Vijay Singh vs State Of Madhya Pradesh

With the consent of learned for the parties, the matter is finally heard.

This Appeal under Section 2(1) of Madhya Pradesh Uchcha Nyalaya (Khand Nyayapeeth Ko Appeal) Adhiniyam, 2005, takes exception to the order

dated 08/03/2018 passed in Writ Petition No.8251/2016.

The Writ Petition was directed against the order dated 04/11/2016 passed by the Madhya Pradesh State Agricultural Marketing Board, Bhopal;

whereby, the representation preferred by the petitioner for reinstatement and consideration for regularization on the post of Assistant Sub-Inspector

was rejected.

Relevant facts leading to the controversy briefly are that the petitioner was initially engaged as daily wager in Krishi Upaj Mandi Samiti, Bhind, on

30/10/1986. On the contention that having discharged his duties as Nakedar/Assistant Sub- Inspector, petitioner preferred a Writ Petition No.599/1998

seeking direction for regularization. The petition was disposed of on 17/03/1999 in the following terms:

“The respondents have committed grave error in not considering the case of the petitioner for regularization. It is, therefore, ordered that the

respondent-Mandi shall consider the case for regularization of the petitioner vis a vis respondents no.6 and 7. If the petitioner is found fit, he shall be

appointed on the post available with the respondent-Mandi. The appointments of respondents no.6 and 7 shall be subject to the screening by the

respondent-Mandi for regularisation of the petitioner and the promotion of respondent no.6 and 7 shall also be subject to suitability of the petitioner. If

the petitioner is found suitable for promotion, the appointments of his juniors is liable to be set-aside, if no vacant post is available with the respondent-

Mandi.â€​

However, before the case of the petitioner was considered, he was prosecuted in a Criminal Case vide Crime No.118/2001 for an offence punishable

under Section 364-A read with Section 120-B IPC and Section 11/13 of Madhya Pradesh Dakaiti Aur Vyapharan Prabhavit Khestra Adhininyam,

1981, and was convicted and sentenced in ST No.68/2001 decided on 01/08/2003. The conviction and sentence was, however, set aside in Criminal

Appeal No.416/2003 decided on 25/07/2012. After acquittal, petitioner approached the Marketing Committee for reinstatement and for consideration

for regularization. As the joining was declined by order dated 13/08/2013, the petitioner filed a Writ Petition No.7384/2014. The petition was disposed

of on 31.08.2016 with the direction to the respondent to consider the claim of the petitioner, in the following terms:

“Taking into account the fact that

the aforesaid recommendations contained in Annexure P/7 dated 5.6.2013 and Annexure P/8 dated 6.7.2013 have not been taken into consideration by

the Deputy Director, Madhya Pradesh Agricultural Marketing Board, Bhopal while passing the impugned order dated 13.8.2013, I am inclined to

quash the same. The Deputy Director, Madhya Pradesh Agricultural Marketing Board, Bhopal is directed to consider the claim of the petitioner in the

light of recommendations dated 5.6.2013 and 6.7.2013 and to pass fresh order assigning the reasons in accordance with law. Let the aforesaid

exercise be carried out within a period of six weeks from today. It is made clear that this Court has not expressed any opinion on the merits of the

case.

Accordingly, this writ petition is disposed of.â€​

The reconsideration led to passing of fresh order on 04/11/2016, rejecting the claim on the following findings:

^^v& bl rF; ds laca/k esa dksbZ fookn ugha gS fd rRle; esa ;kfpdkdrkZ dsoy nSfud osru Hkksxh ukdsnkj@lgk;d mifujh{kd ds :i esa dysDVj jsV ij

d`fâ€k mit e.Mh lfefr fHk.M esa fu;ksftr gksdj dk;Zjr jgk gSA bl rF; ds lca/k esa Hkh dksbZ fookn ugha gS fd bl vkns'k ds mij ds inksa esa mYysf[kr

dkj.kksa ls ;kfpdkdrkZ Jh fot;flag d`fâ€k mit e.Mh lfefr] fHk.M dh lsokvksa ls yxHkx 12 oâ€kZ dh vof/k rd ckgj jgk gSA ftlds fy;s izR;{k :i ls

;kfpdkdrkZ Jh fot;flag HknkSfj;k Lo;a gh ftEesnkj gSA bl rF; ds laca/k esa Hkh dksbZ fookn ugha jgk gS fd ;kfpdkdrkZ Jh fot;flag d`fâ€k mit e.Mh

lfefr] fHk.M esa izkjEHk ls gh dsoy ek= nSfud osruHkksxh deZpkjh ds :i esa dysDVj jsV ij fu;ksftr jgk gS vkSj mldks nSfud osruHkksxh

le;iky@ukdsnkj ds :i esa fu;ksftr djrs le; HkrhZ fu;eksa esa fofgr p;u izfdz;k dk ikyu Hkh ugha fd;k x;kA ekuuh; loksZPp U;k;ky; }kjk vussd U;k;

fl)kUrksa esa ;g U;kf;d fl)kar izfrikfnr fd;k x;k gS fd ,sls nSfud osruHkksxh deZpkjh] ftudks fd nSfud osruHkksxh deZpkjh ds :i esa fu;ksftr djrs le;

HkrhZ fu;eksa esa fofgr p;u izfdz;k dk ikyu djrs gq, fu;ksftr ugha fd;k x;k gks] dks

lsok esa

fu;ksftr@iquZLFkkfir gksus dk dksbZ fof/kd vf/kdkj ugha gS vkSj

u gh ,sls nSfud osruHkksxh deZpkjh fdlh ij fdlh Hkh izdkj

dk /kkj.kkf/kdkj gh j[krs gSAÂ

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dh x;h gSA rFkkfi lgk;d mifujh{kd dk in fnukad 13@07@1998 ls e0iz0 jkT; e.Mh cksMZ lsok ds vUrxZr vk x;k gSA e.Mh lfefr] fHk.M ls izkIr

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gSA ftl dsl esa ;g fujks/k esa jgs ml izdj.k dh xaHkhjrk dks ns[krs gq, Hkh bUgsa lsok esa fy;k tkuk mfpr izrhr ugha gksrk gSA

l& mijksDr rF;ksa ,oa ifjfLFkfr;ksa ds ifjizs{; esa

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esa iquZcgky@iquZLFkkfir djus ds laaca/k esa dh xbZ vuq'kalk mDr vuq'kalk ds dze esa la;qDr lapkyd] e0iz0 jkT; d`fâ€k foui.ku cksMZ] Xokfy;j ds

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;ksX; ugha gSaA

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ds laca/k esa izLrqr vkosnu i=@Dyse vekU; fd;k tkrk gSA rnkuqlkj lacaf/krksa dks lwpfr fd;k tkosA**

Aggrieved, the petitioner filed Writ Petition No.8251/2016 which being dismissed by impugned order. Learned Single Judge observing that “After

almost 12 years, he came with acquittal order at appellate stage. As such daily wager has no lien over any post, therefore, he cannot seek

reinstatement or regularization after judgment of Apex Court in the case of Umadevi v. State of Karnataka: [(2006) 4 SCC 1]. No illegal appointment

can be made.

Thus, the claim of the petitioner was negatived mainly on the anvil of findings that the petitioner did not perform duties for almost 18 years, therefore,

he cannot be reinstated in the terms of decision in Umadevi (supra).

Learned counsel for the Appellant/Petitioner, while not disputing the principle of law laid down in Umadevi (supra), has to submit that since the initial

appointment of the petitioner was not illegal but has been appointed after due consideration and on the basis of the Resolution passed by the Mandi,

the decision in Umadevi (supra) assists the petitioner in carrying further his relief for reinstatement and for consideration for regularization; because

the acquittal relates back to the date when the Criminal case was initially registered. It is urged that the circumstances which led to his termination

was beyond his control, the respondent-employer cannot be permitted to take advantage thereof merely because the petitioner was a daily wager. It is

urged that it being not the case of the petitioner that he abandoned the service, the petitioner cannot be deprived of his right of reinstatement and the

consideration for absorption/regularization as Assistant Revenue Inspector. Reliance is placed on paragraph 53 of the decision in Umadevi (supra);

wherein Their Lordships were pleased to hold:

“53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in State of Mysore

v. S.V. Narayanappa, [AIR 1967 SC 1071], R.N. Nanjundappa v. T. Thimmiah: [1972 1 SCC 409] and B.N. Nagarajan v. State of Karnataka:

[(1979) 4 SCC 507], and referred to in paragraph 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the

employees have continued to work for ten years or more but without the intervention of orders of the courts or of tribunals. The question of

regularization of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases

above referred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take

steps to regularize as a one time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts

but not under cover of orders of the courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant

sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set

in motion within six months from this date. We also clarify that regularization, if any already made, but not subjudice, need not be reopened based on

this judgment, but there should be no further by-passing of the constitutional requirement and regularizing or making permanent, those not duly

appointed as per the constitutional scheme.â€​

On the anvil of these principle, it is urged that the petitioner's initial appointment being not illegal, the respondent cannot get any mileage with the

decision in Umadevi (supra). The petitioner has also placed reliance on the decision in State Bank of India & Another v. Mohammed Abdul Rahim;

[(2013) 11 SCC 67], wherein it is held by Their Lordships:

“9. In the present case, the respondent was acquitted by the appellate court. There can be no manner of doubt that the said acquittal would relate

back and the initial order of conviction would stand obliterated. On that basis, there can be no manner of doubt that the substratum of the cause that

had led to the respondent's dismissal/discharge in the present case had ceased to exist. The same would entitle him to be reinstated in service, an act

that has been duly performed by the appellant Bank.

The respondent was acquitted on 22-2-2002, the demand for reinstatement was made by him on 22-4-2002 and he was reinstated in service by the

appellant bank on 7-11-2002. On the view that we have taken, at the highest, what can be said in favour of the respondent is that he is entitled to

wages from the date he had lodged the demand for the same following his acquittal, namely, from 22-4-2002, until the date of his reinstatement, if the

same has not already been granted by the appellant Bank. â€​

The respondents on their turn have supported the impugned judgment. It is contended that learned Single Judge was well within his jurisdiction in

negativing the claim of the petitioner, as could he interfere with. It is urged that being a daily wager there was no lien in favour of petitioner as would

create any right in him for reinstatement and for regularization.

Considered rival submissions.

The issue as to whether any benefit would enure in favor of a daily wager on his acquittal came up for consideration before Division Bench of this

Court in Bharat Sanchar Nagar Limited & Ors. v. Mool Chand Thakur in W.P. No.14383/2009 wherein it is held:

“Normally, the principle applicable for reinstatement of a regular employee who is acquitted in a Criminal Case will not apply in the present case.

Present is the case when the employee namely, Mool Chand Thakur was only a Daily Wages Employee and the tribunal has only directed for

considering the case of the employees for reinstatement, even though the order passed on 1.4.1997 for the reinstatement of the respondent Mool

Chand Thakur was passed, the respondent did not report for joining duties. The petitioners herein cannot be blamed for this act of the respondent. It

was only because of the respondent's act of commission and omission that he was involved or implicated in the criminal case and the departmental

authorities cannot be held responsible for the same. A Daily Wages Employee does not have any lien to any particular post nor does he have any legal

right to continue on the post held in the capacity of a Daily Wages Employee.â€​

Similar view has been taken by another Division Bench of this Court in Pradeep Kumar Tiwari vs. The State of Madhya Pradesh) in W.A.

No.1009/2017, decided on 02/04/2018 wherein it is held:

“The challenge in the instant writ appeal is to an order dated 29.08.2017 passed by the learned Single Bench in W.P. No. 3699/2006 (Pradeep

Tiwari Vs. State of M.P. & Ors.), whereby the claim of the appellant to reinstate him in service as Chowkidar after his acquittal in a criminal case

remained unsuccessful.

The appellant was appointed on daily wages as Chowkidar However, he was prosecuted in a criminal case for theft, in which, an order of acquittal

has been passed.

Learned counsel for the appellant contends that in view of the judgment dated 30.10.2015 passed by the learned Single Bench of this Court in W.P.

No. 1867/2014 (Sanjay Singh Yadav Vs. The State of M.P. & Ors.) wherein, the respondents were directed to consider the candidature of the

petitioner for appointment on the post of Constable afresh in accordance with law, the appellant is entitled to the reinstatement in service.

The question as to whether a person who is prosecuted in a criminal case, can on acquittal, have a right of appointment has been examined by the Full

Bench of this Court in a judgment delivered as in W.P. No. 5865/2016 (Ashutosh Pawar Vs High Court of M.P.). This Court referred to the judgment

of State of Madhya Pradesh & Ors. Vs. Parvez Khan & Ors. (2015)2 SCC 591 and also in the case of Chandigarh Administration & Ors. Vs.

Pradeep Kumar & another reported as 2018(1) SCC 797. It has been held that mere acquittal in a criminal case is not sufficient for a candidate to be

appointed. Still further the writ petitioner was not even an employee but working on daily wages and a daily wager has no right to hold the post.

Since the appellant has no right to hold the post, the decision not to re-engage the appellant cannot be said to be erroneous. The order passed by the

learned Single Bench in Sanjay Singh Yadav runs counter to the judgment rendered by the Full Bench in Ashutosh Pawar’s case, therefore, such

judgment is not correct enunciation of law and is thus not a binding precedent. Accordingly, the appeal is dismissed..â€​

In the case at hand, when the Appellant was prosecuted, he was not holding any substantive post and was only a daily wager and the order passed in

W.P. No.599/1998 was for consideration for regularization.

In Umadevi (supra) the reliance whereon has been placed by the petitioner, it was clarified by their Lordships that “regularization, if any already

made, but not subjudice, need not be reopened based on this judgment, but there should be no further by- passing of the constitutional requirement and

regularizing or making permanent, those not duly appointed as per the constitutional scheme .â€​

It is further held by Their Lordships:

“54. It is also clarified that those decisions which run counter to the principle settled in this decision, or in which directions running counter to what

we have held therein, will stand denuded of their status as precedents.â€​

When the principles culled out from the decision in Umadevi (supra) is applied in the facts of present case wherein the petitioner was not regularized

but there was a direction for regularization and before the said exercise could be taken up, the petitioner was prosecuted for an offence punishable

under Section 364-A read with Section 120-B IPC and Section 11/13 of Madhya Pradesh Dakaiti Aur Vyapharan Prabhavit Khestra Adhininyam,

1981. Though, the petitioner was later on acquitted, however, when he was proceeded against in a criminal case, he was only a daily-wager and not

holding the substantive post as would be benefitted by the decision in Umadevi (supra).

Even, the decision rendered in State Bank of India (supra) is of no assistance to the petitioner for the reason that Mohammed Abdul Rahim therein

was a regular appointee and with his acquittal, he was relegated to his original status.

Taking any view of the matter, we find no merit in the appeal as would warrant any indulgence.

Consequently, Appeal fails and is dismissed.