Madhya Pradesh High Court
Pawan Kumar Shrivastava vs The State Of Madhya Pradesh on 24 June, 2016
WP-18411-2014
(PANKAJ AWASTHY Vs THE STATE OF MADHYA PRADESH)
24-06-2016
W.P. Nos.18411/2014, 19063/2014, 19066/2014
& 19239/2014
In these batch of petitions filed under Article 226 of the
Constitution, petitioners have challenged the
advertisement Annexure-P/1, whereby respondent-
Municipal Corporation, Jabalpur intends to fill up certain posts on which petitioners are admittedly working for more than a decade. The petitioners are seeking regularization on the relevant posts.
2. Shri Manoj Sharma, learned counsel for the petitioners appeared in Writ Petition Nos.19063/2014 and 19066/2014 filed by the Sub Engineers. It is canvassed that the petitioners are working for more than a decade. They earlier filed Writ Petition No.15715/2007 and connected matters which were decided on 03.05.2010 (Annexure-P/2). This Court directed the respondents to consider the case of the petitioners in accordance with the relevant circulars and take a final decision for regularization in accordance with law within three months. Thereafter, by letter dated 29.11.2011, petitioners Anupam Shukla, Santosh Pandey and Pawan Shrivastava were informed that their names find place in the seniority list of Technical Employees at Nos.4, 6 and 8 respectively. Petitioners were informed that as per roster of availability of vacant post, they will be regularized as per their turn of seniority. The petitioner - Santosh Pandey filed a Contempt Petition No.1549/2011 which was disposed of on 20.02.2013. The petitioner was given liberty to take other recourse/remedy. It is contended by the learned counsel for the petitioners that on 29.05.2013, a decision was taken in the meeting of Mayor-in-Council. In item No.866, the cases of regularization of technical employees was taken and it was decided to obtain permission from the Government for regularization of Anupam Shukla, Santosh Pandey, Pankaj Awasthy, Pawan Shrivastava, Shailendra Patel and Kedarnath Mandele. In pursuance to that, a letter was sent to the State Government on 24.09.2013 (Annexure- P/6). Shri Manoj Sharma contends that as per this letter, it is clear that there are 40 sanctioned regular posts of Sub Engineer, whereas 15 posts of Sub Engineers are sanctioned in the head of Planning/Scheme. By taking this Court to the State Government's order dated 18.06.2010, it is submitted that the Government made it clear that the decision regarding regularization of Class III & IV employees is to be taken at the level of local body/Divisional Dy. Director.
3. Shri Sanjay Ram Tamrakar, learned counsel for the petitioners appeared in W.P. Nos. 18411/2014, 321/2015, 329/2015, 334/2015 and 585/2015 relied on the order passed in W.P. No.4018/2014 dated 21.03.2014. Criticizing the stand taken in the return, it is common stand of the petitioners that the return is filed in a mechanical manner. A stereo-type/cyclostyle return is filed in all the cases. By drawing attention of this Court to Para 6 of the return, it is submitted that it is mentioned that as per Annexure-R/2/2 dated 29.11.2011, the name of petitioners do not find place in the seniority list. It is submitted that said document is other way round and it reflects the names of three petitioners.
4. It is common ground that since petitioners' cases are required to be considered for regularization, till such consideration and decision is taken, it will not be lawful to fill up those posts by way of impugned advertisement. Petitioners contend that if posts are permitted to be filled up, because of paucity of posts, petitioners' cases for regularization cannot be considered and the orders passed by this Court will be of no use. Lastly, it is contended that for Sub Engineers, a decision has already been taken to regularize them by the Corporation and the State Government has made it clear that decision is to be taken at the level of urban/local body. The respondents be directed to regularize the petitioners within reasonable time.
W.P. Nos.165/2015 & 954/2015
5. In W.P. Nos.165/2015, petitioners are working as Firemen and in W.P. No. 954/2015, petitioner is working as Sanitary Inspector.
6. Shri Vipin Yadav, learned counsel for petitioners contends that the respondents are bound by the principles of 'promissory estoppel' because they have stated that petitioners' cases will be considered for regularization on availability of post and as per their seniority. Attention is drawn on page 19 of the petition.
7. Shri G.P. Singh while arguing W.P. No.234/2015 submits that the petitioner is Lineman and his name finds place in the seniority list which is filed with I.A. No.12146/2015. The respondents have taken a wrong stand in the return that petitioner's name does not find place in the seniority list.
8. Shri Tamrakar while arguing W.P. No.321/2015 contended that name of petitioner Kedarnath Singh Mandele is mentioned in the decision filed in the cases of Sub Engineer i.e. W.P. No.19063/2014. Thus, he is entitled for same relief which may be granted in cases of Sub Engineer.
W.P. Nos.329/2015 & 334/2015
9. Shri Tamrakar, learned counsel for the petitioners submits that the petitioners are working as Time Keeper in said cases. They earlier filed an application for classifying them as permanent employee before the Labour Court. The Labour Court by its order directed that the petitioners be classified/regularized on their permanent posts. This order of Labour Court attained finality in absence of any challenge to it. Hence, these petitioners are entitled to occupy the permanent post of Time Keeper. W.P. No.585/2015 is connected with these petitions. Shri Tamrakar submits that this petitioner has also completed more than 10 years on the post of Time Keeper.
10. In Writ Petition No.2124/2015, Shri Hanmant Rao Naidu, learned counsel for the petitioner contends that petitioner is a Revenue Inspector and has worked for more than a decade. Without considering his case for regularization, impugned advertisement and recruitment process is impermissible.
11. Per Contra, Shri Sourabh Sundar, learned counsel for the respondent No.2 relied on the reply filed in all the cases. By taking assistance of Para 6 & 7 of the reply (W.P. No.19063/2014), it is submitted that petitioners' name do not find place in the seniority list. By placing reliance on Municipal Corporations (Appointment and Conditions of Officers and Servants) Rules, 2000 (hereinafter referred to as 'the Rules of 2000'), it is urged that the posts in question can be filled up by direct recruitment. It is further submitted that as per the rules, the persons having requisite qualification alone can be considered. Schedule I of the said rules shows that 75% posts of Sub Engineers can be filled up by direct recruitment and 25% through promotion. In the light of aforesaid, no direction can be issued for regularization of the petitioners.
12. The parties confined their arguments to the extent indicated hereinabove.
13. I have heard learned counsel for the parties and perused the record. The advertisement in question shows that various posts are lying vacant. Thus, it cannot be contended by the employer that the posts are not available for the purpose of considering the cases of regularization.
14. In obedience of various orders passed by this Court in the petitions filed by the petitioners, the respondent passed specific order contending that on availability of vacant post as per the roster, petitioners' claim for regularization shall be considered. Relevant portion of one such order dated 29.11.2011 reads as under:
LkanfHkZr vkosnu ds rkjrE; esa ys[; gS fd ekuuh; mPp U;k;ky; esa izLrqr ;kfpdk esa ikfjr vkns'k fnukad 03@05@2010 ds vuqlkj fu;efrdj.k ds laaca/k esa fopkj fd;k tkuk funsZf'kr gSA rRlaca/kh esa nSfud osru Hkksxh deZpkfj;ksa dh dk;kZy; }kjk ofj"Brk lwph tkjh dh x;h gSA ofj"Brk lwph rduhdh esa 01@01@1989 ds i'pkr~ dh rkfydk esa vkidk uke dzekad dze'k% 4] 6] 18 ij vafdr gS vr,o jksLVj vuqlkj fjDr inksa dh miyC/krk ,oa ofj"Brk dzekuqlkj fu;ferhdj.k dh dk;Zokgh dh tk;sxhA ¼vij&vk;qDr vkns'k fnukad 24@11@2011 ds vuqlkj½ [Emphasis Supplied]
15. In obedience of the order passed by the Court coupled with the assurance/permissions given in order dated 29.11.2011, respondents are bound to consider the cases of the petitioners for regularization and regularize those persons who have been found fit for such regularization. I find force in the argument of Shri Vipin Yadav that in view of the decision taken and communicated to the petitioners that their cases will be considered, the respondents are bound by the principles of âpromissory estoppelâ. [See: 2012 (11) SCC 1 (Monnet Ispat and Energy Limited Vs. Union of India and others) and 2015 (6) SCC 600 (Union of India and others Vs. Shri Hanuman Industries and another)].
16. The decision taken in the Mayor-in-Council dated 29.05.2013 reads as under:
16. fof/k rFkk lkekU; iz'kklu foHkkx& ¼866½ rduhdh inksa ds fo:) nSfud osru deZpkjh ds fu;ferhdj.k ds lECkU/k esa& vij vk;qDr ds iathc) i= dzekad&787 fnukad&23&5&2013 ds lkFk layXu la{ksfidk ds vuqlkj rduhdh inksa ds fo:) nSfud osru deZpkjh ds fu;ferhdj.k ds lEcU/k esa fopkj fd;k x;kA uxj ikfydk fuxe tcyiqj esa nSfud osru ij 750 nSfud osru deZpkjh dk;Zjr gSaA fuxe esa iwoZ esa o"kksZa ls deZpkjh ds lsokfuo`Rr gksus ,oa muds fjDr in ds fo:) HkrhZ u gksus ds dkj.k dk;Z dh vko';drk dks n`f"Vxr j[krs gq;s le;≤ ij nSfud osru ds ,sls deZpkjh tks rduhdh vgZrk j[krs Fks] muls fofHkUu laoxksZa ds rduhdh dk;Z fy;s tk jgs gSaA nSfud osru ij inLFk deZpkfj;ksa ds fu;ferhdj.k dh dk;Zokgh fuxe }kjk fjDr in ds fo:) yxkrkj 2 o"kkZas ls dh tk jgh gSA vHkh Hkh in fjDr u gksus ds dkj.k nSfud osru ij inLFk deZpkjh fu;fer ugha gks lds gSa] ftl gsrq fuxe }kjk 'kklu dks izLrko Hkstk x;k gSA nSfud osru ij inLFk ,sls deZpkjh ftudk fu;ferhdj.k] ftl inksa dk muls dk;Z fy;k tk jgk gS] mu ij muds fu;ferhdj.k dh ekax dh tk jgh gSA uxj fuxe tcyiqj esa izLrqr pkVZ vuqlkj rduhdh lsok ds fofHkUu in fjDr gSaA fooj.k fuEukuqlkj gS%& Iknuke vukjf{kr vuq- tkfr vuq-t-tk- v-fi-o-
mi;a=h 8 3 2 2 lgk;d ekufp=dkj 2 3 0 0 le;iky 12 3 4 3 fQVj vkijsVj 0 0 1 0 iEi vVsaMsaV 5 1 0 1 [kyklh 4 0 0 mDrkuqlkj jksLV dk ikyu djrs gq;s fjDr ds fo:) in ds fy;s 'kS{kf.kd ;ksX;rk ,oa ofj"Brk dks n`f"Vxr j[krs gq;s fu;ferhdj.k djus dk izLrko 'kklu dh Lohd`fr izkIr fd;s tkus gsrq fopkjkFkZ izLrqr gSA la{ksfidk esa mYysf[kr gS fd 1- uxj fuxe tcyiqj esa orZeku esa 750 nSfud osru Hkksxh deZpkjh dk;Zjr gSaA 2- fuxe esa rduhdh veys dh deh gksus ds dkj.k dk;kZsa esa ck/kk eglwl dh tk jgh gSA 3- rduhdh inksa dh iwfrZ fuxe esa nSfud osru ij dk;Zjr deZpkjh tks fd in ds vuq:i 'kS{kf.kd ;ksX;rk dh vgZrk j[krs gSa] mUgsa rduhdh inksa ij inLFk fd;k tkdj rduhdh veyk dh iwfrZ dh tk ldrh gSA 4- uxj fuxe tcyiqj esa nSfud osru ij dk;Zjr deZpkfj;ksa dks rduhdh inksa inLFk fd;s tkus ij LFkkiuk O;; tks fd orZeku esa 57-19 izfr'kr gS] fu/kkZfjr 65 izfr'kr ds lhekUrxZr jgsxkA fofu'p; fd;k x;k fd mijksDr izLrko ds lECkU/k esa ekuuh; mPp U;k;ky; e-iz- }kjk ikfjr vkns'k ds ifjikyu esa mi;a=h in ds dk;Z dk fuoZgu dj jgs nSfud osru deZpkjh Jh vuqie 'kqDyk] Jh larks"k ik.Ms] Jh iadt voLFkh] ,oa Jh iou JhokLro rFkk buds lkFk&gh&lkFk Jh 'kSysUnz iVsy vkSj Jh dsnkjukFk eaMsys dks fu;ferhdj.k djus gsrq 'kklukuqefr izkIr djus dh Lohd`fr iznku dh tkrh gSA 2& fuxe esa rduhdh inksa dk QhYM ij dk;Z dj jgs vU; nSfud osru deZpkfj;ksa ds lEcU/k esa Hkh fu;ekuqlkj ijh{k.k dj fu;ferhdj.k djus ds lEcU/k esa izLrko vkxkeh cSBd esa izLrqr fd;k tkosA [Emphasis Supplied]
17. A plain reading of this decision makes it crystal clear that the Corporation decided to regularize Sarvasree Anupam Shukla, Santosh Pandey, Pankaj Awasthy, Pawan Shrivastava, Shailendra Patel and Kedarnath Mandele. Permission was decided to be obtained from the State Government. As noticed, the State Government has made it clear that Corporation/Divisional Dy. Director, as the case may be, is competent to issue necessary orders. Thus, in my view, the respondent-Corporation has already taken a decision that the aforesaid six employees are entitled for regularization. For these employees, the Corporation needs to pass an order of regularization in accordance with law.
18. It is noteworthy that Corporation has considered eligibility qualification and seniority of the said persons and, therefore, there is no impediment for regularization of these six employees.
19. So far other Sub Engineers are concerned, whose names do not find place in the decision dated 29.05.2013, the respondents are bound to consider their cases also for regularization in accordance with law. This is required to be done in view of the orders passed by this Court in the earlier round of litigation coupled with the assurance which is binding as per the principles of 'promissory estoppel'. The respondents shall consider and take a decision about the regularization of other Sub Engineers within 30 days from the date of communication of this order.
20. In view of aforesaid, the employer cannot be permitted to proceed with the recruitment against the posts of Sub Engineers on which petitioners in the present batch of cases are working. There are interim orders passed in these cases to protect the interest of the petitioners. The respondents may proceed with the advertisement, if posts are in excess to the number of post of Sub Engineers on which petitioners are working. The aforesaid direction will govern the cases of Sub Engineers, namely, W.P. Nos.18411/2014, 19063/2014, 19066/2014, 19239/2014 and 321/2015.
W.P.Nos.165/2015 & 234/2015, 585/2015, 954/2015 and 2124/2015
21. In these cases, in the earlier round, directions were issued to consider the cases of petitioners for regularization in accordance with law. Although for the petitioners in these cases no decision is taken for regularization in the meeting of Mayor-in-Council, the Corporation is obliged to take a decision for regularization. It is not the case of the Corporation that these petitioners are either not entitled or not eligible for consideration. This decision needs to be taken by considering their cases for regularization. It will not be fair on the part of the respondents to fill up the posts by way of direct recruitment without considering the present petitioners for whom there exists Court direction and assurance given by the employer. It is also seen that in most of the cases, the stand of the respondent is factually incorrect in the return that the names of the petitioners do not find place in the seniority list. As noticed above, the names of Sub Engineers do find place in the seniority list. Similarly the name of Rajnesh Vishwakarma finds place in the seniority list. The employer has mechanically filed the reply without scrutinizing the correct facts. This is unfortunate that despite Court's direction, no meticulous exercise for regularization of petitioners was taken.
22. Resultantly, in these petitions, it is directed that the Corporation shall first consider the cases of regularization of these petitioners and take a final decision on it. If petitioners are found fit for regularization, necessary orders be passed in this regard. After taking such decision, if certain posts are still lying vacant, those can be filled up by implementing the impugned advertisement. In other words, if petitioners are regularized against their respective posts, the advertisement cannot be implemented for direct recruitment for those posts.
W.P. Nos.329/2015 & 334/2015
23. In these cases, the petitioners approached the Labour Court for seeking benefit of classification on their respective posts. Annexure-P/2 and P/7 respectively are the orders of the Labour Court wherein it is directed to classify/regularize them on the permanent post of Time Keeper. The said orders of the Labour Court remained unchallenged. Hence, these employees must be treated as classified as Time Keeper as per the Labour Court's order. The Division Bench in W.A. No.110/2011 held that classification under the standing order is also a statutory and permissible mode of induction. The relevant portion of the order reads as under:
âWhether an employee comes by way of normal recruitment process or through the process of classification, the fact remains that both i.e. the normally recruited employee and a classified employee work on the same post and perform the same duties. It cannot be held that the classification has any less effect or force as compared to the normal process of appointment, because the classification is also based upon the law in the form of Standing Orders and as such both employees who have been brought into service through either of the two processes permitted by law, as permanent W.P. No.4553/2015 (Nirman Karmachari Vyavsay Sangh, Gwalior Vs. State of M.P. and others), employees against a particular post, should be entitled to the same benefits. Taking a contrary view would mean that the employees inducted through classification process would be saddled with an undesirable disability throughout their service, as compared to other employees which may tantamount to violation of the principle of 'equal pay for equal work'. Our view finds support from another Division Bench decision of this Court reported in the case of State of M.P. Vs. Ram Prakash, (1989 JLJ 36). For the aforementioned reasons, we do not find any good ground to interfere with the order passed by the learned Single Judge. Accordingly the writ appeals are dismissed. â [Emphasis Supplied]
24. In the light of the aforesaid, these petitioners are entitled to be treated as permanent Time Keeper as per the directions of the Labour Court. The respondent No.2 shall pass necessary orders in this regard within 30 days from the date of communication of this order. Needless to mention that these two posts of Time Keeper cannot be filled up by way of direct recruitment.
25. In nutshell, for the reasons and to the extent indicated hereinabove, the petitions are allowed. No cost.
(SUJOY PAUL) JUDGE