Full Judgment
HIGH COURT OF MADHYA PRADEESH JABALPUR (Writ Petition No.1591/1999) Mahendra Singh Sikarwar Vs. State of M.P. and others (Writ Petition No.1592/1999) Manohar Singh Verma Vs. State of M.P. and others (Writ Petition No.1593/1999) Prem Babu Sharma Vs. State of M.P. and others (Writ Petition No.1594/1999) R.C. Burra Vs. State of M.P. and others (Writ Petition No.1595/1999) Rameshwar Dayal Vs. State of M.P. and others (Writ Petition No.1463/1998) Dharmendra Chaudhary Vs. State of M.P. and others (Writ Petition No.1686/1998) Prem Singh Bisht 2 W.P. No.1591/1999 and ors. Vs. State of M.P. and others PRESENT : HONOURABLE SHRI JUSTICE AJIT SINGH HONOURABLE SHRI JUSTICE SANJAY YADAV Counsel for petitioner Shri , A.K. Pathak, Advocate and Shri K.C. Ghildayal Counsel for Respondents Shri, Rahul Jain, Deputy Advocate General O R D E R (20/11/2012) The following order of the Court was delivered by Sanjay Yadav, J : Whether a Deputy Superintendent of Police, belonging to Madhya Pradesh Police (Gazetted) Service, governed by the Madhya Pradesh Police (Gazetted) Services Recruitment Rules, 1987, (as was in vogue prior to coming into force of Madhya Pradesh Police Executive (Gazetted) Service Recruitment And Promotion Rules 2000) and by Madhya Pradesh Civil Service (General Conditions of Service) Rules, 1961, on promotion could get a seniority from the date of their continuous officiation and not from the date of confirmation, is the issue which has cropped up for consideration in these bunch of writ petitions arising out of common orders passed by the Madhya Pradesh State Administrative Tribunal in the different set of original applications.
2. Applicants who are respondents in these writ petitions are the promotee Deputy Superintendent of Police, promoted on officiating 3 W.P. No.1591/1999 and ors. basis on different dates between 1984 to 1988. In the year 1994 in a gradation list prepared as on 1.4.1994, when placed in the category of officiating government servant below the direct recruits, these promotees raise their grievance and sought redressal thereof by filing original applications before Tribunal seeking direction that the period rendered on officiation before confirmation be taken into consideration for reckoning their seniority. They thus sought relief that they be given the benefits of continuous officiation.
3. The relief sought for by these promotees were countered by the State as also by the direct recruits who were confirmed on successful completion of their probation, on the ground that, the promotees could not be confirmed on account of nonavailability of substantive permanent posts.
4. The Tribunal after taking into consideration the rival contentions and taking note of the provisions of Rules of 1987 that: (a) all appointments to the service are made in the Junior Scale either by way of direct recruitment or promotion or transfer of persons belonging to other service, (b) post of Deputy Superintendent of Police is a three tier post, which carries a junior scale, a senior scale and selection grade; (c) fifty percent of the posts are required to be filled up by direct recruitment and fifty percent by promotion of members of the lower services; (d) direct recruits are appointed on probation for two years , whereafter they are required to be confirmed; (e) for promotees no period of probation is prescribed , their suitability for the post on which they are promoted is adjudged as per provisions contained in Rule 9 of Rule 1961 which provides for trial of Government Servant 4 W.P. No.1591/1999 and ors. Officiating in another posts whether appointed by way of direct recruitment promotion or transfer; and further taking note of the absence of material to show that the promotees having not being considered as per Rule 9 of 1961 Rules, directed the respondent State by impugned order that: (i) the cases of the applicants shall be considered for confirmation retrospectively from dates they were eligible for such confirmation in terms of Rule 9 of Rules 1961 by the respondent State. (ii) The confirmation shall be considered by a duly constituted committee as per Government orders and such committee shall consider the cases for confirmation as on the date the confirmation was due to be made. In other words, was only such record of each applicant as would have been considered timely would be only be considered and no subsequent events or record shall be taken note of. This direction is being given as had the Government followed the rules and considered the cases of conformation of applicants in time only the record available at the relevant ti,e could have considered. (iii) Such consideration shall be made for all similarly placed promoted Deputy Superintendents of Police so as to avoid multiplicity of litigation. (iv) Based on the dates of confirmation to be accorded as a result of the above said consideration the gradation lists for each year shall be revised/ drawn out and issued for information of all concerned. (v) Action as directed in sub paras (i)to (iv) above shall be completed within three months from date of receipt of this order by the respondent State. (vi) Consequential benefits of appointment/ promotion to higher scales/posts shall be accorded to the applicants and all other similarly placed persons within a further period of four moth by the respondent State.
5. The order has been challenged by the direct recruits on the ground that while directing the State for considering the case of promotees for confirmation on the post they were officiating from initial date of promotion , the Tribunal has lost sight of the fact that the confirmation of the promotees could be only against the vacant post earmarked to be filled by 5 W.P. No.1591/1999 and ors. promotion,i.e, 50% of the sanctioned cadre and not against the post reserved for direct recruit. Petitioners apprehend that in case the order passed by the Tribunal is implemented as it is then the departmental promotees promoted to officiate on higher post in excess of their quota and against the post reserved for the direct recruits will be regularised from the initial date of promotion and would gain seniority which will be contrary to the Rules and also the law laid down by Supreme Court in State of Madhya Pradesh and others V. A.K. Rajoriya and another: 1992 Supp (2) SCC 413; wherein, Sub Rule (2) of Rule 6 of M.P State Industries (Gazetted) Service Recruitment Rules 1985 , which is paramateria the same as sub Rule (2) of Rule 6 of Rules 1987 was considered.
6. Rule 6 of Rules 1987 provides for :
6. Hkjrh dk rjhdk& (1) bu fu;eksa ds ykxw gksus ds ckn lsok esa Hkjrh fuEufyf[kr rjhdksa ls dh tk;sxh]. vFkkZr%& ¼d½ izfr;ksfxrk ijh{kk }kjk lh/kh Hkjrh djds; ¼[k½ lsok ds lnL;ksa]. tSlk fd vuqlwph 4 ds [kkuk ¼2½ esa dh inksUufr }kjk; ¼x½ fufnZ"V lsokvksa es fufnZ"V inksa ij ekSfyd :i ls fu;qDr O;fDr;ksa ds LFkkukarj.k }kjk- ¼2½ mifu;e ¼1½ ds [k.M ¼[k½ vFkok [k.M ¼x½ ds v/khu Hkjrh fd;s x;s O;fDr;ksa dh la[;k fdlh Hkh le; vuqlwph ,d esa mfYyf[kr inksa dh la[;k ds lkFk vuqlwph nks esa crk;s x;s izfr'kr ls vf/kd ugha gksxh- ¼3½ bu fu;eksa ds micU/kksa ds v/khu]. Hkjrh dh fdlh Hkh fo'ks"k vof/k ds nkSjku Hkjs tkus ds fy;s visf{kr lsok ds fdlh Hkh fo'ks"k in ;k inksa dks Hkjus ds iz;kstu ds fy;s viuk;k tkus okyk]. Hkjrh dk rjhdk ;k rjhds rFkk izR;sd rjhds }kjk Hkjrh fd;s tkus okys O;fDr;ksa dh 6 W.P. No.1591/1999 and ors. la[;k izR;sd volj ij 'kklu }kjkk vk;ksx ds ijke'kZ ls]. fuf'pr dh tk;sxh- ¼4½ mifu;e ¼1½ esa nh xbZ fdlh ckr ds gksrs gq, Hkh]. 'kklu dh jk; esa lsok dh vko';drkvksa dks ns[krs gq,]. vko';d gksus ij 'kklu]. lkekU; iz'kklu foHkkx dh lgefr ls lsok esa Hkjrh laca/kh mu rjhdksa dks NksM]. ftudk mDr mi fu;e ls mYys[k fd;k x;k gS]. ,sls vU; rjhds viuk ldsxk]. tks 'kklu }kjk bl laca/k esa tkjh fd;s x;s vkns'k }kjk fu/kkZfjr fd;s tk;sa- Schedule II referred to in subrule (2) of Rule 6 stipulates: vuqlwph 2 ¼fu;e 6 nsf[k;s½ Hkjrh dk rjhdk Hkjs tkus okys inksa dh la[;k dk fooj.k foHkkx dk in dk in dh lh/kh lsok ds vU; fu;qfDr uke uke la[;k Hkjrh }kjk lnL;ksa lsokvksa ds ¼dzeksUufr fu;e 6 dks O;fDr;ksa }kjk½ ¼d½ inksUufr ds vLFkkbZ nsf[k;s }kjk LFkkukarj ¿fu;e 6 }kjk ¼[k½ ¿fu;e 6 nsf[k;sÀ ¼x½ nsf[k;sÀ ¼1½ iqfyl 38 -- 100 InksUufr `-- v/kh{kd izfr'kr ds fy;s ¼jsfM;ks@ mi;qDr ,e-Vh- mEehsnokj @D;w- Mh- u feyus @d EI;wV ij dsUnz j½ mi 'kklu lsukuh@ rFkk vU; vfrfjDr jkT;ksa ds iqfyl v/ lqj{kk kh{kd]. cyksa ls iqfyl dsMj ds eq[;ky;- vuqlkj ; ksX;rk j[kus okys 7 W.P. No.1591/1999 and ors. vf/kdkfj;sa dh izfrfu;qfD r@LFkkuka rj ij in Hkjs tkosaxs- x`g ¼2½ mi -- ¼iqfyl iqfyl v/ foHkkx½ kh{kd ¼ftyk iqfyl cy@iqfy l eq[;ky; @D;w-Mh- @,e-Vh- @jsfM;ks @cSaM dE;wVj½ lgk;d lsukuh- ¼d