Madhya Pradesh High Court
Mahesh Chandra Choubey vs Secretary The State Of Madhya Pradesh on 26 June, 2012
1
HIGH COURT OF MADHYA PRADESH : JABALPUR
WRIT PETITION No.5144/2009
Mahesh Chandra Choubey
Vs.
State of Madhya Pradesh & others
&
WRIT PETITION No.5145/2009
Suresh Kumar Verma
Vs.
State of Madhya Pradesh & others
____________________________________________________________
Shri Sanjayram Tamrakar, learned Counsel for the
petitioner.
Shri Piyush Dharmadhikari, learned Govt. Advocate for
respondents No.1 to 3.
Shri Lalji Kushwaha, learned Counsel for respondents No.4
to 7.
____________________________________________________________
Present : Hon'ble Shri Justice K.K. Trivedi
____________________________________________________________
O R D E R
(26/06/2012) Since common claim has been made, common orders have been passed in respect of the petitioners, both the petitions are heard together and are being decided by this common order. Facts as have been mentioned in this order, are taken from W.P. No.5144/2009.
2. Grievance of the petitioners in these cases is that they were appointed w.e.f. 01.12.1990 and 01.04.1991 respectively in the department and were made to work as Assistant Grade-III. However, the juniors to the petitioners have been given regular appointment in the establishment of respondents whereas their claim has been rejected.
2Earlier the petitioners in both the writ petitions have come before this Court by filing writ petitions, which were disposed of with a direction to consider the claim of the petitioners. The orders impugned have been issued by the respondents mechanically without application of mind rejecting the claim of the petitioners, therefore, they have come before this Court by filing these two writ petitions.
3. It is contended by the learned Counsel for the petitioners that from the facts as were proved by the certificates, petitioners were engaged against the sanctioned posts. However, since they were working on daily wages and were never considered for regularization, proper screening of the cases of the petitioners was not done and in a very casual manner the order was issued saying that the petitioners are not entitled to be regularized and their services were dispensed with, therefore, a joint Original Application was filed by the petitioners before the Administrative Tribunal. Interim protection was granted directing that the services of the petitioners be not terminated. The said Original Application came on transfer to this Court after abolition of the State Administrative Tribunal and was disposed of. However, since the juniors of the petitioners were regularized, writ petitions were required to be filed by the petitioners separately before this Court in which a direction was given to consider the cases of the petitioners. In alleged compliance of the order passed by this Court, only when contempt proceedings were initiated against the respondents for non-compliance of the order of this Court, impugned orders are issued saying that the petitioners cannot be regularized as their cases are distinguishable than the cases of those daily wagers, who were regularized. It is contended that such consideration of the respondents is not justified and as such the orders impugned are liable to be quashed. The petitioners are 3 entitled to the relief of regularization with retrospective effect.
4. On service of the notices of the writ petitions, return has been filed by the respondents and it has been contended that in terms of the order passed by this Court in the writ petition so filed by the petitioners, consideration of the claim of the petitioners was done. This Court in W.P. No.24207/2003 has directed to consider the cases of the petitioners in terms of the order passed by the Division Bench of this Court in W.A. No.419/2007. In view of the order passed by the Division Bench, the decision was already taken and communicated to the petitioners on 28.11.2007 vide Annexure R-2. This being so, in fact the petitioners were not to be treated at par with those, who were appointed against the post. The petitioners were appointed only as labours and were assigned the duty as Security Guard, though there were no posts of Security Guard sanctioned in the establishment of the respondents. In terms of the law laid-down by the Apex Court in the case of Secretary, State of Karnataka & others vs. Uma Devi & others, a policy was formulated by the State Government on 16.05.2007 for the purposes of considering the cases of those, who have rendered 10 years or more service on daily wages. Under the said policy, entire claim of the petitioners was considered. Since it was found that the petitioners were never engaged against any vacant post duly sanctioned in the establishment of the respondents, they were not found fit to be regularized. It is contended that merely because certain certificates were issued in respect of the petitioners by some of the officers, it was not to be held that the petitioners were appointed against any sanctioned post on daily wages. It is further submitted that these findings have been duly recorded and it has been pointed out to the petitioners that the employees referred by them were engaged against the vacant posts and, 4 therefore, were regularized. Further the petitioners have remained in the employment under the orders of the Court and, therefore, their cases were distinguishable as per the policy made by the State. It is contended that if they are not found fit for regularization, it cannot be said that rightful action is not taken in their respect. In view of these submissions, it is contended that the writ petitions are liable to be dismissed and the orders impugned are to be up held.
5. Heard learned Counsel for the parties and considered the record made available.
6. It is not that for the first time the petitioners have come with this plea that they were appointed against the vacant post. The petitioners have filed certain certificates on earlier occasions also as also along with these writ petitions whereby the officers of the respondent department themselves have categorically said that for the particular period petitioners have remained working against the post on daily wages. There are certain orders produced by the petitioners indicating that they were assigned work by the departmental authorities. Not only the work was assigned to them, they were addressed with the post in the orders. If that was the position, it was to be examined by the Screening Committee of the department whether the appointment of petitioners was against the post or not. True it is that for sometime the petitioners were made to work as Security Guard though there was no such post sanctioned but after that they were assigned working on different posts, as certified by the departmental authorities of the respondents. These documents have been placed on record and have been relied by the petitioners but respondents have not cared to rebut such documents by submitting any reply of the said allegations in their return. It is contended only in the return that there were instructions of the State Government that those who were 5 working on daily wages under the orders of the Court, were not to be regularized. However, as was mentioned in the circular itself, cases of those were to be considered who have remained working for more than 10 years, who were appointed against the post and who were fulfilling the eligibility conditions for appointment on any sanctioned post against which they were working. If earlier interim protection was given by the Tribunal with respect to continuance of the services of the petitioners by directing maintenance of status quo, it could not have been said that only under the order of the Court the petitioners were working and as such they were out of the purview of the scheme framed by the State Government and were not to be considered for regularization. This being so, as is clear from the orders impugned, claim of the petitioners was not rightly considered for regularization. In fact the State Government itself has taken decision in the year 2000 for not to terminate those who were appointed on daily wages. Even if there would have been no interim protection by the Tribunal, the petitioners would have been reinstated in the service under the Policy of the State Government itself. Rejection of the claim of the petitioners only on this ground is not justified. Therefore, it is held that the claim of the petitioners was not rightly considered by the respondents for regularization.
7. Consequently, these writ petitions are disposed of with a direction to the respondents to reconsider the claim of the petitioners ignoring the order of interim protection as the said order had already merged in the final order passed by this Court and to examine whether the petitioners were working against any sanctioned post in the establishment of the respondents as is certified by the respondents- authorities or not. If it is found that the petitioners were working against the sanctioned post on daily wages and are found eligible, their regularization be ordered in terms of 6 the policy of the State Government. Needless to say that if the petitioners are found fit for regularization and are regularized, they will get all the consequential benefits of such regularization. Necessary exercise in this respect be completed within a period of four months from the date of receipt of certified copy of the order passed today.
8. With the aforesaid, the writ petitions are accordingly finally disposed of. There shall be no order as to cost.
(K.K. Trivedi) Judge Skc