Case: GWALIOR DEVELOPMENT AUTHORITY GWALIOR Vs. SUBHASH SAXENA &amp; OTHERS

31203 of 2014 is filed by the State of Madhya Pradesh challenging the Judgment in Writ Appeal No. 48 of 2014. Writ Appeal No. 48 of 2014 was filed by the State and it came to be dismissed on the basis of the Judgment in Writ Appeal No. 327 of 2013, which was filed by Respondent Nos. 3 and 4 in Writ Petition No. 8199 of 2003. It is to be noticed that the State was the first respondent in the Writ Petition. The Judgment in Writ Appeal No. 327 of 2013, having been dismissed, and the State being party to the same, it was incumbent upon the State to challenge the Judgment in Writ Appeal No. 327 of 2013. The State in the Special Leave Petition has challenged only the Judgment in Writ Appeal No. 48 of 2014, which was rendered, no doubt, following the Judgment in Writ Appeal No. 327 of 2013. The Judgment in Writ Appeal No. 327 of 2013 would remain final as regards the State of Madhya Pradesh. Therefore, it may not be legal or proper to further consider the challenge at the instance of the State, when it is directed only against the Judgment in Writ Appeal No. 48 of 2014. Similarly, we notice that Special Leave Petition, filed by the GDA is directed against the Judgment in Writ Appeal No. 481 of 2013. It is true that Writ Appeal No. 481 of 2013 was filed by the GDA against Order in Writ Petition No. 8199 of 2003, (as can be seen from Annexure-P16 at page-101 of the paper book). In Writ Appeal No. 327 of 2013, filed by the private parties in the very same Writ Petition, and wherein, the GDA was, admittedly, a party, viz., Writ Appeal No. 327 of 2013, the Division Bench has upheld the Judgment of the learned Single Judge. The GDA, being the party therein, challenged only the Judgment in Writ Appeal No. 481 of 2013, which was the Appeal filed by the GDA. It cannot be permitted to be proceeded with, as it would result in the Judgment in Writ Appeal No. 327 of 2013, which has become final, as far as GDA is concerned, becoming inconsistent with any Judgment, which we may render in favour of the GDA. 30. As far as the Special Leave Petitions, filed by the private parties are concerned, they are three in number. They have obtained the permission of this Court. We have noticed that initially Government had published a final Gradation List as on 01.07.1995. Therein the first respondent was shown at serial no. 2 in the Cadre of Assistant Engineer and he was shown as absorbed. Only Shri B.B. Mathur and Shri Devdutt Mishra, Assistant Engineers, working in the GDA, approached the Government. Government, no doubt, issued direction dated 30.07.2003, to delete the name of the first respondent. This, undoubtedly, led to the Writ Petition No. 8199 of 2003. Respondent Nos. 3 and 4 therein were Shri B.B. Mathur and Shri Devdutt Mishra. They were the persons, who had challenged the seniority of the first respondent. We notice that Shri Shirish More, one amongst the petitioners before us, who had filed Special Leave Petition, after getting permission, came to be promoted on 10.10.1991 to the post of Assistant Engineer. In the combined Gradation List dated 29.11.2006, in fact, he is shown at serial no. 82A. Shri B.B. Mathur and Shri Devdutt Mishra were shown at serial nos. 54 and 59. The other two Special Leave Petitioners before us, viz., Shri G.N. Singh and Shri Nishat Azim were at serial nos. 58 and 56, respectively. What we would notice is, none of the petitioners before us, viz., the employees, have even challenged the final Seniority List dated 01.07.2003, as per which, respondent no.1, was shown at serial no.2, in the final Gradation List. Further, we may notice that if they were relying on the fact that the parties-respondents in the writ petition filed by the first respondent and the appellants before the High Court, were following up on their behalf also, then, the fact that Shri Bharat Bihari Mathur and Shri Dev Dutt Mishra have filed the Special Leave Petition before this Court and the petition stands dismissed, would be an obstacle for entertaining their case. The further fact that even the Review Petition was dismissed and what is more, a Curative Petition was dismissed, would stand in their way, all the more. Having regard to the passage of time, which has also witnessed dismissal of the Special Leave Petitions by the appellants (private respondents in the Writ Petition filed by the first respondent), Review and Curative Petition, at any rate, we do not think that we should disturb the impugned judgment. 31. The fact of the matter is that first respondent was transferred in the year 1988 as Assistant Engineer and he joined in GDA immediately thereafter and he continued to work there. In fact, as noticed in the first final seniority list dated 01.07.2003, he is shown as absorbed in the GDA. It may be true that in the letter dated 09.11.1995, it is not specifically stated that respondent was absorbed in the GDA, and it is indicated that his name will be included in the Joint Gradation List of the remaining SADA (i.e., the SADA not abolished under the notification dated 22.6.1995). It is further indicated that he is the employee of the Housing and Environment Department. As regards, determining seniority w.e.f. 1994, when first respondent would complete 12 years as Sub Engineer, it is tied up with the issue of the illegality of his promotion in 1987 without completing 12 years. More importantly, even proceeding to discern any merit that seniority should, at least, be governed with reference to the requirement of 12 years, in the facts of this case, for reasons we have indicated already, we decline to interfere, bearing in mind also Article 136 of the Constitution of India, which has facilitated these appeals.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]23. The power of supervision and control goes to acts and proceedings of the officers appointed under Section 3 and the authorities constituted under the Act. It means that the authority relates to the decisions or acts, which are taken by officers appointed under Section 3, or the authorities under the Act. It may not extend to power to control the service of the employees of the authority or SADA. In fact, the Division Bench of the High court in M.D. Awasthy v. State of M.P. and Another 1988 SCC OnLine MP 86 dealing with the case where the petitioner therein, who was the employee of the Development Authority, was transferred to a Town Improvement Trust. This was passed with the approval of the Chairman of the Development Authority. By another order his service was terminated, which was also approved by the Chairman. There Orders were challenged. The Division Bench, inter alia, held as follows:… Reference to sections 72 and 73 on which reliance was placed only authorise the State government to hive power of superintendence and control over the acts and proceedings of the officers appointed under section 3 and the authorities constituted under the Act. Certainly this will not include a power to call back the services of any officer, jr. servants of the Development Authority and to place those services under the disposal of altogether a different authority. Reference to section 73 is also misplaced as it only provides that the authorities constituted under the Act shall be bound by such directions in the matter of policy as may be given to them by the State Government...24. The counsel for the State Government has rightly not placed reliance on Section 73 which relates to power to issue directions in the matter of policy.25. As far as the contention against the very promotion made in the year 1987 of the first respondent being flawed on the basis of the order, which was issued, providing that the PWD rules would apply and thus the first respondent who was appointed as Sub Engineer required 12 years to be promoted as an Assistant Engineer, what is clear is, the first respondent was promoted in the year 1987. Promotion was based on Seniority-cum-merit. There is no dispute that his employer, viz., SADA Malajkhand, was competent to take a decision otherwise.The High Court finds that the objection is raised after twenty years. It is found that no instruction was given to SADA, Malajkhand. There was no provision in the rules. After 27 years, the promotion could not be revisited. In fact, after the promotion it was the Government, which transferred him as an Assistant Engineer and posted him at GDA. The view taken in the matter in the circumstances cannot be faulted. In the final seniority list dated 01.07.2003 wherein the first respondent was shown at Serial No.2, the final upgradation list of Assistant Engineer indicated that he was absorbed. This is a list which is brought out by the GDA itself.28. However, in the impugned judgment, it is found that Government framed the Madhya Pradesh Development Authority Service officers and servants Recruitment Rules, 1988. The High court has relied upon Rule 3 of the 1976 and 1988 Rules to find that Government was authorised to transfer an employee from one Authority to another Authority and that the transfer of respondent no.1 was in accordance with the rules. We cannot accept the argument of the State that it was a case of deputation in the facts. We have noticed that Section 72 does not also support the claim.29. Special Leave Petition (Civil) No. 31203 of 2014 is filed by the State of Madhya Pradesh challenging the Judgment in Writ Appeal No. 48 of 2014. Writ Appeal No. 48 of 2014 was filed by the State and it came to be dismissed on the basis of the Judgment in Writ Appeal No. 327 of 2013, which was filed by Respondent Nos. 3 and 4 in Writ Petition No. 8199 of 2003. It is to be noticed that the State was the first respondent in the Writ Petition. The Judgment in Writ Appeal No. 327 of 2013, having been dismissed, and the State being party to the same, it was incumbent upon the State to challenge the Judgment in Writ Appeal No. 327 of 2013. The State in the Special Leave Petition has challenged only the Judgment in Writ Appeal No. 48 of 2014, which was rendered, no doubt, following the Judgment in Writ Appeal No. 327 of 2013. The Judgment in Writ Appeal No. 327 of 2013 would remain final as regards the State of Madhya Pradesh. Therefore, it may not be legal or proper to further consider the challenge at the instance of the State, when it is directed only against the Judgment in Writ Appeal No. 48 of 2014. Similarly, we notice that Special Leave Petition, filed by the GDA is directed against the Judgment in Writ Appeal No. 481 of 2013. It is true that Writ Appeal No. 481 of 2013 was filed by the GDA against Order in Writ Petition No. 8199 of 2003, (as can be seen from Annexure-P16 at page-101 of the paper book). In Writ Appeal No. 327 of 2013, filed by the private parties in the very same Writ Petition, and wherein, the GDA was, admittedly, a party, viz., Writ Appeal No. 327 of 2013, the Division Bench has upheld the Judgment of the learned Single Judge. The GDA, being the party therein, challenged only the Judgment in Writ Appeal No. 481 of 2013, which was the Appeal filed by the GDA. It cannot be permitted to be proceeded with, as it would result in the Judgment in Writ Appeal No. 327 of 2013, which has become final, as far as GDA is concerned, becoming inconsistent with any Judgment, which we may render in favour of the GDA.30. As far as the Special Leave Petitions, filed by the private parties are concerned, they are three in number. They have obtained the permission of this Court. We have noticed that initially Government had published a final Gradation List as on 01.07.1995. Therein the first respondent was shown at serial no. 2 in the Cadre of Assistant Engineer and he was shown as absorbed. Only Shri B.B. Mathur and Shri Devdutt Mishra, Assistant Engineers, working in the GDA, approached the Government. Government, no doubt, issued direction dated 30.07.2003, to delete the name of the first respondent. This, undoubtedly, led to the Writ Petition No. 8199 of 2003. Respondent Nos. 3 and 4 therein were Shri B.B. Mathur and Shri Devdutt Mishra. They were the persons, who had challenged the seniority of the first respondent. We notice that Shri Shirish More, one amongst the petitioners before us, who had filed Special Leave Petition, after getting permission, came to be promoted on 10.10.1991 to the post of Assistant Engineer. In the combined Gradation List dated 29.11.2006, in fact, he is shown at serial no. 82A. Shri B.B. Mathur and Shri Devdutt Mishra were shown at serial nos. 54 and 59. The other two Special Leave Petitioners before us, viz., Shri G.N. Singh and Shri Nishat Azim were at serial nos. 58 and 56, respectively. What we would notice is, none of the petitioners before us, viz., the employees, have even challenged the final Seniority List dated 01.07.2003, as per which, respondent no.1, was shown at serial no.2, in the final Gradation List. Further, we may notice that if they were relying on the fact that the parties-respondents in the writ petition filed by the first respondent and the appellants before the High Court, were following up on their behalf also, then, the fact that Shri Bharat Bihari Mathur and Shri Dev Dutt Mishra have filed the Special Leave Petition before this Court and the petition stands dismissed, would be an obstacle for entertaining their case. The further fact that even the Review Petition was dismissed and what is more, a Curative Petition was dismissed, would stand in their way, all the more.Having regard to the passage of time, which has also witnessed dismissal of the Special Leave Petitions by the appellants (private respondents in the Writ Petition filed by the first respondent), Review and Curative Petition, at any rate, we do not think that we should disturb the impugned judgment.31. The fact of the matter is that first respondent was transferred in the year 1988 as Assistant Engineer and he joined in GDA immediately thereafter and he continued to work there. In fact, as noticed in the first final seniority list dated 01.07.2003, he is shown as absorbed in the GDA. It may be true that in the letter dated 09.11.1995, it is not specifically stated that respondent was absorbed in the GDA, and it is indicated that his name will be included in the Joint Gradation List of the remaining SADA (i.e., the SADA not abolished under the notification dated 22.6.1995). It is further indicated that he is the employee of the Housing and Environment Department. As regards, determining seniority w.e.f. 1994, when first respondent would complete 12 years as Sub Engineer, it is tied up with the issue of the illegality of his promotion in 1987 without completing 12 years. More importantly, even proceeding to discern any merit that seniority should, at least, be governed with reference to the requirement of 12 years, in the facts of this case, for reasons we have indicated already, we decline to interfere, bearing in mind also Article 136 of the Constitution of India, which has facilitated these appeals.