B CRE HON'BLE HIGH_CO@RT_CT'_JIiDIC;ATURE AT JABALR® (M.P.) »rr ESTITI®NO. S^r'i^ __ _ 1997 EETITIONffi reSPONDENTS F'^ s Smt. P.Sheshsal Rao W/o Sbrl Subbarao aSed aboat 45 years I&AFTSMAN Munlelpal Corporation Raipw (M.P.) Y®sus_ ^ 1. Municipal Corpora'tion Raipur Tbrough 1 Conaisaioner Mtmlcipal Corporation Raipur (M.P.) ,2. Chalraan, Standlng Coamtttee ^.inicipal Corporatlon Raipur (M.P.) ^3, State of Nadhya Pradesh t- Secretary M.P.Iocal SeU Govt. y Vallabb Bhawan BHOPAL (H.P.). ?4. Shri K.R.Agraval f~ Assistant Etaglneer (Puaiie-Works) Municlpal Corporation R&IPUR (M.P.) i -]'- 1 66 .fl <i .a'L f^fw*4-^ ,-i:;a.it=. •• ^ :: 2 :; ^5. Shri H.L.Kasbyap Asslstant Engineer PUblie Vorks Municipal ft'orporatlon RAIEUR (M.-P.) BETmOH ONDSl ARTICLE 226 OF T _CONSTOTION _QF TODIA FOR THE WRITS CT THE NATDSE QF CffiTIORARY, MAtiDAMUS BTC..AND FQR FIRTH®APFBOEBIATE BIRECTICNS 13'C. •2-3 HIGH COURT OF CHHATTISGARH : Bii-ASPUR Singje Bench: Hon'bte Shri Manindra Mohan Shrivastava. J. WRIT PETITiON N0.1650(1991 PETiTiONER Smt. P. Sheshsai Versus RESPONDENTS The Administrator, Municipal Corporation and others WRITPETITION UNDER ARTiGLES 22&227 OF THE CONSiTUTION OF iNDIA Present: - Shri V.Q. Tamaskar, counsel for the peCtioner. Shri H.BAgrawal, Senior Advocate with Shri Pankaj Agrawal, counse! for the respondents No.1 & 2. And WRIT PETITiON N0.6270(1997 PETiTiONER Smt. P. Shesh Sai Rao Versus RESPONDENTS Municipal Corporation, Raipur and others WFUT PETmON UHDER ARTICLES 226(227 OF THE CONSTrUTtON OF INDiA Present: • Shri V.G. Tarnaskar, counsei for the petitionei. Shri H.B.Agrawal, Senior Advocate with Shri Pankaj Agrawal, counsel for the respondents No.1 & 7. ORDER (Passed on ...W:. October, 2010) This order shall govern disposal of ttie aforesaid two writ petitions fiied by the petitioner. The petitioner is working as Draftsman in the iViunicipal Corporation, Raipur. W.P.No.1650<9'i is a petition filed by the petitioner ventilating grievance on account of non-promotion to the post of Assistant Enginaer. 2. Case of the petitioner is that ttie petitioner hoids three years Dipioma Certificate in Architect issued by the State Board of Technicai Education and Training, Andhra Pradesh which according to the petitioner is equivaient to three years diploma course conducted by the State in various poiy technique coileges. Vide order dated 20/12/77 (Annexure P/1) petitioner vras appointed as Draftsmah in P.W.D. cell of the Municipal Corporation, Raipur. The appointment was subsequently approved by the State Service Commission vide order dated 22/6/1978 communicated vide ietter dated 28/06/1978 (Annexure P/2). Case of the petitioner is that the provisions of M.P. Public Works (Gazetted) Servise Recruitment Ruies, 1969, have been made appiicabte to the empioyeBS of the rvlunicipai Corporation, Raipur under the service bye-laws framed in the year 1972. Further assertion of the petitioner is that under the scheme of the aforesaid rules, promotion to the post of Assistant Engineer is to be made by direct recruitment as well as by promofion in equai proportion i.e. 50%. Out of 50% post, earmarked for promotion, 35% of the poste have to be fiiled up from amongst Diploma holders whereas 10% by way of promotion of degree holder Sub-Engineers, the remaining 5% out of the promotion quota of the post of Assistant Engineer is to be filied up by way of promotion from amongst Draftsman/Head Drafisman. 3. It has been pleaded that e service record of the petitioner has wsen through out ctean and unblemish yet the petitioner has been singted out for hostile discrimination in as much as though respondents No.4, 5 and 6 (Sub Engineers) have been promoted to the post of Assistant Engineer, petitioner has not been promoted. it has also been pieaded that respondents No.4, 5 and 6 who were initially appointed as Sub-Engineer on various dates were promoted as Assistant Engineer in the year 1989 but their promotions were not approved by the Public Service Commission as they had not completed twetve years of service as Sub-Engineer. Their promotions were chatienged by the petitioner by filing a writ petition registered as M.P.455/1990 which later on became infructuous as the Pubiic Service Commission did not confimi those promotions. It is the case of the petitioner that those Sub-Engineers l.e. respondents No.4, 5 and 6 being juniors were illegaliy promoted as Assistant Engineer which was not approved. 4. The respondent/Corporation again promoted respondents No.4 to 6 temporarily for a period of sb< months vide resoiution dated 14/2/1991 passed by respondent No.7 followed by issuance of the order of promoUon on 12/3/19S1 (Annexure P/9), without seeking approval of the Public Service Commission and oniy in anticipation of approvai. 5. After the aforesaid order of promotion and non-promotion of the pentioner was chaltenged by the petitioner in the aforesaid writ petition, the matter remained pending. Vide order dated 25/11/1997, two more Sub-Engineers namely K.R-Agrawal and M.L. Kashyap were promoted as Assistant Engineer. Aggrieved by their promotions and as again the petitioner was not promoted as Assistant Engineer, another writ petition came to be fiied by the petitioner bearing W.P.No.5270/97. in the second writ petition aiso, the same grievance raised in the earlier petition, has 'oeen reiterated by the petitioner ttiat the respondent/ Corporation has illegally deprived the petitioner of a right to be considered for promotion to the post of ^sistant Engineer though from tirne to tirne Sub- Engineers have been considered and promoted to the post of Assistant Engineer. Three Sub-Engineers promoted in the year 1991 gave rise to the cause of action for filing writ petiBon No.1650/91 and two promotions in the year 1997 led to filing of writ petition No.570/97, on identicai grounds. 6. The submission of .laamed counsei for the petitioner in the two writ petitions is that once the rules of recruitment and promotioti of PubSic Works Department ofthe State Government have been made appiicabto in the matter of terms and conditions of sen/ice of the Sub Engineers and Drateman working in P.W.D. celi of the CorporaUon, the respondents were obliged to consider the petitioner also for promotion to the post of Assistant Engineer as under statutory scheme of promotion, the Draftsmen are aiso entitied to be considered for promotion on the post of Assistant Engineer against 5% of the vacancies out of 50% of the vacancies earmarked for promotion quota. He submitted that the petitioner was subjected to discrimination in as much as Sub-Engineers have been promoted from time to time but no consideration was made in the case of the petiUoner. 7. The petitioner has assaited promotions of Sub-Engineers, who have been impleaded as respondents No.4 to 6 in W.P.No.1650/91, on the ground that their promotions have been made without approval of the Public Service Commission as required under the provisions of Section 5S ofthe C.G. Municipai Corporation Act, 1956. In so Tar as promotion of respondents No.4 and 5 in W.P. No.5270/87 is concerned, the same has also been chatlenged on the ground that they are junior to the petitioner as they came into service as Sub-Engineer much after the petitioner. '•Lb 8. Leamed counsel for the respondent / Corporation replying to the case of the petitioner in both the writ petitions, argued that the petitioner's case couid not be considered for promotion due to non-avaiiabiliiy of post. It has also been denied that 10% of the post of Assistant Engineer are liabie to be earmarked for promotion from amongst Draftsman on the submission that it is in excess of the quota fixed in the rules by the State Governrnent. From the retum of the respondents, fiied in W.P.No.5270/97, it is revealed mat mere is one sanctioned post of Drateman in the Corporation. in the petitk>n (W.P.No.1650/91) it has been averred that the rules known as M.P. Pubiic Works (Gazetted) Seri/ice Recruitment Ruies, 1969 are appiicabie. The petitioner has piaced on record service bye-laws framed by the Corporation as Annexure P/1. Learned counsei for respondent No.3 in W.P.No..5270/97 opposes the ciaim of the petitioner and has supported the stand taken by the Municipal Corporation. 9. The respondent / Corporation in its retum in W.P.No.1650/31 has not disputed that the Draftsman / Head Draftsman can be promoted as ^sistant Engineer as there is 5% quota prescribed under the ruies of the Govemment which are made applicable but due to non-avaiiabiiity of post, petitioner could not be promoted. Neither in the return fiied in W.P.No.1850/91 nor in the return fiied in W.P.No.5270/97, any specific pleading has been made with regard to the total number of the posls of Assistant Engineer in P.W.D. department of the Corporation. Petitioner has also not made any specific averment in any of the two petitions, as to how many posts of Assistarit Engineef have been sanctioned in the Corporation. in the absence of speeific averment made b'y' the parties and upon perusal of ietter dated 3'i)OS;1990 (Annexure Ai'S), which is communicateu by" ttie Corporation to the Pubiic Service Commission, it is reveaied that at that time, there were seven posts of Assistant Engineer and one post of Nagar Nivesh Adhikari (equivalent to the post of Assistant Engineer) sanctioned in the Corporation. Before and after that, how many sanctioned post of Assistant Engineer were available in the Corporation, has not been pleaded either by the petitioner or by the reapondenti'Corporation. Petitioner has not fiied any rejoinder in either of the writ petitions to come out with any specffic detail of the number of posts of Assistant Engineer in the Corporation at the tlme of promotions made in the year 1991 and then In Uie year 1997. 10. It is qdmitted position on record that 5% of the post uf Assistant Engineer is earmarked for promotion from amongst Draftsman / Head Draflsman. !f the total number of posts in the Corporation as indicated in Annexure A/8 dated 31/8/1990 is taken as the total number of sanctioned post of Assistant Engineer / equivalent post in the corporation, it comes out to eight. It is the case of the petitioner that as per the State Government rules made appiicabie in the Corporation, 5% of the post of Assistant Engineer have to be. earmarked for consideration of Drateman / Head Draftsrnan for promotion to the post of Assistant Engineer. The contention of learned counsel for the petitioner that as the respondents have not been foiiowing rules of direct recruitment and each and every post of Assistant Engineer has been fiiied up by way' of profriotion, therefore the quota of 5% shouid be increased to 10%, cannot be accepted for the simple reason that such a claim is not in accordance with mies but in breach of the rules. The petitioner's ciaim is founded on the scheme of promotion which provided that 5% post ofAssistant Engineer is to be earmarked for the purposes of promotion from amongst Draftsman/Head Draftsman. Even if it is assumed that the Corporation has made promotions against direct recruitment quota, T-:l petitioner could not daim for issuance of writ of mandamus for her consideration by enhancing quota from 5% to 10% as it is weii settied that no writ of mandamus can be issued in violation of law. Petitioner has no enforceable right of iseing considered for promotion by enhancing quota of 5% to 10%. 11. However, in view of the admitted position and the averments of the respondent/Corporation that 5% of the post of Assistant Engineer are eamiarked for promotion from amongst Draftsman/Head Draftsman, it needs to be examined as to whether such right ofthe petftloner has been vioiated. 12. From the discussion as a&ove, what is reveaied from records is that in the year 1990, there were seven sanctioned posts of Assistant Engineer and one equivalent post of Nagar Nivesh Adhikari. If the reievant scheme of promotion as stated by the petitioner in her petition and not disputed by the respondent, is applied, only four posts would become avaiiabie in promotion quota and out of that, only 5% of the post couid be earmarked for consideration of Draftsman/Head Draftsman for promotion. Neither the pefitioner nor the respondent have placed on record any specific ruie, instructions or guidelines of ttte State Government or any specific administrative guidelines or instructions of the Corporation as to how the pereentage wouid be worked out against four posts in the quota of promotion so as to be divided amongst Sub-fcngineer, Graduate Sub-Engineer and Draftsman / Head Draftsman. if the respective quola is worked out as per the prescribed percentage, only one post couid be earmarked for promotion from amongst Diploma hoiders. If two posts are earmarked, it will exceed 35%. Even if one post each is given for promotion among degree holders, Sub-Engineers and Draftsman<Head Draflsman, they '<^SsK,:z»:!assssc-^s rf'rflSK'TW-c-- '&:'£'.-.:;.:..V. .-a'aS.Wf^ M' •.•-:r^-..^r.«t-B... na.t.«M";Br.r exceed 10% and 5% quota respectively. With such a iess number of posts available for promotion, the quota prescribed for three categories becomes unworkable. it is also clear from the averments made in the petition, which are not denied and a!so from various orders of promotion that the Corporation has been filiing up the post of Assistant Engineer in PWD celi oniy by way of promotion and not by direct recruitment. Meaning thereby that such promotir?ns are in breach of rules appiic-abie in the State Government sewice in the concerned department, adopted bythe Corporation. 13. it wouid be essentially a policy matter for the Corporation to frarne appropriate guidelines for the workability of the ruie of aiiocation of post categorywise in promotion quota. If the petitioner's claim is examined in the light of the scheme of promotion, this Court cannot grant any relief, as 5% of the four sanctioned post of Assistant Engineer availabie in promotion quota is iess than one. In other words, in order that atleast one post of Assistant Engineer becomes available for Draftsman/Head Draftsman there has to be minimum 20 posts of Assistant Engineer in promotion quota. In the present case, from the examination made as above, this Court reaches to the conciusion that there are oniy fouf posts available in promotion quota. 14. Grievance of the petitioner that Sub-Engineers who are appointed even after the petitioner are appointed as Assistant Engineer does not appears to be justified. Under the scheme of promotion, separate quota has been earmarked for Sub-Engineers, Graduate Sub-Engineers and Draftsman. The post of Sub- Engineer and Draftsman are not in the same cadre. Therefore, the petitioner could not raise any grievance against the promotion of Sub-Engineer to the post ^J- of Assistant Engineer unless it is established that such promotion has encroached upon the vacancies availabie for Draftsman/Head Drafisman. If ii is assumed that Sub-Ensineers have been promoted against Assistant Engineer in excess of the promotion quota, petitioner is not entiUed to any relief uniess it is established that in that process any vacancy avaiiabie for Drateman quota has been filled up by promotion of any Sub-Engineer. Even otherwise, no negative equality can be enforced. The submission of iearned counsei for the petitioner that as promotions of Sub-Engineer are illegai or contraiy to the provisions contained in Section 58 ofthe C.G. Municipal Corporation Act, 1856 or in excess of promoUon quota, direction be issued by this Court to promote the petitioner cannot be accepted in view of settled iaw that negative equaiity cannot be enforced. 15. It however, cannot be ignored that the petitioner was appointed as Draftsman way back in the year 1977 and till she filed petition in the year 1997, she was not granted any promotion primariiy because appiying the prescribed quota as it is, petWoner could not get promotion. As discussed above, where four posts of promotion quota is avaiiabie, reievant ruies prescribing different quota for different categories becomes unworkabte. Therefbre, taking into consideration the aforesaid aspect, it wouid be appropriate to direct the Corporation to take administrative decision or obtain guideiines frorn the State Government as to how the rule prescribed as 35% for Sub-Engineer, 10% for Graduate Sub-Engineers and 5% for Draftsman is to be worked out with available number of vacancies of Assistant Enflineer. if as a result of appropriate policy to make the ruies workabie, it is found that one post couid be earmarked for promotion from amongst Draftsman/Head Draftsman, respondent shait 10 consider the case of the petitioner for promotion to the post of Assistant Engineer. The respondent shail compiete this exeroise within a reasonable time and without undue delay, as the petftioner has been litigating since 1981. W the aforesaid direciions, the petiUon is finaity disposed off. 16. A copy of this order be piaced in the record of W.P.No.5270i97. Sd/- Manindra M. Shrivastava Judge Dtii-FU