Madhya Pradesh High Court
Surendra Prasad Shrivastava vs The State Of Madhya Pradesh on 7 January, 2016
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Writ Petition No.20587/2015
7.1.2016.
Shri Chandrahas Dubey, learned counsel for petitioner.
Heard on admission.
1. Petitioner, a contract meter reader (presently the
contract is extended upto 14.1.2016 vide contract work order
dated 14.1.2015-Annexure P/3), calls in question the legality of
advertisement dated 20.11.2015 (Annexure P/1); whereby the
respondent-Madhya Pradesh Poorva Kshetra Vidyut Vitaran
Company Ltd. has invited application for eligible candidates for appointment of meter reader on contract basis.
2. Precise grievance of the petitioner is against eligibility criteria laid down for the appointment and that instead of seeking fresh engagement through open market, the respondent ought to have regularized the services of the petitioner, who has been working on contract basis since 2013.
3. The eligibility prescribed which irks the petitioner is :
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bysDVªkfuDl vfHk;kaf=dh fo"k; esa fMIyksek] ¼l½ gk;j lsd.s Mjh@¼10$2½ iz.kkyh ds vUrxZr d{kk&12 oha mRrh.kZ lfgr nks o"khZ; vkbZ-Vh-vkbZ ¼bysfDVªhf'k;u@ ok;jesu@ykbuesu mRrh.kZ½ ,oe~ ¼n½ gk;j lsds.Mjh mRrh.kZ@¼10$2½ iz.kkyh ds vUrxZr d{kk&12 oha ijh{kk mRrh.kZ@vfHk;kaf=dh ds vfrfjDr vU; fo"k; esa LukrdksRrj@LukrdA
4. Trite it is that it is the prerogative of the employer to lay down the eligibility. For an authority, reference can be had of the decision in Surinder Singh v. Union of India (2007) 11 SCC 599 wherein it has been held -
15. ... It is the prerogative and authority of the employer to lay down suitable service conditions to the respective posts.
16. In our view, in service jurisprudence the prescription of preferential qualification not only refers to numeric superiority but is essentially related to better mental capacity, ability and maturity to shoulder the responsibilities, which are entrusted to the candidates after their selection to a particular post. All the more, it is important for efficient and effective administration. The basic object of prescribing a minimum qualification is to put a cut off level for a particular job in accordance with the minimum competency required for the performance of that job. The object of prescribing preferential qualification is to select the best amongst the better candidates who possess more competence than the others. Sub-clause (iv) of Clause 2 puts a limit with respect to preferential qualification by way of a clear stipulation that no preference should be given to the qualification :: 3 ::
Writ Petition No.20587/2015above Matriculation. Hence, the preferential qualification was considered to be more effective and efficient and also it was a clear assumption that a candidate possessing the same is best suited for the post in question.
5. Therefore, the grievance raised by the petitioner that because of eligibility prescribed, he will not be able to participate in selection and therefore, the advertisement is bad, cannot be entertained, nor the recruitment taken recourse to vide impugned advertisement, can be interfered with.
6. As regard to claim for regularization, the issue is no more res integra and has been decided in Manoj Kumar Paroha v.
Presiding Officer : Writ Petition No.15550/2006(s), wherein it has been held -
"4. Under the similar circumstances, this Court in W.P. No. 15498/2006(s) decided on 1.11.2006 has dismissed the petition on the ground that after the expiry of the contract an employee has no right to claim any reinstatement or to continue in service. The judgment so passed by this Court in W.P. No. 15498/2006(s) (supra) shall have the full application in the present case also.
5. It may also be seen that the Apex Court under the similar circumstances has also deprecated the practice of passing the interim orders by the High Court and the judgment as such is reported in 2005 (3) SCC 79 (India Literacy Board and Others v. Veena Chaturvedi and Others). In the said case also, an argument to justify the interim order was submitted by the employee that by issuing periodical :: 4 ::Writ Petition No.20587/2015
appointment orders, unfair treatment and exploitation of labour was taken to be a ground to justify the interim injunction. The Apex Court thereafter deprecated such a practice of granting interim orders, by the High Court, after the expiry of the period of contract. The Apex Court further held that the High Court as an interim measure cannot issue a writ of mandamus for continuing an employee in service. The relevant extract of paras 14, 15, 16 and 17 of the judgment passed in India Literacy Board (supra) is as under :-
14. Concluding her arguments, learned senior counsel for the respondents submitted that the appellant cannot legally be permitted to proceed with the impugned action pursuant to the impugned advertisement against the posts held by the respondents nor can the appellant discontinue or dis-engage the respondents from service. By issuing periodical appointment orders under the conditions of payment of consolidated monthly amount, the respondents had been subjected to an unfair treatment and to exploitation of labour which is specifically forbidden under the constitutional scheme.
15. We have carefully considered the rival submissions made by respective counsel appearing on either side. We have also perused the orders passed by the learned Single Judge and of the orders passed by the Division Bench.
16. A perusal of the order passed by the High Court would clearly show that the High Court as an interim measure directed issue of appointment order which was not even the main relief claimed in the writ petition. The question is whether the reliefs which are not prayed for or which are not claimed in the petition could have been awarded by the High Court even before the disposal of the main case. Another question would also arise as :: 5 ::Writ Petition No.20587/2015
to whether the writ petition is maintainable against the appellant-Board which according to the appellant is neither an instrumentality of the State nor a State within the meaning of Article 12 of the Constitution of India. A further question would also arise as to whether the appellant is under an obligation to select the respondents as teachers when the contract entered into by them ceased on 30.6.2001.
17. Leave to appeal was sought for by the appellant on the above grounds, among others. It has been consistently held by this Court in various cases that in a case of contractual appointment for a fixed term, no mandamus can be issued for continuing them in service but in the present case as an interim measure a direction has been given by the High Court to issue appointment orders which was not even the main relief claimed in the writ petition."
7. The aforesaid order was upheld in Writ Appeal No.1154/2006 decided on 15.11.2006, wherein it was held -
"3. Mr. K.N. Pethia, learned counsel for the appellant vehemently submitted that the Labour Court should have continued the interim order earlier passed in favour of the appellant. He submitted that in other cases the learned single Judge has passed orders directing continuance of the similar employees engaged on contract in service till the Labour Court decides the matter within a stipulated time and therefore similar directions should have been granted by the learned Single Judge in the writ petition filed by appellant.
4. We are afraid that we cannot accede to the aforesaid prayer made on behalf of the appellant. Admittedly, the appellant was engaged on contract basis as a Meter Reader and the period of contract was extended time to time and the last extension :: 6 ::Writ Petition No.20587/2015
was granted up to 9.2.2006. After 9.2.06, the appellant could not possibly be continued in service until the Labour Court adjudicated the matter and decided that the appellant was entitled to continue in service ever after 9.2.2006. The only protection that is possible to be given to the appellant at this stage is that in case the authorities want to engage any person on contract basis as a Meter Reader in place of the appellant, till a regular appointment of Meter Reader is made, the authorities of the M.P. State Electricity Board will make the offer for such engagement on contract basis to the appellant."
8. In a Review Petition preferred by M.P. State Electricity Board : MCC No.1014/2007, the order-dated 15.11.2006 in Writ Appeal No.1154/2006 was modified in the following terms:
"... Being aggrieved by the order vacating the interim relief, the appellant initially filed W.P. No. 15550/2006(s) which was dismissed by order dated 3-11-2006 holding that no case was made out for interfering in the interim order passed by the Labour Court specifically in view of the fact that the contract period had expired on 9-2-06. This Court by order dated 15-11-2006 passed in the writ appeal concluded that there was no ground to interfere with the order passed by the learned Single Judge, however, while disposing of the petition observed as follows :
"The only protection that is possible to be given to the appellant at this stage is that in case the authorities want to engage any person on contract basis as a Meter Reader in place of the appellant, till a regular appointment of Meter Reader is made, the authorities of the M.P. State Electricity Board will make the offer for such engagement on contract basis to the appellant."
The present applicants who were respondents :: 7 ::
Writ Petition No.20587/2015in the writ appeal have filed the present application for modification/review of the order passed by this Court in the aforesaid writ appeal on the ground that the contractual period of the appellants/Meter Readers in the writ appeal having expired the protection granted by this court deserves to be recalled.
This Court on 13-4-2007 while issuing notice in the present M.C.C. Passed an interim order directing that during pendency of this review the authorities would not be debarred to consider other persons who apply for engagement on contract basis as Meter Readers along with the original appellant/non-applicant No.1.
Learned counsel appearing for the contesting parties agree that the order passed by this Court in the writ appeal be modified in terms of he interim orders passed by this Court wherein it has been provided that he concerned authority may consider other persons along with the non-applicant No.1 for appointment as Meter Readers on contract basis.
In view of the aforesaid agreement expressed by the contesting parties the order dated 15-11- 2006 passed in Writ Appeal No.1154/2006 as far as it provided protection to the non-applicant No. 1 only to be engaged as Meter Reader on contract basis is modified to the extent that it shall now be open to the applicant/Board to consider the claim of the appellant along with all other persons who apply for engagement on contract basis, on merits and take a decision thereon in accordance with law.
Shri Nair, the learned senior counsel appearing for the applicants submits that it has been decided by the Board not to make regular appointments of the Meter Readers, however, this aspect has been disputed by the learned counsel appearing for the non-applicant, however, in view :: 8 ::Writ Petition No.20587/2015
of the aforesaid, without entering into the controversy it is further provided that in the event the Board advertises the post of Meter Readers for appointment on regular basis, it would be open to the appellants to apply for the same provided they are eligible for the same, in accordance with law.
The learned counsel appearing for the non- applicant No. 1 submits that the applications under the provisions of M.P. Industrial Employment (Standing Orders) Act, 1961 is pending before the Labour Court. As we have not made any comments on the merits therefore, it is clarified that the same may be decided by the Labour Court on merits in accordance with law.
The MCC filed by the applicants is accordingly allowed to the extent indicated above and the order passed in writ appeal stands modified accordingly."
9. It is further contended in similar matters, notices have been issued on admission and interim protection is granted. In the considered opinion of this Court, since notice on admission is not a precedent, nor facts of the cases wherein notices are issued are made known, the petitioner is not benefited from said order; moreso, when no case is found worth admitting.
10. In view whereof, since no relief can be granted to the petitioner, the petition fails and is dismissed. No costs.
(SANJAY YADAV)
vinod JUDGE