Petitioner Versus Respondents Writ Petition_(_$) No. 1084 or 2005 Dhruv Kumar Dubey State of ChhattisgarhKNow Madhya Pradesh) and others. Post for order on [it —5—2008 /i//"’T Sd/- ‘ sau'sh K. Agnihotri ‘ Judge I 3 -5-2008 HIGH COURT OF CHHATTISGARH: BILASPUR " EK 4, w HIGH COURT OF CHHATTISGARH: BILASPUR WRIT PETITION NO. 1084 OF 2005 APPLICANT Dhr‘uv Kumar Dubey, son of Shri R.G.Dubey, Aged abou’r 44 year's, Lower Division Clerk, Public Works Depar’rmen‘r, Office of Executive Engineer, Division No.1, Bilospur‘ M.P. Resident of New Sorkanda, Bilaspur, Tahsil and Districf Bilospur M.P. Versus 1) Sfo’re of Madhyo Prudesh (now Chhm‘fisgarh), Through Secre‘rory, Public Works DeparTmenT, GovernmenT of Modhyo Prodesh, Vallabh Bhowon, BhopaL 2) Superin’rending Engineer, Public Works Deparfmem‘, Bilospur Circle, Bilospur mnr 3) J. S. Chha‘rriyo, aged abou’r 45 years, Firs’r Grade Clerk, Office of The Execu’rive Engineer, Division No. II, Rwummwmmm. 4) RESPONDENTS M. G. Goswami, aged about 45 years, F.G.C. Office of Executive Engineer, Distt. Bilospur M.P. 5) I. A. Khan, aged about 4O years, FGC, Office of the Executive Engineer, Division No.II, Bilaspur M.P. S. S. Shrivastava, aged about 44 years, FGC Office ofkExecut-ive Engineer, P.W.D.Champaa Division, District Bilaspur M.P. 7) A. U. Qureshi, aged about 42 years, FGC Office of Executive Engineer, P.W.D. Division No.1 Bilaspur. / lfvw ' 8) M. L. Yadav, Aged abou‘r 42 years, FGC Office of Execu’rive Engineer, PWD Champa Division, Dis’rT. Bilaspur' M.P. Sm’r. Durga Rahi, aged abou‘r 40 years, FGC Office of Execufive Engineer, PWD, Champa, Division, Biiaspur (M.P.) 10) R. C. Dhirhi, aged abou‘r 36 years, FGC Office of Execu’rive Engineer, Division No.1, Bilaspur. 11) Smf. Shahi Dhruv, aged abou’r 32 years, FGC Office of Superin’rending Engineer, P.W.D. Bilaspur Circle, Bilaspur M.P. 12) U. S. Keshar, aged abou'r 45 years, FGC, Office of The Execufive Engineer, PWD, Champa Division, Disf'i‘. Bilaspur MP. (APPLICATION UNDER SECTION 19 OF THE ADMINISTRATIVE TRIBUNALS ACT, 1986) Shri M. K. Sinha, counsel for ’rhe pe‘rifioner. Shri Ajay Dwivedi, Depufy Gov’r. Advocate for fhe responden’rs No. 1 None for fhe respondem‘s No. 3 to 12. &2. ORDER (Passed on +his waay of May, 2008) 1) This pefifion was filed by fhe pefi’rioner before fhe Madhya Pradesh AdminisfrafiVe Tribunai, Jabalpur, where i’r was regisfered as Original Applica‘rion No. 929/1995. Affer x dissolufion of The Tribunal, This peTiTion was Transferred To This CourT and iT is regisfered as WriT PeTiTion (S) No. 1084/2005; The pefiTioner‘, by This pe’ri‘rion, seeks quashing of The order dafed 9.12.1994 (Annexur‘e A/14), issued by The Superintending Engineer, Pubiic Works Depam‘men’r, Bilaspur' Division, Bilaspur, whereby and whereunder The respondenfs No. 3 To 12 (working on The posT of Lower Division Clerk), were promoTed To The posT of FirsT Grade Clerk in The pay scale of Rs. 1150-1800. 3) The peTiTioner has also prayed for seTTing aside The GradaTion LisT (Annexure A/9), as on 1.4.1992 and The GradaTion LisT of' Second Grade Clerks (Annexure A/12), as on 1.4.1994 and granT of senioriTy To him over The respondenTs No.3 To 12. 4) The peTiTioner has also prayed for granT of arrears of incremenTs from 1972 To 1978, which were released on his passing The TypewriTing examinaTion. 5) Shri Sinha, learned counsel appearing for The peTiTioner would submiT ThaT iniTiaIIy, The peTiTioner was appoinTed as Time Keeper in The year 1969 and he performed his duTies on ThaT posT Till 5.11.1971. ThereafTer, vide order daTed 2210.1971 (Annexure A/1) The peTiTioner was promoTed on The posT of Lower Division Clerk and TypisT. He ,was posTed in The£office of The ExecuTive Engineer, P.W.D. (B&R), Raigarh, where The peTiTioner joined his duties on 6.11.1971. Ii was provided in'Clduse 2 *of the k appoinTmenT order daTed 22.10.1971 ThaT unTiI The peTiTioner passes Typing examinaTion from The Madhya Pradesh ShorThand and TypewriTing ExaminaTion Council, he would geT fixed pay of Rs. 90/- with dearness allowance. Thereaf’rer, the STaTe Governmem‘ issued The Circular dated 17.3.1975 (Annexur'e A/2), wherein if is provided Tha’r The employees appoinTed on ‘rhe pos’r of Lower Division Cler‘k, prior To 22.8.1973, are no’r required ‘ro ' pass typing examinafion. The High CourT of Madhya Pradesh in M. P. No. 1031/1981 (M. P. Class-III Governmenf Employee Associafion & others Vs. Sfa’re of Madhya Pradesh & olhers) held The imposifion of rider of passing Hindi Typing Examina‘rion ’ro geT regular pay scale, as illegal. Accordingly, ’rhe Sfa’re of Governmen’r issued‘rhe Circular daTed 15.1.1992 (Annexure A/4), whereby lif’ring The rider of passing ’ryping examination in respect of those employees, who were appointed prior to 22.8.1973. However, the petitioner passed the typing examination in the year 1977. 6) The respondent No.2 vide order dated 12.1.1993 (Annexure A/5) released the annual increments of the petitioner and other similarly situated employees but the arrears was not granted to the petitioner. Thus, the petitioner submitted applications dated 12.3.1994(Annexure A/é) and 6.9.1994(6nnexure A/7) for grant of arrears. x Shri Sinha would further submit that a’provisi‘o‘nal gradation list of Second Grade Clerks (Lower Division Clerks) of BilaspunCircle,’ showing the position as on 1.4.1992, was‘ published and the objections were invited. The petitioner submitted his objection W ' on 6.6.1993 (Annexur'e A/8), seeking seniori‘l’y over The responden’rs No. 3 1‘0 12. Wifhou’r adhering ’ro The objection raised by The pe‘rifioner, The final Gradafion LisT was published on 11.8.1993 (Annexur'e A/9), To which ’rhe pe‘rifioner' again filed his objec’rion on 25.8.1993 (Annekure 'A/10). Another Grada’rion Lisf (Annexur'e A/12) was prepared, showing fhe posifion as on 1.4.1994, fo which The peTiTioner filed his objecTion on 12.12.1994 (Annexure A/13). WiThouT deciding The objecTion raised by The peTiTioner in regard To his senioriTy, The respondenTs No. 3 To 12 were promoTed vide order daTed 9.12.1994 (Annexure A/14). Hence The peTiTioner has filed This peTiTion. During The pendency of The peTiTion, The peTiTioner filed I.A.No. 1661/2007 for Taking The gradaTion lisT daTed 1.4.2005, on record. 8) Shri Dwivedi, learned DepuTy GovT. AdvocaTe, appearing for The respondenTs No. 1 and 2/STaTe would submiT ThaT so far as The relief regarding amendmenT in The gradaTion lisT, granTing senioriTy To The peTiTioner is concerned, ThaT has already been done vide order daTed 24.12.1997 (Annexure R/l). As far as granT of arrears To The peTiTioner is concerned, ThaT has alsa already been granTed vide pay—bills (Annexure R/Z); 9) Shri Dwivedi would furTher submiT ThaT The case of’The peTiTioner was considered for promoTion in The D.P.C. held on 9.12.1994 buT The peTiTioner was noT found fiT for promoTion, Therefore he could noT be promoTed. // i,» 10) Despi‘re service of no‘rice, none appeared nor any representa’rion was made on behalf of fhe respondents No. 3 To 12 when The r Vma‘rfer was heard. 11) Shri Dwivedi would also submif ’rha‘r The other respondem‘s have already passed The Superior clerkship examinafion, as provided in Rule 2(d) of ’rhe Madhya Pradesh Works Depar’rmen‘r '(Non-Gazeffed ) Service Recruifmen‘r and Condi’rions Service Rules, 1972 (Annexure P/15). For promo’rion To The nexT higher posT, The L.D.C. had To pass The said examinaTion. The peTiTioner would be considered for promoTion, if he is found fiT and qualified To The nexT higher posT. I have heard learned counsel for The parTies, perused The pleadings and documenTs appended ThereTo. 13) The peTiTioner was appoinTed as L.D.C. and TypisT on Temporary basis in The pay scale of Rs. 90—178 vide order daTed 22.10.1971 (Annexure A/1) wiTh a condiTion ThaT fixed paymenT of Rs.90/- g wiTh dearness allowance would be paid Till he passes The Typing TesT, conducTed by The Madhya Pradesh ShorThand and TypewriTing Examina‘rion Council. TheypeTiTioner joined The service and sTarTed working. The peTiTigner could noT pass The ’3 Typing TesT Till The year1977. The reliance of learned counsel for The peTiTioner on The leTTer daTed 17.3.1975 (Annexure .A/2), judgmenT and order daTed 16.8.1983 (Annexure A/3), passed by The High CourT of Madhya Pradesh, Jabalpur in M.P.No. 1031/1981 and fhe leTTer dm‘ed 15.1.1992 (Annexure A/4) may no? be of any ‘ help ’ro fhe pefifioner' as The said Ie’rTers and The judgment deal wi’rh fhe fac‘rs of fhose employees, wherein The condi‘rion of passing of The Typing fesf was no’r in The appoim‘men’r order, and 'by subsequen’r orders They were required To pass The Typing TesT. In The presenT‘case The passing of Hindi Typing TesT, conducTed by The Madhya Pradesh ShorThand and Typewrifing ExaminaTion Council was a co'ndiTion precedenT for granT of regular pay scale. The leTTer daTed 17.3.1975 (Annexure A/2), while dealing wiTh oThers cases, inTer alia, sTaTes as under:- '1....WWWW22&73$WWWW@§WW WWWTWWW3T£€TWWWWW WW§G%HEWWWWWWWW W%WWWW$WW8EWW WW7TWWWW/ , WWTWWT€$WWW #wd/WWWWTTWWWTW aWWmWWaTWWWWéW—dsv /. ........... ” 14); In The judgmenT and order daTed 16.8.1983 (Annexure A/3), passed by The High CourT of Madhya Pradesh, Jabalpur in M.P.No. 1031/1981, learned Judge has noTed The facTs as under:- u ....... There was noThing in There appejnTmenT‘ orders ThaT unless They pass The Typing examinaTion They will only geT fixed pay plus allowances and ThaT They will noT be eligible for regular Time scale or Their services would be liable To TerminaTion....... " Wherein imposifion of The subsequent condition was held as illegal. The case on hand is not one of those cases as 'rher'e was a specific condi‘rion To pass fhe Typing TesT before geTTing regular pay scale. SubsequenTly, in The leTTer' daTed 15.1.1992 (Annexure A/4) The STaTe GovernmenT, inTer-alia, sTaTes as under:- ". ...... WW%WW#WW#%¢W WwWWWWWWTTWWQWWW 15) Thus, The case of The peTiTioner' is noT covered by The leTTer dofed 17.3.1975 (Annexur'e A/Z), judgmenT and order daTed 16.8.1983 (Annexure‘ A/3) passed by The High CourT of Madhya Pradesh, Jabalpur in M.P.No. 1031/1981 and also The leTTer daTed 15.1.1992 (Annexure A/4). 16) IT is well seTTled principle of law ThaT each and every appoinTmenT is governed by The condiTions of appoinTmenTrleTTer, if The same is noT done in accordance wiTh Rules. 17) The peTiTioner has passed The Typing TesT in The year 1977. Accordingly, he was granTed The regular pay scale, and arrears, , ThereafTer. If The sepioriTy has been fixed on The basis of The granT of regular pay scale, afTer passing The Typing TesT, The same ' may noT be disTurbed aT This sToge. WIT'h regdrd To The promoTion of The peTiTioner To The higher posT, according To learned counsel appearing for The STaTe The D.P.C. was held on 9.12.1994 buT The H pe’ri’rioner was no‘l’ found fi’r for- promo‘h‘on, ’rher'efor‘e he could no’r be promowd. 18) The claim of ’rhe pefi’rioner' on The basis of ‘rhe gran’r of regular pay scale wi’rh effec’r from the da’re of appoinfmen’r is no’r susfainable. Thus, fhe consaquenfial relief can also nof be gran’red by This Cour’r. In the even‘r, ’rhe D.P.C. is held again, fhe case of g fhe pefifioner' may be considered, if he is found fif for promofion fo The higher posT as submiTTed by learned counsel for The STaTe. ‘19) ' For The reasons sTaTed herein above, This pefiTion is dismissed. No cosfs. I Sd/- Satish K. Agnihotri Judge Thakur w 4’