Praveen Kumar Samadhiya vs The State Of Madhya Pradesh Thr
2021 Latest Caselaw 3967 MP

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         THE HIGH COURT OF MADHYA PRADESH
                       WP-4738-2015
       Praveen Kumar Samadhiya v. State of M.P. and Ors.


                    Through Video Conferencing.

Gwalior, Dated :05.08.2021

      Shri Sankalp Sharma, Counsel for the petitioner.

      Shri M.P.S. Raghuvanshi, Additional Advocate General for the

respondent/State.

This Petition under Article 226 of the constitution of India has

been filed seeking the following reliefs:-

"1.That, the respondent be directed to appoint Petitioner on Class 3 Regular Employment as was granted to persons similarly situated to the petitioner.

2. That, the appointment of the applicant be considered from the date of his application with all consequential benefit.

3. That, any such relief as this Hon'ble Court deems fit in the present facts and circumstance of the case."

It is the case of the petitioner that his father was working as

Assistant Grade-III in the department of respondent no. 4 and he died

in harness. Thereafter, the petitioner applied for grant of appointment

on compassionate ground in class-III category. However, by letter

dated 11.8.2005 written by the Chief Engineer, Public Health

Engineering Department, the petitioner was informed that no post in

class-III cadre is vacant, therefore, in case, if the petitioner agrees for

appointment in class-IV cadre either as regular or in contingency

establishment, then he can give his consent. Under the bona fide

THE HIGH COURT OF MADHYA PRADESH WP-4738-2015 Praveen Kumar Samadhiya v. State of M.P. and Ors.

belief that no class-III post is vacant, the petitioner gave his consent

and, accordingly, by order dated 6.9.2005, he was granted

compassionate appointment on the post of Lineman in contingency

establishment. The petitioner was happy as he was under bona fide

belief that no fraud has been played on him. However, in the year

2014, he discovered that in fact several posts of class-III cadre were

lying vacant and his consent was obtained by mis-representation of

fact that no post of class-III cadre is lying vacant. It is well

established principle of law that when consent is obtained by mis-

representation of fact, then the said consent is not a free consent.

Thus, it is submitted that compassionate appointment on the post of

Lineman in contingency establishment cannot be said to be binding

on the petitioner and principle of estoppel would not apply as the

same was granted on the consent of the petitioner which was not free

consent. To buttress his contention that several posts of class-III

cadre were lying vacant, the petitioner has filed a copy of the reply

given by the respondents which is at page '42' of the writ petition.

According to which, out of 27 posts of Shift Driver, 22 employees

were working and thus it is claimed that 5 post of Shift Driver were

vacant. Similarly, against 32 sanctioned post of Meter Reader, 31

employees were working and it is submitted that one post of Meter

Reader was vacant. Out of 10 sanctioned posts of Air Compressor,

THE HIGH COURT OF MADHYA PRADESH WP-4738-2015 Praveen Kumar Samadhiya v. State of M.P. and Ors.

only 4 employees were working. Similarly, against 6 sanctioned post

of Plumber, only 3 employees were working. Again, against 6

sanctioned post of Pump Driver, 5 employees were working. Thus, it

is claimed that five post of Shift Driver, one post of Meter Reader,

six post of Air Compressor, three post of Plumber and one post of

Pump Driver were vacant. The said fact was suppressed by the

respondents and they obtained constant of the petitioner by

projecting that no post of class-III cadre is vacant.

Per contra, the petition is vehemently opposed by the Counsel

for the State.

The State has filed its return. It is denied that the consent of the

petitioner was obtained by any mis-representation of fact. At the time

when the consent of the petitioner for appointment on compassionate

ground was considered, there was no vacant post of Assistant Grade-

III. It is further contended that since the petitioner had given his

consent for appointment on any post in work charged establishment,

therefore he was granted appointment on compassionate ground on

the vacant post of Lineman. It is further submitted that petitioner

woke-up after 10 years of his appointment on compassionate ground

and at this stage the petitioner has no right to challenge his consent. It

was further submitted that submission made by the petitioner that he

was deliberately discriminated by respondents on multiple counts is

THE HIGH COURT OF MADHYA PRADESH WP-4738-2015 Praveen Kumar Samadhiya v. State of M.P. and Ors.

wrong and, therefore, it was denied. Thus, the contention of the

respondents is that not only the petition suffers from delay and

latches, but there is no discrimination on the part of the respondents.

The petitioner has filed his rejoinder and submitted that the

question of appointment on the post of Assistant Grade-III was never

in question and the petitioner had never asked for his appointment on

the post of Assistant Grade-III and, therefore, non-availability of the

said post at the time of consideration of his application is never in

question. The respondents have adopted misleading attitude right

from the beginning. It is further submitted that the petitioner has

specified the cause for approaching the court after lapse of time and

the same cannot be reserved for denying the right of the petitioner

which had accrued to him from the very beginning.

Considered the submissions made by the Counsel for the

parties.

So far as the question of delay and latches is concerned, it is

the case of the petitioner that he was not aware of the mis-

representation made by the respondents from the very beginning and,

therefore, relying upon the mis-representation made by the

respondents, he had happily accepted compassionate appointment on

the post of Lineman under the work charged contingency. It is further

submitted that he immediately represented against his discrimination

THE HIGH COURT OF MADHYA PRADESH WP-4738-2015 Praveen Kumar Samadhiya v. State of M.P. and Ors.

from the date when he came to know about miss-representation by

the respondents. It is further submitted that the period of limitation

would start from the date of knowledge of mistake or fraud and not

from the date when the fraud was committed.

Section 17 of the Limitation Act read as under:-

"17. Effect of fraud or mistake.--(1) Where, in the case of any suit or application for which a period of limitation is prescribed by this Act,--

(a) the suit or application is based upon the fraud of the defendant or respondent or his agent; or

(b) the knowledge of the right or title on which a suit or application is founded is concealed by the fraud of any such person as aforesaid; or

(c) the suit or application is for relief from the consequences of a mistake; or

(d) where any document necessary to establish the right of the plaintiff or applicant has been fraudulently concealed from him, the period of limitation shall not begin to run until plaintiff or applicant has discovered the fraud or the mistake or could, with reasonable diligence, have discovered it; or in the case of a concealed document, until the plaintiff or the applicant first had the means of producing the concealed document or compelling its production:

Provided that nothing in this section shall enable any suit to be instituted or application to be made to recover or enforce any charge against, or set aside any transaction affecting, any property which--

(i) in the case of fraud, has been purchased for valuable consideration by a person who was not a party to the fraud and did not at the time of the purchase know, or have reason to believe, that any fraud had been committed, or

THE HIGH COURT OF MADHYA PRADESH WP-4738-2015 Praveen Kumar Samadhiya v. State of M.P. and Ors.

(ii) in the case of mistake, has been purchased for valuable consideration subsequently to the transaction in which the mistake was made, by a person who did not know, or have reason to believe, that the mistake had been made, or

(iii) in the case of a concealed document, has been purchased for valuable consideration by a person who was not a party to the concealment and, did not at the time of purchase know, or have reason to believe, that the document had been concealed.

(2) Where a judgment-debtor has, by fraud or force, prevented the execution of a decree or order within the period of limitation, the court may, on the application of the judgment-creditor made after the expiry of the said period extend the period for execution of the decree or order:

Provided that such application is made within one year from the date of the discovery of the fraud or the cessation of force, as the case may be."

From the plain reading of this Section, it is clear that the period

of limitation shall not begin until fraud or mistake is discovered by

the plaintiff/petitioner which otherwise was not discovered in spite of

a reasonable diligence. In the present case, the petitioner is working

on the post of Lineman and it was not expected from a person who

had lost his breadwinner and has somehow succeeded in getting

appointment on compassionate ground and instead of helping out his

family, he would start making representations or he would start

searching as to whether any miss-representation or fraud has been

played or not.

THE HIGH COURT OF MADHYA PRADESH WP-4738-2015 Praveen Kumar Samadhiya v. State of M.P. and Ors.

However, the next question is as to whether the petitioner

could have discovered the fraud with due diligence or not ?. The

petitioner has given the details of the employees who were given

appointment on regular basis. All those appointments on

compassionate ground were given immediately after the petitioner

was appointed. Therefore, the petitioner after applying his due

diligence could have discovered the fact that some persons have been

given appointment on regular basis. Therefore, it is difficult to hold

that the petitioner could not discover the misrepresentation with due

diligence.

Further, it is the case of the petitioner that above mentioned

posts were lying vacant and the case of the petitioner was not

considered for the said posts.

The next question for consideration is as to whether the case of

the petitioner could have been considered for the above mentioned

posts or not.

Even for appointment on compassionate ground, petitioner

must have minimum qualification which are required for the vacant

posts and appointment on compassionate ground can not be given by

ignoring the minimum qualification required for a particular post. In

the entire writ petition, the petitioner has not claimed that he was

holding the minimum qualification to be appointed on the above

THE HIGH COURT OF MADHYA PRADESH WP-4738-2015 Praveen Kumar Samadhiya v. State of M.P. and Ors.

mentioned vacant posts.

It is submitted by Shri Sharma that in fact by rejecting the

representation of the petitioner, the respondents have merely stated

that the case is an old one and the appointment was given in

accordance with the circumstances existing at the time of the

consideration of his application. The appointment was made after

considering the rules and the petitioner was also made aware of the

factual situations and only on the consent given by the petitioner, he

was appointed on compassionate ground on the post of Lineman

under work charged contingency. It is submitted that the burden is on

the respondents to show that the petitioner was not eligible to be

appointed on compassionate ground on Class-III posts which were

lying vacant. It is submitted by Shri Sharma that instead of asking for

his consent, if the respondents had disclosed the details of the class-

III posts which were lying vacant, then the petitioner would have

certainly satisfied that he is eligible for appointment on any of the

above said vacant posts.

Considered the submissions of Shri Sharma.

Unfortunately, the submission made by the Counsel for the

petitioner cannot be accepted in the absence of even a whisper of

word with regard to the eligibility of the petitioner to hold the above

mentioned vacant posts. While drafting the writ petition, each and

THE HIGH COURT OF MADHYA PRADESH WP-4738-2015 Praveen Kumar Samadhiya v. State of M.P. and Ors.

every fact was before the petitioner. When he is claiming that five

posts of Shift Driver, six posts of Air Compressor, one post of Meter

Reader, three post of Plumber and one post of Pump Driver, were

lying vacant and his case should have been considered for

appointment on compassionate ground for the said posts, then

initially the burden is on the petitioner to make out prima facie case

that he was holding minimum qualification for the said posts. Post of

driver requires driving licence as well as driving experience.

Similarly, the post of Plumber has a technical qualification. The post

of Pump Driver also requires technical qualification. The petitioner

has not uttered a single word with regard to the qualification which

are required for the above mentioned posts. At this stage, it is

submitted by Shri Sharma, that the case of petitioner should have

been considered for the post of Meter Reader.

Considered the submission made by Shri Sharma.

According to petitioner himself, only one post of Meter Reader

was vacant. Akram Khan was appointed on the said post. Thus, if the

contention of the petitioner is accepted, then it is clear that Akram

Khan would not have got appointment on regular basis and if this

Court directs the respondents to consider the case of the petitioner for

his appointment on the post of Meter Reader, then Akram Khan will

have to give way to the petitioner. Unfortunately, Akram Khan has

THE HIGH COURT OF MADHYA PRADESH WP-4738-2015 Praveen Kumar Samadhiya v. State of M.P. and Ors.

not been impleaded as respondent. No order which may adversely

effect Akram Khan can be given in his absence.

In absence of the basic pleadings regarding his qualification,

this Court is of the considered opinion that no case has been made

out by the petitioner for a direction to the respondents to reconsider

his case for his appointment on the class-III post which were lying

vacant at the relevant time.

It is next contended by the learned counsel for the petitioner

that since similarly situated persons have been granted appointment

on compassionate ground against the regular post of Assistant

Chemist, Oilman, Hand Pump Mechanic and Meter Reader, therefore,

he has been discriminated.

So far as the contention of the Counsel for the petitioner that

the similarly situated persons have been granted regular

appointment on different class-III posts is concerned, the contention

made by the Counsel for the petitioner cannot be accepted. In order

to make out the case that the claim of the petitioner was identical to

the case of the persons mentioned in paragraph 5.10 is concerned, it

is sufficient to mention that the petitioner has maintained a beautiful

silence with regard to the qualification of the persons mentioned in

the writ petition. If the persons who were holding a minimum

qualification for their appointment on the particular post of class-III

THE HIGH COURT OF MADHYA PRADESH WP-4738-2015 Praveen Kumar Samadhiya v. State of M.P. and Ors.

cadre, then no mistake was committed by the respondents by giving

them appointment on regular post. Therefore, only distinction was as

to whether the petitioner was holding the minimum qualification to

be appointed on the class-III post which were lying vacant or not ?.

In the absence of said foundation, the burden of proof cannot be

shifted to the respondents to come forward with their case that they

had not played any fraud by seeking his consent. In absence of the

basic averments with regard to the qualification, this Court is of the

considered opinion that no case is made out warranting interference.

The petition fails and is hereby dismissed on the ground of delay and

latches as well as on merits.

(G.S. Ahluwalia) Judge ar

ABDUR RAHMAN 2021.08.06 17:41:00 +05'30'