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[Cites 2, Cited by 0]

Madhya Pradesh High Court

Women And Child Development Department vs Sitaram Vishwakarma on 26 February, 2016

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               Writ Appeal No.314/2015
26.02.2016
    Shri Pushyamitra Bhargava, learned Deputy Advocate
General for the appellant / State.
     Shri L.C. Patne, learned counsel for the respondent.

They are heard.

Learned Deputy Advocate General for the appellant / State submits that a Division Bench of Principal Seat in identical circumstances by order dated 27.11.2013 passed in the case of The State of Madhya Pradesh & others v. Yugal Kishore Sharma s/o Chandrabhan Prasai (Writ Appeal No.682/2013) set aside the order on the basis of which Writ Petition No.2892/2014 (s) has been allowed on the ground that other factors are like amending provisions of Fundamental Rule 56 as incorporated vide Madhya Pradesh Shaskiya Sevak (Adhivarshiki-ayu) Dwitiya Sanshodhan Adhiniyam, 1998 has not been considered while passing the aforesaid and decide it afresh, in accordance with law. Order dated 27.11.2013 passed in Writ Appeal No.682/2013 reads as under: -

"Heard counsel for the parties. As short question is involved, taken up for final disposal, by consent.
This appeal takes exception to the decision of the learned Single Judge dated

02.01.2013 passed in Writ Petition No.4030/2009.

Respondent had filed writ petition praying for quashing of the order bearing No.483 dated 6.3.2009 retiring the respondent from service w.e.f. 30.6.2011 on completion of 60 years of age. Further relief of mandamus is sought against the appellant to permit the respondent to continue till completion of 62 years of age with all consequential benefits.

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Learned Single Judge, essentially, relying on the observations made in the decision of the M.P. Administrative Tribunal, Jabalpur in transfer application No.747/1988 decided on 14.11.1991 held that Instructors are treated as teachers. Perhaps while recording that finding, learned Single Judge in the back of his mind had the decision of this Court in the case of Mahendra Pal Singh Vs. State of M.P. and others , 1987 MPLJ 500. However, the learned Single Judge ought to have also examined the other factors specified by the amended provision of the Fundamental Rule 56 as incorporated vide M.P. Shaskiya Sevak (Adhivarshiki-ayu) Dwitiya Sanshodhan Adhiniyam, 1998 (No.27 of 1998) (hereinafter referred to as 'the Adhiniyam' for short). The same postulates that Teacher must be a "Government servant" by whatever designation called and appointed for the purpose of "teaching in Government educational institute". Learned Single Judge no doubt noticed that the decision in the case of Chandra Kakker (supra) does not specifically deal with this additional requirements to fulfill the criteria for application of the Adhiniyam. Nevertheless, the learned Single Judge has not pointly discussed in the judgment under appeal as to whether the appointment of the respondent was in fact as a "Government servant" and more so for the purpose of "teaching in Government Educational institution". In absence of finding on these factual aspects, it will not be appropriate to conclude that the Adhiniyam has application to the case of the respondent herein.

That being the quintessence of the provision as amended by the above-referred Adhiniyam, the only appropriate recourse is to relegate the parties before the learned Single Judge for re-consideration of these aspects. Consequent to the finding to be recorded on these factual matrix, the learned Single Judge may proceed to answer the relief claimed by the respondent in the main writ petition.

We accordingly set aside the impugned 3 judgment and restore the writ petition to the file to decide afresh by the learned Single Judge on its own merits.

Appeal disposed of accordingly."

On due consideration of the facts and circumstances of the case, we set aside the impugned order dated 22.09.2014 passed in Writ Petition No.2892/2014 and restore the writ petition to the file to decide afresh by the learned Writ Court on its own merits, expeditiously.

With the aforesaid, Writ Appeal No.314/2015 is disposed of. 

               (P.K. Jaiswal)                           (Alok Verma)
                  Judge                                     Judge
Pithawe RC