Madhya Pradesh High Court
Ramswaroop Awasthi vs The State Of Madhya Pradesh on 23 September, 2021
Author: Sanjay Dwivedi
1
Writ Petition No.8890/2012
THE HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR
Writ Petition No.8890/2012
Ramswaroop Awasthi
Versus
State of Madhya Pradesh and others
Date of Order 23.09.2021
Bench Constituted Single Bench
Order delivered by Hon'ble Mr. Justice Sanjay Dwivedi
Whether approved for No
reporting
Name of counsels for For Petitioner: Mr. Ravendra Tiwari,
Advocate.
parties
For Respondents/State: Mr. Akshay
Pawar, Panel Lawyer.
Law laid down ---
Significant Para Nos. ---
Reserved on : 01.07.2021
Delivered on : 23.09.2021
(O R D E R)
(23.09.2021)
By means of this petition filed under Article 226
of the Constitution of India, the petitioner calls in question the
validity of orders dated 02.02.2011, 20.05.2011 and
22.05.2012 in terms of which his claim for regularization has
been rejected by the respondent/Authority on the ground that
the Scrutiny Committee in pursuance to the direction issued
by the Supreme Court in a case reported in (2006) 4 SCC 1
[Secretary, State of Karnatka and others Vs. Umadevi and
others], found the petitioner's appointment irregular.
Writ Petition No.8890/2012
2. The challenge is founded mainly on the ground
that the decision taken by the Committee is arbitrary, illegal
and discriminatory for the reason that the petitioner's
appointment was made along with respondent Nos.7, 8 and 9
in the manner in which they had been appointed. It is also a
ground of challenge that respondent Nos.7, 8 and 9 were
juniors to the petitioner and despite that their services had
been regularized vide order dated 07.04.2010, 16.06.2009 and
26.03.2010 respectively.
3. As per the facts of the case, the petitioner's
appointment on the post of Time Keeper was made by the
Competent Authority against the clear and vacant post as a
daily wager on 07.01.1985.
(3.1) As per the petitioner, under Right to Information
Act, a list (Annexure-P/2) has been supplied to him showing
the details of the employees working continuously as Time
Keeper and eligible for regularization.
(3.2) Respondent Nos.7, 8 and 9 who were juniors to
the petitioner had appointed on 26.06.1986, 12.09.1986 and
09.11.1986 respectively, but their services had been
regularized vide orders dated 07.04.2010, 16.06.2009 and
26.03.2010 respectively.
(3.3) Thereafter, the petitioner made a representation
before the respondent/Authority, but when no decision on the
said representation had taken, then he filed a petition before
this Court, which got disposed of directing the
respondent/Authority to consider the petitioner's grievance for
regularization and in pursuance to the direction issued by this
Court, the respondent/Authority after considering the
Writ Petition No.8890/2012
grievance of the petitioner for regularization found that since
the petitioner's appointment was found irregular by the
Scrutiny Committee, therefore, the claim for regularization
raised by the petitioner is rejected. Hence, this petition.
4. The respondents have filed their reply taking
stand therein that the petitioner's claim for regularization was
considered by the Scrutiny Committee and as per the report of
the said Committee, though the services of other persons were
regularized, but claim of number of employees were rejected
including the petitioner treating their appointment as irregular.
The respondents have distinguished the case of private
respondents with the petitioner only on the ground that
regularization of their services has been made in pursuance to
the direction issued by this Court in a writ petition filed by
them.
5. Learned counsel for the petitioner submits that by
filing the instant petition, order dated 02.02.2011 has been
assailed mainly on the ground that while rejecting the
petitioner's claim for regularization, no reason as to how his
appointment was found irregular and illegal is assigned. He
also submits that when the services of other respondents who
were juniors to the petitioner had been regularized and their
appointment was similar to that of the petitioner, then
depriving him from regularization saying that his appointment
was found irregular, is not proper and it is arbitrary and
discriminatory. In support of his contention, learned counsel
for the petitioner has placed reliance upon a judgment
reported (2015) 8 SCC 265 [Amarkant Rai Vs. State of
Bihar and others], in which the Supreme Court after
consider the services rendered by the employee for the period
of 29 years, found him fit to be regularized. Here also, the
Writ Petition No.8890/2012
petitioner has rendered the services for a long period
appointed in the year 1985 then he is also entitled to be
regularized in light of the observation made by the Supreme
Court in case of Amarkant Rai (supra). Reliance has also
been placed in a case reported in (2016) 15 SCC 747
[Jivanlal Vs. Pravin Krishna, Principal Secretary and
others] in which the Supreme Court has held that other
similarly situated persons have been granted the benefit of
regularization then claim cannot be rejected of the employee
who is similarly situated and such a discrimination is not
found proper. Learned counsel for the petitioner has also
placed reliance upon an order reported in 2011 (1) M.P.H.T.
478 (SC) [State of Karnatka and others Vs. M.L. Kesari
and others] in which the distinction has been provided in
regard to irregular and illegal appointment. As per the
petitioner, his appointment in any manner cannot be said to be
illegal and respondents have nowhere described as to under
what circumstance, the petitioner's appointment was
considered to be irregular and illegal.
6. Learned Panel Lawyer appearing for the
respondents/State has opposed the submissions made by
learned counsel for the petitioner and relied upon the stand
taken by the respondents in their reply. It is stated by the
learned Panel Lawyer that in pursuance to the direction issued
by the Supreme Court in the case of Umadevi (supra), the
Scrutiny Committee after considering the claim of the
petitioner, rejected the same on the ground that his
appointment was found irregular and illegal.
7. Considering the rival submissions made by
learned counsel for the parties and from perusal of the record,
it is found that nowhere the respondents have stated as to
Writ Petition No.8890/2012
under what circumstances, the appointment of the petitioner
was found irregular and illegal and it is also not specifically
denied whether other similarly situated persons or juniors to
the petitioner have not been regularized. In such
circumstances, if the fact pleaded is not denied specifically,
deemed to be admitted by the other side. In that regard the
Supreme Court in the cases reported in (1993) Supp. (4) SCC
46 [Naseem Bano (SMT) Vs. State of U.P. and others] and
in AIR 2004 SC 230 [Sushil Kumar Vs. Rakesh Kumar],
has very clearly laid down that the fact not controverted by
the other side, deemed to be admitted. Merely because the
private respondents had approached the Court by filing a
petition wherein the respondents were directed to consider
their claim for regularization, does not mean that they should
be given different treatment. If those persons are similarly
situated and admittedly, juniors to the petitioner, then the
petitioner is equally entitled to get the same relief as has been
granted to his juniors.
8. In view of the aforesaid, the petition filed by the
petitioner deserves to be and is hereby allowed. Respondents
are directed to consider the claim of the petitioner for
regularization from the date when his juniors have been
regularized in work charged contingency establishment and
granted the regular pay-scale. Respondents are also directed to
consider the claim of the petitioner for regularization in a
work charged contingency establishment and if not possible,
then he is otherwise entitled to get regular pay-scale as he has
successfully completed more than ten years of service. The
respondents are further directed to grant benefit of
regularization or grant of regular pay-scale to the petitioner
when his juniors were considered to be the employees of work
Writ Petition No.8890/2012
charged contingency establishment and granted pay-scale of
the said establishment.
9. Accordingly, the petition filed by the petitioner is
allowed.
(SANJAY DWIVEDI)
JUDGE
Devashish
DEVASHISH MISHRA
2021.09.24 10:23:41
+05'30'
