mm: CHOUBE‘y $3 _ . RESPONDENT (S) mA‘ i‘E ‘OF‘AR’I.P. AND.) 053E333 DETAIES OF APPLICAT : Particulaxs of the applicant t (i) Name of the applica KeJ'u ?rasad Choubey f {. /E» "(m Name of Fathef & , ' rasad Choubey m Shri 8hitala (iii) Age or the aplicant 35 y‘sr (iV) i ; Designation‘and ‘ n which employ o be in service t ; ed/or articulars was last o-f emplgyed 6§ ame before and ceasing station Lewéi‘r 3a=hs1l ‘Jivision Office, Balod’, Clark p $ N ) 3 i , ,, mistrict; meg (m? _ ) . . “ ' t ION I nt I é @ p " a s” J“r Writ Petition [SI No.131 [2005 Keju Prasad Choubey PETITIONER RESPONDENTS \ Versus State of M;P. 85 Ors. ORDER POST ON 3 DECEMBER, 2010 ' v, ‘\ HIGH COURT OF CHHATTISGARH : BILASPUR ‘ MOHAN SHRIVASTAVA J . S.B. : HON’BLE SHRI MANINDR Writ Petition 1S! No.131 [2005 PETITIONER Keju Prasad Choubey Versus State of M.P. 8n Ors. W Apgearance: Shri H.B. Agrawal, Sr. Advocate with Smt. Itu Rani Mukharjee, counsel for the petitioner. v Shri V.V.S Murhty, Dy. Advocate General for the State. Shri B.D. Guru, counsel for respondent No.4. ORDER (Passed on g .12.2010) for issuance of list as also direction to fill‘up list before ent for the said. post. The suance of direetion to respondent No.1 to adhere to mandatory qudt’ule as per. 6 y(a) (2) of the Rules and 1. By this petition, the petitioner has prayed for reliefs ‘on fOr publication of final seleét vacant post?5fiNayab Talisildar by exhausting final select resorting to any other rrrethod of recruitm petitioner has prayed for is fk conduct limited competitive examination every year. During pendency of the petition, the petitioner also pr respondent be directed not to fill direct-i the ayed for relief that —up 56 post of Nayab Tahsildar A / falling vacant and keep those posts vacant till 25% of the selected candidateS of select list (Annexure R—l) is exhausted. It has also Administrative Services Rules, 1980 (in short “the Rules of 1980’) by holding the same \to be ultra vires, discriminatory and unconstitutional and directions be issued for appointment and posting of the petitioner as Nayab Tahsildar and also pay him arrears of wages. . At the time of argument, learned senior counsel appearing for the petitioner however confined his submisswns to only one aspect g1v1ng up all other prayers . Learned counsel for the petitioner submitted that the issue relating to vires is not being pressed and the only submission made by the appointment eyen though he was placed in the select list respondents be directed to appomt the petitioner on the post of Tahsildar, at the relevant time, was governed by the Rules of 1980. Under Rule 6 (2) of the said rules, it has been provided that 10 % of examination, rules were framed and published Vide Notification dated 28th May, 1985 (Annexure A—l). Thereafter, vide notification dated 31.3.1986 (Annexure A—2), the applications were invited from eligible employees of clerical grade working in the office of Board of , Revenue, Commissioners and Collectors The petitioner also applied and part1c1pated 1n the selection The selection comprised of written examination and assessment of ACRs of preceding 5 years Vide order dated 23.6.1987 (Annexure A 5} 85 29 10 1987 (Annemire A~ 6) 45 86 47 persons including respondent No 4 were selected and appomted on the post of Nayab TahSildar. As the petitioner was not appointed, he preferred representations Vide Annexures A—7, A-8 86 A—9. that the prov1s10n contained 1n Rule 6 (l) (ii) clearly states in unequivocal words that efor direct recruitment through limited competitive examination against 10% of posts of Nayab Tahsildar, 1 (1990) 3 scc 555 2 (2007) 2 scc 202 3 (2006) 4 sec 1 . Per contra, learned counsel for the State would submit that the provisions contained in Rule 6 (1) .(ii) of the Rules of 1980 would include all the employees who are holding the posts of clerical grade in the office of Board of Revenue, Commissioners 85 Collector, which would also include pots of Bradma Operator because the post of Bradma Operator is only a clerical post. It is submitted that for the better working and functioning of the of revenue offices and preparation of revenue records, machines known as Bradma Machines were installed and for the purposes of operating those machines, need arose for appointment of persons who could operate those Bradma Machines, which led to appointment of Bradma Operators. Learned counsel for the respondents submitted that as the nature of work/performed by Bradma Operator is only clerical in nature and the pay-scale of the posts of Bradma Operator is equivalent to the pay-scale of the clerks, there is no illegality in considering the candidature of respondent No.4 for appointment to the post of Nayab Tahsildar and appointing him upon his selection, 8. It is further submitted that vide memorandum dated 31$ January, V 1984 (Annexure R— II), the Revenue/Department of theVState Govt. clarified thatr‘the Bradma Operators are engaged in the work of ' embossing and printingg on Bradma machines which is a clerical work and on that basis, they cannot treated at par with revenue inspectors nor entitled""t“os-the pay—scale of Revenue Inspector. It is also submitted that in the select‘list‘, the name of the petitioner was placed at Sr, No.133, whereas, only 92 posts were available against 10% quota for being filled—up and therefore, under no circumstance, ~ ‘- the petitioner is entitled to such appointment for the post as there were many other selected candidates placed over and above the petitioner. l / I / 9. Learned counsel for the respondent No.4 submits that there is no“w specific prayer made in the petition for quashment of the appointment of respondent No.4, therefore, the petitioner is not entitled to any such relief against respondent No.4. Further submission of learned counsel for respondent No.4 is that the petitioner’s claim is totally misconceived and the petitioner is not an aggrieved person, inasmuch as the petitioner, in the select list, has been placed at Sr. No.133, whereas, there were in all 92 posts to be filled—up, within which only 86 posts were available for being iilled-” up from amongst general category. He submits that as this petition has remained pending since 1989, the petitioner is not entitled to a relief of quashing the appointment of respondent Nov4. He further submitted that the post of Bradma Operator would be included in the clerical grade post in View of the Govt. letter dated 315‘ January, 1984 (Annexure R 4/ l), which clearly shows that the Bradma hQperators are clerical posts. He further submits that the Division Bench of .theHigh Court of Madhya Pradesh in the case of Santosh Gu ta & Ors. Vs. State o M.P. and Ors. & M.P. Triteeya Varg Sashkiya Karmachari Sangh Vs. State ofM.P. and Ors., decided \ on 7th April 1994 ins LtEfA. No.12 86 13 of 1986‘ has held that the Bradma Operators were trEated at‘par with Upper Division Clerk in View of the stand taken by the Govt. that the job of Bradma / Operator is in the nature of Upper Division Clerk/Typist and that nature of their duties is just clerical and the Court directed to grant same pay—scale to Bradma Operators Which is being given to Upper Division Clerk. Learned counsel for respondent No.4 placed reliance on the judgments of Supreme Court in the case of Mithilesh Garg and Ors. Vs. Union of India 8a Ors.4, Dr. M.S. Mudhol and another Vs. S.D. Halegkar 8a Ors.5, High Court of M.P. Vs. Mahesh Praksh 8a Ors.6 85 Hari Nandan Sharan Bhatnagar Vs S.N. Dixit and another". 10. Though, there certainlinterventions applications have been filed, none represents the interveners. 11. In order to appreciate the submission of learned counsel for the petitioner that the Rules of 1980 did not permit consideration of Bradma OperatOr for direct recruitment against 10% 'of vacancies of Nayab Tahsildar by limited competitive examination, the relevant provision contained in the Rules of 1980 are required to be examined. Rules 6 of the Rules of 1980 prescribe various modes of appointment to the post of Nayab Tahsildar. Rule 6 (1) (E5) prescribes three modes of appointment to the post of Nayab Tahsildar. Clause / (i) thereof providesthat 70% of the posts of Nayab Tahsildar shall be filled—up on the basis ‘of combined competitive examination E conducted by the Commission on the basis of direct recruitment. Clause (ii) provides that\1Q% of the posts of Nayab Tahsildar shall be filled—up by recruitmentlthrough selection from amongst 4 (1992) 1 scc 168 s (1993) 3 scc 591 6 (1995) 1 scc 203 7 (1969p scc 245 employee. I2. Commissioner, under the Rules of 6 (1} (Eli), (ii) gst others, provides th grade services workmgih‘lfhe office ofBg "’C0mmissioner Collectors, 5 (WEI) of the aforesaid scheme Nayab Tahsildar shall be lect list of clerical grade , Rule 13 and Schedule V of the Rules thereof, which amon _at the members of clerical ard of Revenue, Divisional Lands Records 8a reads that the appointment to the post of based on inter se seniority in the final se ‘- officiating capacity on clerical grade posts in the department of revenue . 13. A reading of the aforesaid provisions in the Rules of 1980 and Rules of 1985 and various provisions contained therein reveals as follows : 14. In both the Rules there is no specific provision to limit or otherwise restrict the meaning of clerical grade services or employees of clerical grade to any named class of clerks working in the offices of the Institution mentioned in the Rules. ’r»: It has now to‘pe‘seen whether the term “clerical grade services” or “employees of clerical grade” or “clerical staff” is required to be given any strict or narrow meaning or should be given Wide meaning so as to include all the employeesgengaged in clerical work. In so far as . appointment to the post ofeN'ay‘ab ”Fahsildar is concerned, the statutory scheme engrafted in’ Rule 6 of the Rules of 1980 aims at filling up the post of Nayab Tahsildar from various streams which / In Rule 6 (l) (E5) (ii) the class of eligible employees is termed as “employees of clerical grade” In Clause —2 (E5) of the Schedule —V it has been termed at “Clerical Grade Services” In Clause —5 (WEI) of Schedule V the termed used is “Clerical Grade Employees” In the Rules of 1985 the termed used in Rule 4 thereof is termed as “Clerical Grade Services”. -11- 19.4.1995, the petitioner has placed on record photocopy of M.P. Gazette published on 19m July, 1991 by which notification dated 11th July, 1991 amending Rules of 1980 have been published. In the English version of Rule 6 of the Rules of 1980, it has been clearly stated in clause (2) thereof that 10% posts will be filled—up by direct recruitment after selection from amongst the clerical staff of the office of the Revenue Board, Commissioners and Collectors. Therefore, it now very clear that the benefit of direct recruitment against 10% of posts of Nayab Tahsildar is intended to be extended to the clerical staff meaning thereby that all those employees who are performing duties, which are clerical in nature, would be entitled to compete in the process of selection for direct recruitment against 10% of the post of Nayab Tahsildar, Which of course, is going to be a limited competitive examination, wherein only clerical staff would be entitled to compete. 16. The only question now which falls for consideration is whether the post of Bradma Operator can be said to be a clerical post and x; employees working as Bradma Operator can be termed as “clerical staff’ i.e an employee belOnging /to clerical grade service. Respondents ”have very categorically stated in their return that m a w Bradma Operators have been treated at part with the ministerial staff and as back as on 31st January, 1984, the Government, taking into consideration the nature if duties required to be performed by the Bradma Operators, declared that their work is of clerical nature and on that basis, they were Held not entitled to seek parity with the executive posts of revenue inspector and therefore, not entitled to _12- ‘ pay-scale equivalent to pay—scale of revenue inspector. Respondent No.4 along with return has placed on record a judgment of Division Bench of High Court of M.P. in the case of Santosh Gupta (supra), wherein claim of pay-scale raised by Bradma Operator was considered. The Division Bench of the High Court of M.P. took into consideration the stand of the Govt. that the job of Bradma Operators is in the nature of Upper Division Clerk/Typist and that they have been placed equivalent to Upper Division Clerk vide order dated 7.11.1983 of the Govt. and they have been treated as one in the category of Upper Division Clerk and have also been given the pay-scale of 575—880/ - which is admissible for Upper Division Clerk. It was held that the Bradma Operators are also entitled to the same pay—scale which is being given to the Upper Division Clerk. 17. In the case of Hari Nandan Sharan Bhatnagar (supra), the question which arose for consideration was whether the term “Grade of Superior Service assistant” occurring in the relevant Rules would include those officials who are working in the same scale of pay. The Supreme Court in that case held as under: « h 0 ....... . The High Court took the View that “grade” in Rule 7 was suggestive of status and it did not refer to a‘class or a particular class According to the High Court‘ “All offic1als working 1n the same scale of pay 1n a department although holdlng posts With different des1gnat10ns shall be deemed to be holdlng posts 1n the same grade because their rank 1n the same department Will be the same and equal to one another A / ‘K It was held thus: “5. The High Court noted that the dictionary meaning of “grade” was ‘rank, position in scale, a class or position in a class according to the value’. In our View the High Court came to the correct conclusion in holding that the post was a selection post and seniority by itself was not a sufficient qualification for promotion. The Speaker had to take into consideration the claims of Senior Upper Division Assistants but under the rules his choice was not limited to the Upper Division Assistants. He could consider the claims of others who were in the same grade, that is to say, enjoying the same scales of pay and pick out the person considered by him to be qualified in all respects to perform the duties of a Superintendent. A11 officials of the Legislative Assembly Secretariat holding posts in the same scale of pay as Upper Division Assistants were eligible for promotion to the post of the Superintendent.” 18. The aforesaid analvsis of the scheme of the Rules of 1980 and the Rules of 1985 and the legal position based on just, fair and logical interpretation of the Rules and the words “clerical grade service” or “employees holding clerical posts” would therefore, definitely, 3 include all those employees irrespective of their nomenclature of clerical nature. ~ E .The above analysis, therefore, leads to inevitable conclusion that Bradma Operators alsorb‘elong to and,\are integral part of clerical staff working in the revenue department. Therefore the Bradma Operators who are working in various revenue offices including the office of Board of Revenue, Commissioners, ollectors or C .14, subordinate offices were eligible and fulfilled eligibility criteria for being considered for appointment against 10% of vacancies of Nayab Tahsidlear as contemplated under Rule 6 of the Rules of 1980. Therefore, the contention of learned counsel for the petitioner has no merit and it deserves to be rejected. Consequently, it cannot be held that the selection of respondent No.4 was in any manner illegal or contrary to the provisions contained in the Rules of 1980. 20. Interestingly, though the petitioner made various prayers in the petition, which were amended from time to time, there is no specific prayer for quashing appointment of respondent No.4. 21. Last but not least, the respondents have stated in their return that if 10% of quota of Nayab Tahsildar available in the department is worked out against sanctioned strength of 920 posts, it comes to 92. Though the petitioner has claimed that there were more than 920 duty post liable to earmarked against 10% quota, there is no basis to substantiate the same. On the other hand, the stand of the respondents merit acceptance and there is no reason to‘disbelieve a the emphatic statement made by the respondents in that regard. / i’Thus, there were only 92 posts available for being filled—up against 10% of quota, which included the reserve category posts as well. The 3 respondents/State has also placed on record the select list which shows that the petitioner‘hgas been placed at Sr. No.133. The list is apparently arranged in the oifderof merit. Therefore, the petitioner has no claim whatsoever for appointment on the basis of selection as he has been placed down below in the list and under no 3 Praveen \r \J x circumstances, be dismissed and is accordingly dismissed. There shall, howe no orders as to costs. he could be brought within the band of 92 candidates for appointment. ver, be