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Madhya Pradesh High Court · body

2013 DIGILAW 1028 (MP)

Vyankatacharya Dwivedi v. State of M. P.

2013-08-29

K.K.TRIVEDI

body2013
JUDGMENT : This Petition under Article 226 of the Constitution of India is directed seeking a Writ of Mandamus commanding the respondents to fix the seniority of petitioner w.e.f 24-4-1980 the initial date of appointment in service and to correct the gradation seniority list. It is contended by the petitioner that he took part in the selection for appointment on the post of Veterinary Assistant Surgeon which was advertised by the Public Service Commission in the year 1979-80. On account of selection by the Public Service Commission, an order was issued by the Director Veterinary Services on 24-4-1980 appointing the petitioner on the said post. The name of the petitioner was mentioned at serial No. 52 of the said order and he was posted in Sagar Division. The petitioner joined the services and started working. However, on account of his personal reason he tendered a resignation on 30th October, 1980 giving a month's notice stating that he will relinquish the post on 30th November, 1980. Nothing was intimated to the petitioner whether his resignation was accepted or not. On 12-4-1982 the petitioner made an application seeking withdrawal of his resignation as the same was not accepted by that time nor any order was communicated to the petitioner. Since such an application was made, an order of appointment was issued on 28th August, 1984 appointing the petitioner on ad hoc basis for a period of six months as Veterinary Assistant Surgeon and the petitioner was posted in Shahdol District. Though it was mentioned in the order that the petitioner was required to appear in the selection afresh, but the said order was not to be treated as an order of ad hoc appointment as in fact the petitioner should have been reinstated in service in terms of withdrawal of his resignation. 2. The petitioner took part in the selection initiated by Public Service Commission, was again selected and was appointed vide order dated 29-11-1986 on regular basis as Veterinary Assistant Surgeon. Subsequently when the gradation seniority list was issued, the initial date of appointment of the petitioner was shown to be the first appointment i.e. the appointment made in the year 1980 and thereby seniority of the petitioner was maintained. However, no change was made in the seniority of the petitioner even when an order of confirmation was issued in his respect on 28th May, 1990. However, no change was made in the seniority of the petitioner even when an order of confirmation was issued in his respect on 28th May, 1990. The petitioner was said to be confirmed w.e.f. 10-12-1988. Subsequently a gradation seniority list in the year 1997 was issued and in the said list no details of petitioner were shown, therefore, the petitioner was of the opinion that his seniority is properly maintained. However, seeking redressal in respect of fixation of seniority the representation was made by the petitioner which was referred to the higher authorities. Nothing was done, the petitioner was not given the seniority from the date of his first appointment, therefore, after making the last representation in the year 2008 the writ petition was required to be filed. On the basis of these allegations the petitioner has sought the relief in the following manner : -- 1. To call for the relevant record pertaining to subject-matter for kind perusal of this Hon'ble Court. 2. To direct the respondents to consider his representation for counting the earlier service from the date of initial appointment P/l and as per gradation list P/l declaring the period 2-12-1980 to 14-9-1984 i.e. 3 years and 8 months as dies non placing him in correct place in the gradation list maintaining the seniority for all purposes. 3. Any other relief under Madhya Pradesh Government Service (Temporary and Contingency Permanent Services) Rules, 1960 which this Hon'ble Court deems fit and proper may also be passed together costs of petition. 3. Upon issuance of the notice of this writ petition, the respondents have filed their return and have categorically contended that the petitioner relinquished his post on which he was appointed vide order dated 24-4-1980 on his own after giving a month's notice which according to general condition of service rules was permissible. That being so, there was no question of permitting withdrawal of such a resignation after such a long time. Only when the application was made by the petitioner, considering the same sympathetically, he was given an ad hoc appointment with a specific condition that he was required to face the Public Service Commission once again and only after his selection by the said Commission, the petitioner would be entitled lo get the regular benefit of service. Only when the application was made by the petitioner, considering the same sympathetically, he was given an ad hoc appointment with a specific condition that he was required to face the Public Service Commission once again and only after his selection by the said Commission, the petitioner would be entitled lo get the regular benefit of service. This order was accepted by the petitioner without any demur and he took part in the selection afresh, was selected by the Public Service Commission and a fresh appointment was given to him on 29-11-1986. The petitioner would be entitled to count the seniority only from the date of his fresh appointment and not otherwise. That being so, it cannot be said that the petitioner was entitled to get the benefit of seniority from the date of his first appointment and such claim made by the petitioner is not to be granted. It is further contended that in terms of the provisions of the Rules, since there was no question of withdrawal of such a resignation after its implementation by the petitioner himself, the claim made by the petitioner is liable to be rejected. 4. A rejoinder has been filed by the petitioner by which certain orders have been placed on record and it is contended that in similar circumstances the resignation of one Dr. S. M. H. Zaidi was permitted to be withdrawn and he was permitted to continue in the employment. In fact, the order was passed in that respect in an original application and since the similar are the circumstances, the petitioner would also be entitled to the similar benefit. It is thus contended that entire stand taken by the respondents is liable to be ignored and discarded and the petitioner would be entitled to the relief claimed. 5. Heard learned counsel for parties at length and perused the record. 6. It is not in dispute that when the petitioner was selected and appointed in the year 1980, the M. P. Civil Services (General Conditions of Service) Rules 1961 (hereinafter referred to as Rules, 1961) were in vogue and the same were made applicable. The petitioner was also appointed on probation. It is also not in dispute that there was a condition mentioned that the petitioner can relinquish the post at anytime or he could be terminated. The petitioner was also appointed on probation. It is also not in dispute that there was a condition mentioned that the petitioner can relinquish the post at anytime or he could be terminated. Such provisions are made in Madhya Pradesh Government Servant (Temporary and Quasi Permanent Service) Rules, 1960 (hereinafter referred to as Rules, 1960). Rule 12 of the aforesaid Rules prescribes that a government servant may relinquish the post after giving one month's notice. It is nowhere prescribed that such a resignation is required to be accepted. There is nothing to show that the petitioner immediately wanted to withdrew the resignation. On the other hand he tendered the resignation with a specific condition that he will relinquish the post on 30th November, 1980. Such a resignation became automatically applicable w.e.f 1st December, 1980 as the notice period expired and thereafter the petitioner never joined the post till he moved the application in the year 1982. If he was not interested to remain in the employment and if he has relinquished the post on his own, it was not folly on the part of the respondents. The petitioner was not confirmed on the post and was in fact a temporary employee on probation, which means trial and during the period of trial the petitioner relinquished the post by giving a month's notice. Nothing is indicated by the petitioner that there was some other service condition prescribed or there was an agreement in between the petitioner and the State Government in that respect enlarging the period of notice. The other aspect is that the petitioner made the application seeking reappointment giving the reason that his father has died and because of that reason he was willing to come back in the employment of the State Government. This was sympathetically considered by the State Government and instead a fresh appointment was given to the petitioner that too on ad hoc basis with specific condition that the petitioner was required to face the selection again. It was made clear in this order that in case the petitioner is not selected by the Public Service Commission or if his services are no longer required, the same can be terminated without assigning any reason. This appointment for a fix emoluments was accepted by the petitioner without demur. He appeared before the Public Service Commission, once again was selected and appointed. This appointment for a fix emoluments was accepted by the petitioner without demur. He appeared before the Public Service Commission, once again was selected and appointed. Thus, the claim made by the petitioner that his prayer for withdrawal of the resignation was not considered, is not justified. In fact the petitioner himself has relinquished the claim seeking withdrawal of the resignation. If at all die petitioner was of the view that since his resignation was not accepted by the State Government his joining was to be accepted after permitting him to withdraw the resignation, the petitioner should not have accepted the order dated 28th August, 1984 by which an ad hoc appointment was made in respect of the petitioner. The petitioner has never called in question the correctness of order dated 28th August, 1984 nor challenged the same before the Court. Not only this the petitioner reappeared before the Public Service Commission, was selected and was reappointed on regular basis vide order dated 29-11-1986 and even when the joining was given in respect of this order, the petitioner has raised no objection to such type of appointment. That being so, in fact the claim made by the petitioner is wholely misconceived. 7. In the case of Dr. S. M. H. Zaidee from the order passed by the Tribunal it is clear that when a resignation was submitted by the said Dr. Zaidee on 24-7-1989 it was not accepted by the respondents/State immediately. The said Dr. S. M. H. Zaidee withdrew his resignation on 30-8-1993 and only after withdrawal of the said resignation, the same was accepted vide order dated 21-2-1995 that too with retrospective effect from 11-5-1989 i.e. the date from which Dr. SMH Zaidee was absent from duty. The said claim made before the Tribunal was transmitted to this Court where it was registered as writ petition and was decided by this Court on 4-12-2003. These facts were taken into consideration by this Court and holding that after withdrawal of the resignation, there remains nothing to be accepted that too with retrospective effect, rightly such an order was interfered by this Court. Thus direction was given to extend the benefits of services to the said person. The facts in the present case are totally distinguishable. These facts were taken into consideration by this Court and holding that after withdrawal of the resignation, there remains nothing to be accepted that too with retrospective effect, rightly such an order was interfered by this Court. Thus direction was given to extend the benefits of services to the said person. The facts in the present case are totally distinguishable. The petitioner in this case had not only made the resignation, acted on that and subsequently made an application for a fresh appointment, accepted the fresh appointment on ad-hoc basis, took part in the selection held by the Public Service Commission and accepted the correctness of the order of appointment subsequently issued. These conduct of the petitioner, now are enough to estopped him to claim benefit of services, on the strength of first order of appointment which the petitioner himself has relinquished on his own. In view of these findings, it cannot be said that the petitioner is discriminated in any manner by the respondents, in the matter of fixation of his seniority. 8. Consequently the Writ Petition fails and is hereby dismissed. However, there shall be no order as to costs. Petition dismissed.