Madhya Pradesh High Court
Mahendra vs Principal Secretary State Of M.P. ... on 18 March, 2021
Author: Vivek Rusia
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HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE
(SINGLE BENCH: HON'BLE Mr. JUSTICE VIVEK RUSIA)
Writ Petition No.1589 of 2013
(Mahendra V/s. Principal Secretary of State of M.P & others)
Indore, Dated: 18.03.2021:
Shri R.R. Bhatnagar, learned counsel for the petitioner.
Ms.Vineeta Phaye, learned Govt. Advocate for the
respondent/State.
ORDER
The petitioner has filed the present being aggrieved by order
dated 18.12.2012 issued by Land Acquisition and Rehabilitation
Officer of Sardar Sarovar Project, Manawar District -Dhar whereby he
has been discontinued from the post of the data entry operator w.e.f.
18.12.2012.
Facts of the case in short are as under:-
Vide order dated 12.03.2008 the petitioner was engaged as data
entry operator to operate the computer installed in the Land
Acquisition and Rehabilitation Office of Sardar Sarovar Project
@Rs.2869 p.m. The appointment was temporary in nature. According
to the petitioner before issuance of the aforesaid appointment order the
Director Rehabilitation/Field, NVDA has granted the permission to
engage one data entry operator at collector rate to operate the computer
installed at office vide order dated 07.03.2008. The petitioner further
submits that the land bearing survey no.235/1 area 0.535 hectare in the
name of his father has been acquired for the purpose of Omkareswar
Canal Project under the rehabilitation scheme issued by NVDA
therefore one family member of the project affected family is entitled
for employment apart from the other rehabilitation package. The
petitioner's working has been certified vide certificate dated
29.04.2010, 29.09.2010 and 03.11.2010 by the Sub-division officer
and he is having qualifications for the post of data entry operator and
all of a sudden vide impugned order dated 18.12.2012 the services of
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the petitioner has been discontinued without giving any opportunity of
hearing and without following the principles of natural justice, hence
the present petition before this Court.
After notice respondents filed reply by submitting that the
petitioner was engaged in the respondent department on contractual
basis on the post of Data Entry Operator. The appointment was purely
on temporary appointment however, the petitioner did not discharge
his duties diligently and therefore a show cause notice was issued to
the petitioner dated 19.11.2012. The petitioner submitted a reply vide
letter dated 28.11.2012 and after considering his reply vide
communication dated 18.12.2012 he has been discontinued from the
service. The petitioner has filed the rejoinder submitting that the work
of the petitioner was duly apprised by the authorities that he worked
with utmost sincerity and devotion therefore, he could not have been
terminated by levelling allegations on him. He has submitted a detailed
reply but that has not been duly considered by the respondents before
passing the impugned order hence the same shall be liable to be set
aside.
3. Learned counsel for the petitioner has placed reliance on the
judgement passed in Gajendra Singh Vardhaman Vs. State of M.P.
Reported in 2014 SCC (M.P.) 4576 and in Mission Director,
RCH/NRHM Vs. Ranjit Jain and another reported in 2011(4)
M.P.H.T. 266 (DB).
4. I have heard learned counsel for the parties and perused the
record.
5. It is clear from the Annexure-P/2 that the petitioner was
appointed on purely temporary basis at collector rate to work in the
office of Land Acquisition and Rehabilitation Office of the Sardar
Sarovar Project. Before appointment of the petitioner no advertisement
was issued and procedure prescribed for appointment in government
establishment was not followed therefore, in the light of the judgment
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passed by the Apex Court in the case of State of Karnataka V/s Uma
Devi reported in 2006 Vol.4. SCC 1 such appointment is illegal
appointment because the same was made without following the rules
and settled principles of law. The petitioner has continued to work after
the appointment till 2012 i.e. for four years therefore, he did not
complete ten years of service which is mandatory to get the benefit of
the circular issued by the state government after the judgment passed
in State of Karnataka V/s Uma Devi reported in 2006 Vol.4. SCC 1
passed by the Apex Court. Apart from the unsatisfactory work as
alleged by the respondents the appointment was purely on contractual
appointment to do the work in the office of Land Acquisition and
Rehabilitation Office of the Sardar Sarovar Project therefore, such
contract appointment cannot get it enforced by way of writ under
Article 226 of the Constitution of India. So far the right to get an
employment under the rehabilitation scheme is concerned which
clearly provides that one of the family member of the displaced family
is entitled for appointment on a preferential basis and for that there is a
provision for opening of employment under employment office. So far
the present appointment of the petitioner is concerned the said
appointment was not made in view of the clause-11.1 of the scheme.
No advertisement was issued, no names were invited from the
employment exchange before the appointment.
Therefore, the order of reinstatement cannot be passed by the
High Court under Article 226 of the Constitution of India as his initial
appointment was purely on contract basis. However, the petitioner may
approach the Labour Court in order to challenge the termination order
under the provisions of the Industrial Disputes Act.
With the aforesaid the writ petition is disposed off.
(VIVEK RUSIA)
JUDGE
Ajit
Digitally signed by Ajit
Kamalasanan
Date: 2021.03.18 18:09:09 +05'30'
