Madhya Pradesh High Court

Sharad Kumar Shrivastava vs The State Of Madhya Pradesh Thr on 12 December, 2017
High Court of Madhya Pradesh
Bench at Gwalior

SINGLE BENCH
: (Vivek Agarwal, J.)

Writ Petition No.2058/2015

Sharad Kumar Shrivastava and others
Vs.
State of M.P. & others

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Shri Prashant Sharma, learned counsel for the petitioners.
Shri Kamal Jain, learned Govt. Advocate for the
respondent No.1/State.
Shri Shashank Indapurkar, learned counsel for the
respondent No.2.
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ORDER

(12/12/2017)
Petitioners have filed this petition challenging their
placement in the seniority list (Annexure P/1), which has
been published by the respondent No.2 M.P.Housing
Board for the Degree Holder Sub Engineers (Civil).

2. It is petitioners' contention that this gradation list as
on 01.01.2007 has been published without considering
the objections of the petitioners and deciding them. It is
petitioners' contention that they had given their joining
on the post of Sub Engineer and copy of their
appointment letters are enclosed as Annexure P/3. During
the service after taking due permission from the
respondents, petitioners completed their degree in Civil
Engineering and they have been shown at their
respective places in the seniority list, which was
maintained by the department up till the change i.e. uptill
year 2006. In that seniority list of the year 2006, their
placement has been shown in accordance with their date
of appointment. It is petitioners' allegation that in the
year 2007 all of a sudden, seniority of the petitioners has
been changed as reflected in Annexure P/1 itself and the
seniority of the petitioner No.1, who was at S.No.14 up to
2006, was brought down to S.No.31 and that of petitioner
No.2, who was previously at S.No.15, to S.No.29 and so
on. It is petitioners' contention that due to this change in
seniority position, petitioners' chances of promotion to
the next higher level have been adversely affected and in
Annexure P/2, several persons junior to the petitioners
have been placed above the petitioners. In view of such
backdrop, learned counsel for the petitioners submits that
the petitioners have prayed for quashing of the gradation
lists (Annexure P/1 and P/2) and further direction to the
respondents to restore back seniority of the petitioners
over and above their juniors. It is also prayed that
thereafter seniority be corrected by constituting the DPC
for considering the cases of the petitioners for promotion
to the post of Assistant Engineer.

3. Respondent No.2 has filed a return and has
submitted that the petition is misconceived and is liable
to be rejected. Seniority list was published in the year
2007 and it was issued in compliance of the instructions
issued by the State Government amending the Madhya
Pradesh Public Works Department (Non-Gazetted) Service
Recruitment and Conditions Service Rules, 1972
(hereinafter shall be referred to as the 'Rules of 1972'). It
is submitted that the challenge to 2007 seniority list is
highly belated and is liable to be rejected in the light of
the law laid down by the Hon'ble Supreme Court in the
case of
Shiba Shankar Mohpatra and others Vs.
State of Orissa
as reported in (2010) 12 SCC 471. It is
submitted that the petitioners have not explained the
long delay in filing the petition challenging the seniority
list of the year 2007.

It is further submitted that such
separate seniority list was prepared as per the directions
of the Hon'ble Supreme Court in the case of

Chandravathi P.K. & others Vs. C.K.Sazi and others

as reported in (2004) 3 SCC 734 and accordingly the
rules were amended vide gazette notification
dt.07.06.2007, which provides that there shall be two
groups of seniority list in the Sub Engineer cadre as
follows :-

Group (A) : Diploma Holder Sub-Engineer
Group (B) : Degree Holder Sub-Engineer (B.E.)
In Rule 14 of the Rules of 1972, further substitution
is of Sub rule (3) Clause (b), which provides that in Group
(B), such graduate Engineer who have acquired a Degree
before entering into service, their seniority on the post of
Sub-Engineer shall be fixed from the date of their
appointment in the Department. Rule 14 (3) (c) provides
that such Diploma holder Sub Engineer, who have
acquired a degree during their service period as per rules,
they shall be asked to give option either to remain in
Group (A) or in Group (B). After having acquired option
their seniority in Group (A) shall be fixed totally from the
date of their appointment and in Group (B) it shall be
fixed totally from the date of their acquisition of a
Degree/passing the examination. There is a proviso,
which says that provided that there shall not be any
change in the option once it was given. In case if the
option is not received in the prescribed time limit, then
the seniority shall be maintained in Group (A) as it was
earlier.

4. It is petitioners' contention that such notification
(Annexure P/6) can not be given a retrospective effect
and so is the ratio of the judgment in the case of

Suryakant Sharma and others Vs. State of M.P. & others

(W.P.No.313/2007). Petitioners submit that their seniority
is to be counted from the date of employment as per the
prevailing rules and can not be changed by virtue of the
subsequently changing the rules of the game.

5. As far as petitioners' this contention is concerned,
Annexure P/6 has no doubt prospective application but it
also has a clear provision as to giving of the option. It is
not the case of the petitioners that they had not given
their option for placement in Group (B) i.e. seniority list of
Degree holder Sub-Engineers and therefore in the
absence of any such plea that the petitioners have been
put into Group (B) despite their not giving any option,
they are to be governed by the provisions of Rule 14 (3)

(b) and (c). Admittedly, the petitioners had acquired
degree after coming into service, therefore, their seniority
has been fixed from the date of their acquisition of a
Degree/passing of the examination, as is apparent from
Annexure P/1, wherein the petitioner No.1 finds place in
the seniority list in Annexure P/1 issued after amendment
in the recruitment rules, at S.No.31, though his initial
date of appointment is 1982 but he had acquired B.E.
Degree on 04.09.1990. Similarly, petitioner No.2 Shri
H.C.Shrivastava, was though appointed on 27.02.1982
but had acquired degree on 30.03.1990 and therefore he
has been placed above the petitioner No.1. The name of
Shri S.S.Bhatiya at S.No.30 clarifies the whole scenario
that though he was appointed on 05.10.1981 but has
been placed below petitioner No.2 and therefore in terms
of the provisions contained in Rule 14 (3) (b) and (c), their
seniority has been fixed. It is not the case of the
petitioners that there were vacant posts of Assistant
Engineer prior to the date of amendment and they have
not been filled by considering the cases of the petitioners
before effecting the amendment. Therefore, it is apparent
that the petitioners' case is neither that there were
vacancies on the post of Assistant Engineer, which have
been not filled before giving the effect to the amended
provisions of Rule 14 as was introduced vide Annexure
P/6 nor it is their case that they had not given an option
to be placed in the seniority list of Graduate Engineer.
Therefore, once they have exercised option, then they
were required to be considered for promotion only on the
basis of their placement in the seniority list of graduate
engineers, who had attained the graduation degree after
coming into service. Thus, in the light of the law
laid
down in
the case of
Shiba Shankar Mohpatra
(supra),
petitioners' claim to challenge the seniority list of the
year 2007 is highly belated and suffers from delay and
laches and therefore, on the same analogy that the court
exercising public law jurisdiction does not encourage
agitation of stale claims where the right of third parties
crystallizes in the interregnum. Thus, petition fails and
dismissed on this ground.

6. This petition also deserves to be dismissed on merit
inasmuch as there is no substantive claim put forward by
the petitioner about the retrospective operation of the
amendment contained in Annexure P/6, as there is no
retrospectivity in the amendment but it has been made
applicable prospectively only for the vacancies which
have been accrued after publication of seniority list as is
contained in Annexure P/1. Thus, on merits also
petitioners have no case. Petition fails and is dismissed.

(Vivek Agarwal)
Judge

SP

Digitally signed by SANJEEV

KUMAR PHANSE

SANJEEV DN: c=IN, o=HIGH COURT OF
M.P. BENCH GWALIOR, ou=P. S.,
postalCode=474011, st=Madhya

KUMAR
Pradesh,
2.5.4.20=b127bc1c16d2794cb53
e7637ddf59a1c3bd3662e8c5de5
d5505a6b3e4d77be89,

PHANSE
2.5.4.45=0321009FFE813C9581B
6F5694F843759E99F2752C38621
A39C94CA45FC830FF0F028B5,
cn=SANJEEV KUMAR PHANSE
Date: 2017.12.18 13:20:45 +05'30'