Madhya Pradesh High Court
Pradeep Kumar Sarma vs The State Of Madhya Pradesh on 4 January, 2017
1 Writ Petition No.4734/2016
(Pradeep Kumar Sharma vs. State of M.P. and others)
04/01/2017
Shri M.P.S. Raghuvanshi and Shri Himanshu Sharma,
Advocates for petitioner.
Smt. Ami Prabal, Deputy Advocate General for
respondents no.1 to 3/State.
Shri Vivek Khedkar, and Shri B.S. Dhakad, Advocates for respondent no.4.
Petitioner at present working as Revenue Sub Inspector has approached this Court challenging the legality, validity and propriety of the order dated 2/7/2016. By the impugned order petitioner's appointment as Peon vide order dated 10/7/1992, Annexure P/3, and subsequent promotions as Moharrir vide order dated 31/12/1994, Annexure P/4, and as Revenue Sub Inspector vide order dated 26/9/2003, Annexure P/5, have been cancelled.
2. Facts relevant for disposal of this writ petition are in narrow compass. Petitioner's father serving as Head Clerk had died in harness on 10/4/1992. Petitioner had applied for appointment on compassionate ground. The application was duly considered and petitioner was appointed as Peon on 10/7/1992. Thereafter, on account of unblemished service record he was further promoted as Moharrir and thereafter as Revenue Sub Inspector. Since 2003 he has been performing the duties as such on the post of Revenue Sub Inspector. It appears that somewhere in April, 2012 a question was raised in the State Legislative Assembly in relation to the appointment of petitioner and as a sequel thereto respondent no.2 issued a letter on 29/5/2015, Annexure P/6, directing respondent no.4 to terminate the 2 Writ Petition No.4734/2016 (Pradeep Kumar Sharma vs. State of M.P. and others) services of the petitioner purportedly on the basis of enquiry report submitted by the Deputy Director on 18/9/2014, whereunder petitioner's appointment was found to be contrary to the legal provisions and the rules. Thereafter, petitioner was served with a show-cause notice dated 22/6/2015 to which reply was submitted on 29/6/2015. Thereafter, again a show-cause notice was given on 3/11/2015. The same was also replied on 7/11/2015. Thereafter, it appears that upon consideration of the reply submitted by the petitioner, the President-in-Council, Municipality, Sabalgarh had passed a resolution on 28/11/2015, Annexure P/12. Relevant excerpt thereof is quoted below:-
ÞmijksDr lEiw.kZ izdj.k ds voyksdu ls ;g izrhr gksrk gS fd Jh iznhidqekj 'kekZ jktLo mi fujh{kd dk dksbZ nks"k ugha gS vuqdEik fu;qfDr gksus ds ckn izFke inksUufr dh 10 o"kZ ls vf/kd tkWp vkfn mi lapkyd dk;kZy; Xokfy;j }kjk dh xbZ Fkh Jh 'kekZ dh vuqdEik fu;qfDr ,oa izFke rFkk f}rh; inksUufr ds fy;s mi lapkyd uxjh; iz'kklu ,oa fodkl Xokfy;j ,oa ftyk p;u lfefr iw.kZ :i ls nks"kh gS D;ksafd 'kklu ds lalksf/kr vkns'k fnukad 19-03- 1990 dh tkudkjh mi lapkyd uxjh; iz'kklu ,oa fodkl Xokfy;j ds laKku esa gksus ds ckotwn Hkh budh vuqdEik fu;qfDr ls izFke ,oa f}rh; inksUufr;ka dh xbZ Fkh Jh 'kekZ dk dksbZ nks"k izrhr ugha gksus ls buds f[kykQ dksbZ tkWp ugha dh tkosA izLrko loZ lEefr ls ikfjr fd;k tkrk gSA v/;{k dk er&esjk&er gS fd 'kklu vkns'k ,oa ekuuh; mPp U;k;ky; [k.MihB Xokfy;j ds MCY;w ih ua- 3577@2015 esa ikfjr fu.kZ; fnukad 22-06-15 ds ikyu esa voS/k vuqdEik fu;qfDr fujLr dh tkos rFkk dh xbZ inksUufr fujLr dh tkos 'kklu vkSj ekuuh; U;k;ky; ds vkns'k dk ikyu lqfuf'pr gks lds ,oa Jh 'kekZ dks 10 fnol ds uksfVl ij vkxkeh ih-vkbZ-lh- esa lquk tkosA ß Consequently, the CMO had communicated the decision of the PIC to the State Government vide communication dated 28/11/2015, Annexure P/13.
With the passage of time, the PIC was changed and 3 Writ Petition No.4734/2016 (Pradeep Kumar Sharma vs. State of M.P. and others) the new PIC was constituted by the orders of the President of the Municipality. A new resolution was passed on 10/6/2016, based whereupon the show-cause notice was issued to the petitioner on 15/6/2016, received by the petitioner on 28/6/2016, calling upon the petitioner to file reply within fifteen days, however, without even receiving the reply, on 2/7/2016, i.e. much prior to expiry of 15 days, the impugned order of termination, Annexure P/1, was passed for the reason that circular issued in the year 1975 providing for compassionate appointment did not exist after 19/3/1990 and, therefore, petitioner's appointment as Peon in the year 1992 was without there being any provision for compassionate appointment.
3. Learned counsel for the petitioner has raised following contentions:-
i- The petitioner's appointment in the year 1992 as a Peon could not have been terminated in the year 2016 while he was holding the substantive post of Revenue Sub Inspector. As such, the impugned termination order is patently illegal. ii- At a distance of time of more than 24 years since the time petitioner was appointed as Peon in the year 1992, his appointment as Peon could not have been terminated that too without affording reasonable opportunity of filing reply to the show- cause notice and upon consideration thereof, as the show-cause notice dated 15/6/2016 was received by the petitioner on 28/6/2016 and though 15 days' time was granted, but on 4 Writ Petition No.4734/2016 (Pradeep Kumar Sharma vs. State of M.P. and others) 2/7/2016 the termination order has been passed.
iii- Petitioner having served the respondent/Municipality since 1992 and earned two successive promotions as Moharrir in the year 1994 and as Revenue Sub Inspector in the year 2003 had lien to the cadre post as Revenue Sub Inspector. As such, before issuance of termination order the respondents were obliged to serve a charge-sheet under Rules 50, 51, and 52 of the M.P. Municipal Employees Recruitment and Conditions of Service Rules, 1968 (hereinafter referred to as "the Rules of 1968"), whereunder the provisions of Rule 14 of the M.P. Civil Services (Classification, Control and Appeal) Rules, 1966 (hereinafter referred to as "the Rules of 1966") have been made applicable, and required to be adhered to the procedure prescribed thereunder before imposition of major penalty.
iv- The impugned termination order in fact and in effect is influenced by dictates of superior authority inasmuch as in view of communication dated 29/5/2015 petitioner's services were sought to be terminated and, therefore, the impugned termination order suffers from the vice of arbitrariness and unreasonableness.
v- Even otherwise, once petitioner has been given regular appointment followed by promotions to the substantive post, his services could not have 5 Writ Petition No.4734/2016 (Pradeep Kumar Sharma vs. State of M.P. and others) been terminated for the reason that at the time of appointment on compassionate ground the circular of the year 1975 was not in existence. There is no explanation offered either in the return or otherwise justifying the action of termination otherwise than on the strength of aforesaid communication of respondent no.2 dated 29/5/2015 to respondent no.4.
Furthermore, there is no allegation of any fraud or misrepresentation attributed to the petitioner for which reason the appointment could be said to be bad having been obtained by illegal means. Therefore, for the aforesaid reason, the termination of services of the petitioner by no stretch of imagination can be sustained in the eyes of law.
vi- The action of respondent no.4 terminating the employment of the petitioner in fact and in effect tantamounts colourable exercise of power, as for no justifiable reason petitioner's services have been terminated in a slip shod and hot haste manner.
vii- This Court in writ petition No.3577/2015, wherein communication dated 29/5/2015, Annexure P/6, was assailed had ordered that the competent authority shall take a decision independently in accordance with law without being influenced by the aforesaid impugned order. The Municipal Council, as such, is the competent authority 6 Writ Petition No.4734/2016 (Pradeep Kumar Sharma vs. State of M.P. and others) under Rule 51 of the Rules of 1968 to initiate proceedings for imposing major penalty upon the petitioner, but Municipal Council has not initiated any action, instead the reconstituted PIC has issued the show-cause notice pursuant whereto the impugned termination order has been passed.
viii-Once a PIC has found and resolved that the order of appointment of the petitioner was legal and proper, the reconstituted PIC at a later point of time had no competence to reverse or revise the resolution so passed earlier by the earlier PIC. Therefore, the impugned termination order based upon the resolution passed by the reconstituted PIC is patently illegal and bad in the eyes of law.
4. Per contra, Shri Khedkar with Shri B.S. Dhakad, learned counsel for respondents, have made following submissions:-
i- Appointment of the petitioner as Peon on compassionate ground in the year 1992 was without any provision therefor, therefore, the aforesaid appointment was without authority and jurisdiction.
ii- The fact of continuance of service and earning of successive promotions by the petitioner by itself shall not create any right much less vested right to continue in service, if his initial appointment was not in accordance with law irrespective of the fact 7 Writ Petition No.4734/2016 (Pradeep Kumar Sharma vs. State of M.P. and others) of length of service he has rendered.
iii-Though in all fairness the petitioner should have been issued charge-sheet and called upon to file reply before imposition of major penalty of termination as contemplated under Rule 52 of the Rules of 1968, however, since the impugned termination order has been issued after fact finding enquiry conducted by the Deputy Director, cognizance whereof was taken by respondent No.4 and thereafter notice has been issued to the petitioner, no exception for non-adherence to the provisions of Rule 51 of the Rules of 1968 can be taken. In any case, the procedure prescribed for under Rule 51 of the Rules of 1968 can still be followed by respondents for the purpose of enquiry.
iv-Though petitioner is serving as Revenue Sub Inspector since 2003, but as his appointment as Peon in the year 1992 was bad in law, therefore, termination of appointment as Peon and cancellation of promotions earned by the petitioner subsequently by the impugned order is in accordance with law and does not suffer from any illegality.
With the aforesaid submissions, learned counsel for respondents prays for dismissal of the writ petition.
5. Heard.
Upon perusal of Annexure P/12, PIC resolution No.01 dated 28/11/2015, it is apparent that upon consideration of 8 Writ Petition No.4734/2016 (Pradeep Kumar Sharma vs. State of M.P. and others) application of petitioner seeking appointment on compassionate ground the Municipality, Sabalgarh had passed resolution No.240 dated 10/7/1992 and thereafter the Municipal Council vide order No.655 dated 10/7/1992 had appointed petitioner as Peon.
Order of the State Government No.3470/18/1/75 dated 3/9/1975 providing for compassionate appointment and applicable to the services under the Municipalities though was cancelled by Local Administration Department vide order No.F-4/233/18/1/89 dated 19/3/1990, but the said order was never communicated to the Chief Municipal Officer of the Municipality. Therefore, the appointment order dated 10/7/1992 issued in favour of the petitioner, under the circumstances, cannot be faulted with and that too at a distance of time of more than 24 years during which period petitioner has been accorded promotions as Moharrir vide order dated 31/12/1994 and thereafter further promotion as Revenue Sub Inspector vide order dated 24/9/2003 through DPC and passing of resolution by the PIC with communication to the State Government.
Admittedly, provisions under the Rules of 1968 are applicable to the services of the petitioner as he holds substantive cadre post of Revenue Sub Inspector in the Municipality having lien thereon. Before imposition of major penalty of termination and cancellation of promotions, a regular charge-sheet under Rule 14 of the Rules of 1966 as applicable in the case in hand in view of the provisions of Rules 50, 51 and 52 of the Rules of 1968 ought to have been issued and procedure prescribed thereunder ought to have 9 Writ Petition No.4734/2016 (Pradeep Kumar Sharma vs. State of M.P. and others) been followed. That has not been done. As such, the impugned order of termination of appointment as Peon and cancellation of promotions cannot be sustained, as the impugned action is patently illegal and violative of Article 14 and 16 of the Constitution of India and also suffers from vice of arbitrariness and unreasonableness, as though the show- cause notice was issued on 15/6/2016 indicating 15 days' time to file reply, received by the petitioner on 28/6/2016, but on 2/7/2016 the impugned order has been passed.
Moreover, the PIC had passed resolution No.01 dated 28/11/2015 having resolved that no action against the petitioner was warranted for the reasons contained therein. Learned counsel for the respondent/municipality has not been able to bring to this Court's notice the source of authority in law under the Municipalities Act or otherwise to review and set aside the resolution No.01 passed by the earlier PIC and, therefore, the same is held to be unauthorized and illegal. Consequently, the show-cause notice dated 15/6/2016 preceding the impugned order is held to be without authority and jurisdiction. Therefore, the impugned order for this reason as well cannot sustain in the eyes of law.
That apart, this Court finds substantial force in the submission of learned counsel for the petitioner that the impugned order has been passed as a sequel to the question raised in the State Legislative Assembly in April, 2012 and the power so exercised lacks bonafides tantamounting to colourable exercise of power, as the impugned order has been passed not for the reason of any 10 Writ Petition No.4734/2016 (Pradeep Kumar Sharma vs. State of M.P. and others) misconduct, negligence, dereliction of duty, misrepresentation or fraud on the part of petitioner, on the contrary it has rightly been found by the PIC while it passed resolution No.01 dated 28/11/2015 that the petitioner cannot be held responsible in the matter of issuance of appointment order dated 10/7/1992 in his favour by the Municipal Council.
That apart, petitioner appointed in the year 1992 and now while working on the promoted post as Revenue Sub Inspector with two successive promotions in between could not have been subjected to the order of termination of his appointment as Peon and cancellation of promotions as Moharrir and as Revenue Sub Inspector, as he ceased to be Peon no sooner he was promoted as Moharrir on 31/12/1994 and thereafter as Revenue Sub Inspector on 24/09/2003. At the age of 43 years, as on the date of impugned order dated 2/7/2016, petitioner has been thrown on the street and he is standing at crossroads rendered without means of livelihood. Applying the Wednesbury principle of reasonableness the impugned action cannot be sustained in the eyes of law and has shocked the conscience of this Court.
Consequently, the writ petition is allowed. The impugned order dated 2/7/2016 is quashed. Petitioner is directed to be reinstated in service forthwith on the post he was working on the date of issuance of impugned termination order.
(Rohit Arya) Judge Arun*