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Madhya Pradesh High Court · body

2018 DIGILAW 96 (MP)

Prakash Soni v. State of M. P.

2018-01-23

SUJOY PAUL

body2018
ORDER : The original petitioner Prakash Soni, who was initially employed on daily rated basis in the year 1982 was regularized by the department in the year 2000. A show cause notice was given to him against which he filed a detailed reply. The respondents by order dated 26-9-2011 Annexure P-11 declared the petitioner as ineligible as per Rule 6(5) of the M.P. Civil Services (General Conditions of Services) Rules, 1961 (for short, ‘the Rules of 1961’). 2. A plain reading of impugned order shows that the admitted facts between the parties are that the original petitioner was appointed as a daily rated employee. He solemnized marriage on 3-4-1983 when his age was twenty years two months and fifteen days only. Thus, the show cause notice was given as to why he should not be declared as ineligible as per sub-rule (5) of Rule 6 of the Rules of 1961. 3. After obtaining the petitioner's reply, the respondents declared the petitioner as ineligible. 4. Learned counsel for the petitioner assailed this order on the singular ground that the said rules were amended w.e.f. 13-4-2000 and the amended portion of Rules is not retrospective in operation. 5. At the time of petitioner's appointment and regularisation, there was no such prohibition and therefore, service condition applicable at the time of appointment/for regularization will be applicable and amended provision which became part of statute book w.e.f. 13-4-2000 cannot be a reason to declare the petitioner as ineligible. 6. Per contra, Shri Rahul Mishra, learned G.A. for the respondent/State supported the impugned order for the reasons stated therein. By taking this Court to the return, Shri Mishra, learned G.A. contended that petitioner was not eligible for appointment because he got married prior to completion of 21 years of age. It is submitted that the validity of general conditions of service rules were tested in Gendlal v. State of M.P., 2007 (2) M.P.L.J. 462 : ILR 2007 M.P. 1040. The rules were upheld and therefore, as per those rules, no fault can be found in the impugned order. Lastly, learned G.A. submits that the original petitioner was regularized as Forest Guard in the year 2008 and before such regularization, the sub-rule (5) was inserted under Rule 6 of Rules, 1961. Thus, the said rules is very much applicable. 7. No other point is pressed by counsel for the petitioner. 8. Lastly, learned G.A. submits that the original petitioner was regularized as Forest Guard in the year 2008 and before such regularization, the sub-rule (5) was inserted under Rule 6 of Rules, 1961. Thus, the said rules is very much applicable. 7. No other point is pressed by counsel for the petitioner. 8. I have heard counsel for the parties and perused the record. 9. In the impugned order, the singular reason assigned to declare the petitioner as ineligible is sub-rule (5) of Rule 6 of the 1961 Rules. Admittedly, the said rules were amended on 13-4-2000. The petitioner was appointed as daily rated employee in the year 1982. 10. The admitted facts between the parties are that the petitioner was appointed on daily rated basis in the year 1982 and after completing more than ten years of service, in a departmental selection, he was selected as Forest Guard. It cannot be doubted that at the time of initial appointment/engagement of petitioner as daily rated basis, there was no impediment on his employment because of said marriage which is allegedly solemnized before attaining the age of 21 years. In the peculiar facts of this case, in my view, the order dated 17-12-2008 shows that it is in fact an order of regularization/regular appointment of an existing employee, who was worked on daily rated basis. Thus, the amended provision ingrained in the shape of sub-rule (5) of Rule 6 of Rules of 1961 cannot be pressed into service. More so, when the legislature found said sub-rule (5) to be improper and omitted it on 24-5-2013 from the statute book. Thus, the said provision remained in operation for a very small period and the same should not adversely affect the original petitioner. The original petitioner also died during the pendency of this petition. Thus, the impugned order will have an adverse impact on his dependents i.e. widow and children. The impugned order will deprive them from the fruits of GIS benefit and compassionate appointment etc. for which a separate petition is pending and will be dealt with separately. 11. The original petitioner also died during the pendency of this petition. Thus, the impugned order will have an adverse impact on his dependents i.e. widow and children. The impugned order will deprive them from the fruits of GIS benefit and compassionate appointment etc. for which a separate petition is pending and will be dealt with separately. 11. In the peculiar facts and circumstances of this case, in my view, it will not be in the interest of justice to countenance the order dated 26-9-2011 whereby the original petitioner was declared as ineligible for appointment on the basis of sub-rule (5), which cannot be pressed into service for the reasons stated herein above. Resultantly, order dated 26-9-2011 is set aside. This order passed in the peculiar facts of this case shall not be treated as a precedent. 12. The petition is allowed. No cost.