Saroj Kumar Garg vs Madhya Prasdesh Krishi Vipanan ...
2023 Latest Caselaw 17675 MP

                                                             1
                            IN     THE        HIGH COURT OF MADHYA PRADESH
                                                   AT JABALPUR
                                                     BEFORE
                                  HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
                                                ON THE 25 th OF OCTOBER, 2023
                                               WRIT PETITION No. 14061 of 2017

                           BETWEEN:-
                           SAROJ KUMAR GARG S/O LATE SHRI PANNA LAL
                           GARG, AGED ABOUT 53 YEARS, OCCUPATION:
                           ASSISTANT SUB INSPECTOR, KRISHI UPAJ MANDI
                           SAMITI, PATHARIA DISTRICT DAMOH (MADHYA
                           PRADESH)

                                                                                        .....PETITIONER
                           (BY SHRI RAJESH MAINDIRETTA - ADVOCATE)

                           AND
                           1.    MADHYA PRASDESH KRISHI VIPANAN BOARD,
                                 26, KISAN BHAWAN, ARERA HILLS, JAIL ROAD,
                                 BHOPAL (MADHYA PRADESH) THROUGH ITS
                                 MANAGING DIRECTOR

                           2.    KRISHI UPAJ MANDI SAMITI, HATA TEHSIL,
                                 HATA DISTRICT DAMOH (MADHYA PRADESH)

                                                                                      .....RESPONDENTS
                           (BY SHRI SAMDARSHI TIWARI - ADVOCATE FOR RESPONDENT NO.1
                           AND SHRI KRISHNA ROHADA - ADVOCATE FOR RESPONDENT NO.2)

                                  This petition coming on for admission this day, th e court passed the
                           following:
                                                              ORDER

This petition under Article 226 of Constitution of India has been filed seeking the following reliefs:-

(i) Certiorari, quashing the impugned order dated 30.08.2017 (Anenxure P/11) passed by the respondent No.1;

(ii) Mandamus, restraining the respondents in implementing the Signature Not Verified Signed by: BHARTI GADGE Signing time: 10/28/2023 12:27:08 PM

order dated 30.08.2017;

(iii) It be held that the case of the petitioner is identical to the other employees and, therefore, the petitioner is also entitled for regularization on the post of Assistant Sub Inspector with effect from 01.01.1995;

(iv) Any other order/orders that this Hon'ble Court deems fit and proper in the facts and circumstances of the case may also kindly be passed.

2. It is submitted by counsel for petitioner that earlier the petitioner was working as a daily rated employee. Thereafter a recommendation was made for his regularization but on account of non-availability of vacant post, the order of

regularization was not issued. Ultimately by order dated 25.02.1995 he was regularized with effect from 01.03.1995. However, the said order was never implemented. Thereafter by order dated 08.07.2011 the petitioner was regularized. In the meanwhile, the similarly situated persons preferred a Writ Petition, which was dismissed against which LPA No.419/2003 was filed. The respondents agreed to consider the case afresh, therefore and by order dated 08.11.2004, the respondents were directed to reconsider the case of the appellants therein. In compliance of the order passed in LPA No.419/2003, order dated 04.07.2017 was passed thereby regularizing the services of the petitioner with effect from 01.01.1995. However, by impugned order dated 30.08.2017 the regularization of the petitioner with effect from 01.01.1995 has been withdrawn on the ground that petitioner was not the appellant in LPA No.419/2003. It is submitted by counsel for petitioner that before passing the impugned order dated 30.08.2017 no opportunity of hearing was given to the petitioner.

3. Per contra, the petition is vehemently opposed by counsel for Signature Not Verified Signed by: BHARTI GADGE Signing time: 10/28/2023 12:27:08 PM

respondent No.1. It is submitted that although an order of regularization was issued on 25.02.1995 but it was never implemented. Later on, the petitioner was regularized by order dated 08.07.2011. It is submitted that later on by order dated 04.07.2017 the petitioner was erroneously given the benefit of regularization with effect from 01.01.1995. When this mistake was detected, then by order dated 30.08.2017, regularization of petitioner with effect from 01.01.1995 was withdrawn. At the time of arguments in LPA No.419/2003, the counsel for the respondent No.2 had submitted that having regard to the period rendered by the appellants therein, the respondent No.2 will examine whether their services can now be regularized with reference to their long service and that it will take appropriate decision in accordance with law within six months. Since that said assurance was in respect of the appellants in LPA No.419/2003 therefore, it cannot be said that the order dated 08.11.2004 passed by the Division Bench of this Court in LPA No.419/2003 was judgment in rem but in fact it was a judgment in personam. It is further submitted that even otherwise nothing was decided and the order on consent was passed and the respondent No.2 had never given any consent for reconsideration of cases of all the employees.

4. Heard the learned counsel for the parties.

5. The basic contention of counsel for petitioner is that before passing

the impugned order dated 30.08.2017, no opportunity of hearing was given to him. It is submitted that the petitioner has already served for 28 long years and one similarly situated person has been regularized with effect from 01.01.1995. Accordingly, it is submitted that in case a show cause notice was issued to the petitioner, then he could have put forward his defence before the authorities.

Signature Not Verified Signed by: BHARTI GADGE Signing time: 10/28/2023 12:27:08 PM

6. Although it is true that the principle of natural justice does not involve "doctrine of useless formality" but it is the case of the petitioner that he could have explained that the order passed by Division Bench of this Court in LPA No.419/2003 was not a judgment in personam but it was a judgment in rem and since the respondents had agreed to reconsider the case of similarly situated persons therefore, they could have considered the case of petitioner also.

7 . Under these circumstances, this Court is of the considered opinion that the respondents before passing the impugned order dated 30.08.2017 should have granted an opportunity of hearing to the petitioner. Under these circumstances, it is held that non-grant of opportunity of hearing to the petitioner has caused serious prejudice to him.

8. Accordingly, order dated 30.08.2017 is hereby quashed.

9. The matter is remanded back to the respondent No.1. The petitioner

shall appear before the respondent No.1 on 15th of December 2023 and shall file his response. The order dated 30.08.2017 shall be treated as a show cause notice and no separate show cause notice will be required. If the response is

filed by the petitioner on or before 15th December, 2023 then the same shall be decided by the respondent No.1 including law laid down in the case of Secretary, State of Karnataka Vs. Uma Devi reported in (2006) 4 SCC 1 strictly in accordance with law.

10. It is made clear that in case if the petitioner fails to appear and file his

response on or before 15th of December, 2023 then this liberty granted to the petitioner shall automatically stand cancelled and order dated 30.08.2017 shall automatically get revived.

11. Let the entire exercise be completed latest by 28.02.2024. Signature Not Verified Signed by: BHARTI GADGE Signing time: 10/28/2023 12:27:08 PM

12. With aforesaid observation, the petition is finally disposed of.

(G.S. AHLUWALIA) JUDGE b

Signature Not Verified Signed by: BHARTI GADGE Signing time: 10/28/2023 12:27:08 PM