Allowed

Smt. Neelam Ahmed v. State Of Madhya Pradesh

Chhattisgarh HC24 Jul 2024WA/540/2017

Case brief

AI extract

What is this about?

The High Court allowed the appeal against a single judge's order dismissing a promotion claim. The Court held that a promoted employee could be fast-tracked to Upper Division Clerk upon qualifying departmental exams. General instructions reducing the statutory fast-track quota were held inapplicable. The retired appellant was granted right to promotion and consequential benefits.

What did the court decide?

Counsel's order of the learned Single Judge set aside; writ appeal allowed; respondents directed to consider appellant's case for promotion and grant consequential benefits from 04.08.1990.

Smt. Neelam Ahmed Vs State Of Madhya… — Pension and Retirement Benefits | Chhattisgarh HC (2024)

WPS No. 524 of 2016

NAFR

HIGH COURT of CHHATTISGARH, BILASPUR

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WA No. 540 of 2017

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Smt. Neelam Ahmed W/o Late S. Ahmed, aged about 64 Years, Lower Division Clerk, Lower Mahanadi Division Raipur During Pendency of Petition Transferred At MRP Phase - II Division Raipur, Now Retired, Presently R/o H - 1 Shanti Nagar Raipur, District Raipur, Chhattisgarh.

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---- Appellant

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Versus

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State of Madhya Pradesh, through the Secretary Department of Irrigation Vallabh Bhawan Bhopal Now State of Chhattisgarh Through Secretary Water Resources Department, Mantralaya Mahanadi Bhawan, New Raipur, District Raipur, Chhattisgarh.

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Engineer-in-Chief, Department of Irrigation Shivajai Nagar, Bhopal Now Engineer-in-Chief, Water Resources Department, Civil Line Raipur, District-Raipur, Chhattisgarh.

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Chief Engineer, Mahanadi Project Department of Irrigation, Raipur, District-Raipur, Chhattisgarh.

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A R Devangan, office of Executive Engineer M R P Phase II Raipur, Chhattisgarh.

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Ku. Pushpa Shirke office of Chief Engineer, Mahanadi Projects, Raipur, Chhattisgarh.

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L. P. Singore, office of Executive Engineer, M J P Dam Division No.3, Raipur, Chhattisgarh.

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P. M. Kelkar, office of Executive Engineer, Upper Mahanadi Division-Raipur, Chhattisgarh.

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L . P. Johari, office of Executive Engineer E / M Heavy Earth Moving Machine Division Raipur, Chhattisgarh.

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D. R. Verma office of Executive Engineer, M. J. P., Disnate Division-3 Tilda, Raipur (C.G.)

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(A) H. Jewl, Executive Engineer, MRE Canal Construction Division No.2 Raipur (C.G.)

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10.Ku. Saraswati Yamraj, office of Executive Engineer, Lower Mahanadi Division, Raipur (C.G.)

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WPS No. 524 of 2016

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11.S. S. Nayak office of Executive Engineer, Disnate Division-1, Rudri, Raipur (C.G.)

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12.12(A). Smt. Roshani Rokede W/o Late S. B. Rokede,

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12-B. Sharad Rokede S/o Late S. B. Rokede aged about 28 Years; 12-C. Vivek Rokede S/o Late S. B. Rokede aged about 20 Years; All Respondents No.12-A to 12-C are R/o I-51, Chichai Colony, Shanti Nagar, Raipur (C.G.)

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13.D. K. Bahpagariya office of Bhatapara Canal Construction Division, Bhatapara, District Balodabazar- Bhatapara (C.G.)

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14.Loku Ram Sahu office of Executive Engineer, Lower Mahanadi Division, Raipur (C.G.)

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15.B. L. Dewangan office of Superintendent Engineer, Mahanadi Circle Raipur (C.G.)

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16.S. M. Nayar office of Superintendent Engineer, MRP Dam Circle, Rudri, District Raipur (C.G.)

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17.G. L. Ahir office of Superintendent Engineer, MRP Dam Circle, Rudri, District Raipur (C.G.)

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18.M. V. Raja office of Executive Engineer, Upper Mahanadi Division, Raipur (C.G.)

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19.B. R. Gayakwad office of Executive Engineer, Lower Mahanadi Division, Raipur (C.G.)

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20.L. L. Verma office of Executive Engineer, E/M Heavy Earth Moving Maching Division, Rudri, District Raipur (C.G.)

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21.Sudharan office of Superintending Engineer, MRP Dam Circle, Rudri, District Raipur (C.G.)

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22.S. L. Futhan office of Executive Engineer, Bhatapara, Canal Construction Division, Bhatapara, District Raipur (Now Balodabazar-Bhatapara) (C.G.)

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23.Ku. Manda Baje office of Superintending Engineer, MRP Circle Rudri, District Raipur (C.G.)

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24.Puranik Ram Sahu office of Executive Engineer, Pairy High Dam Division, Rudri, District Raipur (C.G.)

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25.Smt. Shikha Dubey office of Superintendent Engineer, Disnate Circle Raipur (C.G.)

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WPS No. 524 of 2016

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26.S. R. Sinha office of Superintendent Engineer, MRP Dam Circle, Rudri, District Raipur (C.G.)

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27.Jacob Mathu office of Superintendent Engineer, MRP Dam Circle, Rudri, District Raipur (C.G.)

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28.M. T. Betwar office of Executive Engineer, MRP Dam Division No. 1, Rudri, District Raipur (C.G.)

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28-A. T. C. Bargade, office of C.E. MRP Raipur (C.G.)

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28-B. Smt. S. L. Bhargav, office of E.E. Dinate Division No.1, Rudri, Raipur, (C.G.)

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29.Y. S. Vathuker office of Superintendent Engineer, Disnate Circle Raipur (C.G.)

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30.Salim Khan office of Executive Engineer, MRP Dam Division No. 3, Rudri, District Raipur (C.G.)

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31.S. C. Jaiswal office of Executive Engineer, MRP Disnate Division- 3, Tilda, District Raipur (C.G.)

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32.S. K. Awasthi Executive Engineer, Lower Mahanadi Division Raipur (C.G.)

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33.M. I. A. Khan office of Executive Engineer, Lower Mahanadi Division Raipur (C.G.)

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34.Paras Ram Sahu office of Executive Engineer, MRP Dam Division No. 3, Rudri, District Raipur (C.G.)

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35.L. S. Verma Executive Engineer, MRP Dam Division No. 2, Rudri, District Raipur (C.G.)

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36.R. L. Dhanker office of Executive Engineer, E/M, Heavy Machinery, MRP Rudri, District Raipur (C.G.)

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37.O. P. Sharma office of Executive Engineer, MRP Canal Division No. 1, District Raipur (C.G.)

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38.G. R. Sahu office of Executive Engineer, MRP Dam Division No. 1, District Raipur (C.G.)

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39.Yashpal Phuljhele office of Superintendent Engineer, Mahanadi Circle, Raipur, District Raipur (C.G.)

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40.B. L. Bhatt office of Executive Engineer, MRP Dam Division No. 3, District Raipur (C.G.)

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41.Shankar Bhagat office of Executive Engineer, MRP Canal

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WPS No. 524 of 2016

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Division No. 1, District Raipur (C.G.)

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42.B. I. Rangari office of Executive Engineer, Canal Division No. 2, Gangale, District Raipur (C.G.)

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43.D. S. Dhruv office of Executive Engineer, Canal Division No. 2, Gangale, District Raipur (C.G.)

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44.M. R. Dhruv office of Executive Engineer, MRP Canal Division No. 1, Rudri, District Raipur (C.G.)

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45.Shiv Prasad Superintendent Engineer, MRP Dam Circle, Rudri, District Raipur (C.G.)

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46.R. D. Kapuria office of Executive Engineer, E/M, Heavy Machinery Division, MRP Rudri, District Raipur (C.G.)

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---- Respondents

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For the Petitioner : Mr. Raghavendra Pradhan, Advocate For State-respondents : Mr. Akhilesh Kumar, Govt. Advocate.

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Hon'ble Mr. Justice Goutam Bhaduri, Hon’ble Shri Justice Radhakishan Agrawal, J

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Judgment on Board (25.07.2024)

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Per Goutam Bhaduri, J

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The present appeal is against the judgment dated 23.10.2017 passed by the learned Single Judge of this Court in W.P(S) No. 304 of 2005 (Smt. Neelam Ahmed & others Vs. State of M.P. & others) whereby the writ petition filed by the appellant praying for consideration of her promotion was dismissed.

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The brief facts of this case are that the appellant was appointed as LDC in Irrigation Department on 01.08.1980 and she joined her

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WPS No. 524 of 2016

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service on 02.08.1980. The Rules of 1969 which govern the promotion of the appellant was framed by the erstwhile State of Madhya Pradesh which are called as M.P. Irrigation Department (Non-gazetted Services Recruitment) Rules, 1969. The method of recruitment has been provided in Rule 6 and according to the appellant, there are two methods of promotion – one is direct recruitment by promotion and other is by departmental fast-track promotion. Since the appellant has passed her departmental examination in 3 subjects of superior clerkship of respondent department in 1986 and during the pendency of writ petition, she had further cleared 3 more subjects of superior clerkship departmental examination, therefore, she was entitled for a fasttrack promotion to the post of UDC as 50% of posts were reserved for the Fast-Track promotion. Instead, the appellant was deprived of her right to be considered for promotion by resorting to the fact that certain departmental instructions exist which has reduced the quota of 50% fixed for fast-track promotion in the rules of 1969. Consequently her claim for the promotion was disallowed.

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This led to filing of original petition before the State Administrative Tribunal (SAT). The Tribunal by its order dated 21.08.2019 initially observed that even if the posts are filled up by promotion of the respondents, their appointments on the promoted post will be deemed to be provisional subject to the final orders of that petition and if persons were found not qualified or otherwise

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WPS No. 524 of 2016

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the right of the petitioner had been impinged, the consequential orders in respect of the respondents would be passed. Subsequently with the abolition of SAT, the cases were transferred to the High Court and the instant writ petition was decided on 23.10.2017 which is under challenge.

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It is submitted on behalf of the appellant that the learned Single Judge has completely missed the point to evaluate the fact that the direct recruitment of UDC by promotion can only be done to LDC and since the appellant has passed out the departmental examination, she was entitled for accelerated promotion. It has been further submitted that the Rules of 1969 was misinterpreted and by Annexure P-4 dated 18.07.1990 though it was held that the appellant has passed out Departmental Examination and was held to be entitled for accelerated promotion, but she was deprived because of the reference made to the letter dated 22.1.1973 to show that 75% of UDC posts would be filled by promotion and 25% would be left for fast track promotion. It is submitted that this interpretation is completely wrong as the Rule 1969 still holds the field and even the reference which was made in Annexure P-4 dt.18.07.1990 about the letter of General Administration Department dated 22.01.1973 it could not have been applied to negate the rules. He would submit that this issue has completely been unanswered in the litigation. He would submit that the appellant during the pendency of the litigation, retired on

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WPS No. 524 of 2016

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31.05.2012 and the petition before Hon’ble Single Judge came to be decided on 23.10.2017 and by then the petitioner retired as LDC on which she joined, therefore, she was deprived of her right to be considered for promotion since 04.08.1990 when the promotions of other persons were made. Hence, the appeal deserves to be allowed.

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Per contra, learned counsel for the respondent-State supports the order of the learned single judge and submits that the promotion was made according to the Rules and if the appellant was aggrieved by deprivation of her right, she could have challenged the letter dated 18.07.1990 Annexure-P-4. He would further submit that when the Recruitment Rules are read together, it will show that the seniority has been given preference as per Rule 15 sub-rule (3) and since it is not the case of the appellant that the juniors were promoted leaving behind the appellant, the appellant’s case could not be favourably considered for promotion. Consequently the order of the learned Single Judge is well merited. He further relies on case law.

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We have heard learned counsel for the parties. The germane of the issue arises with a letter of 18.07.1990 filed as Annexure P-4 which is a communication made to the appellant who was working as LDC. It was communicated to her that though she holds the qualification of passing departmental examination, but the promotion could not be considered as the percentage criteria of

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WPS No. 524 of 2016

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promotion to make direct recruitment as UDC has been changed. This led to filing of Original Petition before the State Administrative tribunal.

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We find from the petition that that as many as 43 people who were promoted were made as party respondents. The learned Tribunal by its order dated 21.08.1990 did not stay the promotion of others who were arrayed as respondents, instead, observed that if those persons were found not qualified or otherwise the right of the petitioner has been impinged, the consequential orders in respect of the respondents would be passed. However, when the case having been decided by the learned Single Bench on 23.10.2017, no such orders were passed though the right of petitioner stands considered.

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Be that as it may, in order to find out the correctness of the order which deprived the appellant for promotion, we went through the Recruitment Rules of 1969. The Rule 6 of the said Rules with Schedule II are relevant and reproduced hereunder:

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6. Method of Recruitment .-- (i) Recruitment to the Service, after the commencement of these rules, shall be by the following methods viz.--

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(a) By direct recruitment, by selection/by Competitive Examination as shown in Schedule II,

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(b) by promotion of substantive/officiating members of the service (as shown in the schedule IV), and

WPS No. 524 of 2016

may be specified in this behalf.

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(ii) The number of persons recruited under clause (b) and (c) of sub-rule (I) of Rule 6 shall not at any time exceed the percentage shown in the Schedule II.

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(iii) Subject to the provisions of these rules, the method/ methods of recruitment to be adopted for the purpose of filling any particular vacancy/vacancies in the Service as may be required to be filled during any particular period of recruitment, and the number of persons to be recruited by each method, shall be determined on each occasion by the Appointing Authority.

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(iv) Notwithstanding anything contained in sub-rule (I) if in the opinion of Engineer in Chief/Chief Engineer, the exigencies of the service so require, the said Engineer in Chief/Chief Engineer, may after consulting the Government, adopt such methods of recruitment to the service other than those specified in the said sub-rule, as he may, by order issued in this behalf, prescribe.

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Reading of Rule 6(i)(a) would show that the method of recruitment is by direct recruitment by Selection or by competitive examination as shown in Schedule II and Rule 6(i)(b) also takes into sweep the recruitment by promotion of substantive/officiating members of the Service as shown in Schedule IV. Rule (i)(c) prescribes the method of recruitment by transfer of persons who holdsuch posts in a substantive capacity. Rule 6(ii) further prescribes that the number of persons recruited under Clause (i) (b) & (c) of Rule 6 shall not at any time exceed the percentage shown in the Schedule II. This takes us to read columns of Schedule II appended to Rule 6 wherein the percentage criteria of number of posts to be filled in by direct recruitment u/s 6(i)(a) and by promotion of substantive members of service u/s 6(i)(b) has been prescribed. The relevant part of Schedule II is

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WPS No. 524 of 2016

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reproduced hereunder for the sake of convenience :

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SCHEDULE II

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(See Rule 6)

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Name of Department	Name	of Service	Total Number of Duty	Percentag duty po	e of the num sts to be fille	ber of d in
	(i) Category	(ii) Description of post	posts	By direct recruitmen t vide Rule 6(i)(a)	By promo- tion of substantive members of service vide Rule 6(i)(b)	By transfer of persons from other service vide Rule 6(i)(c)
(1)		(2)	(3)	(4)	(5)	(6)
		Upper Division clerks Grade III	35	50 %	50 %	..
Irrigation Department	Class III	First grade clerk (Circle & Division officers)	271	50 %	50 %	..
		First grade clerk (sub-Dn. offices)	289	50 %	50 %	..

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Perusal of Schedule II shows that the appointment to the post of

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“Upper Division Clerk” is exclusively confined to the LDC.

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Schedule III appended to Rule 8 prescribes the eligibility criteria to the post of Upper Division Clerks and First Grade Clerks (of sub-divisions) is by direct recruitment from L.D.Cs/or the incumbents who partially qualify the departmental examinations. Schedule III is relevant and quoted below:

WPS No. 524 of 2016

SCHEDULE III

(See Rule 8)

Name of Deptt.	Name of Service	Minimum Age Limit	Upper Age Limit	Educational Qualifications	Remarks
(1)	(2)	(3)	(4)	(5)	(6)
		Class III	Ministerial
Irrigation Department	Upper Division Clerks	..	..	Direct recruitment from L.D.Cs/ or applicants who partially qualify at least in any of the three subjects of the Superior Clerkship examination of Irrigation Department.
	First Grade Clerks (of sub- Divisions)	..	..	Direct recruitment from L.D. Cs/ or applicants who partially qualify at least in three subjects of the Superior Clerkship examination of Irrigation Department.

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Reading the aforesaid Rules would show that for promotion to the post of UDC, there are two channels prescribed, one is direct recruitment from LDC/or applicants who partially qualify atleast in any of the 3 subjects of the superior clerkship examination of irrigation department. Even as per Annexure P-4, there is no dispute about the fact that the appellant has passed out departmental examinations. The plain and simple interpretation of these Rules would lead to show that two channels have been

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WPS No. 524 of 2016

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provided for appointment to the post of UDC. One is by direct recruitment from LDC and the other is by fast track track promotion to the persons who qualify atleast in any of the three subjects of departmental examination . For example, if there exists 10 posts of UDCs then it would be divided into 50% each as per Schedule II as 50% is reserved for each category. The appellant was falling under second category of the “fast-track promotion” wherein she claimed that she has passed out departmental examinations and though she was entitled as per the Rules, she was deprived of her right to be considered for promotion.

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The communication of the State on 18.07.1990 (Annexure P-4) which is based on Letter dated 22^nd January 1973 (Annexure P-5) shows that general instructions were given effect but the Rules as existing in the year 1969 was never amended. Therefore, the appellant who passed-out her Departmental Examination was entitled to be considered for “fast track promotion from LDC to UDC” which she was deprived.

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So far as the preparation of list of suitable persons as has been shown in Rule 15 (III) is concerned, it has a different field of operation. Therefore, if the appellant was claiming her right on passing of the departmental examination for “fast track promotion” which is being provided in Rules, it shows that she was wrongly deprived of her right to be considered for promotion

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WPS No. 524 of 2016

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though according to Annexure P-4, she was entitled.

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In view of the foregoing discussion, we are of the view that the order of the learned single judge cannot be sustained and is hereby set aside. Accordingly we allow the writ appeal and direct the respondents to consider the case of the appellant to grant promotion since she qualified requisite departmental examination. Since the appellant stood retired on 31.05.2012 though on the post of LDC during the pendency of the petition, she would be entitled for all consequential benefits since 04.08.1990 which would have been otherwise granted including the retrial benefits.

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Sd/Sd/-

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( Goutam Bhaduri) (Radhakishan Agrawal) Judge Judge

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Rao/RD

Smt. Neelam Ahmed v. State Of Madhya Pradesh

Case brief

What is this about?

What did the court decide?

Smt. Neelam Ahmed v. State Of Madhya Pradesh

Case brief

What is this about?

What did the court decide?

What the court decided

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