Chairman's Power Of General Supervision Can't Override Service Rules: MP High Court Quashes Order For Clerk's Out Of Turn Promotion

The Madhya Pradesh High Court, on Friday (December 19), set aside the orders for out of turn promotion of a Lower Division Clerk, to the post of Assistant Secretary and subsequently Secretary of the MP State Bar Council, despite scoring low marks in the examination and being unqualified. In doing so, the court observed that she was appointed to the post of Assistant Secretary and Secretary merely because she was already discharging the duties of Acting Secretary, and that the State Bar Council made no efforts to fill up the post in accordance with the prescribed rules. Addressing the Council's argument that the Chairman acted under Rule 9 of the General Rules, conferring general control and supervisory powers over affairs of the Bar Council, the division bench of Chief Justice Sanjeev Sachdeva and Justice Vinay Saraf emphasized; "Power of general control and supervision granted to the Chairman does not empower him to ignore the mandate of the General Rules and the Service Rules framed by the Bar Council...Section 11 of the Advocates Act mandates the State Bar Council to appoint inter alia a secretary and the secretary must possess the qualification as may be prescribed. There is no merit in the contention of the Respondents that Smt. Geeta Shukla was appointed as the Acting Secretary as no one in the office was willing to take up the responsibility of the post of Secretary. If that were the position, the State Bar Council should have taken immediate steps for appointing a qualified Secretary for the State Bar Council and not permitted a non-qualified person to continue as the Acting Secretary for a period of four years"Two petitions were filed by the elected members of the MP State Bar Council (Council), contending that Geeta Shukla was granted an 'out-of-turn' promotion directly from the post of Lower Divisional Clerk (LDC) to Assistant Secretary, giving her an acceleration of 6 posts without following the promotion procedure in the Council's Rules. Further, it was contended that since the filing of the petitions, another order was passed on August 25, 2024, reverting Shukla to the post of Additional Secretary, subject to the outcome of the petitions. Per the petitioners, the promotion of employees was conducted by the General Body on the recommendations of the Executive Committee and on a merit cum seniority basis. A suitability test was conducted every 2 years to assess the competence of the employees. Advocates were invited for the appointment and in the test, Shukla scored 5 marks with 12th rank, while the highest score was 40 marks. It was contended that no appointment was made based on the said examination.However, by order dated 31.01.2022, the Chairman, State Bar Council promoted Shukla, who was then an LDC, to the post of Assistant Secretary of the State Bar Council. Subsequently, the General Body of the State Bar Council accepted the representation of Shukla, that the post of Secretary was vacant and she had been discharging the duties of the Secretary being the Assistant Secretary and be promoted to the post of Secretary of the State Bar Council. She was thus promoted to the post of Secretary.The petitioners also asserted that Shukla was in full-time employment and was enrolled in a law course and therefore could not have been enrolled as an advocate, which is one of the qualifications for the Secretary. The court noted that Rules 22 and 23 of the General Rules empower the Executive Committee to appoint, promote, punish and discharge any employee of the Council. Per Rule 7, the Executive Committee was empowered to appoint all categories except the Secretary. Further, it prescribed that no appointment could be made on the regular roll of Council until the person had served two years as an employee. Additionally, it required the person to be served on a temporary roll until made permanent by the recommendations of the Committee. Per Rule 8 of the Service Rules, the appointment of staff could be a direct promotion; however, no promotion could be made unless the person is qualified and on a merit cum seniority basis.Per the qualification rules for Secretary, the person must have a degree in law from the University of India, and the person should have been an advocate for less than 5 years standing. Rule 9 further prescribes the Suitability Test, which must be conducted every two years to test the competence of the employee. The bench noted that there are only two modes prescribed for appointment: promotion and direct recruitment. In direct recruitment, an advertisement was issued by the Council on January 25, 2019. The said advertisement mandated the candidates to be enrolled as an advocate with a practice of 5 years. Noting that 'for unspecified reason' the recruitment process was abandoned, the bench observed that the Chairman appointed Shukla as Acting Secretary, subsequently appointed as Assistant Secretary, directly jumping six higher posts. The bench acknowledged the resolution of the...

Chairman's Power Of General Supervision Can't Override Service Rules: MP High Court Quashes Order For Clerk's Out Of Turn Promotion

Jayanti Pahwa

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