Madhya Pradesh High Court

Mrs Laxmi Bai Choudhary vs The State Of Madhya Pradesh on 23 February, 2024

1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK JAIN
ON THE 23 rd OF FEBRUARY, 2024
WRIT PETITION No. 13684 of 2018

BETWEEN:-
1. RAJKARAN SINGH S/O LATE SHRI S.M. SINGH,
AGED ABOUT 53 YEARS, BULL ATTENDANT
VETERINARY HOSPITSL GOVINDGARH REWA
(MADHYA PRADESH)

2. ASHOK KUMAR SONI S/O LATE SHRI V.P. SONI,
AGED ABOUT 51 YEARS, OCCUPATION: GOVT
SERVICE BULL ATTENDANT VETERINARY
HOSPITSL GOVINDGARH REWA (MADHYA
PRADESH)

.....PETITIONER
(BY SHRI D. K. TRIPATHI - ADVOCATE)

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

2. COMMISSIONER CUM DIRECTOR VETERINARY
SERVICES BHOPAL (MADHYA PRADESH)

3. RAJESH MISHRA, JOINT DIRECTOR VETERINARY
SERVICES DIVISION REWA (MADHYA PRADESH)

4. DR. B.B.S CHAUHAN, DEPUTY DIRECTOR
VETERINARY SERVICES DISTT. REWA (MADHYA
PRADESH)

.....RESPONDENTS
(BY SHRI DARSHAN SONI - GOVT. ADVOCATE FOR RESPONDENTS. )

WRIT PETITION No. 13688 of 2018

BETWEEN:-
Signature Not Verified
Signed by: DEEPA MISHRA
Signing time: 3/1/2024
11:03:18 AM
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1. MRS LAXMI BAI CHOUDHARY W/O LATE SHRI
PRAHAD KUMAR CHOUDHARY, AGED ABOUT 58
YEARS, OCCUPATION: HOUSEWIFE R/O VILLAGE-
BARAKOTHAR, POST-AJGARAHA, TEHSIL-HUZUR,
POLICE STATION-UNIVERSITY, DISTRICT-REWA
(MP)

2. KULDEEP CHOUDHARY S/O LATE SHRI PRAHLAD
KUMAR CHOUDHARY, AGED ABOUT 35 YEARS,
OCCUPATION: LABOUR R/O VILLAGE-
BARAKOTHAR, POST-AJGARAHA, TEHSIL-HUZUR,
POLICE STATION-UNIVERSITY, DISTRICT-REWA
(MADHYA PRADESH)

3. PRADEEP CHOUDHARY S/O LATE SHRI PRAHLAD
KUMAR CHOUDHARY, AGED ABOUT 30 YEARS,
OCCUPATION: LABOUR R/O VILLAGE-
BARAKOTHAR, POST-AJGARAHA, TEHSIL-HUZUR,
POLICE STATION-UNIVERSITY, DISTRICT-REWA
(MADHYA PRADESH)

4. KRISHNADEEP CHOUDHARY S/O LATE SHRI
PRAHLAD KUMAR CHOUDHARY, AGED ABOUT 22
YEAR S , OCCUPATION: LABOUR R/O VILLAGE-
BARAKOTHAR, POST-AJGARAHA, TEHSIL-HUZUR,
POLICE STATION-UNIVERSITY, DISTRICT-REWA
(MADHYA PRADESH)

5. KAMALDEEP CHOUDHARY S/O LATE SHRI
PRAHLAD KUMAR CHOUDHARY, AGED ABOUT 25
YEAR S , OCCUPATION: LABOUR R/O VILLAGE-
BARAKOTHAR, POST-AJGARAHA, TEHSIL-HUZUR,
POLICE STATION-UNIVERSITY, DISTRICT-REWA
(MADHYA PRADESH)

.....PETITIONERS
(BY SHRI D. K. TRIPATHI - ADVOCATE)

AND
1. THE STATE OF MADHYA PRADESH THROUGH
THE PRINCIPAL SECRETARY VETERINARY
DEPARTMENT VALLABH BHAWAN (MADHYA
PRADESH)

2. COMMISSIONER CUM DIRECTOR VETERINARY
SERVICES BHOPAL (MADHYA PRADESH)

3. RAJESH MISHRA JOINT DIRECTOR VETERINARY
SERVICES REWA DIVISION (MADHYA PRADESH)

Signature Not Verified
Signed by: DEEPA MISHRA
Signing time: 3/1/2024
11:03:18 AM
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4. DR. B.B. S. CHOUHAN DEPUTY DIRECTOR
VETERINARY SERVICES REWA (MADHYA
PRADESH)

.....RESPONDENTS
(BY SHRI DARSHAN SONI - GOVT. ADVOCATE )

WRIT PETITION No. 14116 of 2018

BETWEEN:-
1. SUKHLAL DHOBI S/O LATE SHRI CHHOTELAL
BARETHA, AGED ABOUT 54 YEARS, OCCUPATION:
GOVT. SERVICE POSTED AT AS FULL TIME
SWEEPER VETERINARY DISPENSARY
HARDIKALA HARDIKALA BLOCK SIRMOUR
DISTT. REWA (MADHYA PRADESH)

2. AHAMAD ALI S/O LATE BITANI, AGED ABOUT 53
YEAR S, OCCUPATION: GOVT. SERVICE POSTED
AT AS FULL TIME SWEEPER VETERINARY
DISPENSARY BAHUTI BLOCK NAIGRAHI
(MADHYA PRADESH)

3. YAGYA NARAYAN SONI S/O LATE SHRI
MOHANLAL SONI, AGED ABOUT 53 YEARS,
OCCUPATION: GOVT. SERVICE POSTED AS BULL
ATTENDANT VETERINARY DISPENSARY SURSA
BLOCK RAIPUR KARCHULIYA REWA (MADHYA
PRADESH)

4. DOST MOHAMMAD S/O LATE NOOR
MOHAMMAD, AGED ABOUT 61 YEARS,
OCCUPATION: GOVT. SERVICE POSTED AT AS
CHOWKIDAR VETERINARY DISPENSARY
HARKIKALA BLOCK SIRMOUR (MADHYA
PRADESH)

5. RAM NARESH SHARMA S/O SHRI GOMTI PRASAD
SHARMA, AGED ABOUT 55 YEARS, OCCUPATION:
GOVT. SERVICE POSTED AT AS BULL ATTENDANT
ARTIFICIAL INSEMINATION CENTRE
KHATIRAHAN BLOCK SIRMOUR (MADHYA
PRADESH)

6. RAM MILAN NAPIT S/O SHRI SHOBHNATH, AGED
ABOUT 55 YEARS, OCCUPATION: GOVT. SERVICE
POSTED AT AS BULL ATTENDANT VETERINARY
HOSPITAL GHOGHAM BLOCK HANUMANA
(MADHYA PRADESH)
Signature Not Verified
Signed by: DEEPA MISHRA
Signing time: 3/1/2024
11:03:18 AM
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7. SHAMBU PRASAD SONI S/O SHRI GANGA
PRASAD, AGED ABOUT 54 YEARS, OCCUPATION:
GOVT. SERVICE POSTED AS BULL ATTENDANT
VETERINARY HOSPITAL SURSA BLOCK RAIPUR
KARCHULIYAN REWA (MADHYA PRADESH)

8. GAYA PRASAD SONI S/O SHRI RAMSUFAL SONI,
AGED ABOUT 60 YEARS, OCCUPATION: POSTED
PRESENT BULL ATTENDANT VETERINARY
DISPENSARY PAHAKHA BLOCK GANGEV REWA
(MADHYA PRADESH)

.....PETITIONERS
(BY SHRI D. K. TRIPATHI - ADVOCATE)

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

2. COMMISSIONER CUM DIRECTOR VETERINARY
SERVICES BHOPAL (MADHYA PRADESH)

3. RAJESH MISHRA JOINT DIRECTOR VETERINARY
S ERVICES REWA DIVISION REWA (MADHYA
PRADESH)

4. DR. B.B.S. CHAUHAN DEPUTY DIRECTOR
VETERINARY SERVICES REWA (MADHYA
PRADESH)

.....RESPONDENTS
(BY SHRI DARSHAN SONI - GOVT. ADVOCATE )

WRIT PETITION No. 15713 of 2018

BETWEEN:-
MANGALDEEN NAPIT (VERMA) S/O RAMGOPAL NAPIT,
AGED ABOUT 43 YEARS, OCCUPATION: WORKING AS
BULL ATTENDANT VETERINARY HOSPITAL BARROWN
TEHSIL SIRMOUR DISTT. REWA (MADHYA PRADESH)

.....PETITIONER
(BY SHRI N. K. MISHRA - ADVOCATE)

AND
Signature Not Verified
Signed by: DEEPA MISHRA
Signing time: 3/1/2024
11:03:18 AM
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1. THE STATE OF MADHYA PRADESH THR.
PRINCIPAL SECRETARY VETERINARY SERVISES
DEPARTMENT VALLABH BHAWAN, BHOPAL (MP)

2. THE COMMISSIONER CUM DIRECTOR
VETERINARY SERVICES BHOPAL (MADHYA
PRADESH)

3. RAJESH MISHRA JOINT DIRECTOR VETERINARY
SERVICES DIVISION REWA (MADHYA PRADESH)

4. DR B B S CHAUHAN DEPUTY DIRECTOR
VETERINARY SERVICES REWA (MADHYA
PRADESH)

.....RESPONDENTS
(BY SHRI DARSHAN SONI - GOVT. ADVOCATE)

These petitions coming on for admission this day, the court passed the
following:
ORDER

Since all the four cases revolve on identical facts and involve same legal issues, the matters are being heard analogously and decided by this common order.

2. For the sake of convenience, facts are taken from W.P. No.13684 of 2018.

3 . The present petition is filed challenging the order Annexure P/1 whereby the upgradation/ absorption/ promotion/ appointment of the petitioners from Part-time Sweeper to the post of Bull Attendant under Work Charged and Contingency Paid Establishment has been cancelled after a period of 20 years.

4. Learned counsel for the petitioners submit that the petitioners were initially appointed as Part-time Sweepers in Veterinary Department in the year 1985-1986 vide orders Annexure P/2 and P/3 on rates fixed by the Collector. They further stated that thereafter, scrutiny Committees were constituted in the

year 1998 and vide orders Annexure P/4 and P/5 the petitioners were given promotion/ up gradation/ absorption on the post of Bull Attendant which is a post under Work Charged and Contingency Paid establishment. Further, the case of the petitioners as per learned counsel for the petitioners is that there is a policy of State Government to grant regular pay scale to Work-charged and Contingency Paid employees upon completion of five years of service. Accordingly, the petitioners were given regular pay scale w.e.f. 01.01.2006, in the scale of Rs.2550-55-2660-60-3200/- . The petitioners were aggrieved by this order because they claimed regular pay scale on completion of five years of service. Hence, they filed a writ petition before this Court bearing W.P. No.19788 of 2012 and W.P. No.17696 of 2012 vide Annexures P/9 and P/10. The said petitions were disposed of with a direction to decide the representation of the petitioners in accordance with law. The petitioners at later point of time, filed W.P. No.4624/2015 which came to be decided vide order Annexure P/13 and this Court directed to extend the same benefit which has been granted to

one Ramanuj Shukla in W.P. No.15353/2005. In the said case, the Court has directed to grant the benefit of regular pay scale to the said person immediately upon completion of five years service in Work Charged and Contingency Paid Establishment.

5. The case of the petitioners is that instead of giving the benefits of regular pay scale from 2003 which should have been granted to them in accordance with the orders passed in identical matters, the respondents have on the contrary passed the orders Annexure P/1 whereby even the appointment/ absorption/ up gradation of the petitioners on fixed rate contingency paid employees has been withdrawn after a period of 20 years.

6. Learned counsel for the petitioners submits that the orders Annexure

P/1 are passed without opportunity of hearing and without taking into note the fact that the petitioners were enjoying the particular status since last 20 years and they ought not to have been disturbed of their status.

7. Learned counsel for the petitioners have further stated that another writ petition bearing W.P. No.9827/2012 was filed by those Part-time Sweepers in the same department who were appointed as part-time Sweepers much later to the petitioners during 1993 to 1996 and they were also given regular pay scale in the light of Circular dated 10.5.1984 of the State Government and they were directed to be given regular pay scale immediately upon completion of five years of services. Petitioners claim that the respondents have treated identical persons differently and they have complied with the order passed in W.P. No.9827 of 2012 of persons appointed later in time but have set aside the initial orders of the petitioners who were appointed prior in time. It is further argued that the order passed in W.P. No.9827 of 2012 has been confirmed in Writ Appeal vide order Annexure P/15 which has thereafter, been affirmed in SLP (Diary) No. 39328/2017 by the Hon'ble Apex Court.

8. The learned counsel for the petitioners have stated that the orders Annexure P/1 are liable to be set aside and the benefit as granted to the petitioners vide Annexures P/5 and P/6 granting regular pay scale are also liable to be restored.

9. Per contra, learned counsel for the State has submitted that the petitioners have filed W.P. No.4624/2015 to get the same benefit as in the case of Ramanuj Shukla and the case of Ramanuj Shukla has been reviewed later on in R.P. No.34/2015. In the said review petition, this Court has held that unless the order granting the post of Bull Attendant in Collector rate is set aside, no

illegality can be found or error can be found in the order granting regular pay scale after completion of five years from the date the employee came in fixed pay Work Charged Contingency Paid establishment. Thus, it is contended by the learned counsel for the State that the petitioners sailing in the same boat as the case of Ramanuj Shukla. In the case of Ramanuj Shukla, the State has exercised its liberty granted in review and has set aside the similar order vide Annexure R/3 and the petitioners are not entitled for any different treatment.

10. It is further argued by learned counsel for the State that the statutory rules governing services of Work Charged and Contingency Paid Establishment in Veterinary Department do not contemplate entry to a post in the manner as has been made in the present case and the petitioners were back door entrant and the back door entry against a sanctioned post in Work-Charged and Contingency Paid establishment took place in the year 1998. As it was patently illegal, the department has not erred in setting wrong things right, may be after a period of 20 years. It is further stated that the orders granting regular pay scale passed by some officer of the department and that officer has been punished in departmental enquiry. Thus, the petitioners are not entitled to any benefit. Learned counsel for the State further submits that since the employees appointed in Ram Naresh Prajapti (W.P. No.9827 of 2012) were appointed later in time and they were upgraded against vacant post, hence there is proper compliance of the rules. Thus, the case of the petitioners is at different footing from the case of Ram Naresh Prajapati.

11. Heard learned counsel for the parties.

12. The factual position in the case is not in dispute. Appointment of the petitioners as Part-time Sweepers in the year 1984-1985 is not in dispute and they being entered into contingency paid establishment in the year 1998 on the

post of Bull Attendant at Collector rate fixed is also not in dispute. The only point of dispute is whether the petitioners were illegally given the status of Contingency paid employee in the year 1998 and secondly, whether the case of the petitioners is at par with the case of Ram Naresh Prajapati.

13. The petitioners had filed W.P. No.4624/2015 and their cases were directed to be decided in accordance with the directions in the case of Ramanuj Shukla. This Court while passing the order Annexure P/13 was not apprised of the fact that there has been a review of the said case.

14. Looking to the order passed in R.P. No.34/2015 passed in the case of Ramanuj Shukla, it is seen that this Court had directed in the said case that after entering fixed pay contingency paid establishment, the employee is entitled to get regular pay scale upon completion of five years. In the said case, Ramanuj Shukla was given regular pay scale after slightly more than a period of five years. Thus, he had succeeded in the writ petition on that ground. The State had filed review saying that initial grant of status to Ramanuj Shukla as fixed pay contingency paid employee was bad in law. This Court merely said that the State is at liberty to take action in accordance with law for withdrawing the benefit in regard to regular appointment/ promotion of Ramanuj Shukla on the post of Bull Attendant. This did not mean that a mandatory direction to withdraw the said status to Ramanuj Shukla was given, nor it amounted to any determination order by this Court holding that conferring of benefit to Ramanuj Shukla and similarly situated persons in the year 1997-1998 are bad in law.

15. When the orders Annexure P/1 are seen, it reveals that the order merely narrates the entire history of the matter and in the penaltmate made para, it has been held that since the case of petitioners is on similar footings as in the

case of Ramanuj Shukla, hence their order of 1998 conferring status of fixed pay in contingency paid employee is also liable to be withdrawn. What is actually illegal in the matter has not been mentioned in the entire orders Annexure P/1, apart from writing that part-time Sweeper is not a government servant. It is not in dispute that prior to the judgment passed by the Constitution Bench by Hon'ble Apex Court in the case of Secretary, State of Karnataka Vs. Uma Devi - (2006)4 SCC Pg.1, the exercise of regularization of daily wager and casual employees was going on prior to 2006. The Hon'ble Apex Court in the said case gave a window to carry out the exercise of regularization of such casual and daily rated employees as a last chance. In the opinion of this Court, it is not open for the State to say in the year 2018 that some status conferred in the year 1998 is bad in law because it was back door entry. The petitioners were admittedly working in the department on the post of sweeper which may not be a post as per Work Charged and Contingency paid rules. However, daily wagers, casual employees or muster roll employees are not appointed on a regular vacant post but are casual employees. Only upon regularization they get confer the status of a particular post. The application of law relating to back door entry cannot be employed for something done by the State in the year 1998 much prior to the judgment of Hon'ble Apex Court in the case of Uma Devi (supra).

16. The learned counsel for the petitioners has relied on a judgment in the case of Ram Naresh Prajapati. The judgment of writ appeal passed in the said case is on record as Annexure P/15. This Court has also gone through the order passed in the writ petition in the said case and in the writ petition it is clearly mentioned that these persons were also part time sweepers and given the status of fixed pay contingency paid employees on the post of Bull Attendant.

This Court is unable to understand the distinction being put forth by learned counsel for the State that something done by the State for a employee who was initially appointed in the year 1993 - 1996 is good in law but something done for an employee appointed in the year 1984 - 1986 is bad in law, when same treatment has been given to both the employees and both the employees are governed by same set of rules.

1 7 . The learned counsel for the State was unable to point out any differentiating aspect that how the petitioners in the case of Ram Naresh Prajapati who have succeeded upto Hon'ble Apex Court was not back door appointees. Learned counsel for the State has pointed out constitution of a Scrutiny Committee as mentioned in the order passed in the writ petition of that case. However, in the case of present petitioners also the orders of 1998 duly mentioned confer of status as per recommendation of Selection Committee/ promotion Committee. Thus, no differentiating feature is found in the present case with the case of Ram Naresh Prajapati.

18. Learned counsel for the petitioners has also pointed out the note sheet Annexure P/14 wherein the order passed by Hon'ble Supreme Court in the case of Ram Naresh Prajapti has been reproduced. Upon perusal of the said order, it is clear that the Hon'ble Apex Court has held that such type of SLP is for absolutely no rhyme or reason and wastage of money of the State. Consequently, SLP of the State was dismissed with a cost of Rs.1 Lac. After having suffered such drastic dismissal of SLP before the Hon'ble Apex Court, it is difficult to understand how the petitioners should be turned out of employment while similarly situated employees who entered later to the petitioners have not only been retained in employment but have been given

regular pay scale from the date immediately upon completion of five years of service in fixed pay.

19. The cases of the petitioners are found to be at par with the case of Ram Naresh Prajapati. The impugned orders Annexure P/1 withdrawing the

order passed in the year 1997- 1998 are otherwise also found to be bad in law.

20. Consequently, the orders Annexure P/1 withdrawing conferral of benefit of contingency paid Bull Attendant in fixed pay are set aside. It is also clarified that the petitioners shall also be entitled to the benefits flowing from the orders Annexure P/5 and P/6. The State authorities are also directed to consider the case of the petitioners for grant of regular pay scale in contingency establishment upon completion of five years of service in contingency paid establishment on fixed pay.

21. With the aforesaid directions, this petitions are allowed and disposed of.

(VIVEK JAIN) JUDGE mrs. mishra