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2020 DIGILAW 424 (MP)

Prabha Agrawal v. State Of M. P. And Others

2020-03-17

SUBODH ABHYANKAR

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JUDGMENT Subodh Abhyankar, J. - This writ petition has been filed by the petitioner under Article 226 of the Constitution of India against the order dated 29.10.2015 as also order dated 8.12.2015 passed by the respondents No.1 and 3 respectively. Vide order dated 29.10.2015 a five Members Scrutiny Committee under the Chairmanship of the respondent No.1-Principal Secretary of the Public Works Department (for short "PWD") has held the appointment of the petitioner, a daily wager employee, to be illegal and subsequently on 8.12.2015 the final order has been passed. 2. In brief the case of the petitioner is that she was initially appointed on 13.9.1983 on the post of Hindi/ English Typist as a daily wager in PWD and continued to be in regular and continuous employment of the department from 23.10.1988 till date. The further case of the petitioner is that the State Government, in the year 1990 formulated a scheme for regularization of the employees, employed in its various departments on daily wages, pursuant to which the entitlement for regularization was to be determined by the screening committee and the committee found the petitioner to be eligible for regularization and the petitioner's services were regularized on 1.8.1997 and she was posted as regular employee in the office of PWD Bhopal. 3. The further case of the petitioner is that although she was entitled to all the consequential benefits after her regularization, however, her services as regular employee were terminated vide order dated 30.9.1997 without giving any opportunity of hearing to her. The aforesaid order dated 30.9.1997 was challenged by the petitioner before the State Administrative Tribunal by filing Original Application but after abolition of the Tribunal the said case was transferred to the High Court and was re-numbered as WP No.23743/2003 and this Court vide order dated 15.9.2009 dismissed the said writ petition upholding the validity of the impugned order of termination, as the contention of the State was that although the petitioner was regularized, however, on account of certain complaints made by the other employee senior to the petitioner, her services were terminated after giving her one month's salary as per the terms of the appointment. Being aggrieved of the said order dated 15.9.2009, the petitioner preferred WA No.1238/2009, which was disposed of by the Division Bench of this Court on 5.12.2013 directing the respondent No.2/Engineer-in-Chief of the PWD to decide as to whether the termination order dated 30.9.1997 was warranted or not and if found to be not warranted, to consider the entitlement of the petitioner for regularization of her service with all consequential benefits and pursuant to which, the Engineer-in-Chief vide its order dated 28.6.2014 came to a conclusion that the termination order of the petitioner was unwarranted and the petitioner was entitled for regular appointment from 30.9.1997 with all consequential benefits and arrears of salary. When the aforesaid order was sent to the respondent No.1, Principal Secretary of the Department, a five Members Scrutiny Committee under the Chairmanship of the respondent No.1 was constituted, who has given its decision on 29.10.2015 (Annexure P-7), which is under challenge before this Court and thereafter second impugned order dated 8.12.2015 (Annexure P-8) has been passed by the respondent No.3 holding the appointment of the petitioner to be illegal. 4. Learned counsel for the petitioner has submitted that in the Writ Appeal No.1238/2009 preferred by the petitioner, the Division Bench of this Court has specifically directed the respondent No.2- Engineer-in-Chief to decide the petitioner's case within six weeks time, but despite there being an order passed in favour of the petitioner by the Engineer-in-Chief, the Scrutiny Committee was constituted by the Principal Secretary for no apparent reason, which passed the order contrary to the direction of the Division Bench and thus the committee so constituted has circumvented the order passed by this Court. Hence, on this ground only the learned counsel for the petitioner has submitted that the impugned orders are liable to be set aside. Learned counsel for the petitioner has further submitted that even otherwise in the impugned order the committee has relied upon the decision of the Hon'ble Apex Court in the case of Secretary, State of Karnataka Vs. Uma Devi, 2006 4 SCC 1 despite the fact the petitioner's case did not fall under the said category for the reason that in the said decision was related to the regularization in service, whereas the petitioner had already been regularized and the dispute was the correctness of the termination order issued to the petitioner subsequent to her being regularized. 5. 5. Learned counsel for the petitioner has further submitted that the services of the petitioner were regularized vide order dated 1.8.1997 but her services were abruptly terminated on 30.9.1997 and this Court in WP No.23743/2003 directed the respondents to decide the petitioner's case strictly in accordance with the circular dated 16.5.2007 as also the order/clarification dated 8.2.2008 and pass suitable order within a period of three months whereas in WA No.1238/2009 preferred by the petitioner, the Division Bench of this Court vide order dated 5.12.2013 directed the appropriate authority i.e. the Engineer-in-Chief to grant ex post facto hearing to the petitioner and to other employees concerned within a period of six weeks time and thus on 28.6.2014 the Engineer-in-Chief found the petitioner to be entitled for regular appointment. Thus learned counsel for the petitioner has submitted that gross illegality has been committed by the respondents in passing the impugned orders. 6. On the other hand, learned counsel for the respondents has submitted that the petition being misconceived is liable to be dismissed as the petitioner's regularization order dated 1.8.1997 was cancelled on 30.9.1997 and although the same was also affirmed by the Single Bench in W.P. No.23743/2003(s) but while disposing of the case, at the instance of the counsel for the petitioner, the petitioner's case was directed to be decided in the light of the circulars in vogue. In the writ appeal arising out of the said order, the Division Bench of this Court vide order dated 5.12.2013 has not interfered with the termination/cancellation of regularization order dated 30.9.1997 and disposed of the writ appeal directing the respondent No.2 to grant ex post facto hearing to the petitioner and to other employees concerned within a period of six weeks time. It is further submitted that although the case of the petitioner was considered by the Engineer-in-Chief as directed by the Division Bench of this Court in writ appeal but the same was sent by the Engineer-in-Chief to the Principal Secretary of the Department for its confirmation. It is further submitted that although the case of the petitioner was considered by the Engineer-in-Chief as directed by the Division Bench of this Court in writ appeal but the same was sent by the Engineer-in-Chief to the Principal Secretary of the Department for its confirmation. Thus, it is submitted that the Engineer-in-Chief only complied with the order passed by this Court, however, it was incumbent upon him to place the aforesaid order before the Principal Secretary of the Department who in the light of the decision rendered in the case of Uma Devi (supra) in which certain directions have been made to the State Government to consider the case of the daily wage employees for regularization by constituting State Level Committee headed by the Principal Secretary of the Department and thus, in pursuance of the order of the Hon'ble Supreme Court, a committed was constituted and the case of the petitioner scrutinized. It is further submitted that scrutiny committee has gone through the material available on record and found that the petitioner was not entitled for regularization and as such the same was cancelled within a period of one month and after cancellation of regularization of the petitioner, the petitioner has continued in service on the minimum of the pay scale and her regularization order was only for a period of one month, hence no right has accrued to her to challenge the same. Thus it is submitted that the petition being misconceived is liable to be dismissed. 7. In rebuttal, Shri Prasad, learned counsel for the petitioner has submitted that in an information sought by the petitioner under Right to Information Act, 2005 seeking document in respect of her case, she has been informed that vide letter dated 24.5.2016 that her initial letter of appointment being 33 year old, was not available and since the documents are stuck together, it is not possible to give the photocopy of the same. Thus, it is submitted that when on 24.5.2016 itself the document relating to the petitioner's case was not available, how the committee came to such conclusion regarding the veracity of the petitioner's order of regularization. Thus it is submitted that the aforesaid report prepared by the committee belies their own documents obtained by the petitioner under the RTI Act and thus it is reiterated that the impugned orders be quashed. 8. Thus it is submitted that the aforesaid report prepared by the committee belies their own documents obtained by the petitioner under the RTI Act and thus it is reiterated that the impugned orders be quashed. 8. Heard the learned counsel for the parties and perused the record. 9. On perusal of the record, specially the orders passed by this Court on 15.09.2009 in W.P. No.23743/2003(s) as also the order dated 05.12.2013 in W.A.No.1238/2009, this Court is of the considered opinion that that the entire edifice of the petitioner's contentions is based on a wrong assumption and misreading of the aforesaid orders, that, after passing of the order in W.A. No.1238/2009 the order of regularization stood affirmed as the only direction given by the Division Bench was to decide the issue of termination. It would be fruitful to the relevant paras of the said orders which read as under:- W.P.No.23743/2003(s). Thus, since no right can be said have occrued in favour of the petitioner to substantively hold the post of Assistant Grade III, the action of the respondent in relegating her to the status of adaily wage worker cannot be found fault with. At this juncture learned counsel for the petitioner submits that the petitioner is continuously working since 1988 and the State of M.P., in pursuance to the director by the Supreme Court in Uma Devi (supra) has framed the policy of regularization and circulated videcircular dated 16.5.2007 and reiterated/clarified vide letter dated 8.2.2008and accordingly it is urged that, the respondents may be directed to consider her case as per these orders/circular. The learned Govt. Advocate does not dispute that a policy of regularization has been framed and if directed the case of the petitioner shall be considered in accordance with same. Therefore, keeping in view the aforesaid submission, the petition is disposed of with a direction to respondents to consider the case of the petitioner strictly in accordance with the circular dated 16.5.2007 and order/ clarification dated 8.2.2008 and pass suitable order within a period of three months from the date of communication of this order. The petition is thus disposed of finally in above terms. However, no cost. W.A.No.1238/2009 ... The fact remains that the Appellate Authority passed the impugned termination order, dated 30th September, 1997 withoutgiving opportunity of being heard to the appellant. The petition is thus disposed of finally in above terms. However, no cost. W.A.No.1238/2009 ... The fact remains that the Appellate Authority passed the impugned termination order, dated 30th September, 1997 withoutgiving opportunity of being heard to the appellant. However at this distance of time at the instance of the appellant we are not inclined to set aside her termination orderdated 30th September, 1997 on this count alone. Instead we would would dispose of the appeal with direction to the Appropriate Authority to grant ex post facto hearing to the appellant as also to the said Smt. Sujan George and Smt. Janki Leelani including other employee who, according to the appellant have been regularised although they were junior to the appellant at the relevant time. The Appropriate Authority, namely, The Engineer-in- Chief, Public Works Department (respondent No.2 herein), shall undertake that process expeditiously and decide the same not latter than six weeks from today. The Appellate Authority shall afford opportunity of being heard to all concerned, as aforesaid, before passing a final order. In the event, the respondent No.2 upholds the objections of the appellant that the order of termination, dated 30th September, 1997 was not warranted at all, may pass consequential directions for giving all consequential benefits and arrears of salary to the appellant w.e.f. 30th September, 1997. In the event, the respondent No.2 is of the opinion that the appellant would be entitled for regularisation from prospective date, suitable directions, regarding consequential benefits and arrears of salary be issued by the respondent No.2 on that basis. The respondent No.2 shall take decision on its own merits in accordance with law uninfluenced by earlier decisions including the impugned termination order. The appeal is disposed of on the above terms. A perusal of the order dated 30.09.1997 also reveals that by this order only the order of regularization has been cancelled whereas the petitioner is allowed to continue as a daily wager. 10. So far as the jurisdiction of the scrutiny committee to pass the order dated 29.10.2015 is concerned, the same was constituted in accordance with the decision rendered in the case of Uma Devi (supra) by the Supreme Court, hence no fault can be found in its constitution. 10. So far as the jurisdiction of the scrutiny committee to pass the order dated 29.10.2015 is concerned, the same was constituted in accordance with the decision rendered in the case of Uma Devi (supra) by the Supreme Court, hence no fault can be found in its constitution. But, it is also found that this committee has given its independent finding regarding the entitlement of the petitioner without even adverting at once to the report dated 28.06.2014 submitted by the Engineer-inChief, despite the fact that the petitioner's case was put up before the said committee only on a recommendation/ report dated 28.06.2014 made by the Engineer-in-Chief, which in turn was prepared at the direction issued by this Court in W.A.No.1238/2009. In view of the same, this Court is of the considered opinion that the scrutiny committee ought to have taken into account the report dated 28.06.2014 submitted by the Engineer-in-Chief which could be the only proper course available to it, not only to give some credence to the order passed by this Court in writ appeal but also to bring it to some logical conclusion. 11. Thus, tested on the aforesaid finding recorded by this Court, the impugned orders dated 29.10.2015 (Annexure P/7) as also the order dated 8.12.2015 (Annexure P/8) passed by the respondents No.1 and 3 respectively having been passed without application of mind, cannot be countenanced in the eyes of law and are hereby set aside and the matter is remanded back to the respondent No.1 to decide the petitioner's case afresh in the light of the observations made herein above after giving due opportunity of the hearing to the petitioner and other affected persons. The aforesaid exercise be completed within a further period of four months from the date of receipt of the certified copy of this order. 12. Accordingly, petition stands allowed and disposed of. No cost.