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Madhya Pradesh High Court

Radharam Sharma vs Samrat Ashok Technological Institute on 8 February, 2018

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                            Writ Petition No.1935/2005(S)

           HIGH COURT OF MADHYA PRADESH
                 BENCH AT GWALIOR
               (SB : VIVEK AGARWAL, J.)

             Writ Petition No.1935/2005(S)
                    Radharam Sharma
                          Vs.
       Samrat Ashok Technological Institute & Another.

                   None for the petitioner.
   Shri K.N. Gupta, learned senior counsel with Shri Kumar
      Gaurav Sharma, learned counsel for respondents.
                Date of hearing : 29.01.2018.
                           ORDER

(Passed on 8th February, 2018) The petitioner's case in short is that the petitioner was appointed as a Probationer Lower Division Clerk as per the recommendations of the Selection Committee on the Basic Pay of Rs.950/- per month in the Grade of Rs.950-25-1000-30- 1210-40-1530/- Plus D.A. as per the Rules from 01.04.1997. In the appointment order Annexure P/1, it is mentioned that the appointment of the petitioner shall be on temporary basis on Probation of one year, but the Probation may be extended at the discretion of the College Authorities. Thereafter, the petitioner's pay was fixed at Rs.2600/- on account of reduction in the grant and under the Self-Financing Scheme treating the petitioner to be a purely temporary employee vide Annexure P/2 and thereafter the petitioner was not allowed to work on the post of Lower Division Clerk after 31.01.2000 though no formal orders of dismissing the petitioner have been passed by the Authorities. In this backdrop, the petitioner has filed this writ petition seeking a suitable Writ in the nature of Mandamus or order or directions directing the respondents to allow the 2 Writ Petition No.1935/2005(S) petitioner to continue work on the post of Lower Division Clerk after 31.01.2000 and to regularize the petitioner on the aforesaid post.

2. Learned counsel for the respondents have filed a return and have submitted that the petition is unsustainable and suffers from delay and laches. Petitioner has no right to continue in service as the appointment of the petitioner is in fixed term without following the procedure of law, therefore, is contrary to the law laid down by the Hon'ble Supreme Court in the case of Secretary, State of Karnataka & Others v. Umadevi & Others as reported in (2006) 4 SCC 1. Thus, the petition is not tenable and is liable to be dismissed. It is also submitted that the petitioner's claim for parity with one Shri Manoj Tiwari, who was also similarly placed and was appointed as Lower Division Clerk on Probation of one year vide order dated 31.03.1997 Annexure P/6 with effect from 01.04.1997, is misplaced because as far as Shri Manoj Tiwari is concerned, the petitioner has no parity and he has not been impleaded as a party, therefore, the petitioner is not entitled to claim any relief at par with Shri Manoj Tiwari. In view of such submissions, the learned counsel for the respondents prays for dismissal of the writ petition.

3. This Court when specifically asked the learned counsel for the respondents to explain as to whether the petitioner's appointment was as a Daily Wager or on probation, the learned counsel for the respondents after evading the issue submits that the appointment of the petitioner was made without following the due process and, therefore, the petitioner is not entitled to continue in service. When the 3 Writ Petition No.1935/2005(S) learned counsel for the respondents was asked to point out that when there is a specific pleading that persons junior to the petitioner are continuously working as is reflected from Annexure P/5, then why the petitioner's services have been dispensed with, the learned counsel for the respondents submits that in the light of the law laid down in the case of Umadevi (Supra), the petitioner is not entitled to claim any relief.

4. Learned counsel for the respondents has placed reliance on the judgment of the Hon'ble Supreme Court in the case of Ashok Kumar v. District Magistrate, Basti & Another as reported in 2012 (3) MPLJ 346, wherein the ratio is that in the matter of compassionate appointment, a party, who has slept over his rights, is not entitled to the discretionary relief of the High Court. This observation was made in the light of the fact that the petitioner's father had retired from service before his death and in the second round of litigation against the order passed by the Single Judge dismissing the writ petition on 14.07.2005, a Special Appeal was filed after an unexplained delay of one year and 178 days. Reliance has also been placed on the judgment of the Hon'ble Supreme Court in the case of Vice-Chancellor, Lucknow University, Lucknow, Uttar Pradesh v. Akhilesh Kumar Khare & Another as reported in (2016) 1 SCC 521, wherein the ratio is that Casual Labourer/Daily Wager/Temporary Employee, if his/her services are terminated, then he/she is entitled to regularization and the relief by way of reinstatement with back wages is not automatic and compensation instead of reinstatement can meet the ends of justice. Reliance has also 4 Writ Petition No.1935/2005(S) been placed on the judgment of the Hon'ble Supreme Court in the case of Secretary, State of Karnataka & Others v. Umadevi & Others as reported in (2006) 4 SCC 1 to point out that the appointment of the petitioner was illegal.

5. In this backdrop, if the provisions contained in Fundamental Rules are referred to as admittedly the respondent-College is receiving cent percent grant-in-aid from the State Government, therefore, admittedly the Rules of the State Government shall be applicable, then it is provided in FR 9 (6) (c) of the Fundamental Rules that the status of a Probationer is to be considered as having the attributes of a substantive status except where the Rules prescribe otherwise. The dictionary meaning of the word "substantive" as per the Oxford Advanced Learners Dictionary is having a separate and independent existence of a rank or appointment not acting or temporary; permanent. In this backdrop, the only mode for removal of the petitioner was termination of service in accordance with the terms in letter of appointment. He could not have been removed by way of punishment and his status also could not have been changed without following the process of law.

6. As far as the aspect of delay and laches is concerned, the facts of the present case are different; though the petitioner was not permitted to work after January 2000, but he made a representation seeking work from time to time. Persons junior to him were allowed to continue and under similar facts and circumstances, the case of Shri Manoj Tiwari was decided by this Court in WP No.09/2001 vide order dated 17.05.2002 when in compliance of the orders of the High Court, it was 5 Writ Petition No.1935/2005(S) stated by Shri K.N. Gupta, learned counsel for the respondents that the appointment was given to Shri Manoj Tiwari and, therefore, the petition was dismissed as withdrawn. Though the respondents have mentioned that Shri Manoj Tiwari has not been impleaded as a party, but the facts remain that the petitioner is not claiming any relief at the cost of said Shri Manoj Tiwari, but is claiming relief on the principle of parity and, therefore, cannot be said that the writ petition filed by the petitioner suffers from such laches so as to debar even consideration of his continuance in the service. The aspect of delay and laches can be dealt with in terms of the directions for payment of salary, etc., but under the facts and circumstances of the case, the respondents have failed to make out a good case for throwing this petition on the ground of delay and laches.

7. As far as the respondents reliance on the judgment of the case of Umadevi (supra) is concerned, specific attention has been drawn to para 4, wherein it has been held that sometimes regular process of recruitment is not adhered to and the constitutional scheme of public employment is bye- passed, which permit irregular appointees or those appointed on contract or on daily wages to continue year after year, thus, keeping out those who are qualified to apply for the post concerned, and depriving them of an opportunity to compete for the post. In this backdrop, passing of orders for continuance tends to defeat the very constitutional scheme of public employment and then distinction has been drawn between illegal and irregular appointment and has been held that all the irregular appointments can be regularized.

Writ Petition No.1935/2005(S)

8. The facts of the matter is that the petitioner's case is totally different from the class of the case discussed by the Hon'ble Supreme Court in the case of Umadevi (supra) inasmuch as the petitioner's appointment was made as per the recommendations of the Selection Committee, which means that the selection was made through proper process and was made on a post in a pay-scale and on probation too. Respondents have not brought any material to show that either the post was not available or the petitioner was not having the qualification or the Selection Committee so constituted was illegal to render the appointment of the petitioner as illegal. In absence of such material in terms of the provisions contained in FR 9 (6) (c) of the Fundamental Rules, the appointment of the petitioner on probation will be deemed to be a substantive appointment and it could have been terminated only in terms of the conditions laid down in the appointment order. Respondents have not filed any material to show that as to which of the Institute's Rules and Regulations were violated by the petitioner and, therefore, his appointment being of substantive nature and also on the ground of parity, wherein the respondents have issued fresh appointment letter in favour of Shri Manoj Tiwari, whose order of appointment is enclosed as Annexure P/6, who too was appointed with effect from 01.04.1997 on the similar terms and conditions as are mentioned in the appointment letter of the petitioner, the respondents have failed to produce any material to make out a case for dismissal of the services of the petitioner without pointing out any misconduct on the part of the petitioner.

Writ Petition No.1935/2005(S)

9. The law laid down in the case of Vice-Chancellor (supra) is also not applicable to the facts and circumstances of the case inasmuch as the petitioner was not appointed as Daily Wager, but his appointment was on probation and had a colour of substantive appointment.

10. Accordingly, the petition deserves to succeed and is allowed. It is directed that the petitioner be reinstated in service without benefit of back wages, but with the benefit of notional pay fixation of increments as the petitioner would have earned if he would have continued in service and when he was not allowed to work for no fault of his, within 90 days of receipt of a certified copy of the order being passed today.

(Vivek Agarwal) Judge 08.02.2018 Mehfooz/-