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2024 DIGILAW 801 (MP)

State of M. P. v. Ramniwas Awasthi

2024-12-20

MILIND RAMESH PHADKE, SUNITA YADAV

body2024
ORDER 1. This order shall govern final disposal of Writ Appeals No.906 of 2020 and 415 of 2022. 2. Heard on I.A.No.4789 of 2020 and I.A.No.2868 of 2022, which are applications for condonation of delay in filing the present appeals. 3. Looking to the averments made in the applications, the same are allowed. Delay in filing the present appeals is hereby condoned. 4. The Writ Appeal No.906 of 2020 under section 2(1) of Madhya Pradesh Uchcha Nyayalaya (Khandpeeth Ko Appeal) Adhiniyam, 2005 has been filed by the appellants/State against the order dated 4.7.2019 passed by learned Single Judge in Writ Petition No.2430 of 2006 whereby the respondents were directed to extend the benefits to the respondent/writ petitioner as has been extended to the similarly situated employees by counting of his period from 1981 to 1995 as per Fundamental Rule 17 for the purpose of treating the respondent in employment and pass necessary orders within a period of eight weeks from the date of receipt of certified copy of the order. Further, it was directed that the respondent shall be entitled for consequential benefits from that date. 5. Further, it was directed that the respondent shall be entitled for consequential benefits from that date. 5. The aforesaid order has been assailed by the State on the ground that the learned Writ Court while passing the impugned order had not appreciated the fact that the respondent/writ petitioner was not similarly situated to the persons, who were given benefit in the light of order dated 24.1.2015 issued by the Directorate of Public Instructions, as the said order pertained to the Assistant Teachers appointed under the Scheme knows as 'Operation Blackboard' floated by the State Government in the year, 1993 and whose services were illegally terminated and later on, in the light of the orders passed by this Court as well as by the Hon'ble apex Court were directed to be re-appointed and in the midst of the proceedings, the order dated 18.3.1994 passed by the erstwhile State Administrative Tribunal whereby their appointments were held to be bad in law were stayed and in that context, when they were again taken back in service, it was resolved by the Government that their past services would be counted as in service, except for non-payment of the wages/salary or the said period as per Fundamental Rule 17 on the anvil of 'no work no pay', but herein case, the appointment of the respondent/writ petitioner was not in pursuance to the Operation Blackboard Scheme in the year 1993, rather the petitioner was appointed as daily wager on 27.1.1981 on temporary basis and thereafter, services were discontinued in the month of March, 1983. 6. It was further argued that when discontinuance was challenged by the petitioner before erstwhile M.P. State Administrative Tribunal, vide order dated 28.5.1994, the Tribunal without holding the discontinuance of the petitioner to be bad in law, directed the Respondents therein to examine the case of the petitioner in the light of the governing policy and other decisions of the Tribunal and after giving opportunity to appear before the Selection Committee and if he is found to be fit for appointment, he shall be appointed in the available vacancies as on the date of passing of the order. Thus, from the order, it was very much clear that earlier discontinuance was not set aside and there was no direction for reinstatement of the petitioner, rather after scrutiny if the present respondent was found to be eligible for appointment, it was directed that he may be appointed in the available vacancies as existed on that date. Therefore, it could very well be termed that the said appointment was a fresh appointment. On the basis of the aforesaid arguments, it was submitted that since the very order dated 24.01.2015 was not applicable to the case of the present respondent, treating him to be similarly situated to the persons who were guided by the order dated 21.4.2015 was bad in law, thus, no such direction could have been issued. It was thus prayed that the impugned order herein deserves to be set aside. 7. Per contra, counsel for the respondent had supported the impugned order passed by the learned Single Judge and had argued that since the case of the respondent was akin to that of the persons, who were given benefit of the order dated 24.1.2015, therefore, the order was rightly passed and no perversity or illegality can be said to be committed by the learned Single Judge. It was thus prayed that the present appeal deserves to be dismissed. 8. Heard counsel for the parties and perused the record. 9. From bare perusal of the impugned order, it is seen that the said order is based upon the order dated 24.1.2015 issued by the Directorate of Public Instructions treating the petitioner to be similarly situated, directions were issued to extend the benefits to the respondent/writ petitioner by counting his past services from the period 1981 to 1995 as in service with a stipulation that for the aforesaid period, as per Fundamental Rule 17, the respondent would not be entitled for the salary on the anvil of 'no work no pay'. 10. Apart from the aforesaid consideration, there is no other ground for extending the said benefits to the respondent. 11. 10. Apart from the aforesaid consideration, there is no other ground for extending the said benefits to the respondent. 11. When the order dated 24.1.2015 on which the impugned order was based is seen, it would be evident that the said order pertained to consideration of the period of service of the employees, who being appointed under the Operation Blackboard Scheme, dated 5.8.1993 were dismissed from service in pursuance to the order dated 18.3.1994 passed by the State Administrative Tribunal, which when challenged before the higher Forums, was held to be bad. The persons, who were appointed under the Operation Blackboard Scheme and thereafter, when were reappointed, had asked for counting of their past services and in the said context, the order dated 24.01.2015 came to be passed and it was held that their past services would be counted with their present service except for non-payment of salary for the period for which they were out of service in wake of Fundamental Rule 17. 12. In the present case, the petitioner was appointed in the year 1981 when the said 'Operation Blackboard Scheme' was not in existence and that too as a daily wager for temporary period and thereafter, in the month of March, 1983, he was discontinued. 13. As and when the matter was agitated before the erstwhile State Administrative Tribunal in O.A.No.44 of 1994, the Tribunal vide order dated 28.5.1994 had disposed of the application with a direction to the petitioners to examine the case of the respondent in light of the Government policy and other decisions of the Tribunal and if it is found that the respondent therein had duly applied and is found fit for appointment and is fulfilling the required standard of eligibility, he shall be appointed in the available vacancies as on the date of passing of the order. Nowhere, the earlier discontinuance of service of the respondent was held to be bad in law, thus, the present appointment could be said to be a fresh appointment and when it is a fresh appointment and not reinstatement, his past services cannot be counted for any purpose. 14. Thus, this Court finds that the order dated 24.1.2015, on which the learned Single Judge has placed reliance and had directed the petitioners to give the benefit to the respondent of counting of the passed services as in service doesn't appear to be justified. 15. 14. Thus, this Court finds that the order dated 24.1.2015, on which the learned Single Judge has placed reliance and had directed the petitioners to give the benefit to the respondent of counting of the passed services as in service doesn't appear to be justified. 15. Accordingly, the Writ Appeal No.906 of 2020 is allowed by setting aside the impugned order dated 4.7.2019. In consequence thereof, Writ Appeal No.415 of 2022 is also allowed and the impugned order dated 5.8.2021 is hereby set aside.