Shyam Lal Napit vs The State Of Madhya Pradesh
2022 Latest Caselaw 16916 MP

                                     W.P. No.936/2017
                           1



     IN THE HIGH COURT OF MADHYA PRADESH
                    AT JABALPUR

                       BEFORE

        HON'BLE SMT. JUSTICE NANDITA DUBEY

             WRIT PETITION No. 936 of 2017

BETWEEN:-

1.     SHYAM LAL NAPIT, S/O SHRI KESHAV PRASAD NAPIT,
       AGED ABOUT 56 YEARS, OCCUPATION: PEON, GOVT
       ANJAN HIGHER SEC. SCHOOL, GANGAHRA, REWA,
       DISTRICT REWA (MADHYA PRADESH)

2.     VAIDYA NATH SHARMA, S/O LATE RAM VISHAL
       SHARMA, AGED ABOUT 65 YEARS, RETD PEON.

                                      ....PETITIONER

(BY SHRI RAJ KUMAR TRIPATHI - ADVOCATE)

AND

1.     THE STATE OF MADHYA PRADESH THROUGH
       SECRETARY SCHOOL EDUCATION DEPARTMENT,
       VALLABH BHAWAN, BHOPAL (MADHYA PRADESH)

2.     COMMISSIONER/DIRECTOR PUBLIC INSTRUCTION,
       GAUTAM NAGAR, BHOPAL, DISTRICT BHOPAL (MADHYA
       PRADESH)
                                                W.P. No.936/2017
                                 2

3.    JILA PANCHAYAT REWA, DISTRICT REWA THROUGH ITS
      CHIEF EXECUTIVE OFFICER, DISTRICT REWA (MADHYA
      PRADESH)

4.    DISTRICT EDUCATION OFFICER REWA, DISTRICT REWA
      (MADHYA PRADESH)

5.    JOINT DIRECTOR, TREASURY, ACCOUNTS AND PENSION
      REWA DIVISION, REWA (MADHYA PRADESH)

6.    PRINCIPAL GOVT. ANJAN HIGHER SECONDARY SCHOOL,
      GANGAHRA, REWA (MADHYA PRADESH)

(BY SHRI DHEERAJ TIWARI - PANEL LAWYER)

                                                ....RESPONDENTS


      Reserved on        : 25.07.2022
      Pronounced on       : 20.12.2022


       This petition having been heard and reserved for orders,
coming on for pronouncement this day, the Court pronounced
the following :

                            ORDER

This writ petition has been filed by the petitioners seeking quashment of order dated 30.03.2016 (Annexure P-1), whereby services of petitioners have been absorbed, but with effect from 22.02.2008 and further for a direction to the respondents to treat the petitioners as absorbed from 06.11.2000, i.e., from the date of taking over the institution for the purpose of W.P. No.936/2017

grant of all consequential benefits alongwith arrears of salary with interest at the rate of 18% after giving seniority w.e.f. 06.11.2000, as has been granted to other similarly situated persons.

2. Facts in nutshell are that petitioners were appointed as Peons in the year 1974 and 1976 respectively in private unaided Anjan Higher Secondary School, Gangahra, district Rewa, run by the society, Shree Ram Shiksha Samiti, Gangahra. Since 1981, the school has been given 100% grant in aid. The school was taken over by the State Government w.e.f. 06.11.2000 and the services of the school teaching staff was absorbed but no order was passed with regard to non-teaching staff like petitioners. Aggrieved, the petitioners moved a representation in this regard before the State Government and vide order dated 10.05.2007, The State Government sanctioned the post of peon, but on a fixed salary of Rs.1,000/-. Aggrieved by this action of State Government in reducing their salary, the petitioners preferred W.P. No.11842/2009, which was disposed of on 01.02.2013 directing the State Government to consider the claim of petitioners as per the decision rendered in the case of N.K. Rai and others Vs. State of M.P. and others, W.P. No.6850/2000 and to extend the similar benefits, if they are found similarly situated. Pursuant that to, vide the impugned order dated 30.03.2016, the services of petitioners were absorbed, but with effect from 22.02.2008. The W.P. No.936/2017

petitioner No.2 has retired in the meantime, on reaching the age of superannuation.

3. The contention of learned counsel for the petitioners is that the issue involved in the present petition is squarely covered by the judgment of this Court in the case of N.K. Rai (supra), which travelled upto Supreme Court and the SLP filed by the State Government was dismissed. Petitioners have further placed reliance on the order dated 30.01.2020 passed in a bunch of petitions, main being Chatrapal Singh Vs. State of M.P., (W.P. No.13472/2013), wherein the Court has relied on the case of Chet Ram Mishra Vs. State of M.P. and others reported in 2017(1) MPLJ 91, which was subject matter of W.A. No. 714/2018. The writ appeal preferred by the State was dismissed as also the SLP preferred against the order of writ appeal. It is pointed out that the State Government vide order dated 04.03.2014 (Ex. P-9) has complied the order passed passed in N.K. Rai's case (supra). In the said order at para 6, Anjan Govt. Higher Secondary School, Gangahra is mentioned at Sl.No.14, A.L. Rai Higher Secondary School, Bachaiya, district Katni at Sl.No.16 and Higher Secondary School at Sadara, district Balaghat at Sl.No.17. He further pointed out that vide order dated 05.04.2014 (Annexure P-11) and order dated 26.04.2014 (Annexure P-12), the post of Peon in A.L. Rai Higher Secondary School and Higher Secondary School at Sadara, W.P. No.936/2017

district Balaght has been absorbed with effect from the date of taking over of the school, i.e., 16.11.2000 and 21.11.2000 respectively, but the petitioners have been discriminated.

4. Referring to the Rules for absorption of the staff of non-government schools taken over under the government control by the School Education Department framed on 26.06.1995, it is argued that the said rules provides that absorption and seniority shall be determined from the date of taking over the school.

5. Per contra, the contention of learned counsel for the State is that school was taken over on various terms and conditions and at the time of taking over, post of peon was not sanctioned, which was done later on, on 22.02.2008. Hence, their seniority could only be counted from the date of sanction of the post.

6. Having heard the learned counsel for the parties and on perusal of the record, it is noted that the Rule 3(a), 4 and 6 of the Rules of absorption dated 26.06.995 (Ex. P-17) provides that absorption and seniority will be determined from the date of taking over the school. Relevant rules are quoted hereinunder :-

3. Absorption (a) The Upper Division Teachers, Lecturers and other staff will be absorbed on the posts held by them at the time of taking over the institution under government control provided :

(i) He is qualified for the post held by him.

W.P. No.936/2017

4. Seniority: The seniority of the absorbed employee shall be determined from the date on which the institution is taken over provided that the absorbed employee is qualified on such date in terms of Rule 3 to hold such post/cadre in which he is finally absorbed.

6. General: The basis year for determined of government service will be the year in which the institution is taken under government control.

7. These rules have been taken note of in para 11, 12, and 14 of N.K. Rai's case (supra). The Court also took note of the memo dated 16.12.1997, which prescribed that salary shall not be reduced at the time of absorption of employee. It was held in para 19 that :-

19. In the instant case it is clear that Govt. of M.P. has not granted the pay scale which has to be obtained by the teachers and other employees of the school being taken over in accordance with the policy (P/6). As apparent from orders (R-4/4 and R-4/5) that petitioners have been denied the benefit which has been given to employees in case of other similar schools taken over by State of M.P. which action is not only discriminatory but is impermissible in view of policy (P/6). In my opinion, state in bound to act in accordance with the policy (P/6).

Further in para 22, the Court has held :-

22. In view of above discussion, writ petition is allowed. The teaching staff is held entitled for absorption as Lecturer, UDT (redesignated as "Teacher"), LDT (redesignated as "Asstt. Teacher") and non-teaching staff has also to be absorbed as per their qualifications on the post of Peon, Watchman, etc. In the prevailing pay scale of the posts. Salary of the petitioners has to W.P. No.936/2017

be fixed in accordance with memo (P/6). Let needful be done within three months. Parties to bear their own cost as incurred.

8. In the present case, the petitioners' school was granted 100% grant in aid from the year 1981 and the petitioners were getting the salary from the said fund. The school of the petitioners was taken over by the State Government on 16.11.2000, but the petitioners' post was not absorbed. As apparent from the orders dated 05.04.2014 (Ex. P-11) and 26.04.2014 (Ex. P-12), similarly situated employees in the other schools been taken over by the State government have been extended the benefit of regular pay scale/absorption with effect from the date of taking over the school, whereas the petitioners have been discriminated and denied the same benefit, which is impremissible.

9. In the case of Chetram Mishra (supra), the Court has taken note of all the relevant circulars including the circulars of the State government dated 05.01.1972 and 27.08.1982 and held that the services of the employees rendered in government aided private schools, who were later on absorbed in the government schools is to be counted for the purpose of determination of person and payment of retiral dues. The case of petitioners is, therefore, squarely covered by the aforestated orders.

W.P. No.936/2017

10. In view of the aforestated alanysis, the impugned order dated 30.03.2016 cannot be sustained and hereby set aside.

11. The petition is allowed. The respondents are directed to absorb the petitioners on the post of Peon from the date their school was taken over, in the prevailing pay scale of posts and their salary and seniority be fixed accordingly and arrears be paid. Their past services of petitioner in the school when it became govternment aided be also counted for the purpose of pensionary and other retiral dues.

(Nandita Dubey) Judge 20/12/2022 gn Digitally signed by SMT. GEETHA NAIR Date: 2022.12.21 10:15:15 +05'30'