Madhya Pradesh High Court
Chandra Prakash Tiwari vs The State Of Madhya Pradesh on 5 April, 2022
Author: Sanjay Dwivedi
Bench: Sanjay Dwivedi
1
THE HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR
W.P.No.5036/2019
Chandra Prakash Tiwari
Versus
State of M.P. and others
Date of Order 05/04/2022
Bench Constituted Single Bench
Order delivered by Hon'ble Shri Justice Sanjay
Dwivedi, J
Whether approved for
reporting
Name of counsels for For Petitioner: Shri Manikant
the parties Sharma, Advocate
For Respondent-State: Shri Manas
Mani Verma, Government Advocate
For Respondents no.2 and 3: Shri
Anoop Nair, Advocate
Law laid down
Significant Para Nos.
ORDER
(05/04/2022) This Writ Petition has been filed under Article 226 of the Constitution of India, questioning the validity of order dated 27.02.2019 (Annexure-P/11) issued by respondent No.2, whereby the claim of the petitioner for regularization to the post of Steno-cum-Computer Operator has been brushed aside.
2. Counsel for the petitioner submits that whole exercise has been conducted by the respondents in pursuance to the direction issued by this Court in W.P.No.10655/2016 decided 2 vide order dated 24.01.2019. According to the petitioner, this Court in earlier round of litigation had considered the claim of the petitioner making comparative assessment of eligibility of Shri R.P. Singh and Smt. Divya Abhilash, who were according to the petitioner, juniors to him but regularized and claim of the petitioner was denied. The case of petitioner before the Court was that he was discriminated.
3. According to the petitioner, the respondent-authority has reiterated the facts which have already been considered by the High Court and allowed the petition, but the claim of the petitioner has wrongly been rejected. He further submits that rejecting the claim of the petitioner on the premise which had already been considered and discarded by the Court and direction was given to the respondents to consider the claim of the petitioner on the touchstone of parity with that of R.P.Singh and Smt. Divya Abhilash is not proper, but despite that, the respondents have again made comparative assessment of the petitioner with that of R.P.Singh and Smt. Divya Abhilash and rejected the claim of the petitioner on the ground that the petitioner did not have requisite qualification as was possessed by R.P.Singh and Smt. Divya Abhilash. He also submits that the regularization of the petitioner was to be made in pursuance to the order (Annexure-P/2), which says regularization has to be done on the post on which employee is working. According to him, Annexure-P/4 is a Circular dated 01.07.2013, by which GAD has clarified that requisite qualification for regularization on the post of Steno Typist is speed of 80 WPM in Hindi shorthand. A certificate in that regard is possessed by the petitioner and that was filed in the earlier round of litigation as Annexure-P/6. He submits that such exercise is absolutely illegal and contrary to the 3 direction issued by the High Court and therefore order dated 27.02.2019 (Annexure-P/11) is liable to be aside.
4. Combating the submissions made on behalf of the petitioner, Shri Nair, counsel appearing for respondents No.2 and 3 submits that in earlier round of litigation, the comparative assessment with regard to required qualification was not done, whereas the authorities have considered that aspect and compared the case of the petitioner with that of R.P.Singh and Smt. Divya Abhilash taking note of their qualification, which is required for regularization to the post of Steno-cum-Computer Operator. Shri Nair submits that the order impugned makes it clear that chart showing comparative assessment of qualification which was in the credit of candidates including the petitioner indicates that at the relevant point of time, the petitioner is short of requisite qualification i.e. Shorthand Typing with 80 WPM speed and therefore in absence of requisite mandatory qualification, the claim for regularization of the petitioner has rightly been rejected. He also relied upon regulation, which is available on record as Annexure-P/3, wherein schedule-3 contains requisite qualification for the post on which petitioner's claim was to be considered. He further submits that in the absence of requisite qualification, the petitioner cannot be regularized. As regards possession of certificate by the petitioner, counsel for the respondents submits that the certificate does not indicate that the petitioner has cleared the examination, but that was a certificate showing that the petitioner has participated in the training programme, according to which, he has attained the speed of 80 WPM. Therefore, the impugned order does not suffer from any irregularities.
5. In response, it is contended by counsel for the petitioner 4 that the respondents had no authority to rescrutinize the case of the petitioner to the extent that he does not possess the requisite qualification i.e Shorthand Typing with 80 WPM speed, whereas said qualification was very much available with R.P.Sinha and Smt.Divya Abhilash, because that aspect has already been taken note of by this Court in earlier round of litigation. He submits that in paragraph 20 of order dated 24/01/2019 it is very categorically observed that if any type of relaxation has been provided in a requisite qualification to Smt.Divya Abhilash and Shri R.P.Sinha, the petitioner is also entitled for the same and there cannot be any discrimination because Constitution does not permit any discrimination amongst the persons, who are substantially at the same platform facing similar circumstances or conditions. This Court has further observed directing the respondents to consider the claim of the petitioner for regularization treating him as similarly situated qua Shri R.P.Sinha and Smt.Divya Abhilash.
6. It is apt to quote paragraphs 22 and 23 of the order passed by this Court, in which the Court has compared the case of the petitioner with that of Divya Abhilash and R.P.Singh.
(22)In view of aforesaid analysis, the action of respondents in not exercising power of relaxation in favour of petitioner cannot be countenanced. Moreso, when it was exercised in favour of Shri R.P.Sinha who was lacking similar qualification/ eligibility and was junior to him. In addition, the petitioner has specifically pleaded in reply to I.A.No.8786/18 that one Smt. Divya Abhilash was regularized as computer operator-cum- steno whereas she did not have requisite qualification. She had not completed ten years of service. Her case was also sent for clarification to G.A.D but before opinion of G.A.D could be received, in a hot haste, she was regularized. In support of this contention, reliance is placed on communication dated 23.08.2013, 08.10.2013 and 03.10.2013. In continuance of this contention, reliance is placed on document dated 5 9.11.2015 and 22.05.2017. It is urged that Smt. Divya Abhilash was not possessing qualification yet she was regularized. The certificate of CBSE was recognized on 09.11.2015 only. But she was given benefit of regularization. These are, in my view, relevant aspects which needs consideration and in no case petitioner can be deprived from the fruit of relaxation if he is similarly situated qua Shri R.P.Sinha and Smt. Divya Abhilash. It must be remembered that what is forbidden by the Constitution, is discrimination between the persons who are substantially in similar circumstances or conditions.
(23). This court will be failing in its duty if contention of Mrs. Indira Nair, learned Senior Advocate is not considered wherein it is urged that as petitioner stood discontinued on completion of contractual period, right of regularization is not available to him. Reverting back to Regulation, it is clear from bare reading of clause-6(d) (reproduced in para-10 of this order) that contractual employees were treated to be deemed employees of the Commission and their cases were required to be considered for regularization.
"Consideration" means meaningful, transparent and fair consideration and not a consideration for name sake. Right of consideration of petitioner in the present case was taken away in an arbitrary manner. Merely because he was discontinued thereafter, it will not take away his right of consideration from due date in a just, reasonable, equitable and proper manner. Thus, this argument of learned Senior counsel, must fail.
7. Counsel for the petitioner submits that the respondents neither in the impugned order nor during the course of arguments have pointed out anything that because of GAD circular dated 01/07/2013 and the requisite qualification mentioned therein, the claim of the petitioner has been rejected. The reasons assigned for rejecting the claim of the petitioner are improper and unjustified, as chart prepared and reproduced in paragraph 12 of the order clearly reveals that Shri R.P.Sinha did not have the same requisite qualification, for which claim of petitioner has been rejected and Shri R.P.Sinha had been regularized on the post of Steno cum Computer Operator.
8. I have heard counsel for the parties at length and 6 perused the documents appended to the petition, from which it is clear that on earlier round of litigation this Court in W.P.No.10655/2016 has considered the claim of the petitioner for his regularization on the post of Steno cum Computer Operator comparing his case with one Shri R.P.Sinha and Smt.Divya Abhilash, who are juniors to petitioner, but have been regularized prior to him. For ready reference relevant part of order dated 24/01/2019 passed in W.P.No.10655/2016 is reproduced hereinbelow:
(24). In view of forgoing analysis, I deem it proper to allow this petition and issue following directions :-
(1) The respondent shall consider the claim of petitioner for regularization by treating him as similarly situated qua Shri R.P. Sinha and Smt. Divya Abhilasha and pass appropriate order in this regard. If the petitioner is found fit for regularization, he shall be regularized/appointed from the date said Shri Sinha was appointed on notional basis. In that case, he shall get the benefit of notional seniority and notional fixation and pay from the said date which will give him right to draw the same pay, which his contemporaries or juniors are drawing today.
(2) For the purpose of considering the claim of petitioner for regularization, the respondent shall take into account GAD Circular dated 01-07-2013 and their own advertisement filed by the petitioner in reply to I.A. No.8786/18. In addition, the respondents shall take into account the fact that the petitioner has worked for more than ten years with the respondents and acquired long experience and knowledge of working. It is noteworthy that in the relevant claim of Annexure P/26, no finding is recorded that the petitioner's performance was not satisfactory.
(3). It is made clear that it shall not be open to the respondents to contend that post of Computer operator/ stenographer was not available on account of the fact that Shri R.P.Sinha, a junior employee has already been regularized. One employee holding the said post has been terminated and it is not shown that the post was thereafter filled-up.
(4). At the cost of repetition, it is directed that respondents shall consider the case of petitioner on the touch-stone of principle of parity which is flowing from Article 14 of the Constitution of India.
(5). The entire action of consideration and issuance of appropriate order shall be completed within thirty days from the date of production of copy of this order.7
[Emphasis supplied]
9. Despite the aforesaid order, respondents have passed an order on 27/02/2019 (Annexure-P-11) which is impugned in this petition rejecting the claim of the petitioner on the ground that he did not have the basic qualification for the post of Steno Cum Computer Operator, whereas Shri R.P.Sinha and Smt. Divya Abhilash had such qualification and, therefore, the petitioner is not entitled to be regularized.
10. The respondents have also not tried to dislodge the observations made by the Court in earlier round of litigation, therefore, instead of revaluating the same they should have considered the claim of the petitioner under the garb of the observation made by this Court. This Court has passed the order in the year 2019 after taking into account the facts situation existing in the year 2013, therefore, action of respondents in rejecting the claim of the petitioner by the impugned order making comparative assessment of the factual position existing in the year 2013 does not appear to be logical and contrary to the scope of consideration of the claim of the petitioner as has been directed by the Court.
11. Considering the overall facts and circumstances of the case, this petition is allowed and impugned order dated 27/02/2019 (Annexure-P-11) is set-aside as the same is not sustainable in the eyes of law. This Court does not deem it proper to again remit the matter to the authority to consider the claim of the petitioner because it may cause prejudice to the petitioner as he has been approaching the Court time and again and his claim has already been considered by the Court in appropriate manner. The respondents are directed to regularize the petitioner to the post of Steno cum Computer 8 Operator with effect from the date when R.P.Sinha and Smt.Divya Abhilash have been regularized and also provide all consequential benefits to the petitioner. The aforesaid exercise be completed by the respondents within a period of three months from the date of receipt of copy of the order.
12. Petition is accordingly allowed to the extent indicated above.
(SANJAY DWIVEDI) JUDGE sushma SUSHMA Digitally signed by SUSHMA KUSHWAHA DN: c=IN, o=HIGH COURT OF MADHYA PRADESH, ou=HIGH COURT OF MADHYA PRADESH, postalCode=482001, st=Madhya Pradesh, 2.5.4.20=06cc7ec7869e71b23c61580e1aaad85481f7ea48cd875c18e5a68787947df0c5, KUSHWAHA pseudonym=3162691BECDE33282E19E0CEBA20524E31482089, serialNumber=0844205F54108DDA40342AD423EF1D3DE29D4F5E3FC94CC59B05D91905B104C7, cn=SUSHMA KUSHWAHA Date: 2022.04.20 10:55:53 +05'30'