Shahid Ahmed Khan vs The State of M.P. & others.

This petition filed under Article 226 of the Constitution of India challenges the order dated 30.09.2013 (Annexure-P/1) whereby the petitioner''s

option to count his seniority as Degree Holder Engineer was disallowed by the respondents.

Briefly stated, the facts are that petitioner was appointed as a Diploma Holder Engineer (Civil) on 29.11.1983. The 20% post of Assistant

Engineers are filled up by promotion from the Diploma Holder Sub- Engineers who have obtained degree of engineering. The petitioner obtained

part-time BE degree in the year 1993 after obtaining permission from the department. He also passed ME in the year 1998 with distinction. The

petitioner''s said qualifications were entered in his seniority list on 01.04.2006.

The petitioner was on deputation to MP Rural Road Development Authority (MPRRDA) for five years i.e. between 16.01.2007 (Annexure-

P/4) to 03.11.2011 (Annexure-P/5). The petitioner was repatriated/relieved on 13.01.2014. In obedience of judgment of Supreme Court, the

JDA by circular dated 23.07.2005 decided to divide the seniority list amongst diploma and degree holder engineers. For this purpose, the

respondent No.2 issued a letter dated 09.08.2007 (Annexure-P/7) directing the Sub-engineers to submit their options to show their willingness to

join either of the groups, namely, diploma or degree holder.

The specific case of the petitioner is that this common order dated 09.08.2007 was alive for a specific period. During this period, the options

were invited from engineers. The petitioner at that point of time was on deputation to MPRRDA and therefore this letter dated 09.08.2007 was

not brought to his notice. He came to know about this letter when he pursued the seniority list of Group-B showing his position as on 01.04.2010.

On 03.03.2011, he gathered aforesaid knowledge and promptly preferred representation/option with the relevant documents. This option dated

18.10.2011 was not accepted and ultimately all such representations were given a burial by passing impugned order dated 30.09.2013. It was

held that petitioner has submitted option after about six years from the cut off date and therefore his option cannot be accepted.

Mr. Shrivastava, learned counsel for the petitioner criticized the said order by advancing two fold submissions. Firstly, it is submitted that

admittedly, petitioner was on deputation when the letter dated 09.08.2007 (Annexure-P/7) was issued. For want of knowledge, the petitioner

could not submit his option within stipulated time. He exercised such option soon after gathering knowledge and therefore such option should have

been accepted. Secondly, the respondents have issued as many as five seniority lists as on 01.01.2007. Various employees whose options were

earlier not included, were permitted to be included by amending the seniority lists on five occasions. There is no justification in giving a step-

motherly treatment to the petitioner.

Per-contra, Mr. Mishra, learned G.A. supported the impugned order. He submits that in the representation (Annexure-R/4) the petitioner has

not assigned any reason for belatedly exercising the option. The employees whose options were subsequently accepted are those employees who

have submitted their options in time but same were not traceable in the office of respondent No.2 because they have submitted their options in their

Division or Sub-Division. For this reason their names were subsequently included. Since petitioner has admittedly not exercised option before the

cut off date i.e. 25.09.2007, no relief is due to the petitioner.

No other point is pressed by the parties.

I have heard the parties at length and perused the record.

This is not in dispute that petitioner remained on deputation between January, 2007 to January, 2014 and the letter dated 09.08.2007

(Annexure- P/7) was issued during this period. Thus, the reason assigned by the petitioner is plausible/justifiable. An employee working on

deputation with another department cannot be expected to lay his hand or remain in touch with all of the circulars/letters issued by his parent

department. It is not possible for said employee to gather knowledge about all the circulars/letters. Indeed, the onus lies on the parent department

to demonstrate the fact that the said letter/circular was communicated/send to the petitioner and it was duly received by him. Thus, the first reason

assigned by the petitioner appears to be justifiable. So far second point is concerned, the respondents have justified the modification/issuance of

five seniority lists on the ground that various options were received in the office of respondent No.2 belatedly. Thus, it is nobody''s case that the

fate of all employees could be sealed on 25.09.2007. For justifiable reasons and more particularly for the reason employees are not responsible,

subsequently seniority lists were issued after the cut off date. The reason in the instant for not submitting the option is not attributable to the

petitioner. For want of knowledge, he could not submit his option within the cut off date. The petitioner and those employees whose options were

subsequently accepted after the cut off date are sailing in the same boat. As noticed, the options of those employees were accepted after the cut

off date because they exercised their options in time before their Sub-Division/Division but those options were not traceable in the office of the

respondent No.2. For this mistake they were not responsible. Similarly, petitioner could not exercise his option in time because the relevant

letter/circular of respondent No.2 was not within his knowledge. Thus, petitioner cannot be deprived from the benefit of exercising option when

delay in submission of option is not because of any fault on his part. In the result, the order dated 30.09.2013 has became vulnerable and the same

is hereby set aside. The respondents are directed to consider the option exercised by the petitioner on 18.10.2011 and take decision on it in

accordance with law expeditiously within 45 days'' from the date of production of copy of this order. This order passed in the peculiar facts and

circumstances of this case will not be treated as a precedent. Petition is allowed. No cost.