Madhya Pradesh High Court
Shyam Kumar Yadav vs The State Of Madhya Pradesh on 13 April, 2017
1 W.P.No.2816 of 2016
HIGH COURT OF MADHYA PRADESH AT JABALPUR
Writ Petition No.2816 of 2016
PETITIONER: Shyam Kumar Yadav
Versus
RESPONDENTS: State of M.P. And others
___________________________________________________________
Shri N.P. Choudhary, learned counsel for the petitioner.
Shri Pushpendra Yadav, learned Government Advocate for the
respondents/State.
___________________________________________________________
(O R D E R )
(Passed on 13.04.2017)
Per : Sujoy Paul, J.
The petitioner has fought a long drawn battle in the corridors of the Court. This matter has a chequered history. The petitioner contends that he was appointed as daily rated employee on Collectorate rate on 26.11.1993. His services were terminated on 12.05.1995 on the basis of Government decision to terminate the services of daily rated employees who were appointed after 31.12.1988.
2. The petitioner filed W.P.No.14929/2008 which was disposed of on 09.02.2009 and the respondents were directed to consider the claim of the petitioner in the light of the order mentioned in para 2 of the petition and decide the question of reinstatement and other benefits. In turn, the respondents passed the order dated 23.5.2009 and taken back the petitioner in employment. The petitioner filed W.P.No.16663/2013, 2 W.P.No.2816 of 2016 which was disposed by reserving liberty to the petitioner to file a contempt petition. The petitioner, in turn, filed a contempt petition No.2494/2013, which was disposed of by permitting the petitioner to file a separate writ petition. The petitioner then filed W.P.No.8111/2014, which was disposed of on 26.02.2015 by directing the respondents to decide the representation of the petitioner. Since, the representation of the petitioner was not decided, the petitioner filed another contempt petition, which was registered as Cont. P. No.1116/2015. This contempt petition was permitted to be withdrawn by reserving liberty to assail the order dated 14.1.2016, Annexure P/1, whereby the claim of the petitioner for regularization was rejected.
3. Learned counsel for the petitioner submits that a perusal of the order dated 09.02.2009 passed in W.P.No.14929/2008, makes it clear that the respondents were directed to consider the claim of the petitioner for reinstatement and other benefits by taking into account, the orders passed in other cases mentioned in para 2. Thus, the respondents should have reinstated the petitioner with other benefits. But, they by adopting a linguistic engineering used the word "reinstatement/reappointment ". He submits that the principle of parity demands that he should have been treated as reinstated like other similarly situated persons.
4. Shri Choudhary submits that the respondent No.4 and certain other persons who were juniors to the petitioner were regularized by the respondents. In turn, the petitioner's case was also considered by a 3 W.P.No.2816 of 2016 screening committee consisting of five persons. The screening committee by recommendation dated 14.09.2006, Annexure P/2 opined that in view of the principle of parity and transparency, it will be proper to regularize/reappoint the petitioner. It is submitted that the rejection order dated 14.01.2016, Annexure P/1 is bad in law in as much as, the learned principal stated that he is not competent to take a decision about regularization of the petitioner. By placing reliance on the communication dated 03.2.2009, Annexure P/7, it is submitted that the Ministry made it clear that the decision in relation to the petitioner's regularization is to be taken at the level of the Principal only. Thus, it is clear that since the petitioner's juniors have been regularized, he should also be regularized from due date with all consequential benefits including the benefit of seniority and promotion.
5. Shri Pushpendra Yadav, learned Government Advocate for the respondents/State opposes the said contentions and stated that the petitioner has not chosen to challenge the order dated 23.5.2009, whereby, the petitioner was directed to be reappointed. In absence of challenge, the said order 23.5.2009 has attained finality. Similarly, the petitioner did not challenge the order dated 13.03.2014, whereby, his representation claiming regularization was rejected by the respondents.
6. No other point is pressed by learned counsel for the parties.
7. In view of the pleadings, it is not in dispute that the petitioner's initial appointment is 26.11.1993, whereas, the persons who were appointed subsequent to him have already been regularized. The 4 W.P.No.2816 of 2016 recommendations of the screening committee, Annexure P/2 shows that the respondent No.4 was appointed on 06.07.1995 and he was regularized on 06.07.1998.
8. In W.P.No. 14929/2008, this Court opined as under:-
"2. From the facts that have come on record it is seen that under similar circumstances orders have been passed by this Court in W.P.No.3494/2001, 3484/2001, 3520/2001 and 1993/2002, copies of the order are collectively filed as Annexure P-6 and these orders indicate that action similar in nature taken have been quashed by this Court and employees have been directed to be reinstated with 25% back wages. Records indicate that matter went upto Division Bench also and Division Bench decided the matter by granting backwages.
3. Keeping in view the facts that the petitioner is also claiming similar benefits, as has been granted to other employees by virtue of orders passed by this Court in various other cases as indicated hereinabove, interest of justice requires that petitioner's claim should also be considered and decided at par as that of other employees in whose cases benefit have been granted.
4. Accordingly, it is directed that on petitioner's filing a certified copy of this order, respondent No.1 Registrar of the University concerned shall evaluate the claim of the petitioner in light of the order passed in the cases referred to hereinabove and pass a speaking order with regard to reinstatement of the petitioner and grant other benefits. Action as directed hereinabove be taken within 2 months from the date of filing certified copy of this order. Petitioner shall file a certified copy of this order along with copy of the judgment relied upon before Registrar, Respondent No.1, for necessary compliance.5 W.P.No.2816 of 2016
Petition stands allowed and disposed of with the aforesaid." [Emphasis Supplied]
9. A careful reading of this order shows that this Court in no uncertain terms make it clear that the respondents are directed to consider the claim of the petitioner in the light of the orders passed in other cases mentioned in para 2 aforesaid . It is profitable to note that in para 2, this Court mentioned the numbers of other writ petitions and recorded that in those writ petitions, the similar action of the respondents was quashed and the employees were directed to reinstated. On the anvil of this finding, that the petitioner is similarly situated, the respondents were directed to decide the claim of the petitioner for reinstatement with other benefits. The respondents passed the order dated 23.05.2009 and artistically used the words "reappointment/reinstatement" in the said order. In the opinion of this Court, whether or not, this order is called in question by the petitioner in any proceedings, this order needs to be read in the light of the order passed in W.P.No.14929/2008. The word "reinstatement" has a definite connotation in the service jurisprudence. The word "reinstatement" means restoration of service of the employee to the same position from where he was terminated/disengaged. Thus, in all fairness, the respondents should have passed a clear order of reinstatement and should not have used the word "reappointment" in the order dated 23.5.2009. In the fitness of things and in consonance with the order passed in W.P.No.14929/2008, this order dated 23.05.2009 must be treated as order of "reinstatement" of the petitioner. The question of 6 W.P.No.2816 of 2016 reinstatement/reappointment may be viewed from another angle. Interestingly, in the order dated 13.3.2014 passed by Directorate, the respondents themselves treated the order dated 23.5.2009 as an order of "reinstatement" in place of order of "reappointment". Thus, for this reason also, the order dated 23.5.2009 must be treated as an order of "reinstatement" in place of order of "reappointment".
10. In view of order passed in W.P. No.14929/2008, the respondents were required to undertake following exercise:-
(a) They should have taken a decision regarding reinstatement of petitioner by considering the fact that similarly situated daily rated employee have been reinstated.
(b) The department was required to take decision regarding grant of back wages by taking into account the action taken in cases which are similar in nature.
The respondents have passed a cryptic order showing that petitioner is reinstated/reappointed and did not decide about regarding back wages.
11. The writ Court has ample powers to molud the relief to do the complete justice between the parties. For doing complete justice, no technicality comes in the way of the writ Court.
12. In AIR 1966 SC 81 [Dwarka Nath vs. Income Tax Officer] the Supreme Court opined as that this article is couched in comprehensive phraseology and it ex facie confers a wide power on the 7 W.P.No.2816 of 2016 High Court to reach injustice wherever it is found. The Constitution designedly used a wide language in describing the nature of the power , the purpose for which and the person or authority against whom it can be exercised. It can issue writs in the nature of prerogative writs as understood in England; but the scope of those writs also is widened by the use of the expression "nature", for the said expression does not equate the writs that can be issued in India with those in England, but only draws an analogy from them. That apart, High Courts can also issue directions, orders or writs other than the prerogative writs. It enables the High Courts to mould the reliefs to meet the peculiar and complicated requirement of this country. Any attempt to equate the scope of the power of the High Court under Article 226 of the Constitution with that of the English Courts to issue prerogative writs is to introduce the unnecessary procedural restrictions grown over the years in a comparatively small country like England with a unitary form of Government to a vast country like India functioning under a federal structure. Such a construction defeats the purpose of the article itself.
13. In 1985 Supp. SCC 476 [ITC Ltd. vs. State of Karnataka], the Apex Court opined as under:-
"The Court can mould its directions in order to give relief in a particular situation. Courts of today cannot and do not any longer remain passive with the negative attitude, merely striking down a law or preventing something being done. The new attitude is towards positive affirmative actions, directing people or authorities concerned that " thou shall do't" in this manner."
[Emphasis Supplied] 8 W.P.No.2816 of 2016
14. In the case of Badri Nath vs. Govt. of T.N. reported in 2000 (8) SCC 395, the Supreme Court opined that where the Court comes to the conclusion that the departmental authority should have acted in a particular manner but acted in a different manner, in a rear case, the Court itself can exercise those powers and ensure that the order is passed and read in a particular manner. The relevant portion reads as under:
"In 1995 (6) SCC 749 [B.C. Chaturvedi vs. Union of India], the Apex Court opined that the mere fact that there is no provision parallel to Article 142 relating to the High Courts, can be no ground to think that they have not to do complete justice, and if moulding of relief would do complete justice between the parties, the same can be ordered. Absence of provision like Article 142 is not material. Power to do complete justice also inheres in every court, not to speak of a court of plenary jurisdiction like High Court.
88. ......... we might emphasise that the power of this Court to mould the relief in the interests of justice in extraordinary cases cannot be doubted. In Comptroller & Auditor General of India v. K.S. Jagannathan such a power on the part of this Court was accepted by a three-Judge Bench. Madon, J. referred to the observations of Subba Rao, J. (as he then was) in Dwarka Nath v. ITO wherein the learned Judge explained that our Constitution designedly used wide language in Article 226 to enable the Courts to "reach justice wherever found necessary" and "to mould the reliefs to meet peculiar and complicated requirements of this country". Justice Madon also referred to Rochester Corpn. v. R. R. v. Revising Barrister for the Borough of Hanley Padfield v. Minister of Agriculture Fisheries and Food and to a passage from Halsbury's Laws of England, 4th Edn. Vol. 1, p. 59. Finally Madon, J. observed:
(SCC pp. 692-93, para 20) "20. There is thus no doubt that the High Courts in India exercising their jurisdiction under Article 226 have the power to issue a writ of mandamus or a writ in the nature of mandamus or to pass orders and give necessary directions where the Government or a public authority has failed to exercise or has wrongly exercised the discretion conferred upon it by a statute or a rule or a policy decision of the Government or has exercised such discretion mala fide or on irrelevant considerations or by ignoring the relevant considerations and materials or in such a manner as to frustrate the object of conferring such discretion or the policy for implementing which such discretion has been conferred. In 9 W.P.No.2816 of 2016 all such cases and in any other fit and proper case a High Court can, in the exercise of its jurisdiction under Article 226, issue a writ of mandamus or a writ in the nature of mandamus or pass orders and give directions to compel the performance in a proper and lawful manner of the discretion conferred upon the Government or a public authority, and in a proper case, in order to prevent injustice resulting to the parties concerned, the court may itself pass an order or give directions which the Government or the public authority should have passed or given had it properly and lawfully exercised its discretion."
[Emphasis Supplied]
15. It is seen that the petitioner who is a very low paid employee was terminated from services, whereas his juniors have been regularized in the year 1998. He repeatedly approached this Court by filing petitions, but despite the directions of the writ Court in all those writ petitions, the respondents did not redress the genuine grievance of the petitioner.
16. The order dated 13.3.2014 is silent about the claim of regularization of the petitioner. The said claim was considered in Annexure P/2 and Principal opined that he is not competent to take a decision in this regard. This decision of the Principal clearly runs contrary to the order dated 03.2.2009, Annexure P/7. This order reads as under:-
e/; izns'k 'kklu rduhdh f'k{kk ,oa izf'k{k.k foHkkx oYyHk Hkou ea=ky;
&&&&&&&&&&&& dzekad&183@147@2009@c;kyhl¼1½ Hkksiky]fnukad 3@2@09 izfr] lapkyd rduhdh f'k{kk e/; izns'k Hkksiky-
&&&&&&&&&& 10 W.P.No.2816 of 2016 fo"k; %& fnukad 31-12-1988 ds i'pkr lsok ls i`Fkd fd;s x;s nSfud osruHkksxh deZpkjh Jh ';ke lqUnj ;kno dh fu;qfDr ckorA lanHkZ%& vkidh Vhi dzekad&99] fnukad 15-1-2009-
&&&&&
fo"k;kafdr izdj.k esa lanfHkZr Vhi dk d`i;k
voyksdu djsaA
2- mDr Vhi esa ;g Li"V fd;k x;k gS fd ;kno ds
lkFk dk;Zjr 05 deZpkfj;ksa dks izkpk;Z }kjk fu;fer fd;k x;k gS ,oa izdj.k esa izfrosnuksa dk vekU; fd;k tkdj lapkyd rduhdh f'k{kk }kjk izkpk;Z dh vius Lrj ls dk;Zokgh ds funsZ'k fn;s x;s gSaA 3- vr% izdj.k esa izkpk;Z dyk fudsru iksyhVsdfud egkfo|ky;] tcyiqj dks vius Lrj ls gh fu;ekuqlkj dk;Zokgh djus gsrq funsZf'kr djus dk d"V djsaA ¼th0,l0[ksjokj½ mi lfpo e/; izns'k 'kklu rduhdh f'k{kk ,oa izf'k{k.k foHkkx [Emphasis Supplied]
17. The order of the Government makes it clear that the decision was required to be taken at the level of the Principal only.
18. The finding of the screening committee dated 14.09.2006 is crystal clear that the petitioner's juniors have been regularized with effect from 06.07.1998 the respondents did not consider the claim of the petitioner for regularization and back wages after his reinstatement by order dated 23.5.2009. Thus, in my view, the action of the respondents is arbitrary and capricious in nature. It is unfortunate that a low paid employee was required to knock the doors of this Court for about six occasions and yet his grievances are not redressed. 11 W.P.No.2816 of 2016
19. In view of principles laid down in Badri Nath (Supra) and other cases, I deem it proper to issue directions to the department to ensure that earlier directions which in the opinion of this Court should have been passed by the department itself, if order passed in the earlier round would have been implemented in its true spirit. It is necessary to compel the department to pass orders in a proper and lawful manner so that further injustice to the petitioner can be prevented. Accordingly, I deem it proper to allow this writ petition and set aside the order dated 14.01.2016. The said order is accordingly set aside and this petition is allowed with following directions:
(i) The respondents shall consider the case of the petitioner for regularization with effect from 06.07.1998 when his junior/respondent No.4 was regularized within a period of 45 days. They shall take into account the recommendation of committee dated 14.09.2016 (annexure-P/2).
(ii) If the petitioner is found suitable for regularization, the necessary order for regularization w.e.f. 06.07.1998 shall be passed within the aforesaid time.
(iii) In view of order passed in W.P. No.14929/2008, the respondents shall pass proper orders regarding grant of back wages to the petitioner by taking into account other action taken in other cases which were held to be "similar in nature"
in the said case.12 W.P.No.2816 of 2016
(iv) In the event of regularization with effect from 06.07.1998, the petitioner shall get the benefit of notional fixation of pay and other benefits except back wages from 06.07.1998 subject to para (iii) above.
(v) If petitioner is regularized, the respondents shall grant him appropriate seniority from back date in the seniority list.
(vi) If any junior to the petitioner is promoted in the meantime, the respondents shall consider the case of the petitioner for promotion by holding a review DPC.
20. Before parting with the matter, I deem it proper to deprecate the practice adopted by the respondents whereby the genuine grievance of a low paid employee was not redressed at the level of the department and he was compelled to approach this Court again and again.
21. The petition is allowed to the extend indicated above. No cost.
(SUJOY PAUL) JUDGE SJ/s@if