Sanjay Dwivedi, J.:— With the consent of the learned counsel for the parties, the matter is heard finally. By the instant petition, the petitioner has questioned the legality, validity and propriety of the order dated 02.08.2017 (Annexure-P-1) passed by respondent No. 1, whereby the representation of the petitioner seeking promotion to the post of Additional Director, Public Instruction from the post of Joint Director, has been turned down mentioning therein that in pursuance to the advise taken from the General Administration Department, as matter in respect of validity of Madhya Pradesh Public Services (Promotion) Rules, 2002 (for short the ‘Promotion Rules, 2002’) is sub judice and the Apex Court has granted status quo in the pending SLP No. 13954/2016 (R.B. Rai v. State of M.P.), accordingly the order of promotion cannot be issued.
2. The order impugned has been assailed mainly on the ground that the reason assigned in the order for not granting promotion to the petitioner has no relevance in the present case. It is submitted by the learned counsel for the petitioner that in a pending SLP arising out of order passed in W.P. No. 1942/2011 (R.B. Rai v. State of M.P.), is related to and applicable between the parties inter se and the petitioner is not a party before the Apex Court, therefore, his promotion cannot be denied on the said premise. It is further contended by the learned counsel for the petitioner that the entire Promotion Rules, 2002 are not under challenge but the only provision in respect of filling up backlog vacancies of reserved category without collecting quantifiable data as per the observation made by the Apex Court in the matter of M. Nagraj v. Union of India, reported in (2006) 8 SCC 212, the exercise required by the State has not been fulfilled and accordingly, the promotion against the backlog vacancy of reserved category is illegal. It is also contended by the learned counsel for the petitioner that the petitioner's case was considered by the DPC convened on 21.03.2016 for promotion to the post of Additional Director, Public Instruction and the order of status quo was directed by the Apex Court on 30.04.2016 and as such said order would not be applicable and binding upon the authority from issuing any order of promotion in view of the recommendation made by the DPC convened prior to the passing of the order of status quo.
3. Before deciding the issue involved in the case, certain material facts are required to be mentioned, which are as follows:—
(3.1) The petitioner is holding the post of Joint Director, Public Instruction and his next promotion is due to the post of Additional Director, Public Instruction. Promotion is to be made in terms of the provisions contained in the Promotion Rules, 2002 read with Madhya Pradesh Siksha Sewa (Shala Shakha Bharti Tatha Padonnati) Niyam, 1982 (for brevity the ‘Niyam, 1982’). In terms of aforesaid provisions, a DPC was convened and names of eligible officers/employees were considered, who were within the zone of consideration for promotion to the post of Additional Director, Public Instruction. As per sub-rule 5 of Rule 7 of the Promotion Rules, 2002, meeting of DPC/Scrutiny Committee is required to be held every year. Name of the petitioner was also considered but in absence of vacancy, he was kept in waiting list at serial No. 1 under the category of General Candidates. However, in view of the recommendation made by the said DPC, promotion order in respect of five officers were issued on 01.04.2016 but their posting orders were not issued for more than one year.
(3.2) The petitioner made a representation to the respondents mentioning therein that on the date of DPC i.e. 21.03.2016, there were six posts of Additional Director available with the Department. Thereafter, one post of Additional Director (Adult Education) had also fallen vacant, three posts of Additional Director (Rajya Shiksha Kendra) also fell vacant and asked for utilizing the said posts by promoting the eligible officers who are kept in the waiting list of General Category Candidates considered by the DPC convened on 21.03.2016.
(3.3) As per the averments made in the petition, the petitioner has categorically averred that six posts of Additional Director were vacant on the date when DPC had considered the case of eligible officers for promotion to the post of Additional Director and has also described that one post of Additional Director (Adult Education) and three posts of Additional Director (Rajya Shiksha Kendra) fell vacant. On 17.05.2017, posting order of five officers, who were earlier promoted in view of the recommendation made by the DPC, have also been issued and resultantly, two Ex Cadre posts of Additional Director in Rajya Shiksha Kendra fell vacant that too in addition to the vacancy already described by the petitioner and then he again gave a detailed representation on 20.04.2017 for considering his case for promotion and asking posting on the post of Additional Director, Public Instruction. Not denying anything as has been stated by the petitioner in his representation, the respondents issued the order dated 02.08.2017, which is impugned in this petition. (3.4) The respondents have also filed their reply without disputing the factual position as has been averred by the petitioner in this petition, but stated that the waiting list making recommendation for promotion to the post of Additional Director was alive for a period of one year and further six months' period could also be increased after taking consent from the Public Service Commission, but it was refused vide communication dated 12.09.2017 (Annexure-R-3) and also submitted that in the pending SLP No. 13954/2016 (R.B. Rai v. State of M.P.), in which, the order of status quo has been passed and opinion has been given by the General Administration Department for not issuing any order of promotion as such interim order of the Apex Court is in operation. Thus, the respondent/State has otherwise denied the promotion to the petitioner on the ground that the waiting list, in which, the petitioner has been placed at serial No. 1 has already expired and in a pending petition, in which, validity of the Promotion Rules, 2002, is under challenge, an interim order of status quo has been granted by the Apex Court, the petitioner cannot be promoted. The respondents have also placed reliance upon the decisions reported in (1996) 2 SCC 7 : AIR 1996 SC 1145, parties being State of Bihar v. Md. Kalimuddin, (2006) 8 SCC 686 : AIR 2007 SC 210, parties being Union of India v. B. Valluvan and (2008) 1 SCC 448 : AIR 2008 SC 559, parties being Dir. S.C.T.I. for Med. Sci. & Tech. v. M. Pushkaran, for the purpose that after expiry of life of waiting list, the candidate cannot seek any enforcement or creation of his right merely because he secured his position in the said list.
4. Arguments heard, record perused.
5. In view of the averments made in the petition and the contention raised by the learned counsel on behalf of the petitioner and further taking note of the stand taken by the respondents, it reflects that the respondents have not disputed the factual position as stated by the petitioner not only in the petition but also in his representation which has been decided by the respondents by the order impugned and even in the said order, they have rejected the claim of the petitioner on two grounds, first, that the person securing the position in waiting list has no indefeasible right to claim appointment and due to lapse of sufficient time the life of the waiting list, in which, the petitioner has secured his position stood expired. The respondents have denied the claim of the petitioner saying that the life of the said list cannot be extended and accordingly claim of the petitioner asking his promotion is rightly denied.
6. The core question involved in this case is whether under the existing circumstance of the case, the claim for promotion of the petitioner can be denied on the ground that the life of select list is expired and whether the order passed by the Apex Court directing the parties to maintain status quo, in pending SLP No. 13954/2016 of R.B. Rai (supra), is applicable for the petitioner or not.
7. As stated by the petitioner that at the time of convening the DPC, there were six posts of Additional Director available with the Department. Thereafter, one post of Additional Director (Adult Education) had also fallen vacant. Three posts Additional Director of Rajya Shiksha Kendra also fell vacant against which the petitioner can be promoted and said vacant posts can be utilized by promoting the eligible officers who were kept in the waiting list of General Category Candidates. This factual position was not denied by the respondents neither in their reply nor in the order rejecting the representation of the petitioner. Thus, in view of the law laid down by the Apex Court in case of Naseem Bano (SMT) v. State of U.P. reported in 1993 Supp (4) SCC 46 and Sushil Kumar v. Rakesh Kumar. reported in (2003) 8 SCC 673 : AIR 2004 SC 230, when there was no specific denial by one party to the facts averred by the another party, it is deemed to be admitted or correct. The petitioner has stated that in view of the existing factual position denial of his promotion for the grounds mentioned in the order impugned cannot be said to be proper and justified. For this purpose, he has placed reliance upon a decision reported in (2004) 1 SCC 136 parties being Oriental Insurance Co. Ltd. v. T.S. Sastri, wherein the Apex Court has considered the factual aspect of the case, in which, the DPC was convened for promoting the officers to the post of Assistant Administrative Officer (Development). As per available facts of the said case, in the year 1983, eight posts of Assistant Administrative Officer (Development) fell vacant. The DPC was convened for promotion with criteria ‘merit-cum-seniority’ and panel of eight candidates was prepared and for the person who was kept at serial No. 9 in the waiting list, in the month of November, 1984, one more post of Assistant Administrative Officer (Development) was created. Subsequently, on 22.05.1985, a second post was further created. As per panel prepared by the Promotion Committee, the list was valid from 05.07.1984 to 04.07.1985. Having regard to the availability of two more posts, the candidates secured position in the wailing list, made a representation before the competent Authority for promoting him on one of these posts, but his claim was not considered, therefore, he filed a writ petition and the said writ petition was dismissed by the Single Bench of the High Court. Thereafter, writ appeal preferred, was allowed with a direction to give notional promotion in seniority. The SLP was preferred by the Department and the same was dismissed by the Supreme Court saying that the Appellate Court has done nothing wrong and no interference is permissible in the directions issued by the Division Bench of the High Court in writ appeal.
8. In the present case also when there is no dispute with regard to creation of vacancies of the post of Additional Director during the life time of the waiting list, in which, the petitioner has secured position and not considering the claim of the petitioner for promotion by the respondents against the vacancies of Additional Director, is nothing but arbitrary and mala fide action on the part of the respondents. In view of the provisions of Niyam, 1982, the life of the panel was valid for 18 months and, therefore, during the said period, if posts fall vacant, the claim of the candidates placed in waiting list should be considered by the Authorities. Under the provisions of the Promotion Rules, 2002, the Department is obliged to consider the case of eligible officers/employees for promotion to the next promotional post after assessing the number of vacancies. Admittedly, the life of the panel was 18 months and if during the validity period of the said panel, if no vacancy is fallen vacant, then the claim of the candidate who is otherwise found fit to be promoted and is kept in the waiting is to be considered. Thus, the petitioner's claim for promotion had to be considered by the respondents because, as stated above, there were more vacancies fallen vacant during the life time of the panel. It is further contended by the petitioner that the State Government issued a Circular for issuing the order of promotion immediately after the recommendation of the DPC but despite the recommendation made on 21.03.2016, the order of promotion on the post of Additional Director issued on 01.04.2016. The petitioner has also relied upon a decision of the Supreme Court rendered in the case of State of U.P. v. Ram Sawrup Saroj, reported in (2000) 3 SCC 699 : AIR 2000 SC 1097, in which, it is held that the select list was prepared and life of the select list starts from its finalization for a period of one year and that was finalized in the month of November, 1996 and the writ petition was filed by one of the candidates in the month of October, 1997, before expiry of one year from the date of finalization of the select list. The Supreme Court further observed that merely because a period of one year has elapsed during the pendency of writ petition, it is not proper to decline the relief claimed in the petition on the ground that the validity of life of select list is expired.
9. Here in the case at hand, the petitioner before expiry of the period made a representation to the Authority pointing out that the vacancies of the post of Additional Director are fallen vacant during life time of the select list and accordingly, his claim for promotion should be considered as he is at serial No. 1 in the waiting list. By the impugned order his claim has been rejected. The stand taken by the respondents in this case that the life of the select list has expired and, therefore, the petitioner as a matter of right cannot claim that his claim for promotion be considered. However, in the facts and circumstances existing in the present case as have been discussed hereinabove, I am of the cnosidered view that the stand taken by the respondents is not proper especially when they have not disputed the factual position. The Supreme Court in the case of Ram Sawrup Saroj (supra) has finally observed that in such a circumstance, denial of promotion of the candidate, who is otherwise found fit, is not proper where admittedly there is no dispute regarding the existence of vacancies. As such, here in this case on the ground which is taken by the respondents in the order rejecting the claim/representation of the petitioner, does not seem to be justified merely because the life of the panel is expired and despite making request from the PSC for extension of life, which has been rejected. Thus, in view of the aforesaid factual circumstance and considering the law laid by the Apex Court, the right of promotion of the petitioner could not have been denied on the ground that the life of select list is of one year and now it is expired, therefore, the petitioner cannot claim any right on the said count. Further, the cases on which the respondents have placed reliance are not applicable in the present case considering the facts and circumstances of those cases because the Apex Court in these cases has held that the life of select list cannot be extended but on the contrary, it is observed by the Apex Court that the authority has to consider the candidates securing position in panel against the existing vacancies and the vacancies which were likely to occur in future. Here in this case, the vacancies occurred during the life of the waiting list and as per sub-rule 1 of Rule 15 of the Niyam, 1982, which is reproduced hereinbelow:—
15.(1) “The committee shall prepare a list of such persons who satisfy the condition prescribed in rule 14 above and are held by the Committee to be suitable for promotion/transfer to the service. The list shall be sufficient to cover the anticipated vacancies on account of retirement and promotion during the course of one year from the date of preparation of the select list. A reserve list consisting of twenty five percent of the number of persons included in the said list shall also be prepared to meet the unforeseen vacancies occurring during the course of the aforesaid period.”
there is apparent arbitrariness and mala fide attitude on the part of the respondents rejecting the claim of the petitioner on the count that the life of waiting list is already expired.
10. As far as the second aspect that the Apex Court has granted status quo order in case of R.B. Rai (supra), order of promotion cannot be issued in favour of the petitioner. The petitioner has placed reliance upon an order passed in W.P. No. 45/2017 (Kushal Singh v. Revenue Department) decided vide order dated 04.10.2017, in which, the High Court after taking note of the order of status quo passed by the Supreme Court in SLP No. 13954/2016 in case of State of M.P. v. R.B. Rai, has observed that the said order would not come in the way in a case where issue of reservation is not involved. Here in this case also no issue regarding reservation is involved because the petitioner being a candidate of General Category is claiming promotion. Not only this, but in an advice taken from the Government of India as to whether promotion can be made to the officers of the Government as there is an order of status quo in a pending SLP before the Supreme Court. The clarification was made vide Office Memorandum dated 15 June, 2018 by the Government of India, in which, the State Government was also advised to take necessary action in accordance with the advice given in the said memorandum wherein the Government of India has clarified that there is no bar to issue the order of promotion of the officers asking promotion from unreserved category. It is clarified in the memorandum that at the most the order of promotion may contain a condition that, the same would be subjected to the final decision of the pending SLP before the Supreme Court. The Office Memorandum dated 15 June, 2018 is as follows:—
“F. No. 36012/11/2016-Estt.(Res-I)(Pt-II)
Government of India
Ministry of Personnel, Public Grievances and Pensions
Department of Personnel & Training
Establishment (Reservation-I) Section
North Block, New Delhi
Dated June 15, 2018
OFFICE MEMORANDUM
Subject: Implementation of interim Orders/directions in Special Leave to Appeal (C) No. 30621/2011 arising out of final judgment and order dated 15.07.2011 in CWP No. 13218/2009 passed by the Hon'ble High Court of Punjab & Haryana and Special Leave to Appeal (C) No. 31288/2017 arising out of Hon'ble Delhi High Court judgment dated 23.08.2017 and other related court cases-regarding
The Hon'ble Supreme Court vide its order dated 15.11.2007 in SLP (C) No. 28306/2017 has decided to refer to a Constitution Bench to examine whether its earlier decision in M. Nagraj v. Union of India requires reconsideration or not, inter alia, on the issue as to whether test of backwardness would, at all, apply in case of SC and ST.
2. The Hon'ble Supreme Court in SLP (C) No. 30621/2011 has passed the following order on 17.05.2018:
“It is directed that the pendency of this Special Leave Petition shall not stand in the way of Union of India taking steps for the purpose of promotion from ‘reserved to reserved’ and ‘unreserved to unreserved’ and also in the matter of promotion on merits …………….”
3. Further, in the matter related to SLP (C) No. 31288/2017, connected to Special Leave to Appeal (C) No. 28306/2017, the Hon'ble Supreme Court held as under on 05.06.2018:
“Heard learned counsel for the parties. Learned ASG has referred to order dated 17.05.2018 in SLP (C) No. 30621/2011. It is made clear that the Union of India is not debarred from making promotions in accordance with law, subject to further orders, pending further consideration of the matter. Tag to SLP (C) No. 30621 of 2011.”
4. The cadre controlling authorities of Central Government Ministries, Departments and Union Territories are to carry out promotions in accordance with the directions of the Hon'ble Supreme Court mentioned in paragraphs 2 and 3 above based on existing seniority/select lists.
5. Every promotion order must clearly mention the stipulation that the promotion shall be subject to further orders which may be passed by the Hon'ble Supreme Court.
6. All Ministries/Departments are requested to bring this to the notice of all concerned for information/compliance.
7. State Governments are also advised to take necessary action in accordance with the above mentioned orders passed by the Hon'ble Supreme Court.
(G. Srinivasan)
Deputy Secretary to the Government of India
Tel.: 23093074
1. The Secretaries of all Ministries/Departments of the Government of India.
2. Chief Secretaries of all State Governments.
3. Shri Maninder Singh, Learned Additional Solicitor General of India.
4. Department of Financial Services, New Delhi.
5. Department of Public Enterprises, New Delhi.
6. Railway Board, Ministry of Railways, Rail Bhavan, New Delhi.
7. Supreme Court of India/Election Commission of India/Lok Sabha Secretariat/Rajya Sabha Secretariat/Cabinet Secretariat/Central Vigilance Commission/President's Secretariat/Vice President's Secretariat/Prime Minister's Office/Niti Ayog.
8. Union Public Service Commission/Staff Selection Commission.
9. Ministry of Social Justice and Empowerment, New Delhi.
10. Ministry of Tribal Affairs, New Delhi.
11. National Commission for Scheduled Castes, Lok Nayak Bhawan, New Delhi.
12. National Commission for Scheduled Tribes, Lok Nayak Bhawan, New Delhi.
13. National Commission for Backward Classes, Trikoot-1, Bhikaji Cama Place, R.K. Puram, New Delhi.
14. Office of the Comptroller and Auditor General of India.
15. Information and Facilitation Center, Dopt, North Block, New Delhi.
16. Director, ISTM, Old JNU Campus, Olof Plame Marg, New Delhi 110067.
17. NIC, Dopt - to upload the same on Dopt website.
18. Hindi Section for providing the Hindi translation.”
11. In view of the above, when the petitioner is otherwise found eligible to be promoted to the post of Additional Director and posts fallen vacant during life time of the panel prepared by the DPC and the representation was made by the petitioner asking his promotion qua availability of vacancies, rejection taking shelter of the order of the status quo in the case of R.B. Rai (supra) does not seem to be proper. The order of status quo has been passed by the Apex Court in respect of the fallout of the judgment of the Division Bench of this Court whereby the rules were struck down and pursuant to which ineligible employees were likely to be reverted. The status quo order, therefore, can be considered to avoid such a situation and to revert the ineligible employee who have granted promotion by applying the provisions of the Promotion Rules, 2002, that is basically without following the direction of the Apex Court in case of M. Nagraj (supra) as the State Government has not assessed the quantifying data.
12. As far as the petitioner is concerned, he admittedly belongs to General Category, not getting the benefit of provisions of the Promotion Rules, 2002, which is sub judice before the Apex Court, and infact his promotion is otherwise not connected with the direction given by the Apex Court in the case of M. Nagraj (supra).
13. Accordingly, in view of the discussion made hereinabove, taking note of the law laid down by the Apex Court in case of Oriental Insurance Company (supra) and also Ram Sawrup Saroj (supra) and further clarification made by the Government of India vide its Office Memorandum dated 15 June, 2018 and further by this High Court in the case of Kushal Singh (supra), the order impugned is not sustainable and is hereby set aside. The respondents are directed to issue the order of promotion in favour of the petitioner considering the-then existing available vacancies as pointed out by the petitioner in his representation of the post of Additional Director. Such exercise be completed within a period of three months from the date of submitting the certified copy of this order.
14. The petition is accordingly, allowed.
15. Parties shall bear their own costs.