Full Judgment
HIGH COURT OF MADHYA PRADESH : JABALPUR.
Writ Petition No.6657/2000 Ajay Nigam & another.
versus M.P.State Mining Corporation & otheRs.PRESENT : Hon’ble Shri Justice K.K.Trivedi.J.Shri Umakant Sharma, learned Senior counsel assisted by Shri R.K.Patel, for the petitioneRs.Shri O.P.Mishra, learned counsel for respondents No.1 to 3.
Shri V.S.Shroti, learned Senior counsel assisted by Shri Vikram Johri, learned counsel for the respondent No.4 and 4(a).ORDER
(12.9.2012) This writ petition under Article 226 of the Constitution of India has been filed by the two petitioners aggrieved by the order dated 5.8.2000, passed by the respondent No.2, whereby the seniority list of Accountants as was in force with effect from the year 1990, has been cancelled and a fresh seniority list has been circulated.
The grievance of the petitioners is that a recruitment process was started, the departmental candidates were also allowed by the M.P.State Mining Corporation (hereinafter referred to as the Corporation for brevity) to take part in the selection and thereafter the merit list was prepared.
On the basis of the merit list, selected candidates were issued the order of appointment dated 23.9.1985 individually.
The petitioners and respondents No.4 and 5were recruited by the order of the even date.
However, since the posting of the 2 respondents No.4 and 5 was made at Bhopal itself, they were already employed in the Corporation, on receipt of the order of appointment, they immediately gave the joining.
The petitioners were posted in the sub-offices of the Corporation, as a result, after receipt of the order of appointment, they gave their joining within the period allowed and their joining was accepted.
When a seniority list of Accountants was issued on 15.1.1987, showing the position as on 1.4.1986, the name of petitioners were shown at Serial Nos.3 and 4 below the name of respondents No.4 and 5.
On a perusal of the aforesaid list, the petitioners could knot that the said list was prepared on the basis of the date of joining and not on the basis of date of appointment, strictly in order of merit list, therefore, they made a representation.
2: It is stated that the said representation of the petitioners was considered and an order was issued after examining the selection record and since the petitioners were found more meritorious, were put at higher serial number in the merit list by the Selection Committee, as per the Regulations of the Board, they were given the seniority over and above the said respondents No.4 and 5.
Accordingly, the list showing the position as on 1.4.1986 was again issued on 7.2.1990.
Such a situation remained intact and the petitioner were shown at Serial Nos.1 and 2 respectively, just above the name of respondents No.4 and 5, who were put at Serial Nos.3 and 4 of the said list.
According to the said seniority list, the petitioners were promoted on the post of Accountant Grade-I, by orders dated 9.1.1996 and 1.1.1996 respectively.
When the gradation list of Accountant Grade-I was issued showing the position as on 1.4.1998, again the petitioners were shown senior to the respondents No.4 and 5.
However, the wife 3 of the respondent No.4 was in the employment of the Corporation and the order of her posting in the Establishment Section of the Corporation was issued.
Immediately thereafter manipulation was done in the records, illegally it was said that the respondents No.4 and 5 were senior to the petitioners and a modified gradation list was issued vide order dated 5.8.2000.
A representation against such an order was made, but the same has been dismissed, therefore, the writ petition is required to be filed.
It is contended that in terms of the Regulations made by the respondent-Corporation, once the seniority of the petitioners was rightly fixed, there was no occasion to make a change in the same to alter the seniority to the detriment to the petitioneRs.therefore, such an order is bad in law and is liable to be quashed.
3: On receipt of the notices of the writ petition, a return has been filed by the respondents No.1 to 3.
It is contended that the petitioners were not more meritorious than the respondents No.4 and 5 as alleged.
It is contended that the original record of selection, preparation of the seniority list and subsequent proceedings which were done on the representation of the petitioners were not available in the office of the respondents.
It is contended that since the respondents No.4 and 5 were higher in the list prepared by the Selection Committee, error committed in making change in the seniority of the respondents No.4 and 5 was corrected.
The representation made by the petitioners was considered and rejected.
Comments were called from the persons who were in the office at the relevant time and after taking note of such comments, the order was passed.
Thus, it is contended that there was no wrong committed in passing the order impugned, and as such, the petition was liable to be dismissed. However, since the respondents were higher in the merit list, they were given the order of appointment at an earlier serial number of dispatch and the seniority list was prepared showing the rightful position of the respondents. It is contended that since error was found in making change in the seniority of the respondents on the basis of the representation made by the petitioneRs.rightful action was taken and the seniority of the respondents No.4 and 5 has been protected by passing appropriate ordeRs.Such order need not be interfered with, in this writ petition by this Court. 5: A rejoinder has been filed by the petitioners again reiterating the similar facts. However, it is said that on certain occasion when the orders were passed in respect of the petitioners and they were given the seniority over and above the respondents No.4 and 5, certain representations were made by the respondent No.4, but the said representations were rejected. There was no occasion to reagitate the matter. It is very categorically contended that only because the wife of the respondent No.4 was posted in the Establishment Section only when the records of the Corporation were manipulated, a representation was again made by the respondent No.4 on the basis of which, the order impugned has been passed. Thus, it is contended that such an action was bad in law. Even the wife of the respondent No.4 has been arrayed as respondent in the present petition as respondent No.4(a) 5 and malafides have been alleged against her. Action was required to be taken against the said person, but nothing was done by the respondents. An additional return has been filed by the respondents No.1 to 3 contending that there was no malafide on the part of the official respondents. The show cause notice was issued to the wife of the respondent No.4. Since the objection was raised by the respondent No.4 subsequently, the same was considered and decided. 6: In the return filed by respondent No.4(a).it is contended that a show cause notice was given to her with respect to the allegation of manipulation in the records. She submitted the reply which was considered and in the note sheet, action initiated against the said respondent was closed by the Corporation. It is stated that since nothing was available on record to indicate any malafide of said respondent No.4(a) not she was in possession of the original record of selection, it cannot be said that any malafide action was taken by her. 7: The petitioners have filed an additional rejoinder vide I.A.No.13503/2011 and have placed on record the note sheets and various other documents. A reply to this has been filed by the respondents No.1 to 3 again. However, it has been reiterated by the respondents No.1 to 3 that the dates of joining of the respondents No.4 and 5 and petitioners were taken note of and, accordingly, the seniority list was prepared. As far as the note sheets which have been placed on record are concerned, it is submitted by the respondents that the same are the matter of records. 8: Heard learned counsel for the parties at length and 6 perused the record. 9: The fiRs.and foremost question would be whether there is any provision made under the Rules or Regulations by the Corporation for fixing the seniority or No.?. Undisputedly, the respondent No.1 is a Mining Corporation, registered as a Company and is required to make the Rules to govern the services of its employees. One such set of Rules have been placed on record by the petitioners with their additional rejoinder as Annx.P/14. The Rules are called the M.P.State Mining Corporation Limited Service and Conduct Rules (hereinafter referred to as the Rules for short).The definitions have been given in the Rules. There is one reviewing authority prescribed under the Rules and as per the definitions given in Rule 2(21) of the Rules, the reviewing authority means the authority specified in the Schedule attached to the Rules. The prescription of reviewing authority is necessary because in a case, some order is passed by a competent authority of the Corporation, if anybody makes an application with respect to passing of such an order, it would be necessary for the Corporation to review the order of its own and, therefore, the prescription of reviewing authority is made. The mode of recruitment is also prescribed under the Rules, which specifically prescribes by deputation from Government, or other Organisation, or by direct recruitment, or by promotion. The direct recruitment is to be done through the competitive written test, or interview or both. The condition of eligibilities for direct recruitment are prescribed. After making of selection, a select list is required to be prepared. As is prescribed in Rule 17 of the Rules, the Selection Committee is required to forward to the appointing authority, the list of suitable candidates separately for general category, Scheduled Caste and Scheduled Tribes, arranged in the order of merit on the 7 basis of assessment either through competitive test or by interview or by both. The appointing authority is required to issue the order of appointment in accordance to the aforesaid merit order. Once the appointment is made, the seniority list is required to be published. As per Rule 25 of the Rules, the seniority of the persons appointed to any post is to be determined in accordance with the principles as laid down in the said Rules. Since petition relates to the direct recruitment and the relevant portion for preparation of the seniority list of direct recruits are separately provided, the relevant portion of the Rules is reproduced for proper appreciation :- “25. Seniority- The seniority of the persons appointed to any post shall be determined in accordance with following principles namely :- Seniority shall be according to the order of merit in the final select list of candidates recommended for appointment or promotion, as the case may be, irrespective of the dates of their joining. The appointing authority may extend joining date with or without affecting his seniority.” 10 : Undisputedly, the recruitment was started and the proceedings were done and some select list was prepared and sent for issuance of the order of appointment. Undisputedly, on one date, the orders of appointment were issued in respect of petitioners and respondents No.4 and 5. From the petition and the documents annexed with it, it is clear that the persons like petitioners were appointed on one date and the orders of appointment were issued on 23.9.1985 appointing them as Accountant. It is the contentions of the petitioners that soon after issuance of the order of appointment, the seniority list was issued 8 showing the position as on 1.4.1986. It is the case of the petitioners that the moment they came to knot about making of such a gradation list, they immediately objected to making of such a list stating in their representation that they were not to be treated as juniors to the respondent Nos.4 and 5 merely because of date of joining. In fact, they were to be treated as senior to said persons. The representation which was made immediately after coming into knot about the said gradation list has been filed by the petitioners along with their additional rejoinder as Annx.P/16. The said representation was said to be made on 26.6.1989. The petitioners have very categorically said that the seniority list has been prepared on the basis of the date of joining and not on the basis of merit order of the select list. It appears that such a contention of the petitioners was examined and since it was found correct, the orders were issued on 7.2.1990 and the proper seniority list was issued. This has to be inferred from the documents available on record as the official respondents have categorically said that the original records pertaining to selection, consideration of the representation of the year 1989 made by the petitioneRs.has been lost and is not traceable. However, some sort of committee was constituted by the Corporation and the said Committee was entrusted the work to make an enquiry. The said Committee headed by the General Manager, Finance and Accounts was inclusive of General Manager Operation and Officer on special duty. The said Committee has made a probe in the records and has given its report on 22.3.2007, which the petitioners have filed as Annx.P/9-B along with their application for amendment in the writ petition. In the said report, facts have been recorded that in the year 1987 when the seniority list was circulated, the same was prepared on the basis of date of joining which was not in 9 consonance to the provisions of the Rules. When the representation was made in 1990, the note sheet was written and in the said note sheet the fact was mentioned that the seniority list was required to be prepared on the basis of the merit list prepared by the Selection Committee. Since it was recommended in the note sheet, which have been seen by the said Committee, the correction in the seniority list was ordered in the year 1990 and the seniority list of Accountants was issued after correction, strictly in order of merit. 11 : As against this document, nothing has been placed on record by the official respondents. If any Committee was constituted, the said Committee had given a report in the year 2007, it was the duty on the part of the official respondents to make submission in this respect in the additional return, but it appears that deliberately this information was concealed by the official respondents. Again this has been done to avoid any orders in the writ petition in favour of the petitioners or to shelter somebody, who was the real mischief monger. Even when the additional return has been submitted to the additional rejoinder not a single word is said about such a Committee or the reports of the said Committee by the official respondents. This being so, the conduct of the respondent Corporation cannot be approved and it has to be held that the petitioners were higher in merit order in the selection than the respondents No.4 and 5. 12: It is emphatically contended by learned senior counsel appearing for respondent No.4 that one who has made the claim on the basis of merit list is required to place on record such merit list. In absence of any such proof, the burden of proof cannot be shifted on the other 10 side or the respondent and, therefore, the petitioners cannot be allowed to claim such a relief without there being any documentary evidence. Such a contention of learned senior counsel for the respondent No.4 is liable to be rejected outrightly for the following reasons :- (I) The petitioners have made the representation for correction in the seniority list without any loss of time. Such a correction in the seniority list was done after considering the representation of the petitioneRs.The earlier seniority list was not in consonance to the provisions of Rule 25 of the Rules referred to herein above as the same was prepared on the basis of date of joining which is not the requirement of the Rules. (ii) The official respondents have declined to produce any document with respect to the selection conducted by them in the garb that the documents have been lost. (iii) The Committee was constituted by the official respondents and the said Committee has given the report in this respect which has not been controverted by the respondents. The Committee has seen certain note sheet in the year 2007 and at this stage, it cannot be said that even that record is not available so as to produce before this Court. Thus, it has to be inferred that the official respondents are withholding the material evidence and are not willing to produce the same before this Court because in case such an evidence is produced, the same would be against them and their action would not be protected. (iv) Lastly, it is to be seen that certain note sheets have been obtained under Right to Information Act in which also it has been referred that the seniority list was directed to be modified only on the basis of records of selection. If the official respondents have no such record and are not in a position to produce the same before this Court, how can it 11 be said that the petitioners are not entitled to get the relief in the writ petition only because they are not in a position to produce such an evidence. Thus, the burden of proof of certain facts, require shifting from one to other side in these circumstances. An adveRs.inference has to be drawn against the respondent Corporation and it has to be held that the petitioners were more meritorious than the respondents No.4 and 5 in the selection conducted at the time of appointment on the post of Accountant. 13 : not coming to the issuance of the order impugned, various facts are to be kept in mind. The correction in the seniority list was ordered in the year 1990. Some sort of representation was said to be made by the respondent No.4 in the year 1990 and thereafter. The said representations were all considered and were rejected by passing the specific order as is clear from the note sheets, which have been placed on record along with the additional rejoinder by the petitioneRs.These note sheets have also not been explained by the official respondents not there is a denial of same. If the representations were rejected and a decision was already taken to finalise the seniority list as was issued in the year 1990, where was the question of considering the representation subsequently made by the respondent No.4. The entire note sheet as has been placed on record indicates that various facts which were taken note of by the earlier officers were deliberately ignored. The note sheets specifically states that the representations of the respondent No.4 were rejected vide order not Establishment- 2000-2009/176, dated 25.4.2000. If the representations were once rejected, the said order was not to be reviewed by the respondent-Corporation. The power to review such ordeRs.though not specifically mentioned 12 even if such power was delegated, a cogent reason was required to be recorded as to why the earlier order was sought to be reviewed, what were the circumstances which were not pointed out earlier and keeping in view such facts, the order under review could not have been passed. Nothing has been indicated in the order impugned. Thus, it has to be held that the order was issued only at the behest of somebody. This being so, the order impugned dated 5.8.2000 Annx.P/11 cannot be sustained. The petitioners cannot be put to a loss of seniority only on account of such improper act and inaction of the respondents. 14 : Consequently, the writ petition is allowed. The order impugned dated 5.8.2000 Annx.P/11 is hereby quashed. All the consequential action of fixation of seniority of the petitioners below the respondents No.4 and 5 are hereby quashed. The respondents are directed to maintain the seniority of the petitioners as has been reflected in the seniority list dated 7.2.1990, showing the position as on 1.4.1986 and to grant all the consequential benefits of such fixation of seniority to the petitioneRs.15 : The writ petition is allowed to the extent indicated herein above. There shall be no order as to costs. (K.K.TRIVEDI) Judge 12/9/2012 A.Praj. 13 HIGH COURT OF MADHYA PRADESH : JABALPUR. Writ Petition No.6657/2000 Ajay Nigam & another. versus M.P.State Mining Corporation & otheRs.ORDER Post it for /09/2012 (K.K.Trivedi) Judge /09/2012