Madhya Pradesh High Court
Bhuvneshwar Prasad Chaubey vs The State Of Madhya Pradesh on 10 November, 2016
WP-4221-2011
(BHUVNESHWAR PRASAD CHAUBEY Vs THE STATE OF MADHYA PRADESH)
10-11-2016
HIGH COURT OF MADHYA PRADESH: PRINCIPAL SEAT AT
JABALPUR
WRIT PETITION NO. 4221 of 2011
BHUVNESHWAR PRASAD CHAUBEY
Vs.
STATE OF MADHYA PRADESH & OTHERS
Present: Justice Sujoy Paul
Shri Udayan Tiwari, learned counsel for the petitioner.
Shri Santosh Yadav, learned P.L. for the respondents /State.
ORDER
(10/11/2016) In this petition filed under Article 226 of the Constitution of India the petitioner has prayed for a direction to the respondents to regularize him as Assistant Professor w.e.f. From 01.04.1986 under the relevant Rules of 1986, by treating him at par with one Mr. Rakesh Kumar Pathak.
2. This is petitioner's second visit to this Court. The petitioner earlier filed an Original Application which was transferred to this Court and was re-registered as W.P. No.8037/2003. This writ petition was decided on 06.11.2008. This Court directed that the respondents are required to examine the claim of the petitioner and if petitioner is also found to be similarly situated to the employees who were granted the benefits of the order Annexure-A-14 filed in the said case, then the authority shall pass necessary order for conferring the monitory benefits alongwith arrears in favour of the petitioner. Mr. Tiwari, learned counsel for the petitioner submits that respondents subsequently passed the rejection order dated 15.10.2009 (Annexure-P-1) which is called in question in the present petition.
3. Mr. Udayan Tiwari, learned counsel for the petitioner advanced singular contention. He submits that petitioner is claiming parity with Mr. Rakesh Kumar Pathak. Mr. Pathak also filed O.A. No.3551/1992, which was transferred to this Court and re- registered as W.P. No.7805/2003. This Court after recording the fact that Mr. Pathak does not possess the requisite qualification under the Rules of 1996, directed the respondents to invoke Rule 21 of M.P. Educational Service Collegiate Branch Recruitment Rules 1999. In nut-shall, this Court advised the respondents to relax the rules and extend the benefit to the petitioner. Mr. Tiwari, learned counsel for the petitioner further submits that although the claim of Mr. Rakesh Kumar Pathak was initially rejected by the respondents by order dated 19.04.2006 (Annexure-P-19), after the order of this Court passed in W.P. No.7805/2003, they passed another order dated 31.01.2007 (Annexure-P-19/A). By this order, the benefit of regularization was given to said Mr. Rakesh Kumar Pathak from due date. It is submitted that Mr. Pathak by that time had rendered only 9 years service whereas the present petitioner had rendered 12 years of service. Mr. Tiwari, learned counsel for the petitioner further submitted that there is no justification in giving different treatment to the petitioner.
4. Mr. Santosh Yadav, learned P.L. supported the impugned order. He submits that the minimum qualification for the purpose of regularization is 50% marks in graduation and 55% marks at the post-graduation level. The petitioner admittedly did not possess the said marks. Hence, under the rules, he is not entitled for the benefit of regularization. He further submits that the petitioner is not entitle to get parity with said Mr. Rakesh Kumar Pathak. Mr. Pathak was possessing 53.2% marks at PG level as well as 62.3% marks in PG (in public administration) which is an allied branch of political science. Mr. Pathak was having two post-graduation degrees and more than 50% marks in graduation. While passing the order Annexure-P-19/A, it was made clear that said order will not be treated as precedent for other cases. During the course of argument Mr. Yadav, learned P.L. fairly submits that Writ Appeal No.1711/2007 filed against the order passed in W.P. No.7805/2003 was dismissed by this Court. The said order passed in writ appeal was not interfered by Apex Court in SLP (C) No.10734/2008.
5. Mr. Tiwari, learned counsel for the petitioner in his rejoinder submissions fairly submitted that cut-off marks as per the rules of 1986 are 50% in graduation and 55% marks in post-graduation. The respondents have extended the benefit to Mr. Rakesh Kumar Pathak and petitioner being similarly situated person is entitle to enjoy the same benefit. This Court while passing the order in the case of Mr. Rakesh Kumar Pathak did not mention that such order will not be treated as precedent. Hence, petitioner may be given the same benefits.
6. No other point has been pressed by the learned counsel for the parties. I have heard the parties at length and pursued the record
7. The admitted position between the parties is that the petitioner does not possess the requisite percentage of marks for the purpose of regularization. The whole case of the petitioner is based on principle of parity with said Shri Pathak. This Court in the first round (W.P. No.8037/2003) directed the respondents to decide the petitioner's claim for extending similar benefits which are conferred to certain persons. The respondents, in turn, passed a detailed order dated 15.10.2009 (Annexure-P/1), which is under challenged in this petition. In the return also it is stated that the petitioner cannot compare his case with Shri Pathak because Shri Pathak got more marks at Graduation and Post Graduation level. In view of the aforesaid, rules were relaxed in case of Shri Pathak and it cannot be continued for all cases where the employee is not having requisite percentage of marks.
8. In the opinion of this Court, the core issue is : whether the action of respondents in not relaxing the rules in case of petitioner is justifiable or not ? As noticed, the percentage of marks in case of petitioner and Shri Pathak are not same. The power of relaxation of rules is within the province of the Department. Merely because on certain occasions, the department granted exemption from eligibility criteria in respect of some employees, whether such process should continue is another ancillary question. This point is addressed by the Supreme Court in the case reported in 2007 (9) SCC 461 (Tirumala Tirupati Devasthanams Vs. K. Jotheeswara Pillai (Dead) and others). The relevant paras read as under:
â 7. Learned Single Judge allowed the writ petition mainly on the ground that on two earlier occasions the appellant had granted exemption from age and qualifications and no material was placed before the High Court as to why such a discretion could not be exercised by the appellant in favour of the employees concerned, namely, the writ petitioners. The learned Single Judge has also issued a writ of mandamus to the appellant to consider whether writ petitioner No. 5 was entitled for exemption from the requirement of age-limit having regard to certain GOs issued by the Revenue Department of the State Government.
8. In our opinion the reasons given by the learned Single Judge for allowing the writ petition are wholly untenable in law. Merely because on two earlier occasions the appellant granted exemption from eligibility criterion in respect of some employees cannot be a ground to grant relief to the writ petitioners. Even if some concession had been shown to some employees in the past it would not confer any right upon anyone seeking employment in future to claim exemption from eligibility criterion as a matter of right. In K.V. Rajalakshmiah Setty V. State of Mysore, AIR 1967 SC 993, it was held as under in paragraph 12 of the Report:
"12. There is some force in some of the contentions put forward on behalf of the State of Mysore. It is not necessary to test them as we find ourselves unable to uphold the contention of the appellants. No doubt some concession had been shown to the first batch of 41 persons and the batches of persons who had come in after the batch of 63 persons also received some concession, but after all these were concessions and not something which they could claim as of right. The State of Mysore might have shown some indulgence to this batch of 63 persons but we cannot issue a writ of mandamus commanding it to do so. There was no service rule which the State had transgressed nor has the State evolved any principle to be followed in respect of persons who were promoted to the rank of Assistant Engineers from surveyors. The indulgence shown to the different batches of persons were really ad hoc and we are not in a position to say what, if any, ad hoc indulgence should be meted out to the appellants before us."
Therefore, the view taken by the learned Single Judge that by not granting exemption from age criterion the appellant had indulged in invidious discrimination is clearly erroneous law. â [Emphasis Supplied]
9. A plain reading of this judgment makes it clear that the petitioner cannot claim exemption from eligibility criteria on the ground that on earlier occasions, it has been done in respect of some employees. Apart from this, the percentage of marks obtained by the petitioner and Shri Pathak are not exactly same. Thus, I find no reason to interfere on the impugned order.
10. In the light of the judgment of Supreme Court in the case of K. Jotheeswara (supra), this petition cannot be entertained. Petition is accordingly dismissed. No cost.
(Sujoy Paul) Judge Biswal HIGH COURT OF MADHYA PRADESH: PRINCIPAL SEAT AT JABALPUR WRIT PETITION NO. 4221 of 2011 BHUVNESHWAR PRASAD CHAUBEY Vs. STATE OF MADHYA PRADESH & OTHERS
-------------------------------------------------------------------------- Shri Udayan Tiwari, learned counsel for the petitioner. Shri Santosh Yadav, learned P.L. for the respondents/State. Order Post for : 10/11/2016 (Sujoy Paul) Judge /11/2016 (SUJOY PAUL) JUDGE Biswal