Madhya Pradesh High Court
Shekhar Halva vs The State Of Madhya Pradesh on 18 April, 2017
WP-7413-2014
(SHEKHAR HALVA Vs THE STATE OF MADHYA PRADESH)
18-04-2017
HIGH COURT OF MADHYA PRADESH: PRINCIPAL
SEAT AT JABALPUR
Writ Petition No.7413/2014
Sekhar Halwa
Vs.
State of M.P. and others
Present: Justice Sujoy Paul
Shri Radhelal Gupta with Shri Amit Garg, learned counsel
for the petitioner.
Shri Sudeep Chatarjee, learned P.L. for the
respondents/State.
ORDER
(18/04/2017) In this petition filed under Article 226 of the Constitution, the petitioner has prayed for setting aside the order dated 28.04.2014 (Annexure-P/1) with further prayer that he may be treated as appointed w.e.f. 16.08.2011. The consequential seniority and other financial benefit are also claimed.
2. Briefly stated, the facts are that the petitioner was working as daily rated employee against Class IV post. The respondents issued an advertisement for the post of Peon on 28.02.2009. In Clause 8 of the said advertisement, it was mentioned that the daily rated employees, whose services are terminated, can submit their candidature and such candidates will get five extra marks for their experience. The petitioner was not selected in the said selection and he was given only 41 marks, whereas the last selected candidate secured 44 marks. Aggrieved, petitioner filed Writ Petition No.8144/2011, which was decided by this Court on 05.09.2012. This Court directed the respondents to grant additional marks of experience in accordance with Clause 8 of the advertisement and decide the claim of petitioner for appointment. In turn, the respondents passed the order dated 18.02.2013 (Annexure-P/10) and appointed the petitioner from the said date. The petitioner preferred an application seeking benefit of appointment from the date other candidates were appointed. He claimed further financial benefits. His application preferred to the Commissioner, Revenew Division was forwarded by the said authority to the Collector by communication dated 14.08.2013 (Annexure- P/15). Since, the Collector did not decide the said application, the petitioner filed W.P. No.3450/2014 before this Court. The said writ petition was disposed of on 04.03.2014 (Annexure- P/2) by directing the Collector to consider and decide the representation of the petitioner. In turn, the Collector passed the impugned order dated 28.04.2014 and rejected the representation.
3. Shri Gupta, learned counsel for the petitioner, assailed this order by contending that the petitioner was eligible and was all along willing to perform his duties from the date of his selection. However, for the reasons solely attributable to the respondents, he was deprived from the fruits of appointment because five marks were not given to him. Later on they realized their mistake and gave five marks which resulted into issuance of the appointment order. In all fairness, the petitioner and other persons who were selected by same selection should have been given appointment from the same date i.e. 16.08.2011 and the petitioner is entitled to be treated as appointed w.e.f. 16.08.2011 with the financial benefits and seniority. By placing reliance on 2011 (5) MPHT 221 (Laxman Singh Vs. State of M.P. and others) and 2011 (2) MPHT 217 (Chandra Shekhar Verma Vs. State of M.P. and others), it is contended that when the petitioner was ready to perform his duties and he was deprived to do so by the action of the respondents, he cannot be deprived from the benefit of seniority and financial benefits.
4. Per contra, Shri Chatarjee, learned P.L. for the State supported the impugned order dated 28.04.2014. By placing reliance on the return, it is submitted that the petitioner was appointed on a subsequent date and, therefore, the question of granting him seniority from the date anterior to it, does not arise. The petitioner has not performed the duties from 16.08.2011 and hence, he cannot claim backwages for the said period.
5. No other point is pressed by learned counsel for the petitioner.
6. I have heard learned counsel for the parties at length and perused the record.
7. The aforesaid factual matrix makes it crystal clear that the petitioner and other candidates who were appointed on 16.08.2011, submitted their candidature pursuant to same advertisement and for the same selection. The respondents have committed an error in not granting five marks to the petitioner which resulted into his non- selection. In obedience of the Court's order passed in the first round, the respondents partially realized their mistake and issued appointment order of the petitioner. The first issue which needs consideration is :whether the respondents were required to appoint the petitioner along with his batchments and from the same date ? In the opinion of this Court, the petitioner's contention has substance. When the petitioner and other candidates submitted their candidature for the same selection and the respondents have committed an error in not granting adequate marks of experience to the petitioner, he cannot be deprived from the fruits of his selection from the date his batchments were selected. The petitioner was not at fault and, therefore, he cannot be deprived from the benefit of ante dated appointment.
8. This is settled law that in exercise of power under Article 226 of the Constitution, the High Court can pass necessary orders to prevent injustice to the petitioner. In AIR 1966 SC 81 (Dwarka Nath vs. Income Tax Officer), the Apex Court held as under:
âThis article is couched in comprehensive phraseology and it ex facie confers a wide power on the High Court to reach injustice wherever it is found. The Constitution designedly used a wide language in describing the nature of the power , the purpose for which and the person or authority against whom it can be exercised. It can issue writs in the nature of prerogative writs as understood in England; but the scope of those writs also is widened by the use of the expression "nature", for the said expression does not equate the writs that can be issued in India with those in England, but only draws an analogy from them. That apart, High Courts can also issue directions, orders or writs other than the prerogative writs. It enables the High Courts to mould the reliefs to meet the peculiar and complicated requirement of this country. Any attempt to equate the scope of the power of the High Court under Article 226 of the Constitution with that of the English Courts to issue prerogative writs is to introduce the unnecessary procedural restrictions grown over the years in a comparatively small country like England with a unitary form of Government to a vast country like India functioning under a federal structure. Such a construction defeats the purpose of the article itself.â [Emphasis supplied]
9. In 1985 Supp. SCC 476 (ITC Ltd. vs. State of Karnataka), the Apex Court opined as under:-
âThe Court can mould its directions in order to give relief in a particular situation. Courts of today cannot and do not any longer remain passive with the negative attitude, merely striking down a law or preventing something being done. The new attitude is towards positive affirmative actions, directing people or authorities concerned that " thou shall do't" in this manner.â [Emphasis Supplied]
10. In 1995 (6) SCC 749 [B.C. Chaturvedi vs. Union of India], the Apex Court held as under:
â The mere fact that there is no provision parallel to Article 142 relating to the High Courts, can be no ground to think that they have not to do complete justice, and if moulding of relief would do complete justice between the parties, the same can be ordered. Absence of provision like Article 142 is not material. Power to do complete justice also inheres in every court, not to speak of a court of plenary jurisdiction like High Court.â
11. In Badri Nath Vs. Govt. of T.N. reported in 2000 (8) SCC 395, the Apex Court held as under :-
"88. â¦...... we might emphasise that the power of this Court to mould the relief in the interests of justice in extraordinary cases cannot be doubted. In Comptroller & Auditor General of India v. K.S. Jagannathan such a power on the part of this Court was accepted by a three-Judge Bench. Madon, J. referred to the observations of Subba Rao, J. (as he then was) in Dwarka Nath v. ITO wherein the learned Judge explained that our Constitution designedly used wide language in Article 226 to enable the Courts to "reach justice wherever found necessary" and "to mould the reliefs to meet peculiar and complicated requirements of this country". Justice Madon also referred to Rochester Corpn. v. R. R. v. Revising Barrister for the Borough of Hanley Padfield v. Minister of Agriculture Fisheries and Food and to a passage from Halsbury's Laws of England, 4th Edn. Vol. 1, p. 59. Finally Madon, J. observed: (SCC pp. 692-93, para 20) "20. There is thus no doubt that the High Courts in India exercising their jurisdiction under Article 226 have the power to issue a writ of mandamus or a writ in the nature of mandamus or to pass orders and give necessary directions where the Government or a public authority has failed to exercise or has wrongly exercised the discretion conferred upon it by a statute or a rule or a policy decision of the Government or has exercised such discretion mala fide or on irrelevant considerations or by ignoring the relevant considerations and materials or in such a manner as to frustrate the object of conferring such discretion or the policy for implementing which such discretion has been conferred. In all such cases and in any other fit and proper case a High Court can, in the exercise of its jurisdiction under Article 226, issue a writ of mandamus or a writ in the nature of mandamus or pass orders and give directions to compel the performance in a proper and lawful manner of the discretion conferred upon the Government or a public authority, and in a proper case, in order to prevent injustice resulting to the parties concerned, the court may itself pass an order or give directions which the Government or the public authority should have passed or given had it properly and lawfully exercised its discretion."
[Emphasis Supplied]
12. The Division Bench of Calcutta High Court presided by the Hon'ble Chief Justice Shri S.S. Nijjar and Justice Shri Pinaki Chandra Ghose (as their Lordships then were) in Association for Protection of Democratic Rights Vs. The State of West Bengal and Ors (A.S.T. No. 205/2007) followed the aforesaid judgments of Supreme Court and opined that the High Court in exercise of power under Article 226 of the Constitution can do complete justice between the parties. This Court followed the said view in AIR 2016 MP 86/2016 (1) MPLJ 474 [Little Angels Shiksha Samiti vs. State of M.P.]
13. In Badri Nath (supra), it was held that in exercise of power under Article 226 of the Constitution, the High Court can issue mandamus or orders to compel the performance in a proper and lawful manner by the Government Authority. Where the Government Authorities have failed to act in a proper manner, the Court itself can pass appropriate order which the Government or public authority should have passed if they would have acted in accordance with law.
14. In the considered opinion of this Court, since the petitioner was ultimately selected pursuant to the same selection, in all fairness, his appointment order should have been issued from the date his juniors were appointed on 16.08.2011. The respondents have clearly erred in depriving the petitioner from the fruits of appointment w.e.f. 16.08.2011.
15. Accordingly, the respondents are required to treat the petitioner's appointment w.e.f. 16.08.2011. The respondents are also required to grant appropriate seniority to the petitioner from the said date. The respondents shall fix inter se seniority of petitioner and his batchments by passing appropriate order. The department may fix seniority in accordance with Rule 12 of the M.P. Civil Services (General Condition of Services) Rules, 1961.
16. So far the question of backwages is concerned, it is clear that the petitioner has not performed his duties during this period. Reliance is placed on two judgments of this Court, which are related with promotion. In the opinion of this Court, the respondents have committed an error in not appointing petitioner from back date, but all the same, the petitioner has not rendered the services during the said period. Hence, I am not inclined to grant backwages to the petitioner from the date of his ante dated appointment. However, respondents shall fix the pay of the petitioner on notional basis w.e.f. 16.08.2011 and grant him same benefit notionally which he would have earned had he been appointed since 16.08.2011. This entire exercise shall be completed within 60 days from the date of production of copy of this order.
17. Petition is allowed to the extent indicated hereinabove.
(SUJOY PAUL) JUDGE Biswal