Madhya Pradesh High Court
The State Of Madhya Pradesh vs Dr. Atul Gaur on 28 January, 2020
Author: Sanjay Yadav
Bench: Sanjay Yadav, Atul Sreedharan
1
THE HIGH COURT OF MADHYA PRADESH
(Division Bench)
Writ Appeal No.1094/2018
(The State of Madhya Pradesh & others vs. Rajesh Sisodiya & others)
Writ Appeal No.822/2018
(The State of Madhya Pradesh vs. Dr. Hemlata Thakur)
Writ Appeal No.1092/2019
(The State of Madhya Pradesh vs. Dr. Sadique Khan)
Writ Appeal No.1093/2019
(The State of Madhya Pradesh vs. Anupam Choudhary)
Writ Appeal No.1127/2018
(The State of Madhya Pradesh vs. Amit Lashkari)
Writ Appeal No.1131/2018
(The State of Madhya Pradesh vs. Rekhraj Chandrakar)
&
Writ Appeal No.1132/2018
(The State of Madhya Pradesh vs. Dr. Atul Gaur)
________________________________________________________
Shri Shekhar Sharma, learned Additional Advocate General for
the appellant/State.
Shri Amit Kumar Singh, learned counsel for the respondents
No.1, 2 and 3 in Writ Appeal No.1094/2018 and Writ Appeal
No.822/2018.
Shri Shailendra Kumar Singh, learned counsel for the
respondent No.1 in Writ Appeal No.1092/2018.
Shri Swapnil Ganguly, learned counsel for the respondent No.1,
2, and 5 in Writ Appeal No.1093/2018.
Shri Mohan Sausarkar, learned counsel for the respondent No.1
in Writ Appeal No.1127/2018
Shri Sampoorna Tiwari, learned counsel for the respondent No.1
in Writ Appeal No.1131/2018.
______________________________________________________________________________________________________________________________________________
2
CORAM:
Hon'ble Mr. Justice Sanjay Yadav, Judge
Hon'ble Mr. Justice Atul Sreedharan, Judge
________________________________________________________
ORDER
(Jabalpur, Dated 28.01.2020) Per: Sanjay Yadav, J :
These appeals under Section 2(1) of The Madhya Pradesh Uchcha Nyayalaya (Khand Nyayapeeth Ko Appeal) Adhiniyam, 2005, are directed against the common order dated 15.01.2018 passed in Writ Petition No.1840/2014, Writ Petition No.1851/2014, Writ Petition No.2663/2014, Writ Petition No.2965/2014, Writ Petition No.3419/2014, Writ Petition No.3987/2014 and Writ Petition No5305/2014.
2- The writ petitions were at the instance of the Lecturer/Training Placement Officer (Grade-II)/System Analyst (Grade II and III) employed in Polytechnic College, whereby, they sought quashment of communication dated 24.01.2014 and 25.01.2014 by the Department of Technical Education and Skill Development. Vide impugned communication; Director, Technical Education was called upon to ensure that the period of service rendered as contractual employee was not to be counted for annual increments.3
3- The rule which govern the recruitment of teaching staff in the Polytechnic Colleges in the State of Madhya Pradesh are the Madhya Pradesh Technical Education Polytechnic College (Teaching Cadre) Service (Recruitment) Rules 2004. Rule 6 of the Rules of 2004 provides for that the method of recruitment shall be by selection through direct recruitment.
4- Sub-Rule (3) of Rule 6 of the Rules 2004 provided that, "Notwithstanding anything contained under sub-rule (1), if in the opinion of the Society/Prabandhan Samiti, the exigencies of the Service so required, the Society/Prabandhan Samiti may with prior concurrence of the Government, adopt such other methods of recruitment to the Service other than those specified in the said sub- rule, as it may, by order issued in this behalf, prescribe." 5- Rule 13 lays down condition of services: Sub-rule (1) whereof stipulates-
"(1)- Every person recruited on initial posts such as Lecturer, Training and Placement Officer (Grade-II), System Analyst (Grade-II & III), Librarian and Physical Training Instructor, Assistant Workshop Superintendent, Programmer etc. shown in Schedule III shall be appointed initially for a period of three years on contract. On completion of this period, performance of the candidate shall be reviewed by the Appointing Authority as per approval procedure as approved by the Government and, if found suitable, he shall be offered a regular appointment."4
6- That in consonance with these Rules the respondents (hereafter referred as Petitioner) were appointed vide Advertisement No.9/p;u/2005:3/10/2005 on contract for a period of three years, by various orders. The advertisement also mentioned that the appointment was for three years on contract.
7- That after their appointment, the petitioners were regularized between the year 2011 and 2012. That a dispute arose as to fixation of pay by not including the increment for the period when they were working on contract basis, the petitioners relying on the communication No.l. o./LFkk-1/2012 dated 27.07.2012 by Principal, Sardar Vallabh Bhai Patel, Polytechnic College, Bhopal, construing it to be a decision by the State Government that in their appointment it is wrongly mentioned as Contract in place of probation, filed writ petition for quashing of communication dated 24.01.2014 and 25.01.2014, and for upholding the increment paid during the period of Contractual Service. The claim though was denied by the State; however, found favour with the Writ Court vide impugned order, holding:
"It is apparent from the record that the petitioners are governed by the aforesaid rules. It is an admitted fact that their initial appointment was termed as contractual in nature but subsequently, vide order dated 27/07/2012 the State Government has clarified that the same shall be treated as on probation only. The aforesaid order has been passed invoking 5 rule 16 of the aforesaid rules whereby the power to interpret the rules has been vested in the Government and in the considered opinion of this Court, since the Government has already decided that the appointment of the petitioners shall be treated as on probation only instead of contractual, it does not lie with the respondents to contend that it should be treated as contractual.
In the circumstances, petitions stand allowed. The impugned orders dated 24/01/2014 and 25/01/2014 are hereby quashed. The petitioners shall be treated by the State as regular employee and their initial appointment order shall be treated as on probation only. Petitioners shall also be entitled to get all the consequential benefits."
8- Evidently, the communication dated 27.07.2012 weighed with learned Single Judge. The said communication termed as a decision by the State Government is not so, but is by the Principal of Polytechnic College. For trite it is that unless authenticated by the Governor under Article 166(1) of the Constitution an order cannot be said to be an order by the Government. Article 166(1) of the Constitution mandates that- "All executive action of the Government of a State shall be expressed to be taken in the name of the Governor." 9- Furthermore, besides there being stipulations in the advertisement and the appointment order that the appointment was on contract for three years, even the Rule i.e., sub-rule (1) of Rule 13 of Rules of 2004 stipulates that every person recruited on initial posts such as Lecturer, Training and Placement Officer (Grade-II), System 6 Analyst (Grade-II & III), Librarian and Physical Training Instructor, Assistant Workshop Superintendent, Programmer etc. shown in Schedule III shall be appointed initially for a period of three years on contract. On completion of this period, performance of the candidate shall be reviewed by the Appointing Authority as per approval procedure as approved by the Government and, if found suitable, he shall be offered a regular appointment. And though true it is that the appointment was on a post carrying pay scale; but since it was contractual in nature, and unless otherwise provided in the Rules, the petitioners were not entitled for the increments, which an incumbent is entitled for only in case of substantive appointment. Thus, the decision by the Department not to count the year of service rendered on contract for the purpose of increment cannot be faulted. 10- The impugned orders passed in writ petitions when tested on the anvil of above analysis, cannot be given the stamp of approval. Consequently, the same are set aside. As a necessary corollary, the writ petitions are dismissed.
11- The Writ Appeals are allowed in the above terms. No costs.
Let the copy of this order be kept in the record of respective writ appeals.
(SANJAY YADAV) (ATUL SREEDHARAN)
JUDGE JUDGE
Loretta
Digitally signed by LORETTA RAJ
Date: 2020.01.31 23:11:48 -08'00'