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Madhya Pradesh High Court · body

2015 DIGILAW 684 (MP)

Raj Kumar Damade v. State of M. P.

2015-07-02

SUJOY PAUL

body2015
JUDGMENT : Sujoy Paul, J. 1. This petition filed under Article 226 of the Constitution assails the order dated 15.07.2011 whereby the regularization order of the petitioner dated 01.11.2009 was cancelled and petitioner's remuneration was fixed as Rs. 8980/- per month. 2. The necessary facts for adjudication of this matter are that petitioner was engaged as daily rated employee in the year 1991. He claimed that his case should be considered for regularization. The Screening Committee by Annexure P/3 considered his case on 08.07.2009. The Committee opined that petitioner is a daily rated employee of Zila Panchayat, Morena and therefore, the proceeding of regularization in relation to petitioner needs to be done at the level of CEO, Zila Panchayat Morena. In this meeting of screening committee, nine senior officers of State Government were present. Thereafter by communication dated 20th July, 2009 the Government directed the CEO to consider the cases of regularization as per recommendation Annexure P/3. Thereafter petitioner's case was considered for regularization and by order dated 01 November, 2009, he was regularized on the post of Data Entry Operator in the scale of 4000-6000. As per M.P. Revision of Pay Rules, 2009 he was given pay scale of 5200-20200 (Grade pay 2400). It is directed that his pay shall be drawn from the head of D.R.D.A. Administration. It is argued that earlier petitioner filed WP No. 2555/2009 when by order dated 05.06.2009 respondents have reduced the pay of the petitioner. The said WP was decided on 06.11.2009. The writ court directed that pay of petitioner was rightly fixed in the light of Government instruction dated 21.04.2008. The respondents were directed to pay the arrears of salary arising out of said Government instruction. The learned counsel for the parties, during the course of argument fairly admitted that WA No. 498/2010 is pending against the order passed in WP. 2555/2009. 3. Shri D.K. Katare, Advocate for the petitioner, submits that petitioner was served with a show cause notice dated 21.12.2010 (Annexure P/7). He submitted his reply Annexure P/8. Thereafter impugned order was passed whereby his status of regular employee was taken away. Apart from this, his pay is fixed at Rs. 8980/- per month. Criticizing this order, it is contended that nine officers found the petitioner's case fit for regularization. Annexure P/10 shows that petitioner is continuously working as computer operator (contract basis) since 1991. Thereafter impugned order was passed whereby his status of regular employee was taken away. Apart from this, his pay is fixed at Rs. 8980/- per month. Criticizing this order, it is contended that nine officers found the petitioner's case fit for regularization. Annexure P/10 shows that petitioner is continuously working as computer operator (contract basis) since 1991. Heavy reliance is placed on Annexure P/11 whereby the CEO, Zila Panchayat, Morena informed that one sanctioned post of computer operator is available. 4. Shri Katare also relied on order dated 19.02.2010 (Annexure P/12) whereby the pay scale of Data Entry Operator is shown as 5200-20200 (Grade Pay 2400). By taking this Court to pay bill of petitioner, it is contended that payment was rightly made in the said pay scale. He submits that when petitioner has continuously worked for more than 10 years and post was sanctioned/which carries pay scale, impugned order is arbitrary, unjust, unreasonable and unfair. It must be axed by this Court. In addition, he submits that similarly situated employees are working continuously in other Districts. Lastly, Shri Katare contended that after six months of regularization, order cannot be reviewed/recalled. 5. Prayer is opposed by Shri Praveen Newaskar and Shri Vivek Jain, learned counsel for the other side. 6. It is contended that there is no infirmity in the impugned order which warrants interference by this Court. He submits that impugned order is based on two reasons. Firstly, the petitioner has not continuously worked for more than ten years. Secondly, the sanctioned regular post of Data Entry Operator is not lying vacant in Zila Panchayat, Morena. To elaborate, it is contended that petitioner's services were terminated by order dated 13.07.2007. Thereafter, he was reengaged only on 2nd August, 2007 (Annexure R/5). Shri Jain submits that services of the petitioner needs to be counted from 2nd August, 2007. In other words, it is contended that petitioners services were not continuous from 1991. Hence, he has not completed 10 years of service. Shri Jain relied on M.P. Panchayat Service (Recruitment and General Condition of Services) Rules, 1999. By taking this court to schedule (I) of the said rules, it is urged that their exist a post of Data Entry Operator but this post is in the fixed pay of Rs. 2500/- monthly. This is not a regular post carrying the regular pay scale. By taking this court to schedule (I) of the said rules, it is urged that their exist a post of Data Entry Operator but this post is in the fixed pay of Rs. 2500/- monthly. This is not a regular post carrying the regular pay scale. Hence, in absence of post, the petitioner was erroneously regularized. Respondents have rectified that mistake by the impugned order. He submits that when their exists no sanctioned post which carries pay scale of 5200-20, 2000 no error can be found in the action of respondents. 7. No other point is pressed by the learned counsel for the parties. 8. I have heard learned counsel for the parties and perused the record. 9. This is not in dispute between the parties that petitioner's case came up for consideration before the State Level Committee on 08.07.2009. The said Committee found petitioner's case as deserving for consideration for regularization. Accordingly, CEO was directed to consider the case of the petitioner. The orders dated 13.07.2007 (Annexure R/4) and 02.08.2009 (Annexure R/5) make it clear that petitioner was working in Zila Panchayat (D.R.D.A.) Morena. Zila Panchayat by communication Annexure P/10 and P/11 made it clear that one post of computer operator is lying vacant. In this factual backdrop, the contention of Shri Vivek Jain needs to be examined. The contention of Shri Jain is that the petitioner has not completed ten years of service. This contention is based on order Annexure R/5. A plain reading of Annexure R/5 makes it clear that respondents have taken a conscious decision to "reinstate" the petitioner. They have used the word The word "reinstatement" has a definite connotation in service jurisprudence. It is different than the word "reappointment". Once an employee is reinstated, it will be presumed that he continued in employment, whereas when employee is reappointed, he is appointed afresh. Para 1 of Annexure R/5 shows that respondents have decided to reinstate the petitioner on his application made in this regard. I am unable to read this order and Annexure R/5 as an order of "reappointment". Accordingly, for all practical purposes, it must be treated that petitioner was reinstated. Resultantly, his services from 1991 must be treated to be continued pursuant to said reinstatement. 10. I am unable to read this order and Annexure R/5 as an order of "reappointment". Accordingly, for all practical purposes, it must be treated that petitioner was reinstated. Resultantly, his services from 1991 must be treated to be continued pursuant to said reinstatement. 10. So far reliance on Rules of 1995 are concerned, no doubt, as per said rules the relevant post is mentioned in the schedule as a post carrying the fixed scale. However, in the present case the respondents have decided to draw the salary from the head of DRDA administration. The relevant portion of regularization order Annexure P/2 reads as under:- (Emphasis supplied) 11. 1999 Rules and impediment of fixed pay is not applicable on the petitioner's case because Annexure P/2 made it clear that salary will be drawn from head of DRDA administration. No material is shown by the respondents that pay of Data Entry Operator in DRDA is also Rs. 8980/- per month. Resultantly, the action of respondents in placing reliance on 1999 Rules for depriving the petitioner from pay scale is impermissible and unjustifiable. So far the earlier judgment which is subject matter of challenge in WA 498/2010 is concerned, no view is required to be expressed in this matter. The parties will have to bear the consequence of said decision at appropriate time. So far the matter in hand is concerned, impugned action of respondents on both counts that petitioner has not completed 10 years and he is not entitled for the pay scale cannot be upheld. 12. Apart from this, it is noteworthy that petitioner has filed a detailed reply to the show cause notice. In the impugned order, the respondents have reached to a conclusion that petitioner's reply is not satisfactory. However, there is no analysis as to why the petitioner's contention mentioned in the reply are not trustworthy. Putting it differently, in the impugned order, respondents have not assigned reasons for the conclusion aforesaid. For this reason also interference is warranted. As analyzed above, impugned order Annexure P/1 dated 15.7.2011 is set aside. Respondents are directed to provide all consequential benefits to the petitioner, as if said order is never passed, within three months. 13. With the aforesaid, petition is disposed of.