PETITIONER:
RAMESH KUMAR CHOUDHA & ORS.
Vs.
RESPONDENT:
STATE OF M.P. & ORS.
DATE OF JUDGMENT: 20/09/1996
BENCH:
K. RAMASWAMY, G.B. PATTANAIK
ACT
HEADNOTE
JUDGMENT
ORDER
Delay condoned.
Leave granted.
We have learned counsel on both sides.
These appeals by special leave arise from the orders of the Madhya Pradesh State Tribunal made on October 1, 1994 in O.A. No.616/93 and batch.
The admitted position is that the appellants as well a the respondents are governed by the provisions of M.P. Irrigation Engineering Services (Gazetted) Recruitment Rules, 1968 issued by the Governor in exercise of the power under proviso to Article 309 of the Constitution. Rule 7 of the Rules prescribes the mode of recruitment either by direct recruitment or by promotion of substantive or officiating feeder cadre, i.e., sub-Engineers, or by transfer of person who held in a substantive capacity such post as may be specified by the State Government in that behalf. Eligibility criteria has been prescribed under Rule 15 and procedure for consideration under Rule 16 which read as under :
"15. Condition of eligibility for
promotion :-
(1) Subject to the provisions of
sub-rule (2), the committee
consider the cases of all persons
who on the 1st day of January of
that year had completed the
prescribed years of service
(whether officiating or
substantive) on the post/service
mentioned in column 2 of Schedule
IV or any other post or posts
Schedule IV or any other post or
posts declared equivalent thereto
by the Government as under and are
within the zone of consideration as
per sub-rule (2) :-
(i) Sub-Engineers Head
Draftsman/Draftsman to the post of
Assistant Engineers minimum service
of 12 years as Sub-Engineers, Head
Draftsman/Draftsman.
Provided that a sub-Engineer head
Draftsman/Draftsman who completed a
minimum of 8 years service and
possessed degree in
Civil/Electronical/Mechanical
Engineering from recognised
University or qualification
declared equivalent thereto by the
State Government will also be
eligible for promotion to the post
of Assistant Engineer and will be
considered each time, just after
the zone of consideration and the
final selection list shall be made
from both the groups on the basis
of merits, for example, if ten
posts are vacant in the cadre of
Assistant Engineers then 10 X 5-50
diploma holders sub-Engineers from
working list be considered first
and thereafter the eligible
graduate sub-Engineers be
considered in the order of their
seniority for promotion.
(ii) Junior Engineers to the post
of Assistant Engineers to the post
of Assistant Engineers Minimum
Service of 2 years as Junior
Engineers. (iii) Research
Assistants to the post of Assistant
Research Officers-Minimum Service
of 8 years as Research Assistant.
(iii) Embankment Inspector/Silt
Analysts to the post of Assistant
Research Officers-Minimum Service
of 8 years as Embankment
Inspector/Slit
(iv) Assistant Engineers promoted
from Sub-Engineers Head
Draftsman/Draftsman cadres to the
post of E.E. minimum 18 years of
total service out of which at least
6 years should be as Assistant
Engineers.
(v) Assistant Engineers to the post
of Executive-Engineers minimum of 6
years as Assistant Engineer.
vi) Superintending Engineers to the
post of Chief Engineers-Minimum
Service 6 years as Superintendent
Engineers.
(2) The field of selection shall
ordinarily be limited to five times
the number of officers to be
included in the select list,
provided that if the required
number of suitable officers are not
available in the field so
determined the field may be
enlarged to the extent considered
necessary by the Committee by
mentioning the reasons in writing.
16. Preparation of list suitable
officers :-
(1) The committee shall prepare a
list of such persons as satisfy the
conditions prescribed in the Rule
15 above and are held by the
Committee to be suitable for
promotion to the service. This list
shall be sufficient to cover the
anticipated vacancies on account of
retirement and promotions during
the course of one year from the
date of preparation of the select
list. A reserve list consisting of
25% of the number of persons
included in the said select list,
shall be prepared to meet the
unforeseen vacancies occurring
during the course of the aforesaid
period.
(2) The selection for inclusion in
such list shall be based on merit
and suitability in all respects
with due regard to seniority.
(3) The names of the officers
included in the list shall be
arranged in order of seniority in
the (as in column II Scheduled IV
service at the time of preparation
of each select list; provided that
any junior Officer, who is in the
opinion of the committee, is of an
exceptional merit and suitability,
may be assigned in the list a
higher place then that of officers
senior to him.
Explanation :- A person whose name
is excluded in the select list but
who is not promoted during the
validity of the list shall have no
claim to seniority over those
considered in a subsequent
selection merely by the fact of his
earlier selection. (4) The list so
prepared shall be reviewed and
revised every year.
(5) If in the process of the
selection, review of revision, it
is proposed to supersede any member
of the service or members of Madhya
Pradesh Irrigation Department (non-
gazetted) Service, the Committee
shall record its reasons for the
proposed supersession."
A resume of these Rules would clearly indicate that the eligibility is considered as on 1st of January of the year. The incumbent must have completed the prescribed years of service, namely, 8 years of for Graduation Engineers and 12 years of service for the sub-Engineers. It is not in the dispute that the appellants as on January 1992 had not acquired the Graduation qualification but some of them had completed 8 years of service. Similarly, the respondents who were promoted as per the directions of the Tribunal had admittedly acquired the qualifications of Graduation in October 1992. When the DPC met in December 1992 for filling up of the vacancies for the year 1992 their claims did not come up consideration. So, the respondents filed OAs and the Tribunal has held that since they had completed 8 years of service and also acquired the graduation, they should be considered if found fit to be promoted. Thus they came to be promoted.
The case of the appellants is that though the respondents had completed the eligibility criteria as on January 1 of the year 1992, a fact that the graduation qualification acquired subsequent to that date but before the DPC had considered their cases are not entitled to be promoted. The approach adopted by the Tribunal is illegal and contrary to Rules 15 and 16 of the Rules referred to hereinbefore. We find force in the contention. As seen Rule 15 is a clear mandate as to the eligibility criteria. Firstly, the diploma-holders should have minimum of 12 years qualifying service for eligibility to be considered for promotion as Assistant Engineers. If a diploma holder acquires graduation, he should complete minimum of eight years of service then only he becomes eligible for consideration for promotion as Assistant Engineer. He should hold the post as sub-Engineer in as substation or continuous officiating capacity as prescribed. But the cut off date for eligibility is 1st January of the year in which the eligibility was to be considered. Since the respondents acquired the qualifications in October 1992. they did not become eligible for consideration for promotion for the year 1992 though the DPC had met in December 1992. Consequently, the direction issued by the Tribunal and the appointments of the respondents made pursuant to the contempt orders are clearly illegal. We are informed that they have been already promoted. Therefore, their promotions should be treated to be ad hoc and de horse the rules. Though as per the orders of the Tribunal, they came to be promoted, such promotions do not confer any right to seniority over any other eligible candidates who acquired the qualifications as on January 1, 1992. Therefore, the DPC is directed to sit every year either in the month of February or March for consideration of respective claims of the candidates provided if any vacancy exists or anticipated. As regards this year is concerned, they should sit in the this year to consider the vacancies that had arisen between 1st January 1992 to 1st January 1996. The DPC should get identified the vacancies arisen in each year. Consider the basis of respective eligible candidates diploma-holders as well as Engineers, who have completed 12 years of service by the diploma holders or the diploma holders who acquire graduation before first day of January each year and consider their cases for promotion in accordance with rules. Such of the candidates found fit and recommended fit be given them regular promotion provided they are substantive or substantively in officiating capacity in the lower ranking. It would appear that some of the candidates have approached the Government taking advantage of the orders of the Tribunal and got promoted, they also came to be considered and were promoted. All appointments are also be treated as ad hoc.
The appeals are accordingly disposed of. The orders of the Tribunal are set aside. No costs.