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Madhya Pradesh High Court · body

2016 DIGILAW 1088 (MP)

Prem Lal Mokhalgai v. State of Madhya Pradesh

2016-11-29

VANDANA KASREKAR

body2016
JUDGMENT : MS. VANDANA KASREKAR, J. 1. With consent both the parties the matter is heard finally at motion stage. 2. The petitioners have filed the present petition under Article 226 of the Constitution of India, challenging the orders dated 7.1.2011 and 12.01.2011 passed by respondent no.4 whereby regular appointment of the petitioners on the post of driver in the pay scale of 950-1530 has been cancelled. 3. The petitioners are having license of driving light motor vehicles and therefore, they were appointed on daily wages on the post of driver. Petitioner no.1 was appointed on 3.04.1990 in R.E.S. Sub Division, Chhindwara and petitioner no.2 was appointed in R.E.S. Division No.2, Chhindwara. The services of the petitioner no.1 was terminated in the year 1998 and petitioner no.2 in the year 1999 after paying retrenchment compensation. Thereafter, as per the policy framed by the State Government they were directed to refund the amount of compensation and joined their duties. Thus, they were reappointed on the post of drivers vide order dated 26.04.2004. Since, then the petitioners are continuously work on the said post. Thereafter, in light of the judgment passed by the Apex Court in the case of Uma Devi, respondent no.3 has made a recommendation to regularize the services of the petitioners. In light of this recommendation, respondent no.3 has issued the orders dated 7.01.2011 and 12.01.2011 granting regular pay scale to the petitioners treating them temporary members of the work charged establishment under Rules known as M.P. Work Charged and Contingency Paid Employees Revision of Pay Rules, 1990, thereafter, as the respondents have not paid the salary to the petitioners, therefore, they have made representation to grant the same. However, no action has been taken. To utter surprise to the petitioners, respondent no.4. issued the orders dated 4.07.2012 whereby informing the petitioners that respondent no.3 has already cancelled the orders dated 7.01.2011 and 12.01.2011 vide order dated 29.02.2012 and also directed to made the recovery in installments. The petitioners immediately submitted a representation on 4.07.2012 but no action has been taken, the petitioners, therefore, filed the present writ petition. 4. issued the orders dated 4.07.2012 whereby informing the petitioners that respondent no.3 has already cancelled the orders dated 7.01.2011 and 12.01.2011 vide order dated 29.02.2012 and also directed to made the recovery in installments. The petitioners immediately submitted a representation on 4.07.2012 but no action has been taken, the petitioners, therefore, filed the present writ petition. 4. Respondents in there reply have stated that the recovery of excess amount of salary paid to the petitioners have been affected in view of the fact that the order dated 12.01.2011 on the basis of which the petitioners were sanctioned regular pay scale was cancelled wide order dated 29.02.2012 and they are not entitled to get the payment of salary in the regular pay scale after cancellation of order dated 12.01.2011. Respondents have further stated that the case of the petitioners was considered for regularization by the scrutiny committee of the Department which was held on 1.02.2012 pursuant to the directions of the Hon'ble Supreme Court in Uma Devi's case. The scrutiny committee found that the appointment of the petitioner no.1 to be illegal on the ground that he has engaged on the basis of oral orders and at the time of engagement he was also above the minimum age prescribed. Similarly, in the case of the petitioner no.2 it was found that he has not completed 10 years of services as on 10.4.2006 and therefore, as per GAD instructions he was not considered for regularization. Thus, on the basis of the report of the scrutiny committee, the order Annexure R-1 was issued cancelling the earlier order dated 12.01.2011. 5. The petitioners have filed their rejoinder and in the rejoinder they have stated that the respondents have wrongly calculated the age of the petitioner no.1. He was appointed on 13.04.1990 and his date of birth is mentioned as 07.08.1968 and as such his age comes to 22 years 8 months and not 31 years and 6 months as mentioned in Annexure R-2. Similarly, it is also wrong to say that the petitioner no.2 did not complete 10 years of service on the date. In fact, consideration has to be made counting the service on the date of consideration. On the date of consideration, petitioner no.2 has completed 10 years of service and therefore, regularization has been correctly made and could not have been cancelled at all. In fact, consideration has to be made counting the service on the date of consideration. On the date of consideration, petitioner no.2 has completed 10 years of service and therefore, regularization has been correctly made and could not have been cancelled at all. In the present case, the scrutiny committee considered the case on 8.07.2009 and as the petitioner no.2 was appointed on 21.5.1996, he put 10 years of services. 6. Learned counsel for the petitioners argues that the impugned order has been passed unilaterally without giving any opportunity of being heard to the petitioners. He submits that the services of the petitioners were regularized in accordance with the directions issued by the Apex Court in the case of Uma Devi. The petitioners have already completed more than 10 years of services. Services of the petitioners were regularized in 2011, however, no objections have been raised by any of the respondents till 2012. Since, the order of recovery is also bad in law as the petitioners have not been put to any notice against the order of recovery. On the basis of which the scrutiny committee has rejected the claim of the petitioners are also baseless. Petitioner no.1, at the time of appointment, was 22 years of age and not 31 years as alleged by the respondents. So far as, the petitioner no.2 is the concerned and he has completed 10 years of service. Therefore, the order passed by the respondents, cancelling appointment order of the petitioners is illegal and arbitrary. On the other hand, learned Panel Lawyer appearing on behalf of the respondents submits that in the present case, the scrutiny committee has considered the case of the petitioners for regularization and does not found the petitioners to be eligible for regularization. Therefore, the respondents have rightly cancelled the order of regular pay scale. 7. I have heard learned counsel for the parties and perused the record. 8. From perusal of the record, it appears that the petitioners were appointed on 3.04.1990 on the post of driver, their services were removed in 1998-1999 after paying the retrenchment compensation. Thereafter, as per the policy framed by the State Government they were reappointed on the post of drivers vide order dated 26.04.2004 after refunding the amount of compensation. Therefore, in light of the judgment passed by the Apex Court in the case of Uma Devi. Thereafter, as per the policy framed by the State Government they were reappointed on the post of drivers vide order dated 26.04.2004 after refunding the amount of compensation. Therefore, in light of the judgment passed by the Apex Court in the case of Uma Devi. The petitioners were granted the benefit of regular pay scale w.e.f. 07.01.2011 and 12.01.2011 thereafter respondent no.2 has issued the order dated 04.07.2012 whereby cancelling the orders dated 7.01.2011 and 12.01.2011 and further directed to made the recovery of excess amount made to the petitioners in 19 installments. Before passing the said orders, no notice or any opportunity of hearing is given to the petitioners, therefore, the impugned orders passed by respondent no.4 are in violation of principles of natural justice and the same is, therefore, liable to be quashed. 9. Thus, the petition is allowed and the impugned orders dated 4.07.2012 are hereby quashed. However, respondents are at liberty to pass the fresh order after giving opportunity of hearing to the petitioners. 10. Certified copy as per rules.