Madhya Pradesh High Court
Shantilal Rathod vs M.P. State Agricultural ... on 18 October, 2023
Author: Vivek Rusia
-1-
IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
ON THE 18th OF OCTOBER, 2023
WRIT PETITION No. 6729 of 2014
BETWEEN:-
SHANTILAL RATHOD S/O SHANKARLAL RATHORE, AGED ABOUT 52
YEARS, OCCUPATION: DRIVER, KRISHI UPAJ MANDI RATLAM, R/O
BAJNA, DISTRICT RATLAM (MADHYA PRADESH)
.....PETITIONER
(SHRI SUKH LAL GWALIORY, ADVOCATE.)
AND
M.P. STATE AGRICULTURAL DISTRIBUTION BOARD, MANAGING
1.
DIRECTOR, ARERA HILLS BHOPAL (MADHYA PRADESH)
SECRETARY, KRISHI UPAJ MANDI SAMITI, RATLAM (MADHYA
2.
PRADESH)
KAILASH CHANDRA SANKLA S/O RADHAKRISH JI SANKLA,
3. OCCUPATION: VEHICLE DRIVER, KRISHI UPAJ MANDI, RATLAM, R/O
GRAM DHARAD, DISTRICT RATLAM (MADHYA PRADESH)
.....RESPONDENTS
(SHRI RISHI AGRAWAL, ADVOCATE FOR THE RESPONDENT NO.3.)
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This petition coming on for orders this day, the court passed the
following:
ORDER
The petitioner has filed the present petition challenging the
action of the respondents whereby they are not counting his service
since the date of initial appointment i.e. 01.12.1984. The petitioner was
Signature Not Verified
Signed by: DIVYANSH
SHUKLA
Signing time: 18-10-2023
19:23:18
initially appointment on the post of Driver on the pay-scale of
Rs.575+15 - 830/- vide order dated 01.12.1984.
02. The petitioner was removed from the service by way of oral
order which he challenged by way of Civil Suit No.92-A/1995 before
the IV Civil Judge Class-II, Ratlam. Vide order dated 04.12.1995 the
suit was dismissed. Thereafter, the petitioner preferred a first appeal
which came to be allowed vide order dated 19.11.1996 by directing
Krishi Upaj Mandi to take him back into the service and not to remove
him without conducting regular departmental enquiry. Thereafter, the
Krishi Upaj Mandi approached this Court by way of Second Appeal
No.54/1997 which was dismissed after framing of questions of law vide
judgment dated 01.04.2009. After that the Krishi Upaj Mandi tested all
the aforesaid two orders by way of Special Leave to Appeal (Civil)
No.17964/2009 which was dismissed on 07.08.2009.
03. According to the petitioner, after the dismissal of the
aforesaid SLP he was liable to be reinstated, he was taken back into the
service by way of fresh appointment on 03.03.2010 in a revised pay of
Rs.5200+20200+1900/-. The grievance of the petitioner in this petition
is that he is getting less pay because the respondent Krishi Upaj Mandi
Committee is not counting his past service from the initial date of
appointment. In order to substantiate his claim he impleaded respondent
No.3 who was appointed in the year 1990 on a pay-scale of Rs.950 -
1530/- and getting much more salary than him, meaning thereby he is
being treated as an employee of Krishi Upaj Mandi since 2010 whereas
by the order of District Judge as well as High Court his entire service
Signature Not Verified
Signed by: DIVYANSH
SHUKLA
Signing time: 18-10-2023
19:23:18
was liable to be counted as he was given benefit of reinstatement with
all benefits.
04. Learned counsel for the respondent submits that petitioner
had been paid all arrears of the salary but he was appointed as a daily
wager, therefore, he was not liable to be reinstated as a regular employee
into the service. He was given a regular appointment after the dismissal
of said SLP, therefore, his services are rightly been treated w.e.f. 2010.
He has been paid Rs.3,07,974/- as arrears.
I have heard learned for the parties at length.
05. Before the Civil Court, District Court as well as High Court,
the Krishi Upaj Mandi came up with the defence that the petitioner was
appointed as a daily rated employee, therefore, no regular departmental
enquiry was required to be undertaken before terminating him from the
service. Both the Courts did not accept the aforesaid contention and
found that he was illegally removed and liable to be taken back into the
service and if they want to remove him, he can be removed after
conducting a departmental enquiry. Pragraph No.8 of order dated in
04.12.1995 case No.92-A/1995 is reproduced below:
8. वादी द्वारा प्रस्तु rत दस्ताaवेज पद सृजन की स्वीcकृतत पी. 2 सी में स्पᄸष्टE
रूप से तिख हुआ है तक उपरोक्त् पद उसी समय तक रखे जायेगे जब तक
मं डी सतमतत की ररं ग मशीन मं डी सतमतत में काययरत रहे गी। इस आदे श के
तारतम्यि में ही वादी को पी. 2 को तनयुक्तापत्र प्राम्यि हुआ। इस तनयुम्यक्तपत्र
पी. 1 में भी इस तथ्य का स्प ष्ट् उल्े् ख है तक रतिाम मं डी में कायाय ियीन
निकूि, तडितिं ग मशीन काययरत रहे गी उसी समय तक के तिये एवं इस
कायाय ियीन तनयुम्यक्त के संबंध में चयन सतमतत जो भी तनर्यय करे गी वह
Signature Not Verified
Signed by: DIVYANSH
SHUKLA
Signing time: 18-10-2023
19:23:18
अंततम होकर सवयमान्यक रहे गा। वादी सातियों के साक्ष्यइ से स्पहष्टम है तक
प्रततवादी के तवभाग में वतयमान में तडितिं ग मशीन नहीं है । चूंतक वादी की
तनयुम्यक्त तडितिं ग मशीन के मं डी सतमतत में रहने तक सशतय की गई थी
इसतिये तडितिं ग मशीन के नहीं रहने पर वादी का पद स्व त: समािर हो जाता
है । तथा इसके संबंध में तक वादी को एक माह का अतिम वेतन तथा हटाये
जाने के पूवय सूचना तदया जाना आवश्यीक नहीं था। वासा. 2 ने अपने चरर्
16 में कहा है तक तद. 29.8.88 के प्रस्ताेेव द्वारा उपरोक्तर निकूप, तडितिं ग
मशीन व टि क के स्टाकफ में से श्री परमार उपयन्त्री को सेवा तनवृत्ता न भी
तकया गया हो तो वादी को इससे कोई सहायता प्रािउ नहीं होती। इसके
अततररक्त कैिाश सां किा की तनयुम्यक्त से भी वादी के पद का संबंध नहीं
है । अत: प्रमातर्त पाया जाता है तक वादी की तनयुम्यक्त प्रततवादी संस्थाअ में
अस्थातई रूप से सशतय तडितिं ग मशीन के काययरत रहने तक के तिये की गई
थी। एवं वादी को अवैध रूप से सेवा मु क्तम नहीं तकया गया। वाद प्रश्नय
क्रमां क 1, 2, व 3 का तनराकरर् नकारात्मयक तथा वादी तवषय क्रमां क 4 का
तनराकरर् सकारात्म,क तकया जाता है । उक्त वाद तवषयों के तनष्क षय के
आधार पर वादी का वाद तसद्ध नहीं पाया जाता है ।
अत: तनम्नादनु सार तडक्री पाररत की जाती है :-
(अ) वादी का वाद तनरस्तन तकया जाता है ।
(ब) प्रततवादी का वाद व्ययय वादी अदा करें ।
(स) अतधवक्ताेी शु ल्क प्रमातर्त होने पर सूची अनु सार दे य हो।
उपरोक्ता)नु सार तडक्री बनाई जावे।
06. Relevant paragraph of order passed by the High Court dated
01.04.2009 in Second Appeal No.54/1997 is reproduced below:
From perusal of the said judgment, I find that the said
judgment is quite distinguishable. In the present case, from
perusal of the order Ex.P/2 dated 11.12.1984, it appears that
the post was sanctioned by the Director, Krishi Upaj Mandi
Samiti and the plaintiff was appointed on the said post w.e.f.
Signature Not Verified
Signed by: DIVYANSH
SHUKLA
Signing time: 18-10-2023
19:23:18
1.12.1984 vide order dated 27.4.1985. This order clearly
mentions that the plaintiff is appointed on a post sanctioned
by the Director and sanctioned pay scale. Thus, it can safely
be held that the appointment of the plaintiff was against the
post created by the Director, Krishi Upaj Mandi Samiti vide
Ex.P/2 and the plaintiff was appointed against a vacant post.
The orders Ex. P/3, P/4, P/5 & P/6 clearly show that the
plaintiff was given benefits of regular appointee such as
earned leave, increment etc. The defendant Krishi Upaj
Mandi has not led any evidence to rebut the evidence led by
the plaintiff which he has led to prove that he was regularized
in service and he got the benefits of regular employee. The
evidence of the plaintiff thus stood unrebutted.
Apart from this the order Ex. P/7 or in the order of
appointment order Ex.P/] it is nowhere stated that the
appointmentof theplaintiff was till the work of drilling
machine A was going on. In fact, the order Ex.P/1 showsthat
the plaintiff was directed to face Selection Committee and
appointed on a sanctioned post and pay scale sanctioned by
the Director which itself goes to show that the appointment
order was passed in an anticipation of the selection of the
plaintiff. The defendant have not produced any record to
show that Selection Committee did not find him fit for
regular appointment. On the contrary, documents show that
he wastreated as regular employee.
In such circumstances, the first appellate Court has
rightly held that the service of the plaintiff could not be
terminated without holding regular departmental enquiry
against him or without affording any opportunity of hearing
to him.
Hence, this appeal is without any merit and is hereby
dismissed.
07. In view of the aforesaid, this Court had already held that
appointment of this petitioner was a regular appointment after following
a due course by selection committee and he could not be terminated
without holding any departmental enquiry. Accordingly, the petitioner
Signature Not Verified
Signed by: DIVYANSH
SHUKLA
Signing time: 18-10-2023
19:23:18
was liable to be reinstated rather than issuing afresh appointment order
and after reinstatement he was entitled to be treated into the service
from the date of initial appointment with all increments, revision of pay,
dearness allowance, etc. The action of the respondent is totally in
contravention of the order passed by this Court.
08. The Krishi Upaj Mandi contested the matter upto High Court and
Supreme Court against this petitioner, they were in regular contact of
Advocate and Legal Advisor. They could have taken the opinion about
compliance of order passed by the High Court and Supreme Court.
Krishi Upaj Mandi has unnecessary harassed the petitioner by giving
him fresh appointment instead of reinstatement into service.
09. The petitioner was unnecessarily compelled to approach
High Court again by this litigation. He is getting less pay since 2010.
Therefore, this Writ petition is allowed and cost of Rs.25,000/- is
imposed on Krishi Upaj Mandi for wasting the Court's time and
harassment to the petitioner.
10. So far as the respondent No.3 is concerned, the petitioner is
not claiming any relief against him, neither he is challenging his
appointment, he has been made party only to give comparison that he is
getting a higher salary than him for which the pleadings could have been
made in the writ petition. He was not required to be made party in this
petition as the petitioner is not claiming relief against him. Respondent
No.3 being a driver had to come to the High Court by engaging an
advocate for which he is liable to be compensated. The petitioner shall
pay an amount of Rs.5,000/- to the respondent No.3.
Signature Not Verified
Signed by: DIVYANSH
SHUKLA
Signing time: 18-10-2023
19:23:18
11. With the aforesaid, Writ Petition stands allowed, petitioner
be treated into the service since date of initial appointment with all
consequential benefit of continuity of service.
Certified copy as per Rules.
(VIVEK RUSIA)
JUDGE
Divyansh
Signature Not Verified
Signed by: DIVYANSH
SHUKLA
Signing time: 18-10-2023
19:23:18
