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Madhya Pradesh High Court · body

2016 DIGILAW 1119 (MP)

Leela Tiwari v. State of M. P.

2016-12-07

J.K.MAHESHWARI

body2016
ORDER 1. This is the second round of litigation. 2. Writ Petitions No.4332/2013 and 4334/2013 have been filed being aggrieved by the order dated 29.4.2011 and Writ Petition No.15790/2014 has been filed being aggrieved by the order dated 20.3.2013, by which the claim of the petitioners seeking regularization on the post of Ayurved Compounder has been rejected. 3. It is to be noted here that in the first round of litigation this Court has directed that the case of the petitioners shall be considered in the light of the order dated 20.2.2009 passed in Writ Petition No.6046/2007 Dinesh Gupta v. State of M.P. and others and order dated 10.5.2010 passed in Writ Petition No.5440/2010 Rajesh Patel v. State of M.P. and others. In furtherance to the said directions orders impugned have been passed by the Directorate of Ayush which have been assailed in these petitions. 4. Petitioners inter alia contend that the case of Dinesh Gupta (supra), as well as Rajesh Patel (supra), are similar to the case of the petitioners as their appointment was not based on special recruitment drive as they do not belong to the Categories of SC, ST, OBC. In such circumstances, impugned orders passed by the Directorate of Ayush rejecting the claim of regularization from their initial contractual appointment, is illegal and arbitrary. Therefore, the orders impugned may be quashed. 5. It is said that the action of the respondents is discriminative from the aforesaid two persons which is apparent from the information supplied under Right to Information Act indicating that 12 persons of general category have been extended benefit of regularization from their initial appointment. 6. In view of the foregoing, it is urged that the impugned orders may be set aside and appropriate direction to regularize them from the date of initial contractual appointment may be issued. 7. The respondents have filed their reply inter alia contending that similar plea was raised by the petitioners before the Indore Bench but, rejecting such plea in a bunch of writ petitions, the issue as involved in the present case has been decided. 8. The order dated 10.9.2013 passed by Bench Indore in Writ Petition No.4170/2011 Suchit Kumar Choukade v. State of M.P. and others has been brought to the notice of this Court inter alia contending that the case of the petitioners is not distinguishable from the aforesaid cases of the Indore Bench. 8. The order dated 10.9.2013 passed by Bench Indore in Writ Petition No.4170/2011 Suchit Kumar Choukade v. State of M.P. and others has been brought to the notice of this Court inter alia contending that the case of the petitioners is not distinguishable from the aforesaid cases of the Indore Bench. It is stated that against the judgment of learned single Judge writ appeal has not been preferred, therefore, the order passed by the coordinate Bench has become absolute. However, the prayer as made in the writ petition cannot be granted and all these three petitions may be dismissed. 9. After hearing learned counsel for both the parties and on perusal of the facts of this case, it is apparent that the petitioners were appointed on contract basis and they are claiming regularization under the Government Policy. The orders of regularization of the petitioners have been passed but the relief as sought for is to extend such benefit from retrospective date i.e. from their initial date of contractual appointment. The similar issues have been considered by the Indore Bench in Suchit Kumar Choukade (supra). The relevant part of the order is reproduced as under : “6. Heard learned counsel for the parties at length and perused the record. 7. In the present case, it is an admitted fact that the petitioner was appointed in the year 2005. It is also an admitted fact that certain persons, who were appointed against the backlog vacancies, have been regularised with retrospective effect (one Sunil Kumar Joshi, Smt. Sunita Gupta, etc.,), whereas the case of the petitioner was not a case of filling up the backlog vacancies. It is pertinent to note that the petitioner was appointed in the year 2005 and only on completion of about 4 years' service, he has been regularised by an order dated 26.2.2009. As no statutory provisions of law has been brought to the notice of this Court warranting regularization of the petitioner from the date of initial appointment. This Court is of the considered opinion that the petitioner cannot be granted the benefit of regularization with retrospective effect i.e. w.e.f. 2005 in absence of any statutory provisions of law and also no executive instructions has been brought to the notice of this Court, the question of regularization of the petitioner with initial date of appointment does not arise. Hence, the prayer of the petitioner is turned down. Hence, the prayer of the petitioner is turned down. The writ petition is dismissed. 8. In other connected matters, some of the petitioners have been appointed prior to enactment of Madhya Pradesh Panchayat Sambida Seva (Bhartiya Chikitsha Paddati, Unani Tatha Homeopathy) Niyam, 1999, however facts remain that even those persons were not appointed alongwith the petitioner. No advertisement has been filed to establish that those appointments were also not against the backlog vacancies and therefore, once a distinguishing feature is in existence, it cannot be said that the petitioners are identically placed persons and are also entitled for regularization with retrospective effect and this Court does not find any reason to issue any direction to the respondents to regularise the petitioners in the other identical matters with retrospective effect. Hence, all the connected writ petitions are also dismissed. 9. No order as to costs.” 10. Considering the aforesaid, in my considered opinion the plea of discrimination as raised with Dinesh Gupta (supra), has been duly considered by the Coordinate Bench. Therefore, the writ petitions filed by the petitioners are bereft of merits. 11. It is to observe here that the order of Suchit Kumar Choukade (supra), applies mutatis mutandis to these petitions. Therefore, I am not inclined to take different view from the aforesaid order of the learned Coordinate Bench which squarely applies to these petitions. 12. Accordingly, these petitions are devoid of merits, hence, dismissed. H. S. Thakur and R. K. Tiwari for petitioners; S. Dwivedi, Deputy Advocate General for respondents/State. 2017 (I) MPWN 51 Prakash Shrivastava, J. Jaitun B v. Mohammad Writ Petition No.8282 of 2016 (I); Decided on 19.12.2016.* Civil P.C., 1908 -- O.9 R.7 -- maintainability of application under -- when hearing is complete in suit and case was reserved for judgment -- then application not maintainable. 2005(3) JLJ 303 (SC) and AIR 1964 SC 993 followed. [Paras 5 & 7 flfoy izfØ;k lafgrk] 1908 & vk-9 fu-7 & blds v/khu vkosnu dk pykus ;ksX; gksuk & tc okn esa lquokbZ iw.kZ gks xbZ gks rFkk ekeyk fu.kZ; ds fy, vkjf{kr dj fy;k x;k gks & rc vkosnu pykus ;ksX; ughaA 2005 ¼3½ ts ,y ts 303 ¼mPpre U;k-½ rFkk , vkb vkj 1964 ,l lh 993 vuqlfjrA ¼iSjk 5 ,oa 7½ ORDER 1. By this writ petition under Article 227 of the Constitution of India, the defendant has approached this Court aggrieved with the order of the trial Court dated 8.12.2016, by which the petitioner's application under Order 9 rule 7 read with section 151 of the CPC has been rejected as not maintainable. 2. Learned counsel appearing for the petitioner submits that the trial Court has committed an error in holding that the application under Order 9 rule 7 of the CPC was not maintainable at the final stage, whereas learned counsel for the respondent has supported the impugned order. 3. Having heard the learned counsel for the parties and on perusal of the record, it is noticed that the matter was repeatedly fixed by the trial Court for examination of the defendant's witnesses but the said opportunity was not availed by the petitioner, therefore, on 18.11.2016 when neither the petitioner nor his counsel had appeared, the trial Court had proceeded ex parte and heard the final arguments and reserved the case for judgment. Thereafter on 28.11.2016 the petitioner had filed an application under Order 9 rule 7 read with section 151 of the CPC for setting aside the ex parte proceedings which has been rejected by the trial Court on the ground that since the case was already reserved for judgment, therefore, the application was not maintainable. 4. Order 9 rule 7 of the CPC provides that :- “Procedure where defendant appears on day of adjourned hearing and assigns good cause for previous non-appearance.- Where the Court has adjourned the hearing of the suit ex parte, and the defendant, at or before such hearing, appears and assigns good cause for his previous non-appearance, he may, upon such terms as the Court directs as to costs or otherwise, be heard in answer to the suit as if he had appeared on the day fixed for his appearance.” 5. A bare reading of the aforesaid provision makes it clear that the provision is attracted in a case where the Court has adjourned the hearing of the suit ex parte and the application is filed before such hearing, therefore, in a case where the final arguments in the suit are heard and the matter is reserved for judgment, the aforesaid provision will not be attracted because in such an eventuality the case is not adjourned for hearing. This aspect was considered by the Supreme Court in the matter of Arjun Singh v. Mohindra Kumar and others, reported in AIR 1964 SC 993 , wherein it has been held as under :- “17. So far as the case before us is concerned the order under appeal cannot be sustained even on the basis that the finding recorded in disposing of an application under O.IX, R.7 would operate as res judicata when the same question of fact is raised in a subsequent application to set aside an ex parte decree under O.IX, R.13. This is because it is not disputed that in order to operate as res judicata, the Court dealing with the first matter must have had jurisdiction and competency to entertain and decide the issue. Adverting to the facts of the present appeal, this would primarily turn upon the proper construction of the terms of O.IX, R.7. The opening words of that rule are, as already seen, 'Where the Court has adjourned the hearing of the suit ex parte'. Now, what do these words mean? Obviously they assume that there is to be "a hearing" on the date to which the suit stands adjourned. If the entirety of the "hearing" of a suit has been completed and the Court being competent to pronounce judgment then and there, adjourns the suit merely for the purpose of pronouncing judgment under O.XX, R.1, there is clearly no adjournment of "the hearing" of the suit, for there is nothing more to be heard in the suit. It was precisely this idea that was expressed by the learned Civil Judge when he stated that having regard to the stage which the suit had reached the only proceeding in which the appellant could participate was to hear the judgment pronounced and that on the terms of rules 6 and 7 he would permit him to do that. If, therefore, the hearing was completed and the suit was not "adjourned for hearing", O.IX, R.7 could have no application and the matter would stand at the stage of O.IX, R.6 to be followed up by the passing of an ex parte decree making R.13 the only provision in order IX applicable. If, therefore, the hearing was completed and the suit was not "adjourned for hearing", O.IX, R.7 could have no application and the matter would stand at the stage of O.IX, R.6 to be followed up by the passing of an ex parte decree making R.13 the only provision in order IX applicable. If this were the correct position, it would automatically follow that the learned Civil Judge would have no jurisdiction to entertain the application dated May 31, 1958 purporting to be under O.IX, R.7, or pass any order thereon on the merits. This in its turn would lead to the result that the application under O.IX, R.13 was not only competent but had to be heard on the merits without reference to the findings contained in the previous order.” 6. This issue was again examined by the Supreme Court in the matter of Bhanu Kumar Jain v. Archana Kumar and another, reported in 2005(3) JLJ 303 = (2005)1 SCC 787 , wherein after considering the earlier judgments on the point, it has been held that :- “16. Order 9 rule 7 of the Code postulates an application for allowing a defendant to be heard in answer to the suit when an order posting a suit for ex parte hearing was passed, only in the event, the suit had not been heard; as in a case where hearing of the suit was complete and the Court had adjourned a suit for pronouncing the judgment, an application under Order 9 rule 7 would not be maintainable. (See Arjun Singh v. Mohindra Kumar). The purpose and object of Order 9 rule 7 of the Code has been explained by this Court in Vijay Kumar Madan v. R.N. Gupta Technical Education Society and Ramesh Chand Ardawatiya v. Anil Panjwani.” 7. Keeping in view the aforesaid position in law, the trial Court has not committed any error in holding that the application under Order 9 rule 7 of the CPC was not maintainable because the final hearing in the suit had taken place and the case was reserved for judgment. 8. The writ petition is devoid of any merit, which is accordingly dismissed.