Madhya Pradesh High Court
Rashid Ali vs The State Of Madhya Pradesh on 17 August, 2017
WP-12399-2016
(RASHID ALI Vs THE STATE OF MADHYA PRADESH)
17-08-2017
Shri M.L. Sharma, learned counsel for the petitioners.
Shri Rahul Mishra, learned Govt. Advocate for the
respondents/Sate.
The petitioner has filed this present petition claiming parity with the persons who were appointed as Process Server in other districts.
Learned counsel for the petitioner has straight away drawn the attention of this Court towards the judgment delivered by a co-ordinate Bench of this Court in a batch of writ petitions (Rakesh Sharma vs State of M.P.) decided on 10.08.2016 and his contention is that, in the aforesaid case identically placed Process Servers were regularized and the order deregularizing them was set- aside by this Court with certain observations. The judgment delivered by this Court in paragraph 2 to 9 reads as under:
â2. The brief facts are taken from W.P No. 3442/2016. The petitioner was initially appointed as Process Server on 25/01/2001. The petitioner was served with different orders by Sub Divisional Officer for the purpose of his working which are cumulatively filed as Annexure P-1.
3. Shri Navneet Dubey, learned counsel for the petitioner submits that pursuant to the directions given by this Court,circular dated 19/10/2005 (Annexure P-2) was issued. This circular is followed by another circular dated 16/01/2006 (Annexure P-3). The respondents pursuant to the said circular convened meeting of screening committee for the purpose of regularizing the services of the petitioners on the vacant post of Peon. The Screening Committee recommended in favour of the petitioner and accordingly by order dated 08/02/2010 (Annexure P-4) the petitioners were regularized as Peon in the pay scale of 4400-7440. It is submitted that all the petitioners have requisite qualification to occupy the post of Peon. It is pointed out that another circular dated 17/12/2008 (Annexure P-7) was issued by the Department. By this circular (Annexure P-7), earlier circular dated 19/10/2005 (Annexure P-1) and 29/05/2005 are cancelled. However despite cancellation of said circulars, new guidelines are brought into force by circular dated 17/12/2008 (Annexure P-7). Thereafter another circular dated 19/08/2010 (Annexure P-8) is issued whereby all the Collectors were directed to cancel the regularization orders. The same is followed by a notice dated 18/12/2013 and petitioners were directed to be removed. The petitioners assailed the said notice in W.P. No. 535/2014 (S), which was disposed of by this Court on 12/02/2015 (Annexure P-10). The respondent no.2 have issued show-cause notice dated 07/04/2015 (Annexure P-11) to the petitioners. The petitioner submitted his reply on 13/04/2015 (Annexure P-12).
The respondents in the meantime, filed Review Petition No. 603/2015 against the order passed in W.P. No. 13837/10 (S). This court passed an order and clarified it's earlier order, which is reproduced in order dated 19/01/2016 (Annexure P-14). Shri Dubey further contended that pursuant to the order dated 19/01/2016, the respondents passed impugned order dated 04/02/2016 (Annexure P-13) whereby petitioner's services are terminated. Criticizing the said order, it is submitted that the basic circular for regularization was issued pursuant to the order of this Court. Even if earlier circulars were cancelled by Annexure P-8, the similar directions for consideration were issued. The clause 2 of circular (Annexure P-7) dated 17/12/2008 makes it clear that only such proceedings for regularization were required to be closed which were pending on the date of issuance of circular dated 17/12/2008. Shri Dubey contends that circular (Annexure P-7) was never cancelled and intention of department was to stop further consideration pending cases. Therefore, it was not open for the respondents to pass the order dated 19/08/2010. It is submitted that the order of termination of the petitioners runs contrary to the circular of the State Government and order passed by this Court pursuant to which the basic policy dated 19/10/2005 (Annexure P-2) was introduced. He submits that impugned order is bad in law and benefit of regularization, which has already been crystallized cannot be taken away on the basis of subsequent circular. He placed reliance on 2014 (2) MPHT 509 (K.K Singh Chauhan Vs.State of MP & ors)
4. Per Contra, Shri S. Chatterjji, learned Panel Lawyer for the respondent/State supported the impugned orders. By placing reliance on return and reasons assigned in the impugned orders, it is urged that the petitioners were not entitled to be regularized as per government circular issued for regularization of daily rated employees. It is submitted that in view of the Constitutional Bench judgment of Supreme Court in State of Karnataka Vs.Umadevi reported in (2006)4 SCC 1, the petitioners were not entitled for the benefit of regularization. No other point is pressed by the parties.
5. I have heard learned counsel for the parties at length and perused the record.
6. It is seen that first circular dated 19/10/2005 in no uncertain terms makes it clear that pursuant to the directions of the High Court, the respondents have constituted the committee for the purpose of taking a decision for regularization of Process Server. The said Committee gave certain recommendations which were duly accepted by the State Government. The criteria/parameters for consideration were framed in circular dated 19/10/2005. The second circular dated 16/01/2006 shows that respondents directed its officers to complete the process of regularization. In accordance with circular dated 19/10/2005, the petitioners were regularized by order dated 08/02/2010. Interestingly, the circular dated 19/10/2005 (Annexure P-2) is cancelled by circular dated 17/12/2008 (Annexure P-7). The relevant portion of this circular is reproduced as under :-
**izfr] leLr laHkkxh; vk;qDr] leLr dysDVj] e/; izns'k] fo"k;%& jktLo olwyh ds fy, fu;qDr izkslsl loZj ds laca/k esaA lanHkZ%& jktLo foHkkx dk ifji= dzekad ,Q10&17@97@lkr& 1] fnukad 19-10-2005 ,oa jktLo foHkkx dk Kkiu dzekad ,Q 10-10-05 lkr&1] fnukad 29-05-07 mi;qZDr fo"k;karxZr ys[k gS fd lanfHkZr ifji=@Kkiu fnukad 19-10-2005 ,oa 29-05-2005 rRdky izHkko ls fujLr fd, tkrs gSaA izkslsl loZj ds laca/k esa fuEu fcUnqvksa ds n``f"Vxr fopkj fd;k tk,%& ¼v½ fdlh ftys esa tc Hkh Hk``R;@izkslsl loZjksa ds in ij fu;fer HkrhZ dh dk;Zokgh dh tkos rc HkrhZ esa mDr izkslsl loZjksa dks fu;qfDr gsrq izkFkfedrk nh tk,A ¼cý izR;sd ftys esa bl Js.kh ds izkslsl loZjksa dh ,d ofj"Brk lwph izR;sd ,d o"kZ 1 tuojh dh fLFkfr esa rS;kj dh tkosA ofj"Brk dk vk/kkj deZpkjh }kjk dh xbZ dqy lsok vof/k dks j[kk tkosA ¼lý Hk``R;ksa ds fu;fer inksa ij HkrhZ ds fy, izkFkfedrk nsrs le; buds fy, fu/kkZfjr vk;q lhek ds ca/ku dks f'kfFky ekU; fd;k tk;sA ¼ný fu;fer inksa ij HkrhZ ij izkFkfedrk nsrs le; vkj{k.k ,oa fu/kkZfjr ;ksX;rk ds ekin.Mksa dk iw.kZr% ikyu fd;k tk,A 2- jktLo foHkkx ds ifji= fnukad 19-10-2005 ,oa mlds vuqdze esa tkjh funsZ'k fnukad 29-05-2005 ds laca/k esa ;fn dksbZ dk;Zokgh izpfyr gS] rks mls lekIr ekuk tk,A 3- ;g ifji= rRdky izHkko ls ykxw gksxkA iwoZ esa fuiVk, x, izdj.k dh lwph ,oa vkns'k dh izfr fnukad 31-12- 08 rd jktLo foHkkx dks fo'ks"k okgd ls izsf"kr dh tkosA** (Emphasis Supplied)
7. It is interesting to note that although circular dated 19/10/2005 is cancelled by this circular dated 17/12/2008, the broad parameters laid down in the earlier circular for regularization were reintroduced as such. Putting it differently, if clause 1 to 4 of circular dated 19/10/2005 (Annexure P-2) are examined in juxtaposition with Clause (Aa) to (Da), it will be clear that same provisions are being reintroduced. In clause 2 of circular dated 17/12/2008, it is made clear that if pursuant to earlier circular dated 19/10/2005 any proceedings is going on, it should be treated as closed. There was no intention to cancel earlier orders of regularization. Thus, the intention of department was to discontinue the benefit of circular dated 19/10/2005 from 17/12/2008. In other words, the regularization orders already issued were not directed to be cancelled in order dated 17/12/2008. It's operation was directed to be stopped henceforthwith ie date of issuance of circular dated 17/12/2008. I find force in the arguments of Shri Dubey that this circular was never cancelled by the respondents.
8. In the opinion of this Court, the respondents have issued separate policy for the purpose of regularization of Process Servers. Admittedly, the petitioners were regularized pursuant to this special policy. At the cost of repeatation, broad principles and parameters laid down in basic policy dated 19/10/2005 remained intact. Even as per parameters shown in policy dated 17/12/2008, petitioners regularization is proper. Moreso, even in show-cause notice dated 18/12/2013 (Annexure P-9), the respondents have categorically gave finding that regularization of the petitioner was in consonance with the revenue department circular dated 19/10/2005. Para 4 of the show-cause notice dated 18/12/2013 (Annexure P-9) shows that respondents have considered a judgment of Supreme Court and then opined that petitioner's regularization is not contrary to circular dated 19/10/2005.
9. The whole problem started when circular dated 19/08/2010 (Annexure P-8) was issued. This circular is issued despite existence of earlier circular dated 17/12/2008 pursuant to which regularization already made could not have been cancelled. The whole decision taken by the respondents is as per directions contained in circular dated 19/12/2010. If a decision was already taken at apex level, show-cause notice issued by the subordinate authorities were merely an empty formality or simply a public relation exercise. No discretion or scope of adjudication was left with concerned Collector after having received direction through circular dated 19/08/2010. The whole action of cancelling the regularization is based on the GAD circular which is applicable to the daily rated employees. Since respondents have issued separate policy for Process Servers on the basis of judgment of this Court, another policy issued for separate set of employees cannot be a ground to terminate their service. As analyzed above, the action of the respondents in terminating the services of the petitioner is bad in law and cannot be upheld. Resultantly, impugned termination orders in all connected cases are set aside. Petitions are allowed. No cost.â In the considered opinion of this Court, once benefit of a circular has been extended to identically placed employees, the respondents are under an obligation to scrutinize the case of the petitioners also and if they are identically placed persons, they are also entitled for the same benefit.
Resultantly, the present petition stands disposed of with the direction to the Collector to scrutinize each and every case of each and every petitioner in the light of the judgment delivered in Rakesh Sharma (supra) dated 10.08.2016. In case, the Collector finds that the petitioners are identically placed persons, he shall pass necessary orders of reinstatement in service and if the petitioners are not found entitled shall also be free to pass an appropriate order in accordance with law. It is further made clear that if the petitioners are identically placed persons in the opinion of the Collector on the basis of facts, the petitioners shall also be entitled for the relief granted by this Court in the case of Rakesh Sharma (supra).
Let the exercise of passing the necessary orders after considering the case of the petitioners be concluded within a period of four months from the date of receipt of certified copy of this order.
Petition is disposed of finally in above terms.
(S.C.SHARMA) JUDGE sp/-