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High Court Of Madhya Pradesh
V. D. Gyani, J.
MADANKUMAR GAUTAM UJJAIN
Versus
STATE OF MADHYA PRADESH
Decided On : Apr 17,1985
(2) State Civil Services (Executive) Classification, Recruitment and Conditions of Service Rules, 1975 (M.P.)-Rr. 6 (1), 6 (4)-method of appointment -ad hoc appointments-position of-Constitution of India- Arts. 14 & 16.
This petition high-lights a prevelent trend in administrative hierarchy of making ad hoc appointments and promotions, thereby causing clamour and rencor amongst employees, who fed wronged by such ad hoc appointments and promotions and also feel deprived of their legitimate right of being promoted, more often than not the spirit of Articles 14 and 16 of the Constitution of India is marauded in the name of ad hoc appointments. If the spirit of Articles 14 and 16 of the Constitution is to have its say and play and a meaningful purpose in matters of public employment, the sooner the respondent State realises that ad hoc promotions have also got to be regulated by certain well-settled norms and principles uniformally applied without any discrimination and not as largesse conferred on the chosen few, better it is for the State as well as the employess. [Para 1]
Even in matters of ad hoc promotions, the respondent State cannot be permitted to follow the policy of pick and choose. An employee has a right to ask for consideration of his claim for promotion along with others, who are similarly situated even though it may be a case of temporary promotion on ad hoc basis. The right of consideration of an employee cannot be denied on the ground that the promotions proposed to be made are on an ad hoc basis [Para 7]
Even in circumstances enumerated in sub-rule (4), the State Government is permitted to adopt such methods of recruitment other than those specified in sub-rule (1), but what is essential is that such methods are required to be prescribed by an order made by the Government. [Para 7]
It is to be noted that the non-abstante clause used in this rule 'no such appointment shall be made except in accordance with the provisions of rule 6', prominently brings out the intention of the Rule-makers That appointments have as of necessity required to be made in accordance with rule 6. In the scheme of rules there is no place for ad hoc appointments, except as indicated by sub-rule (4) of rule 6 and on interpretation of this rule, it cannot by any stretch of law or logic be said that the rules framed permit ad hoc appointments for the period extending over almost five years. [Para 7]
Ad hoc appointments are meant only for a temporary period and are mostly made to meet the immediate needs of exigencies of service. [Para 8]
It is also pertinent to note here that in the return filed as back as in September, 1981, it is averred in reply to paragraphs 10, 11, 12 and 13 of the petition that the D. P. C. has shortly been convened and will consider the cases of promotion, including that of the petitioner. But almost 3 1/2 years thereafter the learned counsel appearing for the respondent-State was not in a position to make any categorical statement whether during all this period at any point of time there was any move to hold the D. P. C. meeting and whether in fact the petitioner's case was even proposed to be considered. In such circumstances the respondents' action of making ad hoc promotions in such a large number and postponing the petitioner's right of consideration for such promotion, for years thereafter-almost for five years, cannot be held to be justifiable. Such action deserves to be condemned The fact that ad hoc promotions have continued for over five years, belies the respondent State's version that it was in order to fulfil the urgent demand of Deputy Collectors for work in connection with scarcity and Other like matters in the Government that such promtoions ware made. [Para 9]
(3) Government Servants - G. D. A. Circular No. 372 of 8-9-1977- adverse entries in character rolls-the circular should be strictly followed-devastative results of delay-extraordinary delay should not jeopardise the interests of a Government servant.
The adverse entries in the character-roll of a Government servant, which are ought to be made with all seriousness and representations submitted against them are to be attended with promptness. The directions issued in this behalf are to be rigidly followed. The General Administrative Department as back as in 1977 by its Circular No. D/372-1037/1/577 dated 8-9-1977 provided for a scheme of timing, which enjoins upon the authority concerned to dispose of the representations within three months from the date of receipt thereof. [Para 2]
Ten years have rolled by but the petitioner's representation against the adverse entry for the year ending 1974 could not be disposed of. The grave injustice, which is at times caused by such adverse entries can and should not be overlooked. The persent petition is an example of the ad-hocism prevailing in the administrative hierarchy as also the ruinous delay caused in disposing of the representations which not merely mars the efficiency of the officers concerned but also adversely affect their moral. [Para 2]
It has been rapeatedly stressed upon the authorities to dispose of such representations within the time prescribed, which according to the aforesaid G.D.A. memo is three months, if it could not be done after a period of ten years, the petitioner is not to be blamed or punished for such adverse entry. The adverse remarks, made in the petitioner's character roll, in such circumstances, deserves to be quashed and are accordingly quashed. [Para 10]
(4) State Civil Services (Executive) Classification, Recruitment and Conditions of Service Rules, 1975 (M.P.)-Rr. 14 & 15-Gradation list-importance of-ad hoc appointments-position of-Constitution of India-Art. 309.
Sub-rule (2) of rule 15 prescribes that the names shall be considered in the order in which they appear in the Gradation list. Thus, the Gradation list cannot be ignored. But the ad hoc promotions made in such a large number by the respondents being contrary to the rules, are liable to be quashed. It was imperative for the State Government to have got the suitability of the petitioner either examined by the D. P. C. or considered his claims for being promoted even on ad hoc basis while such a large number of respondents were promoted on ad hoc basis. Now, the equality clauses of the Constitution make it imperative that equality of treatment must be given to eligible candidates in the matter of promotions, since promotion has been held to be a condition of service within the meaning of Article 309 of the Constitution. [Para 7]
(5) Government Servants-promotion-is not a right-but principles of equality should be followed-Constitution of India--Arts. 14 &16.
Although promotion cannot be claimed as a matter of light but at the same time the principle of equality enshrined in Articles 14 and 16 of the Constitution dictate that where occasion arises for considering the competing claims of promotion of mare Government servants than one, each one of them is entitled to his case being considered and the power to keep such consideration in abeyance or to postpone the actual grant of promotion, which might otherwise be available to a person, is nothing but a denial of the principle of equality enshrined in Articles 14 and 16 of the Constitution of India. AIR 1981 SC 1543 relied on. [Para 7]
(6) Constitution of India-Art. 226 -petition for issuance of a writ of certiorari-the State should produce record to justify its action-such record not produced even after the direction of the Court- it is not merely a sorry state of affairs but a condemnable state of affairs as well--in the absence of the records extracts of meetings cannot be acted upon-course open to the High Court.
Even otherwise, reasons are required to be assigned for holding a particular candidate as not fit for promotion. No reasons as such are assigned about the comparative merit of demerit of the petitioner vis-a-vis others selected and it was for this reason that the record was called for. No doubt, the Court cannot substitute its own judgment in the matter of selection, but at the same time when challenged, as in the instant case, the Court can at least look into the record so as to satisfy itself whether norms and guidelines set out for promotions were uniformly applied to and whether the objective assessment, based on service records, was made. [Para 11]
( 1. ) THIS Petition highlights a prevalent trend in administrative hierarchy of making ad hoc appointments and promotions, thereby causing clamour and rancour amongst employees, who feel wronged by such ad hoc appointments and promotions and also feel deprived of their legitimate rights of being promoted, more after than not the spirit of Arts. 14 and 16 of the Constitution of India is marauded in the name of ad hoc appointments. If the spirit of Arts. 14 and 16 of the Constitution is to have its say and play and a meaningful purpose in matters of public employment, the sooner the respondent State realises that ad hoc promotions have also got to be regulated by certain well-settled norms and principles uniformally applied without any discrimination and not as largesse conferred on the chosen few, better it is for the State as well as the employees.
( 2. ) THE other aspect which arrests attention is the adverse entries made in the character roll of a Government servant, which ought to be made with all seriousness and representations submitted against them are attended with promptness. The directions issued in this behalf are to be rigidly followed. The General Administrative Department as back as in 1977 by its Circular No. D/372-1037/1/377 dated 8-9-1977 provided for a scheme of timings, which enjoins upon the authority concerned to dispose of the representations within three months from the date of receipt thereof. In the instant case the petitioner having submitted his representation on 19-8-1974 against an adverse entry for the year ending 31st March, 1974, which was communicated to the petitioner, the representation which as per instructions should have been disposed of within three months, i. e. by 19th November, 1974, in spite of repeated reminders, could not be disposed of by the authorities and the height of the crude absurdity is reached when the respondents in their return dated 4-9-1981 stated that the petitioner would be informed of the decision on the representation shortly. It is a travesty that the period indicated as shortly has not yet completed in spite of a lapse of almost 31/2 years. It is this adverse entry, which has resulted in deprivation and denial of the petitioners claim to be promoted. The role these adverse entries play and the devastating effect on the service career is prominently pronounced by the return itself. Where such entries are taken into consideration, it is imperative need that the administrative circulars are not merely issued but are also followed in the administration. Ten years have rolled by but the petitioners representation against the adverse entry for the year ending 1974 could not be disposed of. The grave injustice, which is at times caused by such adverse entries can and should not be overlooked. The present petition is an example of the ad hocism prevailing in the administrative hierarchy as also the ruinous delay caused in disposing of the representations which not merely mars the efficiency of the officers concerned but also adversely affect their morale.
( 3. ) BY this petition under Arts. 226 and 227 of the Constitution of India, the petitioner, who is at present a Tahsildar, seeks promotion to the post of Deputy collector and fixation of his seniority in that cadre and also challenges certain orders being Annexures C, E, F, O, B, P, R, S, T, T-1 and T-2.
( 4. ) THE respondents do not dispute that the petitioner joined services as Naib-Tahsildar on 5-4-1956, on being selected by the Madhya Pradesh Public Service commission, Nagpur, and comes from Mahakoshal region. He was promoted as tahsildar on 5-12-1967 and joined duties as such on 23-12-1967. He was confirmed as tahsildar on 9-12-1970, vide order dated 29-12-1970. In the Gradation-List of Officiating tahsildars, as it stood on 1-4-1973, the petitioners name stands at serial No. 198. Except for respondent No. 23- K. B. Adhwaru, respondents 2 to 22,34 to 56, 60 to 68,71 to 75 and 77 to 90 were all Tahsildars J
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