respondents that respondent No.8
had 5 "Excellent grades (A+)" to his credit whereas petitioner had
the grade of 5 "Very Good (A)" ACRs to his credit, it has no
substantial value in light of the fact that petitioner was found fit
for promotion by the DPC. Infact, Commissioner, Urban
Administration vide respondent No.1 and DPC vide respondent
No.2 considered these aspects and never raised any doubt about
the fitness of petitioner for promotion. It was only comparative
merit which drove the respondents to grant promotion to the
respondent No.8, much to the chagrin and dismay of petitioner.
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29. Resultantly, petition stands allowed. Impugned orders dated
04.06.2008 (Annexure-P/1), 11.04.2008 (Annexure-P/2) and
11.04.2008 (Annexure-P/3) are hereby set-aside including the
promotion order subsequently issued by the revised DPC vide
proceedings dated 12.01.2010 (Annexure-R/2), with immediate
effect. Petitioner is found entitled to be promoted to the post of
Head Clerk/Head Accountant and therefore, respondents are
directed to consider and pass an appropriate order for promotion in
favour of petitioner. However, from the long period of retention of
post albeit illegally by respondent No.8, any supernumerary post
can be created, if advised so and if deemed fit by the respondent to
accommodate respondent No.8 over the said post. But in case no
such thought is in the mind of respondents then respondent No.8
has to step down paving the way for petitioner to be promoted as
Head Clerk/Head Accountant. Consequential benefits (although
without backwages) shall follow.
30. Petition stands allowed and finally disposed of in above
terms."
6. Resultantly, the petition stands allowed. The impugned order
Annexure P-6 dated 01.10.2018 is set aside and the matter is remitted back to
the DPC to redecide the matter of the petitioner and the respondent No.5 as
per the criteria in view of M.P. Public Service Promotion Rules, 2002 as on
the date of convening of original DPC.
7. Let this consideration be made within 60 days. It is made clear that
if the respondent No.1 wants to adjust the respondent No.5 on any other
vacant post of RSI, then they are free to do so within the legal framework,
till so far it does not adversely affect any person senior to the respondent
No.5. This order will not come in the way of the respondents. However, the
right of the petitioner to be considered for promotion as per assessment
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criteria laid down in the Rules of 2002 has to be respected and the
respondents are under obligation to consider the case of the petitioner within
60 days.
8. With the aforesaid directions, the petition is allowed and disposed
of.
(VIVEK JAIN)
JUDGE
rj
