Uttam Gororey Vs. Madhya Pradesh Rjaya Krishi Vipnan Board - Court Judgment

SooperKanoon Citationsooperkanoon.com/1054243
CourtMadhya Pradesh High Court
Decided OnJun-27-2012
AppellantUttam Gororey
RespondentMadhya Pradesh Rjaya Krishi Vipnan Board
Excerpt:
1 high court of madhya pradesh principal seat at jabalpur. writ petition no.11724/2007(s) uttam gororey and another. -versus- m.p.rajya krishi vipnan and others.present : hon’ble shri justice k.k.trivedi. shri p.r.bhave, learned senior advocate assisted by shri v.k.shukla, learned counsel for the petitioners.shri s.d.tiwari, learned govt. advocate, for respondents no.1 and 2. shri akash choudhary, learned counsel for respondent no.5. order (27.06.2012) 1: this petition is filed by the petitioners.two in number, claiming benefit of seniority over and above the respondents no.4 and 5, and consequential benefits of grant of promotion on the post of section officer. 2: brief facts giving rise to filing of this petition are that the petitioners were engaged in the services of m.p.state agriculture marketing board (hereinafter referred to as the board for short) on contingency. there were regulations made by the board. in terms of the regulation, it was decided to conduct a departmental examination to regularise the 2 services of contingency employees. a test was held on 16.6.1985. though the petitioners have cleared the departmental examination and regular appointment orders were required to be issued in their favour, it appears that the board instead of acting on the said select list, decided to hold a second departmental examination. such a second departmental examination was held on 15.12.1985 and the persons who had cleared the said examination were regularised. consequently, the services of the petitioners were terminated from the board. the petitioners therefore approached this court by filing m.p.no.1061/1986 along with two other persons. 3: the said writ petition was contested by the respondents and the same came up for hearing before this court on 10.3.1993. after hearing the learned counsel for the parties, this court was of the opinion that the reasons assigned for not giving effect to the select list prepared by holding firs.selection and conducting a second departmental examination by the board were not acceptable and in fact, the respondent board was required to give effect to the select list of firs.departmental examination. the said writ petition was allowed with costs and the order of termination of the petitioners was quashed. the operative part of the order passed by this court in the said writ petition in paras 8 and 9 is quoted herein below :- “8. the upshot of the above discussion is that the petitioners have lost due chances of regularisation of their services due to an arbitrary decision and action taken by the respondent- board and its authorities. consequently, we quash the decision of termination of the petitioners from the service of the board (annexure p-6 to the petition) and similar such orders of termination issued against other petitioners.we direct that the petitioners be reinstated in service and regularised by issuing 3 regular orders of appointments in their favour, but only if they have successfully passed the firs.departmental examination held on 16.6.1985.”9. in the circumstances, the petitioner shall also get the cost of the petition and counsel's fees rs.500/- if certified. the amount of security be refunded to the petitioners.” 4: the order passed by this court was not called in question anywhere. on the other hand, the respondent board carried out the order and passed an order of appointment in respect of petitioners on 11.5.1993 giving effect to the order from the date of order appointing the petitioners on probation of two years.certain conditions were also mentioned in the said order. this order was not treated to be one within the direction of this court granted in earlier writ petition and, therefore, another misc. petition no.148/1994 was filed before this court by the petitioners.it was contended by them that in proper compliance of the order, the petitioners were required to be regularised with retrospective effect. again the said writ petition was contested and came up for hearing before this court and was decided by order dated 10.8.1998. it was categorically held after examining the order passed by this court in paragraphs 6 and 7, which reads thus :- “6. from the order, it is clear that this court directed that the petitioners be reinstated in service; the petitioners be regularised. regular order/orders of appointment in favour of the petitioners were to be issued. in the opinion of this court, the directions of this court do not simply mean that on petitioners being successful in the firs.examination, the respondents could issue a fresh order of appointment on probation. the services of the petitioners were directed to be regularised. regular appointment orders were required to be issued. it would clearly mean that the petitioners were directed to be reinstated as regular employees and the respondents were duty bound to accept the petitioners as regular employees and the respondents were also bound to issue regular orders of appointment. a regular 4 order of appointment would not mean an appointment on probation. if the judgment of this court is read in its true perspective and the directions contained in paragraph 8 are read in their true spirit, it would lead to irresistible conclusion that this court was asking the respondent to accept the petitioners as regular employees, reinstate them on the post held by them and the respondent was expected to issue the regular order of appointment. the appointment 'for a period of two years on probation' 'until further orders.would not meet the requirements. the order dated 11.5.1993 is illegal it deserves to and is accordingly quashed, instead it is directed that the respondent shall issue regular orders of appointment in favour of the petitioners after regularising their services.”7. so far as the claim of seniority and consequential benefits are concerned, the same are required to be given to the petitioners not from 16.6.1985 but a day prior to holding of the second departmental examination i.e.15.12.85. if the second examination was not held the petitioners who were later on declared unsuccessful, could be declared successful prior to 15.12.85 and in such a situation they were entitled to get all the consequential benefits. the earlier order passed by this court does not mean that the petitioners were required to be appointed afresh from a future date. the directions issued by this court are to be read in their context. this court held that the petitioners lost due chances of regularisation of their services due to an arbitrary decision and action taken by the respondent. if these observations made by this court are read with final directions it would lead to the only conclusion that this court was directing the respondent to declare the petitioners passed on the basis of the firs.examination and was also asking the respondent to regularise the petitioners services by issuing regular orders of appointment in their favour. it cannot be again said that the respondent was obliged only to issue a fresh appointment order. once this court has held that due to an arbitrary decision and action taken by the respondent-board the petitioners lost their chances of regularisation then the clock has to be reversed and the party is required to be laced at proper pedestal if the arbitrary action 5 was not taken by the board. the petitioners are entitled to be regularised in services a day prior to the holding of the second examination, they would also be entitled to their seniority, arrears of salary and consequential benefits.” 5: the order passed by this court in the second writ petition of the petitioners was called in question in letters patent appeal no.458/1998 by the board. the said letters patent appeal was dismissed on 21.10.2002, holding it to be barred by limitation. the order passed by the division bench of this court was not assailed anywhere. the consequential order was issued on 8.5.2003 giving benefit of appointment to the petitioners with effect from 14.12.1985 with all the consequential benefits. in condition no.10 of the conditions mentioned in the said order, it was categorically recorded that inter se seniority of the petitioners would be fixed in terms of the merit list prepared by the board after conducting the firs.departmental examination dated 16.6.1985. consequently when the gradation seniority list was issued, the name of the petitioners were shown below the names of private respondents only because it was said that the claim with respect to the petitioners was subjudice before this court. it is further contended that when after the final disposal of the letters patent appeal, gradation seniority list was prepared and issued, the petitioners were put above the names of the private respondents as is indicated in the gradation seniority list showing the position as on 1.4.2004. it is contended that in between since the private respondents were considered for grant of further promotion, such benefits were required to be granted to the petitioners.but instead of giving the benefit of promotion in appropriate manner, by the order dated 27.8.2004, the petitioners were promoted as assistant grade- ii, whereas the private respondents were promoted much before, therefore, the petitioners are required to approach this 6 court by way of filing this writ petition. it is further contended that in the gradation seniority list of assistant grade-ii, the petitioners have not been given seniority in rightful manner, therefore, not the petitioners are going to be affected in the matter of grant of further promotion on the post of section officer. it is contended that ultimately when the facts were brought to the notice of the respondents, on 7.2.2006, the petitioners were given promotion on the post of assistant grade-i with prospective effect, whereas, they should have been given the promotion with retrospective effect; the date from which the benefit was extended to respondents no.4 and 5. such claim of the petitioners have been rejected by the impugned order dated 16.8.2007, therefore, they are required to file this writ petition. 6: in response to the notice of this writ petition issued to the respondents, the board as official respondent as also the private respondents no.4 and 5 have filed their respective return. it is contended by the respondent board that in terms of the regulation made by the board in case of such a selection by holding a departmental examination, inter se seniority is to be fixed only on the basis of the merit order of select list prepared by the selection committee. the petitioners have obtained lesser marks than the marks obtained by the private respondents no.4 and 5 in the said departmental examination held on 16.6.1985 and, therefore, private respondents were shown above the petitioners in the select list so prepared by the selection committee. in terms of the regulation, the seniority of private respondents no.4 and 5 on regularisation on the feeder post of assistant grade-iii was to be put above the petitioners.however, by mistake, the petitioners were given seniority over and above the respondents no.4 and 5 in some of the gradation seniority list.7. the fact remains that when the petitioners were litigating against the order passed by the board in respect of their regularisation, the claim of persons like respondents no.4 and 5 were already considered and those persons were promoted on the next higher post of assistant grade-ii. in due cours.of time, the said persons were further promoted in terms of their entitlement. the respondents no.4 and 5 have been found fit for further promotion on the post of section officer and, therefore, rightly the order was issued in their respect on 20.8.2007. since the petitioners were to be treated as junior to the respondents no.4 and 5 on the feeder post in terms of the inter se merit order shown in the merit list, the petitioners were not to be granted the benefit of promotion prior to the promotion of respondents no.4 and 5. as such, it is contended that there is no wrong committed in respect of granting promotion to the respondents no.4 and 5. the petitioners have been given rightful promotion as per their entitlement in terms of their seniority. it is contended that the entire claim is misconceived and as such, the petition is liable to be dismissed. 8: the private respondents no.4 and 5 have also stated the similar facts and have contended that since the orders were already issued, which orders have been accepted by the petitioners.it cannot be said that seniority of the petitioners was to be fixed over and above the respondents no.4 and 5. the private respondents have not only qualified the firs.departmental examination conducted by the board, but have also taken part in the second departmental examination and were found fit for regularisation. pursuance to the selection in the second departmental examination, an order of appointment was issued in respect of respondents no.4 and 5 appointing them on their post. however, in terms of the order passed by this court in the firs.writ petition filed by the 8 petitioners.since the entire selection was to be redone, the order was issued by the competent authority giving benefit of selection to respondents no.4 and 5 in the firs.departmental examination and for the said purposes, the order was issued on 8.5.2003 modifying the earlier order issued by the board giving benefit of appointment to the respondents no.4 and 5 with retrospective effect. in this order also, it was categorically said that the inter se seniority of the persons so appointed would be strictly in order of merit list prepared by the selection committee after the firs.departmental examination. it is contended that since this was the situation, the respondents no.4 and 5 were rightly given the benefit of promotion prior to the petitioners.it is further contended that during pendency of the firs.writ petition, there were vacancies and a departmental promotion committee meeting was held in which the claim of respondents no.4 and 5 was considered for promotion and they were promoted on the post of assistant grade-ii/upper division clerk grade-ii, vide order dated 13.1.1991. further considering the services of the private respondents no.4 and 5, they were promoted on the post of assistant grade-i vide order dated 4.6.1998. lastly, they have been promoted on the post of section officer vide order dated 20.8.2007. thus, there is no wrong committed in giving this benefit to the respondents no.4 and 5, and as such, the entire claim made by the petitioners is misconceived and the petition is liable to be dismissed. 9: heard learned counsel for the parties at length and perused the record. 10 : it appears that the board has not taken into consideration the regulations which were made and were in force at the relevant time. the board in its return has relied on the regulations made in the year 1998. this court failed to understand as to how the said regulations would be attracted 9 in the case of selection held in the year 1985 when the regulations were not even made. the memo annexed with said regulations indicates that earlier there were certain regulations made in the year 1988, but the same were repealed by the regulations of the year 1998. from this also, it is clear that the regulations of the year 1988, would also not be attracted in the matter of fixing the seniority of persons like petitioners or respondents no.4 and 5, who were the appointees of the year 1985 as the regulations were not framed in that year and were not in vogue. the regulations nowhere prescribe that they are made with retrospective effect. the state government in exercise of its power under section 79 of the m.p.krishi upaj mandi adhiniyam, 1972 (hereinafter referred to as the act of 1972 for short).has made rules known as krishi upaj mandi (mandi nidhi lekha tatha rajya vipnan seva ke gathan ki riti tatha anya vishay) niyam, 1980 (hereinafter referred to as the rules of 1980 for short).chapter-vii of the rules 1980 contains the provisions with respect to constitution of the state marketing services. however, there is nothing prescribed in the said rules with respect to the strength of the ministerial employees in the board. the provisions are made in chapter-viii of the rules of 1980 with respect to the recruitment, appointment and promotion in the said services. chapter-ix of the said rules deals with qualification, disqualification etc., for such appointment and chapter-x of the rules of 1980 deals with probation, confirmation, seniority and transfer. rule 100 of the rules of 1980 prescribed fixation of seniority. however, all these rules are applicable only for the executive officers of the board appointed under the services aforesaid. the appointment of ministerial employees or any other employees within the board has not been prescribed in these rules. the said provisions would, therefore, not be attracted in case of ministerial employees and the provision of the said rules 10 would not be made applicable for such employees, who are not the member of the services for which the rules aforesaid have been made. 11 : since there were no regulation or rules for the ministerial employees, at least nothing has been placed on record by the respondent board, it was not clear whether the petitioners could be treated as junior to respondents no.4 and 5 only on the basis of the merit list so prepared after the departmental examination. nothing has been placed on record to indicate that the petitioners were appointees later than the respondents no.4 and 5. if the scheme was made by the board giving opportunity to the clerks working in the board’s services on contingency to make a regular appointment, the scheme was required to be placed before this court. if any such condition was mentioned that inter se seniority of the candidates would be fixed only and only on the basis of merit order obtained in the select list that was required to be filed before this court. in absence of any such material, it is to be seen whether the petitioners were to be treated as senior to respondents no.4 and 5 or not. for the said purposes, it is necessary to examine the initial claim made by the petitioners as the services of the petitioners were reinstated under the orders of this court. undisputedly, when the respondent board decided to conduct a second departmental examination, ignoring the result of the firs.departmental examination, the persons like respondents no.4 and 5 have not challenged such an action. on the other hand, they took part in the selection and were selected in the said examination, were given an order of appointment in the year 1986, and as such, for them there was no reasons to challenge the act of the respondent board for not giving effect to the result of firs.departmental examination in any court. they have happily accepted the order of appointment pursuance to 11 second departmental examination conducted by the board. on the other hand, since the petitioners were terminated from services on account of their not being qualified in the second departmental examination, they challenged their order of termination before this court by way of filing the misc. petition (writ petition).in their case, only this was considered that their termination was bad in law and instead of terminating their services, they should have been given the benefit of regularisation if they have passed the firs.departmental examination. this being so, the board was required to issue the orders in respect of petitioners only, reinstating them in service only if they have qualified the firs.departmental examination in terms of the specific order issued by the division bench of this court on 15.3.1993 in misc. petition no.1061/1986. the respondent board was not required to redone the entire process and make a selection, in terms of the result of firs.departmental examination, as no other person has challenged the said action of the respondents of not giving effect to the result of firs.departmental examination. the relief granted by this court was only with respect to the petitioners herein and nobody else. 12 : resultantly, the order was required to be issued in appropriate manner in respect of petitioners.but deliberately the reinstatement order was issued in such a fashion in the year 1993, appointing the petitioners afresh, as if, they were regularly recruited in that year on probation for two years.this act of the respondents was called in question in second misc. petition filed by the petitioners being m.p.no.148/1994. this court has considered only the claim of petitioners and nobody else as the private respondents were not before this court, not there was any occasion for the petitioners to challenge fixation of any such so-called seniority of the private respondents. this court has again granted relief only with 12 respect to the petitioners.said order attained finality on account of dismissal of the letters patent appeal of the respondent board. at no point of time, there was a claim made by the persons like respondents no.4 and 5 that they too were the selectees of the firs.departmental examination and they were entitled to be given the appointment in the like manner as was granted to the petitioners after disposal of the second misc. petition of the petitioners and after issuance of the order in correct manner in their respect as was ordered on 8.5.2003 (annx.p/5).the respondents no.4 and 5 were happy with their order of appointment dated 24.1.1986 and without claiming any relief in the like manner from the court, they were not to be granted any benefit by the respondent board as was done in case of respondents no.4 and 5 by order dated 8.5.2003 (annx.r4/1).what was the good reason of passing such an order whether the entire process of selection was redone, whether the claim of each and every person was considered in appropriate manner and whether such fixation of seniority was strictly in order as prescribed in the regulations which were in vogue in the year 1985, nothing is stated by the board or by the private respondents. in the opinion of this court, the order dated 8.5.2003 would not grant any benefit to the respondents no.4 and 5, inasmuch as, for them it was never ordered by any court that they should also be treated as appointed pursuance to firs.departmental examination so held on 16.6.1985. the entire stand taken by the respondents in their return is thus misconceived. 13 : a proper analysis of the claim would indicate that such a claim made by the private respondents was not approved even by the departmental authorities as has been pointed out by the petitioners by filing a rejoinder. since only the petitioners were treated to be appointed with effect from 14.12.1985, naturally, they were to be treated as senior to 13 respondents no.4 and 5 on the feeder post of assistant grade- iii. if the respondents no.4 and 5 were promoted on the post of assistant grade-ii during the pendency of the litigation, it was necessary for the board to consider the case of petitioners by holding a review departmental promotion committee for such promotion, and if found fit, to grant them the benefit of promotion on the said post with retrospective effect from the date the same was granted to the respondents no.4 and 5, protecting their seniority order and above respondents no.4 and 5 even on promotional post. since there were further promotion in respect of respondents no.4 and 5 on the post of assistant grade-i, the same exercise was required to be repeated for granting the said benefit to the petitioners.by completing this exercise, it was to be seen whether the petitioners were within the zone of consideration for promotion on the post of section officer or not and then to review the case of the petitioners.and in case they are found fit, to grant them the benefit of promotion on the post of section officer prior to the grant of such benefit to the respondents no.4 and 5. at any rate, the respondents no.4 and 5 cannot be treated as senior to the petitioners.even on the feeder post of assistant grade-iii not could be given a march over and above the claim of the petitioners.14 : consequently, this writ petition succeeds and is hereby allowed. the respondents are directed to treat the petitioners as senior to respondents no.4 and 5 on the feeder post of assistant grade-iii, having been appointed with effect from 14.12.1985 and to fix the seniority of the petitioners over and above the respondents no.4 and 5 on the post of assistant grade-iii. after fixation of seniority, the claim of petitioners be reviewed by holding a review departmental promotion committee for promotion on the post of assistant grade-ii and assistant grade-i as also on the post of section officer from 14 the date the said benefit was granted to respondents no.4 and 5. needless to say, in case the petitioners are found fit for such promotion, they be granted the benefit of said promotion with retrospective effect, with all consequential benefits including the seniority over and above the respondents no.4 and 5 on the said post. this exercise be completed within a period of three months from the date of receipt of certified copy of the order passed today. 15 : with the aforesaid, the writ petition succeeds and allowed with costs which is quantified to rs.10,000/- (rupees ten thousand) payable by the respondent no.1. (k.k.trivedi) judge /06/2012 15 high court of madhya pradesh principal seat at jabalpur writ petition no.11724/2007(s) uttam gororey and another. -versus- m.p.rajya krishi vipnan and others.order ( .6.2012) post it for /6/2012 (k. k.trivedi) judge /06/2012
Judgment:

1 HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT AT JABALPUR.

Writ Petition No.11724/2007(S) Uttam Gororey and another.

-Versus- M.P.Rajya Krishi Vipnan and otheRs.PRESENT : Hon’ble Shri Justice K.K.Trivedi.

Shri P.R.Bhave, learned Senior Advocate assisted by Shri V.K.Shukla, learned counsel for the petitioneRs.Shri S.D.Tiwari, learned Govt.

Advocate, for respondents No.1 and 2.

Shri Akash Choudhary, learned counsel for respondent No.5.

ORDER

(27.06.2012) 1: This petition is filed by the petitioneRs.two in number, claiming benefit of seniority over and above the respondents No.4 and 5, and consequential benefits of grant of promotion on the post of Section Officer.

2: Brief facts giving rise to filing of this petition are that the petitioners were engaged in the services of M.P.State Agriculture Marketing Board (hereinafter referred to as the Board for short) on contingency.

There were Regulations made by the Board.

In terms of the Regulation, it was decided to conduct a departmental examination to regularise the 2 services of contingency employees.

A test was held on 16.6.1985.

Though the petitioners have cleared the departmental examination and regular appointment orders were required to be issued in their favour, it appears that the Board instead of acting on the said select list, decided to hold a second departmental examination.

Such a second departmental examination was held on 15.12.1985 and the persons who had cleared the said examination were regularised.

Consequently, the services of the petitioners were terminated from the Board.

The petitioners therefore approached this Court by filing M.P.No.1061/1986 along with two other persons.

3: The said writ petition was contested by the respondents and the same came up for hearing before this Court on 10.3.1993.

After hearing the learned counsel for the parties, this Court was of the opinion that the reasons assigned for not giving effect to the select list prepared by holding fiRs.selection and conducting a second departmental examination by the Board were not acceptable and in fact, the respondent Board was required to give effect to the select list of fiRs.departmental examination.

The said writ petition was allowed with costs and the order of termination of the petitioners was quashed.

The operative part of the order passed by this Court in the said writ petition in paras 8 and 9 is quoted herein below :- “8.

The upshot of the above discussion is that the petitioners have lost due chances of regularisation of their services due to an arbitrary decision and action taken by the respondent- Board and its authorities.

Consequently, we quash the decision of termination of the petitioners from the service of the Board (Annexure P-6 to the petition) and similar such orders of termination issued against other petitioneRs.We direct that the petitioners be reinstated in service and regularised by issuing 3 regular orders of appointments in their favour, but only if they have successfully passed the fiRs.departmental examination held on 16.6.1985.”

9. In the circumstances, the petitioner shall also get the cost of the petition and counsel's fees Rs.500/- if certified.

The amount of security be refunded to the petitioners.”

4: The order passed by this Court was not called in question anywhere.

On the other hand, the respondent Board carried out the order and passed an order of appointment in respect of petitioners on 11.5.1993 giving effect to the order from the date of order appointing the petitioners on probation of two yeaRs.Certain conditions were also mentioned in the said order.

This order was not treated to be one within the direction of this Court granted in earlier writ petition and, therefore, another Misc.

Petition No.148/1994 was filed before this Court by the petitioneRs.It was contended by them that in proper compliance of the order, the petitioners were required to be regularised with retrospective effect.

Again the said writ petition was contested and came up for hearing before this Court and was decided by order dated 10.8.1998.

It was categorically held after examining the order passed by this Court in paragraphs 6 and 7, which reads thus :- “6.

From the order, it is clear that this Court directed that the petitioners be reinstated in service; the petitioners be regularised.

Regular order/orders of appointment in favour of the petitioners were to be issued.

In the opinion of this Court, the directions of this Court do not simply mean that on petitioners being successful in the fiRs.examination, the respondents could issue a fresh order of appointment on probation.

The services of the petitioners were directed to be regularised.

Regular appointment orders were required to be issued.

It would clearly mean that the petitioners were directed to be reinstated as regular employees and the respondents were duty bound to accept the petitioners as regular employees and the respondents were also bound to issue regular orders of appointment.

A regular 4 order of appointment would not mean an appointment on probation.

If the judgment of this Court is read in its true perspective and the directions contained in paragraph 8 are read in their true spirit, it would lead to irresistible conclusion that this court was asking the respondent to accept the petitioners as regular employees, reinstate them on the post held by them and the respondent was expected to issue the regular order of appointment.

The appointment 'for a period of two years on probation' 'until further ordeRs.would not meet the requirements.

The order dated 11.5.1993 is illegal it deserves to and is accordingly quashed, instead it is directed that the respondent shall issue regular orders of appointment in favour of the petitioners after regularising their services.”

7. So far as the claim of seniority and consequential benefits are concerned, the same are required to be given to the petitioners not from 16.6.1985 but a day prior to holding of the second departmental examination i.e.15.12.85.

If the second examination was not held the petitioners who were later on declared unsuccessful, could be declared successful prior to 15.12.85 and in such a situation they were entitled to get all the consequential benefits.

The earlier order passed by this Court does not mean that the petitioners were required to be appointed afresh from a future date.

The directions issued by this Court are to be read in their context.

This Court held that the petitioners lost due chances of regularisation of their services due to an arbitrary decision and action taken by the respondent.

If these observations made by this Court are read with final directions it would lead to the only conclusion that this Court was directing the respondent to declare the petitioners passed on the basis of the fiRs.examination and was also asking the respondent to regularise the petitioners services by issuing regular orders of appointment in their favour.

It cannot be again said that the respondent was obliged only to issue a fresh appointment order.

Once this Court has held that due to an arbitrary decision and action taken by the respondent-board the petitioners lost their chances of regularisation then the clock has to be reversed and the party is required to be laced at proper pedestal if the arbitrary action 5 was not taken by the board.

The petitioners are entitled to be regularised in services a day prior to the holding of the second examination, they would also be entitled to their seniority, arrears of salary and consequential benefits.”

5: The order passed by this Court in the second writ petition of the petitioners was called in question in Letters Patent Appeal No.458/1998 by the Board.

The said Letters Patent Appeal was dismissed on 21.10.2002, holding it to be barred by limitation.

The order passed by the Division Bench of this Court was not assailed anywhere.

The consequential order was issued on 8.5.2003 giving benefit of appointment to the petitioners with effect from 14.12.1985 with all the consequential benefits.

In Condition No.10 of the Conditions mentioned in the said order, it was categorically recorded that inter se seniority of the petitioners would be fixed in terms of the merit list prepared by the Board after conducting the fiRs.departmental examination dated 16.6.1985.

Consequently when the gradation seniority list was issued, the name of the petitioners were shown below the names of private respondents only because it was said that the claim with respect to the petitioners was subjudice before this Court.

It is further contended that when after the final disposal of the Letters Patent Appeal, gradation seniority list was prepared and issued, the petitioners were put above the names of the private respondents as is indicated in the gradation seniority list showing the position as on 1.4.2004.

It is contended that in between since the private respondents were considered for grant of further promotion, such benefits were required to be granted to the petitioneRs.but instead of giving the benefit of promotion in appropriate manner, by the order dated 27.8.2004, the petitioners were promoted as Assistant Grade- II, whereas the private respondents were promoted much before, therefore, the petitioners are required to approach this 6 Court by way of filing this writ petition.

It is further contended that in the gradation seniority list of Assistant Grade-II, the petitioners have not been given seniority in rightful manner, therefore, not the petitioners are going to be affected in the matter of grant of further promotion on the post of Section Officer.

It is contended that ultimately when the facts were brought to the notice of the respondents, on 7.2.2006, the petitioners were given promotion on the post of Assistant Grade-I with prospective effect, whereas, they should have been given the promotion with retrospective effect; the date from which the benefit was extended to respondents No.4 and 5.

Such claim of the petitioners have been rejected by the impugned order dated 16.8.2007, therefore, they are required to file this writ petition.

6: In response to the notice of this writ petition issued to the respondents, the Board as official respondent as also the private respondents No.4 and 5 have filed their respective return.

It is contended by the respondent Board that in terms of the Regulation made by the Board in case of such a selection by holding a departmental examination, inter se seniority is to be fixed only on the basis of the merit order of select list prepared by the Selection Committee.

The petitioners have obtained lesser marks than the marks obtained by the private respondents No.4 and 5 in the said departmental examination held on 16.6.1985 and, therefore, private respondents were shown above the petitioners in the select list so prepared by the Selection Committee.

In terms of the Regulation, the seniority of private respondents No.4 and 5 on regularisation on the feeder post of Assistant Grade-III was to be put above the petitioneRs.However, by mistake, the petitioners were given seniority over and above the respondents No.4 and 5 in some of the gradation seniority list.

7. The fact remains that when the petitioners were litigating against the order passed by the Board in respect of their regularisation, the claim of persons like respondents No.4 and 5 were already considered and those persons were promoted on the next higher post of Assistant Grade-II.

In due couRs.of time, the said persons were further promoted in terms of their entitlement.

The respondents No.4 and 5 have been found fit for further promotion on the post of Section Officer and, therefore, rightly the order was issued in their respect on 20.8.2007.

Since the petitioners were to be treated as junior to the respondents No.4 and 5 on the feeder post in terms of the inter se merit order shown in the merit list, the petitioners were not to be granted the benefit of promotion prior to the promotion of respondents No.4 and 5.

As such, it is contended that there is no wrong committed in respect of granting promotion to the respondents No.4 and 5.

The petitioners have been given rightful promotion as per their entitlement in terms of their seniority.

It is contended that the entire claim is misconceived and as such, the petition is liable to be dismissed.

8: The private respondents No.4 and 5 have also stated the similar facts and have contended that since the orders were already issued, which orders have been accepted by the petitioneRs.it cannot be said that seniority of the petitioners was to be fixed over and above the respondents No.4 and 5.

The private respondents have not only qualified the fiRs.departmental examination conducted by the Board, but have also taken part in the second departmental examination and were found fit for regularisation.

Pursuance to the selection in the second departmental examination, an order of appointment was issued in respect of respondents No.4 and 5 appointing them on their post.

However, in terms of the order passed by this Court in the fiRs.writ petition filed by the 8 petitioneRs.since the entire selection was to be redone, the order was issued by the competent authority giving benefit of selection to respondents No.4 and 5 in the fiRs.departmental examination and for the said purposes, the order was issued on 8.5.2003 modifying the earlier order issued by the Board giving benefit of appointment to the respondents No.4 and 5 with retrospective effect.

In this order also, it was categorically said that the inter se seniority of the persons so appointed would be strictly in order of merit list prepared by the Selection Committee after the fiRs.departmental examination.

It is contended that since this was the situation, the respondents No.4 and 5 were rightly given the benefit of promotion prior to the petitioneRs.It is further contended that during pendency of the fiRs.writ petition, there were vacancies and a Departmental Promotion Committee meeting was held in which the claim of respondents No.4 and 5 was considered for promotion and they were promoted on the post of Assistant Grade-II/Upper Division Clerk Grade-II, vide order dated 13.1.1991.

Further considering the services of the private respondents No.4 and 5, they were promoted on the post of Assistant Grade-I vide order dated 4.6.1998.

Lastly, they have been promoted on the post of Section Officer vide order dated 20.8.2007.

Thus, there is no wrong committed in giving this benefit to the respondents No.4 and 5, and as such, the entire claim made by the petitioners is misconceived and the petition is liable to be dismissed.

9: Heard learned counsel for the parties at length and perused the record.

10 : It appears that the Board has not taken into consideration the Regulations which were made and were in force at the relevant time.

The Board in its return has relied on the Regulations made in the year 1998.

This Court failed to understand as to how the said Regulations would be attracted 9 in the case of selection held in the year 1985 when the Regulations were not even made.

The memo annexed with said Regulations indicates that earlier there were certain Regulations made in the year 1988, but the same were repealed by the Regulations of the year 1998.

From this also, it is clear that the Regulations of the year 1988, would also not be attracted in the matter of fixing the seniority of persons like petitioners or respondents No.4 and 5, who were the appointees of the year 1985 as the Regulations were not framed in that year and were not in vogue.

The Regulations nowhere prescribe that they are made with retrospective effect.

The State Government in exercise of its power under Section 79 of the M.P.Krishi Upaj Mandi Adhiniyam, 1972 (hereinafter referred to as the Act of 1972 for short).has made Rules known as Krishi Upaj Mandi (Mandi Nidhi Lekha Tatha Rajya Vipnan Seva Ke Gathan Ki Riti Tatha Anya Vishay) Niyam, 1980 (hereinafter referred to as the Rules of 1980 for short).Chapter-VII of the Rules 1980 contains the provisions with respect to constitution of the State Marketing Services.

However, there is nothing prescribed in the said Rules with respect to the strength of the Ministerial employees in the Board.

The provisions are made in Chapter-VIII of the Rules of 1980 with respect to the recruitment, appointment and promotion in the said services.

Chapter-IX of the said Rules deals with qualification, disqualification etc., for such appointment and Chapter-X of the Rules of 1980 deals with probation, confirmation, seniority and transfer.

Rule 100 of the Rules of 1980 prescribed fixation of seniority.

However, all these Rules are applicable only for the executive officers of the Board appointed under the services aforesaid.

The appointment of Ministerial employees or any other employees within the Board has not been prescribed in these Rules.

The said provisions would, therefore, not be attracted in case of Ministerial employees and the provision of the said Rules 10 would not be made applicable for such employees, who are not the member of the services for which the Rules aforesaid have been made.

11 : Since there were no Regulation or Rules for the Ministerial employees, at least nothing has been placed on record by the respondent Board, it was not clear whether the petitioners could be treated as junior to respondents No.4 and 5 only on the basis of the merit list so prepared after the departmental examination.

Nothing has been placed on record to indicate that the petitioners were appointees later than the respondents No.4 and 5.

If the Scheme was made by the Board giving opportunity to the clerks working in the Board’s services on contingency to make a regular appointment, the Scheme was required to be placed before this Court.

If any such condition was mentioned that inter se seniority of the candidates would be fixed only and only on the basis of merit order obtained in the select list that was required to be filed before this Court.

In absence of any such material, it is to be seen whether the petitioners were to be treated as senior to respondents No.4 and 5 or not.

For the said purposes, it is necessary to examine the initial claim made by the petitioners as the services of the petitioners were reinstated under the orders of this Court.

Undisputedly, when the respondent Board decided to conduct a second departmental examination, ignoring the result of the fiRs.departmental examination, the persons like respondents No.4 and 5 have not challenged such an action.

On the other hand, they took part in the selection and were selected in the said examination, were given an order of appointment in the year 1986, and as such, for them there was no reasons to challenge the act of the respondent Board for not giving effect to the result of fiRs.departmental examination in any Court.

They have happily accepted the order of appointment pursuance to 11 second departmental examination conducted by the Board.

On the other hand, since the petitioners were terminated from services on account of their not being qualified in the second departmental examination, they challenged their order of termination before this Court by way of filing the Misc.

Petition (Writ Petition).In their case, only this was considered that their termination was bad in law and instead of terminating their services, they should have been given the benefit of regularisation if they have passed the fiRs.departmental examination.

This being so, the Board was required to issue the orders in respect of petitioners only, reinstating them in service only if they have qualified the fiRs.departmental examination in terms of the specific order issued by the Division Bench of this Court on 15.3.1993 in Misc.

Petition No.1061/1986.

The respondent Board was not required to redone the entire process and make a selection, in terms of the result of fiRs.departmental examination, as no other person has challenged the said action of the respondents of not giving effect to the result of fiRs.departmental examination.

The relief granted by this Court was only with respect to the petitioners herein and nobody else.

12 : Resultantly, the order was required to be issued in appropriate manner in respect of petitioneRs.but deliberately the reinstatement order was issued in such a fashion in the year 1993, appointing the petitioners afresh, as if, they were regularly recruited in that year on probation for two yeaRs.This act of the respondents was called in question in second Misc.

Petition filed by the petitioners being M.P.No.148/1994.

This Court has considered only the claim of petitioners and nobody else as the private respondents were not before this Court, not there was any occasion for the petitioners to challenge fixation of any such so-called seniority of the private respondents.

This Court has again granted relief only with 12 respect to the petitioneRs.Said order attained finality on account of dismissal of the Letters Patent Appeal of the respondent Board.

At no point of time, there was a claim made by the persons like respondents No.4 and 5 that they too were the selectees of the fiRs.departmental examination and they were entitled to be given the appointment in the like manner as was granted to the petitioners after disposal of the second Misc.

Petition of the petitioners and after issuance of the order in correct manner in their respect as was ordered on 8.5.2003 (Annx.P/5).The respondents No.4 and 5 were happy with their order of appointment dated 24.1.1986 and without claiming any relief in the like manner from the Court, they were not to be granted any benefit by the respondent Board as was done in case of respondents No.4 and 5 by order dated 8.5.2003 (Annx.R4/1).What was the good reason of passing such an order whether the entire process of selection was redone, whether the claim of each and every person was considered in appropriate manner and whether such fixation of seniority was strictly in order as prescribed in the Regulations which were in vogue in the year 1985, nothing is stated by the Board or by the private respondents.

In the opinion of this Court, the order dated 8.5.2003 would not grant any benefit to the respondents No.4 and 5, inasmuch as, for them it was never ordered by any Court that they should also be treated as appointed pursuance to fiRs.departmental examination so held on 16.6.1985.

The entire stand taken by the respondents in their return is thus misconceived.

13 : A proper analysis of the claim would indicate that such a claim made by the private respondents was not approved even by the departmental authorities as has been pointed out by the petitioners by filing a rejoinder.

Since only the petitioners were treated to be appointed with effect from 14.12.1985, naturally, they were to be treated as senior to 13 respondents No.4 and 5 on the feeder post of Assistant Grade- III.

If the respondents No.4 and 5 were promoted on the post of Assistant Grade-II during the pendency of the litigation, it was necessary for the Board to consider the case of petitioners by holding a review Departmental Promotion Committee for such promotion, and if found fit, to grant them the benefit of promotion on the said post with retrospective effect from the date the same was granted to the respondents No.4 and 5, protecting their seniority order and above respondents No.4 and 5 even on promotional post.

Since there were further promotion in respect of respondents No.4 and 5 on the post of Assistant Grade-I, the same exercise was required to be repeated for granting the said benefit to the petitioneRs.By completing this exercise, it was to be seen whether the petitioners were within the zone of consideration for promotion on the post of Section Officer or not and then to review the case of the petitioneRs.and in case they are found fit, to grant them the benefit of promotion on the post of Section Officer prior to the grant of such benefit to the respondents No.4 and 5.

At any rate, the respondents No.4 and 5 cannot be treated as senior to the petitioneRs.even on the feeder post of Assistant Grade-III not could be given a march over and above the claim of the petitioneRs.14 : Consequently, this writ petition succeeds and is hereby allowed.

The respondents are directed to treat the petitioners as senior to respondents No.4 and 5 on the feeder post of Assistant Grade-III, having been appointed with effect from 14.12.1985 and to fix the seniority of the petitioners over and above the respondents No.4 and 5 on the post of Assistant Grade-III.

After fixation of seniority, the claim of petitioners be reviewed by holding a review Departmental Promotion Committee for promotion on the post of Assistant Grade-II and Assistant Grade-I as also on the post of Section Officer from 14 the date the said benefit was granted to respondents No.4 and 5.

Needless to say, in case the petitioners are found fit for such promotion, they be granted the benefit of said promotion with retrospective effect, with all consequential benefits including the seniority over and above the respondents No.4 and 5 on the said post.

This exercise be completed within a period of three months from the date of receipt of certified copy of the order passed today.

15 : With the aforesaid, the writ petition succeeds and allowed with costs which is quantified to Rs.10,000/- (Rupees Ten Thousand) payable by the respondent No.1.

(K.K.Trivedi) Judge /06/2012 15 HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT AT JABALPUR Writ Petition No.11724/2007(S) Uttam Gororey and another.

-Versus- M.P.Rajya Krishi Vipnan and otheRs.ORDER

( .6.2012) Post it for /6/2012 (K.

K.Trivedi) Judge /06/2012