Madhya Pradesh High Court
Devendra Kumar Chaturvedi vs Secretary The State Of Madhya Pradesh on 10 February, 2012
1
HIGH COURT OF MADHYA PRADESH PRINCIPAL
SEAT AT JABALPUR
W.P. No.12073/2010
DEVENDRA KUMAR CHATURVEDI
VS.
STATE OF M.P. & OTHERS
W.P. No.8447/2010
DEVENDRA KUMAR CHATURVEDI
VS.
STATE OF M.P. & OTHERS
Present: Hon'ble Shri Justice Rajendra Menon.
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Shri K. C. Ghildyal, learned counsel for the petitioner.
Shri S. K. Singh, learned Panel Lawyer for the
respondents.
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Whether approved for reporting: Yes/ No
ORDER
10/2/2012:
As both the petitions are by a same petitioner and the questions of facts and law involved in the matter are also similar, they are being decided by this common order and for the sake of convenience, the pleadings and material available in 2 the record of W.P. No.12073/2010 is being referred to in this order.
2. In W.P. No.12073/2010 challenge is made to an order dated 10.8.2010 Annexure P/8 passed by respondent No.2 by which the initial appointment of the petitioner on the post of Lower Division Clerk is ordered to be restored and promotions granted to the petitioner on the post of Upper Division Teacher on 19.6.1978 and krammonati and other benefits granted during the period of service are all canceled after his retirement only on the ground that while he was initially appointed on the post of Lower Division Clerk in the year 1976 he did not possess the requisite qualification of having passed Hindi shorthand examination from the Board of Secondary Education, M.P., Bhopal.
3. It is the case of the petitioner that he was appointed on the post of Lower Division Clerk after following the due process of law vide order dated 7.2.1976. An advertisement was issued in the year 1976 and after undergoing the entire process of selection the petitioner was permitted to appear in a Hindi typing examination to be conducted on 6.2.1976. Communication in this regard was made to the petitioner on 21.1.1976 vide Annexure P/1. It was stipulated in this order Annexure P/1 that petitioner should pass a typing test with a speed of at least 20 words per minute. Accordingly, the petitioner participated in the test conducted on 5.2.1976 and after due selection, order Annexure P/2 was issued on 7.2.1976 3 appointing the petitioner as an L.D.C. in the then existing pay scale of Rs.196-300/-.
4. It is submitted by Shri K. C. Ghildyal, learned counsel for the petitioner that in the note appended to the said appointment order that petitioner was directed to report for duty in a particular office on or before 1st March 1976. He was directed to report along with the certificate showing that he has passed the Higher Secondary Examination and also a Certificate from M.P. Shorthand and Typing Board or from any other institute recognized by the Government of Madhya Pradesh showing that he has passed the Hindi Shorthand Examination. According to the petitioner in pursuance to the aforesaid stipulation contained in the order, he reported for joining and submitted the requisite certificates having passed the Shorthand examination in Hindi in the session 1973-74 from Government of M.P. Department of Labour, Model Industrial Training Institute, Jabalpur and the National Professional Examination Certificate of having passed the said stenography examination from Government of India, Ministry of Labour and Rehabilitation Professional Training and National Institute. Placing reliance on the Certificates in this regard issued to the petitioner vide Annexure P/3, P/4 and P/5, it is a case of the petitioner that after scrutiny of all these documents and on being satisfied that petitioner fulfills all the requisite conditions, he was appointed. He joined on the post, was confirmed and thereafter based on his qualification and performance, on due consideration by the appropriate Selection 4 Committee vide Annexure P/6 dated 29.4.1986, he was promoted to the next higher post of Upper Division Clerk. Name of petitioner appears at Srl. No.66 in the list of promoted candidates in Annexure P/6. Thereafter he was also granted benefit of krammonati, pay fixation and promotion on the post of Assistant Grade I vide order dated 3.4.2007 in the then existing pay scale of Rs.4500-7000/-. After having worked with the department right from the year 1976 upto 28.2.2009 petitioner was retired on attaining the age of superannuation on 28.2.2009 vide order Annexure P/7 dated 20.8.2008. When after his retirement his pension and other benefits were not granted and when the final decision with regard to settlement of his post retirement claims were not done, he represented and finally he approached this Court in W.P. No.8447/2010 seeking the aforesaid benefit. It is the case of the petitioner that this writ petition was filed on 30.6.2010, notices were issued on 7.7.2010 and during the pendency of the aforesaid petition, as the impugned order Annexure P/8 was passed on 10.8.2010, petitioner has challenged the same in W.P. No.12073/2010.
5. Shri K. C. Ghildyal, learned counsel for the petitioner taking me through the documents and material available on record emphasized that petitioner was duly qualified for appointment on the post of Lower Division Clerk in accordance to the Rules and Regulations existing in the year 1976 and when he appeared and participated in the process of selection, he was appointed. After his appointment all the documents and certificates were verified and he was permitted 5 to join. It is stated that the Certificate of passing the Hindi Shorthand Examination from the Model Industrial Training Institute, Jabalpur which is an establishment of Government of Madhya Pradesh, so also from the Institute of Government of India run by the Professional Training Board is also recognized institute functioning under the control of the Government of India. Petitioner was granted appointment and promotion and now action taken to undo all these appointment and promotion and treating the petitioner only to have worked as Lower Division Clerk and retire from the post of Lower Division Clerk, is said to be illegal.
6. Placing reliance on a judgment of Supreme Court in the case of M.S. Mudhol Vs. S. D. Halegkar - 1993(4) SLR 364, Union of India & Others Vs. Kishori Lal Bablani and Bihar State Electricity Board Vs. Bijay Bhadur - (2000) 10 SCC 99, Shri Ghildyal submits that the action of the respondents in taking the impugned action after his retirement is unsustainable. He submits that when after due verification of the documents and certificates of the petitioner, he was appointed, granted promotion and krammonati from time to time and when after completing service of more than 32 years, impugned action taken on retirement is unsustainable.
7. Shri S. K. Singh, learned Panel Lawyer appearing for the respondents submits that in accordance to rules and regulations governing appointment to the post of Lower Division Clerk, as contained in Annexure R/1 for appointment on the post of Lower Division Clerk a candidate has to be 6 Higher Secondary passed along with a Certificate of having passed the Hindi Typing and Shorthand examination from the M.P. Board of Secondary Education. Contending that as petitioner did not fulfill this qualification, his appointment on the post of L.D.C is illegal and therefore, when the illegality was pointed out by the Treasury and Audit Officer, impugned action is taken, respondents have tried to justify their action. Accordingly, contending that benefit granted to the petitioner with regard to promotion and krammonati which was contrary to his entitlement as his initial appointment in the department was not proper, respondents have tried to justify their action.
8. Having heard learned counsel for the parties and on perusal of the record, it is clear that the petitioner was appointed in the year 1976 and when he was duly selected in the initial selection process, he was called to appear in the Hindi Typing test which was held on 5.2.1976. The communication made to the petitioner in this regard as contained in Annexure P/1 dated 21.1.1976 indicates that for recruitment to the post of Lower Division Clerk a preliminary examination was conducted in which petitioner participated. The preliminary examination was conducted on 21.12.1975 and on the petitioner being successful in the preliminary examination, he was permitted to appear in the final examination to be conducted on 5.2.1975 in which his proficiency in Hindi Typing was to be tested. Petitioner appeared in the process of selection on 5.2.1976 and on being successful was appointed as Lower Division Clerk vide 7 Annexure P/2 on 7th February 1976. In the order appointing the petitioner, the condition stipulated was that petitioner should appear before the office concerned as indicated in para 1 of the said letter along with all testimonials, documents, photograph etc. He was to appear and join duties on or before 1st March, 1976. It was specifically pointed out to the petitioner that he should produce a Certificate showing that he has passed the Higher Secondary Examination and has also passed the the Hindi Stenography Examination from the M.P. Shorthand and Typing Board or any other Government or recognized institute approved by the Government in the subject of Hindi Shorthand. It is clear from the aforesaid stipulation in the appointment order that apart from producing the Higher Secondary Certificate the petitioner was given an option either to produce a Certificate of having passed the Hindi Shorthand Examination from the M.P. Shorthand and Typing Board or some other Government or recognized institute. In pursuance to the said stipulation petitioner appeared and produced the relevant Certificates. As far as passing of Hindi Shorthand Examination is concerned, the Certificate produced by the petitioner are Annexures P/3, P/4 and P/5. Annexure P/3 is a letter issued by the Principal, Government Industrial Training Institute, Jabalpur on 24.2.1976 intimating that petitioner has passed the Hindi Shorthand and Proficiency Examination conducted in the year 1973-74 by the All India Professional Examination Board. It was indicated that the said examination is conducted by the Government of India through the Department of Labour, National Professional Training Board and is a National Level 8 Examination and the petitioner has passed the said examination. Necessary Certificates of having passed the examination after undergoing the training from 1.8.72 to 31.7.74 was issued to the petitioner by the institute vide Annexure P/4 and P/5. The documents indicates that petitioner has passed the shorthand examination from the National Council for Training and Vocational Trade in the trade of Hindi Stenography and the said course is conducted by the appropriate Board. When the petitioner produced these documents the competent authority scrutinized the documents and finding the petitioner to have acquired the qualification from an appropriate Board running under the control of the Government of India, accepted the testimonials of the petitioner and appointed him. Particulars were entered in the service book and petitioner was confirmed in service, based on his working and qualification as indicated herein above, he was granted promotion as Upper Division Clerk vide Annexure P/6, he was granted two krammonati after completing 12 years and 24 years of service and on 3.4.2007 he was promoted as an Assistant Grade I. It is therefore, clear that after production of the requisite Certificates and documents and after being satisfied with regard to veracity of said Certificate and qualification acquired by the petitioner, he was appointed in the department, confirmed on the post granted promotion on two occasion, krammonati on two occasion and after attaining the age of superannuation was granted retirement. Now after retirement respondents have come out with a case that initial appointment of the petitioner in the year 1976 as Lower Division Clerk was not correct as he did not possess the 9 requisite qualification of passing the Hindi Shorthand Examination from the M.P. Board of Shorthand and Typing. The question is can the State Government now after a period of 32 years take such a stand and annul all the benefits that were granted to the petitioner while he served the department for more than 32 years. In the considered view of this Court the answer to the said question has to be against the State Government for the following two reasons :
9. Reason No.1 is that when the petitioner was directed to appear along with all the testimonials vide order Annexure P/2 on or before 1st March 1976 and when he appeared along with the documents, i.e. Annexure P/3, P/4 and P/5 and on being satisfied that the qualification of Hindi Stenography obtained by the petitioner from the requisite Board functioning under the aegis of Government of India and National Council for training is the appropriate Board of institute, he was permitted to join duty not only on the post of Lower Division Clerk but treating him to be a regular appointee was granted two promotions and two krammonati and so long as remained in service for 32 years, no action is taken, that being so, respondents are estopped now after a period of 32 years to turn down and say that initial appointment of the petitioner was not proper. Respondents should have said so in the year 1976 when the Certificates were accepted and petitioner permitted to work on the post after verification of his testimonials. Having accepted the Certificates which were produced by the petitioner and on being satisfied that the same 10 was issued by an appropriate Board, respondents having kept quite for more than 32 years are not entitled to turn around and undo the promotions and krammonati in the manner done particularly when the Certificate of Hindi Stenography Examination in the year 1973-74 is not from any private or any non-recognized institute but it is of certain Government institute working under the aegis of National Training and Vocational Board of Government of India. That apart, the second reason is, respondents, contend that petitioner is not qualified are placing reliance on the recruitment rules Annexure R/1. The said Recruitment Rule came into force on 8.4.1985 i.e. after more than 9 years of petitioner's appointment. No statutory rule or regulations is brought to the notice of this Court which was applicable in the year 1976 and which stipulates a condition that petitioner should have passed the Hindi Stenography Examination from the M.P. Shorthand and Typing Board. The stipulations contained in Annexure R/1, the recruitment rules of 1985 came into force on 5.4.1985 and on the basis of this Rule, the petitioner's appointment in the year 1976 cannot be undone. It may also be taken note of that the Recruitment Rules of the year 1976 is not produced before this Court. Instead on the basis of the stipulations contained in para 1 of the appointment order Annexure P/2 an presumption has to be drawn that the stipulations with regard to qualification contained in para 1 of Annexure P/2 was the qualification prescribed and applicable in the year 1976. If that be so, in the year 1976 the qualification with regard to passing of Hindi Shorthand Examination was to the effect that the candidate 11 should have passed the Hindi Shorthand Examination from M.P. Shorthand and Typing Board or from any other Government Institute or Board recognized by the Government.
It is not a case of the respondents before this Court that the Certificate of passing the Hindi Stenography Examination by the petitioner in the year 1973-74 from the Model Industrial Training Institute, Jabalpur and National Professional Examination Board under the aegis of Government of India, Ministry of Labour and Rehabilitation Professional Training Institute is not a recognized or a Government institute. On the contrary the conduct of respondents shows that treating this to be the requisite qualification, they had appointed the petitioner and permitted him to work for 32 years. That being so, on the basis of Rules which came into effect in the year 1985, the respondents cannot undo the appointment of the petitioner ordered in the year 1976 after due verification of the record, as prima facie it seems that petitioner was qualified for appointment to the post on the basis of Rules that was existed in the year 1976 and even otherwise, respondents having permitted the petitioner to work on the basis of Certificate produced by him and having permitted him t o retire after 32 years in the manner cannot now take impugned action.
9. Accordingly, finding the action of respondents to be wholly unjustified, arbitrary and not in accordance to the requirement of law, both the petitions are allowed. Order impugned Annexure P/8 passed by respondent No.2 is quashed and the respondents are directed to settle the claims of the 12 petitioner in accordance to his entitlement treating him to have retire from the post as was actually held by him at the time of retirement by granting him all benefits, consequential in nature within a period of three months from the date of receipt of certified copy of this order.
10. With the aforesaid, both the petitions stands allowed and disposed of.
(Rajendra Menon) Judge Mrs.m i shra