Madhya Pradesh High Court
Department Of Finance vs Raghuveer Batham on 13 January, 2020
Author: S.C.Sharma
Bench: S.C.Sharma
W.A. No. 979/2019
(State of M.P. Vs. Raghuveer Batham)
WA No. 974/2019, WA No. 976/2019, WA 977/2019, WA
978/2019, WA 980/2019, WA 982/2019 and WA No. 983/2019
The High Court Of Madhya Pradesh
Indore : 13/01/2020 :-
Shri Vinay Gandhi , learned counsel for the appellant/State.
This Order shall also govern the disposal of aforementioned
writ appeals.
In all the writ appeals, there is an application for condonation
of delay.
I.A.No. 3072/2019 in W.A.No.979/2019 is taken up.
There is a delay of 17 days in filing the appeal.
Learned counsel for appellant has argued before this Court
that the matter was referred to the Law Department and after
obtaining information from the Law Department, the writ appeal
was preferred immediately, meanwhile delay of 17 days has taken
place.
After hearing learned counsel for the appellant, this Court is of
the opinion that delay deserves to be condoned. Accordingly, I.A.No.
3072/2019 is allowed.
Learned counsel for the appellant at the outset has drawn
attention of this Court towards the order dated 27.11.2019 passed in
Writ Appeal No.221/2019 and other connected matters and his
contention is that controversy has already been decided by the
Division Bench of this Court.
The impugned order in the present case is based upon the
judgment delivered on 18.09.2018 in the case of Mahboob Khan
Mansoori Vs. State of M.P. and others (W.P.No. 15499/2014). The
Division Bench of this Court has set aside the order dated 18.9.2018
passed in Writ Petition No. 15499/2014 by an order dated
27.11.2019. The order dated 27.11.2019 passed in Writ Appeal No.
W.A. No. 979/2019
(State of M.P. Vs. Raghuveer Batham)
WA No. 974/2019, WA No. 976/2019, WA 977/2019, WA
978/2019, WA 980/2019, WA 982/2019 and WA No. 983/2019
221/2019 reads as under :-
"Writ Appeal No.221/2019 (State of M.P. Vs. Mahboob Khan Mansoori) &
Writ Appeal No.300/2019
Writ Appeal No.301/2019
Writ Appeal No.302/2019
&
Writ Appeal No.303/2019
Jabalpur, Dated : 27/11/2019.
Shri Praveen Dubey, learned Deputy Advocate General for the
State of Madhya Pradesh & its functionaries.
Shri Anubhav Jain, learned counsel for respondents in respective
appeals.
This order shall govern the final disposal of Writ Appeal
No.221/2019,
These Appeals under Section 2(1) of M.P. Uchcha Nyayalaya
(Khand Nyayapeeth Ko Appeal) Adhiniyam, 2005 are directed against
the common order dated 18.09.2018 passed in Writ Petition
No.15499/2014, Writ Petition No.19934/2014, Writ Petition
No.19936/2014, Writ Petition No.15503/2014 and Writ Petition
No.15508/2014.
There is delay of 43 days in filing these appeals, condonation
whereof is being sought vide Interlocutory Applications No. 1231/2019,
1940/2019, 1943/2019, 1946/2019 and 1952/2019 in respective appeals.
Though the condonation is opposed by the respondents;
however, taking into consideration the reasons which prevented the
Appellant from filing the Appeal within the period of limitation,
sufficient cause is made out. Consequently, delay is condoned.
Interlocutory Applications stands disposed of.
Facts on record reveals chequered history. These respondents
were all appointed as Area Assistant and Peon in the Finance Department
in the office of District Small Savings and State Lotteries in pursuance to
special recruitment in the year 1997 and 1998. However, immediately
after their appointment, their salaries were stopped on the anvil that the
appointments were in excess of the vacancies. The dispute was carried to
Madhya Pradesh Administrative Tribunal vide various Original
Applications connected with Original Application : 866/1998.
These Original Applications were decided on 08.02.1999 by a common
order, whereby, it was held :
"7. It is an admitted position that the matter relating to
appointments made in the office of respondent No.2 has not been
fully enquired into
and no order of termination of service has been issued. It is also
clear that some of the appointments would have been made
genuinely and correctly as per the rules and that these
appointments would not be objectionable. Till the matter is fully
enquired into it cannot be said as to which person's appointment
is tainted with fraud or irregularity or is based upon a forgery.
Therefore, unless a prima facie conclusion is reached after due
enquiry as to whose appointment is objectionable it would not be
proper to paint all the appointments with the same brush and treat
them as fraudulent or irregular. Therefore, the action of the
respondent No.2 in issuing wireless message containing the
W.A. No. 979/2019
(State of M.P. Vs. Raghuveer Batham)
WA No. 974/2019, WA No. 976/2019, WA 977/2019, WA
978/2019, WA 980/2019, WA 982/2019 and WA No. 983/2019
omnibus instructions relating to all the appointees placed at
Annexure A-1 to all the Collectors was premature and not proper.
Unless a specific opinion is formed about the correctness or
otherwise of appointment of any person no action to stop him
from working and thereby stopping his salary should have been
taken.
8. In view of the above position the wireless instructions dated
02.12.1998 placed at Annexure A-1 in this case as well any
similar instructions given in other cases are quashed. The
applicant shall be allowed to rejoin duty if she has not already
been allowed to do so and shall be treated as on duty from the
day the was stopped from performing the same and she shall be
paid full salary and allowances from that date onwards. Salary
for the months of October and November which has been
withheld shall also be paid. This direction shall apply mutatis
mutandis to petitioner in other cases also."
The order was affirmed by the High Court. However, during
pendency whereof these appointees were subjected to notice of
termination which being challenged in the Original Application :
627/1999 and connected Original Application, were upheld by common
order dated 19.08.1999. The Tribunal held :
"9. In our considered opinion, we find ourselves unable
to accept this contention, looking to the nature of the petition and
common order passed in O.A 866/98 and other cases, copy of
which is placed at Annexure A-2. The said petitions were filed by
the applicant when they were stopped from discharging their
work and payments of salaries were also stopped. Thus, the
earlier petitions do not relate to termination of services of the
applicant or the notice issued for such terminations.
Consequently, the present petitions which have been
filed against the impugned notice of termination of service, in
our opinion relates to an independent and separate cause of
action, for which the applicant is at liberty to approach this
Triubnal at the first instance as per the principal laid down by the
Constitution Bench of the Apex Court in the case of L.Chandra
Kumar Vs. Union of India and other; AIR 1997 SC.1125.
10. In view of the foregoing discussion, it cannot be that the
impugned one month's notice, terminating the service of the
applicant as per terms
and conditions of the appointment order annotation is said to be
illegal or unauthorised.
Use of the words 'illegal' or 'unauthorised' in the
impugned notice does not amount to casting stigma against the
applicants, as those words have been used on the basis that
appointments were made though posts were not available. The
fact that the applicants have been given opportunity to appear in
fresh selection process to be held in future, further confirms out
view that no misconduct has been levelled against the applicant.
11. Consequently, the present petitioners are not fit for admission
as well as for grant of interim relief and hence, dismissed
summarily."
Pertinent it is to note as borne out from the record that, some of
Original Applications, viz. Original Applications: 516/2000, Original
Applications: 24546/2000 and Original Applications: 521/2000 which
remained undecided by the Tribunal were later transferred to High Court
after the closure of the Tribunal and were respective registered as Writ
Petition: 24544/2003, W.P.No. 24546/2003 Writ Petition:24549/2000.
W.A. No. 979/2019
(State of M.P. Vs. Raghuveer Batham)
WA No. 974/2019, WA No. 976/2019, WA 977/2019, WA
978/2019, WA 980/2019, WA 982/2019 and WA No. 983/2019
These Writ Petitions were decided on 03.04.2007, upheld the termination
on the following findings :
"After when the said judgment was passed, the respondents
appointed a committee of three persons. The said committee came to the
conclusion that there was no cacancy for the post of District Small
Saving Officer/Regional Asst./Peon so that any vacancy for the said post
could have been filled up through backlog. This is applicable in
W.P.No.24549/2003 & W.P.No.24546/2003.
For W.P.No.24544/2003, the Enquiry Committee found that
there had been only two posts vacant of Asst.Grade III and under the
special drive 22 appointments were made as against the two backlog
vacancies and for this reason the services of all the petitioners were
dispensed with by giving them one months notice.
It is contended by learned counsel for the petitioners that
before passing the impugned order Annexure A/1, no opportunity of any
nature has been given to the petitioners. It was contended by learned
counsel for the petitioners that after when the tribunal directed for
holding an enquiry then the petitioners should have been given an
opportunity of hearing.
Learned counsel for the respondents submitted that as the
similar orders of termination after the judgment passed by the tribunal
were passed in other cases and the tribunal in O.A.No.627/99, 62899,
629/99 and 633/99 has dismissed the said cases by passing an order
dated19.8.99 which is Annexure R/1. It is contended that the tribunal
has considered the question with regard to the availability of vacancies
and the number of appointments made. The tribunal considered that as
against two posts of Asst.Grade III, 22 appointments were made. The
tribunal also considered the question with regard to non-giving of an
opportunity in terms to earlier judgment passed by the tribunal. The
tribunal rejected the contention of the employees and held that it was
not
necessary to hold a regular departmental enquiry.
Ultimately in para 10, the tribunal held as under :-
"In view of the forgoing discussion, it cannot be said that the
impugned one month's notice, terminating the services of the
applicant, as per terms and conditions of the appointment order
cannot be said to be illegal or authorized.
Use of the words "illegal or "unauthorized" in the impugned
notice, does not amount to casting stigma against the applicants, as
these words have been used on the basis that these words have
been used on the basis that appointments were made though posts
were not available. The fact that the applicants have been given
opportunity to appear in fresh selection process to be held in
future, further confirms our view that no misconduct has been
levelled against the applicants."
The judgment passed by the tribunal in the aforesaid cases shall
have full application in the present case also. In the present case,
since the services of the petitioners have been terminated by giving
them one months notice in terms to the order of appointment and no
stigma has been attached in the notice or the order of termination,
therefore, it is not a case where any stigma while terminating the
services of the petitioners has been attached by the impugned order.
The tribunal has already upheld order similar circumstances and
similar situation the same order and the said judgment has attained
the finality, therefore, the judgment so passed by the tribunal shall
have full application in the present case.
Accordingly, this court does not find any illegality in the
W.A. No. 979/2019
(State of M.P. Vs. Raghuveer Batham)
WA No. 974/2019, WA No. 976/2019, WA 977/2019, WA
978/2019, WA 980/2019, WA 982/2019 and WA No. 983/2019
order or notice by which the services of the petitioners have been
dispensed with by giving them for terminating the services of the
petitioners by giving them one months notice in terms to the order
of appointment which is Annexure A/7 to the petition and since
termination is effected in compliance to the conditions mentioned in
the order and no stigma is attached, accordingly, this court does not
hold that in the present case termination is bad in law. The petition
as such is without any substance and is dismissed.
No order as to costs."
One more Writ Petition: 14262/2003 of similar nature came to be
dismissed on 26.03.2008.
However, another set of petitions viz. Writ Petition Nos.5019/2003,
5042/2003, 5020/2003, 5024/2003, 4509/2003, 5022/2003 including Writ
Petition 5021/2003 at Gwalior Bench of this Court directed against the
similar termination order were decided on 18.05.2007; whereby, the
termination orders were quashed on the following findings :
"19. The then Commissioner cum Director Small Savings of State
Lotteries has filed his affidavit in W.P.No.1779/99 vide Annexure
A/7 on 10.3.1999. In the said affidavit he very categorically stated
that he signed all the appointment orders issued between 3.91997
to 28.10.1998. In para 2 of the said affidavit he very categorically
stated that 69 appointments orders were issued by him. In the said
69 appointments orders the name of the petitioners find place at
S.No.49, 54, 47, 51, 50, 19, 14, 31, 63, 20 and 62. Thus the
contentions of the State Government that the forgery and
irregularities in making the appointment is incorrect and contrary
to record. The petitioners filed a copy of the statement to prove that
61 posts were lying vacant before issuing the advertisement and
thus it cannot be said that no existing vacancies were available at
the time of appointments of the petitioners.
20. The petitioners in the writ petition very specifically averred that
no finding was recorded and appointment order was cancelled on
the basis of the observation made by the Tribunal on 08.2.1999
which cannot be sustained. The then Commissioner of the
respondent no.2 filed its own affidavit vide Annexure A/7 in which
he very specifically avvered that as per the instructions of the GAD
Department of respondent no.1 the appointments of SC.ST/OBC
quota oin the vacant post of SC.ST/OBC. Were filled up on special
recruitment drive and he signed the appointment order of 69
appointees as against the 82 vacant posts. This fact was never
denied by the respondents either in their return or filed specific
affidavit of the Officer In charge of the case.
...
...
25. From the perusal of the order it is clear that the order of termination was passed against the petitioners is stigmatic and cannot be recorded as a termination simplicitor. The allegations incorporated in the order clearly established that stigma has been casted and it will affect the future prospects of the petitioners.
26. As discussed above, appointments have been made by calling application through advertisement. The petitioners have successfully completed their training after medical and police verification they were appointed in the year 1998. No document for enquiry report has been filed or produced before the Court to demonstrate that the order of termination is based on valid reason. However, in absence of specific denial of the pleadings and in W.A. No. 979/2019 (State of M.P. Vs. Raghuveer Batham) WA No. 974/2019, WA No. 976/2019, WA 977/2019, WA 978/2019, WA 980/2019, WA 982/2019 and WA No. 983/2019 absence of any material available on record, it cannot be held that the reason for their termination is supported by the material available on record. In absence of such material and in view of the pleadings of the case it is to be held that the respondent No.2 has exercised his power arbitrarily with intent to terminate the petitioners without any adverse material available against them. Thus, in view of the discussions made hereinabove the action of the respondent no.3 is arbitrary and the order of termination is liable to be quashed.
27. Accordingly, these petitions succeeds and are hereby allowed. The impugned order dated 20.7.1999 (Annexure A/1) and 15.3.1990 (Annexure A/1) are hereby quashed. The respondents are directed to reinstate the petitioners without any backwages. Needful be done within a period of two months from the date of communication of this order. However, the respondents are at liberty to initiate proceedings after supplying the copy of the enquiry report to them and after giving opportunity of hearing to them and each case be decided on its own merits and necessary order be passed in accordance with law. In the facts and circumstances of the case there is no order as to costs." This order was affirmed by the Division Bench in Writ Appeal:
441/2007 and connected Writ Appeals on 06.08.2008. The Division Bench held :
"15. Thus, there are allegations of plying fraud against the employees who have secured appointment and that observation quoted in the order/notice impugned in the writ petitions itself casts stigma on the writ petitioners. Hence, the learned writ court has rightly held that by the order of termination stigman is casted upon the writ petitioners and they were not afforded any opportunity to explain the same. Hence, the writ court set aside the order/notice impugned in the writ petitions by granting liberty to the State to conduct enquiry and then proceed against the writ petitioners in accordance with law.
16. We do not find any irregularity or illegality in the order impugned in these writ appeals so as to call interference. Notice/Order dated 15/3/2000, impugned in the writ petitions as Annexure A/1 making allegations that the writ petitioners obtained appointments by playing fraud and forgery definitely casts stigma on the writ petitioners.
17. Hence, all the writ appeals being without any merit are dismissed affirming the order passed by the learned writ court."
The order was subjected to challenge before the Supreme Court in SLP (c) No.4015/2009. That a fresh order came to be issued on 17.02.2010 which was again subjected to challenge in W.P.12789/2010(s) which was disposed of on 05.03.2012 in the terms of order passed in W.P.No.13855/2010 on 15.11.2011; whereby, while setting aside the termination order, the liberty was granted to the State to take fresh action. This order (i.e. passed in W.P.No.13855/2010) was affirmed in Writ Appeal No.58/2012 decided on 18.04.2012.
That on 14.08.2014 fresh orders qua respective incumbents came to be passed in furtherance to directions in various Writ Petitions and Writ Appeals noted supra, terminating the services of all these appointees as it was found that there were no vacancies when these appointments were made.
These orders were passed after holding the detail enquiry wherein respective incumbents were granted opportunity of hearing. The W.A. No. 979/2019 (State of M.P. Vs. Raghuveer Batham) WA No. 974/2019, WA No. 976/2019, WA 977/2019, WA 978/2019, WA 980/2019, WA 982/2019 and WA No. 983/2019 findings whereof are extracted below:
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gS fd ekuuh; U;k;ky; }kjk vfu;fer fu;qfDr;ksa ds lca/k esa 'kklu }kjk mijksDr dafMdk ds vuq:i dh xbZ dk;Zogh dks mfpr ekurs gq;s ¼lwph Ø ½ 'kklu ds i{k esa le;≤
ij vkns'k ikfjr fd;s x;s] ftlls Li"V gksrk gS fd ekuuh; U;k;ky; }kjk lsok lekfIr ds uksfVl dks oS| ekurs gq, ,slh fu;qfDr;ksa dks vfu;fer ,oa voS/kkfud ekuk x;kA bl lwph esa dqy 14 O;fDr gSA 12- vr% ;g lfefr lexz ifjiz{; esa bl fu"d"kZ ij igqaprh gS fd vDVwcj 97 ls vDVwcj 98 ds W.A. No. 979/2019 (State of M.P. Vs. Raghuveer Batham) WA No. 974/2019, WA No. 976/2019, WA 977/2019, WA 978/2019, WA 980/2019, WA 982/2019 and WA No. 983/2019 e/; pyk;s x;s fo'ks"k Hkjrh vfHk;ku esa dh xbZ 76 fu;qfDr;ka fcuk miyC/k inksa ds dh xbZA rRle; cSdykWx dk dksbZ ij fjDr ugha FkA fu;qfDr;ksa esa 'kklu }kjk fu/kkZfjr fu;eksa@çfØ;kvksa dk ikyu ugha fd;k x;k ,oa lHkh fu;qfDr QthZ rjhds ls feyhHkxr dj dh xbZ] tks lansgkLin gksus ls voS/k] vfu;fer ,oa vos/kkfud gSA lfefr dk ;g Hkh fu"d"kZ gS fd ,slk djus dk ,dek= mnn~~s'; Lo;a }kjk vuqfpr ykHk çkIr djuk gSA** Pertinent it is to note that the officer who made these appointments, who was transferred to the State of Chhattisgarh, was proceeded against in the Departmental Enquiry on the following charges :
"(i) that in the first phase of special recruitment drive for filling up backlog in the posts reserved for SC and ST, he had issued an advertisement in October, 1997 for filling up of 22 posts whereas only one post was available to be filled in the first phase. [Article I]
(ii) that in the special recruitment drive for filling up of backlog of posts reserved for SC, ST and OBC in the second phase, he had issued an advertisement in March, 98 for filling up of 16 posts where as there were only 3 vacancies that could be considered as available for the said advertisement.
[Article II]
(iii) that in these two phases of recruitment for backlog posts, he had issued advertisement for 38 posts against available for posts, 72 candidates were issued offer for appointment which was double the posts advertised and 18 times the posts actually available. This was done with the intention to benefit the self and concerned persons causing huge financial loss to the Government. [Article III]
(iv) that he did not follow the guidelines of Hon'ble Supreme Court and policy of the State Government while recognizing the Arunachal State Lottery in October, 1998 [Article IV]"
That by order dated 04.02.2013 he has been inflicted with the penalty of stoppage of 20% monthly pension for a period of 3 years. The operative portion of the order reads thus :
"7. AND WHEREAS, the representation of the charged officer has been considered and it is noted that the penalty that is proposed to be imposed is in a proceeding. The assessment of evidence in the case of departmental proceedings is based on the principle of pre-ponderance of probability and not based on the principle of assessment of evidence beyond reasonable doubt' which is the yardstick for evidence standard in criminal proceedings. The representation of the charged officer, wrongly presumes that the charges have to be fully proved and proved beyond reasonable doubt for imposing any penalty at has been accepted by him that the decision has been arrived at on the basis of deposition of the witnesses. It may be seen from para 3 in the preceding pages that adequate opportunities to defend himself in the case were given to Shri M.S.Murthy (IAS:CG 72) (retired) and adequate evidence was found (notwithstanding the non availability of the file for which FIR had been launched) to support the findings of the IO by the State Govt and come to a view that Article II and III are partly proved. This has been noted by UPSC in its advice also. Therefore, the representation on UPSC's advice is based on the wrong premise and does not appear to justify any change in prima facie view to accept the advice of UPSC of 20% cut in pension. On the basis of the evidence that was produced during the inquiry proceedings it is clear that the CO failed to act effectively in the entire episode of filling up of backlog under the SRD and follow the directions of Govt. of MP in letter & spirit.
8. NOW THEREFORE, in view of the position stated above and after considering all relevant records and factors, including the representation of Shri M.S.Murthy oin the advice of UPSC, it has been viewed by the competent Authority that there are reasonable grounds to agree with the advice of UPSC and to impose a penalty of withholding of 20% of monthly pension otherwise admissible to Shri M.S.Murthy, IAS (Retired) for a period of 3 (three) years"with the gratuity amount admissible to him to be released if not otherwise required in exercise of the powers under Rule 6 of the All India Services (Death-cum-Retirement Benefits) Rules, 1958./ It is therefore ordered accordingly."
Learned Single Judge though noted these facts, however, set-aside the W.A. No. 979/2019 (State of M.P. Vs. Raghuveer Batham) WA No. 974/2019, WA No. 976/2019, WA 977/2019, WA 978/2019, WA 980/2019, WA 982/2019 and WA No. 983/2019 termination order holding that the petitioners have been subjected to harassment and illegality has been committed in dispensing them from service. Learned Single Judge observed that action has been taken in cyclostyle manner with a pre- conceited notion, however, in our considered opinion, learned Single Judge glossed over the vital fact that these petitioners were given appointment when there was no vacant post by an officer who was subsequently penalized for said act of his in giving appointment despite there being no vacant posts treating the same as misconduct on his part.
It is further noticed that the appointment of the petitioners was never, at any stage, affirmed by any order. That, a detailed inquiry has been conducted and after affording opportunity of hearing to the respective petitioners, a decision was taken to terminate their services as their appointment was found to be infested with fraud. An appointment obtained by fraud does not create any right and such appointment is void ab initio.
In R. Vishwanatha Pillai vs. State of Kerala & ors. (2004) 2 SCC 105 , it is held :
"19. ... A person who entered the service by producing a false caste certificate and obtained appointment for the post meant for Scheduled Caste thus depriving the genuine Scheduled Caste of appointment to that post does not deserve any sympathy or indulgence of this Court. A person who seeks equity must come with clean hands. He, who comes to the Court with false claims, cannot plead equity nor the Court would be justified to exercise equity jurisdiction in his favour. A person who seeks equity must act in a fair and equitable manner.
Equity jurisdiction cannot be exercised in the case of a person who got the appointment on the basis of false caste certificate by playing a fraud. No sympathy and equitable consideration can come to his rescue. We are of the view that equity or compassion cannot be allowed to bend the arms of law in a case where an individual acquired a status by practising fraud."
When the impugned order dated 18.09.2018 passed in Writ Petition No.15499/2014, Writ Petition No.19934/2014, Writ Petition No.19936/2014, Writ Petition No.15503/2014 and Writ Petition No.15508/2014 is tested on the anvil of above analysis cannot be given the stamp of approval. Consequently, impugned order is set-aside. Writ Petitions filed by the petitioners are dismissed.
The Appeals are allowed to the extent above. No costs."
In the light of the aforesaid order passed by the Division Bench, the present Writ Appeal and the aforementioned Writ Appeals are also allowed. Consequently, the impugned order passed by the learned Single Judge in all the aforesaid writ petitions is hereby set aside. Writ Petitions filed by the petitioners are dismissed.
Let a copy of this order be placed in the record of aforementioned writ appeals.
(S.C.Sharma) (Shailendra Shukla) Judge Judge W.A. No. 979/2019 (State of M.P. Vs. Raghuveer Batham) WA No. 974/2019, WA No. 976/2019, WA 977/2019, WA 978/2019, WA 980/2019, WA 982/2019 and WA No. 983/2019 mk MUKTA KAUSHAL 2020.01.25 12:51:10 +05'30'