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2012 Supreme(MP) 927
MADHYA PRADESH HIGH COURT AT JABALBUR BENCH
Alok Aradhe, J.
Ashok Mishra - Appellant
Versus
State of M.P.Ors. - Respondent
W.P. No. 4525-2011
Decided On : 31-07-2012
For petitioner Mr. VS. Shroti, Senior Advocate , Mr. Vikram Johri, Advocate
For respondents No. 1 , 2 Mr. Sanjay Dwivedi, Govt. Advocate
For respondents No. 3 Mr. P.K. Kaurav, Advocate
In the absence of statutory rules, the appointing authority can make appointments in exercise of its executive powers, and appointments made in compliance with rules in place at the time are considered legal and valid.
Headnote:
Absorption - Service Conditions - M.P. Civil Services (General Conditions of Service) Rules, 1961 - M.P. Vyavsayik Pariksha Mandal Adhiniyam, 2007 - Professional Examination Board (Service and Recruitment) Rules, 1996 - Professional Examination Board (Service Recruitment) Rules, 1999
Fact of the Case:
The petitioner seeks quashment of orders cancelling his absorption and promotions in the Water Resources Department and the subsequent relief directing him to join his parent department. The petitioner was initially employed as Steno grade - II in the Water Resources Department and was later absorbed in the M.P. Professional Examination Board. Subsequently, he was promoted to the posts of Deputy Controller and Joint Controller.
Finding of the Court:
The court found that the orders of absorption and promotions were legal and valid as they were made before the existence of statutory rules governing service conditions. The court also noted that the petitioner's services were duly absorbed with approvals from relevant departments and that the promotions were made in compliance with the rules in place at the time.
Issues: The main issue was whether the orders of absorption and promotions were legal and valid, and whether the petitioner should be permitted to join his duty and receive consequential benefits.
Ratio Decidendi: The court held that in the absence of statutory rules, the appointing authority can make appointments in exercise of its executive powers. It also emphasized that the petitioner's absorption and promotions were in compliance with the rules in place at the time, and that the petitioner had acquired quasi-permanent status, preventing reversion without compliance with constitutional provisions.
Final Decision: The court quashed the orders cancelling the petitioner's absorption and promotions, directing the respondent to permit the petitioner to join his duty forthwith and award him all consequential benefits.
In this petition, the petitioner inter alia seeks quashment of the order dated 29.1.2011 (Annexure P-1) as well as the order dated 5.3.2011 (Annexure P-2) by which the order of absorption of the petitioner dated 14.2.1996 and his promotions on the post of Deputy Controller and Joint Controller vide orders dated 31.7.1997, 17.9.199and 15.9.2005 .respectively have been cancelled and the petitioner has been relieved w.e.f. 8.3.2011 directing him to join his parent department. In order to appreciate the petitioner's challenge to the impugned orders, few facts need mention which are stated infra.
2. The petitioner was employed as Steno grade - II in the pay-scale of Rs. 1640-290in the Water Resources Department. The petitioner submitted an application on 10.12.199for his deputation of M.P. Professional Examination Board (in short 'the Board'). The Board decided to take the services of the petitioner on deputation. Accordingly, by communication dated 28.12.199the Engineer-in-Chief of water Resources Department was apprised that Board has taken a decision to take the services of the petitioner on deputation on the post of personal assistant. Accordingly, a request was made to relieve the petitioner. In view of the communication sent by the Board, the Engineer-in-chief vide order dated 2.1.1991 lent the services of the petitioner on deputation to the Board for a period of two years. The petitioner was relieved on 2.1.1991 and joined the services of the Board on 2.1. 1991 itself.
3. A meeting of the Board was held on 24.10.1994 to review the set up of the posts in the Board. A decision was taken to upgrade the post of personal assistant to the post of Assistant secretary and accordingly the pay-scale in respect of the aforesaid post was upgraded from pay-scale of Rs. 1640-290to Rs. 2200-4000/-. In pursuance of the decision taken by the Board an order dated 19.12.1994 was passed with regard to upgradation of the aforesaid post. Thereafter the Board in its meeting dated 3.5.1995 considered the cases of all the eligible persons for selection on the post of Assistant Secretary. By taking into account the performance of the petitioner on the post of personal assistant, the petitioner was selected for the post of Assistant Secretary. The matter relating to absorption of services of the petitioner on the post of Assistant Secretary was referred to the Minister, Water Resources Department as well as the General Administration Department of the Government of M.P. and Finance Department. Thereafter vide order dated 14.02.1996 the services of the petitioner were absorbed in the Board in the pay-scale of Rs. 2200-4000/-.
4. In view of the paucity of employees, the Board in its meeting held on 4.3.1997 decided to relax the requirement of minimum qualifying service of five years for consideration for the post of Deputy Controller as one time measure. Thereafter the cases of all eligible candidates were considered for promotion to the post of Deputy Controller. The petitioner along with one M. M. Kureshi, was promoted on ad hoc basis on probation for a period of two years, on the post of Deputy Controller vide order dated 31.7.1997. Thereafter, the meeting of the departmental promotion committee was held and in view of the recommendation of the departmental promotion committee the petitioner was promoted to the post of Deputy controller on regular basis vide order dated 17.9.1999.
5. In pursuance of the recommendation of the meeting of the departmental promotion committee on 26.8.2003 the petitioner was promoted to the post of Joint Controller vide order dated 15.9.2005. The petitioner thereafter was served with a show-cause notice dated 29.1.2011 by which petitioner was asked to show cause as to why his order of absorption as well as the orders of promotions be not cancelled as the same are in violation of the Rules. The petitioner submitted reply to the aforesaid show-cause notice. However, vide order dated 5.3.2011 (Annexure P-2) the order o
