Dr. Ashwani Mishra vs The State Of Madhya Pradesh
2023 Latest Caselaw 9014 MP

                                                             1
                           IN    THE       HIGH COURT OF MADHYA PRADESH
                                                AT JABALPUR
                                                     BEFORE
                                       HON'BLE SHRI JUSTICE SANJAY DWIVEDI
                                                 ON THE 19 th OF JUNE, 2023
                                             WRIT PETITION No. 10413 of 2020

                          BETWEEN:-
                          DR. ASHWANI MISHRA S/O SHRI R.K. MISHRA, AGED
                          ABOUT    31    YEARS, OCCUPATION:    ASSISTANT
                          PROFESSOR    GUEST    FACULTY    R/O   LIG   8
                          HARSHWARDHAN NAGAR NEAR MATA MANDIR
                          BHOPAL (MADHYA PRADESH)

                                                                                           .....PETITIONER
                          (BY SHRI ASHOK KUMAR GUPTA - ADVOCATE)

                          AND
                          1.    THE STATE OF MADHYA PRADESH THR. THE
                                PRINCIPAL SECRETARY HIGHER EDUCATION
                                DEPARTMENT VALLABH BHAWAN BHOPAL
                                (MADHYA PRADESH)

                          2.    THE BARKATULLAH UNIVERSITY                  BHOPAL
                                THROUGH THE REGISTRAR

                          3.    DIRECTOR         UNIVERSITY   INSTITUTE    OF
                                T E C H N O L O G Y BARKATULLAH    UNIVERSITY
                                BHOPAL (MADHYA PRADESH)

                          4.    HEAD OF THE DEPARTMENT DEPARTMENT OF
                                P H A R M A C Y BARKATULLAH UNIVERSITY
                                BHOPAL (MADHYA PRADESH)

                                                                                        .....RESPONDENTS
                          (BY SHRI DEEPAK TIWARI - PANEL LAWYER )
                          (SHRI A.S.RAIZADA - ADVOCATE - RESPONDENT NO.2)

                                Th is petition coming on for hearing this day, th e court passed the
                          following:
                                                              ORDER

Since the basic facts of all the petitions are similar and the relief claimed Signature Not Verified Signed by: SUSHMA KUSHWAHA Signing time: 6/24/2023 2:15:21 PM

therein are also identical, therefore, all these petitions are heard analogously and being decided by this common order. For the sake of convenience, facts of W.P.No.9888/2020 are taken note of.

All the writ petitions have been filed by the respective petitioners under Article 226 of the Constitution of India claiming relief therein that the order of their termination from the post of Guest Teacher is illegal in the light of the judgment passed by this Court in W.P.No.1157/2019 (S.Almelu & others Vs. The State of Madhya Pradesh and others) decided on 08/05/2020 along with Writ Petition No.1011/2019 (Priyesh Jaiswal and others Vs. Barkatullah University, Bhopal and others). Petitioners are also challenging

the order appointing them as a Guest Faculty Teacher on contract basis.

The sole contention of counsel for petitioners is that the case of petitioners is squarely covered with the case S.Almelu(supra) and Priyesh Jaiswal (supra) which have already been decided by this Court. He submits that merely because the petition was filed in the year 2020 after deciding the issue in favour of some similarly situated persons, it cannot be dismissed only on the ground that there is some delay in filing the petition and the present petitioners are fence sitters. He has placed reliance upon the order passed by the Supreme Court in case of Mohd. Abdul Kadir and another Vs. Director General of Police, Assam and others, reported in 2009(6) SCC 611 and submitted that though the appointment of petitioners was temporary and adhoc but it was under a particular scheme which is still continued and Exit Policy under which selection of the petitioners was made postulates specific condition making nature of appointment co-terminous, therefore, since the scheme is still continued, therefore, the petitioners cannot be substituted by another set of employees of the same status.

Signature Not Verified Signed by: SUSHMA KUSHWAHA Signing time: 6/24/2023 2:15:21 PM

Relevant paragraphs 17 and 18 of this case is reproduced as under:-

17. When the ad hoc appointment is under a scheme and is in accordance with the selection process prescribed by the scheme, there is no reason why those appointed under the scheme should not be continued as long as the scheme continues. Ad hoc appointments under schemes are normally coterminous with the scheme (subject of course to earlier termination either on medical or disciplinary grounds, or for unsatisfactory service or on attainment of normal age of retirement). Irrespective of the length of their ad hoc service or the scheme, they will not be entitled to regularisation nor to the security of tenure and service benefits available to the regular employees. In this background, particularly in view of the continuing Scheme, the ex-serviceman employed after undergoing the selection process, need not be subjected to the agony, anxiety, humiliation and vicissitudes of annual termination and re-engagement, merely because their appointment is termed as ad hoc appointments.

18. We are therefore of the view that the learned Single Judge was justified in observing that the process of termination and reappointment every year should be avoided and the appellants should be continued as long as the Scheme continues, but purely on ad hoc and temporary basis, coterminous with the Scheme. The Circular dated 17-3-1995 directing artificial breaks by annual terminations followed by fresh appointment, being contrary to the PIF Additional Scheme and contrary to the principles of service jurisprudence, is liable to be quashed.

Counsel for the petitioners submits that similarly situated persons cannot b e treated differently. In support of his submission, he has placed reliance upon an order passed by the Supreme Court in (State of Karnataka and others Vs. C. Lalitha. Paragraph 29 of this case is relevant which is reproduced as under:-

29. Service jurisprudence evolved by this Court from Signature Not Verified Signed by: SUSHMA KUSHWAHA Signing time: 6/24/2023 2:15:21 PM

time to time postulates that all persons similarly situated should be treated similarly. Only because one person has approached the court that would not mean that persons similarly situated should be treated differently. It is furthermore well settled that the question of seniority should be governed by the rules. It may be true that this Court took notice of the subsequent events, namely, that in the meantime she had also been promoted as Assistant Commissioner which was a Category I post but the direction to create a supernumerary post to adjust her must be held to have been issued only with a view to accommodate her therein as otherwise she might have been reverted and not for the purpose of conferring a benefit to which she was not otherwise entitled to.

He further placed reliance upon an order passed by the Supreme Court in (State of Uttar Pradesh and others Vs. Arvind Kumar Shrivastava and others). Paragraph 22 of this case is relevant which is reproduced as under:-

22. The legal principles which emerge from the reading of the aforesaid judgments, cited both by the appellants as well as the respondents, can be summed up as under. 22.1. T h e normal rule is that when a particular set of employees is given relief by the court, all other identically situated persons need to be treated alike by extending that benefit. Not doing so would amount to discrimination and would be violative of Article 14 of the Constitution of India. This principle needs to be applied in service matters more emphatically as the service jurisprudence evolved by this Court from time to time postulates that all similarly situated persons should be treated similarly. Therefore, the normal rule would be that merely because other similarly situated persons did not approach the Court earlier, they are not to be treated differently.

emphasis supplied 22.2. However, this principle is subject to well-recognised exceptions in the form of laches and delays as well as acquiescence. Those persons who did not challenge the wrongful action in their cases and acquiesced into the same and woke up after long delay only because of the reason Signature Not Verified Signed by: SUSHMA KUSHWAHA Signing time: 6/24/2023 2:15:21 PM

that their counterparts who had approached the court earlier in time succeeded in their efforts, then such employees cannot claim that the benefit of the judgment rendered in the case of similarly situated persons be extended to them. They would be treated as fence-sitters and laches and delays, and/or the acquiescence, would be a valid ground to dismiss their claim.

22.3. However, this exception may not apply in those cases where the judgment pronounced by the court was judgment in rem with intention to give benefit to all similarly situated persons, whether they approached the court or not. With such a pronouncement the obligation is cast upon the authorities to itself extend the benefit thereof to all similarly situated persons. Such a situation can occur when the subject-matter of the decision touches upon the policy matters, like scheme of regularisation and the like (see K.C. Sharma v. Union of India [K.C. Sharma v. Union of India, (1997) 6 SCC 721 : 1998 SCC (L&S) 226] ). On the other hand, if the judgment of the court was in personam holding that benefit of the said judgment shall accrue to the parties before the court and such an intention is stated expressly in the judgment or it can be impliedly found out from the tenor and language of the judgment, those who want to get the benefit of the said judgment extended to them shall have to satisfy that their petition does not suffer from either laches and delays or acquiescence.

Per contra, counsel for respondents has submitted that Indore Bench of this Court has already dismissed the petition which was filed on the same issue i.e W.P.No.25212/2018 (Pankaj Jagtap and others Vs. State of M.P and others) vide order dated 12/03/2019, therefore, the order passed by this Court in case of S.Almelu and others (Supra) is per incuriam. He has informed this Court that writ appeal has also been filed against the order passed by this Court which is pending consideration and no interim relief has been granted by the Division Bench in the said case. He submits that present petitioners are fence sitters, therefore, they are not entitled to get the same relief as they did not

Signature Not Verified Signed by: SUSHMA KUSHWAHA Signing time: 6/24/2023 2:15:21 PM

approach the Court in time and their petition deserves to be dismissed on the ground of delay and laches.

I have heard the submissions made by counsel for parties and perused the record.

T h e question emerges to be adjudicated as to whether the case of petitioners is similar to that of case decided by this Court in Writ Petition No.1157/2019 or case decided by Indore Bench in W.P.No.25212/2018.

I have examined the facts of the case which have been decided by this Court in W.P.No.1157/2019 and the facts of the case in hand.

Comparing facts of both the cases, I found that the facts of the present case are similar to that of Writ Petition No.1157/2019 decided by this Court. In both the cases order dated 22/12/2018 is under challenge, whereby services of the petitioners have been terminated. The petitioners were appointed by the respondent-university under the provision of Exit Policy which was approved by the State Government vide order dated 03/08/2006. The said policy very

clearly postulates that the appointment shall be made only on the contract basis and shall be co-terminous with the department/institution/courses or subject.

T he appointment of petitioners was made initially for a period of six months and that appointment was further extended from time to time vide order dated 23/12/2015. The order of appointment contained the terms and conditions of appointment. As per condition no.3, the appointment was initially for a period of six months and after performing satisfactory services it can be extended for further period of maximum three years. The Committee in its meeting held on 20/12/2018 decided not to extend the appointment of the petitioners further and also issued an order that appointments made in the Pharmacy Department under Self Finance Scheme of the University are Signature Not Verified Signed by: SUSHMA KUSHWAHA Signing time: 6/24/2023 2:15:21 PM

terminated w.e.f 22/12/2018. The Committee has simultaneously decided to make fresh appointment on contract basis in view of the provisions contained in the Ordinance No.4(C) of University.

Nobody has disputed that the appointment of petitioners was made under the provision of Exit Policy and the said policy nowhere provides the specific term of appointment. On the contrary, the appointment was co-terminous as per the said policy. It is also not the case of the respondents that the course under which petitioners have been appointed came to an end, even after considering the nature of appointment which was co-terminous, the petitioners services have been terminated. This Court while taking note of the facts of the case of W.P.No.1157/2019 relying upon the provision of Exit Policy and also took note of the Ordinance No.4(c) and condition contained therein i.e condition no.3 is of the opinion that the case of the present petitioners is similar to facts of W.P.No.1157/2019. However, the case on which respondents have placed reliance i.e Pankaj Jagtap (supra), the Court has considered the Ordinance no.4(D) and in the said ordinance there was no such condition like condition no.3 which excludes the appointment made under Exit Policy under the Self Finance Scheme, therefore, the case decided by this Bench is not similar to that of case decided by Indore Bench.

I n the existing situation, the question remains as to whether present petitioners are entitled to get the same benefit as has been granted by this Court to the petitioners who have earlier approached this Court by filing W.P.Nos.1157/2019 and 1011/2019. Merely because the present petitioners have not approached the Court in time but they have approached the Court only after decision passed by this Court granting relief to other set of employees,

Signature Not Verified Signed by: SUSHMA KUSHWAHA Signing time: 6/24/2023 2:15:21 PM

cannot be a ground to deny the said benefit to them because the delay is not inordinate.

Accordingly, I have no hesitation to say that the case of petitioners is similar to that of W.P.1157/2019 and, therefore, they are also entitled to get the same benefit. However, the order passed by this Court is subjudice before the Division Bench in a Writ Appeal Nos. 836/2020 and 841/2020 in absence of any interim order passed by the Division Bench, this Court cannot deny the relief claimed by the petitioners.

Ex-consequentia, all the petitions are allowed. The impugned order dated 22/12/2018 is set-aside. The respondent no.2/ University is directed to treat the petitioners as contract teachers appointed under the Exit Policy and give them the same status as has been given to them by the respondents as per their initial appointment. It is made clear that the petitioners are not entitled to get any benefit of earlier period during which they have worked as a guest faculty teachers but the benefit of this order be provided to them prospectively for the reason that they have not approached the Court in time. The respondents shall comply the order passed by this Court and change the status of the petitioners within a period of 45 days from the date of receipt of copy of this order.

Accordingly, petitions stand allowed and disposed of.

(SANJAY DWIVEDI) JUDGE sushma

Signature Not Verified Signed by: SUSHMA KUSHWAHA Signing time: 6/24/2023 2:15:21 PM