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2004 DIGILAW 941 (MP)

Nand Kumar Tomar v. State of M. P.

2004-11-25

A.K.SHRIVASTAVA

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ORDER A.K. Shrivastava, J. 1. By this petition, the petitioners are seeking the following reliefs : (i) That, the applicants be given seniority and pecuniary advantages in terms of Annexure P-2 with effect from 12-2-1988 accordingly; (ii) That, they be declared as deemed to have been appointed w.e.f. 12-2-1988; (iii) That, the 18% interest on the pecuniary advantages be awarded and this application be allowed with costs, (iv) That, any other relief deem fit in the present circumstances of this case be granted. 2. Before dealing with the rival contentions advanced by Learned Counsel for the parties, I would like to narrate certain unfolded facts which are as under:- (i) The posts of UDT (Upper Division Teacher) were required to be filled 50% by direct recruitment and 50% by promotion; (ii) post to recruit UDT was advertised and some of the LDTs (Lower Division Teachers) assailed selection process by filing Writ Petition before this Court which was registered as M.P.No. 3816/87; (iii) the present petitioners filed application for intervention; (iv) the Tribunal passed stay order and accordingly promotion order of applicants were not issued; (v) in between on account of establishment of Madhya Pradesh State Administrative Tribunal that petition was transferred to the Tribunal and was registered as O.A. No. 3350/88; (vi) later on, the petitions which were filed by LDTs including O.A. No. 3350/88 were dismissed; (vii) petitioners also filed O.A. No. 1983/91 which was dismissed because T.A. No. 3350/88 filed by LDTs was dismissed, however, no order on merit was passed by the Tribunal while dismissing the petitioners' original application; (viii) when respondents did not issue appointment letters to petitioners on the post of UDT, they filed Original Application No. 439/92 and the same was allowed on 11-6-1992 by observing that no person can be made to suffer by wrong order passed by the Court; (ix) the abovesaid order attained finality; and (x) in pursuance to the order passed by the Tribunal dated 11-6-1992 (O.A. No. 439/92) on 5-7-1992 appointment letters were issued to petitioners appointing them from the said date on the post of UDT. The contention of Shri Thakur, Learned Counsel for petitioners is that the appointment letters of petitioners were ready, however, on account of stay order passed by the Tribunal, the same were not issued and the petitioners were not appointed on the post of UDT. The contention of Shri Thakur, Learned Counsel for petitioners is that the appointment letters of petitioners were ready, however, on account of stay order passed by the Tribunal, the same were not issued and the petitioners were not appointed on the post of UDT. The contention is that had there been no stay order, they would have been appointed on the post of UDT on 12-2-1988. Thus, the contention of Learned Counsel is that though petitioner No. 1 Nand Kumar Tomar has been appointed on 27-6-1992 and petitioner No. 2 Shesadrinath Pandit has been appointed on 9-7-1992 and both of them joined on 6-7-1992 but their seniority should be given from 12-2-1988. 3. On the other hand it has been contended by Shri Nema, learned Government Advocate that in compliance to the order passed by Tribunal in O.A. No. 439/92 dated 11-6-1992 appointment letters were issued and since petitioners joined on 27-6-1992 hence, from this date seniority has been given to them. On these premised reasons, it has been contended that this petition be dismissed. 4. After having heard Learned Counsel for the parties, I am of the view that this petition deserves to be allowed. 5. It is no more in dispute that the appointment letters of petitioners were ready on 12-2-1988 and they were likely to be appointed from this date. It is also no more in dispute that on account of stay order passed in T.A. No. 3350/88 appointment letters could not be issued. In this view of the matter, the fate of this case would rest on the maxim Actus curiae neminem gravabit. Had there been no stay order, the petitioners would have been appointed on 12-2-1988. This fact cannot be marginalized and blinked away that all the petitions filed by LDTs were dismissed and later on, when petitioners Filed O.A. No. 439/92, the respondents gave appointment to them in compliance to the order passed by Tribunal dated 11-6-1992. In the said order, it has been observed by Tribunal that :- No person can be made to suffer by wrong orders passed by the Courts. Had the stay order not been passed the applicants would have secured their appointment orders on 12-2-1988. This could not be done on account of stay granted by the Tribunal. In the said order, it has been observed by Tribunal that :- No person can be made to suffer by wrong orders passed by the Courts. Had the stay order not been passed the applicants would have secured their appointment orders on 12-2-1988. This could not be done on account of stay granted by the Tribunal. I am in full agreement with the submission of Learned Counsel for the petitioners that Court's action or inaction should not prejudice any party and the above quoted maxim is fully applicable in the present factual scenario. Reliance which has been placed by Learned Counsel Shri Thakur in the case of M.P.S.R.T.C vs. Dashrath Singh, 1992 JLU 489 in that regard is also fully applicable in the present case. Since on account of stay order passed in abovesaid petition pending before Tribunal, the petitioners, who would have otherwise appointed on 12-2-1988, according to me, they cannot be held responsible. 6. In view of above, this petition succeeds and is hereby allowed and respondents are directed to give seniority to the petitioners on the post of UDT with effect from 12-2-1988 and the difference of wages be paid to them within a period of three months failing which it shall carry simple interest @ 5% per annum. Looking to the facts and surrounding circumstances, the parties are directed to bear their own costs.