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2013 DIGILAW 1458 (MP)

Adhar Singh v. State of M. P.

2013-11-26

A.M.KHANWILKAR, K.K.LAHOTI

body2013
JUDGMENT : 1. Heard Counsel for the parties. 2. This appeal takes exception to the decision of learned Single Judge, dated 18-11-2011 in W.P. No. 16122/2011 (S). The appellant had challenged the communication dated 31-5-2011 issued under the signature of Divisional Forest Officer, at Page No. 68 of the appeal paper book, whereby the appellant was disengaged from service w.e.f. 30-11-2011. It is common ground that the appellant was in service on daily rated basis since year 1981. The appellant would claim that his services were governed by the provisions of the Standard Standing Orders, as applicable to State of Madhya Pradesh, and as a result of which his services could not be discontinued until his completion of 58 years of age. The Department, however, relies on Notification dated 28-3-2006 issued by the Forest Department of Government of Madhya Pradesh which provides that the services of daily rated workman should be discontinued on completion of 30 years of service or 60 years of age whichever is earlier. 3. The appellant relies on a recent decision of Division Bench of our High Court in Mahesh Rajak vs. State of M.P. and others, 2012(4) MPLJ 366 = 2012(4) M.P.H.T. 211 (DB), to buttress the above submission. The learned Single Judge, however, non-suited the appellant essentially on the basis of preliminary issue that the applicability of Standard Standing Orders can be adjudicated only by the Appropriate Court dealing with the disputes covered under the Industrial Disputes Act and the Standard Standing Orders and not in exercise of powers under Articles 226 and 227 of the Constitution of India. In other words, learned Single Judge has not dealt with the merits of the controversy at all. 4. Counsel appearing for the respondents supported the final conclusion reached by learned Single Judge in dismissing the writ petition preferred by the appellant. He further submits that even on merits the appellant has no case as the issue is covered by the decision of the Full Bench of our High Court in case of Mamta Shukla vs. State of M. P. and others, 2011(3) MPLJ (FB) 310 = 2011(3) M.P.H.T. 81 (FB). 5. Having considered the rival submissions, we are not impressed by the preliminary issue of maintainability of writ petition, considering the relief sought by the appellant. 5. Having considered the rival submissions, we are not impressed by the preliminary issue of maintainability of writ petition, considering the relief sought by the appellant. The appellant in writ petition had challenged the decision of the authority disengaging him from service w.e.f. 30-11-2011 on the premise that the appellant had already completed 30 years of service and, therefore, could not be continued in service in terms of Notification dated 28-3-2006 issued by the Forest Department of Government of Madhya Pradesh. This very question, in our opinion, is squarely answered by the Division Bench of our High Court in Mahesh Rajak's case (supra). The Division Bench was called upon to consider the case of employees of the Forest Department of Government of Madhya Pradesh. After taking into account the provisions of M.P. Industrial Employment (Standard Standing Orders) Act, 1961 and the schedule enacted thereunder, the Division Bench opined that the employees of the Forest Department being an industry, will be governed by the provisions of Standard Standing Orders by virtue of which they could be disengaged only upon completion of 58 years of age. This opinion is rendered taking into account the relevant decisions on the point in issue as to whether the Forest Department is an industry and including the decision in Badri vs. State of M. P. and others, 2011(4) MPLJ 86 , which in turn relies on the Full Bench decision in Mamta Shukla's case (supra). The Division Bench in Mahesh Rajak's case (supra), has opined that the later decisions are distinguishable and cannot be cited as precedent in respect of the matter in issue. For, in those cases, the Court was not called upon to consider the efficacy of provisions of the Act of 1961, which applies to the employees of Forest Department and of the provisions of the Standard Standing Orders, which guarantees their employment till attaining the age of 58 years. Notably, the provisions of the Act of 1961 and the Standard Standing Orders make no distinction between a regular employee and the daily rated employee. 6. It is not argued before us that the decision in the case of Mahesh Rajak (supra), requires reconsideration. All that has been argued, is that, Mahesh Rajak's case (supra) runs counter to the principles stated and the exposition in the case of Mamta Shukla (supra), by the Full Bench. 6. It is not argued before us that the decision in the case of Mahesh Rajak (supra), requires reconsideration. All that has been argued, is that, Mahesh Rajak's case (supra) runs counter to the principles stated and the exposition in the case of Mamta Shukla (supra), by the Full Bench. As aforesaid, the Division Bench deciding the case of Mahesh Rajak (supra), has already considered this shade of argument in Paragraphs No. 20 and 22. It has rejected the same by concluding that the said decisions are distinguishable. We are not inclined to take a different view of the matter. As aforesaid, the appellant is admittedly employed in the Forest Department of the State. For the same reasons as recorded in the case of Mahesh Rajak (supra), which admittedly has attained finality and implemented by the Forest Department of the State, this appeal succeeds. The impugned judgment is set aside and instead the communication dated 31-5-2011 issued under the signature of Divisional Forest Officer, South Seoni Production Forest Division, Annexure P-6 to the writ petition, is also quashed and set aside. It is, however, made clear that the appellant would remain in service until completion of 58 years of age as provided by the provisions of the Act of 1961 and the Standard Standing Orders framed thereunder. The appellant will be entitled to all the consequential benefits in terms of this order as if he was deemed to be in service all along. 7. Appeal disposed of on the above terms with no order as to costs. Order accordingly.