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2003 DIGILAW 457 (MP)

Madhukar Talmale v. State of M. P.

2003-03-26

DIPAK MISRA, S.K.PANDE

body2003
JUDGMENT Misra, J. -- By this writ petition preferred under Articles 226/227 of the Constitution of India, the petitioner has called in question the legal validity and propriety of the order dated 18.2.2000 passed by the M.P. State Administrative Tribunal (in short 'the Tribunal'). The facts briefly exposited are that, the petitioner was appointed as Time Keeper for 89 days in the Public Works Department. He worked without any break and eventually by virtue of a circular dated 17.11.1988 qualifications having been relaxed he was regularised on 12.3.1989. However, as he was not confirmed and given seniority he knocked at the doors of the Tribunal. Before the Tribunal the petitioner contended that he had requisite qualifications to be appointed on regular basis as Time Keeper inasmuch as he was governed by the Madhya Pradesh Public Works Department Workcharged and Contingency Paid Employees Recruitment and Conditions of Service Rules, 1976. It was urged that the said Rules do not prescribe any qualification for the post of Time Keeper and, therefore, he should be deemed to be regularised from the date of his initial joining in the year 1983. The stand taken by the respondents before the Tribunal that the case of the petitioner would be governed by the rules called M.P. Workcharged and Contingency Employees Pay Revision Rules, 1984. It is noteworthy to mention here that both the Members of the Tribunal wrote separate concurring judgments and held that the applicant/petitioner would be governed by the 1984 Rules and there was no error in fixing of his regularisation with effect from 12.3.1989. Mr. S.P. Sharma, learned counsel for the petitioner has raised two fold contentions, namely, that his case is governed by the 1976 Rules and not by the 1984 Rules and secondly, once he is regularised doctrine of relation back would apply and he should be regularised from his initial date of appointment. Mr. Hemant Shrivastava, learned Government Advocate for the State has submitted that though in the 1976 Rules there was no prescription for appointment but the said Rules would not be applicable to the case of the petitioner inasmuch as he was appointed in the year 1983 and on that day the 1984 Rules was effective inasmuch as the 1984 Rules was made applicable from the first day of April, 1982. It is submitted by him that if a rule is silent about its retrospective applicability, it cannot be so but in the instant case rules having been made retrospective the case of the applicant would come within the ambit and sweep of Rules 1984. Considering the aforesaid combating submissions, we have perused the 1976 Rules. True it is, in the said Rules there is no prohibition prescribing any qualification for the post of Time Keeper. It is not in dispute that 1984 Rules which came into force on 1.4.1982. Rule 3 deals with scope and application. The aforesaid rule reads as under: "Scope and application -- These rules shall apply to all members of the work-charged and contingency paid employees' service, drawing pay in the existing scale on 1st April, 1982; Provided that a temporary employee shall be governed by these rules only, if he fulfills the requisite qualifications shown in column (4) of Annexure II in respect of the posts mentioned in column (2) thereof; Provided further that a temporary employee who does not possess the requisite qualifications will continue to get his emoluments in the existing scale till he becomes permanent member as per clause (g) of rule 2. Rule 11 of 1984 Rules deals with relaxation. It reads as under: "Relaxation : The State Government may relax or suspend the operation of any of the provisions of these rules in the case of an employee or category of employees in such manner and to such extent as may appear to it to be just and equitable or necessary or expedient in the public interest; Provided that such relaxation or suspension shall not operate to the disadvantage of the employee or categories of employees, as the case may be." Annexure II has been appended to the Schedule to the Rules as it has been under Rule 3. Under S.No. 3(B) the post of Time Keeper is mentioned. It stipulates that there would be 100% direct recruitment. The qualification has also been prescribed therein. It stipulates that incumbent must have passed Higher Secondary, mathematics being one of the subject. As the petitioner was appointed in the year 1983 we unhesitatingly conclude and hold that 1984 Rules would be applicable that governed the field then. The relaxation has been made in exercise' of power under Rule 11. The qualification has also been prescribed therein. It stipulates that incumbent must have passed Higher Secondary, mathematics being one of the subject. As the petitioner was appointed in the year 1983 we unhesitatingly conclude and hold that 1984 Rules would be applicable that governed the field then. The relaxation has been made in exercise' of power under Rule 11. A general circular was issued on 13.11.1988-when the petitioner's services had been regularised by taking recourse to Rule 11. If the said Rule is conjointly read with the circular in question, we are of the considered opinion, he cannot claim seniority from the date of his initial service inasmuch as he was appointed de hors to the Rules and therefore, his seniority has to be computed from the date of regularisation. Being of this view, we do not find any fallacy or infirmity in the order passed by the Tribunal. In course of hearing we have been apprised by Mr. Sharma that one R.S. Shihose, though junior to the applicant and is similarly placed as the applicant as far as qualification is concerned, has been regularised from the date of his initial appointment. We are conscious, that concept of negative equality is ordinarily not attracted. Hence, we refrain ourselves, for adverting to the same. However, the petitioner is at liberty to make a representation to the Secretary, Public Works Department, who shall look into the same and pass appropriate orders. With the aforesaid observation the writ petition stands disposed of without any order as to costs.