Madhya Pradesh High Court
Mohd. Umar vs The State Of Madhya Pradesh on 8 August, 2024
Author: Vishal Mishra
Bench: Vishal Mishra
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IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VISHAL MISHRA
ON THE 8 th OF AUGUST, 2024
WRIT PETITION No. 14005 of 2012
MOHD. UMAR
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri K.C. Ghildiyal - Senior Advocate with Shri Karnik Singh - Advocate for the
petitioner.
Shri Darshan Soni - Government Advocate for the State.
ORDER
Assailing the order dated 21.05.2012 passed by the respondent No.3
rejecting the representation of the petitioner, the present petition has been
preferred.
It is the case of the petitioner that he was engaged for the post of a
Driver in pursuance to the advertisement issued by the respondent No.4 after
undergoing the due process. He fulfilled all the requisite qualification and
eligibility criteria as prescribed in the advertisement. He appeared in the
selection process and the selection committee has appointed him on the post
of Driver initially for a period of 86 days vide order dated 14.12.1994. He
continued to work till the year 2000 in the respondent No.2/Indian Red Cross
Society.
It is argued that the respondent No.2/Indian Red Cross Society was
initially funded by the State Government therefore, the same falls under the
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definition of Article 12 of the Constitution of India hence, the petition is
maintainable. The respondents have stopped paying salary to the petitioner
from 01.03.1995 and he was informed that the salary will be paid to him as
soon as the funds were received. Petitioner continued to work in the society
till the year 2000. The petitioner was not paid salary from 01.03.1995 till the
year 2000. In the year 2000, the petitioner was stopped from working
thereafter, he preferred a writ petition seeking a direction to the respondents
to regularize his service on the post of a Driver in W.P.No.1440 of 2000 and
also demanded salary with effect from 01.03.1995 with interest. The said
writ petition was disposed off on 13.12.2011 with a direction to the
respondent No.3 to consider the representation of the petitioner within a
period of four months from the date of receipt of certified copy of the order.
The representation submitted by the petitioner was forwarded by the
respondent No.4 to regularize the services of the petitioner and for payment
of salary. However, the same has been rejected. While rejecting the
representation it was wrongly held that the recruitment of the petitioner was
without issuance of any advertisement or without undergoing any process of
selection and no procedure was followed when the petitioner was appointed
therefore, his initial appointment itself was illegal. He has placed on record
the note sheet containing the recommendation of respondent No.4 and
thereafter, the order passed by respondent No.3. The impugned order has
been passed mechanically without application of mind therefore, the same is
unsustainable. He has further drawn attention of this court to the reply filed
by the authorities wherein in paragraph four, the authorities have admitted
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the position that the initial appointment of the petitioner was as per norms
and the said appointment was issued by the Secretary of the Indian Red Cross
Society. It is further pointed out that the Indian Red Cross Society is
presently working independently and is not under the control of the State of
Madhya Pradesh.
It is argued that the said Indian Red Cross Society was initially being
funded by the State Government therefore, goes under the control of the
State Government therefore, it cannot be said that Red Cross Society is not
part and parcel of the State Government. It is further argued that once the
respondents have admitted to the position that the appointment of the
petitioner was in terms of the norms and there was no illegality, the
authorities have wrongly rejected the claim of the petitioner.
Counsel appearing for the respondents have supported the impugned
order and pointed out the fact that the initial appointment of the petitioner
was by the Secretary of the Indian Red Cross Society. It is argued that though
the Indian Red Cross Society was under the control of the State of Madhya
Pradesh initially but now as there is no funding been given by the State of
Madhya Pradesh, the petition directly against the Indian Red Cross Society
under the Article 226 of the Constitution of India is not maintainable.
He has placed reliance upon the judgment passed by the High Court of
Patna in the case of Er.Ramesh Kumar Vs. Indian Red Cross Society
reported in 2017 SCC Online, Patna 3407 wherein it is held that the Indian
Red Cross Society is not a state within the meaning of Article 12 of the
Constitution of India therefore, the writ petition is not maintainable. Further
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placed reliance upon the judgment passed in the Writ Petition No.20757 of
2017 (M/s. New Balaji Chemist Vs. Indian Red Cross Society). He has also
brought to the notice of this court the orders passed in Writ Petition No.9712
of 2021 and Writ Petition No.16129 of 2021 to the same analogy. It is
submitted that the petitioner was an employee of respondent No.2 is not the
state entity therefore, no relief can be granted to the petitioner, he has prayed
for dismissal of the petition.
Heard the learned counsels for the parties and perused the record.
The record indicates that initial induction of the petitioner in service
was by the Secretary of the Indian Red Cross Society of respondent No.2.
The initial appointment of the petitioner was in the year 1995. The petitioner
has admitted the position that after his appointment i.e.14.12.1994 within a
short period, the respondents stopped paying salary to him with effect from
01.03.1995. There is no documents on record to show that since from the
year 01.03.1995 the petitioner has worked in the respondent institution.
Although, the initial appointment of the petitioner was in pursuance to the
advertisement issued in the year 1994 and after facing the entire procedure as
provided in the advertisement. But the fact remains that his initial
appointment was only for a period of 86 days on a fixed monthly salary of
Rs.1,069/- to be paid by the Indian Red Cross Society, Branch Tikkamgarh.
It was further mentioned that the appointment is totally temporary and his
services can be terminated without even issuing any show cause notice to
him. Thus, the appointment of the petitioner was contractual in nature only
for a period of 86 days on a fixed honorarium to be paid by the Indian Red
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Cross Society. The entire record does not indicate the working of the
petitioner after March, 1995. The writ petition filed on the earlier occasion
was disposed off to decide his representation expeditiously and in pursuance
to the same, the authorities have passed the final order. Although, the
reasons which have been assigned while deciding the representation of the
petitioner are contrary to the paragraph four of the return but the fact remains
that he was an employee of respondent No.2/Indian Red Cross Society and in
terms of the judgment passed in the cases of Er.Ramesh Kumar (supra)
and M/s. New Balaji Chemist (supra), the Indian Red Cross Society does not
fall under the definition of state as provided under Article 12 of the
Constitution of India therefore, the writ petition against respondent No.2 is
not maintainable. No relief can be granted to the petitioner in the present writ
petition.
The petition sans merits and is accordingly dismissed. No order is to
costs.
(VISHAL MISHRA)
JUDGE
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