State of Madhya Pradesh vs Govind Prasad Mali

Heard on the question of admission.

Respondents No. 1 to 16, who were original writ petitioners, were appointed in the year 1991, 1992, 1993 an 1994, after following due process of selection. Their names were called from the Employment Exchange and a process of selection took place, and thereafter they were appointed as daily wager. On 30.07.1994, the State Government has issued a circular for regularizing the services of the employees of the State Government. The respondents (writ petitioners), as their cases were not considered for regularization, have preferred an original application before the Madhya Pradesh State Administrative Tribunal vide OA No. 239/1998. After abolition of the Tribunal, the same was registered as Writ Petition No. 5712/2003 before this Court. By order dated 13.12.2004, the Writ Court directed the appellants to consider the case of respondents No. 1 to 16 for regularization. No compliance of the order was done, and therefore, the respondents No. 1 to 16 were compelled to file a contempt petition i.e. Contempt Petition No. 397/2005 and learned Court disposed of the said contempt petition with direction to the present appellants to consider their cases within a period of four months. Thereafter, an order was passed on 05.04.2008 for appointing the respondents No. 1 to 16 as regular employees under contingency establishment and they shall be entitled for payment of wages at the rate fixed by the Collector, meaning thereby for all practical purposes, they were treated as daily wagers so far as grant of pay scale is concerned.

In spite of sanction of the number of posts, the services of the respondents No. 1 to 16 were not regularized. They have again filed Writ Petition No. 2263/2012 and the learned Writ Court by order dated 19.03.2012 has directed the appellants herein to decide the respondents'' representation in the matter of regularization.

Respondents No. 5 to 13 (in the original writ petition), who were appointed in the year 2001 onwards and even one of them, who has been appointed in the year 2006 as a daily wager, has been regularized by order dated 13.04.2012 and has also been granted regular pay scale. In the writ petition, the respondents No. 1 to 16 prayed for issuance of an appropriate writ, directing the appellants herein to regularize them in Class-IV post and to quash the regularization of respondents No. 5 to 13.

A detailed and exhaustive reply has been filed by the appellants as well as private respondents. As per reply, vacancies were sanctioned by the State Government only for regularizing respondents No. 5 to 13, and therefore, they have been regularized respondents No. 5 to 13, even though they are junior to the writ petitioners.

The stand of the private respondents is that their regularization was cancelled by the State Government and the same was challenged by them by filing Writ Petition No. 6651/2012 and the same has been allowed by order dated 17.04.2013, and therefore, the matter has attained finality.

The Writ Court by the impugned order dated 09.10.2014 was of the opinion that the regularization has to be done strictly in accordance with the seniority and as the respondents No. 1 to 16 are appointees of the year 1991 are to be considered first for regularization, keeping in view the seniority and private respondents, who are appointees of 2001 onwards, are certainly to be considered later for regularization, after the earlier recruitees, who are working on the rate fixed by the Collector as daily wager, even though an eyewash has been done by passing an order that they have been regularized. The writ petition of the respondents No. 1 to 16 has been allowed and the impugned order dated 30.04.2012 rejecting the representations of the writ petitioners is also set aside. The appellants were directed to prepare seniority list of all daily wagers including the respondents No. 1 to 16 as well as private respondents No. 5 to 13 strictly on the basis of their initial date of appointment and to consider their cases for regularization as the posts are already available in the establishment.

Learned Deputy Government Advocate has submitted that respondents No. 17 to 26 (private respondents No. 5 to 13 in the original writ petition) were appointed in the autonomous college under various schemes of the Central Government, as per guidelines of the CCIM and the appointments were to be made under various grant of the Central Government like Model College Grant, Compounder Training Course and the Post Graduate grant, therefore, these private respondents are those employees, who were employed under the autonomous college, whereas the original writ petitioners i.e. respondents No. 1 to 16 are such employees who were appointed under contingency paid establishment in the District Ayurvedic Hospital, Autonomous college, etc. Thus, the appointments of both the categories of employees were different and therefore, different class, though the work discharged by them is in the same capacity, but their condition of appointment was different, therefore, the claim of the respondents No. 1 to 16 on the ground of parity could not have been entertained by the Writ Court and prayed that the impugned order be set aside.

We have heard the arguments of the learned Deputy Government Advocate at length.

Paragraphs No. 6 to 14 of the order dated 9th October, 2014 passed in Writ Petition No. 5860/2012 reads, as under:--

"6. In the present case, it is an admitted fact and not disputed by the parties that the petitioners were appointed after following the due process of selection. Their names were invited from the employment exchange and they faced the selection committee and they were appointed in the year 1991 onwards. A detailed chart showing the date of appointment''s posts and educational qualifications reads as under

It is also an admitted fact that the State of Madhya Pradesh has issued a circular on 30.7.1994 for considering the cases of regularization and the petitioners as they were not regularised have approached the MPSAT, however on abolition of the MPSAT, the Original Application was transferred to this Court and registered as WP No. 5712/2003. This Court on 13.12.2004 has passed a detailed and exhaustive order in the aforesaid writ petition and the same reads as under:--

"Petitioners have filed this petition with regard to their regularisation. It is submitted by the petitioners that they are working with effect from 1991 and they have been appointed on the post of Sweeper after constituting a Screening Committee and as such they are not out door entries. All the petitioners belongs to scheduled caste and they are working on the post of Sweeper on contingency basis and they are entitled for regualrisation.

Respondents have submitted that because they were appointed after the year of 1988 they cannot be regularised. It is further submitted that their services have been terminated with effect from 1997. However with regard to termination the Tribunal as granted stay order on 6.8.1998 and on the basis of the said order, the petitioners are in service.

Looking to the facts and circumstances of the case, the petition is disposed of with the following directions that:--

Respondents are directed to consider the case of the petitioners for regularisation as per the Circular of the Government and as per the settlement arrived between the Government and the employees at Lok Adalat held at Main seat at Jabalpur.

It is further directed that the respondents may also consider the aspects that the petitioners are a member of Scheduled caste and also they have been appointed after facing screening committee.

The whole exercise be completed within a period of 3 months from the date of receipt of the order.

Petition is disposed of accordingly."

The respondents as they did not comply with the order as directed by this Court were confronted with the contempt petition i.e. Contempt Petition No. 379/2005 and this Court vide order dated 16.11.2007 has disposed of the said contempt petition and following order was passed:--

"This petition is listed in default. After perusal of the record and after hearing learned counsel for the applicant as well as looking to the direction of the Court, it is through proper to dispose of this petition with the following direction:--

That, applicants shall submit a fresh representation for compliance of order passed in W.P. No. 5712/2003 to the competent authority within a month, which shall be considered and decided by the non-applicants now within a period of four months. It is hereby observed that if the directions are not carried out within the aforesaid period, it shall be viewed seriously and the personal responsibility of the officer concerned shall be fixed.

It is further observed that if the non-applicants have not carried out the directions of this Court, petitioners are at liberty to take recourse of law afresh.

Accordingly this petition is disposed of."

In spite of there being an order passed in writ petition and the order passed in the contempt petition, the cases of the petitioners were not considered for regularization and finally an order was passed on 5.4.2008 holding the petitioners to be appointed as a regular employees, under the work charge contingency establishment however in the matter of grant of pay, they were again paid the wages on the basis of the rate fixed by the Collector, meaning thereby for all practical purposes they were treated as daily wagers only. While all this was going on, various posts were sanctioned by the State Government and as many as 32 posts were sanctioned in the year 2012 and again posts were sanctioned on 27.3.2012 (Annexure-P/19) and as many as 18 posts were sanctioned. Out of 18 posts, 9 posts were for Class-IV employees i.e. Sweeper, Peon, Chowkidar, meaning thereby on the said posts the petitioners could have been very much accommodated as regular employees. The present case reflects a very sorry state of affairs in the Department of AYUSH, State of Madhya Pradesh especially in the establishment of Government Dhanwantri Ayurvedi College. The respondents No. 5 to 11 who were also appointed by adopting the same process of selection, by which the petitioners have been appointed, have been regularised and have been granted a regular pay scale. It is again not in dispute that the private respondents were appointed in the year 2001 onwards. The respondent No. 10 was appointed in the year 2006 and none of the respondents have been appointed prior to 2001 as daily wager. It has been vehemently argued before this Court that the posts were sanctioned only for regularization of respondent Nos. 5 to 13.

This Court is unable to accept such a proposition of law and facts canvassed by the learned GA. A post is not sanctioned in an establishment for a particular individual, in case posts are available, the rule of seniority cannot be given a go bye. It is really strange that persons who are working since 2001 have been regularised, ignoring the claim of the petitioners, who are working since 1991. Not only this, the respondent No. 4 has disputed the circular issued by the State Government pursuant to the judgment delivered by the Apex Court in the case of Secretary, State of Karnataka and Others Vs. Umadevi and Others, . The circular issued by the State Government makes it very clear that the employees, who have put in 10 years of service as daily wager shall be entitled for regularization. It is really unfortunate that even the persons, who were appointed as daily wager in the year 2006 have been regularised ignoring the legitimate claim of the petitioners, who were appointed in the year 1991 and therefore, the action of the respondents is not only arbitrary, it is discriminatory, suffers from vice of non-application of mind and is also violative of Articles 14, 16 and 21 of the Constitution of India. It has been brought to the notice of this Court by the private respondents that they were appointed as daily wagers and they were regularised and thereafter their regularizations were cancelled by the State Government. They were regularized vide order dated 13.4.2012 and the order of regularization was withdrawn by the Principal of the College on 26.6.2012. The private respondents came up before this Court against the action of the Principal and this Court in WP No. 6651/2012 has passed the following orders on 17.4.2013:--

W.P. No. 6651/2012

17.4.2013

Shri Ajit Mishra, learned counsel for the petitioner.

Shri Mukesh Parwal, learned counsel for respondents No. 1 to 3 - State.

None for respondent No. 4.

Heard.

ORDER

This order will also govern the disposal of W.P. No. 6649/2012, W.P. No. 6650/2012, W.P. No. 6652/2012, W.P. No. 6653/2012, W.P. No. 6654/2012, W.P. No. 6656/2012, W.P. No. 6657/2012 and W.P. No. 6658/2012 since it has been jointly stated by counsel for the parties that in all these petitions similar orders have been challenged on the same fact situation, therefore, they are required analogous hearing.

For convenience the facts have been noted from W.P. No. 6651/2012.

The petitioner was appointed in the respondent No. 4-College after selection through interview on 30.12.2006. The Ayush department of the State, vide order dated 27.3.2012, had granted sanction for creation of 18 posts for regularization of the employees working on the collector rate. Accordingly the post on which the petitioner was working, was sanctioned. Thereafter the order dated 13.4.2012 was passed regularizing the services of the petitioner and the petitioner had started working on the regular post with effect from 16.4.2012. The respondent No. 4, new principal of the College had passed the order dated 26.6.2012 withdrawing the regular appointment of the petitioner and directing the appointment of the petitioner on daily rated employee for 29 days with one break in service. Aggrieved with the same the petitioners have approached this Court.

A reply has been filed by the respondents No. 1 to 3 admitting the fact that the petitioner was initially appointed as daily wager and thereafter 18 posts including the post on which the petitioner was working, was sanctioned and in terms of the instructions of the State Government services of the petitioner were regularized and the petitioner had joined in pursuance to the regularization on 16.4.2012, but the respondent No. 4 who was the in-charge principal of the College by order dated 26.6.2012 had withdrawn regularization order and reappointed the petitioner on daily basis. It has been disclosed in the reply that the State Government subsequently by order dated 22.9.2012 has cancelled the order dated 26.6.2012 passed by the respondent No. 4. A copy of the order dated 22.9.2012 has been placed on record as Annexure R/1 which expressly mention that on cancellation of the order dated 26.6.2012 earlier order dated 13.4.2012 relating to the regularization of the petitioner has been restored. It has further been disclosed in the reply that the respondent No. 4 in-charge Principal is committing misconduct by not complying with the order of the State Government dated 22.9.2012.

Having heard the learned counsel for the parties and on the perusal of the record, I am of the opinion that once the petitioners were regularized in pursuance to the direction of the State Government on the posts which were duly sanctioned by the State Government and they had also joined on the regularized post and the pay-scale and started working, then subsequently respondent No. 4 could not have cancelled their order of regularization without giving them an opportunity of hearing. Therefore, the order of the respondent No. 4 dated 26.6.2012 cannot be sustained having been passed in violation of the principles of natural justice. Even otherwise the subsequent order passed by the State Government dated 22.9.2012 indicates that the order dated 26.6.2012 has been cancelled and the earlier order dated 13.4.2012 in respect of the regularization of the petitioners has been restored.

Keeping in view these relevant aspects of the matter, the writ petitions are disposed of by directing the respondent No. 4 to give effect to the order of the State Government dated 22.9.2012 within a period of 4 weeks from the date of receipt of certified copy of this order."

The aforesaid order makes it very clear that the private respondents were regularized and their regularization was withdrawn. The order makes it very clear that during the pendency of the aforesaid writ petition, the State Government has withdrawn the order of de-regularisation and there was no necessity to comment upon the regularization of the petitioners therein and the writ petition was disposed of as the State Government itself withdrew the order of deregularisation of the petitioner therein. A writ appeal was also preferred on behalf of the present petitioners and the following order was passed in WA No. 610/2013 by the Division Bench of this Court.

Writ Appeal No. 610/2013

24.09.2013

Shri L.C. Patne, learned counsel for the appellant.

Ms. Mini Ravindran, learned Deputy Government Advocate for respondents No. 1 to 4/State.

Ms. Ranjana Gawde, learned counsel for respondent No. 5.

Shri Manoj Manav, learned counsel appears for respondents No. 5 to 13 of Writ Petition No. 5860/2012 filed at the instance of Govind Prasad Mali and others for whom Shri L.C. Patne, learned counsel is appearing in the said writ petition.

At the outset, it has been stated by Ms. Ranjana Gawde, learned counsel appearing for respondent No. 5 and Shri Manoj Manav, learned counsel appearing in Writ Petition No. 5860/2012 for respondents No. 5 to 13 that the order dated 17.04.2013 passed in Writ Petition No. 6651/2012, which has been impugned in this writ appeal, will not affect the rights of the present appellant Smt. Usha bai and others alike writ petitioners.

In view of the aforesaid statement, recording the same, we dispose of this writ appeal."

The order passed by the Division Bench of this Court makes it very clear that the judgment delivered by the Single Bench would not affect the rights of the present petitioners and therefore, this Court has to adjudicate the rights of the petitioners, who are the sufferers and suffering, struggling and dragging as a daily wager since 1991. This Court keeping in view the aforesaid, is of the considered opinion that the regularization has to be done strictly in consonance with the seniority and as the petitioners are appointees of the year 1991 are to be considered first for regularization keeping in view the seniority and the private respondents who are appointees of the year 2001 onwards are certainly to be considered later for regularization after the earlier recruitees, who are working on the rate fixed by the Collector as daily wager, even though an eye wash has been done by passing an order stating that they have been regularised.

Resultantly, the writ petition is allowed. The impugned order dated 13.4.2012 passed by the respondent No. 4 regularizing and appointing the private respondents No. 5 to 13 as a regular employee is set aside. The order dated 30.4.2012 rejecting the representation of the petitioners is also set aside. The respondents are directed to prepare a seniority list of all daily wagers including the petitioners as well as the respondent Nos. 5 to 13 strictly on the basis of their initial date of appointment and to consider their cases for regularization as the posts are already available in the establishment.

That the respondents shall not deviate from the seniority list and shall consider the case of all the eligible employees strictly as per the seniority and in case the petitioners or any other persons, who are found eligible for regularization keeping in view the seniority shall be entitled for all consequential benefits w.e.f. 13.4.2012 i.e. the date on which the posts were available in the establishment i.e. the date on which the private respondents No. 5 to 13 have been illegally regularised. This Court though has quashed the order of regularization of the private respondents No. 5 to 13 is of the considered opinion that no fruitful purpose is going to be served by directing a recovery of the salary amount already paid to the private respondents No. 5 to 13 by virtue of their regularization and therefore, the respondents will not recover the amount already paid to the private respondents No. 5 to 13 on account of their regularization.

The entire exercise of considering the cases of the petitioners and all other eligible persons as per the initial date of appointment and passing consequential orders granting all consequential benefits be concluded within a period of 60 days, failing which the respondents shall be exposing themselves for an action under the Contempt of Courts Act, 1971. The writ petition is allowed with a cost of Rs. 25,000/-. The respondents/State shall also be free to conduct an enquiry and to fix the responsibility upon the persons, who were instrumental in issuance of regularization order dated 13.4.2012 and after fixation of the responsibility, the State Government shall be free to hold a departmental enquiry and shall be free to take an appropriate action against the persons, on account of whose mischief, the impugned orders of regularization of private respondents No. 5 to 13 have been issued. The State Government shall be free to recover the cost imposed by this Court from the persons responsible for this illegal act."

On due consideration of the facts and circumstances of the case and also the fact that respondents No. 17 to 26 (original writ petitioners No. 5 to 13 in the writ petition) were appointed in 2001, whereas respondents No. 1 to 17 were appointed in 1991 to 1994, after due process of selection, we are of the view that the learned Writ Court has rightly allowed the writ petition and quashed the appointment of private respondents No. 17 to 26 as regular employee.

Writ Appeal No. 11/2015 has no merit and is accordingly dismissed.