Madhya Pradesh High Court
Vinod Shrimal vs Principal Secretary The State Of Madhya ... on 27 March, 2023
Author: Vivek Rusia
Bench: Vivek Rusia
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IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
ON THE 27th OF MARCH, 2023
WRIT PETITION No. 13454 of 2010
BETWEEN:-
VINOD SHRIMAL S/O LATE KAMAL KISHORE
SHRIMAL, AGED ABOUT 39 YEARS, OCCUPATION:
COMPUTER (SANGANAK) O/O CHIEF MEDICAL &
HEALTH OFFICER, DHAR 26,SHANTI KUNJ,DHAR
(MADHYA PRADESH)
.....PETITIONER
( BY SHRI AMIT S. AGRAWAL, SENIOR COUNSEL ALONGWITH
ALONGLWITH SHRI ARJUN AGRAWAL-ADVOCATE)
AND
THE STATE OF MADHYA PRADESH THROUGH
PRINCIPAL SECRETARY PUB.HEALTH & FAMILY
1.
WELFARE DEPARTMENT MANTRALAYA, VALLABH
BHAWAN, BHOPAL, M.P.
HEALTH COMMISSIONER MADHYA PRADESH
2.
SATPURA BAHWAN BHOPAL (MADHYA PRADESH)
CHIEF MEDICAL AND HEALTH OFFICER, DISTRICT
3.
DHAR (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI RANJEET SEN-ADVOCATE)
This petition coming on for orders this day, the court passed the
following:
ORDER
Petitioner has filed the present petition being aggrieved by the order dated 09.11.2010 whereby order dated 17.09.2003 has
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been set aside and petitioner has been redesignated as Multi Purpose Worker.
The facts of the case are as under:-
1. Late Shri Kamal Kishore Shrimal was working in Health Department and died on 20.05.1994. The petitioner being his son applied for compassionate appointment and accordingly, vide order dated 25.10.1994, he was appointed as Multi Purpose Worker in the pay scale of Rs.870-1420 on a compassionate basis. The post of Multi Purpose Worker is a cadre post in Madhya Pradesh Public Health & Family Welfare Department Non- Ministerial (Related to the Directorate of Health Service) Class- III Service Recruitment Rules, 1989 (hereinafter referred to as '' Non-
Ministerial Rules for convenience") which came into enforce w.e.f.10.08.1989.
2. Another set of Rules known as Madhya Pradesh Public Health & Family Welfare Department Ministerial (Related to the Directorate of Health Service) Class- III Service Recruitment Rules, 1989 (hereinafter referred to as '' Ministerial Rules'' for convenience") came into enforce w.e.f. 18.07.1989. Under these Rules, the post of Lower Division Clerk also carries the same pay scale of Rs.870-1420. The petitioner made representation on 16.03.2002 to the Commissioner of Health Services that he be re-designated or posted to the post of LDC. That the Chief Medical & Health Officer has forwarded his representation with his recommendation to Health Commissioner. In turn, the Commissioner has directed to Chief Medical & Health Officer to place the matter of the petitioner before the Distt
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Planning committee and do the needful. On 11.09.2003, the case of the petitioner was placed before District Planning Committee and after approval on 17.09.2003, the petitioner's designation was changed and he was appointed to the post of Assistant Grade-III equivalent to LDC in the existing scale of Rs.3050-4590.
3. As per the condition of the appointment and as per the prescribed qualification for the post, the petitioner passed the Hindi typing Examination on 30.06.2004. After passing Hindu Typing Examination, he was given the increment on 30.06.2004. The petitioner was also declared successful in the account training examination on 04.11.200 and for which an additional increment of Rs.75 was also sanctioned to him . The petitioner was also placed in the gradation list of Assistant Grade-III published on 01.07.2008.
The Departmental Promotion Committee meeting was convened and vide order dated 27.01.2009, the petitioner was promoted to the post of Computer (Sanganak) with and fixed pay scale of Rs.3500- 5200 Rs. 4060/-. The petitioner has been given the benefit of 6th pay commission and the pay was fixed at Rs.10,780/-.
4. All of a sudden, vide order dated 09.11.2010, the order dated 17.09.2003 has been recalled and the petitioner has been reverted to the post of MPW which has resulted in the cancellation of his promotion, increments and pay fixation. Hence the present Writ Petition before this court. This court vide order dated 23.11.2010 has stayed the effect of the impugned order, hence since the petitioner is working on the promotional post of Computer till date .
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5.. The petitioner has filed the present petition on two grounds, firstly that before passing the impugned order, no opportunity of a hearing was given to him. Secondly, the pay scale of LDC as well as MPW are the same and as per Rules 6 (1) (c) of Ministerial Rules his appointment to the post of LDC by way of transfer is valid as he was holding the MPW in a substantive capacity.
6. Shri Amit Agrawal, learned Senior Counsel submits that it is not a case of respondents that the petitioner does not fulfil the qualification for the post of LDC and now for the post of computer (Sanganak). He had worked on the post of LDC and thereafter working on the post of Computer (Sanganak) without any complaint. This Court vide order dated 23.11.2010 has stayed the effect of the impugned order, since then the petitioner is continuously working and now reversion to the lower post of MPW will cause great prejudice to the petitioner. During these 20 years, MPWs appointed alongwith the petitioner have been promoted.
Now the respondents may not give him the benefit of the promotion from the MPW post to the next post.
5. It is further submitted by the learned senior counsel that the petitioner was appointed on a compassionate basis, not by way of the regular selection process prescribed under the Rules. He was eligible for appointment to the post of Assistant Grade-III also but he was appointed to the post of Multi Purpose Worker. Even the Deputy Director, Health services vide in his letter dated 24.06.2002 has mentioned that he was to be appointed to the post of Assistant Grade-III. The matter was placed before the District Planning
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Committed and after approval, the petitioner was appointed to the post of Assistant Grade-III on pay scale of Rs.3050-4590 from the date of joining the duty. After the recommendation of the committee, the concerned Minister granted approval on 11.07.2003. In the gradation list also his initial date of appointment is written as 18.09.2003, therefore, he is not getting the benefit of his past services rendered from 28.06.1994 to 17.09.2003. hence prays that impugned order be see aside.
6. The respondents have filed a return by submitting that under the Ministerial Rules, 1989 there is no provision for transfer from one post to another when both are governed under different recruitment rules, even if pay scale of both the posts are same. The respondents have admitted that they are ready to give all the benefits like pay, promotion etc. to the petitioner from the date of appointment to the post of Multi Purpose Worker. Hence learned Government Advocate submits that Writ Petition is liable to be dismissed.
I have heard learned counsel for the petitioner and perused the record.
7. The facts of the case are not in dispute that the petitioner was appointed on 20.05.1994 on a compassionate basis to the post of Multi Purpose health worker on account of the death of his father. In the year, 2002, the petitioner made representation for appointment to the post of Dresser/LDC.The Deputy Director forwarded the representation with the recommendation in his
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favour. The Deputy Director vide letter dated 24.06.2002 has directed CMHO, Dhar that power given to District Government (Jila Sarkar) in respect of class III and Class IV employees, therefore, petitioner be posted as LDC and informed accordingly. The representation of the petitioner was placed before the District Planning Committee which recommended 11.09.2003, thereafter Director vide note sheet dated 24.06.2002 placed it before the concerned Minister and approval was given on 11.07.2003. According the CMO has appointed the petitioner to the post of Assistant Grade-III to pay scale 3050-4590 from the date of joining. His seniority shall be counted from the date of joining and he would have passed Hindi Typing Examination. At the relevant point in time, District Planning Committee ( Jila Sarkar) was competent in the matter of Class-III and Class-IV employees. The petitioner has simply made representation seeking posting of his choice on a compassionate basis but the case of the petitioner was recommended and thereafter sent to the District Planning Committee i.e. Jila Sarkar and from due approval by the Minister the petitioner was posted with the condition to pass Hindi Typing Examination. Admittedly, the petitioner passed Hindi Typing Examination on 29.02.2004, thereafter he was given an increment. He has also passed the account examination for which also increment was given to him. He was placed in the gradation list of Assistant Grade-III treating to be appointed on 18.09.2003, thereafter, he was promoted to the post of Computer (Sanganak) on 27.01.2009. He was also given the benefit of 6 th pay commission.
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8. All of sudden, without giving any notice to the petitioner the order 17.09.2003 has been cancelled and he has been reverted back to the MPW post. However, the petitioner was not given any opportunity of hearing. The case of the petitioner is treated as a change of post under Recruitment Rules, 1989 but the language of the order dated 17.09.2003 makes it clear that the petitioner was appointed to the post of Assistant Grade-III. Had it been the case of change of post, he would have been treated as appointed on Assistant Grade-III from the date of the initial appointment of MPW i.e. on 19.10.1994.
In view of above, this Writ Petition is allowed, the order dated order dated 09.11.2010 is hereby set aside.
No order as to cost .
(VIVEK RUSIA) JUDGE praveen Digitally signed by PRAVEEN Date: 2023.04.01 13:40:00 +05'30'