Ratnesh Singh vs Board Of Director
2021 Latest Caselaw 2872 MP

                                                        1                               WP-335-2012
                              The High Court Of Madhya Pradesh
                                          WP-335-2012
                                      (RATNESH SINGH Vs BOARD OF DIRECTOR AND OTHERS)

                      20
                      Jabalpur, Dated : 01-07-2021
                            Heard through Video Conferencing.
                            Shri Ajeet Singh, learned counsel for petitioner.
                            Shri Samdarshi Tiwari, learned counsel for respondent Nos. 1 to 3.

Petitioner has filed this writ petition calling in question order dated 23.05.2008 contained in Annexure-P/1. By said order, petitioner was

regularized on the post of Assistant Grade-III in Pay Scale of 3050-75-3950- 80-4590.

2. Counsel appearing for petitioner submitted that petitioner was engaged as Dailywager on the post of Junior Auditor on 16.01.1989. Salary of petitioner is to be drawn against the post of LDC and he was paid fixed wages of Rs.565/- per month. It is submitted that Deputy Secretary, Madhya Pradesh State Agriculture Federation Board, Rewa wrote a letter dated 28.08.1989 to Collector, District Rewa and sought guidelines that petitioner is working as Dailywager against post of Junior Auditor. For said post, Pay

Scale of 1260-1860 is sanctioned, therefore, guideline be issued that what salary be paid to concerned employees. Deputy Collector, Rewa vide order dated 05.09.1989 replied to said letter and fixed the salary of petitioner at Rs.1025/- per month in Pay Scale of Junior Auditor. Considering order dated 05.09.1989, Deputy Secretary, M.P. State Agriculture Federation Board, Rewa gave sanction to fix the salary of petitioner at Rs.1025/- monthly. On 13.05.2008, Managing Director of M.P. State Agriculture Federation Board, Bhopal regularized petitioner on post of Junior Auditor in Pay Scale of 4000- 100-6000. Within short time another order was passed by Managing Director by which petitioner was regularized on post of Assistant Grade-III in Pay Scale 3050-75-3950-80-4590.

Signature Not 3. Counsel appearing for petitioner submitted that order dated SAN Verified

Digitally signed by SUNIL KUMAR PATEL Date: 2021.07.06 18:15:38 IST 2 WP-335-2012 23.05.2008 is contrary to law. No opportunity of hearing was given before passing adverse order. Petitioner was reverted to lower grade and, therefore, order dated 23.05.2008 is unsustainable in the eyes of law. Petitioner was appointed as Junior Auditor and was withdrawing salary of post of LDC. He was not appointed as LDC and not paid salary in higher scale. Order dated 23.05.2008 is contrary to the recommendation made by Scrutiny Committee

on 08.02.2008. Respondents are bound to adhere to order of Scrutiny Committee and orders passed contrary to recommendation of Scrutiny Committee is unsustainable in the eyes of law. On these grounds counsel appearing for petitioner prays for allowing the writ petition and quashed the impugned order dated 23.05.2008 and grant all the benefits to petitioner as per order dated 13.05.2008.

4. Learned counsel appearing for respondents submitted that claim of petitioner is misconceived. Order dated 13.05.2008 was cancelled by order dated 20.09.2012. Petitioner has not challenged said order before any Court of law. Order dated 20.09.2012 has become final. In absence of challenge to said order, writ petition deserves to be dismissed. It is further argued by him that post of Junior Auditor was a Cadre Post and same was not available for engagement of dailywage employee. Dailywagers can only be engaged against Class-IV post and post of LDC. No recruitment rules were followed for engagement of petitioner. In fact, petitioner was engaged as dailywager on post of LDC and not on post of Junior Auditor. If petitioner is being paid higher salary, then same will give no right to petitioner to claim a higher post. Status of petitioner remained as LDC and he was rightly considered for regularization against the said post. Order dated 13.05.2008 was prepared due to miscommunication. Said order was never circulated and communicated to petitioner, therefore, order dated 13.05.2008 does not create any right in favour of petitioner. Respondents realized the mistake immediately and passed order dated 23.05.2008 correcting the mistakes. By said order, petitioner was rightly regularized against post of LDC. Further by order dated Signature SAN Not Verified

Digitally signed by SUNIL KUMAR PATEL Date: 2021.07.06 18:15:38 IST 3 WP-335-2012 20.09.2012, order dated 13.05.2008 was cancelled.

5. Counsel appearing for respondents further relied on judgment delivered by Apex court in case of Secretary, State of Karnataka Vs. Uma Devi; (2006) 4 SCC 1. Relying on the said judgment, it was argued that appointment of petitioner was illegal, no recruitment rules was followed, post of Junior Auditor is a Cadre Post and not available for engaging dailywager and further it was emphasize that there is differentiation in granting status of permanent employee and regularization of dailywagers. Petitioner was not reverted by order dated 23.05.2008 but error due to miscommunication which occurred in order dated 13.05.2008 was corrected. Administrative orders can always be revised and corrected if they are found to be wrong. There is no

error and illegality in order dated 23.05.2008, therefore, writ petition filed by petitioner shall be dismissed.

6. Heard the counsel for petitioner as well as respondents.

7. After passing of judgment of Uma Devi (supra), State Government has framed policy for regularization of Dailywager. General Administration Department has issued a circular F5-3/2006/1/3 dated 16.05.2007. As per aforesaid circular, Scrutiny Committee will consider the cases of Dailywagers who were engaged against sanctioned and vacant post for more than 10 years for their regularization. This exercise is to be carried out as one time exercise. On recommendations made by Scrutiny Committee, appointing authority will proceed for regularization of employees. Case of petitioner was considered by Scrutiny Committee as per circular of General Administration Department dated 16.05.2007. The Scrutiny Committee consisted Principal Secretary, Farmer Welfare and Agriculture Department in which recommendation was made for regularization of petitioner on the post of Junior Auditor in Pay Scale of 4000-100-6000.

8. In view of recommendation dated 08.02.2008, order was passed by Managing Director to regularize the petitioner on 13.05.2008. Immediately thereafter respondent passed impugned order dated 23.05.2008 by which Signature SAN Not Verified

Digitally signed by SUNIL KUMAR PATEL Date: 2021.07.06 18:15:38 IST 4 WP-335-2012 petitioner was regularized on post of Assistant Grade-III in Pay Scale of 3050-75-3950-80-4590. Subsequently, another order dated 20.09.2012 was passed. By this order, order of regularization of petitioner on post of Junior Auditor was cancelled. Order dated 23.05.2008 is not an order of reversion as conceived by petitioner. It is an order for regularizing the petitioner on post of Assistant Grade-III. Earlier order of his regularization on post of Junior Auditor was cancelled. Petitioner has not challenged order dated 20.09.2012. Counsel appearing for petitioner prayed for time to challenge the said order. This order is already under challenge in connected matter i.e. W.P. No.3602/2013. Both the matters are linked together. Now, validity of order dated 23.05.2008 and 20.09.2012 is considered by this Court. Both the orders i.e. order dated 13.05.2008 and order dated 23.05.2008 were passed contrary to recommendation made by Scrutiny Committee dated 30.04.2008. As per circular of General Administration Department dated 16.05.2007 if recommendation is made by Scrutiny Committee for regularization, then Appointing Authority has to consider the same and pass order accordingly. Two different orders were passed by Managing Director. Only recommendation of Scrutiny Committee which is available on record is dated 30.04.2008. In this recommendation, petitioner was recommended to be regularized on post of Junior Auditor. Respondents in its reply has also not brought on record any subsequent recommendation which superseded recommendation dated 30.04.2008 of Scrutiny Committee. Scrutiny Committee has considered the case of petitioner and recommendation was made to regularize petitioner against post of Junior Auditor. Said recommendation was not challenged before any Court of law and, therefore, said recommendation is binding upon the respondents. Respondents have not brought on record any document to show that earlier recommendation of Scrutiny Committee dated 30.04.2008 was reviewed or subsequently modified. In absence of same, order dated 23.05.2008 and order dated 20.09.2012 is held contrary to law and in violation of circular of General Signature SAN Not Verified

Digitally signed by SUNIL KUMAR PATEL Date: 2021.07.06 18:15:38 IST 5 WP-335-2012 Administration Department dated 16.05.2007. Scrutiny Committee has not held the appointment of petitioner as illegal. Scrutiny Committee held that petitioner was appointed against the post of Junior Auditor. It was not held by Scrutiny Committee that Junior Auditor is a Cadre post and dailywageer cannot be engaged against such post. Decision taken by Scrutiny Committee on 30.04.2008 has become final and same has not been challenged before any Court of law. Any order passed contrary to recommendation of Scrutiny Committee dated 30.04.2008 is bad in law. Order dated 13.05.2008 is circulated and same is communicated as copy of order is marked to be supplied to petitioner is evident from internal page-3 of Annexure-P/5. Since order is circulated and communicated to petitioner therefore right is vested in his favour and he ought to have been heard before passing of impugned orders dated 23.05.2008 and 20.09.2012.

9. Accordingly, writ petition filed by petitioner is allowed. Impugned orders dated 23.05.2008 and 20.09.2012 are quashed. Petitioner is entitled to get the benefit of order dated 13.05.2008 passed in pursuance of recommendation made by Scrutiny Committee on 30.04.2008.

10. With the aforesaid direction, writ petition filed by petitioner is disposed of.

C.C. as per rules.

(VISHAL DHAGAT) JUDGE

sp/-

Signature
 SAN      Not
Verified

Digitally signed by
SUNIL KUMAR
PATEL
Date: 2021.07.06
18:15:38 IST