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Madhya Pradesh High Court · body

2020 DIGILAW 1059 (MP)

Ashish Kumar Singh v. State of M. P.

2020-10-08

SANJAY DWIVEDI

body2020
ORDER 1. This petition under Article 226 of the Constitution of India has been filed by the petitioner seeking quashment of the order dated 10.8.2017 (Annexure-P/12) passed by the respondents in compliance of the order passed by this Court in W.P. No.8528/2003, refusing to grant seniority to the petitioner with effect from 1.10.1993 to 28.3.2007, as the petitioner remained out from service during the said period. 2. The challenge is made basically on the ground that the order passed by the writ Court has been affirmed till Supreme Court but the authority misinterpreted the said order and passed the impugned order contrary to the directions given by this Court. 3. As per the facts of the case, the petitioner was appointed against the post of Lower Division Clerk (LDC) on the pay-scale of Rs.950- 1530 vide order dated 27.12.1990 (Annexure-P/1). 4. In the year 1993, vide order dated 5.2.1993, services of the petitioner and one Smt. Shanti Shrivastava along with three others, were terminated by the Commissioner, Sagar. Smt. Shanti Shrivastava filed an Original Application challenging her termination before the then State Administrative Tribunal and the same was allowed settingaside the order of her termination on the ground that no opportunity was given to her before issuance of the order of termination. 5. Again vide order dated 4.8.1993, after giving a show-cause notice to Smt. Shanti Shrivastava, her services were terminated. The said order was assailed by her, by filing an Original Application before the Tribunal, which was allowed vide order dated 23.10.1993 directing reinstatement of Smt. Shanti Shrivastava with full backwages. 6. The present petitioner had also approached the Tribunal challenging his termination by filing an Original Application, which was allowed and he was reinstated in service. But again on 18.5.1993, a show cause notice was issued to him and his services were terminated on 16.9.1993. 6. The present petitioner had also approached the Tribunal challenging his termination by filing an Original Application, which was allowed and he was reinstated in service. But again on 18.5.1993, a show cause notice was issued to him and his services were terminated on 16.9.1993. Thereafter, the petitioner filed an Original Application i.e. O.A. No.3396/1993 and after abolition of the State Administrative Tribunal, the record of said case was transmitted to the High Court and that case was re-numbered as W.P. No.8528/2003, which was disposed of vide order dated 10.2.2004 with the following directions:- "Regard being had to the aforesaid factual matrix, it is directed that the respondent No.1 shall adjudicate the case of the Petitioner keeping in view the principles of parity and the applicability of the decision rendered in the case of Smt. Shanti Shrivastava and another v. State of M.P. and others, and pass a reasoned order and extend the benefit as was extended to the petitioner in the said case, if the case of the petitioner is covered. However, the petitioner shall not be entitled to any back wages. The exercise in this regard be completed within a period of three months from the date of receipt of the certified copy of the order passed today. Needless to emphasize the State that non-granting of backwages would not ef ect the petitioner's continuity and seniority in service." 7. Against the said order, SLP was filed by the State but that SLP was dismissed and the order passed by the writ Court in W.P. No.8528/2003 has accordingly attained finality. The petitioner by the instant petition is, therefore, claiming parity that he may also be granted the same benefit as has been granted to Smt. Shanti Shrivastava as she was granted the benefits including continuity and seniority in service. As per the petitioner, the respondents without following the said direction passed in W.P. No.8528/2003, rejected the claim of the petitioner by issuing the impugned order dated 10.8.2017 and declined to give the benefit of seniority to the petitioner. 8. The petitioner, therefore, has assailed the order impugned on the ground that just to circumvent the order passed by this Court, the respondents have issued the impugned order that too without assigning any reason as to why the petitioner cannot be extended the same benefit as had been given to Smt. Shanti Shrivastava. 8. The petitioner, therefore, has assailed the order impugned on the ground that just to circumvent the order passed by this Court, the respondents have issued the impugned order that too without assigning any reason as to why the petitioner cannot be extended the same benefit as had been given to Smt. Shanti Shrivastava. It is further contended by learned counsel for the petitioner that the impugned order is contrary to the directions issued by this Court and even the reply filed by the respondents is also silent to the extent as to why the petitioner cannot be granted the same benefit as was given to Smt. Shanti Shrivastava. 9. However, reply has been filed by the respondents trying to substantiate that the case of the petitioner was not similar to that of Smt. Shanti Shrivastava as she was regularly performing the duties but the petitioner was out of job till year 2007 and as such, he cannot claim parity with Smt. Shanti Shrivastava and therefore, the benefit of seniority was not granted to him. 10. After hearing the rival contentions of learned counsel for the parties and perusing the record, I am of the opinion that the impugned order dated 10.8.2017 (Annexure-P/12) is not sustainable in the eyes of law, being contrary to the directions issued by the writ Court in W.P. No.8528/2003, which has attained finality. 11. I am also of the opinion that the stand taken by the respondents distinguishing the case of present petitioner with that of Smt. Shanti Shrivastava, is without any foundation. As per the settled principle of law, the validity of an order is tested for the reason assigned in the said order but not on account of the reason which is supplemented by way of an affidavit or any additional reply or corrigendum. As held in a case reported in AIR 1978 SC 851 (Mohinder Singh Gill v. Chief Election Commissioner North Delhi). 12. As held in a case reported in AIR 1978 SC 851 (Mohinder Singh Gill v. Chief Election Commissioner North Delhi). 12. However, in the reply submitted by the respondents/State, in paragraph-7, they have tried to justify their order but that stand is also not acceptable for the reason that since the petitioner was out of service, therefore, the Court has refused to grant him the benefit of back wages, whereas Smt. Shanti Shrivastava had been granted the benefit of back wages and even after taking note of that aspect, the writ Court in W.P. No.8528/2003 has clarified that non-grant of back wages would not affect the petitioner's continuity and seniority in service. 13. Thus, this Court has no iota of doubt that the writ Court in W.P. No.8528/2003 was intending to grant the benefit of seniority to the petitioner despite the fact that he was out from service and therefore, refused to grant him back-wages and clarified that refusal of grant of back-wages would not mean refusal of benefit of continuity and seniority in service. Ergo, the order passed by the authority, which is impugned in this petition, is not sustainable and is hereby set-aside. 14. It is directed that the respondents shall give the benefit of seniority to the petitioner considering his continuity in service despite the fact that he remained out from service with effect from 1.10.1993 to 28.3.2007 and the petitioner be granted all consequential benefits as well. 15. The petition stands allowed with the aforesaid directions with a cost of Rs.10,000/-. Shreyas Pandit for petitioner; Anvesh Shrivastava, Panel Lawyer for respondents/State