Hon. Dinesh Gupta, J.
( Delivered by Hon. Rakesh Tiwari, J.) Heard counsel for the parties and perused the record.
Markandey Maurya, respondent in this special appeal, had filed Writ Petition no. 34209 of 2005, challenging the validity and correctness of the order order dated 20.11.1998 promoting him on the post of Munshi and order dated 15.4.2005 cancelling his promotion on the post of Head Munshi and promoting the present appellant Ram Chandra Ram in his place.
The case of Markandey Maurya in the writ petition was that there is no channel of promotion from the post of Meth to the post of Munshi, therefore, the order dated 20.11.1998 promoting appellant Ram Chandra Ram, who was not a confirmed employee, was illegal as he was not eligible for promotion on the post of Munshi.
After considering Rule 5,12 and 13 of the Irrigation Department Munshis Service Rules, 1954 ( hereinafter referred to as the Rules), learned Single Judge allowed the aforesaid writ petition vide judgment and order dated 12.11.2007 quashing the impugned orders. The reasoning given by the learned Single Judge in the impugned judgment dated 12.11.2007, reads thus :
"Now let me examine the validity of the promotion of the petitioner as Head Munshi.
Learned counsel for the respondent No. 5 submits that the promotion of the petitioner as head Munshi has rightly been cancelled as he was not qualified for such a promotion as under Rule 12 of the Rules, 1954 he has not put in at least 10 years continuous service on the post of Munshi. I am not at all impressed by the above submission. A plain reading of Rule 12 and 13 indicates that for the promotion on the post of Munshi the Patrol or Tube-well Operator as the case may be apart from being in the required age group should have at least 5 years of continuous service and should be willing to work as Munshi. As far as for the appointment on the post of head Munshi by promotion, the necessary eligibility conditions are that the candidates should be confirmed Munshi with at least "10 years continuous service". The said rule no where stipulates in specific terms that 10 years of continuous service should be on the post of Munshi. Therefore, in the absence of such specification "10 years of continuous service" refers to service in the department whether it happens to be on the post of Munshi or any other inferior post. The petitioner is working in the department since 16.10.1979 and as such on the date of his promotion as head Munshi he had put in over 10 years service in the department. Since the petitioner has admittedly, put in over 10 years service and was working as a confirmed Munshi on the date of his promotion as head Munshi, it can not be said that he was not qualified or eligible to be promoted.
No other illegality in the promotion of the petitioner as head Munshi has been pointed out which could have instigated the cancellation of the promotion of the petitioner. Accordingly, the impugned order dated 15.4.2005 passed by the Superintending Engineer cancelling the promotion granted in favour of the petitioner is liable to be quashed.
In view of the aforesaid facts and circumstances, the writ petition succeeds and is allowed. The impugned orders dated 20.11.1998 (Annexure-2 to the writ petition),15.4.2005 (Annexure-9 writ petition) promoting the respondent No. 5 as Munshi and as head Munshi respectively and the order dated 15.4.2005 (Annexure-8 to the writ petition) cancelling the promotion of the petitioner as head Munshi are quashed. "
Submission of the counsel for the appellant Ram Chandra Ram in this appeal, is that petitioner Sri Markandey Maurya was ineligible for promotion under the Rules as he had not completed ten years of service and that the appellant was senior to Markandey Maurya.
Per contra, stand taken by the counsel for respondent is that the appellant and Markandey Maurya were appointed as Munshi on the same date but appointment of the appellant was illegal. As there is no channel of promotion to the post of Munshi from the post of Meth i.e. the post held by the appellant at the relevant point of time, therefore, he could not have been appointed on the post of Munsi. It is further submitted by him that the appellant was also not eligible to be promoted to the post of Head Munshi as he was neither a confirmed Munshi nor he had put in ten years of service as such, hence for these reasons also, he could not been promoted to the post of Head Munshi and the promotion of the appellant was in violation of Rule 5(1)(b) of the Rules which reads thus:
"Sources of Recruitment- (I) Recruitment to the Service shall be made as follows:
(a) Head Munshis...By promotion from amongst confirmed Munshis employed in Executive Engineer's Offices in a circle.
(b) Munshis...(i) By promotion from amongst Patrols employed in Canal Divisions and Tube-well Operators employed in Tube-well Division, and
(ii) By direct recruitment, if suitable Patrols and Tube-well Operators are not available.
(2) .........................
12. Procedure for recruitment to he post of Head Munshi- (a) each Executive Engineer shall make preliminary selection from amongst all the confirmed Munshis in his division, who have put in at least ten year's continuous service (including the period of officiating or temporary service) and who are eligible under rule 8 (b), and send on June 1, every year the names of his nominees along with their character rolls and personal files, if any, to the Superintending Engineer. If any senior Munshi eligible for promotion under the Rules is left out in the recommendation of an Executive Engineer, he shall explain the reasons for such omission while sending his nominations to the Superintending Engineer. He shall also send to the Superintending Engineer the character rolls and persona files, if any, of such persons. "
Counsel for the respondent has also referred to annexure no.4, an office memo dated 29.10.2004, by which respondent Markandey Maurya was confirmed with effect from 1.4.2003. It is also apparent from the said office memo dated 29.10.2004 that appellant Ram Chandra Ram had not been made permanent or confirmed Munshi, for the reason that his appointment was illegal and that there was no channel for promotion from the post of Meth to that of Munshi. For ready reference, relevant extract of the aforesaid office memo dated 29.10.2004, is quoted below :
^^dk;kZy; Kki ,rn~}kjk 'kklukns'k la[;k bZ0,e0 [email protected]&dkfeZd&1 fnukad 9-2-1981 ,oa [email protected]&4&[email protected] fnukad 7-2-1991 esa fufgr izkfo/kkuksa ds vuqlkj rFkk izeq[k vfHk;Urk ¼vf/k"Bku½ 4 [k vuqHkkx ] flapkbZ foHkkx y[kuÅ ds i= la[;k [email protected]&4[[email protected] 27-11-1992 esa fn;s x;s funsZ'kkuqlkj lfefr dh laLrqfr ds vk/kkj ij jktLo vf/k"Bku esa dk;Zjr Jh ekjd>Ms eksgfjZj&eaq'kh] flapkbZ [k.M eÅ dks fnukad 1-4-2003 ls bl izfrcU/k ds lkFk LFkkbZ fd;k tkrk gS fd os eq[; fpfdRlk vf/kdkjh }kjk LoLFk ?kksf"kr fd;s tk;A g0 vLi"V vthr flag v/kh{k.k vfHk;Urk i=kad%&6310 @ [email protected]% izfrfyfi fuEufyf[kr dks lwpukFkZ ,oa vko';d dk;Zokgh gsrq izsf"kr gSA 1- vf/k'kklh vfHk;Urk] flapkbZ [k.M] eÅ dks muds i= la[;k [email protected] [[email protected]&[email protected] 16-11-2003 ds laoxZ esa Jh jkepUnz jke eaq'kh tks esaB ds in ls fu;eksa ds foifjr eaq'kh in ij inksUufr gksus ds dkj.k izeq[k vfHk;Urk ¼bZ75[k½ flapkbZ foHkkx y[kuÅ ds i= fnukad 27-11-1992 esa fufgr fu;ekuqlkj bUgsa LFkkbZdj.k ls oafpr fd;k tkrk gSA 2- eq[; fpfdRlk vf/kdkjh] eÅA vthr flag v/kh{k.k vfHk;UrkA** In rebuttal, counsel for the appellant concedes that the appellant was also not eligible for promotion to the post of Head Munshi on the date the order was passed as he had not put in ten years of continuous service as confirmed Munshi on the post. He however points out fallacy in the order of learned Single Judge by placing reliance upon the Rules, wherein two modes of recruitment have been provided for the post of Munshi i.e. by direct recruitment and by promotion as given in Rule 5 quoted above. According to him, if a Munshi is appointed by direct recruitment, he would be senior to the Munshi appointed on promotion. It is stated that reasoning given by learned Single Judge do not stand to reason for promotion to the post of Head Munshi, a direct recruit would be senior to the departmental candidate but if the reasoning of the learned Single Judge is brought to its logical end, then a departmental candidate having put in ten years of service even on a lower post that of Munshi, would be eligible for promotion to the post of Head Munsi even though the directly recruited person is senior to him but has put in less then ten years of service on the date and his promotion to the post of Head Munshi, would create an anomaly.
Having heard learned counsel for the parties, we leave this question of anomaly for being decided in an appropriate case wherein this question is in fact in issue. So far as the present appeal is concerned, suffice it to say that neither the appellant nor the respondent had put in ten years of service on the post of Munshi on the relevant date, but considering the fact that promotion to the next higher post i.e. Head Munshi can be made from amongst confirmed Munshis only and that there being no channel of promotion from the post of Meth to the post of Munshi, the appellant is not eligible to be considered for the post of Head Munshi coupled with the fact that Markandey Maurya- respondent in this appeal, was a confirmed Munshi on the post and he having now completed ten years of service and is presently working on the post of Head Munshi, we are not inclined to interfere in this appeal.
For all the reasons stated above, we find no force in this appeal and the same is accordingly dismissed. No order as to costs.
Dt/-24.2.2012 SNT/