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HIGH COURT OF MADHYA PRADESH : JABALPUR
Writ Appeal No. 199/2006
The Chairman, Madhya Pradesh Text Book Corporation and
another
Versus
I.U. Shaikh and others
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For the appellants : Shri A.K. Pathak, Advocate
For the respondents : Shri K.K. Trivedi, Advocate.
__________________________________________________
Present: Hon'ble Mr. Justice Arun Mishra
Hon'ble Mr. Justice S.C. Sinho
__________________________________________________
ORDER
(16/02/2010)
As per Arun Mishra, J:
This writ appeal has been preferred as against the order
dated 28/03/2006 passed by learned Single Judge of this Court.
2. The petitioner/respondent no.1 I.U. Shaikh has filed a
writ petition praying for the promotion to the post of Auditor
which according to him lying vacant. He also claimed certain
arrears of allowances from the year 1985 to 1988 and with
effect from 1991 till the date of promotion and other benefits.
It was pointed out before the Single Bench that P-19 is the
recommendation of the Committee by which he was found fit
for the promotion to the post of Auditor. The persons, junior to
him were promoted prior to him but step motherly treatment
was meted out to him. Prayer was made to direct
implementation of recommendation contained in the resolution
dated 7/08/1997 (P-19). Stand of the respondent in the return
was that State Government has abolished the post vide circular
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dated 18/11/1998 hence, there was no question of promotion of
the petitioner to the post of Auditor.
3. Learned Single Judge took the view that as the
Committee has already recommended the case of the petitioner
for promotion to the post of Auditor vide resolution dated
7/08/1997 and there is one post lying vacant, the respondent
nos. 1 and 2 were directed to pass necessary order in that
regard on or before 31/05/2006 with all consequential benefits.
Further, the promotion may be accorded to the petitioner from
the date of promotion was given to respondent nos. 3 to 6 to the
post of Auditor.
4. Aggrieved by the order, the writ appeal has been
preferred. It is submitted in the writ appeal that
petitioner/respondent no.1 has suppressed the material fact that
he was not senior to respondent nos. 3 to 6. His seniority stood
revised and corrected vide final gradation list. Final gradation
list was issued after passing of the order A-1, thus, petitioner
was not senior to respondent nos. 3 to 6. Apart from that the
post of Auditor stood abolished by the State Government and
there is misreading of the resolution of committee dated
7/08/1997 (P-19). It was opined by grievance committee that
in case DPC recommend the case of the petitioner/respondent
no.1 and he was otherwise found fit, his case can be considered
for promotion as sub-auditor. Thus, the order passed enforcing
the resolution (P-19) treating it as recommendation of DPC is
illegal as without consideration of the case of the
petitioner/respondent no.1 by the DPC, such an order could not
be issued.
5. Shri Pathak, learned counsel appearing on behalf of the
appellant has submitted that seniority of petitioner stood
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revised vide order (A-1) filed with the memo of appeal thus,
petitioner was not senior to respondent nos. 3 to 6. The post of
Auditor stood abolished in 1998, thus no post was vacant.
Apart from that resolution (P-19) has been taken to be a
recommendation by DPC whereas it was opined in the
resolution that case of petitioner was required to be considered
for the promotion by the DPC to the post of sub-auditor.
Hence, the order enforcing resolution (P-19) as
recommendation of the DPC is illegal.
6. Shri K.K. Trivedi, learned counsel appearing on behalf
of the respondent has supported the impugned order. He has
submitted that his seniority could not have been revised behind
his back in the year 1992. There was a vacant post of auditor
when recommendation (P-19) was made in the year 1997 thus,
no case for interference was made out in the writ appeal.
7. After hearing learned counsel for the parties, we are of
the opinion that order passed by the learned Single Judge
cannot be allowed to sustain. Firstly, the recommendation of
the committee which was constituted to consider grievance
had passed resolution (P-19) on 7/08/1997. It was mentioned
in resolution that one post of Auditor was vacant in the
Corporation. It was also observed by the committee that in
case Shri I.U. Shaikh fulfills the other conditions of the
promotion and in case his case was recommended by the DPC,
he can be considered for promotion to the post of sub-auditor
as against the post of Auditor.
8. DPC was required to consider the case for promotion of
petitioner as sub-auditor and there was no recommendation
made for promoting petitioner/respondent no.1 to the post of
Auditor. The committee has observed that promotion could be
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considered for the post of sub-auditor as against the post of
Auditor. Thus, in the impugned order it has been wrongly
mentioned that said committee has already recommended of the
case of the petitioner for promotion to the post of Auditor
which exists nowhere. The DPC has not considered the case
and there was no recommendation for the promotion to the post
of Auditor, the order cannot be allowed to sustain.
9. The learned Single Judge has also not taken into
consideration the return filed by the respondent in which it was
mentioned that post of Auditor itself was abolished in the year
1998. Apart from that we find that seniority stood revised as
per order A-1 thus, very basis of order that juniors respondent
nos. 3 to 6 were promoted cannot be allowed to sustain.
Correct position of seniority was not placed before the Single
Bench of this Court. Since a short return was filed showing
abolition of the post of Auditor by the respondents and the
aforesaid order of revised seniority was not placed before the
Single Bench, let a detailed return be filed by the respondents
before the Single Bench including the order of revised seniority
(A/1) filed with the writ appeal.
10. In view of the aforesaid, impugned order is set aside.
Single Bench to decide the case afresh. Let return be filed
within a period of four weeks.
Writ appeal is allowed. No costs.
(Arun Mishra) (S.C. Sinho)
Judge Judge
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