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Madhya Pradesh High Court · body

2005 DIGILAW 839 (MP)

Halli Mysore Subbaraya Nagraj v. State of M. P.

2005-08-09

A.K.SHRIVASTAVA

body2005
Judgment ( 1. ) THIS petition was originally filed before the State Administrative Tribunal at Indore on 1-11-2001. However, on account of abolition of the Tribunal, this petition has been received by this Court for its adjudication. ( 2. ) BY this petition the petitioner has challenged the validity of Annexure A-7 dated 15-10-2001 issued by respondent No. 2 as well as order dated 16-10-2001 (Annexure A-8) passed by respondent No. 1 holding that the case of petitioner is not at par with that of Ashok Chandra Joshi and therefore the promotion order passed to the post of Assistant Engineer is erroneously given and the same has been withdrawn. ( 3. ) THE unfolded facts are that on 6-10-1967 vide Annexure A-1 the petitioner was appointed on the post of Overseer (Civil) on work charge establishment. The petitioner at the time of entering in his service was already holding diploma in Civil Engineering as he did this course in the year 1967. At the time of entry in his service, since there were no service rules in existence and the rules, namely, M. P. Irrigation (Non-Gazetted) Service Recruitment Rules, 1969 came into force in the year 1969, therefore the services of petitioner were regularised in accordance with the rules vide Annexure A-2, dated 1-6-1971. ( 4. ) THE contention of learned Counsel is that vide Annexure A-9, dated 4-6-1968 the Administrative Officer, of Chief Engineer, Irrigation Department informed the Superintending Engineer Irrigation Circle, Bhopal that appointment of work charge Overseer on regular establishment will be considered along with other work charge Overseer when such appointments will be made. Since at the relevant point of time there were no vacancies, it was directed that petitioner may be informed accordingly. ( 5. ) THE contention of Shri Naman Nagrath, learned Counsel is that similarly situated one co-employee Shri Ashok Chandra Joshi challenged the action of the respondents for not regularizing him to the post of Overseer. The stand of Shri Joshi was that post were available. Hence Ashok Chandra Joshi filed a civil suit in the court of IVth Judge Class II, Bhopal which was registered as Civil Suit No. 175-A/83 (Ashok Chandra Joshi v. State of M. P. and one other) and it was decreed on 24-2-1986 directing respondents to regularise the services of Shri Joshi with effect from 3-3-1967. Hence Ashok Chandra Joshi filed a civil suit in the court of IVth Judge Class II, Bhopal which was registered as Civil Suit No. 175-A/83 (Ashok Chandra Joshi v. State of M. P. and one other) and it was decreed on 24-2-1986 directing respondents to regularise the services of Shri Joshi with effect from 3-3-1967. Since Shri Joshi was benefitted by the judgment and the case of the petitioner was akin to him, he submitted representation which was allowed vide Annexure A- 3, dated 27-7-1990 and his services on the post of Sub Engineer (earlier the name was Overseer) were regularised with effect from 17-1-1968. Thereafter the seniority was also given to him with effect from the same date 17-1-1968 vide Annexure A-4, dated 27-7-1990. The contention of Shri Nagrath is that thereafter the petitioner was benefitted by further promotion to the post of Assistant Engineer vide order dated 5-11-1990 (Annexure A-5 ). The petitioner was further benefitted by benefitting him with the pay-scale of Executive Engineer vide Annexure A-6, dated 4-12-2000. All of a sudden, on 15-10-2001 (Annexure A-7) the Engineer-in-Chief, Water Resources Department issued an order holding that the case of petitioner is not at part with that of Ashok Chandra Joshi because in the appointment order of Shri Joshi a condition was stipulated that whenever he will pass the diploma course in Civil Engineering, his services will be regularised. But, this condition has not been embodied in the appointment order of the petitioner and therefore the case of petitioner is quite distinguishable from that of Shri Joshi and eventually the promotion order which was given with effect from 1968 was withdrawn. Thereafter vide Annexure A-8, dated 16-10-2001 further promotion of the petitioner was also cancelled by the State Government. Hence this petition. ( 6. ) I have heard Shri Naman Nagrath, learned Counsel for the petitioner and Shri Ashok Agrawal, learned Govt. Advocate for respondents. ( 7. ) HAVING heard learned Counsel for the parties, I am of the view that this petition deserves to be allowed. ( 8. ) THE facts are not at all in dispute. Hence this petition. ( 6. ) I have heard Shri Naman Nagrath, learned Counsel for the petitioner and Shri Ashok Agrawal, learned Govt. Advocate for respondents. ( 7. ) HAVING heard learned Counsel for the parties, I am of the view that this petition deserves to be allowed. ( 8. ) THE facts are not at all in dispute. The Engineer-in-Chief has withdrawn the regularization order of the petitioner which was given effect to him in the year 1968 on the simple ground that the case of petitioner is not akin to that of Shri Joshi because a condition was stipulated in the appointment order of Shri Joshi that whenever he will pass the diploma in Civil Engineering his services will be regularised on the post of Overseer. According to the Engineer-in-Chief since this condition is lacking from the appointment letter of the petitioner, therefore, his regularisation was wrongly given with effect from 1968 and on this ground the regularisation of the petitioner with effect from 1968 was withdrawn vide Annexure A-7, dated 15-10-2001. Eventually, the State Government has withdrawn the further promotion of the petitioner on that ground vide Annexure A-8, dated 16-10-2001. Both these orders are impugned in this petition. ( 9. ) THIS fact cannot be marginalized and blinked away and which goes to the root of the matter that undisputedly when the petitioner knocked the door of his employer to provide him service and asked for his appointment on the post of Overseer in the year 1967 and when, vide Annexure A-1, dated 6-10- 1967 he was appointed on the said post of Overseer (Civil), he was already having and enjoying the diploma in Civil Engineering. Thus, according to me, the case of petitioner is rather on better footing than that of Ashok Chandra Joshi. Because, at the time of entering in the service on the post of Overseer (Civil) Shri Joshi was not having the qualification of Diploma in Civil Engineering and a condition was stipulated in his appointment letter that whenever he will pass the diploma course, his services will be regularised on the post of Overseer (Civil ). Because, at the time of entering in the service on the post of Overseer (Civil) Shri Joshi was not having the qualification of Diploma in Civil Engineering and a condition was stipulated in his appointment letter that whenever he will pass the diploma course, his services will be regularised on the post of Overseer (Civil ). Since, the petitioner was already enjoying the diploma in Civil Engineering when he was appointed vide Annexure A-1, dated 6-10-1967 on the post of Overseer (Civil), the view of this Court is that the case of petitioner was not akin to that of Shri Joshi but he was having on better footing. ( 10. ) ON this ground the impugned order Annexure A-7, dated 15-10-2001 can not be allowed to remain stand and the same is hereby quashed. Eventually, the next order Annexure A-8, dated 16-10-2001 which has been passed by the State Government, Ministry of Water Resources Department cancelling the further promotion of the petitioner also can not be allowed to remain stand and I have no option except to quash the said order also. ( 11. ) THE action of respondent can be said to be arbitrary for the another reason that one fine morning when Engineer-in- Chief was taking tea on his table, he issued an order de-regularising the petitioner from the post of Overseer after 11 years without even affording an opportunity of hearing to the petitioner. The said action of the State Government is also equally arbitrary in nature because while issuing Annexure A-8, dated 16-10-2001 further promotion order of the petitioner has been cancelled without affording any opportunity of hearing to him, though he served for several years on the promoted post. The action of the respondents runs contrary to the maxim audi alteram partem. For this additional reason also the impugned order Annexure A-7, dated 15-10-2001 and Annexure A-8, dated 16-10-2001 can not be allowed to remain stand and the same are quashed. ( 12. ) THE net result is that service status of the petitioner is restored earlier to the date of the issuance of Annexure A-7, dated 15-10-2001 and Annexure A-8, dated 16-10-2001. ( 13. ) THE petition is allowed with costs. Counsel fee Rs. 2000/-, if pre-certified.