Mehfooz Ahmad vs High Court Of Madhya Pradesh

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2024 Supreme(MP) 373

IN THE HIGH COURT OF MADHYA PRADESH
Ravi Malimath, CJ, and Vishal Mishra, J.
Mehfooz Ahmad v. High Court Of Madhya Pradesh
& Another
Writ Petition No. 28381 of 2018 (Jabalpur);
Decided on 24.5.2024

Advocates:
Rakesh Dwivedi for petitioner; Ashish Shroti for respondent
No. 1; Naman Nagrath with Greeshm Jain for respondent No. 2.

Headnote:
(1) High Court of Madhya Pradesh Officers and Employees Recruitment and Conditions of Service (Classification, Control, Appeal & Conduct) Rules, 1996 -- Rr. 4, 6, 8 (xviii) and 9 -- appointment to post of stenographer -- respondent No. 2 only High Secondary pass -- does not have shorthand certificate -- recommendation for post of stenographer approved by Hon’ble Chief Justice but no note-sheet to show that Hon’ble Chief Justice relaxed qualifications of respondent No.2 -- subsequently obtained certificate showing that he has passed English shorthand examination -- held -- he was not having certificate initially when appointment was made -- he could not have been considered for post of stenographer without certificate of English shorthand examination -- initial appointment per se illegal -- set aside -- he has to be reverted to any other post for which he has qualification -- such post has to be below post of stenographer. [Paras 20, 24 & 38]
(2) Constitution of India -- Arts. 226 and 229 -- scope of power -- judicial review of orders passed by Hon’ble Chief Justice in exercise of extraordinary power -- Hon’ble Chief Justice, in pursuance to Art. 229, can appoint a candidate on any post for proper administration of High Court -- such appointment cannot be questioned by Government -- however, administrative powers of Hon’ble Chief Justice can always be reviewed in judicial proceedings. (1997) 7 SCC 463, (1987) 4 SCC 611 and C. W. No. 2944 of 1995 decided on 1.3.2001 followed. [Para 23]
(3) High Court of Madhya Pradesh Officers and Employees Recruitment and Conditions of Service (Classification, Control, Appeal & Conduct) Rules, 1996 -- Rr. 4, 6, 8 (xviii) and 9 -- promotion from post of Private Secretary to post of Assistant Registrar -- at time of initial appointment to post of stenographer, respondent No. 2 did not have minimum qualification -- he could not have been considered for subsequent promotions -- petitioner was senior to respondent No. 2 -- has requisite qualification -- even otherwise, ACRs of petitioner, which were taken note of in DPC, were never communicated to him -- uncommunicated ACRs cannot be taken into consideration by DPC -- declaration by DPC that petitioner is not fit for promotion per se illegal -- quashed -- DPC directed to reconsider case of petitioner for promotion to post of Assistant Registrar from the date when promotion to respondent No. 2 was granted. (2006) 4 SCC 1, (2022) 7 SCC 482, (2008) 8 SCC 725, (2013) 9 SCC 566, = (1998) 6 SCC 165 and Civil Appeal No. 5582 of 2021 decided on 21.9.2021 followed. 1964 SCC OnLine MP 47 relied on. [Paras 25, 29, 30, 36 & 37]
(4) Civil Services -- appointment -- is to be made strictly in accordance with recruitment rules in force -- irregular or illegal appointments can never be a ground to claim permanent absorption or regularisation. (2006) 4 SCC 1 followed. [Para 25]
(5) Interpretation of Statute -- interpretation of rules cannot be extended to violate principles of Constitution -- every statute and rule must be read along with Constitutional principles to reach its goal. [Para 26]
(6) Practice -- exercise of power or discretionary power by authority -- must be in accordance with Constitution. [Para 26]
¼1½ mPp U;k;ky; e/; çns'k vf/kdkjh ,oa deZpkjh HkrhZ vkSj lsok dh 'krsZ ¼oxhZdj.k] fu;a=.k] vihy rFkk vkpj.k½ fu;e] 1996 & fu- 4- 6] 8 ¼vB~Bkjg½ rFkk 9 & vk'kqfyfid ds in ij fu;qfä & çR;FkhZ Øekad 2 dsoy mPprj ek/;fed mÙkh.kZ & mlds ikl vk'kqfyfi çek.ki= ugha & vk'kqfyfid ds in ds fy, flQkfj'k ekuuh; eq[; U;k;k/kh'k }kjk vuqeksfnr ijarq ;g n'kkZus ds fy, dksbZ fVIi.kh i=d ugha fd ekuuh; eq[; U;k;k/kh'k us çR;FkhZ Øekad 2 dh vgZrkvksa dks f'kfFky fd;k & ckn esa ;g n'kkZus dk çek.ki= vfHkçkIr fd;k fd mlus vaxzsth vk'kqfyfi ijh{kk mÙkh.kZ dj yh gS & vfHkfu/kkZfjr & vkjaHk esa tc fu;qfä dh xbZ rc mlds ikl çek.ki= ugha Fkk & vaxzsth vk'kqfyfi ijh{kk ds çek.ki= ds fcuk vk'kqfyfid ds in ds fy, ml ij fopkj ugha fd;k tk ldrk Fkk & vkjafHkd fu;qfä vius&vki esa voS/k & vikLr & mls ,sls fdlh vU; in ij çfrofrZr djuk gksxk ftldh mls vgZrk gS & og in vk'kqfyfid ds in ls fuEurj gksuk gksxkA ¼iSjk 20] 24 ,oa 38½
¼2½ Hkkjr dk lafo/kku & vuqPNsn 226 rFkk 229 & 'kfä dh O;kfIr & ekuuh; eq[; U;k;k/kh'k }kjk vlk/kkj.k 'kfä ds ç;ksx esa ikfjr vkns'kksa dk U;kf;d iqufoZyksdu -- ekuuh; eq[; U;k;k/kh'k vuqPNsn 229 ds vuqlj.k esa- mPp U;k;ky; ds mfpr ç'kklu ds fy, fdlh Hkh in ij vH;FkhZ dh fu;qfä dj ldrs gSa & ,slh fu;qfä ljdkj }kjk ç'uxr ugha dh tk ldrh & rFkkfi] ekuuh; eq[; U;k;kèkh'k dh ç'kklfud 'kfä;ksa dk iqufoZyksdu U;kf;d dk;Zokgh esa lnSo fd;k tk ldrk gSA ¼1997½ 7 ,llhlh 463] ¼1987½ 4 ,llhlh 611 rFkk lhŒMCY;wŒ Øekad 2944 lu~ 1995 fu.khZr fnukad 1-3-2001 vuqlfjrA ¼iSjk 23½
¼3½ mPp U;k;ky; e/; çns'k vf/kdkjh ,oa deZpkjh HkrhZ vkSj lsok dh 'krsZ ¼oxhZdj.k] fu;a=.k] vihy rFkk vkpj.k½ fu;e] 1996 & fu- 4] 6] 8 ¼vB~Bkjg½ rFkk 9 & futh lgk;d ds in ls lgk;d jftLVªkj ds in ij çksUufr & vk'kqfyfid ds in ij vkjafHkd fu;qfä ds le; çR;FkhZ Øekad 2 ds ikl U;wure vgZrk ugha Fkh & ijorhZ çksUufr;ksa ds fy, ml ij fopkj ugha fd;k tk ldrk Fkk & ;kph çR;FkhZ Øekad 2 ls T;s"B Fkk & visf{kr vgZrk gS & vU;Fkk Hkh] ;kph ds ftu okf"kZd xksiuh; çfrosnuksa ij foHkkxh; çksUufr lfefr }kjk fopkj fd;k x;k og mls dHkh lalwfpr ugha fd, x, & foHkkxh; çksUufr lfefr }kjk vlalwfpr okf"kZd xksiuh; çfrosnuksa ij fopkj ugha fd;k tk ldrk & foHkkxh; çksUufr lfefr }kjk ;g ?kks"k.kk fd ;kph çksUufr ds fy, mi;qä ugha] vius&vki esa voS/k & vfHk[kafMr & ftl fnukad dks çR;FkhZ Øekad 2 dks çksUufr nh xbZ ml fnukad ls lgk;d jftLVªkj ds in ij çksUufr ds fy, ;kph ds ekeys ij iqufoZpkj djus dk foHkkxh; çksUufr lfefr dks funs'kA ¼2006½ 4 ,llhlh 1] ¼2022½ 7 ,llhlh 482] ¼2008½ 8 ,llhlh 725] ¼2013½ 9 ,llhlh 566 ¾ ¼1998½ 6 ,llhlh 165 rFkk flfoy vihy Øekad 5582 lu~ 2021 fu.khZr fnukad 21-9-2021 vuqlfjrA 1964 ,llhlh v‚uykbu ,eih 47 voyafcrA ¼iSjk 25] 29] 30] 36 ,oa 37½
¼4½ flfoy lsok & fu;qfä & vfrfu;efu"Br% ço`Ùk HkrhZ fu;eksa ds vuqlkj dh tkuk gksrh gS & vfu;fer ;k voS/k fu;qfä;‚a dHkh Hkh LFkk;h vkesyu ;k fu;fefrdj.k ds nkos dk vk/kkj ugha gks ldrhaA ¼2006½ 4 ,llhlh 1 vuqlfjrA ¼iSjk 25½
¼5½ fof/k dk fuoZpu & fu;eksa ds fuopZu dks lafo/kku ds fl)karksa ds vfrØe.k rd foLrkj ugha fn;k tk ldrk & çR;sd dkuwu vkSj fu;e dks mlds y{; rd igq¡pkus ds fy, mUgsa lkafo/kkfud fl)karksa ds lkFk iढ+k tkuk vko';d gSA ¼iSjk 26½
¼6½ çFkk & çkf/kdkjh }kjk 'kfä ;k oSosfdd 'kfä dk ç;ksx & lafo/kku ds vuqlkj gksuk vko';d gSA ¼iSjk 26½

ORDER

Mishra, J. -- 1. Challenge is made to the orders dated 11/14.8.2016, 14.10.2016 and 26.8.2017 whereby the respondent No.2 has been promoted on the post of Assistant Registrar in the pay scale of Rs.15600-39100 + Grade Pay Rs.5400/- ignoring the merit qualification and seniority of the petitioner over and above the respondent No.2. The petitioner has further challenged the promotion of the respondent No.2 on the ground that respondent No.2 is not having a minimum qualification as required for appointment for the post of feeder cadre and the petitioner was senior from the very inception, thus he could not have been superseded.

2. It is the case of the petitioner that he was initially appointed as a Stenographer w.e.f. 25.3.1985 in District Court, Chhindwara and he was appointed in the High Court of Madhya Pradesh vide order dated 6.1.1988 on the post of Personal Assistant. In pursuance to the same he joined on 19.1.1988. He was promoted to the post of Private Secretary on 6.5.1996. The respondent No.2 was initially appointed w.e.f. 10.11.1986. He was holding the qualification of Higher Secondary School Certificate and was placed below the petitioner in the gradation list of his cadre. The seniority of the petitioner in the cadre of Private Secretary always remained over and above the respondent No.2.

3. High Court of Madhya Pradesh (Officers and Employee Recruitment and Condition of Service Classification of Appeal and Conduct) Rules, 1996 {hereinafter referred to as “Rules of 1996”} came into force on 1.4.1996 and was applicable to the case of the petitioner as well as respondent No.2 which provides for method of recruitment, qualification, eligibility and procedure for promotion. In terms of Part IV of the aforesaid Rules, the post of Private Secretary is to be filled up by promotion from amongst the Personal Assistants on merit-cumseniority basis, if necessary by direct recruitment. The qualification prescribed in rule 9 for the post of Private Secretaries is Graduate from a recognised University, qualified in English Shorthand from a recognized Board with a speed of 100 words per minute and preference to Graduation in Law. It is pointed out that even for the post of Personal Assistant and Stenographer which are feeder cadre to the Private Secretary, the minimum qualification is Graduate and Shorthand. The respondent No.2 is holding the qualification of Higher Secondary pass. He was not even Graduate and having a qualification of Shorthand. However, he has been promoted along with the petitioner for the post of Private Secretary vide order dated 6.5.1996.

4. On 20.7.2016, the Departmental Promotion Committee was held to consider the promotional aspects to the post of Assistant Registrar. No criteria was fixed for promotion from the post of Private Secretary to Assistant Registrar, despite the fact that for promotion to Assistant Registrar from the post of section Officer/Librarian /Assistant Editor, I.L.R. the criteria was two ‘Very Good’ ACR in last five years has been prescribed by the DPC. Two post of Assistant Registrars were to be filled up from the cadre of Private Secretary. The DPC recommended the name of respondent No.2 alone whereas the petitioner was not found fit considering the ACRs and overall records. The representation submitted by the petitioner against wrongful supersession by the respondent No.2 was rejected by the respondent No.1. He again preferred an appeal to the Hon’ble Chief Justice on 10.7.2017 but the appeal was also rejected by the non-reasoned and non-speaking order and the same was communicated vide order dated 26.8.2017. Thereafter, the petitioner sought information under the RTI which was supplied to him vide letter dated 3.1.2018. The ACRs from 2012 to 2017 were having no adverse communications. The petitioner was having four ‘Good’ and one ‘Very Good’ ACRs. No entry in the ACR for the aforesaid period was communicated to the petitioner. Thus, he was not having any opportunity to file his