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Madhya Pradesh High Court · body

2011 DIGILAW 865 (MP)

Mangla Supe v. M. P. State Electricity Board

2011-08-03

K.K.TRIVEDI

body2011
ORDER K.K. Trivedi, J. 1. This writ petition under Article 226 of the Constitution of India has been filed by the petitioner ventilating her grievance that respondents have not regularized the services of the petitioner soon after completion of 2 years of service on the work charge contingency establishment on which she was given the compassionate appointment, in violation of the circular of the respondents and on account of her delayed regularization done in the year 2005, she has been put to suffer financial loss. It is contended by the petitioner that the circulars were issued specifically providing that such regularization was required to be done within a period of 2 years and in fact this was done in respect of one Smt. Gulab Bai Soni but the similar benefit was not extended to the petitioner, as a result she was denied certain benefits of reimbursement of the tuition fees paid by her for the higher studies of her children. Since such prayers were rejected, the petitioner was required to file the present writ petition. 2. Brief facts giving rise to this petition are that the late husband of the petitioner was in the employment of Madhya Pradesh Electricity Board (herein after referred to as 'Board'). The husband of the petitioner met with a train accident in the year 1990 and died on 27-9-1990 leaving behind the petitioner, two sons and a daughter. The petitioner being the widow and dependant of late Shri Rajendra M. Supe, submitted an application for grant of compassionate appointment. The said application was kept pending for about 8 years by the Board and ultimately the same was allowed in the year 1998 when compassionate appointment was granted to the petitioner as Lower Division Clerk/Office Assistant Grade-III in the minimum of the pay scale prescribed for the said post with a specific condition that the petitioner was appointed in the work charge contingency establishment initially for a period of 2 years and on rendering satisfactory services, the petitioner will be regularized. Such an order was issued on 13-1-1998. It is the case of the petitioner that she joined the services, started working but her claim was not considered for regularization. Such an order was issued on 13-1-1998. It is the case of the petitioner that she joined the services, started working but her claim was not considered for regularization. It is further contended that the Board has issued a circular on 27-2-1982 wherein it was categorically provided that the widows of the deceased employees of the Board, who are given compassionate appointment as Office Assistant Grade-III will not be required to undergo any training and will be regularized after a period of 2 years without insisting on passing the recruitment test, subject to their services being satisfactory. It was also made clear in this circular that the aforesaid relaxation as given was only for the widows and not for the children or dependants of deceased Board employee, who were granted the benefit of appointment on compassionate ground. 3. Yet another circular was issued by the respondents in the year 1997 wherein it was provided that those who were appointed in the work charge contingency establishment, were to be regularized on completion of 2 years of service. It is the case of the petitioner that though she has completed successfully and satisfactorily 2 years of service in the month of January, 2000, yet she was not regularized. A similarly situated person namely one Smt. Gulab Bai Soni was regularized in service. It is contended by the petitioner that she was, thus, discriminated in hostile manner. Later on the order of regularization was issued in respect of petitioner in the year 2005 precisely on 30-9-2005 but she was granted the benefit of regularization from the date of order passed by the authorities and not from the date she has completed 2 years of service. However, this regularization was again done in terms of the circular issued by the Board. Again the appointment was made on probation of 2 years and it was said that in case during the period of probation if the services are not found satisfactory, the period of probation can be extended. 4. It is contended by the petitioner that though there was circular still in force, yet the instructions of the Board were violated, the regularization of service of the petitioner with retrospective effect was denied. 4. It is contended by the petitioner that though there was circular still in force, yet the instructions of the Board were violated, the regularization of service of the petitioner with retrospective effect was denied. In fact this was done with a mala fide intention since the petitioner has made a claim for reimbursement of the tuition fees, which she paid for the higher studies of her children. It is contended by the petitioner that there was a policy made by the State Government to reimburse the tuition fees paid by its employees for the higher studies of the children. Such a circular was issued in the year 1973. The said circular was adopted by the Board in the year 1975. It is contended by the petitioner that the State Government has withdrawn the circular of reimbursement of tuition fees paid by its employees to the educational instructions by order dated 2-9-2002. However, the Board independently took a decision to withdraw such circular by its circular dated 22-6-2004. In circular dated 1-11-2004 it is categorically said that the employees, who have paid tuition fees of their children before 24-2-2004, in their cases, as per the Board Circular, reimbursement of tuition fees will be made to such employees. However, despite this, the application submitted by the petitioner for reimbursement of the tuition fees paid by her for her children has been rejected only on the ground that the petitioner was not regularized or was the regular employee of the Board when she paid the tuition fees for the study of her children. This being so, it is contended that because of lapses on the part of the respondents, she has been put to great financial loss and, therefore, she is required to file the present writ petition. 5. The respondents were called upon to submit the return and they have made the statement in the return that the entire claim made by the petitioner in her writ petition is misconceived. They have contended that when the case of the petitioner was to be considered for regularization, reorganization of the State of Madhya Pradesh has taken place and a new State of Chhattisgarh was established. As a result of reorganization of the States, the Board was also required to be reorganized and there was bifurcation of Madhya Pradesh Electricity Board into Madhya Pradesh State Electricity Board and Chhattisgarh State Electricity Board. As a result of reorganization of the States, the Board was also required to be reorganized and there was bifurcation of Madhya Pradesh Electricity Board into Madhya Pradesh State Electricity Board and Chhattisgarh State Electricity Board. The Board took a policy not to regularize the services of all those, who were appointed on compassionate ground on work charge contingency establishment until further orders vide order dated 3-10-2001. Because of such policy made by them, the Board had not considered the case of regularization of the petitioner and, thus, nothing wrong was committed by the respondent Board in not regularizing the petitioner with retrospective effect. It is further said that dispute came before the Court, which went before the Lok Adalat and award has been passed by the Lok Adalat for regularization of work charge employees with prospective effect only. This being so, it is contended that since the petitioner was not a regular employee of the Board at the relevant time when she paid the tuition fees for the higher studies of her children, there was no question of reimbursement of the said tuition fees amount and as such the claim of the petitioner was rightly rejected. Thus, it is tried to emphasize by the respondents that because of the making of some policy, they did not grant the benefit of regularization to the petitioner with retrospective effect and by doing so, they have not violated any fundamental right of the petitioner. It is contended that since compassionate appointment was not a right of the petitioner nor the same could be claimed as of a right, if compassionate appointment was subsequently regularized by the respondents with prospective effect, no right of the petitioner was violated. 6. Controverting the averments made in the return by the respondents, rejoinder has been filed by the petitioner and various facts have been placed on record. It is said that the respondents have utterly failed to meet out the allegation of discrimination. The petitioner has further pointed out that the regularization of the petitioner was made on the basis of only those 2 years of service, which she has put in after her initial appointment in work charge contingency establishment in the year 1998. It is said that the respondents have utterly failed to meet out the allegation of discrimination. The petitioner has further pointed out that the regularization of the petitioner was made on the basis of only those 2 years of service, which she has put in after her initial appointment in work charge contingency establishment in the year 1998. It is not that, that the case of the petitioner was considered on the basis of the service record of recent post and, therefore, only after being satisfied with the service rendered by the petitioner, she was being regularized with prospective effect. It is further contended that the respondents have not stated the true facts with respect to the other claims made by the petitioner. 7. The respondents have tried to meet out the allegations made in the rejoinder by filing an additional return but again nothing more is placed on record except some of the circulars and the policy of compassionate appointment, which was made on 30-1-1997. However, again the same facts have been reiterated and it is contended that petition being based on misconceived facts, be dismissed. 8. Heard the Counsel of the parties at length and minutely perused the record of the case. 9. A perusal of the circular of the Board filed along with the writ petition will make it abundantly clear that compassionate appointment was altogether a different scheme made by the respondents. A perusal of the circular issued on 27-2-1982 will further make it clear that the regularization of an appointee who has been granted the benefit of compassionate appointment was under the active consideration of the Board for a long time and ultimately it was decided that soon after 2 years of employment as work charge establishment employee any such widow of an employee of the Board, who has been granted the benefit of compassionate appointment, her case be screened for grant of benefit of regularization and only requirement was the satisfactory service rendered by such employee within the aforesaid 2 years period. Thus, if the circular placed on record as Annexure P-2, as issued by the respondents on 27-2-1982, is read with this object, it will be clear that the regularization was to be done soon after the widow of an employee, who has been granted compassionate appointment, has completed 2 years service in work charge contingency establishment. Thus, if the circular placed on record as Annexure P-2, as issued by the respondents on 27-2-1982, is read with this object, it will be clear that the regularization was to be done soon after the widow of an employee, who has been granted compassionate appointment, has completed 2 years service in work charge contingency establishment. Nothing more could be interpreted out of the said circular of the Board. Thus, it was the duty of the respondents to consider the case of the petitioner for regularization on the regular establishment soon after her completion of 2 years of appointment in work charge contingency establishment. Admittedly the petitioner was granted compassionate appointment on 13-1-1998 and, thus, she has completed the period of 2 years in work charge contingency establishment in the month of January, 2000. Till that time there was no ban imposed by the Board nor there was any question of reorganization of the Board on account of reorganization of the State. Process of reorganization was started sometime in the month of April, 2000 and the reorganization had taken place w.e.f. 1-11-2000. Before this date, there was ample opportunity to consider the case of the petitioner and issue an order of regularization in her respect by the Board. 10. The petitioner has very categorically contended in paragraph 5.4 of her petition that though she was appointed on 12-1-1998 but she has been regularized with effect from 2005 whereas in the case of Smt. Gulab Bai Soni, although she was appointed on 16-1-1998, the Board has regularized her services with effect from 16-1-2000 by order dated 25-8-2000. The said order itself has been placed on record by the petitioner as Annexure P-4 with the writ petition. In the return of the respondents, though various facts have been pleaded but while giving reply to this particular paragraph, only this much has been said that the petitioner was not regularized earlier because of the ground that there was a ban imposed. The case of Smt. Gulab Bai Soni was dealt with by another office of Superintending Engineer (Civil) T & D, Jabalpur, prior to imposition of the ban by the Board and accordingly her service was regularized by that office on 25-8-2000. It is the case of the respondents that they imposed ban on regularization only on 9-10-2001. 11. The case of Smt. Gulab Bai Soni was dealt with by another office of Superintending Engineer (Civil) T & D, Jabalpur, prior to imposition of the ban by the Board and accordingly her service was regularized by that office on 25-8-2000. It is the case of the respondents that they imposed ban on regularization only on 9-10-2001. 11. Thus, it is clear that the respondents were not vigilant about the consideration of the case of the petitioner for regularization and because in one office prompt action was taken, the respondents are taking shelter of a circular/ban, which was imposed after much time of the reorganization of the Board, which took place on 1-11-2000. Therefore, such a stand of the respondents cannot be accepted at all. If in one office of the respondents, proper actions were taken, they cannot say that such officers, who have granted the regularization to Smt. Gulab Bai Soni, were not working properly. On the other hand the work in the office of the respondents where the petitioner was appointed, was not being done in proper manner, which has caused immense loss to the petitioner. 12. The factual aspect with respect to the claim of the petitioner is required to be considered. It is not the case, as is canvassed by the respondents, that the petitioner was claiming compassionate appointment in the regular establishment. The petitioner was already been granted compassionate appointment on the post of Office Assistant Grade-III in the work charge contingency establishment. The claim of petitioner was with respect to the regularization of the service of the petitioner on the post of Office Assistant Grade-III. Therefore, the contentions so raised by the respondent Board that the petitioner in fact was claiming compassionate appointment on the post of Office Assistant Grade-III, is not justified. What the petitioner was in fact claiming was the enforcement of the circular of the Board with respect to regularization of her work charge contingency establishment. Therefore, there is a complete fallacy in the stand taken by the respondents and in the considered opinion of this Court, such a stand of the respondents cannot be accepted at all. 13. What the petitioner was in fact claiming was the enforcement of the circular of the Board with respect to regularization of her work charge contingency establishment. Therefore, there is a complete fallacy in the stand taken by the respondents and in the considered opinion of this Court, such a stand of the respondents cannot be accepted at all. 13. The stand is further taken by the respondents that some matters were referred to the Lok Adalat of this Court where a settlement had taken place between the Board and its employees where it was agreed that regularization of employees of Board will be prospective and not with retrospective effect. Thus, it is said by the Board that because of such award also petitioner cannot claim regularization with retrospective date. Such a stand is liable to be rejected outrightly, because the petitioner was not a party to such a claim nor her petition was referred to Lok Adalat of this Court. Secondly what were the claims in such cases which were sent to the Lok Adalat and whether the enforcement of circular was sought in those petitions or not has not been stated. In fact such a stand of respondent Board appears to be a face saving device and nothing more. Therefore, such a stand is also liable to be rejected. 14. Having dealt with the question with respect to the consideration of the claim of the petitioner, now it is required to be seen whether any prejudice was caused to the petitioner on account of delayed regularization in service. The fact remains that the petitioner was claiming the benefit of reimbursement of tuition fees, which she paid for the higher studies of her children. The Board has already made a policy to this effect, commensurate to the policy made by the State Government way back. Though subsequently the policy was withdrawn by the State but the Board has withdrawn the said policy with certain condition thereafter by a circular. Again by making the policy to withdraw the earlier policy of reimbursement of the tuition fees of the children of the employees of the Board, certain privileges were extended to those employees. The said circular of the Board is placed on record by the petitioner as Annexure P-9. Again by making the policy to withdraw the earlier policy of reimbursement of the tuition fees of the children of the employees of the Board, certain privileges were extended to those employees. The said circular of the Board is placed on record by the petitioner as Annexure P-9. A perusal of this circular will indicate that the Board on its own had decided to withdraw the circular of the State Government with immediate effect from the date of issuance of the circular subsequently. The said circular was issued on 22-6-2004. The Board has decided that those employees who have paid the tuition fees of their children up to the date of withdrawal of the circular, their claims of reimbursement would be granted and the tuition fees paid by them would be refunded. This was categorically indicated in the circular dated 1-11-2004 (Annexure P-10). However, since the circular was applicable only for those, who were regular employees and till that time order of regularization was not issued in respect of the petitioner, it is said that her claim was not to be considered at all and her application was rejected. As is submitted by the petitioner, had she been regularized with retrospective effect, she would have become entitled to reimbursement of this amount of tuition fees for her children paid for higher education. Thus, it is clear that because of the lapses on the part of the respondents of not regularizing the petitioner with proper date or with retrospective effect, a prejudice has been caused to the petitioner and she has been put to financial loss. 15. This being so, looking to the law well settled in this count, a model employer like respondent Board was not authorized to do so that too on the grounds of lapses on the part of the officials of the respondent Board. It was not that the petitioner was required to do something or to initiate action for her regularization. What she was required to do was to render satisfactory service so that she may be regularized in the regular establishment of the Board. The petitioner has fulfilled her part whereas the respondent authorities have utterly failed to consider the case of the petitioner for regularization soon after she completed the period of 2 years appointment in the work charge contingency establishment. The petitioner has fulfilled her part whereas the respondent authorities have utterly failed to consider the case of the petitioner for regularization soon after she completed the period of 2 years appointment in the work charge contingency establishment. Thus, it was nothing but the folly on the part of the officials of the respondents on account of which the petitioner has been put to loss not only in the service career but a financial loss is also caused to her. Such an action of the respondents cannot be treated as justified on such lame excuses which have been shown in the return. 16. Another important aspect is that in the order of appointment of petitioner the fact was recorded that she will continue in the employment only on rendering the satisfactory services and it has been categorically said by the respondents that the petitioner was kept in the employment continuously. Thus, it is clear that the petitioner has rendered satisfactory service when she was initially appointed in the work charge contingency establishment. That being so, only on a lame excuse that some policy was made and much after the date of completing the 2 years satisfactory service, orders were issued by the respondents, she was not to be granted regularization with prospective effect. It is not the case of the respondents that the services of the petitioner were not satisfactory at the relevant point of time when her claim was to be considered for regularization or granting her benefit of regular employee in the regular establishment of the Board and she was granted benefit of regularization only when she rendered satisfactory services. From this it is clear that only those 2 years of service, which the petitioner has rendered at initial stage as work charge contingency employee, were taken into account for granting regularization to the petitioner. Thus at any rate, the petitioner was not to be denied the benefit of regularization from the date she had completed 2 years of service after her initial appointment made on 13-1-1998. 17. Consequently, this writ petition is allowed. Respondents are directed to grant the benefit of regularization to the petitioner in service with effect from the date she has completed 2 years of satisfactory service from the date of her initial appointment. In the order dated 30-9-2005, the date of regularization of the petitioner being erroneous is quashed. 17. Consequently, this writ petition is allowed. Respondents are directed to grant the benefit of regularization to the petitioner in service with effect from the date she has completed 2 years of satisfactory service from the date of her initial appointment. In the order dated 30-9-2005, the date of regularization of the petitioner being erroneous is quashed. Instead she be treated as regularized with effect from 13-1-2000. The petitioner will be entitled to grant of reimbursement of tuition fees paid by her for her children, treating her as regular employee. Consequently, such orders passed by the respondents rejecting grant of such benefits to the petitioner so communicated vide memo dated 4-3-2006 (Annexure P-11 to the petition) are hereby quashed. Accordingly, the respondents will regularize the services of the petitioner with effect from 13-1-2000, grant her all the service benefits from the said date, calculate the arrears of salary etc. as also reimbursement amount of the tuition fees for higher studies paid by the petitioner for her children and pay all such amount to the petitioner within a period of 3 months from today. 18. The writ petition is allowed to the extent indicated hereinabove but with no order as to costs.