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Case Number

W.A No. 3 of 2009

Attorney(S)

Vivek Khedkar, Government Advocate
Anil Mishra

Judges

S. Samvatsar
A.P Shrivastava, JJ.

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Smart Summary

Structured Summary of the Opinion (Subhash Samvatsar, J.)

Factual and Procedural Background

This appeal by the State challenges an order dated 13-3-2008 passed by a learned single judge in Writ Petition No. 5143/06(s) which had allowed a petition filed by the present respondent (the employee).

The respondent had been appointed as a Tehsil Organizer by order dated 30-11-1984 in the pay scale of Rs. 740–1180. The appointment was made under the Madhya Pradesh Gram Tatha Nagar Raksha Samiti Adhiniyam, 1999 and service conditions are governed by rules framed thereunder (Madhya Pradesh Gram Tatha Nagar Raksha Samiti Niyam, 2003). Those rules did not provide any channel of promotion from the post of Tehsil Organizer. The government, however, had prescribed grant of two higher pay-scales upon completion of 12 years and 24 years in service; the respondent received benefits of both scales.

The respondent petitioned for relief directing formulation of a policy to create promotional posts with a specific timeframe so that he and similarly situated employees could benefit. The single judge allowed the petition, holding that non-provision of a channel of promotion was arbitrary and illegal, and directed the State to provide two channels of promotion to the petitioner after completion of 12 and 24 years, to be complied with within three months. The State filed this writ appeal challenging that order.

Legal Issues Presented

Whether the learned single judge at the Gwalior bench had jurisdiction to direct creation of promotional channels where the service conditions are governed by statutory rules and those rules were not challenged in that bench.
Whether the writ court was competent to direct the State to create channels of promotion (or amend/alter service rules) in the absence of a challenge to the statutory rules providing service conditions.
Whether non-provision of promotion channels in the relevant service rules renders the rule arbitrary and illegal such that a court may direct creation of promotional avenues.

Arguments of the Parties

State's Arguments (Appellant) — as advanced by Shri Vivek Khedkar, Govt. Advocate

The respondent's service conditions are governed by the Madhya Pradesh Gram Tatha Nagar Raksha Samiti Niyam, 2003, which do not provide any channel of promotion from the post of Tehsil Organizer.
The learned single judge lacked jurisdiction to direct creation of promotional channels because such direction would effectively amend the statutory rules, which the judge could not do.
A notification and subsequent orders of the Chief Justice (pursuant to the Presidential notification under Section 51(2) of the States Reorganisation Act, 1956) require challenges to rules, notifications and acts under Articles 226/227 to be filed and heard at the principal seat at Jabalpur; therefore the Gwalior bench could not hear or grant relief of the nature given.
Because the rules were not challenged in the petition before the Gwalior bench, the petition was not maintainable there.

Respondent's Arguments — as advanced by Shri Anil Mishra

The court can direct creation of avenues for promotion in the absence of rules providing such avenues.
Reliance was placed on Food Corporation of India v. Parashotam Das Bansal (2008) 5 SCC 100 to support the proposition that courts can intervene to grant relief where stagnation exists; the respondent’s counsel argued the apex court in that case ordered grant of benefit where promotional channels existed.
Other precedents were cited (including O.Z. Hussain v. Union of India and Raghunath Prasad Singh v. Secretary, Home (Police) Department, Govt. of Bihar) to support the contention that courts in some circumstances have issued directions regarding promotion or promotional schemes.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Food Corporation of India v. Parashotam Das Bansal, (2008) 5 SCC 100	Principle that courts should not direct the manner in which service rules/schemes are to be framed (para 13); in that case the apex court found existing channels of promotion and directed grant of selection grade (para 15).	The court observed that the FCI case did not direct creation of a new channel of promotion; it distinguished that case from the present facts because FCI involved existing promotional avenues.
O.Z. Hussain v. Union of India, 1990 (Supp) SCC 688	Noted instance where the apex court passed a direction under Article 32 for framing a scheme for promotion (as cited by respondent).	The court held that this judgment was not applicable to the present case.
Raghunath Prasad Singh v. Secretary, Home (Police) Department, Govt. of Bihar and others, 1988 (Supp) SCC 519	Observation that reasonable promotional opportunities should be available in every wing of public service; the apex court issued directions to provide at least two promotional opportunities in that case.	The court found that the facts and context in Raghunath Prasad Singh made it distinguishable from the present case.
State of Tripura & others v. K.K. Roy, (2004) 9 SCC 65	Held that the High Court could not issue a writ of or in the nature of mandamus directing grant of a pay scale equivalent to a particular judicial grade; also observed limits on creating promotional avenues by writ.	The court relied on this authority to support the proposition that the High Court lacks jurisdiction to create promotional avenues and used it to justify setting aside the single judge’s direction to create promotion channels.

Court's Reasoning and Analysis

The court's analysis proceeded principally on jurisdictional and procedural grounds, and by reference to the precedents cited by the parties. The reasoning can be summarized in the following steps (as stated in the opinion):

Applicable procedural constraint: The court relied on the Presidential notification No. 16/20/68 — Judl. III dated 28-11-1968 (under Section 51(2) of the States Reorganisation Act, 1956) and the subsequent order of the Chief Justice dated 5-2-1976. Those instruments direct that petitions under Articles 226/227 challenging the vires of any act, statute, order, rule or regulation shall be heard at the principal seat at Jabalpur. The court concluded that, in view of these instruments, such petitions cannot be heard at the Gwalior bench.
Nature of the relief sought: The writ court (Gwalior bench) had ordered creation of promotional channels (effectively altering or directing the framing of service rules). The State argued that such a direction would amount to amending statutory rules.
Lack of a direct challenge to the statutory rules: The petitioner had not challenged the statutory rules (Madhya Pradesh Gram Tatha Nagar Raksha Samiti Niyam, 2003) in the petition before the Gwalior bench. Given that the rules are statutory, the court emphasized that the proper forum to challenge or obtain relief affecting those rules was the principal seat at Jabalpur in accordance with the Chief Justice’s order.
Precedent review and distinctions: The court reviewed the judgments relied upon by the respondent. It observed that:
- In the FCI case the Supreme Court did not direct creation of a new promotional channel; it dealt with existing channels and the grant of selection grade.
- O.Z. Hussain involved Article 32 and was held not applicable to the present facts.
- Raghunath Prasad Singh had observations about the need for reasonable promotional opportunities and resulted in directions in that factual matrix; the court found that case distinguishable.
- State of Tripura v. K.K. Roy established limits on a High Court's power to issue writs in the nature of mandamus directing creation of promotional avenues or specific pay scales; the court regarded this authority as supportive of the position that the single judge had no jurisdiction to direct creation of promotional channels.
Synthesis and conclusion: Considering the procedural bar (forum/bench allocation), the absence of a challenge to statutory rules in the Gwalior bench petition, and the precedents (particularly K.K. Roy), the court concluded that the single judge committed a grave error in directing creation of promotional channels for the petitioner.

Holding and Implications

Holding: The writ appeal is allowed and the impugned order passed by the learned single judge in W.P. No. 5143/06(s) dated 13-3-2008 is set aside. The court held that the single judge erred in directing creation of channels of promotion for the petitioner.

Implications:

The direct effect is that the directions issued by the single judge (to create promotional channels and to provide two channels of promotion after completion of 12 and 24 years) are vacated; the respondent's petition as allowed by the single judge is undone by this appellate order.
The decision rests on jurisdictional and procedural grounds and on the court's reading of precedents; the opinion does not purport to establish a new legal principle beyond those conclusions. The opinion does not discuss any broader precedent-setting implications beyond the immediate disposal of the impugned order.

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State Of M.P And Others v. Shyam Sunder Savita .

Subhash Samvatsar, J.:-

(1) This writ appeal is preferred by the state being aggrieved by an order dated 13 - 3 - 08 passed by the learned single judge of this court in w. P. No. 5143/06 (s) thereby allowing the petition filed by the present petitioner.

(2) Brief facts of the case are that the respondent was appointed on the post of tehsil organizer vide order dated 30 - 11 - 84 in the pay scale of rs. 740 - 1180/ -. This appointment was made in exercise of the powers conferred under the adhiniyam known as madhya pradesh gram tatha nagar raksha samiti adhiniyam, 1999 and the rules were framed thereunder section 21 known as madhya pradesh gram tatha nagar raksha samiti niyam, 2003. These rules govern the service condition of the respondent. As per the said rules, no channel of promotion is provided from the post of tehsil organizer. However, the govt, has prescribed a provision for grant of two higher pay - scales, firstly on completion of 12 years in service and secondly on completion of 24 years in service.

(3) There is no dispute that the respondent was granted benefits of both these higher pay - scales. He filed the petition praying for relief that a policy for creating promotional posts be formulated with a specific time - frame so that the petitioner and other similarly situated persons may get the benefit of that policy. This petition is allowed by the impugned order. While allowing petition the writ court has held that non - providing channel of promotion is arbitrary and illegal and further directed the respondents/state to provide two channels of promotion to the petitioner after completion of 12 years and 24 years in service. The writ court also directed to comply with the aforesaid order within a period of three months. This order is assailed by the state govt. In the present writ appeal.

(4) The first contention of shri vivek khedkar, learned govt. Advocate appearing on behalf of the appellants/state is that the service conditions of the respondent are governed by the statutory rules namely, madhya pradesh gram tatha nagar raksha samiti niyam, 2003. He contended that the said rules do not provide for channel of promotion from the post of tehsil organizer. He contended that the learned single judge has no jurisdiction to direct for providing channel of promotion because the said direction will amount to amending the rules. He pointed out that these rules cannot be challenged by the respondent - employee before this bench as per the notification of hon'ble the chief justice of this court. This notification provides that all the matters challenging rules, notification and the acts are to be filed at the principal seat at jabalpur and shall be heard by the bench comprising of hon'ble the chief justice. Thus, the judge sitting at gwalior has no jurisdiction to issue any such kind of direction for amending the rules. Learned counsel also contended that the rules were not challenged by the petitioner in the present petition and therefore the petition was heard by this bench otherwise the petition was not maintainable. This argument raised by the counsel for the state has substantial force.

(5) As per notification no. 16/20/68 - judl. Ill, dated november 28, 1968 issued by the president under section 51 (2) of the states reorganization act, 1956 (no. 37 of 1956) , hon'ble the chief justice may order that any case or class of cases arising in any such district shall be heard at jabalpur or at gwalior. Thus, in exercise of such powers conferred by the presidential order, hon'ble the chief justice by orders dated 5 - 2 - 1976 directed that all the petitions under articles 226/227 of the constitution of india challenging the vires of any act of statute or any order or rule or regulation made under any act or statute shall be heard only at the principal seat at jabalpur. Hence, in the light of the aforesaid notification and in view of the orders passed by hon'ble the chief justice in pursuance of the notification, such type of petitions cannot be heard at gwalior bench.

(6) In reply to this argument, shri anil mishra, learned counsel appearing on behalf of the respondent contended that this court can direct creation of avenues for promotion in the absence of rules. Learned counsel relied on the judgment of the apex court in the case of food corporation of india vs. Parashotam das bansal, (2008) 5 scc 100. In that case, the petition was filed by the engineer before calcutta high court for creation of promotional avenue and for formulating schemes. The calcutta high court dismissed the said petition. In para 13 of the judgment, the apex court has held that if there is no channel of promotion in respect of a particular group of officers resulting in stagnation over the years, the court although may not issue any direction as to in which manner a scheme should be formulated or by reasons thereof interfere with the operation of existing channel of promotion to the officers. Thus, the apex court in para 13 of the judgment has held that the court should not issue direction in which manner, services rules should be framed. However, the apex court in para 15 of the judgment has found that there were four promotional avenues available to the petitioner in that case namely, from assistant manager to deputy manager, from deputy manager to joint manager, from joint manager to manager and from manager to executive director. This fact was challenged by the food corporation of india in its return. It was also mentioned that l/3rd of the officers in the cadre of assistant engineer are benefited by the said scheme.

(7) Thus, the apex court found that there was channel of promotion from the post of assistant engineer and ultimately directed the respondent - authority to grant benefit of selection grade. In this case also, the apex court has not passed any direction for creating new channel of promotion.

(8) The second case relied by the learned counsel for the respondent is in case of o. Z. Hussain vs. Union of india, 1990 (supp) scc 688. From perusal of the said judgment we find that in that case the apex court has passed direction under article 32 of the constitution of india for framing scheme for promotion. This judgment is not at all applicable in the present case.

(9) The next judgment cited by the learned counsel for the respondent is in the case of raghunath prasad singh vs. Secretary, home (police) department, government of bihar and others, 1988 (supp) scc 519. From perusal of the facts of this case, it appears that in that case the petitioner claimed that he was entitled to exercise option and since option was not asked from him, he opted for signal (wireless) wing which had a channel of promotion. When that was not accepted, he applied to the high court for issuance of direction. The apex court held that the high court was right in finding against the petitioner therein that the option in terms of the instructions was available to those who came within the ambit and the appellant being a recruit of 1972 - 73 not in the combined cadre and therefore is not entitled to the benefit of option. However, before parting the apex court has made observation that reasonable promotional opportunities should be available in every wing of public service. That generates efficiency in service and fosters the appropriate attitude to grow for achieving excellence in service. In the absence of promotional prospects the service is bound to degenerate and stagnation kills the desire to serve properly and hence issued directions to the state of bihar to provide at least two promotional opportunities to the officers of the state. Thus, this judgment is also distinguishable.

(10) The last judgment relied by the learned counsel for the respondent is in the case of state of tripura and others vs. K. K. Roy, (2004) 9 scc 65. From perusal of the aforesaid judgment we find that the apex court in para 8 of the said judgment has held as under: -

"the learned counsel appearing for the appellant, is, however, correct in his submission that the high court in exercise of its jurisdiction under article 226 of the constitution of india could not have issued a writ of or in the nature of mandamus directing the appellant herein to grant a scale of pay which would be equivalent to grade ii or grade i of the judicial service of the state."

(11) In that case, the apex court has directed the respondent therein to be paid two promotions in the next higher scale of pay upon his completion of 12 years and 24 years in service. Thus, in that case the apex court has specifically laid down that the high court had no jurisdiction to issue a writ of or in the nature of mandamus for creating promotional avenues.

(12) In the present case, the writ is filed at gwalior bench. As already stated above, in exercise of the powers conferred on the chief justice in pursuance of the notification issued by the president of india, dated 28 - 11 - 1968, the chief justice by order dated 5 - 2 - 1976 has directed that all the petitions under article 226/227 of the constitution of india challenging the vires of any act or statute or any order or rule or regulation made under any act or statute shall be heard at the principal seat at jabalpur. The said notification reads as under: -

". In exercise of the powers conferred on me by the proviso to the notification no. 16/20/68 - judl. Ill, dated november 28, 1968 issued by the president under section 51 (2) of the states reorganisation act, 1956 (no. 37 of 1956) establishing a permanent bench of the madhya pradesh high court at gwalior; and in supersession of all previous orders so far issued in exercise of the powers under the aforesaid proviso. I hereby order that with effect from february 5, 1976 till further orders only the following cases arising from the revenue districts of gwalior, shivpuri, datia, guna, vidisha (bhelsa) , bhind and morena, except those cases for which i may otherwise order, shall be heard at jabalpur: - (1) all petitions under arts. 226/227 of the constitution challenging the vires of any act or statute or any order or rule or regulation made under any act or statute, (2) all individual cases, which i may hereafter order to be heard at jabalpur."

(shiv dayal) chief justice 5 - 2 - 1976

(13) Apart from that, in the present case, the rules were not challenged by the petitioner which are statutory rules. In such circumstances, in absence of channel of promotion and in absence of jurisdiction to hear the matter challenging the rules, we hold that the writ court has committed grave error in directing to create channel of promotion for the petitioner. Hence, we allow this appeal and set aside the impugned order passed by the learned single judge.

State Of M.P And Others v. Shyam Sunder Savita .

Structured Summary of the Opinion (Subhash Samvatsar, J.)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

State's Arguments (Appellant) — as advanced by Shri Vivek Khedkar, Govt. Advocate

Respondent's Arguments — as advanced by Shri Anil Mishra

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

State Of M.P And Others v. Shyam Sunder Savita .

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