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2013 DIGILAW 1139 (MP)

Kishore Kumar Indurkar v. State of M. P.

2013-09-19

K.K.TRIVEDI

body2013
JUDGMENT K.K. Trivedi, J.:- This petition was filed as Original Application No. 122/1996 before the M.P. Administrative Tribunal which after closer of the Tribunal has been transmitted to this Court and is registered as Writ Petition. The petitioner who was appointed in the election office on the post of Driver has approached the Tribunal against the order dated 15-12-1995 by which services of the petitioner were sent in the Collector's office for the election work w.e.f. the date of relieving. It is contended by the petitioner that in the establishment of the election office there was a post of Driver for which the names were called from the employment exchange and upon selection an order of appointment was issued in respect of petitioner on 25-1-1993. However, the petitioner was appointed on contingency basis. One Ajay Satankar was appointed on regular basis vide order dated 11th October, 1995 and the petitioner raised a protest by filing a representation stating that since he was working from 1993 he too be given the benefit of regular appointment. The petitioner was sent to work in the election branch of Collectorate, Bhopal only for the purposes that he should be removed from the post as the post in the said election office was created only up to 29-2-1996. However, nothing was done with respect to the consideration of such a claim of the petitioner and ultimately on completion of the election work his services were dispensed with on 29-2-1996. That being so, because of high handedness of the respondents the petitioner was terminated from services. The relief was claimed to the effect that the direction be issued to the respondents to regularize the services of the petitioner on the post of Driver and regular pay scale be given to him. 2. Upon service of the notice of the petition a return was filed by the respondents and it is contended by the respondents that since the petitioner was sent to work only in the election office and since the post was created only up to 29th February, 1996, after this date the services of the petitioner were rightly dispensed with. There was no question of regularization of the petitioner as in terms of the appointment order issued in favour of the petitioner, he could be terminated at any time. The respondent No. 3 by filing a return has contended that rightly the petitioner was terminated. There was no question of regularization of the petitioner as in terms of the appointment order issued in favour of the petitioner, he could be terminated at any time. The respondent No. 3 by filing a return has contended that rightly the petitioner was terminated. The appointment of the respondent No. 3 was properly made and therefore such a claim made by the petitioner is misconceived. It is thus contended that the petition is liable to be dismissed. 3. By filing a rejoinder the petitioner has contended that initially the petitioner was appointed on the post which was in contingency but that appointment was also made after selection and soon after when the regular vacancy of the post of Driver became available in the month of October, 1995 the petitioner should have been appointed on the post of Driver. Instead of doing this the respondent No. 3 was given the appointment on regular basis and when the objection to this effect was raised by the petitioner he was sent to work in a place where a temporary post was sanctioned only for a particular period so that the services of the petitioner could be dispensed with. This being a mala fide action on the part of the respondents, the petitioner still would be entitled to grant of relief. 4. Heard, learned counsel for parties at length and perused the record. 5. On a perusal of the records of the case it is clear that the action was not rightly taken by the respondents. The employment exchange, Bhopal was informed about vacancy on the post of Driver where the petitioner was registered as an unemployed youth. He was informed about such a vacancy by the employment exchange, was directed to appear before the appointing authority along with all the relevant documents. The petitioner did appear before the said authority was considered and selected for appointment that is how the order dated 25-1-1993 was issued in his favour. In the order of appointment no term of appointment was prescribed. Only this much was said that the petitioner would be paid salary from the contingency funds and the services can be terminated at any time. Such a condition is always mentioned in all sort of appointment as every appointment is on temporary basis till it is confirmed. In the order of appointment no term of appointment was prescribed. Only this much was said that the petitioner would be paid salary from the contingency funds and the services can be terminated at any time. Such a condition is always mentioned in all sort of appointment as every appointment is on temporary basis till it is confirmed. It is also clear from the documents available on record and as has been specifically pleaded in the rejoinder that one Satish Kumar Verma working on the post of Driver on regular basis in the very same establishment was absent from services and on account of his long non-continuous absence the post became available in the very same office of respondents. It was the first right of the petitioner to be considered for appointment on the said post as after due consideration he was appointed as a contingency Driver. It was not the case that the petitioner was back door entry and therefore there was no question of his regularization. It is not explained as to how the respondent No. 3 was selected and appointed against vacancy of Driver in the pay scale vide order dated 11th October, 1995 when senior to him was already working as Contingency Driver in the very same establishment. This shows that the process of recruitment was not followed when the post of Driver became available in the same office and establishment where the petitioner was working on contingency. When the representation was made by the petitioner, an order of relieving was issued in his respect asking him to go and work in the establishment of Collector, Bhopal in election branch. This order was purportedly issued only to shift the petitioner from the place where the respondent No. 3 was improperly appointed. Nothing is indicated in the return of the official respondents what process was adopted by them for filling the post of the Driver. Only this much is said by the respondents in their additional return that Satish Kumar Verma was not removed from the post but was working in the department as a Driver. If he was not removed from the post, how the respondent No. 3 was appointed, what was the process of recruitment initiated in this respect is not shown. Only this much is said by the respondents in their additional return that Satish Kumar Verma was not removed from the post but was working in the department as a Driver. If he was not removed from the post, how the respondent No. 3 was appointed, what was the process of recruitment initiated in this respect is not shown. Only this much is said that since the respondent No. 3 was appointed his salary is being drawn against the post of LDC which is lying vacant. This again shows that there was some sort of improper action on the part of the respondents. Therefore, the entire stand taken by the respondents cannot be accepted. 6. Yet another fact is that the State Government in General Administration Department has issued various circulars and instructions. It is categorically prescribed that those who are appointed for the election work for a particular period if removed after the completion of the election work, are to be treated as surplus employee in category B. A preferential right is available to those employees in the matter of appointment. If the petitioner was appointed against a vacancy which was created for the election work and even if he was removed from the post, on completion of election work or the period of sanction of the post was over, he was to be treated as surplus employee and was required to be given a preferential treatment in the recruitment. Nothing is indicated in the return by the respondents that such a preference is given to the petitioner or not. Therefore, again such a stand taken by the respondents that the petitioner has no right to claim any regular appointment in the establishment of the respondents is incorrect and not sustainable. However, since now sufficient time has elapsed from the date of removal of the services of the petitioner, it will be difficult for this Court to direct reinstatement of petitioner in service. On the other hand it would be appropriate to command the respondents to ascertain whether there is vacancy available on the post of Driver and to accommodate the petitioner on the said vacancy. 7. On the other hand it would be appropriate to command the respondents to ascertain whether there is vacancy available on the post of Driver and to accommodate the petitioner on the said vacancy. 7. In view of this, it is directed that the respondents No. 1 and 2 will ascertain whether there is any regular vacancy available to accommodate the petitioner on the post of Driver and if such a vacancy is available, to reappoint the petitioner on the said post, granting relaxation in the age. Let this order be complied with within a period of three months from the date of receipt of copy of this order. The Writ Petition stands allowed to the extent indicated hereinabove. There shall be no order as to costs.