Roopchand Nirmalkar vs State of Madhya Pradesh

The petitioner has filed the present writ petition challenging the orders dated 26.06.2013 and 22.06.2013 passed by the respondent No.3,

thereby cancelling the order of regularisation of the petitioner.

The petitioner was initially appointed on the post of Section Writer on 09.06.1997 on temporary basis. The appointment of the petitioner was

made by the constituted selection committee. Similarly situated employee have filed Original Application before the Tribunal for regularisation of

their services on the post of Lower Division Clerk. The said application was allowed by the Tribunal on 02.12.1994 with direction to the

respondents to regularise the services of Section Writer. The petitioner being similarly situated employee has also filed writ petition No.102/2010

before this Court. The said writ petition was disposed of vide order dated 08.01.2010 directing the respondents to consider the case of the

petitioner for regularisation on the post of Lower Division Clerk as per the order passed in the case of Rambahadur Sharma. Being aggrieved by

the order passed by Single Bench, the State Government has preferred a writ appeal No.1202/2010 before the Division Bench of this Court. The

said writ appeal was dismissed vide order dated 15.12.2010, however, the order was modified to the extent that the case of the petitioner be

scrutinized in light of the judgment passed by Apex Court in the case of State of Karnataka Vs. Uma Devi. Thereafter the State Government

preferred a SLP before the Apex Court, which was also dismissed on 17.08.2012. After dismissal of SLP, the respondents have passed the order

dated 16.04.2013 thereby regularising the services of the petitioner as Lower Division Clerk. Since then, the petitioner continued to work on the

post of Assistant Grade-III as Section Writers. The case of the petitioner for appointment on the post of Assistant Grade-III was forwarded to the

State Government. The Principal Secretary of Revenue Department by its letter dated 31.05.2013 has directed the Commissioner to cancel the

appointment of the Section Writers on the post of Assistant Grade-III. In pursuance of the directions issued by the Principal Secretary, the

Collector vide order dated 26.06.2013 has canceled the appointment order of the petitioner on the post of Assistant Grade-III. Being aggrieved

by that, the petitioner has filed a writ petition No.12102/2013. The said writ petition was allowed by this Court vide order dated 31.07.2013.

While allowing this writ petition, this Court has directed the respondents to give an opportunity of hearing to the employees concerned. Thereafter,

in pursuance of the directions issued by this Court, the respondents have passed the order dated 22.02.2014 thereby cancelling the appointment

order of the petitioner on the post of Assistant Grade-III. Being aggrieved by that order, the petitioner has filed the present writ petition.

Learned counsel for the petitioner submits that the impugned order is illegal, arbitrary and violative of principles of natural justice. It is submitted

that while disposing of the writ petition No.12102/2013, the respondents were directed to give opportunity of hearing to the petitioner. However,

in the present case, no such notice was issued to the petitioner before passing the impugned order. So far as the appointment on the post of Lower

Division Clerk is concerned, learned counsel for the petitioner submits that the petitioner has been appointed by duly constituted selection

committee on vacant post. The petitioner posses the requisite qualification for holding the said post. Learned counsel for the petitioner submits that

the respondents have regularised the services of number of Section Writers, who are working in different district. Thus, the action of the

respondents amounts to discrimination being violative of Article 14 of Constitution of India.

The respondents have filed the reply and in the reply, the respondents have stated that the petitioner has failed to establish that under what

fundamental or constitutional right, the petitioner is claiming appointment as Assistant Grade-III. The Collector while considering the case of the

petitioner has found that the appointment of the petitioner on the post of Section Writer is not a regular appointment, infact the post of Section

Writer does not come under the purview of daily wage employees and in light of the aforesaid, the respondents submits that petition has no force

and deserves to be dismissed.

I have heard learned counsel for the parties and perused the record. The petitioner was initially appointed on the post of Section Writer. The

petitioner filed a writ petition No.102/2010 claiming regularisation in services on the ground that in case of other similarly situated employees, the

State Administrative Tribunal has directed to consider the case of Section Writer for appointment on the post of Lower Division Clerk against first

available vacancies. The said writ petition was disposed of vide order dated 08.01.2010 with a direction to the respondents to give appointment of

the petitioner on regular basis on the post of Lower Division Clerk. Against the said order, the State Government has preferred a writ appeal

No.1202/2010. The said writ appeal was disposed of vide order dated 15.12.2010 with a direction to the respondents to consider the case of the

petitioner for regularisation in light of the judgment passed by the Apex Court in the case of State of Karnataka Vs. Uma Devi. Against the said

order, SLP was preferred by the Stated Government and the SLP was dismissed on 17.08.2012. After dismissal of the SLP, the respondents

have passed an order dated 16.04.2013, thereby regularising the services of the petitioner on the post of Assistant Grade-III and since then, the

petitioner continued to work on the said post. Thereafter, the Collector by its letter dated 26.04.2013 made a request to the State Government for

creating post of Section Writer. In pursuance of the said letter, the Principal Secretary Revenue Department vide its letter dated 31.05.2013 has

directed the Commissioner to cancel all the appointments, which have been made in pursuance of the directions issued by this Court. In light of the

letter of the Principal Secretary, the Collector has passed an order dated 26.06.2013, thereby cancelling the order dated 16.04.2013. As the

order has been passed by the respondents without issuing any notice or giving any opportunity of hearing to the petitioner, the petitioner has again

approached to this Court by filing a writ petition No.12102/2013. The said writ petition was disposed of vide order dated 31.07.2013 with a

direction to the respondents to pass afresh order after giving opportunity of hearing to the employees concerned. Thereafter, the respondents have

passed the order dated 22.02.2014 thereby cancelling the appointment order of the petitioner on the post of Assistant Grade-III. Being aggrieved

by that order, the petitioner has filed the present petition. From perusal of the impugned order, it is revealed that no notice or opportunity of

hearing was given to the petitioner before passing the impugned order. The order does not reflect that any show-cause notice was given to the

petitioner before passing the impugned order. It only states that the representation of the petitioner was considered. It is also to be noted that the

Principal Secretary Revenue Department vide its letter dated 31.05.2013 has directed the Commissioner to cancel all the appointments of Section

Writers. Thus, the respondents have already taken a decision to cancel the appointment. Thus, issuance of show-cause notice was a formality and

opportunity, if any is given to the petitioner amounts to post decisional hearing, which is not permissible under the law. In such circumstances, I

allow the writ petition. The impugned orders dated 26.06.2013 and 22.02.2014 are hereby set aside. However, the respondents are free to

proceed against the petitioner after giving him appropriate opportunity of hearing to him.