Sanjeev Kumar Jain and Others vs State of Madhya Pradesh

Rajendra Menon, J—As common questions of law and facts are involved in all these 17 writ petitions, they are being disposed of by this common order. For the sake of convenience documents, pleadings and other material available in the record of Writ Petition No. 18682/2013(s) (Sanjeev Kumar Jain Vs. State of M.P.) is being referred to in this order.

Earlier petitioners had filed a writ petition before this Court and all these petitions were disposed of by a Bench of this Court. The order passed by this Court is order dated 8.1.2013 in W.P. No. 7116/2008(s) and in pursuance to the directions issued therein, as the claim of the petitioners for absorption is rejected by the impugned order dated 12.8.2013 annexure P-49, petitioners have filed this writ petition, challenging the said order refusing to grant them absorption.

It may be indicated that it is the case of all these petitions claim for absorption is rejected vide order passed on 12.8.2013 by the State Government and communicated to all these petitioners on 31.8.2013 by annexure P-49 available in the record of W.P. No. 18682/2013.

All the petitioners were appointed in the Integrated Child Development Scheme Project (hereinafter referred to as ''ICDS''). They were recruited to the aforesaid project by the authorities of Janpad Panchayat, Tendukheda.

Petitioner Shri Kailash Rai in W.P. No. 3707/2014 is working as Project Officer (Child Development Affairs), a Class-II Gazetted Post in accordance to the provisions of Madhya Pradesh Women and Child Development (Gazetted Service Recruitment Rules, 2011) and the remaining petitioners are working in various non gazetted or Class-III and Class-IV Posts, as per the details given hereinunder :

The ICDS Project was introduced by the Government of India through the Department of Human Resources with an intention to bring about an integrated delivery of certain services which were to be provided to pre-school children and pregnant and lactating women. Infact this was a scheme to improve the status of health and nutritional condition of children and women, particularly those living in the rural area and further to introduce the incidents of child dropout and to ensure a overall physical and social welfare development to the children. Various aspects of the scheme take care of this aim. However, para 47 of the scheme which is relevant for considering the dispute involved in the matter contemplates as under :

"Even though funds will be provided by the Central Government, the staff will be borne on the appropriate cadres of the States and, therefore, the State should sanction the posts (as per appendix) in the appropriate corresponding State pay scale. The Anganwadi workers and their helpers will be honorary workers."

(Emphasis Supplied)

From the aforesaid it is clear that the scheme was to be operated by personnel to be borne in the appropriate cadre of State Government and it is for the State to sanction the post as per appendix to the scheme and take steps for providing appropriate State Pay Scale to the persons to be appointed. However, an Aanganwadi Worker and other Helpers were kept out of purview of this provision and they were to be honorary workers. It is seen that after the aforesaid scheme was introduced in the State of Madhya Pradesh, the State Government for implementing the scheme in Tendukheda, District Damoh issued an order vide annexure P-1 on 2.6.1995 authorizing the Janpad Panchayat Tendukheda to be the authority to implement the provisions of the scheme in Tendukheda area in the district of Damoh. Accordingly, after such an order was passed, 20 posts were also sanctioned by the State Government for manning the project in Tendukheda. The posts sanctioned were in accordance to the stipulations contained in the communication annexure P-1 which includes; Women and Child Development Project Officer - 1 post, Assistant Project Officer - 1 post, Assistant Statistical Officer - 1 Post, Supervisor - 8 posts, Office Assistant - 1 post, Upper Division Clerk - 3 posts, Second Grade Clerk (Assistant Grade-III) - 1 Post, Driver - 1 post and Peon - 3 posts etc.. After the aforesaid sanction was communicated, the authorities of Janpad Panchayat Tendukheda issued an advertisement to fill-up aforesaid posts vide annexure P-2 dated 15.12.1995 and in the advertisement for the posts which were more than one provision for reservation were also indicated for eg; against 8 posts of Supervisor 2 posts were reserved for S.T, 1 post for S.C. and 1 post for OBC. Similarly, for 5 posts of LDT 1 post were reserved for S.T., 1 for S.C. and 1 for OBC and for 3 post of Drives 1 post were reserved for S.T. Candidate. Each of the petitioners applied in pursuance to the advertisement, participated in the selection process, they were called for interview, as is evident from annexure P-3. After they underwent the interview and selection process, vide annexure P-4 dated 15.3.1996 they were appointed to the posts in question, initially on probation for two years. However, in their appointment order specific stipulations were made to indicate :-

"That they are not Government Servant, the posts are temporary and non-government. The appointees will not be treated as government servants and their services are liable to be terminated at any time without issuing any notice."

Each of the petitioners joined in pursuance to the offer of appointment and in such cases where specialized training for project were necessary for eg. in the cases of Kailash Rai and Sanjeev Kumar Jain they were sent for training to the appropriate institute and after training they started working on the post and finally after completing the 2 years probation each of the petitioners were regularized sometime in January 1999, as is evident from the order of regularization issued after completing the period of probation successfully i.e. vide Annexure P-8. It is the case of each of the petitioners that even though they were appointed in the project but it was not a case where they were required to work exclusively in connection with working of the project. By filing documents annexure P-9 to Annexure P-21 petitioners have tried to indicate that they were deputed to carry out other duties and functions which were normally performed by regular State Government employees for eg; Petitioner Shri Sanjeev Kumar Jain vide annexure P-9 was directed to perform duties as supervisor for survey of child labour in the district of Damoh, he was also directed to undertake counting of families living below poverty line in the district of Damoh vide annexure P-10, Vide Annexure P-11 he was directed to perform duties of supervise in the IVth Economic Survey. Documents have been filed to show that each of the petitioner was delegated to perform duties which are performed by regular government employees in the matter of conducting election, participating in the process of recruitment to the post of contract teachers, various scheme and project of the State Government like Jalabhishek Programme and Jal Yatra, working as Nodal Officer in the Chief Minister''s Kanyadan Yojna, Supervisor in School Chale Hum Abhiyan and 11 point Programme of the State Government implementation scheme, participation in the Annapoorna Yojna and family welfare and health welfare programme etc.. Each of the petitioners in each petitions have filed various documents in this regard which shows that they were discharging duties by not only working in connection with the project work entrusted to them, but they were also required to perform various duties which were to be performed by the State Government employees.

After having worked from 1995 to 1999, it is the case of petitioners that the Janpad Panchayat, the District Level Department of Advisory Committee passed resolution on 17.3.1999, 22.6.2000, 31.11.2000 and again on 31.1.2004 vide annexure P-23, P-24, P-25 and P-26 resolving to absorb the service of petitioners and recommending the State Government that their service to be absorbed by the State Government.

It is the case of petitioners that these resolutions and decision was taken by the Janpad Panchayat and District Level Planning Committee because in the entire State of M.P. in various other Districts the ICDC Project was being manned by the employees appointed by the State Government and it is only in few places like Tendukheda, District Damoh and Sihawal, District Sidhi, where the implementation of the project on the direction of the State Government was undertaken by the Janpad Panchayat or Zila Panchayat. The petitioners have also came out with the case that in the case of various other employees like the Denida health and family welfare project vide annexure P-2 on 4.8.1995 the employees of the project have been absorbed by the State Government. It is the case of the petitioners that except for the fact that they were appointed by the Zanpad Panchayat Tendukheda infact they were discharging all the functions like a regular State Government employees and the employees appointed by the State Government manning the project in various other districts. Finally it is stated that on 18.4.2010 the entire project was taken over by the State Government and its implementation was entrusted to women and child development department since 4.8.2010. the petitioners are working under the women and child development department Tendukheda. Based on the aforesaid fact and contending that the ICDC project is a project which is to be manned by the employees of the State government as per the provisions, para 47 of the scheme and placing reliance on various judgments of the Supreme Court in the matter of seeking regularization or absorption in service and referring to a judgment of the supreme court pertaining to absorption of the employees working in the ICDC project in the state of West Bengal in the case of State of West Bengal and Others Vs. Kaberi Khastagir and Others, AIR 2009 SC 1437 : (2009) 1 JT 581 : (2009) 1 SCALE 20 : (2009) 3 SCC 68 : (2009) 1 SCC(L&S) 566 , earlier the petitioners approached this court by filing a writ petition to say that they are entitled to regularization and absorption in the State Government.

The State Government has refuted the aforesaid contention and indicate that all the petitioners are working in a central government sponsored scheme they are project employees and are not entitled for any benefit of regularization. Various judgments of the supreme Court on the principle that project employees are not government employees and are not entitled for regularization were relied by the State Government in the said writ petition, but a learned Coordinate Bench of this Court after considering various aspects of the matter and the judgment of the Hon''ble Supreme Court in the case of Kaberi Khastagir (supra), para 47 of the scheme in question and after taking note of all the aspect of the matter in para 12 held as under :

"12. Initially the petitioner was employed by the Janpad Panchayat. However, subsequently, by an order dated 18.4.2010 passed by the State Government, the ICDS Project in Tendukheda has been taken over by the State Government and by an order dated 4.8.2010 the same has been transferred to Women and Child Development Department. In compliance of the aforesaid order, the project has been taken over by the Project Officer of the Women and Child Development Department. In view of the stand taken by the Central Government in paragraph 4 of its reply, which has not been controverted by the State Government, the State Government was under an obligation to frame Rules for appointment of the functionaries in respect of the posts in the Project. The State Government, therefore, ought to have framed the Rules in respect of the service conditions of the employees working in the Project. Merely because the State Government has not framed the Rules under the Scheme, the contention made by the learned Additional Advocate General that the decision in Kaberi Khastagir (supra) is distinguishable, cannot be accepted."

Thereafter the learned Bench was of the view that as a writ court cannot directly issue a mandamus for regularization/absorption but can only direct the authorities to consider and take decision, accordingly in para 14 make the following observations and directions and the writ petitions were disposed of :

"14. In the light of aforesaid well settled legal position, I am inclined to dispose of the writ petition with a direction to the State Government to consider the claim of the petitioner for absorption in Women and Child Development Department taking into account all the aspects of the matter more particularly in the light of the findings recorded by the Supreme Court in paragraph 31 of decision in Kaberi Khastagir (supra). The State Government, while deciding the claim of the petitioner, shall also bear in mind that petitioner has been working in the project for past more than 17 years and is performing the duties which have been assigned to him by the State Government from time to time, and the fact that the State Government has already taken over the project and the same is being run by Women and Child Development Department. Needless to state, the claim of the petitioner shall be decided by a speaking order within a period of three months from the date of production of certified copy of the order passed today."

The State Government after consideration having rejected the same by the impugned order dated 12.8.2013 communicated vide annexure P-39 on 31.8.2014 to each of the petitioners, they have filed the writ petitions challenging the action of the State Government.

Shri Sanjay Agrawal, learned counsel for the petitioner took me thorough the documents and material as indicated hereinabove, the judgment rendered by the Coordinate Bench of this Court in the earlier writ petition, the manner in which consideration has been made, to say that in the impugned order dated 12.8.2014 the State Government has given certain reasons for rejecting the claim of the petitioners vide para 9, he referred to the reasons given in para 9 and para 10 to submit that the reasons are nothing but arbitrary, unreasonable and the consideration is not made in accordance to the requirement of law. The principle laid down in the case of Kaberi Khastagir (supra) has not been considered properly and that the State Government has acted in a discriminatory manner. As far as petitioners are concerned it is argued that in the garb of initial appointment of the petitioners being made by the Janpad Panchayat wherein condition is stipulated that the petitioners are not State Government employee, benefit is denied to the petitioners. When the provisions of para 47 of the scheme mandates that the scheme should be implemented by the employee of State Government borne in the state cadre. It is argued by Shri Agrawal that in case of the petitioners the State Government instead of implementing the scheme itself delegated it to the Janapad Panchayat, Tendukheda as its agent for implementing the scheme and the Janpad Panchayat appointed the petitioners in accordance to a process known to law and petitioners worked right from 1995 when the project is itself taken over by the State Government in the Women and Child Development Department, accordingly it is said that the petitioners are also entitled for absorption in the services of State Government. It is stated that other similarly situated employees who were appointed to implement the project in various other districts were appointed directly by the State government and even though they are performing similar duties like the petitioners, now the petitioners are being discriminated on the technical ground that their appointments were bu the Janpad Panchayat with a condition that they were not to be treated as government employees.

Shri Agrawal submits that in an arbitrary manner action has been taken. He refers to the reasons given in impugned order in para 9 and 10 to say that now the State Government is trying to find out flaws in the recruitment process undertaken in the year 1995. This according to Shri Agrawal is nothing but an arbitrary and unreasonable stand of the State Government which amounts to violation of right available under Article 14 of the Constitution is discriminatory in nature when the case of petitioner is compared to other persons working in other district for implementing the same project where they have directly appointed by State Government. Accordingly, contending that if reasons given by the State Government in the order impugned is analyzed in the back drop of justification given thereto it can be safely construed that same is arbitrary and illegal decision and, therefore, Shri Agrawal argues that same be quashed and direction be issued to the State Government to consider and regularize the services of petitioners.

Shri Rahul Jain, learned Dy. Advocate General in reply vehemently opposes the contention advanced by Shri Sanjay Agrawal and argued that once in the recruitment process and an advertisement issued in the year 1995 and in the order of appointment issued to the petitioners it was clearly stipulated that they are appointed against a project they are not government employees and when it was clearly indicated to them that their appointment is by the Janpad Panchayat and not by the government the petitioners cannot claim any relief in the matter. Shri Jain, took me through the advertisement annexure P-2 and the terms and condition of the appointment contained in annexure P-4 dated 15.3.1996 issued to each of the petitioners to canvass the contention that the petitioners are not entitled to any relief. As far as judgment of the Supreme Court in the case of Kaberi Khastagir (supra) is concerned Shri Rahul Jain argued that in that case the employees were appointed by the State Government itself, but a dispute arose with regard to their regularization and the stand of State of West Bengal was that they are project employees and, therefore, it is stated that the said judgment will not apply as it is clearly distinguishable on fact. In as much as the present petitioners were never appointed by the State Government, they were appointed through recruitment process undertaken by Janpad Panchayat Tendukheda. Finally with regard to some of the employees like Shri Kailash Rai, Shri Rahul Jain, learned Dy. Advocate General invited my attention to the M.P. Women and Child development (Gazetted Service Recruitment Rules, 2011) the requirement of appointment to a gazetted post like child development officer and argued that for appointment to gazetted post like child Development Officer selection has to be through the State Public Service commission and such of the employees who have not been appointed in accordance to method of appointment through Public Service Commission cannot claim regularization or absorption contrary to the rules of recruitment. Shri jain further argued that once there is a specific recruitment rules providing a method of recruitment to a scheduled post no absorption or regularization contrary to the recruitment rules is permissible and no relief can be granted to the petitioners. Shri Jain in this regard invites may attention to rule 6 of recruitment rules 2011 to say that for appointment to gazetted post there is no provision for appointment by absorption or regularization and, therefore the petitioner are not entitled to any benefit. Accordingly Shri Jain submits that contentions of petitioners are not correct. That apart, Shri Jain took me through the reasons indicated by the State Government in para 9 and 10 of the impugned order annexure P-49 dated 12.8.2013 to demonstrate that the process of recruitment undertaken by the Janpad Panchayat on examination after directions were issued by this Court in the previous writ petition indicates various infirmities and, therefore, in the light of these infirmities the petitioners whose appointments are contrary to the requirement of the recruitment rules cannot claim any benefit. Accordingly Shri Jain prays for dismissal of the writ petitions.

I have heard learned counsel for the parties at length and perused the record. Most of the questions which are factual in nature are not disputed. It is a fact in the Integrated Child Development Scheme, para 47 therein contemplates that the funds for implementing the scheme shall be provided by the Central Government but the staff for manning the scheme shall be borne on the appropriate cadre of the State and the State should sanction the post as per the appendix in a appropriate corresponding State pay scale. This provision of the scheme was subject matter of consideration by the Supreme Court in the case of Kaberi Khastagir (supra) and the Supreme Court has clearly laid down in the aforesaid judgment that the provisions of para 47 of the ICDS Scheme leaves little room for doubt that employees who are appointed to the scheme and who are respondents No. 1, 2 and 3 before the Supreme Court were State Government employees. In fact, in the case of Kaberi Khastagir (supra), the employees who are respondents therein were appointed under the scheme by the State Government and when they were being treated as project employees, not entitled for any other benefit. The Supreme Court referring to para 47 of the Scheme held that the respondents therein and other similarly situated persons were State Government employees because as per the scheme itself, the employees were to be appointed and borne in the State Government cadre. Even though in this case there is a slight difference in as much as the petitioners herein were not directly appointed by the State Government as per the Scheme but implementation of the project in the case of the petitioners and in the District Damoh pertaining to Tendukheda was undertaken by the State Government by authorizing the Janpad Panchayat, Tendukheda to implement the scheme. Except for this factual difference, the scheme in question is identical in nature.

It may be taken note of that according to the petitioners and even as per the material available on record, in the State of Madhya Pradesh while implementing the scheme different methods were followed in different parts of the State, particularly in the matter of employing persons for manning the project. In some areas and Districts, the scheme was directly implemented by the State Government by appointing staff and personnels to man the scheme but in certain place like Tendukheda, Damoh and Sahawal in the District of Sidhi, the power was delegated to Janpad Panchayat or Zila Panchayat to implement the scheme. As far as the present petitioners are concerned who were appointed in Tendukheda, District Damoh, the State Government instead of complying with the requirement of para 47 of the scheme, issued an order Annexure P/2 on 2nd June, 1995 and authorized the Janpad Panchayat, Tendukheda to implement the scheme on behalf of the State Government. While doing so, the required posts for manning the scheme which include posts like Child Development Officer, Assistant Project Officer, Peon, Drivers etc. were sanctioned. In all 20 posts were sanctioned as is evident from the communication Annexure P/1 and after sanctioning the aforesaid 20 posts, the Janpad Panchayat was directed to make the recruitment and appoint the personnels subject to the condition stipulated in para 5 of Annexure P/1 to say that the employees appointed will not be treated as State Government employees. This action of the State Government in authorizing the Janpad Panchayat, Tendukheda to implement the scheme in the District of Tendukheda and thereafter directing them to make appointment to 20 posts by stipulating a condition that the employees appointed shall not be the employees of the State Government runs contrary to the mandate of para 47 of the scheme. If the scheme was to be implemented, it should have been implemented in its letter and spirit and in accordance to the provisions of para 47 of the scheme which mandates that even though fund will be provided by the Central Government, the Staff will be borne on the appropriate cadre of the State and the State should sanction the post in the appropriate corresponding State pay scale. If that be the requirement of the scheme and if the scheme was implemented by the State Government in various other districts strictly by following the said scheme then if a different method was followed for implementing the scheme in the area of Tendukheda, this is nothing but an arbitrary and unreasonable act on the part of the State Government. That being so, I am of the considered view that the State Government in this case deviated from the requirement of the scheme and after having authorized the Janpad Panchayat, Tendukheda, to implement the scheme and after having sanctioned the posts and funds to the Janpad Panchayat, took an arbitrary and unreasonable decision in the matter of saying that the employees so appointed would not be the employees of the State Government. In doing so, not only the mandate of para 47 of the scheme has been violated but a discriminatory attitude was shown by the State Government in as much as while implementing the project in various other districts of the State, the employees have been directly recruited by the State Government and now they are working in the Women and Child Development Department and are getting all benefits as regular State Government employees rather they are employees borne in the regular State cadre service. If that be the position with regard to the employees appointed to the scheme in majority of districts, it is not known as to why only with regard to some employees like 20 employees of Janpad Panchayat, Tendukheda a different procedure was followed. This act of the State Government is discriminatory in nature and this Court cannot approve the same being in violation to Article 14 of the Constitution.

When the same scheme is being implemented throughout the State a uniform policy has to be maintained in as much as the scheme should have been implemented in an identical manner. In the present case, this has not been done. In most of the Districts in the State of Madhya Pradesh the scheme has been implemented strictly in accordance to the mandate of para 47 of the scheme in as much as the State Government has employed personnel to mann the scheme by posting them in the State cadre and providing them the same pay scale as is granted to the employees of the State Government, whereas in certain places like Tendukheda in District Damoh and Sihawal in District Sidhi, the power of implementing the scheme was granted to the Janpad Panchayat. The posts were sanctioned by the State Government, funds were also provided by the State Government after receipt from Central Government and under the guidelines and supervision of the State Government. The entire project was implemented, finally the project was taken over by the State Government and entrusted to the Women and Child Development Department and the project still continues. Employees who were recruited directly by the State Government continued to work in the project now under the Women and Child Development Department but in the case of persons like the present petitioners, on the garb of their being a project employees, a different treatment is melted upon, even though the scheme still functions in Tendukheda. This action of the State Government is highly discriminative. There cannot be two sets of procedure and conditions for implementing a particular project. The project should have been implemented uniformly throughout the State of Madhya Pradesh and all employees employed for manning the project should have been given similar treatment. This having not been done, the action of the State in discriminating between the set of employees who are discharging similar functions for a particular project, cannot be justified. The Act is in violation to the mandate of Article 14 of the Constitution.

That apart, some of the facts that have come on record in the present case goes to show that the petitioners were appointed by following a due process of law in as much as a regular advertisement was issued for filling up the sanctioned posts as notified by the State Government vide Annexure P/1 on 2nd June, 1995. The appointment was undertaken after conducting the process of selection by a duly constituted selection committee. The appointment was on probation for a period of two years and after the period of probation was over all the petitioners were regularized in service. Thereafter, looking to the nature of duties performed by them as is evident from Annexure P/23, P/24, P/25 and P/26, the Janpad Panchayat, the Zila Panchayat and the District Level Departmental Advisory Committee have all recommended that the service of the petitioners be absorbed in the State Government service. Further, the scheme itself was transferred to the Women and Child Development Department of the State Government on 4.8.2010 and it is reported that now the project is being implemented by the State Government through the Women and Child Development Department. If that be so, there is no reason as to why petitioners who are also appointed for the scheme, and when the project is transferred and taken over by the Department which is implementing the project, why service of the employees are not being transferred along with the project.

It is an admitted position that normally when a project is being implemented and persons are appointed to mann a project and when the project is temporary in nature, the employee appointed to such a project does not have any right to seek regularization or absorption in service. However, the question is as to whether this principle will apply in the matter of implementing the Integrated Child Development Scheme Project. A perusal of the scheme and principles of law and observations made by the Supreme Court in the case of Kaberi Khastagir (supra) goes to show that ICDS is a continuing project, it is not a temporary project and even today it is being implemented and continues to be implemented. That being so, the employees working in this project cannot be equated with employees working in various other projects which are temporary project and that is why in the earlier writ petition a Coordinate Bench of this Court directed the State Government to reconsider the matter. That being so, the decision taken on reconsideration and reasons given by the State Government for not absorbing the petitioners requires evaluation of this Court and now I propose to do so.

In the order impugned passed by the State Government as contained in Annexure P/49 dated 12.8.2013 from para 1 to 8 factual assertions as are made in the body of the petition and considered by this Court are indicated. In para 1 the competent authority speaks about sanctioning of the project, the post and entrustment of project vide order dated 2.6.1995 in Tendukheda to the Janpad Panchayat, Tendukheda. Thereafter, the process undertaken for recruitment, appointment and various other aspects of the matter are dealt with. Even resolutions passed by the Janpad Panchayat, the Zila Panchayat and the District Level Planning Committee for recommendation for absorption are indicated. Thereafter the filing of the earlier writ petition being W.P. No. 7116/2008(s), order passed in the writ petition are indicated. The directions issued in the writ petition are reproduced and thereafter from para 9 actual consideration commences. In fact, it is only in para 9 and 10 of the impugned order that consideration are made and therefore, rejection with reasons are indicated. In para 9, questions are formulated to be answered and thereafter it is held by the State Government that after the sanction was accorded on 2.6.1995 and when the appointments were made not only in the sanction order dated 2.6.1995 but also in the appointment order, there is a specific condition that the employees cannot be treated as State Government employees and they are not Government servants. This is one of the reason given for rejecting the claim in para 9.1. In my considered opinion, this is nothing but an arbitrary and unreasonable decision which has already been discussed by me in preceding paragraphs, accordingly, it is held that the reasons contained in para 9.1 is declared to be unreasonable, arbitrary and accordingly unsustainable.

Thereafter, in para 9.2 again reference is made to the process of recruitment and it is held that Janpad Panchayat, Tendukheda in the advertisement, fixed the maximum age limit as 33 years but did not give 5 years age relaxation to certain category of persons as per the policy of age relaxation. It is tried to be emphasized that because age relaxation as per the Circulars and Rules applicable, has not been granted, the appointment is unsustainable. Thereafter, it is indicated that even though the posts have been sanctioned for Upper Division Clerk and Lower Division Clerk but the appointment have not been made strictly in accordance to requirement to the post sanctioned. Except for some abrasion or irregularity in not providing age relaxation or in the matter of appointing persons as UDC, there is no serious illegality. That apart, this cannot be a ground for holding that the appointment is illegal. Records indicate that after appointing persons as UDC instead of LDC as per the recruitment process undertaken in the year 1996 and when the project was being implemented by the Janpad Panchayat, Tendukheda, from time to time it has been monitored by the State Government. The State Government was aware of the recruitment done in the year 1995, regularization of the employees after completing two years of probation and their continuation in service upto 2010 when the project was taken over by the Women and Child Development Department. For all this period no objection in this regard was raised by the State Government. That being so, the aforesaid reason given for refusing absorption to the petitioners cannot be a justified reason. The third reason given in para 9.2 is that for certain appointments on the gazetted post due concurrence from the Public Service Commission has not been taken. This requirement of Recruitment Rules also contemplates a provision for appointment through the Public Service Commission. There is some merit in this objection, however, this will only apply to the petitioner in W.P. No. 3707/2013 i.e. Kailash Rai as he is a Project Officer i.e. Child Development Officer, a Class II Gazetted post and taking concurrence of the Public Service Commission is a requirement as per the statutory Rules framed under Article 309 of the Constitution. Accordingly, in the case of Shri Kailash Rai this requirement of reference to the Public Service Commission for concurrence before absorption is required. Finally, in clause 2 of para 9.2 it is indicated that the roster system and reservation policy has not been followed. Except for making such a vague allegation, no such infirmity in following the roster system is indicated. If the advertisement Annexure P/2 and appointment made are taken note of, it would be seen that except for single post that were advertised in all other posts where the number of appointment was three or more, posts have been reserved for Scheduled Tribe, Scheduled Caste and OBC candidates. That being so, there being no specific material to show as to in what manner the reservation policy has been violated, this reason for rejecting the claim of the petitioners is also nothing but an arbitrary decision.

Thereafter, in para 9.3 it is again indicated that whenever the projects are implemented by nodal agency or independent authorities the appointments are made on contract basis and as the appointment of petitioners are on contract basis, it is said that they cannot be treated as Government employees. This contention of the State Government cannot be accepted. Once the mandate of para 47 of the scheme contemplates appointment of staff to be in the State Cadre by the State Government on payment of pay scale as applicable to the State Government employee, then it is clear that the intention of the Central Government in implementing the scheme was to get it enforced through employees to be recruited by the State Government. The State Government implemented the scheme as warranted under para 47 in most of the Districts but with regard to these petitioners a different procedure was followed which was not in infirmity with the requirement of para 47. That apart, the action of the State Government in doing so has been discussed in detail in the preceding paragraphs and this Court has recorded a finding that the same is discriminatory in nature and violative of Article 14 of the Constitution. That being so, the grounds indicated in para 9.3 of the impugned order for rejecting the claim cannot be sustained.

Finally in para 10 it is said that by a Circular dated 22nd August 2003 a new staffing pattern for implementing the ICDS scheme in Tendukheda has been enforced which only mandates appointment of 11 persons to man the scheme but in contravention to the scheme, 20 employees have been appointed to man the scheme and the additional revenue due to this on the State Government for appointment of 10 persons beyond the sanctioned scheme amounts to Rs.16 Lacs per year and on this ground claim for absorption of the petitioners is rejected. This reason given in para 10 of the impugned order is wholly misconceived and demonstrate the arbitrariness of the Government. In this case 20 posts were sanctioned in the year 1995 when Annexure P/1 was issued by the State Government on 2.6.1995. The State Government sanctioned 20 posts and Janpad Panchayat, Tendukheda was directed to implement the project by appointing 20 persons as per this sanction. The staffing pattern has to be in accordance to the sanction accorded and therefore, once in the year 1995, 20 posts were sanctioned for implementing the project, it is not known as to how this implementation in the year 1995 would become contrary to the Circular which was introduced on 22nd August, 2003 by reducing the number of personnels to 11. The contention of the State Government that the appointment made for the project by the authorities of Janpad Panchayat, Tendukheda is contrary to the staffing pattern introduced on 22.8.2003 is an arbitrary and unreasonable decision for the simple reason that the staffing pattern will not apply to an appointment to the scheme and the project made in the year 1995 as per sanction order Annexure P/1 dated 2.6.1995. This reason is therefore, again unsustainable. Accordingly, as all the reasons indicated by the State Government in the impugned order are found to be unsustainable, I, have no hesitation in quashing the aforesaid order. Accordingly, impugned order dated 12.8.2013 is quashed. Now the consequential question would be as to whether again the matter should be remanded back to the State Government or a mandamus issued for regularization/ absorption of the employees by absorbing them to the service of the State Government. Normally, the High Court exercising its limited jurisdiction in a petition under Article 226 of the Constitution restrain itself from issuing any mandamus in the matter of regularization or absorption of employees until and unless exonerating circumstances and special reasons are available in the facts and circumstances of a given case. Present is the case which has exceptional circumstances and comes in a special category of case where this Court in the peculiar facts and circumstances and the manner in which State Government has acted after the matter was remanded in the earlier writ petition, warrants and mandate this Court to direct for absorption and regularization of the employees. This is not a ordinary case where the employees are appointed in a particular project and they are claiming regularization or absorption in the State service after the project has come to an end. This is a case where as already indicated vide para 47 of the scheme it was the mandate of the scheme to the State Government was to appoint personnels to mann the scheme by sanctioning the post and keeping them in their cadre. Instead of doing so and strictly following the requirement of para 47 of the scheme the State Government implemented it in a dwell manner. Even though in certain districts of the State the scheme was implemented as per requirement of para 47 of the scheme, but in the District of Damoh particularly in Tendukheda the work of implementing the project was entrusted to the Janpad Panchayat, Tendukheda and they were also authorized to fill the post after the post was sanctioned. The Janpad Panchayat, Tendukheda having acted as a nodal agency of the State Government was acting on behalf of the State, it cannot be said that the action of the Janpad Panchayat is contrary to the provisions of the scheme or appointment by the Janpad Panchayat of employees to the scheme cannot be regularized or absorbed. This is a case where the Janpad Panchayat acted in pursuance to the directions issued by the State Government and nothing is brought to the notice of the Court to show that the act of the Janpad Panchayat in making the recruitment or appointment of the employees is illegal or contrary to any provision of law. That apart, when the State Government was directed to consider the case of employees for absorption after consideration instead of absorbing the employees, reasons have been indicated for non absorbing of the employees in the impugned order dated 12.8.2013. The reasons have been analyzed by this Court and this Court has clearly recorded a finding that the reasons are arbitrary and unsustainable. Once the only reason given by the State Government for not absorbing the employees is found to be arbitrary and unreasonable and there is no other reason which comes in the way of providing absorption of the employees, the only option is to direct absorption of the employees as the State Government has not acted in a manner which is expected of the Government in such a cases. However, except in the case of Shri Kailash Rai petitioner in W.P. No. 3707/2014, there is no impediment or illegality in the matter of absorbing the employees. Accordingly except petitioner Shri Kailash Rai in W.P. No. 3707/2014, the State Government is directed to absorb all the other petitioners in all these cases and treating them to be employees of the State Government grant them absorption in service and all other consequential benefits of continuing in service with effect from the date the work of project was taken over by the State Government in Women and Child Development Department after orders were passed on 4.8.2010 vide Annexure P/36. As far as Shri Kailash Rai is concerned, his case for absorption and regularization be referred to State Public Service Commission and the State Public Service Commission be requested to examine his case and recommend his claim for absorption or otherwise by a speaking order. The entire exercise in the case of Shri Kailash Rai be concluded within a period of three months and till the aforesaid exercise is not completed Shri Shri Kailash Rai be permitted to continue to work and all payments made to him as per his entitlement.

Interlocutory applications with regard to payment of salary have been filed by the petitioners. Once this Court has directed the respondents to absorb the employees and to grant absorption and now when the project is taken over by the State Government in Women and Child Development Department after orders were passed on 4.8.2010 vide Annexure P/36, now no further directions are needed on these applications. State Government should pass appropriate orders absorbing and regularizing services of all employees and to grant them salary for the intervening period treating them to have been absorbed in service of the State Government with effect from the date the project was taken over by the Women and Child Development Department and to pay them salary and arrears within a period of three months from the date of receipt of certified copy of this order.

With the aforesaid, all these petitions stands allowed and disposed of.