Madhya Pradesh High Court
Devendra Kumar Choudhary vs The State Of Madhya Pradesh on 10 February, 2025
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SURESH KUMAR KAIT,
CHIEF JUSTICE
&
HON'BLE SHRI JUSTICE VIVEK JAIN
WRIT APPEAL NO. 3 OF 2019.
DEVENDRA KUMAR CHOUDHARY
VS.
THE STATE OF MADHYA PRADESH AND OTHERS.
WRIT APPEAL NO. 11 OF 2019.
SMT. NEELA PANDEY
VS.
THE STATE OF MADHYA PRADESH AND OTHERS.
WRIT APPEAL NO. 12 OF 2019.
SATYENDRA SINGH HARINKHEDE
VS.
THE STATE OF MADHYA PRADESH AND OTHERS.
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Shri Surendra Prakash Sharma-Advocate for the appellants.
Shri B.D. Singh - Deputy Advocate General for the respondents-State.
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JUDGMENT
(Reserved on : 28/01/2025)
(Pronounced on : 10/02/2025)
Per: Hon'ble Shri Justice Vivek Jain.
Regard being head to the similitude of controversy involved in
the matter and the cases revolving on identical facts, all these three
appeals are being decided by this common order.
2. The reference to facts and documents is taken from W.A. No.
03/2019, for the sake of convenience.
3. The appellants have called into question the order dated
03.10.2013 passed by the learned Single Judge whereby the writ
petition of the appellants has been rejected relying on the judgment
passed by a Single Bench of this Court at Indore in W.P. No. 4170/2011
(Suchit Kumar Choukade Vs. State of M.P. & others).
4. It is contended by learned counsel for the appellants that in the
writ petition, the appellants had claimed regularization on the post of
Ayurved Compounder from the date of initial appointment on
contractual basis though they have been regularized on the post of
contractual Ayurved Compounder w.e.f. 27.02.2009. The order dated
29.04.2011/29.09.2011 passed by the Commissioner, Indian System of
Medicine and Homeopathy, Madhya Pradesh, whereby the
representation of the appellants for regularization w.e.f. 06.05.1999 i.e.
from the date of initial appointment on contractual basis was rejected,
was put to challenge in the writ petition.
5. Learned counsel for the appellants while assailing the impugned
order passed by the learned Single Judge so also the order challenged in
the writ petition has submitted that the appellants are entitled to be
regularized from the initial date of contractual appointment as
Ayurvedic Compounder because similar exercise of appointment of
Ayurvedic Compounders on contractual basis was taken up in the entire
State during the years 1998-1999 and district wise exercise was carried
out because powers had been delegated to concerned Jila Panchayats
for making such appointment by order dated 12.06.1998 issued by the
State Government. Thus, it is contended that the appointments in
separate districts were made on district wise basis only because the
management of Ayurvedic dispensaries were handed over to Jila
Panchayats by the aforesaid order of State Government dated
12.06.1998 and otherwise there is no difference in the service
conditions, qualifications etc. between Ayurvedic Compunders in
various districts. It is further argued that subsequently the State
Government had also framed rules known as Madhya Pradesh
Panchayat Samvida Seva (Bhartiya Chikitsha Paddhati Unani Tatha
Homeopathy) Niyam, 1999.
6. It is argued by learned counsel for appellants that appointments
were made in various districts and similar types of advertisements were
issued. Appointments were made in Khargone District on as many as 38
posts in pursuance to advertisement dated 31-12-1997 (Annexure A/4)
while on 14 posts in District Seoni in pursuance to the advertisement
dated 27-12-1997 (Annexure A/5). The persons belonging to reserved
categories like SC/ST/OBC as well as unreserved category were
appointed and they continued to work on contractual basis. The
appellants were appointed in District Seoni. It is contended that
subsequently, the State Government issued an order dated 16.07.2009
(Annexure A/9) whereby the State Government accorded permission to
regularize all reserved category candidates from the date of first
appointment on contractual basis in the Districts of Jhabua, Khargone
and Dhar. It is the case of the appellants that after the candidates of
reserved categories were regularized from the date of initial
appointment as contractual employees, the employees belonging to
unreserved categories filed writ petitions before this Court being W.P.
No. 6046/2007, 4539/2010 and 6160/2010, wherein directions were
issued by this Court to decide the representation of such employees and
thereafter, the unreserved category employees were also granted the
benefit of regularization from the initial date of contractual appointment
in place of 27.02.2009. Documents are placed on record in this regard
as Annexure A/16, A/17 and A/18.
7. However, later on a writ petition filed at the instance of another
employee namely Suchit Kumar Choukade was dismissed by Indore
Bench of this Court on the ground that the persons regularized were
appointed on backlog vacancies and therefore, the petitioner therein had
no parity with the said case. It is argued before us that the said petition
was decided on a wrong facts being projected that the persons
regularized with retrospective effect i.e. one Sunil Kumar Joshi, Smt.
Sunita Gupta etc. were appointed against backlog though actually they
were persons of unreserved category. It is argued that the said order has
been erroneously relied by the learned Single Judge in the case of
appellants also and the petitions of the appellant have also been rejected
without advertising to the fact that in Khargone the State Government
itself has passed the order of regularization of persons of unreserved
category from the date of initial appointment as contractual employee.
It is argued that relying on the same order passed by the Indore Bench
in the case of Suchit Kumar Choukade (supra) some other petitions
were dismissed by Single Bench of this Court being W.P. No. 432/2013
and W.P. No. 433/2013 which have been allowed by Division Bench of
this Court in W.A. No. 24/2017 and W.A. No. 25/2017 which also
belonged to Ayurvedic Compounders of unreserved categories
appointed in district Seoni and the case of the present appellants stands
at par and they are also entitled to the same benefits.
8. Per contra, the appeal is vehemently opposed by the counsel for
the respondent-State. It is argued that the appellants are having no
parity with the case of the Sunil Kumar Joshi and Smt. Sunita Gupta
etc. and this aspect was duly taken note of by Single Bench at Indore in
the case of Suchit Kumar Choukade (supra) and as those employees
were appointed against backlog vacancies for reserved category, there is
no parity. It is argued that on that ground W.A. No. 24/2017 and
25/2017 have been erroneously decided by the Division Bench and
therefore, the said judgment is per incuriam and cannot be treated to be
binding precedent by this Court, nor can have any persuasive value.
9. Heard.
10. The documents placed on record indicate that the State
Government initially issued an order dated 13.08.1997 delegating the
Ayurvedic, Homeopathic and Unani dispensaries in rural areas of the
State under the Control of Jila Panchayats. The said order has been
placed on record as Annexure A/1. Thereafter, another order was issued
on 12.06.1998 (Annexure A/3) whereby modified instructions were
issued and it was clarified that the Jila Panchayat concerned would
carry out the process of appointment of the contractual employees in
such Ayurvedic dispensaries. It is in terms with these delegated powers,
that advertisements were issued in various districts of State. In District
Seoni, advertisement was issued for contractual appointment on
27.12.1997 while in District Khargone, advertisement was issued on
03.12.1997. The appointments were made in Khargone and Seoni
districts during the years 1998-1999 in terms with the said instructions
and appointment process is as mentioned above.
11. The State Government thereafter, carried out an exercise of
regularization of such contractual appointees in the year 2009 and the
employees were regularized w.e.f. 27.02.2009. On 16.07.2009 vide
Annexure A/9, the State Government took a decision that since there
were backlog posts laying vacant at the time of contractual
appointments against various reserved categories, therefore, they may
be regularized from the date of initial appointment on contract basis.
This led to the employees of reserved categories being regularized with
effect from initial date of appointment as contractual employees i.e.
w.e.f. 1998/1999 in place of February 2009.
12. The employees appointed by the same process who were of
unreserved category, filed writ petitions before this Court at Indore
being W.P. No. 6046/2007, 4539/2010 and 6160/201. The Indore Bench
directed their representations to be decided. The State Government
decided the representation and in the case of Ayurvedic Compounders
of District Khargone all the unreserved category employees were
regularized from the date of initial appointment as contractual
employees. By the orders Annexure A/16 to A/18, various unreserved
category compounders were regularized from the initial date of
appointment on contractual basis namely Sunil Joshi, Dinesh Gupta,
Ayub Khan, Smt. Sunita Gupta, Ravindra Panchbhai, Nasir Khan, Smt.
Ranjana Mandloi, Hemant Nagar and Ashish Joshi. All these employees
who belonged to unreserved category were obviously not appointed
against the backlog vacancies but still they were granted the benefit of
regularization from the date of their initial appointment as contratual
employees at par with reserved category employees.
13. This issue was placed before the Division Bench deciding W.A.
No. 24/17 and 25/17 and the Division Bench taking note of all these
facts held as under:-
"7. Also perused the order passed by the learned Single Judge of the
Indore Bench of this Court in WP No.4170/2013 wherein the
petitioner's petition has been dismissed on the ground that he was
appointed in the year 2005 and other persons, who were appointed
against the backlog vacancies, have been regularized with retrospective
effect, and since the petitioner's case was not of backlog category, he
cannot be given the benefit of regularization as has been given to other
employees namely Sushil Kumar Joshi, Dinesh Gupta etc. the aforesaid
finding is ex-facie wrong as the order dated 11.3.2010 filed in Annexure
P-3 of WP No.4332/2013 these persons do not belong to any backlog
category and on the contrary in their order of regularization from their
initial date of appointment this aspect has been specifically dealt with
that these persons were not appointed against the backlog vacancies.
8. Admittedly, the appellants have not produced any statutory rule to
show that they are entitled to be regularized, but it is also not their
case. Their case is that they are claiming parity with other similarly
situated employees who have already been regularized by the State
Government, and in absence of any statutory rules in this behalf, it
cannot be said that they are not entitled to claim parity.
9. The other ground on the basis of which the petition has been
dismissed is that the petitioners have not shown any statutory
provisions of law for regularization from the date of their initial date of
appointment and in absence of such provision of law, their prayer for
regularization cannot be considered, as even the executive instructions
have not been brought to the notice of this Court. The aforesaid order
passed in the case of Suchit Kumar Choukade (supra) has been relied
upon by the learned Single Judge in the case at hand and has been held
to be applicable mutatis mutandis. We are afraid that we are unable to
endorse the aforesaid findings of the writ Court as we are of the view
that if the persons of reserved categories as also of the general
category have been appointed on the basis of same or similar
advertisement for the similar posts, their individual cases cannot be
discriminated only on the ground of their category so far as the
conditions of service are concerned and if such discrimination is
allowed to stand, the same would be in clear violation of Article 14 of
the Constitution of India.
10. We are of the considered opinion that the documents filed by the
appellants in the present case wherein the parity is sought on the basis
of order of regularization in respect of orders dated 11.3.2010,
14.12.2011 and 14.12.2011 passed in favour of Dinesh Gupta, Sushil
Joshi, Ayyub Sheikh, Smt. Sunita Gupta, Ravindra Panchbhai, Nasir
Khan and Ranjana Mandloi etc., wherein the Government has
specifically dealt with the fact that these persons have been appointed
on the basis of an advertisements wherein it is nowhere provided that
the same have been issued in respect of the backlog category and it is
further mentioned in these orders that they were appointed in
pursuance of the advertisement in which many Compounders have been
appointed, who have already been regularized from the date of their
initial appointment. The appellants have also filed an advertisement
(Annexure P-11) along with rejoinder which was issued and on the
basis of which the appellants have been appointed. The language used
in the aforesaid advertisement (Annexure P-11) is similar to that of
advertisement (Annexure P-2) dated 27.12.1997 wherein other
similarly situated persons who have already been regularized, were
appointed. In the advertisement (Annexure P-11) it is nowhere provided
the same is for the backlog vacancies. Thus this Court prima facie finds
that the case of the appellants cannot be distinguished with that of the
cases of the persons belonging to the backlog category, and in fact
their case is squarely covered by the orders dated 11.3.2010,
14.12.2011 and 14.12.2011 passed in the case of Dinesh Gupta Nasir
Khan, Ranjana Mandloi etc.
11. In the facts and circumstances of the case, the impugned dated
7.12.2016 passed by the learned Writ Court in WP No.4332/2013 and
WP No.4334/2013 is hereby quashed and the respondents are directed
to regularized the services of the appellants as in the case of Dinesh
Gupta, Sushil Joshi, Ayyub Sheikh, Smt. Sunita Gupta, Ravindra
Panchbhai, Ranjana Mandloi and accord the similar benefit to the
present appellants also. The aforesaid exercise be completed within a
period of six weeks from the date of receipt of certified copy of this
order."
14. In the case of appellants we have perused the impugned rejection
order passed by the respondents. As per the said rejection order dated
29.04.2011/29.09.2011(Annexure P/1), the only distinguishing feature
cited therein to difefrentiate them from the case of unreserved category
employees given the benefit in District Khargone is that no compounder
appointed along with the appellants has been regularized from the date
of initial appointment in District Seoni, whereas some compounders
belonging to reserved category were appointed w.e.f. initial date of
appointment in District-Khargone, therefore, the appellants cannot
claim any parity who belong to different District.
15. Admittedly, appointments were made in different districts of the
State only because the powers were delegated to Jila Panchayat of the
district concerned. The appellants as well as the persons regularized by
the State Government in District Khargone were appointed in pursuance
to the same executive instructions of the State and the recruitment
process was carried out simultaneously in all the Districts of the State
during same years i.e. 1997-98. There is no reason why a benefit which
has been given to compounders in District Khargone be not given to the
compounders in District Seoni because the discrimination being set up
by the State amounts to artificial discrimination hit by Article 14 and 16
of the Constitution of India.
16. All these aspects were taken into consideration by a coordinate
Division Bench in W.A. No. 24/2017 and W.A. No. 25/2017 which
belonged to similarly situated compounders of District Seoni. The State
Government tested the said order before the Supreme Court by filing
SLP (Civil) No. 18057/2019 which has been dismissed by the Supreme
Court vide order dated 29.07.2019.
17. Accordingly, we do not find any reason to take a different view.
Consequently writ appeals are allowed. The orders passed by learned
Single Judge in concerned writ petitions are set-aside and the
respondents are directed to regularize the services of the appellants
from the date of initial appointment as done in case of other unreserved
category employees like Dinesh Gupta, Sushil Joshi, Ayyub Sheikh,
Smt. Sunita Gupta, Ravindra Panchbhai, Ranjana Mandloi etc. and
accord the similar benefit to the present appellants also. The aforesaid
exercise be completed within a period of six weeks from the date of
receipt of certified copy of this order.
(SURESH KUMAR KAIT) (VIVEK JAIN)
CHIF JUSTICE JUDGE
MISHRA
