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Madhya Pradesh High Court

Pratap Singh Kushwaha vs State Of M.P. And Ors. on 26 April, 2018

                                 -( 1 )- W.P. No.4586/2005 (S)

              HIGH COURT OF MADHYA PRADESH
                     BENCH AT GWALIOR

SINGLE BENCH:
             (Vivek Agarwal, J.)

                         W.P.No.4586/2005 (S)

.....Petitioner           :    Pratap Singh Kushwaha.


                                      Versus

.....Respondent             :   State of M.P. & Ors.

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Shri Narottam Sharma, learned counsel for the petitioner.
Shri G.S. Chauhan, learned Govt. Advocate for the State.
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                                      ORDER

(26/4/2018) Petitioner has filed this petition mentioning therein that he was initially appointed by the orders of District Excise Officer for Collector Bilaspur, temporarily as a salesman in the pay scale of Rs. 515-10-575-15-800. State Government had taken a policy decision in the year 1990 to discontinue selling of liquor through Government vending shop and instead decided to auction such shops, as a result services of salesmen including the petitioner were discontinued w.e.f. 20.06.1990. In this backdrop, original application No. 1006/1990 was filed by the MP class III Government Employees Association and others before the M.P. Administrative Tribunal, Jabalpur, and the said Administrative Tribunal in para 11 of its order noted that State Government had itself shown awareness of the situation and readiness to help the applicants looking to the dimension of human problem. It was directed that State Government shall within

-( 2 )- W.P. No.4586/2005 (S) three months or even earlier, if possible frame some scheme for absorbing the applicants and other retrenched or removed employees in its various departments taking into consideration their suitability for various posts falling vacant. It was also directed that age bar shall be relaxed for such ex- employees.

2. This order was challenge by the State Government before the Supreme Court by filing SLP 16490, 16398 and 14597 of 1990. Supreme Court vide its order directed that such employees be absorbed in a phased manner with preference to those who had rendered longer service by framing a scheme. Thereafter State Government issued an order dated 20.07.1991 for appointment of surplus employees. In terms of such orders petitioner was given appointment vide order dated 22.12.1992 in the Directorate of Employment and Training. The order of appointment which has been enclosed by the petitioner as Annexure P-7 provides that petitioner who is a surplus employee is being appointed as LDC in the pay scale of Rs. 950-25-1000-30- 1210-40-1530 from the date of his taking over the charge on temporary basis under certain terms and conditions which included passing of Hindi typing examination etc.

3. Clause 6 of the order of appointment categorically mentions that his seniority and pay fixation shall be made in terms of GAD circular dated 19.07.1973. GAD circular dated 1973 provides as under:-

ÞfoHkkxh; iquZxBu lfefr dh flQkfj'kksa ds vk/kkj ij

--- fofHkUu foHkkxksa ds iquZxBu ds QyLo:i vfr'ks"k ?kksf"kr deZpkfj;ksa dks vU; foHkkxksa esa lafofy;u gksus ij jkT; 'kklu }jk fuEufyf[kr lqfo/kk,a fn, tkus dk fu.kZ; fy;k x;k gS%& ¼,d½ osru dk fu/kkZj.k %& ¼d½ ;g fu.kZ; fy;k x;k gS] fd deZpkfj;ksa }kjk fofHkUu foHkkxksa ds v/khu ,sls inksa ij] ftuds osrueku mu inksa ds ftuesa mUgsa lafoyhu fd;k x;k gS] cjkcj ;k vf/kd gks] dh

-( 3 )- W.P. No.4586/2005 (S) xbZ vLFkk;h lsok ds iw.kZ o"kksZ dks] muds izkjafHkd osru dk fu/kkZj.k djus ds iz;kstu ds fy,] x.kuk dh tkuh pkfg,A ,slh fujarj lsok dh gks] ftlesa fofHkUu foHkkxksa ds v/khu inksa ij drZO; dh vof/k;ka ,oa HkRrksa lfgr ,slh NqV~Vh ftldh x.kuk ml in ij osru o`f) ds fy, dh tkuk vuqir gks] 'kkfey gksxk] vLFkk;h lsok ds iw.kZ o"kksZ dh x.kuk djus ds fy, fglkc esa fy;k tkuk pkfg,A ¼[k½ bu deZpkfj;ksa dks osru ds fu/kkZj.k ds ifj.kkeLo:i gksus okyh foRrh; gkfu] ;fn dksb gks] ls cpkus dh n`f"V ls ;g Hkh fu.kZ; fy;k x;k gS fd foHkkx ds v/khu mu inksa ij izkIr fd;k x;k vafre osru vkSj u;s inksa ij fu/kkZfjr fd, tkus okys osru ds chp ds varj dh jde O;fDrxr osru ds :i esa nh tkuh pkfg,] ftls vkxkeh osruo`f);ka esa 'kkfey fd;k tk,xkA ¼nks½ ofj"Brk dk fu/kkZj.k %& ofj"Brk dk fu/kkZj.k] izkjafHkd osru ds fu/kkZj.k ds fy, x.kuk esa fy, x, lsok ds iw.kZ o"kksZ vkSj mlesa vuqir osru o`f);ksa dh la[;k ds lanHkZ esa fd;k tk,xkA ¼rhu½ lsok Hkax %& iqjkus in ls lsok eqDr gksus dh rkjh[k vkSj u, in ij fu;qDr dh rkjh[k ds chp esa lsok ds O;o/kku dks] ;fn dksbZ gks] lacaf/kr deZpkjh dks mldh lsok eqfDr ds le; Lohdk;Z NqV~Vh nsdj iwjk dj fn;k tkuk pkfg,A ;fn ;g vi;kZIr gks rks mUgsa vf/kd ls vf/kd rhu eghus igys dh vklk/kkj.k NqV~Vh eatjw dh tk ldsxhA ,sls ekeys ftuesa O;o/kku dh bl izdkj Hkh fu;fer u fd;k tk ldrk gks] fo'ks"k vkns'kksa ds fy, 'kklu dks fufnZ"B fu;fer u fd;k tk ldrk gks] fo'ks"k vkns'kksa ds fy, 'kklu dks fufnZZ"V fd, tk,aA ¼pkj½ lh/kh Hkjrh ekuk tk,xk %& vU; foHkkxksa esa lacaf/kr deZpkfj;ksa dks lacaf/kr osrueku esa izkjafHkd iqujkoLFkk ;fn dksbZ gks] ---- esa osru dk fu/kkZj.k djus ds izk;kstuksa ds fy, ÞinksUufr deZpkfj;ksa ls fHkUuß lh/kh Hkjrh afd, x;s deZpkjh ekuk tkuk pkfg,A ¼ikap½ NqV~Vh %& rRLFkkuh inksa ds /kkjdksa ij ykxw gksus okys fu;eksa ds vuqlkj NqV~Vh nh tk,xhA vftZr rFkk miHkksx NqV~Vh nh tk ldsxhA 2@ mijksDr lqfo/kkvksa ds vfrfjDr mudh iqjkuh lsok,a isa'ku rFkk NqfV~V;ksa ds fy, Hkh 'kqekj dh tk;sxh A mUgs foRr foHkkx ds Kkiu dzekad 466@18@4@vkj&1@64 fnukad 17-3- 64 ds vuqlkj Tokbfuax Vkbe LFkkukarj ;k=k HkRrk bR;kfn dk Hkh ykHk feysxkAß

4. Petitioner's contention is that he is entitled to count his seniority from the date of his first appointment i.e. 11.02.1987 with all consequential benefits. Petitioner has placed reliance on the order dated 21.06.1995 whereby petitioner was

-( 4 )- W.P. No.4586/2005 (S) granted benefit of first increment on completion of one year of service in the Directorate of Employment and Training on 05.01.1994. He has also submitted that respondents had regularized the intervening period when petitioner was out of job by declaring the period of absence of about 928 days as extraordinary leave. It is submitted that once this period from the date of removal till the date of new appointment has been declared to be extraordinary leave, then petitioner is entitled to count his past services for the purposes of pension.

5. Learned Government Advocate on the other hand submits that regularization of the intervening period has made the petitioner entitled to count his past services for the purposes of computation of qualifying service for pension and other retiral dues, but that cannot be counted for the purposes of seniority on the post of LDC from the date of his appointment as a salesman in a different department. It is submitted that if this plea of the petitioner is accepted, then it will result in a very peculiar situation wherein the LDC already appointed in the department of Employment and Training will become junior to the petitioner and that cannot be an object of a scheme of absorption formulated on the basis of compassionate grounds reiterated by the State Administrative Tribunal and the Supreme Court.

6. The issue which is to be decided in the present case is as to whether petitioner is entitled to count for his seniority from the date of his initial appointment by the District Excise Officer or he will be entitled to count for his seniority from the date of appointment in the Directorate of Employment and Training.

7. Similar issue was dealt with by the Hon'ble Supreme Court in the case of Masood Akhtar Khan and others vs. State of M.P. & Ors. as reported in Indian Factories and

-( 5 )- W.P. No.4586/2005 (S) Labour Reports Vol. 61, 1990 Page 343 wherein the Hon'ble Supreme Court held that if initial appointment was not made according to the rules, subsequent regularization of service will not entitle such a person to the benefit of intervening period for seniority. Similarly, in the case of Devdutta and others Vs. State of M.P. & ors. as reported in 1991 Supp (2) SCC 553 Supreme Court has held that persons, who were working in other departments and were declared surplus, are when absorbed, then they cannot be granted benefit of entire service rendered in parent department because this will adversely affect the existing employees including those who were already promoted on that post even prior to the absorption. It was held that Government had to balance the interest of two categories and therefore further held that if executive instructions laying down principles of seniority are reasonable, just and equitable, judicial interference is not warranted.

8. The Supreme Court in the case of Union Of India and Another vs G.R.K. Sharma as reported in AIR 1999 SC 535 has held that redeployed staff is not entitled to count past services for seniority. Similarly, the Supreme Court in the case of Yogendra Prasad Mandal Vs. State of Bihar and Others as reported in (1998) 3 SCC 137 wherein employees of autonomous corporation i.e. Bihar State Forest Development Corporation were rendered surplus on closure of one of its projects. They were transferred and absorbed by the Government. One of the employee contended that his case was not one of fresh appointment in government service but was a case of transfer and therefore he was entitled to continuity of service with consequential benefits. Under such facts and circumstances, the Apex Court held that in absence of a specific provision for transfer of service

-( 6 )- W.P. No.4586/2005 (S) under an autonomous corporation to the State Government with continuity of service or preservation of seniority, the appointment in the State cadre has to be considered as appointment from the date when it takes effect. The High Court, therefore, was right in coming to the conclusion that the services of the appellant will count from the date of his appointment in the State Trading Wing of Forest Department of the State of Bihar and the earlier service rendered by him with the Corporation will not be counted for the purpose of seniority and other benefits.

9. In the present case, the ratio of the judgment in the case of Yogendra Prasad Mandal (supra) squarely covers the facts of the present case, therefore, in the light of the law laid down by the Apex Court in the case of Yogendra Prasad Manda (supra) and also G.R.K.Sharma, Devdutta and Masood Akhtar Khan (supra), this Court is of the opinion that petitioner's claim for seniority by counting past services rendered by him as salesman is not made out and has to be rejected and is rejected. Petition fails and is dismissed.

(Vivek Agarwal) Judge ms/-

Date: 2018.04.28 17:26:55 +05'30'