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Madhya Pradesh High Court · body

2013 DIGILAW 1061 (MP)

Rajendra Kumar Jain v. State of M. P.

2013-09-04

Sujoy Paul

body2013
ORDER 1. This petition filed under Article 226 of Constitution challenges the order dated 26.8.2009 Annexure P/9 whereby the petitioner was directed to work in Rural Engineering Department. A direction is prayed for to appoint/retain the petitioner in his original department i.e. Public Health and Engineering Department. In addition, petitioner has prayed for grant of seniority in PHE Department from the date of his initial appointment as Sub Engineer. The brief facts necessary for adjudication of present petition are as under: 2. Petitioner was initially appointed as daily wager Sub Engineer w.e.f. 8.7.1990. In the year 1991 petitioner was removed. He assailed this order by filing an application before the labour Court under the provisions of M.P. Industrial Relations Act (MPIR Act). The labour Court initially granted interim order pursuant to that petitioner continued in employment. However, in 1996 petitioner was again removed from the service. He assailed this removal by filing an application under section 31(3) of MPIR Act before labour Court which was registered as case No.171/MPIR/1996. Labour Court passed its order on 31.8.1996 and declared the said removal as illegal and directed the petitioner’s reinstatement with back wages. This order of labour Court was unsuccessfully assailed by the employer by filing appeal No. 341/MPIR/1996 before the Industrial Court and Writ Petition No. 491/2003 before this Court. Said writ petition was dismissed on 14.8.2013. In absence of any further challenge to the order of labour Court dated 31.8.1996, the same had attained finality. 3. In obedience of labour Court’s order in case No.118/1998/MPIR the petitioner was reinstated. Thereafter, the department on its own passed the order dated 15.6.2005 Annexure P/5 whereby the petitioner was classified w.e.f. 8.3.1991 as permanent employee. Pausing here for a moment, it is relevant to mention that labour Court has directed the petitioner’s classification after 6 months from the date of his appointment i.e. 6 months after 8.7.1990 whereas the employer on its own classified the petitioner w.e.f. 8.3.1991. Thereafter, the respondents directed the petitioner to participate in the written examination for the purpose of regularization. Petitioner having left with no option appeared in the said examination and thereafter by impugned order Annexure P/9 the petitioner was directed to join the Rural Engineering Department. This action of employer is called in question in the present case. 4. Thereafter, the respondents directed the petitioner to participate in the written examination for the purpose of regularization. Petitioner having left with no option appeared in the said examination and thereafter by impugned order Annexure P/9 the petitioner was directed to join the Rural Engineering Department. This action of employer is called in question in the present case. 4. Shri Dudawat submits that once the petitioner is classified as permanent employee pursuant to the labour Court’s order which has achieved finality and employer on its own has also classified him on a permanent post, by no stretch of imagination it can be accepted that there existed no permanent post in the petitioner’s department. He relied on a recent judgment passed by this Court in a similar matter in Writ Petition No. 5813/2010 (Devendra Singh Kansana v. State of M.P. And others) in support of his contention. 5. Shri Rathi learned Government Advocate supported the order Annexure P/9 and submitted that there is no flaw in the order passed by the respondents Annexure P/9. He submits that there was no post in PHE department, therefore petitioner was rightly transferred to the Rural Engineering Department. 6. I have heard learned counsel for the parties and perused the record. 7. In the considered opinion of this Court, it cannot be doubted that petitioner was classified as permanent employee pursuant to the order of labour Court coupled with order of employer dated 15.6.2005 Annexure P/5. Under the Standard Standing Order which is statutory provision, the classification has definite meaning. Once employee is classified as “permanent” employee, he automatically occupies the permanent post and enjoys the lien on the said post. After classifying an employee as permanent it is no more open for the respondents to say that either post was not lying vacant or it is not available. Thus, I am unable to agree with the ontention of Government Advocate that department has rightly transferred the petitioner to Rural Engineering Department for want of post. This Court has already dealt with this aspect in Kansana (supra) and opined that once the employee is classified as permanent employee there is no occasion for the employer to direct him to undergo the written examination. Permanency is at much higher footing than regularization. This Court opined in Kansana (supra) as under: 14. This Court has already dealt with this aspect in Kansana (supra) and opined that once the employee is classified as permanent employee there is no occasion for the employer to direct him to undergo the written examination. Permanency is at much higher footing than regularization. This Court opined in Kansana (supra) as under: 14. It is gathered that the respondents had directed various daily wage employees to undergo written examination/selection for the purpose of their regularization. This mode may be permissible under the executive instructions or as per the policy decision taken by the respondents. The pivotal question before this Court is whether this course was available for the respondents qua the petitioner, who stood classified as a permanent employee pursuant to the Court order, which got a stamp of approval till the Division Bench of this Court. 15. In the considered opinion of this Court, the said course was not permissible qua the petitioner because he stood classified as a permanent employee and once he became permanent employee under the law, there was no question of considering his case for regularization by directing him to undergo the written examination. The petitioner has a valuable legal right to enjoy the status of permanent employee from the date of his classification. 16. The order Annexure P-11 dated 21.12.2009 is passed on the basis of the result of the writ appeal. The petitioner is posted to Rural Engineering Service. Since the petitioner stood classified much before the examination and result, the said examination cannot be a reason to switch over and post the petitioner to another department. Once the petitioner got classified as permanent employee in his own department, his conditions of service are governed by the Statutory Recruitment Rules and other service conditions attached to his statutory post and to his department. The respondents are unable to show any provision by which they can transfer or shift an employee of one department to another department. 17. Accordingly, the action of the respondents in sending the petitioner to Rural Engineering Service is without any authority of law. The petitioner, who became a permanent employee has a valuable legal right to continue in the same department in accordance with law. Consequently, the order Annexure P-11 dated 21.12.2009 to the extent the petitioner is sent to Rural Engineering Service is set aside. 18. The petitioner, who became a permanent employee has a valuable legal right to continue in the same department in accordance with law. Consequently, the order Annexure P-11 dated 21.12.2009 to the extent the petitioner is sent to Rural Engineering Service is set aside. 18. On the basis of aforesaid analysis, the petitioner is entitled to the relief claimed. Hence, the impugned order dated 21.12.2009 to the extent indicated above is set aside. The respondents are directed to retain the petitioner in P.H.E. Department and fix his seniority from the date of his classification as a permanent employee in accordance with law. The petitioner shall be entitled to get other benefits arising thereto. The petition is allowed. No cost. 8. Bare perusal of finding given by this Court makes it crystal clear that the present petitioner is sailing in the same boat. Thus, he is entitled for same relief. Nothing could be pointed out by the other side which can be treated as distinguishing feature qua the judgment in Kansana (supra). Thus, the petitioner deserves similar treatment which was extended by this Court in Kansana (supra). 9. Resultantly, the order Annexure P/9 dated 26th August, 2009 to the extent it relates to petitioner is set aside. Respondents are directed to retain the petitioner in PHE Department and fix his seniority from the date of his classification as permanent employee in accordance with law. Petitioner shall get other consequential benefits arising thereto. Petition is allowed. No costs.