Madhya Pradesh High Court

Smt.Rajni Tiwari vs Municipal Corporation Sagar on 13 August, 2024

Author:
Vishal Mishra

Bench:
Vishal Mishra

NEUTRAL CITATION NO. 2024:MPHC-JBP:58767

1 W.P. No.9715/2007
& W.P. No.13741/2016

IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VISHAL MISHRA
ON THE 13th OF AUGUST, 2024
WRIT PETITION No. 9715 of 2007
SMT. RAJNI TIWARI
Versus
MUNICIPAL CORPORATION SAGAR AND OTHERS
............................................................................................................................................
Appearance:
Ms. Malti Dadariya - Advocate for the petitioner.
Shri Abhimanyu Singh - Advocate for respondent No.1.
Shri A.S. Baghel - Government Advocate for respondent No.2/State.
Shri R.K. Awasthy - Advocate for respondent No.3.
............................................................................................................................................
WITH
WRIT PETITION No. 13741 of 2016
SMT. RAJNI TIWARI
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
............................................................................................................................................
Appearance:
Ms. Malti Dadariya - Advocate for the petitioner.
Shri Abhimanyu Singh - Advocate for respondent/Corporation.
Shri A.S. Baghel - Government Advocate for respondent/State.
............................................................................................................................................
ORDER

Since both these petitions are filed by same petitioner arising out
of the same issue, therefore they are heard analogously and are being
decided by this common order.

2. W.P. No.9715/2007 has been filed by petitioner assailing the

Signature Not Verified

Signed by: SHUBHANKAR

MISHRA

Signing time: 03-12-2024

18:45:11

NEUTRAL CITATION NO. 2024:MPHC-JBP:58767

2 W.P. No.9715/2007

& W.P. No.13741/2016

order dated 15/11/2006 passed by respondent No.1 whereby respondent
No.3 has been promoted to the post of Lecturer treating her to be senior
to the petitioner.

3. It is the case of petitioner that she was initially appointed on the
post of Upper Division Teacher in Pandit Motilal Nehru Higher
Secondary School, Sagar vide order dated 23.09.1983. The Recruitment
Rules relating to recruitment and promotion applicable to the
Government Teachers are adopted for the recruitment and promotion of
teachers in the schools run by the Municipal Corporation, Sagar. The
Municipal Corporation, Sagar is the local authority constituted under the

Madhya Pradesh Municipal Corporation Act, 1956
. The services of the
petitioners are government by Madhya Pradesh Non-Gazetted Class-III
Education Service (Non-Collegiate Branch) Recruitment and Promotion
Rules, 1973. In terms of the Rules, the post of Upper Division Teacher
is a class-III post and as per Schedule-III, Column-5, the required
qualification for the post of Upper Division Teacher was earlier second
division in Bachelor Degree which was subsequently amended on
16.06.1993 and the required qualification as per amendment is second
class in Bachelor Degree and B.Ed. For the post of Upper Division
Teacher. It is the case of the petitioner that he was appointed prior to the
amendment, therefore, she will be governed by the earlier rules.
Promotion to the post of Lecturer which is notified as Class-II post is
regulated by the Recruitment rules known as Madhya Pradesh Education
Service (School Branch) Recruitment & Promotion Rules, 1982. In
terms of Schedule-I, the Lecturer, Higher Secondary Schools are
classified as Class-II post. In terms of Schedule-IV, the Upper Division
Teacher on completion of five years of service will be promoted to the

Signature Not Verified

Signed by: SHUBHANKAR

MISHRA

Signing time: 03-12-2024

18:45:11

NEUTRAL CITATION NO. 2024:MPHC-JBP:58767

3 W.P. No.9715/2007

& W.P. No.13741/2016

post of Lecturer, Higher Secondary School. The basis of promotion
from Class-III to Class-II post shall be seniority-cum-suitability. Thus, it
is clear that for the post of Upper Division Teacher, the essential
qualification was second class Bachelor Degree prior to 16.06.1993 and
after amendment, necessary qualification was second class in Bachelor
Degree and B.Ed. Petitioner's initial appointment was made as daily
wage employee on the post of Upper Division Teacher by order dated
23.09.1983 and was continued on the said post until she was granted
regular pay-scale on the post of Upper Division Teacher vide order
dated 24.03.1984. Vide order dated 08.06.1987, petitioner's appointment
was approved by the Public Service Commission.

4. It is argued that as the petitioner's appointment was approved by
the Public Service Commission and as the appointment of the
respondent No.3 was not approved by the Public Service Commission,
therefore, respondent No.3 was not eligible to be appointed on the post
of Upper Division Teacher in the Corporation. Being aggrieved,
respondent No.3 preferred a petition being M.P. No.519/1986 which
was dismissed observing that she is third division in Higher Secondary
as well as third Division in Graduation, therefore, she was rightly not
appointed to the post of Upper Division Teacher. Therefore, she was not
eligible to hold the post of Upper Division Teacher. Her services ought
to have been counted from the date when the Public Service
Commission has affirmed her services on the post of Upper Division
Teacher.

5. It is argued that respondent No.3 has passed the Bachelor degree
in third division, therefore, she was not entitled to be given appointment
on the post of Upper Division Teacher coupled with the fact that

Signature Not Verified

Signed by: SHUBHANKAR

MISHRA

Signing time: 03-12-2024

18:45:11

NEUTRAL CITATION NO. 2024:MPHC-JBP:58767

4 W.P. No.9715/2007

& W.P. No.13741/2016

appointment of respondent No.3 is not approved by Public Service
Commission. The appointment of respondent No.3 was as a daily rated
on the post of Upper Division Teacher on 14/09/1983 for a period of 2
months. Thereafter, vide order dated 03/10/1985, she was given
appointment on the post of Upper Division Teacher on adhoc basis for a
period of six months in pay scale of Rs.740-1180/-. Therefore, it was
clear that she was not having eligibility to hold the post of Upper
Division Teacher. Gross irregularities have been committed by the
Authorities in posting the respondent No.3 as Upper Division Teacher.
Petitioner has been superseded, therefore, she has filed this petition.

6. It is further pointed out that respondent No.3 has filed Writ
Petition No.1199/1995 claiming salary of the post of Lecturer with
effect from 01/07/1992. The Division Bench of this Court vide order
dated 12/11/1986 has directed the respondents to make payment of
officiating allowance or salary as she was working on the post of
Lecturer from 01/07/1992 and it was further directed that if the
petitioner is eligible and qualified to be considered for promotion to the
said post subject to vacancy with respondents for the post of Lecturer,
she be considered for promotion by holding D.P.C. In pursuant to the
said order, the Authorities misinterpreted the direction given by the
Court and wrongly extended the benefit of promotion on the post of
Lecturer to respondent No.3 de hors the Rules.

7. The minutes of DPC dated 10/05/2006 are placed before the Court
pointing out the fact that against first vacancy of the post of Lecturer
(Political Science), name of respondent No.3 was recommended
whereas, against second vacancy, Mr. B.L. Khare is performing his
duties. Name of petitioner was kept in waiting list at S.No.1. Petitioner

Signature Not Verified

Signed by: SHUBHANKAR

MISHRA

Signing time: 03-12-2024

18:45:11

NEUTRAL CITATION NO. 2024:MPHC-JBP:58767

5 W.P. No.9715/2007

& W.P. No.13741/2016

has already been extended the benefit of Kramonnati scale on
completion of 12 years in terms of Rules by order dated 12/12/1997. It
is argued that as the petitioner is senior to respondent No.3, in all
fairness, the case of petitioner should have been considered by the
Authorities. Even Mr. B.L. Khare, who was working as Lecturer
(Economics) who was also directed to work as Lecturer (Political
Science) against the vacant post, has retired on attaining the age of
superannuation on 30/10/2006. Therefore post of Lecturer has fallen
vacant. The Authorities should have picked up the petitioner from
waiting list and should have extended the benefit. Therefore, this
petition has been filed seeking quashment of promotion of respondent
No.3.

8. On being noticed, a reply has been filed by respondent No.1
denying all the petition averments. It is pointed out that respondent No.3
was initially appointed on 14/09/1983 as Upper Division Teacher. Vide
order dated 05/02/1987, she was appointed as Upper Division Teacher
in the pay scale of Rs.575-880/-. Instead of confirming her appointment
on the post of Upper Division Teacher, she was subsequently appointed
as Upper Division Teacher subject to approval of Public Service
Commission. Respondent No.3 assailed the orders by filing M.P.
No.4863/1989 which was finally decided on 26/07/1991 and the
Division Bench of this Court was pleaded to quash the order dated
04/08/1987 directing the Authorities i.e. Corporation to treat the
respondent No.3 (petitioner therein) duly appointed on the post of
Teacher from the date of her initial appointment and to pay her all the
remaining benefits. The said order has attained finality as was never
challenged before any Forum. The said order is not brought to the

Signature Not Verified

Signed by: SHUBHANKAR

MISHRA

Signing time: 03-12-2024

18:45:11

NEUTRAL CITATION NO. 2024:MPHC-JBP:58767

6 W.P. No.9715/2007

& W.P. No.13741/2016

knowledge of this Court by filing this petition. In view of the order
passed by Division Bench of this Court, respondent No.3 was treated as
UDT from the date of initial appointment. The Corporation has accepted
the appointment of respondent No.3 on the post of UDT from the date of
her initial appointment. Accordingly, the seniority list was prepared and
respondent No.3 was placed above petitioner in the seniority list. The
order dated 12/11/1986 was prior to order dated 05/02/1987, therefore,
the Authorities have followed the order passed by Division Bench.
Again W.P. No.119/1995 was filed by respondent No.3 which was
decided on 22/11/2005 directing the Authorities to consider her case for
promotion to the post of Lecturer if she is found eligible and qualified to
be considered for promotion to the said post subject to vacancy by
holding DPC. In pursuance of the order, DPC has been constituted on
10/05/2006 and respondent No.3 was found eligible on the basis of
seniority/ suitability and her name was recommended for the post of
Lecturer. Name of petitioner was also taken into consideration by DPC
and after according approval from the State Government, promotion of
respondent No.3 was ordered. Therefore, the entire procedure has been
followed by the Authorities and in compliance of judgment passed by
Division Bench of this Court, respondent No.3 was found suitable for
grant of promotion in the DPC constituted on 10/05/2006. There is no
challenge by the petitioner to the seniority list prepared by the
Authorities in pursuance to the direction given by Division Bench of
this Court wherein the Authorities were directed to treat respondent
No.3 as a Teacher from her initial date of appointment, therefore prayed
for dismissal of Writ Petition.

9. Respondent No.3 has filed her separate reply denying the petition

Signature Not Verified

Signed by: SHUBHANKAR

MISHRA

Signing time: 03-12-2024

18:45:11

NEUTRAL CITATION NO. 2024:MPHC-JBP:58767

7 W.P. No.9715/2007

& W.P. No.13741/2016

averments and virtually reiterating the contentions made by respondent
No.1. Apart from aforesaid, it is further contended that she is having
qualification of M.A. in Political Science (Second Division), B.Ed. and
MMA in Philosophy (Second Division) whereas, petitioner is having
M.A. in Police Science (Third Division) and B.Ed. Hence, respondent
No.3 is having higher qualification than the petitioner. There is no
dispute with respect to initial appointment of respondent No.3 on
05/02/1987. In stead of confirming her appointment, the Authorities
have again appointed her as Upper Division Teacher, therefore she was
forced to file petition before the Court and Division Bench of this Court
has quashed the order dated 04/08/1987 directing the Corporation to
treat the petitioner therein i.e. respondent No.3 as duly appointed to the
post of Teacher from the date of her initial appointment and to pay her
all monetary benefits arising therefrom. Thereafter the entire exercise
has been taken by the Authorities in pursuant to the order passed by
Division Bench of this Court. There is no illegality in granting
promotion to respondent No.3 treating her senior to the petitioner.

10. Rejoinder has been filed by petitioner denying the contentions in
the return further contending therein that even if respondent No.3 is
given seniority with effect from the date of adhoc appointment i.e. from
the date of her appointment as Upper Division Teacher, she will be
junior to the petitioner. Therefore, the consideration by the Authorities
in granting promotion to respondent No.3 is per se illegal.

11. Heard learned counsel for the parties and perused the record.

12. Apart from the admitted position regarding appointment of
petitioner as well as respondent No.3, record indicates that respondent
No.3 filed M.P. No.4863/1989 challenging the order dated 04/08/1987

Signature Not Verified

Signed by: SHUBHANKAR

MISHRA

Signing time: 03-12-2024

18:45:11

NEUTRAL CITATION NO. 2024:MPHC-JBP:58767

8 W.P. No.9715/2007

& W.P. No.13741/2016

issued by the respondents whereby she was appointed as Upper Division
Teacher on adhoc basis. The said M.P. was finally decided by Division
Bench of this Court on 26/07/1991 holding as under:-

"4. Learned counsel appearing for the Municipal
Corporation made a feeble attempt to support the
case of the Corp. stating that the petitioner did not
possess the requisite qualification for the post.
Having considered the submissions made by the
counsel for the parties we are of the opinion that
the petition deserves to succeed. We find
substance in the contention of the petitioner that
having possessed second division in B.Ed. she was
qualified for the post. We are also of the opinion
that even if there was any such qualification
prescribed in the rules applicable to Govt. teachers,
which were adopted by the Municipal Corporation,
the Corporation having continued her for such a
long period to work on the post of teacher, the
qualifications prescribed if any, were impliedly
relaxed in her case. The petitioner is entitled to be
regularised on the post of Upper Division Teacher
on the basis of her long continuance on the post.
The respondent/ Corporation could not dispute the
fact that even after her appointment as Upper
Division Clerk she was discharging the duties of a
teacher in the school.

5. Consequently, the petition is allowed. The
impugned orders issued by the Municipal
Corporation dated 5/2/1987 (Annexure-H) and
dated 4/8/1987 (Annexure-K) are hereby quashed.
It is directed that the Corporation shall treat the
petitioner as duly appointed to the post of teacher
with effect from her initial appointment in the
Corporation and pay her all monetary benefits
arising therefrom. The petitioner shall also get
costs of this petition. Counsel fee Rs.500/-, if
certified."

13. In pursuance to the order passed by Division Bench of this Court,

Signature Not Verified

Signed by: SHUBHANKAR

MISHRA

Signing time: 03-12-2024

18:45:11

NEUTRAL CITATION NO. 2024:MPHC-JBP:58767

9 W.P. No.9715/2007

& W.P. No.13741/2016

an order was passed by the Commissioner on 01/08/1991 treating her
appointment to be justified and considered her appointment from the
initial date of appointment i.e. 14/09/1983. The said order has never
been challenged by the respondents or by the petitioner at any point of
time and the same has attained finality. Thereafter, Authorities have
prepared the seniority list and finding the respondent No.3 to be the
senior, she was placed over and above the petitioner. The DPC was
constituted and the name of respondent No.3 finds place at S.No.1 in the
seniority list and petitioner's name finds place at S.No.3 under the
category of UDT. The said list has never been challenged by the
petitioner. Thereafter, again a Writ Petition has been filed being W.P.
No.1199/1995 by respondent No.3 against non-payment of salary of the
post of Lecturer with effect from 01/07/1992 which was decided on
22/11/2005 with the following directions:-

"On careful consideration of the submissions and
the pleadings made by the petitioner, I am of the
view that it is a fit case which requires directions to
be given to the respondent to consider the claim of
the petitioner for payment of salary or officiating
allowance to her for the post of lecturer as she is
working in the aforesaid post with effect from 1.7.92.
In the present case no return has been filed by the
respondent and therefore there is no denial before
this court about the fact that the petitioner is not
working on the post of Lecturer with effect from
1.7.92. The counsel for the petitioner had not been
able to point out any order of promotion by which the
petitioner was appointed to the post of Lecturer but
had demonstrated from the time table for the various
years which are annexures P-2 and P-3 and on that
basis it is clear that the petitioner had been working
on the post of Lecturer.

Signature Not Verified

Signed by: SHUBHANKAR

MISHRA

Signing time: 03-12-2024

18:45:11

NEUTRAL CITATION NO. 2024:MPHC-JBP:58767

10 W.P. No.9715/2007

& W.P. No.13741/2016

In view of the aforesaid, the respondents are
directed to consider the grant of officiating allowance
or salaries to the petitioner as she is working on the
post of Lecturer from 1.7.92 and further to consider
her promotion to the post of Lecturer if the petitioner
is eligible and qualified to be considered for
promotion to the said post subject to the vacancy
with respondent for the post of lecturer by holding a
DPC. The same may be done within a period of 3
months from the date of producing certified copy of
this order to the respondents.

The petition is disposed of with no order as to
costs."

14. While disposing of the Writ Petition, apart from granting benefit
of salary/ officiating allowance of the post of Lecturer, further direction
was issued to consider her case for promotion by holding a DPC. The
aforesaid facts are not controverted by the petitioner. Record indicates
that petitioner's initial appointment to the post of Upper Division
Teacher was on 23/09/1983 and the initial appointment of respondent
No.3 was on 14/09/1983 i.e. admittedly prior to that of petitioner. The
respondent/Corporation has complied with the direction issued by
Division Bench of this Court in M.P. No.4863/1989 which is admittedly
subsequent to the order dated 12/11/1986 passed by Division Bench of
this Court in M.P. No.519/1986. The said petition was regarding her
appointment to the post in question, wherein observations were made
that petitioner is 3rd Class Graduate and 3rd Division in Higher
Secondary School Examination. Therefore, no relief was granted to her.
The fact remains that documents which are being filed along with return
of respondent No.3 shows that respondent No.3 is M.A. in Political
Science (Second Division). Thus, the aforesaid averment in that order is
factually incorrect. Apart from aforesaid, Division Bench has already

Signature Not Verified

Signed by: SHUBHANKAR

MISHRA

Signing time: 03-12-2024

18:45:11

NEUTRAL CITATION NO. 2024:MPHC-JBP:58767

11 W.P. No.9715/2007

& W.P. No.13741/2016

passed the subsequent order dated 26/07/1991 in M.P. No.4863/1989,
quashing the order dated 04/08/1987 issued by the Authorities
considering the petitioner as officiating UDT.

15. In absence of any challenge to the seniority list coupled with the
fact that entire exercise was done by the Corporation in pursuant to the
direction given by Division bench, no case for interference is made out
in this petition. Thus, no relief can be extended to the petitioner.

16. The petition sans merit and is accordingly dismissed. No order as
to costs.

W.P. No.13741/2016

17. In W.P. No.13741/2016, petitioner has prayed for following
relief(s):-

(i) Hon'ble Court may kindly be pleased to direct
the respondents to consider the case of the
petitioner for promotion to the post of Lecturer
Political Science in the same D.P.C. scheduled
to be held pursuant to the decision of Mayor-in-

Council dated 30.06.2016 and if she is found
suitable, the order of promotion may kindly be
directed to be issued giving her promotion to the
post of Lecturer Political Science alongwith all
consequential benefits, or alternatively, they
may be directed not to consider the case of
promotion of Smt. Kamlesh Choubey to the post
of Principal in the D.P.C. till the final disposal
of W.P. No.9715/2007(S).

(ii) Any other writ, order or direction, which this
Hon'ble Court deems fit and proper in the facts
and circumstances of the case, may also kindly
be passed, in the interest of justice.

18. The entire case of the petitioner is based upon challenge to the
appointment of Smt. Kamlesh Choubey as well as her seniority.

Signature Not Verified

Signed by: SHUBHANKAR

MISHRA

Signing time: 03-12-2024

18:45:11

NEUTRAL CITATION NO. 2024:MPHC-JBP:58767

12 W.P. No.9715/2007

& W.P. No.13741/2016

19. The fact remains that this Court in connected Writ Petition
No.9715/2007 has considered the aspect and has dismissed the Writ
Petition filed by the petitioner holding that the entire exercise done by
the Corporation was in view of the judgment passed by Division Bench
of this Court. Therefore, no benefit could have been extended to the
petitioner.

20. Once the respondent No.4 - Smt. Kamlesh Choubey is found to
be senior to the petitioner and her name was placed over and above the
petitioner in seniority list which has never been put to challenge, no
ground for consideration of name of petitioner over and above
respondent No.4 is made out. The appointment of petitioner on the post
of Upper Division Teacher has been upheld by Division Bench of this
Court in earlier round of litigation as well as the fact that she has been
placed over and above the petitioner, direction to the respondents to
consider the name of petitioner in the promotion drive could not have
been done specifically in the circumstances when admittedly respondent
No.4's name finds place over and above the petitioner in the seniority
list.

21. Therefore, non-consideration of petitioner's name by DPC does
not call for any interference in the present petition.

22. The petition sans merit and is accordingly dismissed. No order as
to costs.

(VISHAL MISHRA)
JUDGE
Shbhnkr

Signature Not Verified

Signed by: SHUBHANKAR

MISHRA

Signing time: 03-12-2024

18:45:11