Rajendra Prasad Vais vs State of M.P. & Others

The challenge in this petition filed under Article 226 of the Constitution is made to the resolution dated 15-06-2017, which is reduced in writing

in the shape of order dated 15-06-2017 (Annexure P/1).

Briefly stated, the case of the petitioner is that he was working as daily rated basis w.e.f. December, 1984. Earlier, his services were terminated

in the year 2002. The said termination could not sustain judicial scrutiny and this Court in WP. No.4497/02, decided on 15-07-2004 set aside the

termination order and directed petitioner''s reinstatement without backwages. Thereafter, the petitioner filed WP. No.20222/12 seeking

regularization, WP. No. 9956 of 2017 which was decided by this Court on 30-11-2013. This Court directed the other side to consider the claim

for regularization. Thereafter, a Contempt Petition No.1837/16 was filed alleging non-compliance of earlier order. However, this contempt petition

was dismissed as withdrawn on the basis of statement of counsel for the petitioner.

Shri Gaharwar, learned counsel for the petitioner assailed the impugned order on the grounds that (i) order of termination without following the

principles of natural justice is bad in law; (ii) before taking a decision on the claim of regularization, termination is bad in law; and (iii) the

respondents are bound to comply with the order dated 30-11-2013 passed in WP. No.20222/12.

Shri Rajesh Tiwari, learned Government Advocate submits that the State is a formal party in this case.

Shri Atul Nema, learned counsel for the respondent No.5 & 6 submits that the petitioner''s claim for regularization was duly considered and

forwarded to the State Government by the council. The post of Sub Engineer is covered under Section 94(4) of M.P. Municipalities Act, 1961

and, therefore, decision regarding appointment/regularization on the post of Sub Engineer can be taken by the State Government only. The state

has not taken any decision and in the meantime w.e.f. 06-03-2017 one Ms. Vandana Awasthi has been appointed as Sub Engineer against the

singular post through a selection by Professional Examination Board. Thus, the singular post on which the petitioner had a claim was occupied by

Ms. Awasthi. Hence, department was unable to keep the petitioner on the rolls of department and his services have been terminated. The

petitioner has not impleaded Ms. Awasthi as a party respondent in the instant case.

No other point is pressed by counsel for the petitioner.

I have heard counsel for the parties and perused the record.

The petitioner''s services were earlier terminated on 09-08-2002 when he has rendered less than 20 years of service. This Court passed

following order in the said case:-

This is a writ petition challenging order dated 9.8.2002 by which the services of the petitioner have been terminated. The petitioner was appointed

on daily wages as a Sub-Engineer by order dated 16.2.1994. He has put in about 8 years of service. The only ground for terminating the services

of the petitioner as shown by the respondents is that he has been appointed after 31- 12-1988. That is no ground for terminating the services of the

petitioner who has put in about 8 years of service. Action of the State or its instrumentality should not be arbitrary or unreasonable.

The petition is allowed. The impugned order is quashed. The respondents are directed to reinstate the petitioner within two months. Backwages

are disallowed.

C.C. as per rules.

At present, the petitioner has completed more than 30 years of service. There already exists a direction for considering the case of petitioner for

regularization. Pertinently, as per stand of Shri Nema, the council has already recommended the name of the petitioner for regularization but in the

meantime State filled up the said post through direct recruitment. Thus, council had no option but to terminate the petitioner''s services.

No doubt, the reason shown by Shri Nema is attractive, but this fact is equally important that the petitioner has completed more than 30 years

of service as daily rated employee. His earlier termination without following the principles of natural justice was struck down in WP. No.4497/07.

Thus, this termination for the same reason must be set aside. The council has already recommended the case of the petitioner for regularization.

The only impediment against the petitioner at present is that the singular post of Sub Engineer has been filled up. In all fairness, the government

should have taken a decision on the claim of petitioner for regularization before filling up the said post. Putting it differently, this Court passed the

order dated 30-11-2013 in WP. No.20222/12 and directed the respondents including the State Government to consider the claim of petitioner for

regularization and pass an order expeditiously. Nothing prevented the council and State Government to take a decision with quite promptitude.

They did not take any decision on the claim of the petitioner for more than four years and then appointed some other person on the post of Sub

Engineer through direct recruitment. In the considered opinion of this Court, the said inaction on the part of State Government is arbitrary and, in

the fitness of things, the government should have taken a decision about regularization of petitioner before appointing and posting somebody else in

the said municipality. It will not be out of place to mention here that certain daily rated employees approached this court in WP No.184/2014

(Pankaj Awasthy vs. State of MP and others) by contending that in earlier round of litigation directions were issued to consider their cases for

regularisation but before such exercise could be completed and appropriate decision is taken on the claim of regularisation, the employer has

issued advertisement inviting candidates to fill up the relevant posts through direct recruitment. This court disapproved the said action in decision

dated 24.6.2016, relevant portion reads as under:

In these cases, in the earlier round, directions were issued to consider the cases of petitioners for regularization in accordance with law.

Although for the petitioners in these cases no decision is taken for regularization in the meeting of Mayor-in-Council, the Corporation is obliged to

take a decision for regularization. It is not the case of the Corporation that these petitioners are either not entitled or not eligible for consideration.

This decision needs to be taken by considering their cases for regularization. It will not be fair on the part of the respondents to fill up the posts by

way of direct recruitment without considering the present petitioners for whom there exists Court direction and assurance given by the employer. It

is also seen that in most of the cases, the stand of the respondent is factually incorrect in the return that the names of the petitioners do not find

place in the seniority list. As noticed above, the names of Sub Engineers do find place in the seniority list. Similarly the name of Rajnesh

Vishwakarma finds place in the seniority list. The employer has mechanically filed the reply without scrutinizing the correct facts. This is unfortunate

that despite Court''s direction, no meticulous exercise for regularization of petitioners was taken.

Resultantly, in these petitions, it is directed that the Corporation shall first consider the cases of regularization of these petitioners and take a

final decision on it. If petitioners are found fit for regularization, necessary orders be passed in this regard. After taking such decision, if certain

posts are still lying vacant, those can be filled up by implementing the impugned advertisement. In other words, if petitioners are regularized against

their respective posts, the advertisement cannot be implemented for direct recruitment for those posts.

This order of writ court got a stamp of approval in WA No.453/2016 (Municipal Corporation vs. State of MP and others) decided on 9.8.2016.

For these cumulative reasons, the impugned order dated 15-06-2017 cannot sustain judicial scrutiny. The impugned order is accordingly set

aside. The State Government is directed to take a decision on the question of regularization of the petitioner as directed in WP. No.20222/12. The

government will be at liberty to either create a supernumerary post at Municipal Council Beohari or post the petitioner or the other person to some

other municipality, if the petitioner is found suitable for regularization as Sub Engineer. So far as the question of impleadment of Ms. Vandana

Awasthi is concerned, the petitioner has not claimed any relief against her nor any directions are issued in this case, which will adversely affect her.

The petitioner''s claim for regularization is prior in time qua the appointment of Ms. Vandana Awasthi. Accordingly, the objection of Shri Nema in

this regard cannot be accepted. The petitioner shall be reinstated forthwith without any backwages.

The petition is allowed. No cost.