Madhya Pradesh High Court
Rajeev Singh vs The State Of Madhya Pradesh on 2 February, 2023
Author: Anand Pathak
1
IN THE HIGH COURT OF MADHYA
PRADESH
AT J A B A L P U R
BEFORE
HON'BLE SHRI JUSTICE ANAND PATHAK
ON THE 2nd OF FEBRUARY, 2023
WRIT PETITION No. 21766 of 2018
BETWEEN:-
RAJEEV SINGH S/O SHRI RAMA
SHANKER SINGH, AGED ABOUT 40
1. YEARS, OCCUPATION: DATA ENTRY
OPERATOR DISTT. NARSINGHPUR
(MADHYA PRADESH)
JAY KUMAR SAHU S/O SHRI BASANT
KUMAR SAHU, AGED ABOUT 37 YEARS,
2.
OCCUPATION: ENTRY OPERATOR
CHHINDWARA (MADHYA PRADESH)
VIJAY KAWADKAR S/O SHRI GULAB
RAO, AGED ABOUT 39 YEARS,
3.
OCCUPATION: DATA ENTRY OPERATOR
BETUL (MADHYA PRADESH)
MRS. RICHA PATHAK W/O SHRI NEERAJ
PATHAK, AGED ABOUT 33 YEARS,
4.
OCCUPATION: DATA ENTRY OPERATOR
MANDLA (MADHYA PRADESH)
.....PETITIONERS
(BY SHRI PRAVEEN KUMAR VERMA - ADVOCATE)
AND
THE STATE OF MADHYA PRADESH THR.
PRINCIPAL SECRETARY PLANNING
1. ECONOMICS AND STATISTICS
DEPARTMENT VALLABH BHAWAN,
BHOPAL (MADHYA PRADESH)
COMMISSIONER PLANNING,
ECONOMICS AND STATISTICS
2.
DEPARTMENT BHOPAL (MADHYA
PRADESH)
3. SECRETARY FINANCE DEPARTMENT
2
VALLABH BHAWAN, BHOPAL (MADHYA
PRADESH)
SECRETARY GAD VALLABH BHAWAN,
4.
BHOPAL (MADHYA PRADESH)
COLLECTOR NARSINGHPUR
5.
NARSINGHPUR (MADHYA PRADESH)
COLLECTOR CHHINDWARA CHHINDWARA
6.
(MADHYA PRADESH)
COLLECTOR MANDLA MANDLA (MADHYA
7.
PRADESH)
COLLECTOR BETUL BETUL (MADHYA
8.
PRADESH)
.....RESPONDENTS
(BY SHRI RAJESHWAR RAO - GOVERNMENT ADVOCATE)
...............................................................................................
This petition coming on for admission this day, the court passed
the following:
ORDER
With consent, heard finally.
The present petition has been preferred by the petitioner under
Article 226 of Constitution of India being aggrieved by the order dated
01.08.2018 (Annexure-P/19) passed by Commissioner, Planning,
Economics and Statistics Department, Bhopal (respondent No.2 herein)
whereby direction has been given to the concerned authorities not to
continue the services of Data Entry Operators w.e.f. 01.09.2017.
2. Precisely stated facts of the case are that State Government vide
order dated 29.05.2010 (Annexure-P/1) created post of Data Entry
Operator on contract basis on fix pay scale as per the
Directions/Regulations of General Administration Department/Finance
Department. Direction as contained in the said circular indicates that
recruitment was made against sanctioned vacant post. Advertisement
dated 11.11.2010 (Annexure-P/3) also indicates the said aspect.
3. Petitioners appeared in the fray and stood successful. They were
appointed by their respective appointment orders placed with the petition
as annexure-P/5 to annexure-P/7 collectively. In short, all were appointed
on contract basis as Data Entry Operators for initial period of two years.
It further appears that with the passage of time they were continued with
the services till 2018.
4. State Cabinet vide proceedings dated 29.05.2018 (Annexure-P/13)
decided to give protection umbrella to the contractual employees to the
extent where their services were directed not to be dispensed with without
just reasons and without following due process of law. It was further
directed that in case of any serious misconduct/allegations, issuance of
show-cause notice is imperative and thereafter considering the response
of the employee his services can be terminated. Said spirit is reflected in
circular dated 05.06.2018 (Annexure-P/14) specially in clause No.1.14.1.
5. Grievance as echoed by petitioners in their petition is that they
were removed from their respective services without affording any
opportunity of hearing and thus, illegality and arbitrariness has been
caused. Plea of violation of principles of natural justice is being raised.
6. It is the submission of learned counsel for the petitioners that
petitioners were appointed against vacant sanctioned post and therefore, if
respondents intended to take any step prejudicial to the service conditions
of the petitioners, then opportunity of hearing ought to have been given
and in absence thereof, the respondents caused illegality. In support of
submissions, he relied upon the judgment of Apex Court in case of Ku.
Shrilekha Vidyarthi etc. vs. State of U.P. & others reported in AIR
1991 SC 537 and judgment passed by Co-ordinate Bench in the case of
Santosh Dalal vs. State of M.P. passed in W.P. No.5043/2014(S).
7. Learned counsel for the petitioners further informs this Court that
earlier this writ petition was heard and decided by the Co-ordinate Bench
of this Court vide order dated 22.04.2022 whereby petition preferred by
petitioners was allowed and impugned order/action of the respondents
was set-aside, but denied back-wages on the principle of "no work no
pay". Thereafter, matter traveled to learned Division Bench at the
instance of petitioners as well as respondents. Petitioners filed W.A.
No.661/2022 seeking back-wages also. Respondents preferred W.A.
No.867/2022 taking exception to the order passed by the learned Writ
Court whereby petition of petitioners was allowed and petitioners were
directed to be reinstated. Learned counsel for the petitioners categorically
submits that in State of Madhya Pradesh at many places Data Entry
Operators on contract basis are still working.
8. Both writ appeals were heard on different dates and vide order
dated 30.06.2022, learned Division Bench allowed the writ appeal
preferred by present petitioners to the extent whereby petitioners were
directed to prefer a representation for consideration by respondents about
back-wages, if any. So far as writ appeal preferred by respondents/State is
concerned (W.A. No.867/2022), same was allowed because learned
Division Bench found the order dated 02.08.2022 bereft of any reason.
Matter was remanded back to be heard on merits again while restoring the
writ petition. Therefore, this writ petition is being heard finally again.
9. Per contra, learned counsel the respondent/State opposed the
submissions made by petitioners on the ground that action of respondents
stands justified in view of the Madhya Pradesh Contractual Appointment
to Civil Post Rules, 2017. He referred Rule 11 of Rules of 2017 and its
sub-clauses to bolster his submissions that total period of contract
appointment shall not be more than 5 years. Here initial appointment of
petitioners is of the year 2011 and therefore, they exceeded the ceiling of
five years. Hence, rightly removed. According to him, in the present set
of facts no opportunity of hearing was required, as they were contractual
employees. He prayed for dismissal of this petition.
10. Heard learned counsel for the parties at length and perused the
documents appended thereto.
11. This is the case where petitioners, who are working as Data Entry
Operators on contract basis for more than 7 years are directed to be
removed by the respondents by way of general order dated 01.08.2018
(Annexure-P/19).
12. Perusal of documents appended with the petition and contentions
raised by the petitioners in the writ petition which largely remained
unrebutted, indicates that petitioners were appointed on contract basis
initially for two years but purportedly against sanctioned vacant post.
Documents (Annexure-P/1 to Annexure-P/3) indicate that State
Government Department of Planning, Economics and Statistics issued
specific order dated 29.05.2010 where ratification of the General
Administrative Department/Finance Department appears to have been
taken. Expenditure has to be incurred against the different heads of the
State as referred into the said order. Therefore, it is the case where
respondents appointed petitioners against sanctioned vacant post. Once
the respondents appointed petitioners against the sanctioned vacant post,
then in that condition exception carved out in Rule 11 (2) of the Rules of
2017 comes to the rescue of petitioners. Rule 11 is reproduced for ready
reference as under:-
"11. Period of Appointment. - (1) On the contract
appointment posts mentioned under Rule 4(1), the contract
appointment for the first time shall be made for the period
of not more than one year however, the State Government
may, take decision of renewal of contract appointment by
extending the period of contract appointment for a period of
maximum one year at one time depending on the necessity
and assessing suitability of person appointed on contract.
(2) Except the post specified in Rule 4(1), the total period of
contract appointment shall not be more than five years.
(3) Either of parties may terminate the contract appointment
during the period of contract appointment by giving one
month's notice in advance or paying one month's salary in
lieu thereof.
(4) Contract appointment shall be deemed terminated
automatically on expiry of the period of the contract
appointment and no separate order shall be needed for
terminating the services."
13. Since exception has been carved out as per Rule 4 (1) of Rules of
2017, therefore, Rule 4 is also reproduced for ready reference as under:-
"4. Posts of contract appointment. - The following posts shall
be called the contract appointment post, namely :-
(1) Such posts which are sanctioned as contract appointment
post in the departmental setup.
(2) Notwithstanding anything contained in the Departmental
recruitment rules, such post, which requires specialty,
experience and specific qualification etc., may be declared
contract appointment post by general or special order by
concerning departments of the State Government, in
exceptional cases, for the purpose of maintaining efficiency
in the public administration, excluding the post which
requires in the field of judicial service under any law or rule,
for the time being in force.
(3) Such sanctioned posts of class III and IV in the personal
establishment of Chief Minister/Ministers on which
appointments are to be made till the tenure of Chief
Minister/Ministers (co-terminus)."
14. Perusal of these provisions makes it clear that the period/ceiling
prescribed for contractual appointments apparently not applicable in the
set up of Data Entry Operators specially in the case of petitioners because
they were against sanctioned vacant posts.
15. It is further substantiated by the act of respondents itself when they
regularly extended the tenure of contract of petitioners. Therefore, it can
be safely concluded that petitioners were appointed on contract basis but
against sanctioned vacant post and therefore, before taking any drastic
step like removal of services of petitioners, opportunity of hearing ought
to have been afforded to the petitioners. Supreme Court time and again
has mandated that before removal of any employee even a contractual
employee, opportunity of hearing is required to be given. [See:
Ku.Shrilekha Vidyarthi (Supra)] Therefore, petitioners, who are
contractual employees were required to be given an opportunity of
hearing which was denied in the present set of facts. Therefore, the whole
proceedings stand vitiated on the point of principles of natural justice.
Therefore, order impugned has to relegate into oblivion.
16. One more aspect deserves mention in the present set of facts is that
the learned Division Bench has given direction in W.A. No.661/2022 vide
order dated 30.06.2022 to the petitioners to make a representation before
the competent authority regarding back-wages and same is to be
considered by respondents in accordance with law. Impliedly, question of
reinstatement is approved. So far as order dated 02.08.2022 in W.A.
No.867/2022 (preferred at the instance of State) is concerned, matter was
remanded on the ground of assignment of reasons primarily.
17. In the cumulative analysis, petitioners succeed in their endeavor
and thus, petition stands allowed. Impugned order dated 01.08.2018
(Annexure-P/19) stands set-aside. Petitioners stand reinstated. However,
as discussed above, question of back-wages shall be decided as per the
direction of learned Division Bench vide order dated 30.06.2022 passed
in W.A. No.661/2022.
With above terms, petition stands allowed and disposed of finally.
(ANAND PATHAK)
JUDGE
pnm
Digitally signed by POONAM MANEKAR
Date: 2023.02.03 18:23:56 +05'30'
