Madhya Pradesh High Court
S.P. Shrivastava vs The State Of Madhya Pradesh on 14 December, 2022
Author: Chief Justice
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE RAVI MALIMATH,
CHIEF JUSTICE
&
HON'BLE SHRI JUSTICE VISHAL MISHRA
ON THE 14 th OF DECEMBER, 2022
WRIT APPEAL No. 1600 of 2022
BETWEEN:-
S.P. SHRIVASTAVA, S/O LATE SHRI N. N. SHRIVASTAVA,
AGED ABOUT 58 YEARS, OCCUPATION: NOTIFIED AS
FOOD SAFETY OFFICER (ON REVERSION DESIGNATED
AS SANITARY INSPECTOR), LIG-19, NEAR STOP NO. 5,
R.S.S. MARKET, SHIVAJI NAGAR, BHOPAL (MADHYA
PRADESH)
.....APPELLANT
(BY SHRI R.K. VERMA - SENIOR ADVOCATE WITH SHRI R.M. TIWARI -
ADVOCATE)
AND
1. STATE OF MADHYA PRADESH, THROUGH ITS
PRINCIPAL SECRETARY, DEPARTMENT OF
URBAN ADMINISTRATION AND HOUSING
DEVELOPMENT, MANTRALAYA, VALLABH
BHAWAN, BHOPAL (MADHYA PRADESH)
2. COMMISSIONER, URBAN ADMINISTRATION AND
DEVELOPMENT, BHOPAL (MADHYA PRADESH)
3. MUNICIPAL CORPORATION, BHOPAL, THROUGH
ITS COMMISSIONER, BHOPAL I.S.B.T. BHOPAL
(MADHYA PRADESH)
4. MUNICIPAL CORPORATION, DEVAS, THROUGH
ITS COMMISSIONER DEVAS (MADHYA PRADESH)
.....RESPONDENTS
(SHRI B.D. SINGH - GOVERNMENT ADVOCATE FOR RESPONDENTS NO.1
AND 2)
Signature Not Verified
Signed by: TAJAMMUL
HUSSAIN KHAN
Signing time: 12/19/2022
12:31:27 PM
2
This appeal coming on for admission this day, Hon'ble Shri Justice
Vishal Mishra passed the following:
ORDER
Aggrieved by the order dated 24.11.2012 passed by the learned Single
Judge in dismissing the Writ Petition No.26861 of 2022, the writ petitioner is in
appeal.
2. It is the case of the petitioner that he is serving in the respondents
department and the State Government vide order dated 05.02.1996 gave
approval for recommendation of promotion of the writ petitioner on the post of
Health Officer to the Commissioner, Municipal Corporation, Bhopal. In
pursuance to the same he was promoted from the post of Food Inspector to
the post of Health Officer in the pay scale of Rs.2000-60-2300-3500 vide order
dated 26.03.1996. All of a sudden vide order dated 19.05.1997 the order
granting sanction for promotion was cancelled resulting into passing of
subsequent order of cancellation of promotion of the writ petitioner to the post
of Health Office. It is his case that no opportunity of hearing was granted to the
writ petitioner while passing the order dated 19.05.1997. The aforesaid order
was subjected to challenge by filing a writ petition being Writ Petition No.2370
of 1997 and this Court vide order dated 28.06.1997 has granted interim relief to
the writ petitioner and permitted him to work and draw a salary of Health
Officer in Municipal Corporation until further orders and the petition was also
admitted. The writ petition was finally dismissed vide order dated 20.07.2010
on the ground that the coram of promotion committee was incomplete, the
ACRs were not taken into consideration properly and some other
contemporaries were also not considered along with the writ petitioner. The writ
appeal was preferred against the same being Writ Appeal No.799 of 2010. The
Signature Not Verified
Signed by: TAJAMMUL
HUSSAIN KHAN
Signing time: 12/19/2022
12:31:27 PM
writ appeal was also admitted on 25.08.2010 and the interim relief was granted
to the petitioner. The writ appeal was finally dismissed vide order dated
02.12.2020.
3. It is his case that till the dismissal of the writ appeal the writ petitioner was
working as Health Officer on the basis of interim orders granted by this Court in
his favour. He preferred a review petition being Review Petition No.28 of 2021,
wherein, the interim relief of maintaining status quo was granted. Vide order
dated 22.04.2022 the review petition was dismissed. He preferred Special Leave
Petition before the Hon'ble Supreme Court against the orders dismissing the
writ appeal as well as review petition and vide order dated 26.09.2022 the
Hon'ble Supreme Court was pleased to issue notices in SLP (C) No(s).13786-
13787 of 2022. It is his case that despite knowing well that the petitioner has
worked in pursuance to the interim orders granted by the Court on several
occasions as well as the fact that the SLP is pending consideration before the
Hon'ble Supreme Court the authorities have issued the impugned order and all
of a sudden the respondents authorities have started deducting an amount of
Rs.25,000/- from his total earning. It is his case that the authorities cannot make
any recovery from the writ petitioner as he has worked in the respondents
department in pursuance to the interim orders granted by the Court from time to
time. He has placed reliance upon the judgment passed by the Hon'ble Supreme
Court in the case of State of Punjab and others Vs. Rafiq Masih, (2015) 4 SCC
334 wherein the Hon'ble Supreme Court has held that the excess payment made
for a period of excess of five years cannot be recovered. The aforesaid aspect
was not considered by the Writ Court and the writ petition was dismissed on
the ground that SLP is pending consideration before the Hon'ble Supreme
Court against the reversion order and the fact that once the writ petition, writ
Signature Not Verified
Signed by: TAJAMMUL
HUSSAIN KHAN
Signing time: 12/19/2022
12:31:27 PM
appeal as well as review petition being dismissed, no relief can be extended to
the petitioner.
4. It is his case that in case the SLP is dismissed by the Hon'ble Supreme
Court then also in view of the judgment passed by the Hon'ble Supreme Court
in the case of Rafiq Masih (supra), no recovery can be made from the writ
petitioner. He has prayed for quashment of the impugned order.
5. Per contra, counsel appearing for the State has supported the impugned
order stating therein that after passing of the cancellation of promotion order of
the petitioner wherein reverting him to the post of Food Inspector he has
challenged the same by filing the writ petition which was dismissed vide order
dated 30.07.2010, a writ appeal preferred against the dismissal order of the writ
petition was also dismissed vide order dated 02.12.2020. Now, the matter is
pending consideration before the Hon'ble Supreme Court in SLP. The
authorities have started making recovery from the writ petitioner as there is no
interim relief granted by the Hon'ble Supreme Court in his favour. The case law
which has been relied upon by the writ petitioner is virtually not applicable to
the facts and circumstances of the present case because the writ petitioner is
still in service. It is further contended that the writ petition is not maintainable as
the earlier writ petition and the writ appeal including the review petition have
already been dismissed by this Court. The writ petitioner has filed an
application in the pending SLP before the Hon'ble Supreme Court for redressal
of his grievances. In view of the aforesaid, he has prayed for dismissal of the
writ appeal.
6. Heard the learned counsels for the parties and perused the records.
7. The undisputed facts being that after cancellation of promotion order of
Signature Not Verified
Signed by: TAJAMMUL
HUSSAIN KHAN
Signing time: 12/19/2022
12:31:27 PM
the writ petitioner, he has preferred a writ petition, which was dismissed vide
order dated 30.07.2010 against which a writ appeal was preferred, which was
also dismissed vide order dated 02.12.2020. Thereafter, the review petition was
also dismissed vide order dated 22.04.2022. It is an admitted position that
petitioner has worked in pursuance to the interim order granted by this Court.
The SLP against the dismissal order of the writ appeal is pending consideration
before the Hon'ble Supreme Court. No interim relief was granted by the Hon'ble
Supreme Court to the writ petitioner. The writ petitioner was wrongly promoted
by the authorities without even considering his ACRs. As the writ petitioner is
already in service, the recovery has been made from the writ petitioner. The
Writ Court has considered the aspect that as the SLP is pending consideration
and no interim relief is granted to petitioner, filing of writ petition is not an
appropriate remedy to the writ petitioner once the order of reversion has been
confirmed by the Writ Court as well as by the Writ Appellate Court. The Writ
Court has rightly considered the aforesaid aspect of the case. Under these
circumstances, no relief can be extended to the petitioner in the writ appeal.
8. The writ appeal sans merit and is accordingly dismissed. No order as to
costs.
(RAVI MALIMATH) (VISHAL MISHRA)
CHIEF JUSTICE JUDGE
taj
Signature Not Verified
Signed by: TAJAMMUL
HUSSAIN KHAN
Signing time: 12/19/2022
12:31:27 PM
