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Madhya Pradesh High Court · body

2013 DIGILAW 1270 (MP)

State of M. P. v. S. K. Jain

2013-10-22

M.C.Garg, Shantanu Kemkar

body2013
JUDGMENT 1. Heard. This order shall dispose of the writ appeal arising out of Writ Petition No.6701/2003 decided by the learned Single Judge on 13.9.2007 whereby, the writ petition filed by the respondent was allowed by passing the following order : 5. After having heard learned counsel for the parties and on perusal of the record, it is not in dispute that the petitioner was posted on the post of Prashikshan Adhikari (Grade II). It is also not in dispute that as per the option sought by the department, the petitioner was sent for computer training. It is also not in dispute that after completing the said training he was posted in the scale of Rs.1640-2900, which has now revised in the scale of Rs.5500-9000. It is alsonot in dispute that after serving on the said post more than 5 and half years, he was directed to be re-posted as Prashikshan Adhikari in the scale of Rs.5000-8000. Perusal of the order (Annexure A-1) indicates,l in the said order of his posting in a lower pay-scale, the respondent has not assigned any reason. The argument in put forth by the respondent has not assigned any reason. The argument is put forth by the respondent that the said order was passed in terms of the conditions specified in the order (Annexure A-10). Because by virtue of the said conditions, petitioner may not claim seniority and shall remain in the original cadre, and he may be returned back at any time without asking of benefit of FR-22D. However, in lieu of the same, the order of re-posting on the original post has rightly been passed. The said argument is liable to be rejected, because undisputedly he has worked on a post of Prashikshan Adhikari (Computers) which is of the higher scale i.e. Rs.5500-9000 for more than 5 and a half years. Under the Departmental Rules the post of Prashikshan Adhikari (Computers) has not been specified separately but under the instructions, such post carried the higher scale which was allowed to the petitioner for more than 5 and a half years. However, in view of the rule 3A of M.P. Government Servant (Temporary and Quasi Permanent) Rules, if an employee has continuously remain in service for more than 5 years or on a post, then he was deemed to be quasi permanent unless for the reasons recorded in writing by the appointment authority. However, in view of the rule 3A of M.P. Government Servant (Temporary and Quasi Permanent) Rules, if an employee has continuously remain in service for more than 5 years or on a post, then he was deemed to be quasi permanent unless for the reasons recorded in writing by the appointment authority. In the present case, while passing the order impugned (Annexure P-1), the appointment authority has not assigned any reason to re-post him on a post of Prashikshan Adhikari, which the post of lower scale. However, if affects the civil consequences without observing the principle of natural justice. It is not in dispute, prior to passing the order of his posting on the post carries pay of lower scale from higher scale, no show cause notice was issued, and no opportunity of hearing was allowed to him. It is further seen from the record that in terms of the Quasi Permanent Rules, the competent authority is required to pass a reasoned order to withdraw the benefit of the post itself, after rendering service for more than 5 years. However, by an unreasoned order of posting of the petitioner on a lower scale of pay, is against the Rules, and in violation of principle of natural justice. 6. In view of the foregoing discussion and taking guidance from the judgment of Supreme Court in the case of C.C. Padmanabhan v. The Director of Public Instruction [Supreme Court Service Rulling (Vol.19, page 773], I am of the considered view that the order (Annexure A-1) passed by the respondent posting the petitioner in a lower scale to pay without assigning any reason for the said posting, is arbitrary and is unsustainable in the eyes of law. 7. Accordingly and in view of forgoing discussion, the petition is allowed. The order Annexure A-1, dated 28.8.1999 is hereby quashed. Respondents are directed to continue the petitioner on the post which carries the pay-scale of Rs.5500-9000 and fix his salary already. The said exercise be completed within the period of four months from the date of communication of this order. In the facts and circumstances of the case, no orders as to costs. No costs. 2. Respondents are directed to continue the petitioner on the post which carries the pay-scale of Rs.5500-9000 and fix his salary already. The said exercise be completed within the period of four months from the date of communication of this order. In the facts and circumstances of the case, no orders as to costs. No costs. 2. Briefly stating the facts of the case are : That the respondent herein filed a writ petition averring therein that he was appointed on the post of Fitter on 7.4.1989 (factually appointed on 17.4.1989( and later on promoted on the post of Assistant Training Officer (senior) in the pay-scale of Rs.1400-2640, which was subsequently revised to Rs.5000-8000. It was contended by the petitioner that State of M.P. through Jan Shakti Niyojan Department has issued a Notification dated 6.12.1991 by which various posts of Directorate of Employment and Training were re-designed. It was contended by the petitioner that vide order dated 20.9.1993, the post of petitioner was also re-designed and since there was requirement of Training Officer (Teacher), employees of lower cadre were also offered (through option) computer training reason being the sufficient number of persons did not apply. It was the case of the petitioner that even he opted for the same and was sent for computer training at Hyderabad and after completion of training, he was posted as Training Officer (Computer) in the pay-scale of Rs.1640-2900, which was subsequently revised to Rs.5500-9000. But thereafter suddenly after working for five years on the said post, the State Government again posted him on the post of Training Officer Grade II Fitter and it was this order, which was challenged by the petitioner. 3. According to the appellants-State, the appointment of respondent on the post of Training Officer (Computer) was purely temporary in nature. The condition on which the appellants-State was offered this post, are mentioned in the letter posting him on the temporary assignment, which is Annexure A-10 filed along with writ petition. 3. According to the appellants-State, the appointment of respondent on the post of Training Officer (Computer) was purely temporary in nature. The condition on which the appellants-State was offered this post, are mentioned in the letter posting him on the temporary assignment, which is Annexure A-10 filed along with writ petition. ^^lapkyuky; jkstxkj ,oa izf’k{k.k e/; izns’k vkns’k dzekad % lajksiz@LFkki&iz@lkHkk&67@346 tcyiqj] fnukad 6-1-1994 fuEufyf[kr izf’k{k.k vf/kdkjh ¼izf’kf{kr½ dks muds uke ds lEeq[k n’kkZbZ xbZ laLFkk esa izf’k{k.k vf/kdkjh ¼dEI;wVj½ ds in ij osrueku :-1640&50&2600&75&2900@& esa muds }kjk dk;Zxzg.k djus dh frfFk ls vLFkkbZ :i ls vkxkeh vkns’k rd fuEufyf[kr ‘krksZa ds rgr fu;qDr fd;k tkrk gS % dz- deZpkjh dk uke ,oa O;olk; rFkk uohu inLFkkiuk dk LFkku orZeku inLFkkiuk dk LFkku 1- 2- 3- 1- Jh ,l-ds- tSu] vkS-iz- laLFkk] ‘kktkiqj izf’k{k.k vf/kdkjh oxZ&1 ¼fQVj½ vkS-iz- laLFkk] bVkjlh 2- Jh ih-,u- fo’odekZ] vkS-iz- laLFkk] tcyiqj izf’k{k.k vf/kdkjh oxZ 2 ¼xf.kr½ vk-vkS-iz- laLFkk] bVkjlh mijksDr izf’k{k.k vf/kdkjh dh ofj”Brk muds ewy O;olk; ,oa in esa ekuh tk,xhA mijksDr izf’k{k.k vf/kdkjh dks osrueku :-1640&2900@& esa ofj”Brk ckor~ dksbZ nkok ugha gksxkA mijksDr izf’k{k.k vf/kdkfj;ksa dks vko’;drkuqlkj fdlh Hkh le; muds ewy in ij okil fd;k tk ldrk gSA mijksDr deZpkfj;ksa dk osru fu/kkZj.k lkekU; fu;eksa ds rgr osrueku :-1640&2900@& esa fd;k tk,xk vFkkZr~ mUgsa ewyHkwr fu;e 22&Mh dk ykHk bl izdkj.k esa ugha feysxkA** 4. The relevant conditions, on which the reliance has been placed upon by the appellants-State to assail the impugned judgment, are as follows : ^^mijksDr izf’k{k.k vf/kdkjh dh ofj”Brk muds ewy O;olk; ,oa in esa ekuh tk,xhA mijksDr izf’k{k.k vf/kdkjh dks osrueku :-1640&2900@& esa ofj”Brk ckor dksbZ nkok ugha gksxkA mijksDr izf’k{k.k vf/kdkjh dks vko’;drk vuqlkj fdlh Hkh le; muds ewy in ij okil fd;k tk ldrk gSA mijksDr deZpkfj;ksa dks osru fu/kkZj.k lkekU; fu;eksa ds rgr osrueku :-1640&2900@& esa fd;k tk,xk vFkkZr~ mUgsa ewyHkwr fu;e 22&Mh dk ykHk bl izdj.k esa ugha feysxkA** 5. It has been submitted that perusal of these conditions make it abundantly clear : That the seniority of the respondent was to be taken from Training Officer, Grade II Fitter, he was paid pay-scale of Rs.1640-2900 for working on the post of Training Officer (Computer). It has been submitted that perusal of these conditions make it abundantly clear : That the seniority of the respondent was to be taken from Training Officer, Grade II Fitter, he was paid pay-scale of Rs.1640-2900 for working on the post of Training Officer (Computer). It was also mentioned in the conditions of the posting order that the respondent can be sent back any time to his original post and even the respondent had given his option for working on the said post knowing fully well that he may be sent back to his original post. Thus, after satisfying himself, he offered for the said post. It is pertinent to mention here that while continuing on the post of Computer Training Officer, the respondent’s cadre was lying in the gradation list of Training Officer Grade II and same was never challenged by the respondent at any point of time and according to conditions of his posting when he was asked to come back to his original post, he filed a petition and, therefore, the contention of the appellants herein (respondents) that since the petition being devoid of substance and merit, same may kindly be dismissed. However, the Hon’ble Writ Court allowed the petition and has ordered as aforesaid. 6. We have heard the learned counsel for the appellants-State as well as the learned counsel for the respondent. 7. A perusal of the impugned order goes to show that the learned Single Judge, while granting the writ in favour of the respondent as in persuaded within arguments, that the posting of the respondent on the post of Prashikshan Adhikari (Grade II) was his appointment as temporary employee and since the respondent worked on that post for a period of more than five years, he becomes entitled to be regularised as per rule 3A of Madhya Pradesh Government Servants (Temporary and Quasi Permanent) Rules, however, we are unable to agree with the aforesaid preposition of the learned Single Judge for the simple reason, that in the present case, it was not the case for fresh appointment but, it was simply the case, where the respondent, who was regular employee, was posted temporarily on the post of Prashikshan Adhikari in accordance with the terms and conditions mentioned in the letter (Annexure A-10), which had the conditions as aforesaid. 8. 8. In view of the aforesaid, it cannot be said that the respondent having worked on the post for a period of more than five years, becomes entitled to be regularised on that post. 9. We have also gone through the judgment delivered by Hon’ble the Supreme Court on which, much reliance has been placed upon by the respondent, reported in AIR 1995 SC 64 . This judgment has also been relied upon by the learned Single Judge. However, the facts of that case are not applicable to the facts of the present case for the simple reason that, in that case, the incumbent was promoted to the higher post in his own cadre, which is not the case in hand. 10. Having given our thoughtful consideration to the rival submissions, having perused the facts of the case and the impugned judgment, we are satisfied that the impugned judgment suffers from legal infirmity and cannot be sustained. 11. We are informed that the respondent stands retired. In view of the aforesaid, while holding that the appellants-State shall not be entitled to seek refund of any amount paid to the respondent on the basis of the appointment as Prashikshan Adhikari till such time he has worked on that post, we hold that the respondent shall not be entitled to any benefit, as if, he is retired on the higher post. 12. With these observations, the writ appeal is allowed with no order as to costs. .............