Research › Search › Judgment

Madhya Pradesh High Court · body

2012 DIGILAW 1171 (MP)

State of M. P. v. Ritesh Choudhary

2012-11-09

K.K.LAHOTI, VIMLA JAIN

body2012
ORDER 1. This appeal is directed against an order dated 15.11.2010 passed by learned Single Judge in Writ Petition No.16116/2010, by which writ petition filed by the respondent against the order of withdrawal of regular pay-scale was allowed and the order dated 29.1.2008 modifying the terms of appointment was quashed. The appellants-State has also filed an application I.A. No.13288/12 seeking condonation of delay. 2. Learned counsel for the respondent submits that the impugned order has been passed on the basis of earlier orders of the Single Bench against which writ appeals bearing No.325/2011 (State of M.P. v. Avtar Singh Markam) and Writ Appeal No.323/2011 (State of M.P. v. Pradeep Markam) were filed before the Division Bench, which were disposed of by a detailed order. It is submitted that this appeal may also be dismissed as it is also barred by time. 3. I.A. No.13288/12 for condonation of delay : Considering the reasons stated in the application (I.A. No.13288/12), which are supported by an affidavit, the same is allowed and the delay is condoned. Heard on admission. From the perusal of impugned order, we find that the writ petition was disposed of finally in view of the order passed in various writ petitions including Writ Petition No.2888/09 and other matters. The writ appeal preferred against the order in Writ Petition No.2888/2009 was registered as Writ Appeal No.323/11. While considering the controversy involved in the matter, the Division Bench has observed thus : “This intra-Court appeal under section 2(1) of Madhya Pradesh Uchcha Nyayalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005 arises out of the order dated 28.9.2010 passed by the learned Single Judge in Writ Petition No.2827/2009 whereby the learned Single Judge has allowed the petition filed by the respondent and directed payment of salary to the petitioner-respondent as stipulated in the initial order of appointment as a work charged contingency paid Hand Pump Mechanic. Shri Singh, learned Additional Advocate General for the State submits that as the circular dated 10.5.1984 of the State Government provides for payment of salary to a work charged contingency employee at Collector rate for a period of the first three years and only thereafter on the regular pay-scale prescribed in the schedule of the relevant rules, this aspect has not been correctly appreciated by the learned Single Judge. He further submits that in the advertisement due to inadvertence, it was mentioned that the appointment is to be made in the Work Charge Establishment in the scale of 3500-5200, that the selected candidates shall be kept on probation for a period of two years and that thereafter, they will be considered for appointment as regular employees in the department. It was also stipulated in the advertisement that the employees will be entitled for other benefits only after a period of two years. Hence, on account of the aforesaid mistake the respondent was paid salary in the scale instead of on Collector rates, though he is not entitled to salary of a regular employee in view of the aforesaid circular. We do not find force in this submission for the reason that in the advertisement it was clearly stipulated that the applications are invited for filling up 36 posts of SC/ST candidates, i.e., Backlog posts for the post of Hand Pump Mechanics. Clause 4 of the advertisement further provides that the appointment shall be made in the Work Charge Establishment and that the selected candidates shall be kept on probation for a period of two years and thereafter, they will be considered for appointment as regular employees in the department. In the instant case, learned Additional Advocate General appearing for the State has not pointed out any provisions of law, rules or notification to establish that the same would under all circumstances supersede the advertisement or the terms of the order of appointment, on the contrary, it is not in dispute that the respondent was given a letter of appointment as per terms of the advertisement and they worked on the post and were paid salary in the pay-scale of Rs.3500-80-4000-5200/-, and therefore, the learned Single Judge rightly found that the respondents-appellants cannot now change the service conditions without the consent and approval of the employees even if the initial payment of salary was by mistake. The learned counsel for the respondent also contends that the appellant cannot change the conditions of the appointment and service without giving notice or opportunity of hearing to the employees. In the peculiar facts and circumstances of the case, we not find any reason to differ with the view taken by the learned Single Judge. No other point is urged on behalf of the apellants. In the peculiar facts and circumstances of the case, we not find any reason to differ with the view taken by the learned Single Judge. No other point is urged on behalf of the apellants. The appeal being devoid of substance is hereby dismissed.” 4. As the controversy involved in this appeal is identical, this appeal is also disposed of finally in view of the order passed in Writ Petition No.323/11 (The State of M.P. v. Pradeep Markam), with no orders as to costs.