Madhya Pradesh High Court
Ashok Kadam vs Directorate Of Health Services on 15 March, 2018
1 WP No.5390/2017, WP No.5379/2017, WP No.3550/2016 & WP No.2651/2016
HIGH COURT OF MADHYA PRADESH BENCH AT INDORE
(S.B.: HON. SHRI JUSTICE PRAKASH SHRIVASTAVA)
WRIT PETITON No.5390/2017
Dharmendra Parikh Vs. Directorate of Health Services and
others
WRIT PETITION No.5379/2017
Ashok Kadam Vs. Directorate of Health Services and others
WRIT PETITION No.3550/2016
Dharmendra Parikh Vs. Directorate of Health Services and
others
WRIT PETITION No.2651/2016
Ashok Kadam Vs. Directorate of Health Services and others
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Shri. Sunil Jain, learned Sr.Counsel with Ms.Kirti
Patvardhan, learned counsel for petitioners.
Ms.Bhakti Vyas, learned counsel for respondents.
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Whether approved for reporting :
ORDER
(Passed on 15th March, 2018) This order will govern the disposal of WP No.2651/2016, WP No.5379/2017 and WP No.3550/2016 as also WP No.5390/2017 since it is submitted by counsel for parties that all these writ petitions involve same issue on the identical fact situation.
[2] WP No.5390/2017 and WP No.5379/2017 are at the instance of the petitioner Dharmendra Parikh and Ashok Kadam respectively seeking implementation of the order dated 5/10/2016 whereas WP No.3550/2016 and WP No.2651/2016 are by the same petitioners challenging the recovery of increments to the post of MPW.
2 WP No.5390/2017, WP No.5379/2017, WP No.3550/2016 & WP No.2651/2016 [3] For convenience the facts have been noted from WP No.5390/2017.
[4] This writ petition has been filed by the petitioner challenging the order dated 17/4/2017 refusing to revert the petitioner to the post of Superior Field Worker (SFW) and seeking implementation of the order dated 5/10/2016 by which earlier the petitioner was reverted to the said post. The petitioner has prayed for a further direction to re-fix the salary of the petitioner on the post of SFW with effect from 21/11/2010 and further direction to give him all the benefits of the post of SFW with effect from 21/11/2007.
[5] The case of the petitioner is that he was initially appointed as SFW and vide order dated 21/11/2007 he was promoted as Multi purpose Health Worker (MPW) and suddenly on 24/12/2012 the pay scale of the petitioner was reduced to the minimum of the scale on the ground that he had not undergone requisite training of one year as per the Recruitment Rules. This order was challenged by the petitioner in WP No.634/2013 and this court by order dated 3/2/2014 had directed the respondents to give the prescribed training to the petitioner within three months. Accordingly, vide order dated 1/12/2015 the petitioner was directed to undergo training of MPW at Training Centre, Sagar. It is alleged that the affidavit was forcibly taken from the petitioner that he cannot undergo training and was ready to work as SFW. It is further alleged in the writ petition that the 3 WP No.5390/2017, WP No.5379/2017, WP No.3550/2016 & WP No.2651/2016 order dated 25/2/2016 was passed directing the recovery against the petitioner for the payment made for the post of MPW and thereafter the order dated 5/10/2016 was passed demoting the petitioner to the post of SFW on the ground that he had not taken the training but still the respondents are taking work of MPW from the petitioner and they are not sending him back to the post of SFW. In substance the case of the petitioner is that he should be reverted back to the post of SFW and recovery for the payment made on the post of MPW should not be made.
[6] The respondents have filed their reply taking the stand that in pursuance to the earlier order of this court the petitioner was given an opportunity to undergo the training for MPW, but he had deliberately remained absent and not taken the training and the recovery is being directed in pursuance to the order of this court. Further stand has been taken that the earlier order dated 5/10/2016 has been cancelled subsequently on 27/5/2017.
[7] Learned counsel for petitioner submits that since the petitioner has not been given the training of MPW, therefore, he should be reverted to the post of SFW in pursuance to the order dated 5/10/2016 and since the petitioner has worked on the post of MPW from the date of his promotion till now, therefore, the payment made to the petitioner on that post may not be recovered.
4 WP No.5390/2017, WP No.5379/2017, WP No.3550/2016 & WP No.2651/2016 [8] As against this, learned counsel for respondents has supported the impugned action.
[9] Having heard the learned counsel for parties and on perusal of the record, it is noticed that the petitioner was promoted to the post of MPW vide order dated 21/11/2007 and in that promotion order itself it was mentioned that the increment on the post of MPW will be granted only after obtaining the requisite training for the said post. The petitioner appears to have erroneously granted the benefit of increment without obtaining the training on the post of MPW, therefore, the order dated 24/12/2012 was passed by the CMO, Mandsaur cancelling the increment and directing for the recovery of the amount paid to the petitioner. This order was subject matter of challenge in WP No.634/2013 at the instance of the petitioner and before this court wherein the petitioner had taken the stand that he was always ready to go for the training, hence this court vide order dated 3/2/2014 had disposed of the petition by directing as under:-
"Considering the above submissions, the reply and the Annexures, I find that the petition needs to be allowed since the bonafides of the petitioner are not in doubt. The petition is allowed and it is directed that since the petitioner is already entitled to annual increment and the respondent also willing to give him the requisite prescribed training, let the needful be done within a period of three months from today and placing reliance on State of Punjab Vs. Surjit Singh (supra) I find that the increment has already been given to the petitioner and he was working on the said post just like to the other similarly situated persons they had already given to the benefit and the same benefit of equal pay
5 WP No.5390/2017, WP No.5379/2017, WP No.3550/2016 & WP No.2651/2016 for equal work be given to the petitioner also. Hence the impugned order is hereby quashed and the respondents are directed to give the prescribed training to the petitioner within a period of three months from the date of this order. Needless to say that if the petitioner does not undergo the training within the stipulated period or does not co-operate with the respondents regarding taking of the training, the increments granted shall be withdrawn according to provisions of law after giving proper notice to the petitioner."
[10] While passing the aforesaid order, it was made clear by this court that if the petitioner did not undergo the training within the stipulated period or did not co-operate in taking the training, the increments will be withdrawn after giving notice to the petitioner. The record further reflects that in pursuance to the order of this court, the respondents had issued the order dated 1/12/2015 Annexure P/3 relieving the petitioner for undergoing the training in Government MPW Training Centre, Sagar and directing the petitioner to positively mark his presence in the training centre. The reply of the respondents reveals that after getting relieved on 7/12/2015 the petitioner had not reported for training at the Training Centre, Sagar and had remained unauthorisedly absent from duty from 7/12/2015 to 2/2/2016 and without reporting at Training Centre he had given the joining on 2/2/2016 vide Annexure R/4 to the CMHO, Mandsaur stating that for his family circumstances he did not want to take MPW training. Thereafter the petitioner had given the affidavit dated 12/2/2016 Annexure P/4 that he may be reverted to the post of SFW with effect from November, 2007. Consequently, 6 WP No.5390/2017, WP No.5379/2017, WP No.3550/2016 & WP No.2651/2016 the detailed order dated 25/2/2016 was passed mentioning all the relevant circumstances and the different applications and the communications from time to time granting sanction to recover the increments to the post of MPW and further directing that the petitioner's prayer for reversion will be considered by the competent authority. Subsequently taking note of the petitioner's affidavit dated 2/2/2016 wherein he had made a prayer for reversion to the post of SFW and had consented for withdrawal of the financial benefits relating to the increment on the post of MPW, the Joint Director, Health Services had passed the order dated 5/10/2016 reverting the petitioner to the post of SFW, but since the petitioner had not acted in terms of the affidavit dated 2/2/2016 and had not deposited the amount of increment paid for the post of MPW, therefore, taking note of the order passed in WP No.634/2013 the respondents vide order dated 27/5/2017 had cancelled the earlier order of reversion dated 5/10/2016.
[11] Above facts make it clear that the petitioner is playing hide and seek with the respondents and has not come to this court with clean hands. In WP No.634/2013 the petitioner had taken the stand that he was ready to go for the training for MPW and accordingly the writ petition was disposed of considering the said stand, but after obtaining the order from this court, the petitioner did not go for the MPW training though he was relieved vide order dated 1/12/2015. On the contrary 7 WP No.5390/2017, WP No.5379/2017, WP No.3550/2016 & WP No.2651/2016 after relieving instead of attending at Training Centre, Sagar he remained absent till 2/2/2016 and while joining back as MPW he took the stand that for his personal and family reason he did not want to take the MPW Training.
[12] Having regard to this, no error has been committed by the respondents in initiating the proceedings for recovery of the increments which were wrongly granted to the petitioner on the post of MPW. In the promotion order dated 21/11/2007 itself it was made clear that unless the petitioner obtains the requisite training he will not get the increments for the post of MPW. Hence, Writ Petitions No.3550/2016 and WP No.2651/2016 challenging the recovery are found to be devoid of any merit. [13] So far as WP No.5390/2017 and WP No.5379/2017 seeking implementation of the order dated 5/10/2016 are concerned, the said order has already been cancelled by the subsequent order dated 27/5/2017 Annexure R/6. The subsequent order dated 27/5/2017 is not under challenge in this writ petition. [14] If the petitioners want reversion on the post of SFW, then they would be at liberty to apply for the same to the respondents, but in that case they would not be entitled to any increments on the post of SFW from the date they were promoted as MPW till the date of reversion i.e. during the period they have enjoyed working on the higher post of MPW. Having accepted the promotion as MPW with the clear knowledge that the increments on the post of MPW will be granted only after undergoing training 8 WP No.5390/2017, WP No.5379/2017, WP No.3550/2016 & WP No.2651/2016 on the post and having deliberately refused to undergo training, now it is not open to the petitioners to claim reversion on the post of SFW and at the same time claim increment on the post of SFW for the period they have not worked on that post. [15] In view of above analysis WP No.3550/2016 and WP No.2651/2016 are dismissed and the WP No.5390/2017 and WP No.5379/2017 are disposed of with the liberty to apply for reversion of the post of SFW as mentioned above. If such a prayer for revision is made, the same will be considered and decided within a period of three months from the date of its receipt.
[16] The signed order be placed in the record of WP No.5390/2017 and copy whereof be placed in the record of connected WP No.2651/2016, WP No.3550/2016 and WP No.5379/2017.
(PRAKASH SHRIVASTAVA) Judge vm Digitally signed by Varghese Mathew Date: 2018.03.15 18:45:28 +05'30'