Madhya Pradesh High Court
Rajendra Singh Jat vs Revenue Department on 19 April, 2018
W.P. No.1357/2016, 1689/2016 & 4308/2016 1
HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE
W.P. No.1357/2016
Madan Lal Kayat & Ors v/s State of M.P. & Ors
W.P. No.1689/2016
Mukesh Shrivas v/s State of M.P. & Ors
&
W.P. No.4308/2016
Rajendra Singh Jat & Ors v/s State of M.P. & Ors
Indore, dated 19.04.2018
Shri L.C. Patne, learned counsel for the petitioners in
W.P. No.1357/2016 & 1689/2016.
Shri Manoj Manav, learned counsel for the petitioner in
W.P. No.4308/2016.
Shri Umesh Gajankush, learned Deputy Advocate
General for the respondents/State.
Regard being had to the similitude in the controversy involved in the present cases, these writ petitions were analogously heard and by a common order, they are being disposed of by this Court. Facts of the Writ Petition No.1357/2016 are narrated hereunder.
The petitioners before this Court, who have been appointed as Process Server from time to time and some of them, who are still in service are aggrieved by the order dated 11.03.2016 by which their representation for grant of regular appointment on Group-D post/Process Service/Peon has been turned down. They are also aggrieved by the circular dated 17.12.2008 and 19.08.2010 (Annexure-R/1) passed by the respondents.
The facts of the case reveal that the petitioners were employed as Process Server in Tehsil-Depalpur, Tehsil-Mhow and in Tehsil-Indore from time to time and some of them have completed 30 years' of service as Process Server. A detailed W.P. No.1357/2016, 1689/2016 & 4308/2016 2 chart showing their educational qualifications and the date of engagement reads as under:-
Petitioner Date of initial Educational Caste/Category Number appointment Qualification
1. 01.11.1986 6th S.C.
2. 01.01.1999 High School S.C.
3. 04.11.1986 5th OBC
4. 1999 10th UR
5. 28.10.1993 8th S.C.
6. 02.12.2006 8th OBC
7. 03.12.1997 8th OBC
8. 15.01.2003 B.Com OBC
9. 02.01.1997 8th OBC
10. 01.12.2000 8th UR
11. 01.01.2004 9th OBC
12. 01.02.2000 8th S.C.
13. 01.11.1989 8th S.C The Process Servers were engaged throughout the State of Madhya Pradesh to carry out the recovery process in respect of revenue matters and it was perennial process. They were engaged under the revenue recovery scheme and as some of them were being discontinued and some of them were claiming regularization, they approached the M.P. State Administrative Tribunal by filing an original application and on abolition of M.P. State Administrative Tribunal, their original application was transferred to this Court, which is registered as W.P. No.7210/2003. The petition filed by similarly placed persons was decided with certain directions on 25.11.2003. Based upon the direction issued by this Court W.P. No.1357/2016, 1689/2016 & 4308/2016 3 on 25.11.2003, the State Government has issued a circular dated 19.10.2005 and the same reads as under:-
Ek/;izns'k 'kklu] jktLo foHkkx ea=ky;
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The petitioners' grievance is that in all other districts of the State of Madhya Pradesh, the Process Servers have been regularized by appointing them on the post of peon and the petitioners, who dwell from District-Indore have singled out and have been victimized also.
It has been stated by Shri L.C. Patne that oral threat has been given by the Collector to all the petitioners to withdraw the present writ petition and the petitioners, who were present in Court have also stated so that they were threatened by the Collector to withdraw the writ petition, then only the claims will be considered for regularization. Shri Patne has drawn the attention of this Court towards order dated 02.07.2005 (Annexure-P/5), which are the order filed collectively in respect of various districts of the State of Madhya Pradesh regularizing such Process Servers.
Undisputedly, another writ petition was also earlier preferred before this Court by Ravi Raj Guru, who is the present petitioner along with other persons and all of them are the writ petitioners in the present case. They came up with a grievance that in spite of there being a circular issued by the State Government dated 19/17.10.2005 for regularizing their services, they are not being regularized. This Court by an order dated 27.01.2012 has passed the following order:-
"This order will govern the disposal of W.P. Nos.11735/2010 (s), 11736/2010 (s), 11738 2010 (S) W.P. No.1357/2016, 1689/2016 & 4308/2016 5 & 11739/2010 (s). Since these petitions involve the common question, therefore, they are heard analogously.
1. These petitions have been filed by the petitioners seeking a direction to the respondents to regularize the services of the petitioners on the post of peon.
2. The petitioners were appointed as Process Server/ Recovery Peon. The State Government had issued the Circular dated 17.10.2005 fore regularization of the services of the Process Servers on the post of peon in the regular establishment.
Thereafter the order dated 16.01.2006 was issued for expeditious action for regularization of Process Servers and further order dated 29.05.2007 was issued to all the District Collectors for regularization of the Process Servers on the post of Peon (Class IV Post), as per the earlier Circular dated 29.10.2005. Thereafter the Process Servers working in the other districts have been regularized bu the Process Servers working in the Indore District have not been regularized so far. The petitioners had submitted representations also in this regard but no action has been taken.
3. A reply has been submitted by the respondents admitting that, vide circular dated 29.05.2007, priority is to be given to the Process Servers in the appointment of the regular peon. They have taken a stand that whenever the post of regular peon will be available, at the time of filing up of the vacant post the said circular will be followed.
4. I have heard the learned counsel for the parties and perused the record.
5. It is undisputed before this Court that the petitioners are entitled to the benefit of the Circular dated 29.05.2007. It is also undisputed that the Process Servers similarly situated in other districts have already been granted the benefit of circular dated 29.05.2007. The only plea which has been raised by the respondents is that the regular post of the peon is no available.
6. In view of this, the present writ petition is disposed of by directing the respondents to consider the case of petitioners in the light of the Circular dated 29.05.2007 as and when the regular post of the peon becomes available without causing any delay.
7. The writ petitions are accordingly disposed of.
8. The signed order be retained in the file of W.P. No.11735/2010 (s) and a copy whereof be placed in the connected matters."
W.P. No.1357/2016, 1689/2016 & 4308/2016 6The respondents were directed in the year 2012 to consider the case of the petitioners for regularization as and when regular posts in the establishment are available. Thereafter, the cases of the petitioners were not considered and a contempt petition was preferred i.e. Conc No.547/2013 decided on 11.11.2013 and the order passed by the learned Single Judge dated 11.11.2013 reads as under:-
This is a petition for drawing the contempt proceedings on account of non compliance of order dated 27.01.2012 passed by this court in W.P.No.11735/2010, whereby petition filed by the petitioner was disposed of holding that petitioners are entitled to the benefit of the Circular dated 29.05.2007. It was also observed by this Court that undisputedly the process servers similarly situated in other districts have already been granted the benefit of the Circular dated 29.05.2007. This Court also took into consideration that the plea of the respondents is that regular post of the peon is not available, therefore it was directed to consider the case of the petitioners in the light of the Circular dated 29.05.2007 as and when the regular post of the peon becomes available without causing any delay.
From perusal of the record, it appears that after the orders passed by this Court on 27.01.2012 the representation was submitted by the petitioners on 09.12.2012, wherein it was clarified that 27 posts of peons are lying vacant. This representation remains unheard till to this date. In the facts and circumstances of the case, the petition is disposed of with a short direction that upon submission of fresh representation along with earlier representation dated 09.02.2012 alongwith the copy of the order dated 27.01.2012 and passed today, the respondent No.2 shall look into the matter and shall do the needful within 12 weeks positively without fail to ensure the compliance of the order dated 27.01.2012, failing which if the petitioners are compelled to approach this court again for the same relief, then respondent No.2 shall be liable to bear the litigation expenses which is quantified as Rs. 5,000/- per petitioner.
With the aforesaid, petition stands disposed of."
The contempt petition was disposed of with a cost of W.P. No.1357/2016, 1689/2016 & 4308/2016 7 Rs.5,000/- directing the respondents to do the needful within twelve weeks. In spite of the aforesaid, the respondents kept on forwarding the matter to higher authorities. The matter was forwarded by the Joint Collector to the Collector Indore vide letter dated 17.11.2014 and finally the claim of the petitioners has been rejected by an order dated 11.03.2016 (Annexure- R/4 & R/5).
The petitioners contention is that once there is a judgment delivered by this Court. It has been implemented in large number of district of the State of Madhya Pradesh. The petitioners, who are from Indore District, cannot be discriminated and the act of the respondents is violative under Articles 14, 16 and 21 of the Constitution of India.
Shri L.C. Patne, learned counsel for the petitioner has drawn the attention of this Court towards the affidavit filed by one Shri M.K. Agrawal, Principal Revenue Commissioner filed on 24.07.2017.
This Court on 16.05.2017 has directed the Principal Revenue Commissioner to file affidavit in respect of action taken by the State Government in the matter of regularization of Process Server. The affidavit includes statement of chart and Dr. M.K. Agrawal in his affidavit has stated that the information, which is being supplied to this Court is based upon the official record as well as based upon his personal knowledge. He has also stated that he has not conceded anything in the affidavit. The chart annexed with the affidavit reveals that not a single person has been regularized in the District-Sidhi, whereas at page-17 (Annexure-P/5), there is an order regularizing people, who are working as Process Server on the post of peon in the District-Sidhi. Again at page-18, W.P. No.1357/2016, 1689/2016 & 4308/2016 8 there is an order in respect of District-Madnla regularizing process server and the Principal Revenue Commissioner in his affidavit and the information supplied to this Court has categorically stated that not a single person has been regularized. At serial No.18 of the chart supplied along with the affidavit by the Principal Revenue Commissioner, he has stated that not a single person has been regularized, whereas there is an order passed by the respondents at page-27 of the writ petition and as many as 20 persons have been regularized. In respect of Dewas, it has been stated that not a single person has been regularized, whereas as many as 13 persons have been regularized. Only in respect of District- Dewas, a statement has been made that the persons, who are working, are working on account of strength of some order passed by this Court, meaning thereby, an officer, who is on rank of Principal Revenue Commissioner in order to frustrate the present petition, has submitted a totally false affidavit stating that no one has been regularized in certain districts, whereas the record establishes otherwise.
In respect of District-Dewas, it has been pointed out by the learned Government Advocate that the orders were issued by the State Government for deregularizing the persons, who have been regularized and they have approached this Court by filing a writ petition and their writ petition has been allowed by order dated 21.07.2014 passed in W.P. No.8028/2013. The order passed by this Court in W.P. No.8028/2013 reads as under:-
"The petitioners before this court have filed this present petition being aggrieved by the order dated 24.06.2013 passed by the Collector, Dewas, District Dewas, by which the order regularizing the petitioners dated 30.06.2010 has been cancelled.W.P. No.1357/2016, 1689/2016 & 4308/2016 9
The facts of the case reveal that the petitioners were appointed in the year 1987, 1993, respectively as Peon/ Process Server and a circular was issued on 19.10.2005 (Annexure-P-3) for regularizing the Peons/ Process Servers. The petitioners have further stated that pursuant to the aforesaid circular, gradation list was prepared in respect of Peons/ Process Servers serving the Dewas District and a Committee was constituted to consider the cases of Peon/ Process Server working as daily wagers for regularization. The committee submitted his report and an order was passed on 30.06.2009 directing regularization of the petitioners. Petitioners have further stated that without granting any opportunity of hearing an order of regularization was cancelled vide order dated 26.10.2010 and the petitioners being aggrieved by the aforesaid action of the State Government came up before this report by filing a Writ Petition. Writ petition was allowed vide order dated 27.08.2011 and the respondents therein were directed to grant opportunity of hearing to the petitioners and to pass a fresh order. It has been further stated that a show cause notice was issued on 13.08.2012 and thereafter respondents have passed an order dated 24.06.2013 cancelling the petitioners' regularization. Petitioners are aggrieved in the matter of cancellation of regularization.
Reply has been filed in the matter and the stand of the State Government is that a circular was issued on 17.12.2008, wherein preference was to be given to serving Process Servers in the matter of appointment on the post of Process Servers/ Peons and the respondents by giving erroneous interpretation of circular dated 17.12.2008 constituted a Committee to regularize the petitioners. The stand of the State Government is that the Circular dated 17.12.2008 was not meant for regularization and it was a circular meant for fresh apportionment and, therefore, they have rectified the mistake.
Respondents have placed reliance upon another Circular dated 19.08.2010 and their stand is that the post of Process Server is a temporary post and the Process Server only works for six months in a year and, therefore, they are not entitled to be regularized. The stand of the State Government is that by virtue of the Circular dated 19.08.2010, Process Servers are not entitled to be regularized.
Heard learned counsel for the parties and perused the record.
In the present case, it is an admitted fact that the petitioners are working since 1987 and 1993, W.P. No.1357/2016, 1689/2016 & 4308/2016 10 respectively. The first Circular issued by the State Government which is on record is dated 19.10.2005. The aforesaid circular which has been issued by the State Government has issued directions to consider the cases of Process Servers working through out the State Government of Madhya Pradesh for regularization. The second Circular which has been filed alongwith the return is dated 17.12.2008. The aforesaid Circular do provides for a preferential treatment to Process Servers working as dailywagers in the matter of fresh appointments. The third circular is on record dated 19.08.2010 (Annexure-R-1). The aforesaid circular provides that the employees working as Process Server cannot be regularized. In fact, the circulars issued by the State Government are contradictory in nature. In the first circular dated 19.10.2005, it has been categorically stated that the Process Servers are entitled for regularization. The circular issued in the year 2008 provides that Process Servers will be given preference in the matter of fresh appointment and now the State Government has taken a somersault in the year 2010 by stating that Process Servers are working only for a period of six months. The case of the petitioners were considered by the Screening Committee for the purposes of regularization and the Screening Committee after taking into account the Circulars dated 2005 and 2008 have regularized the petitioners on the post of Process Servers.
This court is of the considered opinion that the petitioners who are working since 1987 and 1993 cannot be relegated to the status of dailywagers as they were regularized keeping in view the executive instructions issued by the State Government from time to time.
This court is of the considered opinion that the Circulars dated 19.10.2005, which was issued exclusively for Process Servers has to be made applicable in all fairness to the Process Servers serving the State of Madhya Pradesh. Change of stand by the State Government will not extinguish the right created to the petitioners specially when the State Government has acted upon there on Circulars issued in the year 2005 and 2006.
Resultantly, the impugned order dated 24.06.2013 is hereby quashed. The petitioners shall be entitled for all consequences benefits flowing out of the order dated 19.10.2005, by which they have been regularized on the post of Process Servers.
The petition stands allowed.
No order as to costs."
The order has attained the finality and no writ appeal W.P. No.1357/2016, 1689/2016 & 4308/2016 11 was preferred by the State Government for reasons best known nor any SLP was preferred against the persons, who were regularized and deregularized and after relief was granted by this Court, they are very much continuing in service, meaning thereby, in the entire State of Madhya Pradesh, the persons who are identically placed like the present petitioners are working as Process Server and majority of them have been regularized and only the petitioners have not been regularized in spite of large number of post, which became vacant every year in the District-Indore.
At page-57 (Annexure-P/10A), the petitioners have filed a list of vacant posts available and the aforesaid list is showing position of the year 2012. The sanction strength in year 2012 was 107 and the vacant strength was 24. We are in the year 2018 and naturally there must have been increase in the sanction strength as well as in respect of vacant position. It is not the case of the State Government that no posts are available in the District-Indore.
This Court is witnessing a very dangerous trend these days. The officer In-charge of the case, the officer holding the charge of the Principal Revenue Commissioner is bent upon to ensure that relief is not granted to Government servant or an individual and has gone to the extent of filing affidavit with incorrect information.
It is true that in case of State of Karnatka v/s Uma Devi, the apex Court has deprecated the practice of regularization, but in the present case, the facts are altogether distinguishable. This is a case where benefit of circular dated 19.10.2005 has been given to majority of people and only some persons, who are identically placed like the present W.P. No.1357/2016, 1689/2016 & 4308/2016 12 petitioners have been deprived from the benefit of Group-D post in Indore District. Not only this, the circular dated 19.10.2005 was issued in order to comply the judgment delivered in W.P. No.7210/2003. The State Government has never approached this Court for reviewing the order passed in W.P. No.7210/2003. On the contrary, they have implemented the judgment in the entire State of Madhya Pradesh barring District-Indore, and therefore, as it is a clear cut case of discrimination, the petitioners form a class and within the class, there can be no discrimination, this Court is of the opinion that the petitioners are also entitled for the benefit of regularization, which has been extended to other persons in light of circular dated 16/19.10.2005.
The apex Court in the case of Union of India v/s Madra Telephone SC & St Social Welfare Assn. reported in (2006) 8 SCC 662 in paragraph 21 has held as under:-
21. Having regard to the above observations and clarification we have no doubt that such of the applicants whose claim to seniority and consequent promotion on the basis of the principles laid down in the Allahabad High Court's judgment in Parmanand Lal case have been upheld or recognised by the Court or the Tribunal by judgment and order which have attained finality will not be adversely affected by the contrary view now taken in the judgment Madras Telephones. Since the rights of such applicants were determined in a duly constituted proceeding, which determination has attained finality, a subsequent judgment of a court or Tribunal taking a contrary view will not adversely affect the applicants in whose cases the orders have attained finality. We order accordingly.
In light of the aforesaid judgment, the rights of the petitioners were determined in a duly constituted proceedings. They have attained finality and a subsequent judgment of a Court and of a Tribunal taking a contrary view will not adversely effect the rights of the present petitioners.
W.P. No.1357/2016, 1689/2016 & 4308/2016 13Resultantly, the respondents are directed to pass an appropriate order in the matter of regularization keeping in view the policy dated 16/19.10.2005 within a period of thirty days from the date receipt of certified copy of this order.
In light of the aforesaid, the subsequent circular issued by the State Government dated 19.08.2010 is hereby qaushed and the impugned order dated 11.03.2016 is also quashed.
With the aforesaid, the present petition stands allowed with a cost of Rs.25,000/-.
In the present case, Dr. M.K Agrawal has filed an affidavit, which contains all incorrect information and prima facie it appears that he has filed the affidavit in order to defeat the purpose of justice. This Court is of the opinion that he has prima facie committed contempt of this Court as well as an offence under Section 340 of the Code of Criminal Procedure.
Let a proper notice be issued to Dr. M.K. Agrawal, Principal Revenue Commissioner, State of Madhya Pradesh to show cause as to why the action should not be initiated against him.
Office is directed to register a separate case against Dr. M.K. Agrawal and to issue notice to Dr. M.K. Agrawal in the matter. Notices be issued to M.K. Agrawal by the Registry of this Court, returnable within four weeks and the case registered against Dr. M.K. Agrawal, Principal Revenue Commissioner be listed on 14th May 2018.
In the connected matter i.e. W.P. No.4308/2016, all the petitioners, who were appointed in the year 1989 are still working, and therefore, they are also entitled for the same relief, which has been extended to the writ petitioners of W.P. No.1357/2016.
W.P. No.1357/2016, 1689/2016 & 4308/2016 14This petition (W.P. No.7308/2016) also stands allowed with a cost of Rs.25,000/-.
In other connected matter i.e. W.P. No.1689/2016, the petitioner is working since 01.12.1999, and therefore, they are also granted relief, as has been granted to the writ petitioners in W.P. No.1357/2016.
This petition (W.P. No.1689/2016) also stands allowed with a cost of Rs.25,000/-.
Certified copy as per rules.
(S.C. Sharma) Judge Ravi Digitally signed by Ravi Prakash Date: 2018.04.21 16:51:26 +05'30'