Madhya Pradesh High Court
The State Of Madhya Pradesh vs Smt. Manju Shukla on 29 June, 2015
HIGH COURT OF MADHYA PRADESH AT
JABALPUR
W.A. No : 897 OF 2014
State of MP & Ors.
- V/s -
Smt. Manju Shukla
Present : Honâble Shri Justice Rajendra Menon.
Honâble Shri Justice Sushil Kumar Gupta.
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Shri Pushpendra Yadav, learned Government Advocate
for the appellant/State.
Shri D.K.Dixit, learned counsel for Respondent No.1.
Shri Ajay Kumar Ojha, learned counsel for Respondent
No.2.
Respondent No.3/ Union of India is represented by Shri
Vikram Singh.
ORDER
(29/06/2015) There is a delay in filing of this writ appeal. I.A.No.15358/2014 is an application filed for condonation of delay. Keeping in view the reasons indicated in the application, this application (I.A.No.15358/2014) is allowed. The delay in filing of this appeal is condoned.
2. In this appeal under Section 2 (1) of the Madhya Pradesh Uchha Nyayalaya (Khand Nyay Peeth Ko Appeal) Adhiniyam, 2005, exception is sought to an order dated 3.9.2013 Annexure-A1 passed by the learned Writ Court in W.P.No.24/2009.
3. Facts, in brief, indicate that respondent Smt. Manju Shukla was working as a Project Officer in the Integrated Child Development Scheme and at the relevant time in the year 2000, when the State of Madhya Pradesh was reorganized on it's bifurcation by formation of a new state of Chhatisgrah and when the Reorganization Act of 2000 came into force, options were called for from the employees, who wanted to go to the State of Chhatisgarh or M.P. Even though Smt. Manju Shukla initially gave an option for going to the State of Chhatisgrah but she immediately withdrew the same. It is seen that she submitted the option and withdrew the same within a very short period of time i.e. within 2 to 3 days.
4. Be it as it may be, the State Government forwarded her representation to the Union of India with a recommendation for it's withdrawal. However, when no action was taken by the Union of India and when the respondent was relieved for joining in the State of Chhatisgarh, the matter came to this Court at the instance of the respondent Smt. Manju Shukla and this Court found that the representation submitted by the respondent was not considered in accordance with the requirement of law and, therefore, on 15.9.2003 remanded the matter back to the Union of India directing them to reconsider the representation and take a fresh decision by passing a speaking order. It seems that the Union of India communicated an order Annexure-A3 dated 13.1.2005 to the State Government and the State Government consequently passed a relieving order relieving Smt. Manju Shukla to join in the State of Chhatisgarh. When this order was passed on 15th of December, 2008, the matter again came to this Court at the instance of Respondent Smt. Manju Shukla in W.P.No.24/2009(s).
5. It was found in the said writ petition by this Court that the Union of India has rejected the representation but reasons for rejection of the representation and the order rejecting the representation are not brought on record and as far as the State of M.P. is concerned, the State Government only says that as the Union of India has rejected the representation, they have passed the relieving order. The Writ Court took note of the judgments rendered by the coordinate benches of this Court in W.P.No.11184/2005 (Brij Nandan Shrivastava Vs. The Union of India & Ors.) decided on 22.2.2012 and, thereafter, another judgment in W.P.No.15987/2007(s) (R.K.Dubey Vs. State of MP & Ors.) decided on 9.1.2012 and W.P.No.8258/2006(s) decided on 5.7.2006 and came to the conclusion that when the Union of India was required to decide the representation of the employee challenging his or her allocation, the law mandates that the Union of India should decide the option showing application of mind after evaluating the grievance of the employee and take a decision in the matter accordance with law by passing a speaking order.
6. The learned Writ Court found that in the present case, this requirement of law was not fulfiled, even the order rejecting the representation by the Union of India was not brought on record and, therefore, following the law laid down in the case of Brij Nandan (supra) and various other cases as indicated herein above, allowed the writ petition. Now challenging the said order, the State government has filed this writ appeal and they say that Annexure-A3 dated 13th of January, 2005 is the order by which the representation of the employee was rejected. That apart, Union of India represented by Secretary, Ministry of Public Grievance and Pension has filed an affidavit indicating the reasons for rejection of the representation.
7. We have heard learned counsel for the parties and we find that after the earlier writ petition of the petitioner was disposed of on 15.9.2003, the matter was considered by the Union of India and it is pursuance of this order that Annexure-A3 was passed on 13th of January, 2005 rejecting the representation of the employee Smt. Manju Shukla. As far as the order Annexure-A3 dated 13th of January, 2005 is concerned, it only mentions the name of the respondent/ employee as Manju Shukla, her designation as the Project Officer and the decision of the Union of India i.e. âthe representation is rejectedâ. There is nothing in the order communicated to all concerned and brought on record to show as to why the representation of the employee concerned was rejected. For the first time in this writ appeal, it is indicated by way of reply as to in what manner, the representation of the employee was considered, what is the reason for rejecting the same.
8. That apart, this order Annexure-A3 was passed on 13th of January, 2005 and the employee was relieved on 15th of December, 2008. In the meanwhile, various developments have taken place, as is apparent from the pleadings of the petition available on record which includes promotion of the juniors and various other aspects of the matter.
9. Be it as it may be, the order passed by the Union of India does not meet the requirement of law laid down by this Court in the case of Brij Nandan (supra) and even does not comply with the requirement of the earlier order passed by this court on 15.9.2003 in the case of respondent Smt. Manju Shukla itself. This Court while disposing of the writ petition W.P.No.20435/2003 has taken note of the orders passed earlier in the case of Brijendra Kumar Soni Vs. State of MP & Ors. (W.P.No.21562/2003) and issued the directions from Paragraph-(A) to Paragraph-(G) and specific orders were passed to indicate the manner in which the State Government was required to consider the representation of the employee. A perusal of the the order Annexure-A3 dated 13th of January, 2005 goes to show that none of the directions issued in the order passed on 15.9.2003 in the case of the respondent/ Smt. Manju Shukla W.P.No.20435/2003 was complied with.
10. That being so, we are of the considered view that the learned Writ court has not committed any error in interfering into the matter. Even if, we take note of the fact that in the appeal, the reason for rejecting the representation are brought on record, we find that the rejection order does not meet the requirement of law as indicated herein above. Having so held, as the Union of India filed an affidavit in these proceedings and has tried to justify their action. It would be unfair on our part if we do not take note of the aforesaid reason and consider the same. An affidavit has been filed by Shri A.K.Malhotra, Under Secretary, Government of India, Department of Personnel & Training and it is indicated that after the orders were passed in the case of employee Smt. Manju Shukla on 15.9.2003, the matter was placed before the Advisory Committee on 11.11.2004 and the observations of the Advisory Committee is reproduced in Paragraph-10 Sub-para (ii) of the affidavit. The reasons which were analyzed goes to show that the State Advisory Committee found that even though a woman employee has opted to go on transfer from one state to another is entitled to change her option and the law permits her to withdraw her option but contending that her earlier representation was rejected, her subsequent representation is also rejected. Neither any requirement of law in the matter of passing a speaking order, nor the reasons for withdrawing the option and the statutory requirement which permits a woman employee to withdraw the option is considered by the State Advisory Committee. The recommendation of the State Advisory Committee only shows that if such an option is permitted, a flood gate would be opened which will create administrative difficulty and, therefore, it cannot be considered.
11. Keeping in view the aforesaid, we are of the considered view that this could not be a reason for not permitting a woman employee to withdraw her option. Merely because a flood gate of representation would be opened, non-consideration of the representation in accordance with the statutory requirement is not proper. Once the woman employee is entitled to withdraw her option for cogent reasons given and when the employee Smt. Manju Shukla, in the present case, has given detail reasons indicating various difficulties for withdrawal of her option within a very short period of time i.e. within two to three days, it was the duty of the State Advisory Committee to take note of all these factors and pass a reasoned order, it was not proper for the Advisory Committee to reject the representation of the employee Smt. Manju Shukla in a casual manner.
12. While doing so, the Advisory Committee has lost site of the preference given to the woman employee, the reasons given by her in withdrawing the option and the directions given in the case of Brijendra Kumar Soni (supra), which was reproduced in the order passed on 15.9.2003 and the directions issued to the Advisory Committee and the Union of India. The respondents having failed to comply with all these requirement, we are of the considered view that the Writ Court has not committed any error in interference into the matter. Now finding no ground, we dismiss this writ appeal.
13. That apart, we may point out that it is only the State Government, which has challenged the order passed by the Writ Court on 3.9.2013. The learned Writ Court quashed the orders passed by the Union of India and the Union of India has not challenged the order passed. That apart, during the course of hearing today, Shri D.K.Dixit, learned counsel produces before us an order dated 9.2.2015 issued by the Additional Secretary Chhatisgarh in the Department of Health and Family Welfare Department written to Shri A.K.Malhotra Additional Secretary, Government of India, who had filed affidavit in this case and the Principal Secretary, State of MP, Department General Administration, Bhopal indicating that after a period of 14 years, those employees who are not willing to accept allocation of their services to the State of Chhatisgarh and the employees who have only one or two years remaining for their retirement may render their services to the State of Madhya Pradesh and the State of Chhatisgarh has given consent for the same. Infact, they say that if the employee is not willing to come to the State of Chhatisgarh, they should not come.
14. That being so, we see no reason to interfere into the matter as the Writ Court has not committed any error allowing the petition. Taking note of all these circumstances, we see no reason to interfere into the same.
15. The appeal is, therefore, dismissed. No order on cost.
(Rajendra Menon) (Sushil Kumar Gupta)
Judge Judge
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