Madhya Pradesh High Court
Ramesh Chand Tiwari vs The State Of Madhya Pradesh on 25 October, 2021
Author: Nandita Dubey
1
HIGH COURT OF MADHYA PRADESH
W.P. No.9562/2021
(RAMESH CHAND TIWARI Vs THE STATE OF MADHYA PRADESH AND OTHERS)
Jabalpur, Dated :25.10.2021
Shri Naveen Dubey, learned counsel for the petitioner.
Shri Rakesh Singh, learned Panel Lawyer for the
respondents/State.
In compliance of order dated 23.08.2021, Hamdast notices
were served on the respondents on 01.09.2021, however, none has
appeared on their behalf till date.
By this petition under Article 226 of the Constitution of India
the petitioner is seeking appropriate direction to the respondent No.4
who has given charge of the Panchayat Secretary of Gram Panchayat
Aachyatt, Janpad Panchayat Chhatarpur to one Vansh Gopal Patel.
The case of petitioner is that he is posted as Panchayat
Secretary, Chhatarpur. Earlier he was transferred by Annexure P/1
dated 02.01.2021 from Chhatarpur to Gram Panchayat Saliaya as the
Panchayat Secretary Sukh Lal Sahu posted at Saliaya was suspended
on the ground of misconduct in performing the duties. Sukh Lal Sahu
then filed a writ petition challenging the order of suspension and his
suspension order was stayed resulting in fresh transfer of petitioner
from Chhatarpur to Gram Panchayat Aachyatt, where again the
Secretary Vansh Gopal Patel has been suspended. It is pointed out
that Vansh Gopal Patel has challenged his order of suspension and the
appellate authority after admitting the matter has stayed his order of
suspension. It is submitted that due to stay on the suspension order
the authority concerned has issued another notice dated 21.05.2021
appointing Vansh Gopal Patel in the same village and now there are
two Secretaries working; petitioner as well as Vansh Gopal Patel and
the power has been distributed between them.
Learned counsel for the petitioner has placed reliance on a
judgment passed in the case of Kunal Kanti Majee Vs. Chancellor,
Rani Durgawati Vishvavidyalaya, Jabalpur [2008 (1) MPLJ 577],
wherein the Court has observed the distinction between the order of
quashment and the stay of an order which is reproduced herein
under.
"There is a subtle distinction between quashment of an order and
stay of an order. Quashing of an order results in restoration of
original position as is understood, on the day of the passing of the
order which has been quashed. The stay of operation of an order
does not ensue in the said result. It only means that the order that
has been stayed would not be effective and operative from the date
of passing of the stay order. An order of stay, as is luminescent,
becomes effective from the time of its passing. If an order has
already been executed, because the same is stayed, that does not
mean that status quo ante comes into existence. The doctrine of
relation back does not come into play to an executed order. The
matter would have been different, had a mandatory order been
passed. That is not the case. It is the date of the order which is of
immense significance. If the order dated 08.01.2007 is scanned it is
perceptible that the Single Judge had directed stay of operation of
the impugned orders dated 11.12.2006 whereby the Chancellor in
exercise of power under section 12 (3) of M.P.Vishwavidyalaya
Adhiniuyam, 1973 annulled the decisions of the Executive Council
and directed to cancel the appointment of the appellant with
immediate effect and discharge him by giving him either notice or
salary in lieu thereof and order of Registrar dated 26.12.2006
terminating the services of the appellant w.e.f. 23.12.2006 by giving
him three months salary in lieu of notice. If the factual matrix is
scrutinized, the same were passed much earlier and had become
operative. An order which has become operative and been given
effect to or executed, does not get wiped off by an order of stay
passed on later date. There cannot be restoration of the earlier
position."
It is submitted that Vansh Gopal Patel after the stay on his
suspension order could not have been reappointed on the same place.
He has sought a direction that the respondent authority be directed to
pass a fresh order in the light of judgment in the case of Kunal Kanti
Majee (supra).
Learned Panel Lawyer for the State though has no objection to
the said prayer but it is submitted that the petitioner has not made any
application before the authority concerned in this regard.
Under the circumstances, the petitioner is given a liberty to
move an appropriate application raising all his grievance before the
authority concerned along with the copy of the citation/judgment on
which he is placing reliance, who shall decide the same in the light of
judgment in the case of Kunal Kanti Majee (supra) within a period of
30 days from the date of receipt of certified copy of the order passed
today.
It is made clear that this Court has not opined on the merits of
the case.
With the aforesaid direction, this petition stands disposed of.
Certified copy as per rules.
(Nandita Dubey)
BHARTI GADGE
Judge
b 2021.10.26 12:55:06 +05'30'
