Madhya Pradesh High Court
Amar Chand Sahu vs The State Of Madhya Pradesh on 15 January, 2025
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 15 th OF JANUARY, 2025
WRIT PETITION No. 16346 of 2016
AMAR CHAND SAHU
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri K.C.Ghildiyal - Senior Advocate with Shri Aditya Singh Thakur -
Advocate for the petitioner.
Shri Jubin Prasad - Panel Lawyer for the respondents/State.
ORDER
Assailing the order dated 07.09.2016 passed by the respondent No.2
whereby the order dated 24.03.1990 and order dated 21.10.1999 have been
cancelled without providing any opportunity of hearing to the petitioner.
2. It is the case of the petitioner that he was initially engaged as a Driver in the
Scheduled Caste Development Department on Collector rate vide order dated
07.01.1985. In pursuant to order dated 09.01.1990 issued by the Personal
Administrative & Training Department of Government of Madhya Pradesh, the
petitioner was appointed as Driver in the regular pay scale of Rs.870-1420 in the
Work Charged & Contingency Paid Establishment vide order dated 03.03.1990
issued by the respondent No.2. In consequence thereof, the petitioner was posted
in the office of the District Coordinator, Tribal Development, Bhopal on
14.03.1990. The petitioner has been working with utmost devotion and sincerity
and there is no complaint against the working of the petitioner. While the
petitioner was working under the District Coordinator, Tribal Development,
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Bhopal, he was considered for his appointment in the regular establishment by the
Selection Committee held on 20.10.1999. The petitioner's appointment in regular
establishment vide order dated 20.10.1999 was issued by respondent No.5. Since
then petitioner has been regularly working in the Scheduled Caste Development
Department. The salary of the petitioner was revised from time to time in the
department like any other regular employees. The revised pay scale was extended
to the petitioner vide order dated 19.03.2015. By order dated 23.07.2016, he was
assigned the duties in the office of Scheduled Caste Development and his salary
was directed to be drawn against the post of Driver in the District Establishment.
All of a sudden an order dated 07.09.2016 has been passed by the respondent No.2
whereby the order dated 24.03.1990 and order dated 21.10.1999 has been
cancelled. The case of the petitioner is that by order dated 21.10.1999, the
petitioner was appointed in the regular establishment from the Work Charged &
Contingency Establishment pursuant to the recommendations of the Selection
Committee. The entire exercise has been carried out against the petitioner behind
his back. No notice was issued to the petitioner. No opportunity of hearing has
been granted to him at any point of time. Even the order dated 24.03.1990 was
issued by the authorities and there is no misrepresentation on the part of the
petitioner at any point of time. Vide order dated 03.01.1998 the petitioner was
posted in the office of Commissioner, Scheduled Caste Development Department.
Despite the name of the petitioner is being reflected in the cadre of Driver of
Scheduled Caste Development Department, the petitioner was regularized by the
respondent No.5 vide order dated 21.10.1999. It is the case of the respondents that
on a complaint received from the employees Union, the matter was enquired into
by the respondent No.4 and the regularisation of the petitioner was not found
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proper, as the same ought to have been issued by the Directorate Scheduled Caste
Development Department and not by the District Coordinator, Bhopal. The
petitioner has worked on the regular post for almost more than 17 years and
thereafter the authorities have passed the interim order without granting any
opportunity of hearing to the petitioner. It is argued that the office of the
respondent No.5 falls under the control of the respondent No.2 and respondents
No.2 and 5 are the part of the Scheduled Caste Development Department,
therefore, the impugned order is per se illegal. He has prayed for quashment of the
impugned order.
3. It is further contended that the Hon'ble Supreme Court in the case of
H.L.Tehran Vs. Union of India and others reported in (1989) 1 SCC 764 has held
that an adverse order involving civil consequence without substantially complying
with the principles of natural justice is arbitrary, therefore, on this ground alone
the impugned order should be quashed. It is further pointed out that the petitioner
now is at the verge of retirement. This Court vide order dated 28.09.2016 has
granted interim protection to the petitioner staying the operation of the order dated
07.09.2016. Thereafter, vide order dated 31.03.2022, this Court directed the
respondents to file an affidavit of the O.I.C. to point out that whether any
opportunity of hearing was afforded to the petitioner or not, prior to passing the
impugned order. In pursuance to the same, an affidavit has been filed by the
authorities on 08.06.2022 under the signatures of the Assistant Commissioner,
Tribal Welfare Department pointing out as under :-
"Answering respondents most respectfully submit that
in the case in hand from the communication dated
07.04.2022 it is evident that no opportunity of hearing was
afforded on the petitioner before passing the order impugned
however a detailed fact finding enquiry was conducted
before passing the order impugned. Copy of the
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communication dated 07.04.2022 is marked and filed as
Annexure AR/1 and copy of the detailed enquiry dated
22.08.2016 is marked and filed as Annexure AR/2."
4. The document Annexure R/1 dated 07.04.2022 is also important and reads
as under:-
" ित
सहायक आयु
जनजातीय काय एवं अनुसूिचत जाित क याण वभाग
जला-जबलपुर. म. .
वषयः- रट यािचका . 16346/2016 ी अमरचंद साहू व म. . शासन एवं
अ य। संदभ:- इस कायालय का प .-9549-50 द. 06.10.2016399
2 सु ी वाित असीम जाज शासक य अिधव ा, गान. उ च यायालय, जबलपुर,
म. . ारा दनांक 31.03.2022 को दरू भाष पर क गई चचा।
वषयां कत रट यािचका म संदभ ं .-2 शासक य अिधव ा ारा चचा कर करण म
अगली सुनवाई द. 11.04.2022 िनयत होना बताया जाकर िन न दो ब द ु म
जानकार चाह गयी जो िन न अनुसार है ー
1. संभागीय उपायु . आ दवासी तथा अनुसूिचत जाित वकास, भोपाल संभाग
भोपाल के प . /स.उपा./ था./2016/1125 दनांक 22.08.2016 एवं संल न जांच
ितवेदन अनुसार ी अमरचंद साहू वाहन चालक को ग ठत जांच सिमित ारा
सुनवाई को अवसर नह ं दया गया (छाया ित संल न)।
2 कायालयीन आदे श प दनांक 06.10.2016 ारा सहायक आयु , जनजातीय काय
एवं अनुसूिधत जाित वकास, जबलपुर को भार अिधकार िनयु कया गया है ।
जो क पद नाम से है ।
अतः करण म शासक य अिधव ा से त काल स पक कर वषयां कत रट यािचका
म आव यक कायवाह कर करण का िनराकरण शासन के प म कराया जाना
सुिन त कर तथा कृ त कायवाह से इस कायालय को अवगत कराव।
संल नः-उपरो ानुसार।"
5. Counsel appearing for the respondents/State fairly admits the aforesaid
proposition and submits that the affidavit has been filed under the signature of the
Commissioner. He is not in a position to dispute the facts of the matter. He fairly
admits that no opportunity of hearing was granted to the petitioner. However, he
contend that a detailed enquiry was conducted and the enquiry report dated
22.08.2016 has been submitted and on the basis of the said report, the impugned
order dated 07.09.2016 has been passed. However, he fairly submits that in the
aforesaid enquiry also no opportunity of hearing was granted to the petitioner. It is
contended that the impugned order may be quashed and the matter be remanded
back to the authorities for reconsideration. The authorities will pass a fresh order
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after granting opportunity of hearing to the petitioner. At this stage, the
contentions raised by the respondents' counsel are vehemently opposed by the
learned counsel for the petitioner. It is submitted that the petitioner was not at fault
at any point of time. He has been placed in the regular pay scale in the year 1990.
The authorities have kept quite for more than 17 years and it is only thereafter on
an anonymous complaint, the action has been taken against the petitioner. Now the
petitioner who is at verge of retirement cannot be placed back in the previous pay
scale holding that he was not entitled for regularisation at the relevant point of
time.
6. Heard the learned counsel for the parties and perused the record.
7. The record indicates that a caveat was filed by the State of M.P. in the writ
petition and a reply was filed on 20.11.2016. This Court while granting interim
relief to the petitioner has heard the arguments advanced by the State counsel.
Despite filing reply in the writ petition, the State has failed to pursue the matter for
a long time. No application for vacating stay was filed by the State during the
aforesaid period. The interim order was granted on 28.09.2016 and thereafter the
matter was kept pending and was listed on 21.01.2022 for the first time. During
this period the petitioner continuously worked as a regular employee. The
aforesaid does not reflect that any efforts are being made by the State authorities
to get the interim order granted by this Court vacated at any point of time. Apart
from the aforesaid, it is seen that the petitioner was aged about 54 years at the time
of filing of writ petition, now he is at the verge of retirement. Nothing on record
was brought by the respondents to show that the petitioner has ever
misrepresented before the authorities claiming for a regular pay scale or his
placement in the regular establishment. An order dated 24.03.1990 has been
passed by the Additional Director Tribal Development Department Madhya
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Pradesh, the same reads as under :-
"म य दे श शासन आ दम जाित ह रजन तथा पछड़ा वग क याण वभाग के ापन मांक एक
24/126/89/1/25 दनांक 19-2.90० ारा ह रजन वकास ािधकरण के िलए वीकृ त वाहन चालक '
के पद म से एक वाहन चालक का पद वेतनमान 870-20-910-25-1010-30-1220-40-1420
म आवं टत कया जाता है ।
उ पद पर होने वाला यय िन न बजट शीष से वकलनीयः होगा।
"माग सं या-64- मु य शीष-2225- अनुसूिचत जाित, जन जाितयाँ एवं पछडे वग का क याण -
रा य वायोजना। 800 गठन -02- मजदरू " क याण-०।- अनुसूिचत जाित का म य यय-005-
ािधकरण का गठन - 02 - मजदरू "
8. Thereafter, revision of pay has also been taken place and the pay scale of
petitioner was revised from time to time. Then also the authorities have failed to
correct the mistake which they have committed. Hence, the petitioner cannot be
punished for no fault of his own. Under these circumstances, this Court does not
deem it appropriate to remand the matter to the authorities for reconsideration of
the case of the petitioner and to pass a fresh orders.
9. Recently, the Hon'ble Supreme Court in the case of Vinod Kumar and
others vs. Union of India and others reported in (2024) 1 SCR 1230 has held that
procedural formalities cannot be used to deny regularization of service to an
employee whose appointment was termed as 'temporary' but has performed the
same duties as performed by the regular employee over a considerable period in
the capacity of a regular employee. The Hon'ble Court has further observed that
the judgment passed by the Constitutional Bench of the Hon'ble Supreme Court in
the case of Secretary State of Karnataka and others Vs.Uma Devi and others
reported in (2006) 4 SCC 1 does not intend to penalize employees who have
rendered long years of service fulfilling ongoing and necessary functions of the
State or its instrumentality. The said judgment sought to prevent a backdoor
entries and illegal appointments that circumvent constitutional requirements.
However, where appointments were not illegal but possibly 'irregular' and where
employees had served continuously against the backdrop of sanctioned functions
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for a considerable period, the need for a fair and humane resolution becomes
paramount. The Hon'ble Supreme Court in the case of Vinod Kumar (supra) has
held as under :-
"6. The application of the judgment in Uma Devi (supra) by
the High Court does not fit squarely with the facts at hand,
given the specific circumstances under which the appellants
were employed and have continued their service. The
reliance on procedural formalities at the outset cannot be
used to perpetually deny substantive rights that have accrued
over a considerable period through continuous service. Their
promotion was based on a specific notification for vacancies
and a subsequent circular, followed by a selection process
involving written tests and interviews, which distinguishes
their case from the appointments through back door entry as
discussed in the case of Uma Devi (supra). 7. The judgement
in the case Uma Devi (supra) also distinguished between
"irregular" and "illegal" appointments underscoring the
importance of considering certain appointments even if were
not made strictly in accordance with the prescribed Rules
and Procedure, cannot be said to have been made illegally if
they had followed the procedures of regular appointments
such as conduct of written examinations or interviews as in
the present case..."
10. The aforesaid judgment passed by the Hon'ble Supreme Court was
consider recently in the case of Jaggo vs. Union of India and others (SLP (C) 5580
of 2024) and vide judgment dated 20.12.2024 the Hon'ble Supreme Court has held
as under:-
"24. The landmark judgement of the United State in the case
of Vizcaino v. Microsoft Corporation serves as a pertinent
example from the private sector, illustrating the
consequences of misclassifying employees to circumvent
providing benefits. In this case, Microsoft classified certain
workers as independent contractors, thereby denying them
employee benefits. The U.S. Court of Appeals for the Ninth
Circuit determined that these workers were, in fact,
common-law employees and were entitled to the same
benefits as regular employees. The Court noted that large
Corporations have increasingly adopted the practice of
hiring temporary employees or independent contractors as a
means of avoiding payment of employee benefits, thereby
increasing their profits. This judgment underscores the
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principle that the nature of the work performed, rather than
the label assigned to the worker, should determine
employment status and the corresponding rights and
benefits. It highlights the judiciary's role in rectifying such
misclassifications and ensuring that workers receive fair
treatment.
25. It is a disconcerting reality that temporary employees,
particularly in government institutions, often face
multifaceted forms of exploitation. While the foundational
purpose of temporary contracts may have been to address
short-term or seasonal needs, they have increasingly become
a mechanism to evade longterm obligations owed to
employees. These practices manifest in several ways:
• Misuse of "Temporary" Labels: Employees engaged for
work that is essential, recurring, and integral to the
functioning of an institution are often labeled as "temporary"
or "contractual," even when their roles mirror those of
regular employees. Such misclassification deprives workers
of the dignity, security, and benefits that regular employees
are entitled to, despite performing identical tasks.
• Arbitrary Termination: Temporary employees are
frequently dismissed without cause or notice, as seen in the
present case. This practice undermines the
principles of natural justice and subjects workers to a state of
constant insecurity,
regardless of the quality or duration of their service.
• Lack of Career Progression: Temporary employees often
find themselves excluded from opportunities for skill
development, promotions, or incremental pay raises. They
remain stagnant in their roles, creating a systemic disparity
between them and their regular counterparts, despite their
contributions being equally significant.
• Using Outsourcing as a Shield: Institutions increasingly
resort to outsourcing roles performed by temporary
employees, effectively replacing one set of exploited
workers with another. This practice not only perpetuates
exploitation but also demonstrates a deliberate effort to
bypass the obligation to offer regular employment.
• Denial of Basic Rights and Benefits: Temporary
employees are often denied fundamental benefits such as
pension, provident fund, health insurance, and paid leave,
even when their tenure spans decades. This lack of social
security subjects them and their families to undue hardship,
especially in cases of illness, retirement, or unforeseen
circumstances.
26. While the judgment in Uma Devi (supra) sought to
curtail the practice of backdoor entries and ensure
appointments adhered to constitutional principles, it is
regrettable that its principles are often misinterpreted or
misapplied to deny legitimate claims of long-serving
employees. This judgment aimed to distinguish between
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"illegal" and "irregular" appointments. It categorically held
that employees in irregular appointments, who were
engaged in duly sanctioned posts and had served
continuously for more than ten years, should be considered
for regularization as a one-time measure. However, the
laudable intent of the judgment is being subverted when
institutions rely on its dicta to indiscriminately reject the
claims of employees, even in cases where their
appointments are not illegal, but merely lack adherence to
procedural formalities. Government departments often cite
the judgment in Uma Devi (supra) to argue that no vested
right to regularization exists for temporary employees,
overlooking the judgment's explicit acknowledgment of
cases where regularization is appropriate. This selective
application distorts the judgment's spirit and purpose,
effectively weaponizing it against employees who have
rendered indispensable services over decades.
27. In light of these considerations, in our opinion, it is
imperative for government departments to lead by example
in providing fair and stable employment. Engaging workers
on a temporary basis for extended periods, especially when
their roles are integral to the organization's functioning, not
only contravenes international labour standards but also
exposes the organization to legal challenges and undermines
employee morale. By ensuring fair employment practices,
government institutions can reduce the burden of
unnecessary litigation, promote job security, and uphold the
principles of justice and fairness that they are meant to
embody. This approach aligns with international standards
and sets a positive precedent for the private sector to follow,
thereby contributing to the overall betterment of labour
practices in the country.
28. In view of the above discussion and findings, the appeals
are allowed. The impugned orders passed by the High Court
and the Tribunal are set aside and the original application is
allowed to the following extent:
i. The termination orders dated 27.10.2018 are quashed;
ii. The appellants shall be taken back on duty forthwith and
their services regularised forthwith. However, the appellants
shall not be entitled to any pecuniary benefits/back wages
for the period they have not worked for but would be
entitled to continuity of services for the said period and the
same would be counted for their post-retiral benefits."
11. In the present case, the authorities themselves have awoken from their
slumber after a lapse of more than 17 years from the date of grant of extension of
benefits to the petitioner, therefore, this Court deems it appropriate to allow the
petition. The impugned order being unsustainable is hereby quashed
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12. Accordingly, the petition stands allowed and disposed off.
13. The authorities are directed to treat the petitioner as regular employee
since 24.03.1990 and extend all such benefits to the petitioner. The impugned
order is being quashed in peculiar facts and circumstances of the case and not be
treated as a precedent in future.
(VISHAL MISHRA)
JUDGE
AM
