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Madhya Pradesh High Court · body

2014 DIGILAW 1558 (MP)

Sanjay Gandi Yuva Netratva Avam Gramin Prashikshan Sansthan v. Iqbal Ahmed

2014-11-28

RAJENDRA MENON, VANDANA KASREKAR

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JUDGMENT : 1. As challenge in these appeals under section 2(1) of the MP Uchcha Nyayalaya (Khand Nyayapeeth Ko Appeal) Adhiniyam, 2005 is made to a consolidated order-dated 6.2.2012, passed in Writ Petition Nos. 6622/2008(s) and 9483/2008(s), both these appeals are being heard and decided by this common order. 2. Appellant Sanjay Gandhi Yuva Netratva Avam Gramin Vikas Prashikshan Sansthan, Panchmarhi is a society registered under the provisions of MP Societies Registrikaran Adhiniyam, 1973. On 21.7.2005, an advertisement was issued by the society calling upon willing candidates to submit their candidature for appointment on the post of Computer Operator as well as LDC - Assistant Grade III. In the advertisement, it was indicated that the appointment is on contract basis initially for a period of one year, on a consolidated salary of Rs. 3800/4000, which can be extended on satisfactory performance by the candidate. The respondents/employee applied, a selection process was conducted, they were subjected to interview and both of them were selected and appointed as Assistant Grade III and Computer Operator. It was found by the Director that their initial appointment was in accordance with the Rules and they are entitled for regular appointment, therefore, their services were regularized. It seems that after the Director retired on attaining the age of superannuation, the impugned action was taken by the Incharge Director. It was found by the Incharge Director that regularization of the respondents/employee was done in violation to a Resolution dated 21.10.2004 and, therefore, the regularization dated 14.8.2006 were cancelled. 3. Writ petitions were filed challenging the cancellation and when the petitions came up for hearing, after perusal of the records the learned writ Court found that the only reason indicated for passing the impugned order was that the regularization was contrary to the mandate of the resolution dated 21.10.2004 and, therefore, the orders of regularization were cancelled. The writ Court found that in the resolution dated 21.10.2004, there is nothing pertaining to appellants’ regularization or its cancellation. The resolution dated 21.10.2004 pertained to grant of pay scale to the employees and on further evaluating the entire matter, the learned writ Court found that the reason for cancellation is unsustainable. It was found that the Director has exercised the power for regularization properly and in paragraph 9 of the order, the learned writ Court dealt with the matter in the following manner: “9. It was found that the Director has exercised the power for regularization properly and in paragraph 9 of the order, the learned writ Court dealt with the matter in the following manner: “9. It is well settled in law that validity of an order has to be adjudged on the ground on which it has been passed. See: Mohinder Singh Gill and another Vs. The Chief Election Commissioner, New Delhi and others, AIR 1978 SC 851 . From perusal of the order dated 21.5.2008, it is apparent that the same has been passed on the ground that the order appointment the petitioners on regular basis has been issued in violation of the resolution dated 21.10.2004 as well as without obtaining any prior permission from the administrative department. I have carefully gone through the resolution dated 21.10.2004. It no where prohibits the appointment of an employee on regular basis. The resolution deals with the grant of benefit of Vth Pay Commission to the employees of respondent No.2-Institute. Learned counsel for respondents No. 2 and 3 was unable to point out any provision in the Articles of Association which requires that prior approval of the administrative department is required to be obtained before appointment a person on regular basis. The fact that the Director has appointed several persons in the past as well is apparent from orders Annexure P/15. Thus, the orders dated 12.8.2006 and 14.8.2006 were passed as per the practice prevalent in the respondent No.2-Institute and in the absence of any prohibition in the Articles of Association, the same cannot be said to be bad in the eye of law. The resolution dated 21.4.2004 is wholly irrelevant and has no bearing on the issue of appointment of the petitioners on regular basis. The respondent No.3 while passing the impugned order dated 21.5.2008 has misinterpreted the resolution dated 21.4.2004.” 4. In these writ appeals, it was tried to be indicated by filing an application for taking documents on record - I.A. No. 10902/2014 that the resolution dated 21.10.2004 has to be read alongwith another resolution of the Special Committee held on 8.2.2005, wherein a specific assertion is made for appointment on contract basis. Referring to the minutes of the Meeting dated 8.2.2005, Shri Munish Saini tried to emphasize that the learned writ Court has not taken note of this resolution and, therefore, the order be recalled. 5. Referring to the minutes of the Meeting dated 8.2.2005, Shri Munish Saini tried to emphasize that the learned writ Court has not taken note of this resolution and, therefore, the order be recalled. 5. Shri A. Shroti, learned counsel for the respondents, refuted the aforesaid and argued that the minutes of the meeting dated 8.2.2005 and reference made to the decision taken in the said meeting pertains to appointment on the post of Experts and Higher Posts and not to the post of Assistant Grade III (LDC) or Computer Operators. He, therefore, submits that the learned writ Court has not committed any error. 6. We have heard learned counsel for the parties and we have taken note of the facts and circumstances of the case. 7. The learned writ court has given various reasons for holding that cancellation of the regularization is not correct. The learned Court has even referred to the provisions of the bye-laws, non-availability of Rules and Regulations and various other aspects to say that the regularization is proper. No serious challenge is made to these findings. The only challenge is that the learned writ Court read the resolution dated 21.10.2004 in isolation, without taking note of the minutes of the meeting held on 8.2.2005 by the Special Committee, which implemented the resolution dated 21.10.2004. If the resolution dated 21.10.2004 and the stipulations of paragraph 11, pertaining to Agenda No.6 of the same, is taken note of and we find that the Resolution reads as under: (Emphasis supplied) 8. The learned writ Court has taken note of these aspects and found that this Resolution pertains to certain aspects pertaining to payment of allowances of the pay-commission. However, on a perusal of the aforesaid Resolution, we find that this Resolution pertains to appointment on the post of Joint Director, Reader, Subject Experts and there is nothing in this Resolution pertaining to appointment of LDC or Computer Operator on contract basis. Rightly so, therefore, the learned writ Court did not refer to this part of the Resolution. On the contrary, the Resolution placed before this Court, which is available on record, seems to be pertaining to grant of pay scale to the employees. 9. The Resolution as reproduced hereinabove is on a totally different subject. Rightly so, therefore, the learned writ Court did not refer to this part of the Resolution. On the contrary, the Resolution placed before this Court, which is available on record, seems to be pertaining to grant of pay scale to the employees. 9. The Resolution as reproduced hereinabove is on a totally different subject. Similarly, the minutes of the meeting of the Special Committee held on 8.2.2005 also reads as under: (Emphasis supplied) this decision is nothing but for implementation of the earlier resolution dated 21.10.2004 and, it would be seen that this also pertains to appointment to higher post and subject experts and this has got nothing to do with the appointment to the post of LDCs or Computer Operators. 10. That being so, in the facts and circumstances and on the reasons given by the learned writ Court, we see no error in the same warranting reconsideration. The contention of the appellant that the learned writ Court has not read the resolution properly is wholly misconceived and cannot be accepted. The Resolution relied upon before us and referred to hereinabove has got nothing to do with the regularization or de-regularization of the respondents/employee. On the contrary, the leaned writ Court has indicated in paragraphs 8 and 9 of the order various reasons for interfering into the matter, has gone into details with regard to bye-laws of the association, non-availability of any Rules and Regulations, the power of the Director and has found that the Director has taken action in accordance with the Rules after the selection was found to be preceded by an interview and a process of selection. 11. Accordingly, we find that the learned writ Court has not committed any error which warrants reconsideration. 12. The appeals are, therefore, dismissed.