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2011 DIGILAW 200 (MP)

State of M. P. v. Suresh Kumar Upadhyaya

2011-02-11

INDRANI DATTA, S.N.AGGARWAL

body2011
JUDGMENT I. This writ appeal under section 2 (I) of the M.P. Uchcha Nyayalaya (Khand Nyayapeeth Ko Appeal) Adhiniyam, 2005 preferred by the appellants is directed against the impugned order of the learned Single Judge dated 27.9.2010 in Writ Petition No. 1720/10 (s) allowing the writ petition in favour of the respondent by quashing the impugned orders (Annexure P-1 and P-2 to the writ petition) pertaining to the respondent. 2. Briefly stated, the facts of the case relevant for the disposal of this writ appeal are that the respondent is working as Forest Ranger 10 Lok Vaniki Mission under the Forest Department of the State of Madhya Pradesh. He was granted exemption from his posting in the 'working plan' by value of order of the appellants dated 11.8.1999, Annexure P-7 to the writ petition at page 43 of the paper book. This exemption from his posting in the 'working plan' was granted to him in terms of policy of the appellants contained in office memorandum No. F-3-428/94/10-1 dated 22.3.1995. Lateron, the appellants vide office order dated 5.10.2005, Annexure A/2 at page 13 of the paper book, withdrew the benefit of exemption granted to the forest rangers from their posting in the 'working plan' in terms of their earlier policy dated 22.3.1995, referred above. Pursuant thereto, the appellants vide orders (Annexure P-1 and P-2 to the writ petition) posted the respondent in the 'working plan', aggrieved wherefrom the respondent had filed a writ petition being W.P.No. 1720/10 (s) which was allowedhy the learned Singie Judge vide impugned order mainly for the reason that the exemption from posting in the 'working plan' already granted to the forest rangers cannot be withdrawn retrospectively and the policy of the appellants not to grant exemption to the forest rangers in terms of their earlier policy dated 22.3.1995 would apply only prospectively. 3. The learned Single Judge at the Main Seat relying on the impugned order of the learned Single Judge of the Bench at Gwalior dated 27.9.2010 allowed two writ petitions of two other similarly situated forest rangers namely Sudheer Singh and Ram Lal Sharma being Writ Petitions bearing numbers 7121 and 7672 of 2010 respectively vide order dated 12.10.2010. 3. The learned Single Judge at the Main Seat relying on the impugned order of the learned Single Judge of the Bench at Gwalior dated 27.9.2010 allowed two writ petitions of two other similarly situated forest rangers namely Sudheer Singh and Ram Lal Sharma being Writ Petitions bearing numbers 7121 and 7672 of 2010 respectively vide order dated 12.10.2010. The appellants aggrieved by the said order of the learned Single Judge at the Main Seat preferred a writ appeal bearing WA 1320/10 which was dismissed by the Division Bench headed by Hon'ble the Chief Justice vide order dated 5.1.2011. While dismissing the said writ appeal of the appellants the Division Bench took note of the orders passed by the appellants in the cases of forest rangers S/s Anoop Parashar and P.K. Khatri in whose cases the appellants themselves have recalled their order of posting in the 'working plan' on the ground that their policy of 5.10.2005 withdrawing the exemption from posting in 'working plan' would not govern cases where exemption from posting in 'working plan' has already been granted by the Department to the forest rangers. Relevant portion of the order of the Division Bench at the Main Scat is extracted below: "The learned counsel appearing for the State submits that the representation of the respondent No. 1 had rightly been rejected by the authorities as the exemption from posting in the working plan had subsequently been withdrawn by a policy decision of the State Government dated 5.10.2005 and, therefore, the petitioner cannot claim any exemption from posting in the working plan area. However, on a specific query being made, the learned Government Advocate appearing for the appellant/State. does not deny the fact that Shri Anoop Parashar and Shri P.K. Khatri have been granted exemption from posting in the working plan subsequent to the policy decision of the State dated 5.10.2005 on the ground that it does not have a retrospective effect. The learned counsel for the appellant/State has failed to point out as to how the case of Shri Anoop Parashar and Shri P.K. Khatri are different from that of the petitioner. Therefore, on the ground of parity the petitioner/respondent is entitled to receive the same and similar treatment which has been extended to other similarly placed persons/employees. The learned counsel for the appellant/State has failed to point out as to how the case of Shri Anoop Parashar and Shri P.K. Khatri are different from that of the petitioner. Therefore, on the ground of parity the petitioner/respondent is entitled to receive the same and similar treatment which has been extended to other similarly placed persons/employees. The appellants/State cannot now contend after extending the benefits to other persons that the same cannot be applicable in the case of petitioner/respondent without showing any reasonable basis for such differential treatment. We. therefore, do not find any error in the order of the learned Smgle Judge." 4. Shri Khedkar, learned Government Advocate appearing on behalf of the appellants/State has vehemently argued that the above referred judgment of the Division Bench in Writ Appeal No. 1320/10 is distinguishable and would not govern the decision of the present appeal. Relying on two judgment of Hon'ble the Supreme Court in Directorate of Film Festivals v. Gaurav Ashwin Jaiin, AIR 2007 SC 1640 and Chandigarh Administration and another v. Jagjit Singh and another; AIR 1995 SC 705 he has argued that the respondent could not have been granted benefit of an illegal or unwarranted orders in the cases of S/s Anoop Parashar and P.K. Khatri passed by the appellants. According to Mr. Khedkar in view of the above judgments of the Hon'ble Supreme Court the High Court cannot compel the appellants to repeat the illegality over again and again since orders passed by the administrative authorities do not constitute precedents for their application to the similarly situated persons. 5. We have perused both these judgments of the Hon'ble Supreme Court and have given our thoughtful consideration to the arguments advanced on behalf of the appellants, but we are sorry we cannot persuade ourselves to agree with the submission of Shri Khedkar, learned Government Advocate appearing on behalf of the appellants/State for the reasons to follow hereinafter. 6. It is true that respondent cannot be granted any reliefby the Court on the basis of an illegal or unwarranted order passed by the appellants in cases of other similarly situated employees. However, the question that arises for our consideration in this appeal is whether orders in cases of S/s Anoop Parashar, P.K. Khatri and Radhacharan Sharma on which reliance is placed by the respondent can be said to be illegal or unwarranted. However, the question that arises for our consideration in this appeal is whether orders in cases of S/s Anoop Parashar, P.K. Khatri and Radhacharan Sharma on which reliance is placed by the respondent can be said to be illegal or unwarranted. It is not disputed by Shri Khedkar, learned Government Advocate appering on behalf of the appellants that orders in cases of S/s Anoop Parashar, P. K. Khatri and Radhacharan Sharma, who all three are forest rangers working in the Forest Department with the appellants, were passed subsequent to coming into force of their policy dated 5.10.2005. Order in case of Anoop Parashar is dated 15.1.2008 and was annexed as Annexure P-3 to the writ petition; in case of Shri Radhacharan Sharma is dated 29.3.2008 and was annexed as Annexure P-4 to the writ petition and order in case of P.K. Khatri is dated 1.8.2009 and has been placed before us at the time of hearing of the appeal. It is suffice to refer to only one of these three orders as they all are verbatim the same. Order dated 15.1.2008 in case of Anoop Parashar (Annexure P-3 to the writ petition at page 38 of the appeal paper book) is extracted below: Øekad ,Q 3&125@2004@10&1 iz/kku eq[; ou laj{kd dk;kZy; ds vkns'k Øekad@LFkk@l@759 fnukad 11-12-2007 ds ljy Øekad 5 ij vafdr Jh vuwi ikjk'kj] ifj{ks= vf/kdkjh cq<sjk lkekU; ‘;kSiqj] lkekU; ou eaMy dh dk;Z vk;kstuk o`Rr cSrwy esa inLFkkiuk dh xbZ gSA iwoZ uhfr;ksa ds vk/kkj ij ;fn fdlh dks dk;Z vk;kstuk djus ds nkf;Ro ls NwV ns nh xbZ gS rks muds uke dk;Z vk;kstuk esa Hkwry{kh izHkko ls izLrkfor ugha gksaxsA Jh ikjk'kj dks dk;Z vk;kstuk esa NwV nh tk pqdh gs] tks tkjh gksxhA dk;Z vk;kstuk uhfr o"kZ&2005 Hkwry{kh izHkko ls ykxw ugha gksxhA vr% jkT; ‘kklu ,rn~ }kjk Hkh vuwi ikjk'kj dk ou {ks=Qy dk dk;Z vk;kstuk cSrwy dh xbZ inLFkkiuk vkns'k fujLr djrk gSA 7. It is not the case of the appellants that the above referred orders in the cases of S/s Anoop Parashar, P.K. Khatri and Radhacharan Sharma are illegal or unwarranted orders. There is no ground taken by the appellants in the present appeal to allege that these orders passed by them subsequent to the policy dated 5.10.2005 are in any manner unwarranted or illegal. There is no ground taken by the appellants in the present appeal to allege that these orders passed by them subsequent to the policy dated 5.10.2005 are in any manner unwarranted or illegal. It may be noticed from the above extracted order in case of Shri Anoop Parashar that the appellants themselves have taken a policy decision that their policy dated 5.10.2005 pursuant to which exemption from posting in the 'working plan' was withdrawn shall apply prospectively and not retrospectively. Admittedly, in the present case, the respondent was already granted exemption from his posting in the 'working plan' prior to the guidelines issued by the appellants vide their policy circular dated 5.10.2005 referred above. We are informed that orders passed by the appellants in the cases of S/s. Anoop Parashar, P.K. Khatri and Radhacharan Sharma on 15.1.2008, 29.3.2008 and 1.8.2009 respectively have already been implemented by them. We fail to understand that if the appellants themselves have taken a decision, that in cases of S/s Anoop Parashar, P.K. Khatri and Radhacharan Sharma to apply their policy dated 5.10.2005 prospectively and not retrospectively, how they can treat the respondent differently. We are of the considered view that the appellants are liable to extend the same ancl similar treatment which has been extended by them to S/s Anoop Parashar, P.K. Khatri and Radhacharan Sharma who all three are smilarly situated like him. In our opinion, the judgments of the Hon'ble Supreme Court in the case of Gaurav Ashwin Jain's case and in Jagjit Singh's case (supra) are not at all applicable to the facts and circumstances of the present case. 8. In view of the foregoing, we do not find any merit in this appeal which fails and is herehy dismissed but with no orders as to costs.