s -V ^^}l^l^ BEFORS THE H. P. ST&IE ABMIHISTRATrVE T&IBUNALaJABALPUR ^7°7: O.A.NOo/1995 • • • •• AE'PLICABtT Ramlal Khu'te, S/0 Bechan Rara Khute, aged about: 43 years B/0 Gram & Post Tara, Tahsll SuE'guja, Bis-fct. AmbilcapUE. ^ Versus NON-APPLICAN-ES s 1» State of Madhya Pradesh throQgli e Secretary, Fores-t DepttB Vallabh Bhawan, Bhopal. 2» Chief Conservator of Forest, Satpura B1aawan» Bhopal. S.Conserva-tor of ?orest» fimbiJcapur Distte Surguja. ^PLJ_CATION_^a/S,19__OF_THE araiINISTEATIVE 'rSIBUNMi AC'i'»1985 ^nB-.^^^-TMHfm-I-T .-*—->- ly ^^ ! l/e:t1-' HIGH COURT OF CHHATTISGARH. BILA8PUR SINGLE BENCH : HON'BLE SHRI MANINDRA MOHAN SHRIVASTAVA.J. WrilLPetitioa (SlNo. 1225/2005 PBTITIONBR RamlalKhute RESPONDEN'ra Versus State of Madhva Pradesh and two others ORDER POST ON 2. PEBRURARY^201Q Sd/- M-n*ndnM:S; HIGH COURT OF CHHATTISGARH : BILASPUR SINGLE BBNCH : HON'BLE SHRI MANINDRA MOHAN SHRIVASTAVA.J. Writ Petition (S) No.1225/2005 PETITIONER Ramlal Khute RESPONEi&NTS Versus <? State of Madhya Pradesh and two others Appearance: Shri Aaaad Dadanya, counsel for fhe petitioner. Shri Y.S. Thakur, Dy, Advocate General for the State/respondents. O R D B R (Passed on 2.1ut-.02.2010) 1. This petition has beeu filed by the petitioner impugniug the order of Annexure A-2 dated 15.3.1995 by which 3rd respondent-Consenrator of Forest, Ambikapur, District-Sarguja promoted Forest Guards to fhe post of Foresters. Petitioner having not found his name ia fhe proinotion order has appi'oached tius Court ventilatnig his grievaace fhat wlule maldng promotion to the post of Foresters, respondents have proinoted number of persons who are junior to fhe petitioner. According to Mm, while issiiing the order of promotiou, inandatoiy uistructioiis issued by the Govenunent in fhe matter of proinotion of Class-III einployee has not been foUowed. Petitioner assails the legality and vaUdily of ttie promotion uiade aad his non-promotion by stating " that while niaking promotiou, roster prescribed, appUcable ia the laatter ofproinotion (Anaexure A-5) has notbeen foUowed. -^^ ;*'L<;~^ ~^ 'iffiSSSSSii, '^L.d^S^i'^'E^ - 2 - t a ^ 2. During flie pendency offhis petition, petitioner has been proinoted to fhe post of Forester vide order ofAnnexure A-12 dated 27.4.1998. 3. The case of fhe petitioner as setout ia the petition is fhat tbe petifioner after haviag been appoiated as Forest Guard ia the year 1973 was sent on traming aud after completion, was posted vide order ofAnnexure A- 1 dated 2.7.4.1974 ia Soufh Sarguja Fowst Division. He was appointed as schedule caste candidate. Vide order of Anaexure A-2 dated 15.3.1995, nuinber of Porest Guards were promoted to tiie post of Foresters and according to the petitioner, Forest Guards at serial number 18, 21, 23, 24, 27, 29, 30, 33, 43, 46, 48, 49, 52, 55, 57, 58, 61, 63 & 64 are jimiors to him. To demonstrate this, petitioner has placed on record gradation list showing the serdorily of Forest Guard as on 1,4.1992 (Annexure A-3), whereia fhe petitiouer has bcen placed at serial nuinber 251, whereas fhe Forest Guards proinoted as Foresters and shown at various serial numher indicated above ia the order of promotion of Aimexure A-2 dated 15.3.1995 were placed at serial number 258, 266, 277, 279, 280, 282, 283, 287, 317,313,319, 320, 321, 323, 325,326, 331, 333 & 334. 4. Case of fhe petitidner is fhat fhose Porest Guards placed junior to him ia the list belongmg to scheduled tribe category were promoted in violation ofprescribed 40 Poiat Roster as given in. fhe General Roster, Annexiu-e A-S. Petitioner has submitted that wlule promotmg Forest Giiards as Foresters ia Saryija District, respondents iUegaUy foUowed . the roster prescribed iu the matter of direct recruitment providing- 50 percent for general candidates, 45 percent for scheduled tdbe aud 5 percent for scheduled caste, whereas as per general roster (Annexure A-5) which is applicable in the matter of promotion, respondents wtule 1 ^^it^. ^ •«!'.3^ g y ff ^xy -3- inakmg proinotion ought to have reserved 20 percent vacancies fcr scheduled tribe and 16 percent for scheduled caste category leaving 64 percent of vacancies for geaeral categoiy, which has not been done. Furfher case of the petidoner is that in Sarguja district whUe maldn^ proaiotion to Class-III posts in the Healtihi Department, general roster as prescnbed vide -Annexure A-5, providing for 16 peicent for scheduled caste and 20 percent for scheduled tribe and remaiamg for general categoiy has been foUowed as it evident fiom fhe order of Armexure A-6. It is submitted fhat from fhis discrepaacy, it is clear that whUe inakiag promotion, proper roster has not been foUowed, thereby iUegaUy depriving ttie petitioner of his right to be considered according to proper roster piescribcd vide Amiexure A-5, leadiag to promotion of large nuiabers of scheduled tribe candidates, who are otherwise junior to hiin. Furttier 3rd respondent has also not certified that promotions Iiave been inade ia compliaace of prescribed roster of reservation as inaudatorily required under Qovenuaent tnstructions Aimexure A-7). 5. Respondents opposing the case of the petitioner have contested by submittmg ia the retum that reUauce placed by the petitioner on Aruiexure A-5 is not correct as tbe general roster prescribes for promotion whereas ia respect of some identified districts wifh higher percentage of population of schedule tribe candidates Uke Sarguja district, a dtfiferent 40 Poiat Roster has beeu niade applicable vids Annexure R-l. According to this 40 Point Roster, in respect of tribal districts namely Maadala, Shatidol and Sarguja, Model 40 Point Roster prescribes 6 percent for scheduled caste aud 44 percent for schedule tribe. Proinotions have been made storictly according to fhis roster No.- .Uf- 'VKSS -4- 6, Aunexure R-l. It has also been stated fbat vide Metuo dated 17th May 1975, Govenunent clarified that for the purposes ofproiuotiou, fhe sanie roster and criteria as laid dowii for direct recruitments shaU be foUowed which is evident fix>m Aiuiexure R-2, Respondents have also questioned fhc veiy miamtainabilily of the case by raisiag objection to fhe effect fhat persons who have been proinoted are necessaiy parties as in f&e event of petitioner's contention being accepted, fheir promotion will be adversely affected. In the submission of respondents due to non-impleadment of those promoted foresters; petition siiffers from. non joinder of necessary parties and is fherefore liable to be disinissed on fhis couat alone. 6. In fhe rejoiader filed by the petitioner, it has been stated by controvertiag avcnnents inade iu the retum that roster no. 6 is not appUcable ia the matter ofpromotion aad the saine was only meant for direct recnutment tu tribal districts like Maadala, Shahdol and Sarguja. This is clear firom the recitals in the saM Circular dated 21.11.1977 (Aruiexure A-9) ofwhich roster no.-6 (Aiuicxure R.l) is a part. It has been further stated that as and when fhe roster poiats were iatended for beiug inade applicable iu the matter of promotion, it has been so stated in. fhe Goverrmienfs Circulars as is ctear from the Circulars dated 2.5.1975 & 17.5.1975 (Annexure A-10). It bas also been stated fhat by Circular dated 7.5.1995 (Aunexure A-11) whllc layuig down 100 Poiat Roster, earUer Circulars dated 2.5.1975 aad 7.5.1975 were superseded without reference to Circular dated 21.11.1977 (AiunexuTe A-9) ofwhich roster No.6 is a part, which also goes to show that Cireular of Aiuiexure A-9 wa8 not meant to be applicable in fhe niatter of promotion but was appUcable onty in the -<1 ••<••:' :BB -5 •s. matter of direct recruitment ia tribal districts of Mandala, Shahdol and Saiyya. 7, I liave considered tiie rival contentions of fhe parties and perused fhe record. 8. The entire case of the petitioner is founded on the submission that wlule malang'proiaotioii to the Class-III posts of Foresters in tribal districts of Sai^uja, 3I'd respondent was obliged to foUow 40 Poiat Roster as prescribed ia Atinexure A-5 wtiich is a general roster applicatole iu the niatter of proiaotion aU over the Stete aud not 40 Point Roster prepared for fhe tribal districts of Mandala, Shahdol aad Saj^uja reflected iu roster No.-6 of Aiuiexure A-10 which was only ineant for direct recruitment. 9. Admittedly the petitioner has not challenged the legaUly and validity of different rosters prepared aad placed on record by fhe petitioner aad respondents as Aiuiesaire A-5 and Anaexure R-l (same as Annexure A- 10), R-2 (which te roster N0,6 ofAnnexure A-9). It has fherefore to be seen as to wbefher respondents were correct ia applyiag roster ia the matterofpromotion to Class-III post ofForesters ia distnct- Sarguja. In fhe Circular dated 2.5.1975 (Aruiexure A-10) ffled by the petitioner himsett, it is clearly stipulated that fhe Ooveminent decided that benefit of reservation would also be extended in fhe matter of promotion ia the same luaaaer as prescribed in the matter of direct recruitment. In para-3 (<?:) of Circular dated 2.5.1975 (Aniiexure A-10), it has been veiy clearly stated that in order to ensure reservation of scheduled caste aad scheduled tribe Govermaent servaats in the matter of proiaotion, the same 40 Poiut Roster as prescribed for dircct .i'ii'!, ' ^ i:l -6- A, recruitiuent vide inenio dated 24th Septeinber, 1971 wffi have to be inamtfiiTied. This was foUowed by aaofher Circular dated 17.5.1975 (Anuexure R-2) whereia it was provided in sub-clause (4) of Clause-3 that for the purposes of ensuring proper reservation in the matter of promotion, the same 40 Poiat Roster as prescribed and prcpared for direct recruitiaent shaU be inaiutamed and iinpleineiited. 0' 10. In order to give effective representation ia tribal distncts predoiniaaiifly mhabited by tribals, district wise inodel roster points were provided by the Goverrunent vide Circular dated 21.11.1977 (Annexure A-9). A careful readiug offhe said circular dated 21.11.1977 would show fhat wifhout niaking any distinction as to whefher it is direct recruitm.ent or proinotion, a 40 Poiat Roster in fhe niatter of selection to Class-III and Class-IV posts which takes place at district or divisional level was prepared for different districts. Roster No.6 was prescribed in the inatter of selection in tribal distnct of Mandata, Shahdol and Sarguja. It has to be noticed that as aud when Goverrunent iatended to apply a particTilar provision for direct recruitment or for proiaotion, it was so mentioned. However, iu Circular dated 21.11.1977, neifher direct recruitiuent not proiuotion word has been used but in its place word- "'spR" (selection) has been used. It is iadicative offhe Govenunent iatention to generaUy apply the roster distnct wise irrespective of whether it is selection by way of direct recruitm.ent or selection by way of proinotion. Selecdion is a generic^word aad it caunot be narrowly iaterpreted so as to inean selection only by way of direct recrtutment. This is not in.dicated finm aay ofthe recitals contauied in the said Circular dated 21.11,1977. It would be apposite to mention that right from the begituung, fhe .sff!a"SS^ ^ ''%,. 1 i^ 1 ^ < -7- Govenunent always iatended that reservatiou ia the niatter of proinotion would be efifected and implemented ia fhe satae maiuier as prescribed for direct recnutment which is clearly reflected fi-om earUer Circulars dated 2nd May 1975 aud 17th May, 1975. It therefore logicaUy foUows that Circular dated 21.11.1977 ofwhich roster No.6 is a part was generaUy inade appUcable ia the matter of selections whether by way of direcf recruitment or by way of promotiou. This naturaUy foUows from the fact that on fhe date of issuance of Circular dated 21.11.1977, no separate roster for reservation ia the matter of proinotion to Class- III posts was prescribed. If fhe subiaission of leamed counsel for fhe petitioner is accepted, it would led to an aaoinalous situation that in so far as direct recruitoient is conceraed, district wise roster would be foUowed but in promotion, different provision ofrosterwiU apply. In the Circular dated 21.11.1977 (Aitnexure A-9), it has been clearly stipulated that district wise and division wise roster is being prescribed to ensure reservation based on population of scheduled caste and scbeduled tribe ia fhe respective district and division. Therefore it is not possible for this Court to accept fhe ai^ument tbat word 'selection' used in the Circular should be given narrow interpretatfon so as to apply only ia fhe aiatter ofdirect recruitment and not proinotion. 11. Leamed counsel for the petitiouer iit order to strengthen his submission has also ai^ued fhat when 100 Point Roster was prescribed vide Circular dated 7th August, 1995 (Aiinexure A-11) while there was meution of earlier two Circulars dated 2.5.1975 and 17.5.1975; there was no mention of Circular dated 21.11,1977 (Aimexure A-9), which also indicates fhat the said Circular dated 21.11.1977 was not *:sffilsaBi, !*t!- -8- ^ \ appUcable in fhe matter of promotion, I am unable to accept this subinission. 12. Petitioner has not ulaced on record other Circular dated 17.10.1979 referred to in Circular dated 7th August, 1995 (Annexure A-ll). Secondly, issuance of Circular dated 7th August 1995 at the inost could only lead to conclusion fhat by the said poUcy decisions altogefher new scheme of reservation iu fhe uiatter of proniotion was prescribed. It does not lead to a conclusion that prior to Circular dated 7th August, 1995 (Aiuiexure A-l 1) there was no roster point prepared separately for tribal districts in fhe inatter of proniotion. On the other hand, this ai^uinent only lends support to the conclusion that as earUer fhere was no separate roster poiat prepared for proinotion, Circular dated 21.11.1977 (Anuexure A-9) was made appUcable generalty in fhe matter of direct recruitment as weU as for promotion which is reflected from fhe roster contamed ia the said Circular, 13. As this Court has considered the subniissions of the petitioner on merits aad has coiue to a conclusion that the saine has no merits, it is not necessary to dwell iato other objection with regard to non-joiader of aUeged necessary party as contested by the respondents, 24. ReUaace placed by the petitioner in the decisions of the Supreme Court in. fhe matter of Unlon of India Vs. Smt. Sadhaaa Khaana, 2008 (11 SCC 720 is misplaced as this Court has come to the conclusion that there is no fault on the part of the respondents iu making reservation iu the inatter ofpromotion while making proinotion to Class-III post ofForssters in Sarguja district. Ofber two decisious: 1- The Qeneral Maaager South Central Ralhray, Secundrabad and •sSS^ !E-^ -9- another Vs. A.V.R. Siddhantti and others, 1974 (41 8CC 335 & 2- Uaion of India and ors. Vs. M.P. Sineh and ors., 1990 (suppl.1 8CC 701 which have been reUed upon to support the aiyMnent that fhe petition is not Uable to be disxaissed ou fhe ground of non-unpleadnient of those who have been proinoted has also not been considered as in fhe discussions above, it has been considered and found fhat the petitioner ofherwise has no case on merits. 15. This beiag the only grouud raised by fhe petitioner to assail the legality and vaUdily of order of proniotion dated 15ttl March 1995 (Annexure A-2); I do not flad any inerits ia fhe petition. 16. In fhe result, fhe petition fails aud is accordingly disniissed. 17. No order as to costs. Sd/- Manindra Mohan Shrivastava Judge . Smha