Barkatullah University Bhopal vs Dheerendra Tiwari
2021 Latest Caselaw 6951 MP

     HIGH COURT OF MADHYA PRADESH : JABALPUR
                   (Division Bench)


                       W.A. No.60 of 2021

             Barkatulla University Bhopal and another
                             -Versus-
                        Dheerendra Tiwari

                               --
Shri Pushpendra Yadav, Advocate for the appellants.
Shri K.C. Ghildiyal and Shri Ayur Jain, Advocates for the
respondent.
_______________________________________________________
CORAM :
       Hon'ble Shri Justice Ravi Malimath, Chief Justice.
       Hon'ble Shri Justice Vijay Kumar Shukla, Judge.

       [Hearing convened through virtual/physical modes]

                         JUDGMENT

(Jabalpur, dtd.28.10.2021)

Per : Vijay Kumar Shukla, J.-

The present intra-court appeal has been filed under

Section 2(1) of the Madhya Pradesh Uchcha Nyayalaya (Khand

Nyaypeeth to Appeal) Adhiniyam, 2005, being aggrieved by the

order passed by the learned Single Judge in W.P. No.4319 of 2019,

dated 28-7-2021, whereby the writ petition preferred by the

respondent/writ-petitioner has been allowed.

2. The respondent filed the writ petition challenging the

order dated 19-06-2018 whereby claim of the respondent for

regularization of service has been rejected by the appellant and

further directed him to apply for the post of Hostel Superintendent

when the advertisement will notify that six posts of Hostel

Superintendent has to be filled-up in accordance with the

Recruitment Rules of M.P. Government. The impugned order was

challenged on the ground that sanction of the post of Hostel

Superintendent was obtained by the appellants/University from the

respondent No.1/State for regularising the persons already working

against the post of Hostel Superintendent since long and the name of

writ-petitioner was also included in the said proposal. Thereafter,

the State Government has sanctioned six posts of Hostel

Superintendent, but the appellants have taken somersault asking the

respondent to participate in the selection process instead of

considering his case for regularisation against the vacant post of

Hostel Superintendent, and as such the said decision/communication

was assailed by the respondent/writ-petitioner by filing the writ

petition.

3. The appellants filed reply before the Single Bench

taking a stand that the appointment of the respondent had been made

initially on temporary basis, not against any sanctioned post and

regular appointment can be made only by making appointment

according to the Recruitment Rules. Therefore, if the respondent

seeks appointment on the post of Hostel Superintendent, then he will

have to participate in the selection process which would be

conducted for filling-up the post as per the Recruitment Rules.

4. The facts of the case, briefly stated, are that the

respondent is working with the appellants since 1988 and thereafter

by order dated 20-6-2014 he was temporarily posted as Hostel

Superintendent. The appellants had requested the State Government

for sanctioning the posts of Hostel Superintendent in the University

and for that they sent a letter to the State Government. In response

to that, a letter was issued by the State Government seeking

information as to who are working on the said posts and in what

manner the salary is being paid to those persons and also asked for

details of the hostels and their location. In response to the said

letter, the University has intimated to the concerning Department of

the State Government on 23-8-2013, thereby supplied the requisite

information showing the name of the appellant that he is also

holding the charge of the post of Hostel Superintendent. Thereafter,

vide letter dated 9-8-2016 the appellants sent a brief information in

which column No.12 deals with the respective information in

respect of the Hostel Superintendent. Thereafter, the State

Government on the basis of the brief placed the matter before the

Council of Ministers/Cabinet on 13-10-2017 and in the meeting it is

resolved that six posts of Hostel Superintendent (three posts for

male candidates and three for female) be sanctioned. The letter

dated 13-10-2017 showing resolution and sanction given by the

Council of Minsters was appended as Annexure-P/7 to the writ

petition. Thereafter, the State Government by order dated 8-12-

2017 sanctioned the posts of Hostel Superintendents with the pay-

scale of Rs.9300-34800 + 3600 Grade Pay

5. In this backdrop the writ-petitioner/respondent

submitted a representation claiming his regularisation on the post of

Hostel Superintendent. When no further action was taken, the

respondent preferred a writ petition forming the subject-matter of

W.P. No.3461 of 2018 before this Court, which was disposed of by

order dated 26-02-2018 directing the appellants/University to decide

the representation by a reasoned order. Thereafter, by the impugned

order dated 19-6-2018 the said representation of the respondent was

rejected.

6. The learned counsel for the appellants submits that

appointment of the respondent was not made against any sanctioned

post of Hostel Superintendent, but the nature of appointment was

purely temporary, although it has been extended from time to time

and, therefore, the claim for regularisation cannot be considered, as

the vacant post shall be filled-up by conducting regular selection

process as per the requirement of the Recruitment Rules. It is

further submitted that respondent may participate in the selection

process by submitting his candidature. It is also submitted that the

engagement of the respondent was not as per the constitutional

scheme and selection is governed under the provisions of the

Madhya Pradesh Vishwavidyalaya Adhiniyam, 1973 and as such

rejection of claim of the respondent was proper and it is also

mentioned that sanction does not provide that the persons working

against the posts of Hostel Superintendent should be regularized

first.

7. The respondent/writ-petitioner filed rejoinder relying

upon the Statute 42 saying the post of Hostel Superintendent was

already there and it also provides the manner in which the said post

is to be recruited. It is stated in the rejoinder that the post of Warden

shall be filled-up by Kulpati of the University. Therefore, the stand

taken by the appellants is absolutely incorrect that the post of Hostel

Superintendent has to be filled-up by direct recruitment.

8. We have heard the learned counsel for the parties and

bestowed our anxious consideration on the arguments advanced by

the parties.

9. The respondent was initially appointed as Assistant to

the Chief Warden in the University under contingency fund with

effect from 03-11-1990 and since then is continuously working on

the said post. The claim of regularisation of the respondent was not

considered by the appellants on the ground that there is no

sanctioned post of Hostel Superintendent and they always assured

the respondent that as soon as the post is sanctioned, his claim of

regularisation would be considered. The appellants/University

thereafter sent a proposal to the State Government for sanctioning

the posts and also apprised the State Government that the respondent

is also working against the post of Hostel Superintendent since long,

therefore, his claim for regularisation has to be considered and on

that basis, they requested for sanctioning of the post.

10. The State Government after considering the proposal of

the University, has sanctioned the post of Hostel Superintendent,

that too in a meeting of Council of Ministers in which it is clearly

resolved that the Council of Ministers is considering the

recommendation of the University and as as per the said

recommendation it is clearly mentioned that sanction of the posts is

sought as the employees already working against the said posts had

to be regularised and, therefore, the appellants cannot deny the claim

of the respondent saying that he will have to participate in the

selection process and the said posts sanctioned by the State

Government will be filled up through the selection process in which

the respondent may also participate.

11. In pursuance to the letter sent by the appellants on 23-8-

2013, wherein the name of the respondent has been shown, holding

the charge of the Hostel Superintendent and sought sanction of the

post of Hostel Superintendent with a clear understanding whatever

expenditure occurs for sanctioning the said posts, the University

shall bear the same under their financial head and no financial

burden would be fastened on the State Government. Thereafter,

again on a query made and information sought by the State

Government, a brief was prepared and forwarded showing that if the

posts are sanctioned by the State Government, the persons already

working against the said posts shall be regularised first and for

remaining posts, recruitment process would be initiated. It clearly

indicates that the appellants/University had already taken a decision

for regularising the services of the employees working against the

posts for which sanction had been sought and accordingly the

proposal was prepared and forwarded to the State Government.

12. Considering the said proposal as the same had been

placed before the Council of Ministers, posts were sanctioned by the

State Government and an order in this regard was issued on 8-12-

2017. Taking a specific stand in this regard the appellants had taken

a somersault in their stand regarding regularisation of services of the

respondent. Further, the letter dated 13-9-2016 shows that the

assurance was given by the State Government for sanctioning the

posts for the reason that regularisation of employees already

working is to be done.

13. Thus, from the record it is evident that there was a

decision by the appellants/University to regularise the services of

the appellant and after obtaining specific sanction from the State

Government for the purpose of regularising the services of the

respondent and other employees, a stand has been taken that the

posts shall be filled-up by regular appointment and the respondent is

required to undergo selection.

14. The learned Single Judge after taking into consideration

the records and communication made by the appellants/University

and the Minutes of the State Government, has rightly set aside the

communication dated 19-6-2018 and directed the appellants to

regularise the services of the respondents/writ petitioner. We do not

perceive any illegality and infirmity in the order passed by the

learned Single Judge warranting any interference in the present

intra-court appeal.

15. Consequently, the writ appeal is dismissed. There shall

be no order as to costs. Pending interlocutory application (s), if

any, also stands disposed of.

      (Ravi Malimath)                                      (Vijay Kumar Shukla)
        Chief Justice                                              Judge


ac.

 Digitally signed by AJAY KUMAR CHATURVEDI
 Date: 2021.10.30 16:51:35 +05'30'