Madhya Pradesh High Court
Jitendra Kumar Gupta vs The State Of Madhya Pradesh on 8 May, 2018
THE HIGH COURT OF MADHYA PRADESH
Writ Petition No. 7223/2016
Jitendra Kumar Gupta and others
Vs.
State of M.P. and others
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Shri Brindawan Tiwari,, learned counsel for the
petitioners.
Shri Satyam Agrawal, learned counsel for the
respondent No.3.
Smt. J. Pandit, learned G.A. for the respondents/State.
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ORDER
(08/05/2018) Petitioners have filed the present petition challenging the orders dated 01.10.2015 and 07.01.2016 passed by the respondents No. 5 and 6. The petitioners were appointed on the post of Male Staff Nurse after facing the due selection process in the year 2009-2010, however their services were terminated on 11.04.2011 on the ground that services of the petitioners are not required. In the present case, the State Government issued an advertisement for inviting application from woman candidate for appointment on the post of Staff Nurse and the male Staff Nurse were not permitted to apply. The said condition of the advertisement was challenged in W.P. No. 10550/2010 (Sajid Khan Vs. State of M.P.) before this Court. This Court has allowed the said writ petition and set aside the condition of 100% reservation in favour of woman candidate. Petitioners, therefore, stated that after judgment passed by this Court, the respondents should not have terminated the services of male Staff Nurse only.
2. The petitioners further submit that after the judgment passed in the said writ petition, the petitioners have been permitted to join, however all others candidates are still continued. A writ appeal was preferred against the order passed in writ petition and the said W.A. No. 182/2011 was also dismissed vide order dated 18.05.2012, thereafter various writ petitions were filed in different Benches of the Hon'ble High Court and in the said writ petitions the order of termination was set aside and a direction was issued to consider the claim of the petitioners for their appointment on the post of Staff Nurse. One of such petition is being W.P. No. 2945/2011, which was filed before Gwalior bench and similar W.P. No. 8982/2011 was filed before Indore Bench and the Indore Bench of this Court has passed an order dated 04.05.2012 directing the respondents to reinstate the male Staff Nurse and permit them to continue the work until the scheme is in existence. The petitioners also filed W.P. No. 4000/2011 at Gwalior Bench, whereby an order was passed to consider the case of the petitioner in the light of the judgment passed in W.P. No. 2945/2011. As the order passed by this Court was not complied with, therefore, the petitioners have filed Contempt Petition No. 898/2015. After filing the contempt petition, the respondents have passed an order dated 07.01.2016, thereby rejecting the claim of the petitioners for appointment.
3. The learned counsel for the petitioners submits that the candidates who were appointed in 2010 as male Staff Nurse are continued except the petitioners. Thus, the action of the respondents/State is highly arbitrary, discriminatory and, therefore, liable to be set aside the State has not filed any reply and the main contesting party is respondent No. 3 and respondent No. 3 has filed the preliminary objection regarding the maintainability of the said writ petition. The respondent No. 3 in their reply has stated that petitioners No. 2 to 4 were posted on the post of Staff Nurse at District Hospital, Shivpuri. They have filed a representation to consider their candidature before respondent No. 6. Respondent No. 6 has dismissed the representation vide annexure P-2. Thus the cause of action of assailing the impugned order arises at Gwalior which is not under the territorial jurisdiction of Principal Bench, Jabalpur and, therefore, the petition deserves to be dismissed on these grounds alone. The respondents have further stated that the petitioner No. 1 approached to this Court by filing writ petition No. 14469/2015, wherein it has been directed to respondent No. 5 to consider the representation submitted by the petitioner within a period of three months. Thereafter the petitioners have submitted their representation which has been duly decided vide annexure P-1 by holding that there is no post available for contractual Staff Nurse thus, due to non-availability of the post, the petitioners have not been appointed on the said post.
4. Heard learned counsel for the parties and perused the record. In the present case, the petitioners were appointed on the post of male Staff Nurse in the year 2009-2010. Thereafter their services were terminated vide order dated 11.04.2011 on the ground that their services are not required. The State Government published an advertisement, thereby inviting application from woman candidate for appointment on the post of Staff Nurse and the male Staff Nurse were not permitted to apply. This action of the respondents was challenged in writ petition No. 10550/2010 in which this Court has set aside the condition by which 100% reservation has been made in favour of woman candidate.
5. Learned counsel for the petitioners submits that it appears that due to the advertisement issued by the respondents whereby 100% post were reserved for the women candidates, the services of the petitioner were terminated. The similar petitions were filed before the various Benches and in the said writ petitions the orders of termination were set aside and the petitioners were directed to be reinstated. In the present case also the petitioners have filed a writ petition No. 4000/2011 at Gwalior Bench and the said writ petition was disposed of with a direction to the respondents to consider the case of the petitioners in light of the writ petition No.2945/2011.As the order passed by this Court has not been complied with, therefore, a contempt petition was filed and thereafter the respondents have passed order annexure P-1 and P-2, thereby rejecting the claim of the petitioners for appointment.
6. From perusal of the order annexure P-2, it appears that the said order has been passed on the ground that the post of Staff Nurse can be filled up only by the female candidates and therefore, he was not entitled to be appointed against the said post. Further vide annexure P-1 the claim of petitioner No. 1 has been rejected on the ground that the post of staff nurse is not lying vacant in the district. So far as the order annexure P-2 is concerned, Indore Bench in writ petition No. 10550/2010 (Sajid Khan Vs. State of M.P) has held that 100% reservation cannot be made in faovour of female candidates, therefore, order annexure P-2 is not sustainable in light of the judgment passed by this Court in the case of writ petition No. 10550/2010 (Sajid Khan Vs. State of M.P).
7. So far as the claim of the petitioner No. 1 is concerned the petitioners have filed an application i.e. I.A. No. 4950/2017, an application for personal presence of the respondents No. 2 to 6 alongiwth this application, the petitioner has filed a copy of the letter dated 20.05.2016, which is address by the Civil Surgeon to the Chief Medical and Health Officer, Hoshangabad stating that at District Hospital Bhoapl 44 posts of Staff Nurse are vacant. It has further been stated that no male Staff Nurse is working in the District Hospital Hoshangabad. The said document has been obtained by the petitioners under the Right to Information Act. Thus on the basis of this document, it is clear that 44 posts of Staff Nurse are laying vacant and there is no male Staff Nurse in the District Hospital Hoshangabad. In light of the said letter, the order annexure P-1 deserve to be set aside. So far as the preliminary objection taken by respondent No. 4 regarding the territorial jurisdiction of this Court in hearing writ petition is concerned, learned counsel for the petitioners relied on the judgment passed by the Apex Court in the case of Naval Kumar Singh Vs. Union of India and other reported in 2014 9 SCC 329 in which the Apex Court has held that if the cause of action is wholly or partially arising within the territorial jurisdiction of the High Court, then the High Court is having jurisdiction to entertain the said writ petition. Thus in light of the aforesaid judgment, as the part of cause of action has been arisen in the said writ petition therefore, this Court has territorial jurisdiction to entertain the writ petition.
8. In view of the aforesaid, the said writ petition is allowed. The orders dated 01.10.2015 (Annexure P/1) and 07.01.2016 (Annexure P/2) are hereby set aside and the respondents are directed to reinstate the petitioners and continue them to work as a Staff Nurse alongwith all consequential benefits. Needles to emphasis, the aforesaid exercise be carried out within a period of three months from the date of receipt of certify copy of this order.
(Vandana Kasrekar) Judge L.R. LALIT SINGH RANA 2018.05.09 15:03:49 +05'30'