Madhya Pradesh High Court
Narendra Tripathi vs The State Of Madhya Pradesh on 7 May, 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. 1610 of 2024
NARENDRA TRIPATHI
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
........................................................................................................
Appearance:
Shri L. C. Patne, Shri Abhay Pandey, Shri Siddharth Saroha and Shri
Akash - Advocates for appellant.
Shri Prashant Singh - Advocate General and Shri Amit Seth - Additional
Advocate General assisted by Shri Sahil Sonkusale - Advocate for the
Respondent Nos.1, 2 & 3.
Shri Ved Prakash Tiwari - Advocate for the Respondent No.4/E.C.,
Barkatullah University.
..........................................................................................................
ORDER
(Reserved on : 24.04.2025)
(Pronounced on : 07.05.2025)
Per: Hon'ble Shri Justice Vivek Jain.
The present intra-court appeal has been filed under Section 2 (1) of the
Madhya Pradesh Uchcha Nyayalaya (Khand Nyayapeeth Ko Appeal)
Adhiniyam, 2005 arising out of the order dated 02.07.2024 passed by learned
Single Judge of this Court in W.P. No.5604/2024, whereby the writ petition filed
by the appellant has been dismissed.
2. The writ petition was filed by the present appellant arising out of order
dated 21.02.2024 (Annexure P-7) issued by the Registrar, Barkatullah
University, Bhopal thereby terminating the services of the appellant/writ
petitioner on the ground that the initial appointment of the petitioner in service
was illegal in as much as upon perusal of the enquiry report dated 02.08.2023 it
has been established that the provisions of University statutes were not followed
in the matter of recruitment process and further that the reservation rules were
not followed while appointing the petitioner and as a consequence to the said
finding, the petitioner's services stand terminated.
3. Learned counsel for the appellant/petitioner has submitted that the
impugned termination order has been passed without following the mandatory
provisions of Statute No.31 of the respondent - University and therefore, there
is procedural violation. It is contended that the petitioner was initially appointed
in terms of resolution dated 26.10.1988 passed by the Executive Council of the
University against the sanctioned vacant post of Project Officer in the regular
pay scale of Rs.5500-9000/- and a consequential order dated 16.12.1998 was
issued to that effect and therefore, prior to issuance of the termination order
dated 21.02.2024, the petitioner has put in more than 25 years of service and he
is over-age for any other employment now. It is further contended that the
appellant was confirmed on the post of Project Officer vide order dated
30.05.2012 and therefore, whatever defect, if any, was there in his appointment,
got wiped off by such confirmation. He has been given the benefit of revised
pay scales as per Sixth and Seventh Pay Commissions w.e.f. 01.01.2006 and
01.01.2016 respectively and also given the benefits of first and second financial
up-gradations as per the instructions issued by the State Government. He was
also given permission to prosecute Ph.D. degree in the year 2017.
4. It is further contended that one Bhagwan Das Rajput filed W.P.
No.1193/2023 challenging the appointment of the petitioner by seeking a writ of
quo-warranto, wherein this Court by order dated 10.01.2024 dismissed the writ
petition. In the said petition the University took the stand that the appointment
of the petitioner was not as per law and therefore, the petition was dismissed on
the ground that once the employer itself is of the opinion that the appointment
of the employee is illegal, then no directions are required from the Court.
5. It is the case of the appellant/petitioner that by misinterpreting the
aforesaid observations of this Court the University has illegally, arbitrarily and
malafidely issued the impugned order dated 21.02.2024 (Annexure P-7),
whereby the services of the petitioner have been terminated by a stigmatic order
without issuing any show cause notice and without affording any opportunity of
hearing, which is in gross violation of principles of natural justice and fair play.
It is contended that once the petitioner had joined in service and was continuing
for last more than 25 years, then he had acquired and indefeasible right to
remain in service and in such circumstances his service could not have been
dispensed with unceremoniously without any enquiry or show cause notice.
Reliance is placed on judgment of the Supreme Court in the case of Shrawan
Kumar Jha vs. State of Bihar, 1991 Supp (1) SCC 330. It is further contended
that even if the appointment of the petitioner is treated to be irregular, then the
confirmation of his services in the year 2012 amounted to regularization of any
irregularity that crept in his appointment and such regularization could have
been done in terms of the law laid down by the Hon'ble Supreme Court in the
case of State of Karnataka vs. Uma Devi (3) and others, (2006) 4 SCC 1. It is
further contended that as per Clause 57(3) of Statute 31 of respondent -
University read with Rule 14 of M.P. Civil Services C.C.A. Rule, 1966 a
confirmed employee cannot be terminated from his service except after
following the due procedure as established by and termination being a major
penalty, it could not have been visited the petitioner/appellant without regular
enquiry.
6. It is further contended that the petitioner/appellant was duly having
qualification to be appointed on the post of Project Officer, his educational
qualification being M.A. in Sociology, P.G.D.C.A., Bachelor in Physical
Education and Masters in Physical Education as also Ph.D., which he obtained
in the year 2017 after due permission from the respondent - University. It is
further argued that the termination order has been issued based on some enquiry
report dated 02.08.2023 submitted by the Enquiry Officer, whereas the same
Enquiry Officer vide earlier report dated 08.08.2022 has given clean chit to the
appellant/petitioner by holding his appointment to be legal and within the four
corners of law, but later on he succumbed to political pressure and gave a
opposite finding against the petitioner.
7. It is further argued that the earlier enquiry report was accepted by the
competent authority of the University and vide later dated 17.10.2022
(Annexure P-10) the Chancellor of the University, i.e. H.E. the Governor of the
State intimated the complainant that his complaint against the appointment of
the petitioner has been closed. The Chancellor is father figure in the University
and once the complaint against the petitioner had been closed upto the level of
Chancellor, then the matter could not have been reopened and given over to the
same Enquiry Officer to tender a contrary report to his own earlier report.
8. It is further contended that not only the earlier enquiry report dated
08.08.2022, but even prior enquiry reports have given clean chit to the
appointment of the petitioner and now the petitioner has been singled out for
adverse action whereas the Enquiry Officer, Shri Anil Pare was authorized to
probe into as many as 163 alleged illegal appointment made in the respondent
No.2 - University vide letter dated 06.09.2019 issued by the University, but he
preferred to conduct enquiry only against the petitioner and that too, not once
but twice and in course of second enquiry, which was adverse to the petitioner,
he even chose not to call the petitioner therein. Therefore, the impugned
termination order so also the preceding inquiry report are examples of
colourable exercise of powers. It is contended that the order of this Court in
W.P. No.1193/2023, wherein writ of quo-warranto was sought against the
petitioner has been grossly mis-interpreted and misconstrued by the respondent
authorities and the same has been taken as an excuse to terminate the services of
the appellant. It is argued that all these aspects have skipped the attention of the
learned Single Judge, who has upheld the termination of the petitioner.
9. It is further argued that learned Single Judge has wrongly held the
appointment of the petitioner to be illegal appointment and not irregular
appointment and has held that such appointment could not have been
regularized nor defect could be cured. However, the facts of this case do
establish that the appointment of the petitioner was not an illegal appointment,
but at the most could have been said to be irregular appointment in as much as
the petitioner duly had the qualification for the post and there was vacancy for
the post and only the recruitment process was not followed.
10. Per contra, Shri Prashant Singh - learned Advocate General and Shri
Amit Seth - learned Additional Advocate General assisted by Shri Sahil
Sonkusale, Advocate appearing for the State, University and the Vice
Chancellor, and Shri Ved Prakash Tiwari, learned counsel for the Executive
Council of the University have vehemently argued that the appointment of the
petitioner/appellant was illegal from the very beginning and therefore, illegality
can always be cured and set right by cancelling the appointment at any point of
time. It is argued that in terms of judgment of Division Bench of this Court in
the case of Mansukh Lal Saraf vs. Arun Kumar Tiwari and others reported in
(2016) 2 MP LJ 283, such illegal appointment can always be withdrawn at any
point of time and no vested right accrues to the employee for merely being
continued for a long period.
11. It is further argued that it is not the case that the petitioner has been
singled out for adverse action; because as per additional submissions filed vide
document No.6910/2025, it has been brought on record that enquiry is being
proposed against other 162 employees also and a three members committee has
been constituted on 10.03.2025 to carry out an enquiry into the said matter. It is
further argued by them that the case of the petitioner was expedited for such
scrutiny only because a writ of quo-warranto was sought in the matter of
his appointment in W.P. No.1193/2023 and this Court had given some
observations that no further orders are required from the Court once the
employer itself has concluded that the appointment was illegal, because the
University had taken a stand before this Court that the appointment of the
petitioner is illegal. After the order was passed by this Court in W.P.
No.1193/2023 on 10.01.2024, the case of the petitioner/appellant was singled
out for being expedited and there is no malice in the said action of the
University, because in other 162 cases no such petition had been filed and those
cases were being proceeded in routine course.
12. On the aspect of the Chancellor having earlier closed the complaint in
the matter of appointment of the petitioner, it is contended by learned counsel
for the respondent that thereafter, the Chancellor had issued another letter dated
02.02.2024, which is placed on record with document No.6910/2025, wherein
the Chancellor had directed the Vice Chancellor to examine the case of the
petitioner in terms of order of this Court dated 10.01.2024 passed in W.P.
No.1193/2023 and therefore, the ground that the Chancellor, who is the father
figure of the University has closed the complaint against the petitioner, no
longer survives.
13. Learned counsel for the respondents have heavily relied on the
minutes of the executive council, whereby the petitioner was initially appointed
in the year 1998 to contend that the petitioner was appointed as Project Officer
on "temporary basis till further order" against the sanctioned vacant post of
Lecturer. It is contended that one vacancy in the post of Project Officer was
there on death of one Smt. Shakuntala Elawadi, but one Dr. Shashank Thakur
was already appointed against the said post on fixed pay and therefore, there
was no vacancy when the petitioner was appointed and he was appointed
against the vacant post of Lecturer. On such ground, it is vehemently argued that
the appointment of the petitioner not being on an sanctioned vacant post was
illegal from the very inception and not merely irregular.
14. Heard learned counsel for the parties and perused the record.
15. In the present case is not disputed that petitioner was initially
appointed in the year 1998 and his services have been terminated vide order
dated 21.02.2024 after putting in more than 25 years of service and it is also not
in dispute that he is now over-age for any employment being almost 53 years of
age at the time of termination. It is also not in dispute that there is no allegation
of misconduct against the petitioner and the only ground for termination of his
services is that his initial appointment was illegal and has been found to be so in
the enquiry conducted by the university, on basis of which the impugned
termination order has been issued.
16. There are two enquiry reports in the matter of appointment of the
petitioner. The first enquiry report is dated 08.08.2022 which was placed on
record as Annexure P-9 before the learned Single Judge. In the said enquiry
report it has been taken in consideration by the enquiry officer Dr. Anil Pare
(retired District Judge) that the appointment was made as per the decision taken
by the Executive Council of the University on 26.10.1998 and thereafter another
meeting of Executive Council took place on 31.03.1999 whereby the services of
the petitioner were continued till further orders. Therefore, it was held by the
enquiry officer that the appointment of the petitioner was not for any fixed term
but was till further orders and was duly approved by the Executive Council. The
enquiry officer further held that the appointment of the petitioner was against a
sanctioned vacant post and categorical finding is given by the enquiry officer in
the said report that as per the minutes of the meeting of Executive Council dated
13.01.2017 the appointment of the petitioner was against the sanctioned vacant
post. This enquiry report was accepted by the Chancellor by closing the matter
vide letter Annexure P-10 dated 17.10.2022. However, another enquiry was
thereafter setup in which the petitioner admittedly was not called and the same
enquiry officer Dr. Anil Pare conducted the fresh enquiry which is placed on
record as (Annexure P-8). Considering the same record, the same enquiry
officer held that the appointment of the petitioner was illegal because it was not
against any sanctioned vacant post and the prescribed procedure for
appointment was not followed.
17. The learned Single Judge while dismissing the writ petition of the
appellant has also given the finding that there was no sanctioned vacant post
and that the process was not followed prior to appointment of
petitioner/appellant. Therefore, the appointment of the petitioner /appellant was
illegal appointment and not mere irregular appointment. Hence, it could not be
regularised. On this ground, the learned Single Judge came to conclusion that
the confirmation order (Annexure P-4) dated 30.05.2012 though it is issued by
the competent authority of the University, but does not vest any right in the
petitioner/appellant as his initial appointment was illegal and not mere irregular
and therefore, subsequent confirmation would not create any right and that
confirmation itself was not proper. It is not in dispute that on 30.05.2012 vide
(Annexure P-4) the petitioner was confirmed in the service of university on the
post of Project Officer with effect from 16.12.2000 and the said order is in
respect of as many as 49 employees wherein name of appellant is at S.No.23.
Nothing has been brought on record that what action has been taken against
other 48 employees rather it is duly placed on record that the complaint which
was received by the university was against total 163 employees on which in the
year 2019 itself vide letter dated 06.01.2019 (Annexure P-18) Shri Anil Pare,
Retd. District and Sessions Judge, was appointed as enquiry officer by the
university. However, despite lapse of almost 6 years till date, it is an admitted
fact that enquiry has been concluded in the matter of petitioner only, that too not
once but twice by the same enquiry officer who has given contradictory reports
in the matter of legality of appointment of the petitioner. The said enquiry
officer has not conducted enquiry in respect to even a single other employee out
of questioned 163 employees and even by additional submissions brought on
record by the respondents vide Document No.6910/2025, it is contended that
now the University has appointed a fresh three member committee to carryout
scrutiny of 163 employees. This seems to be just an eyewash to get over the
argument of the appellant that he has been singled out for the adverse action by
the University.
18. It was also not disputed by learned counsel for the respondents during
the course of arguments, that out of 163 employees whose appointments are
being questioned, many have been allowed to retire after completing their entire
service and are now even getting pension. Therefore, if the University was
serious in enquiring about the legality or otherwise of appointment of 163
employees, then by now the University must have carried out enquiry into their
appointments at least before their retirement. However, the University on one
hand has been allowing the other employees out of 163 questioned employees to
complete their tenure of service and retire and get pension and gratuity, but on
the other hand, the petitioner is being singled out for adverse action which
seems to be an act of vendetta against the petitioner /appellant and nothing else.
19. The argument which was placed by learned counsel for the appellant
was that his appointment even if was without following due process of law for
appointment, was not illegal and could at the most be said to be an irregular
appointment which could always be regularized by the competent authority of
the University which it did vide order (AnnexureP-4) dated 30.05.2012.
Therefore the question now arises is that whether the appointment of the
petitioner-appellant was illegal or irregular. Admittedly the appointment was
made without following the recruitment process, hence, the learned counsel for
the Appellant had argued that the appointment was not illegal, but merely
irregular.
20. In the case of Uma Devi (supra), the Constitution Bench
considered the earlier judgements in case of Ashwani Kumar v. State of
Bihar (1997) 2 SCC 1 and A. Umarani vs. Registrar, Coop. Societies (2004) 7
SCC 112, in the following manner :-
31. In Ashwani Kumar v. State of Bihar [(1997) 2 SCC 1 : 1997 SCC (L&S)
465 : 1996 Supp (10) SCR 120] this Court was considering the validity of
confirmation of the irregularly employed. It was stated : (SCC p. 17, para 13)
"13. So far as the question of confirmation of these employees whose
entry itself was illegal and void, is concerned, it is to be noted that
question of confirmation or regularisation of an irregularly appointed
candidate would arise if the candidate concerned is appointed in an
irregular manner or on ad hoc basis against an available vacancy
which is already sanctioned. But if the initial entry itself is
unauthorised and is not against any sanctioned vacancy, question of
regularising the incumbent on such a non-existing vacancy would
never survive for consideration and even if such purported
regularisation or confirmation is given it would be an exercise in
futility."
This Court further stated : (SCC pp. 18-19, para 14)
"14. In this connection it is pertinent to note that question of
regularisation in any service including any government service may
arise in two contingencies. Firstly, if on any available clear vacancies
which are of a long duration appointments are made on ad hoc basis
or daily-wage basis by a competent authority and are continued from
time to time and if it is found that the incumbents concerned have
continued to be employed for a long period of time with or without any
artificial breaks, and their services are otherwise required by the
institution which employs them, a time may come in the service career
of such employees who are continued on ad hoc basis for a given
substantial length of time to regularise them so that the employees
concerned can give their best by being assured security of tenure. But
this would require one precondition that the initial entry of such an
employee must be made against an available sanctioned vacancy by
following the rules and regulations governing such entry. The second
type of situation in which the question of regularisation may arise
would be when the initial entry of the employee against an available
vacancy is found to have suffered from some flaw in the procedural
exercise though the person appointing is competent to effect such
initial recruitment and has otherwise followed due procedure for such
recruitment. A need may then arise in the light of the exigency of
administrative requirement for waiving such irregularity in the initial
appointment by a competent authority and the irregular initial
appointment may be regularised and security of tenure may be made
available to the incumbent concerned. But even in such a case the
initial entry must not be found to be totally illegal or in blatant
disregard of all the established rules and regulations governing such
recruitment."
34. In A. Umarani v. Registrar, Coop. Societies [(2004) 7 SCC 112 : 2004 SCC
(L&S) 918] a three-Judge Bench made a survey of the authorities and held
that when appointments were made in contravention of mandatory provisions
of the Act and statutory rules framed thereunder and by ignoring essential
qualifications, the appointments would be illegal and cannot be regularised by
the State. The State could not invoke its power under Article 162 of the
Constitution to regularise such appointments. This Court also held that
regularisation is not and cannot be a mode of recruitment by any State within
the meaning of Article 12 of the Constitution or any body or authority
governed by a statutory Act or the rules framed thereunder. Regularisation
furthermore cannot give permanence to an employee whose services are ad
hoc in nature. It was also held that the fact that some persons had been
working for a long time would not mean that they had acquired a right for
regularisation.
Upon considering the entire law relating to regularization of irregular
appointees, in para-53, it was held as under :-
53. One aspect needs to be clarified. There may be cases where irregular
appointments (not illegal appointments) as explained in S.V.
Narayanappa [(1967) 1 SCR 128 : AIR 1967 SC 1071] , R.N.
Nanjundappa [(1972) 1 SCC 409 : (1972) 2 SCR 799] and B.N.
Nagarajan [(1979) 4 SCC 507 : 1980 SCC (L&S) 4 : (1979) 3 SCR 937] and
referred to in para 15 above, of duly qualified persons in duly sanctioned
vacant posts might have been made and the employees have continued to work
for ten years or more but without the intervention of orders of the courts or of
tribunals. The question of regularisation of the services of such employees may
have to be considered on merits in the light of the principles settled by this
Court in the cases abovereferred to and in the light of this judgment. In that
context, the Union of India, the State Governments and their instrumentalities
should take steps to regularise as a one-time measure, the services of
such irregularly appointed, who have worked for ten years or more in duly
sanctioned posts but not under cover of orders of the courts or of tribunals
and should further ensure that regular recruitments are undertaken to fill
those vacant sanctioned posts that require to be filled up, in cases where
temporary employees or daily wagers are being now employed. The process
must be set in motion within six months from this date. We also clarify that
regularisation, if any already made, but not sub judice, need not be reopened
based on this judgment, but there should be no further bypassing of the
constitutional requirement and regularising or making permanent, those not
duly appointed as per the constitutional scheme.
21. After the judgment in the case of Uma Devi (supra) the State
Government of M.P. with a circular dated 08.02.2008 clarifying and prescribing
the requisite parameters for scrutinizing the case of employees, whether they are
irregularly appointed or illegally appointed. In the said circular to a query that
whether those daily rated and temporary employees whose appointments were
made without calling names from employment exchange and without following
recruitment process are to be deemed as illegal or irregular appointment, the
clarification has been given by General Administration Department that those
appointments are deemed to be irregular if they are against sanctioned post but
recruitment process has not been followed. However, if post was not available
then those appointments will be illegal. Further in point No.5 of the same
circular it has been mentioned that if there was some temporary post in the
department and it has been continued for more than 10 years then on those posts
also regularization can be carried out but the employee will not be declared as
permanent. In the matter of reservation, it is clarified that if roster was not
followed at the time of irregular appointment, then also the appointment would
be irregular and not illegal for the purpose of regularization which is in point
No.8 of the said circular.
22. In the present case it was vehemently argued that the appointment of
petitioner-appellant is illegal because there was no sanctioned vacant post and
his appointment was against the post of Lecturer, therefore, nothing more is
required to be indicated that there was no availability of sanctioned vacant post.
23. It is not in dispute that two posts of Project Officer were sanctioned in
the university vide letter dated 23.06.1986 issued by the Higher Education
Department. The said two posts were occupied by Smt. Shakuntala Edlawadi
and Dr. Kalika Yadav. It is also not in dispute that one of them i.e. Smt.
Shakuntala Edlawadi expired on 12.02.1997 and therefore, one post fell vacant.
It is the said one post which is the bone of contention and is being stated to be
vacant by the petitioner-appellant and on the contrary, it is being stated by the
respondents to be already filled up and the said issue has to be considered by
this Court.
24. It is the case of respondents that one Shashank Shekhar Thakur was
appointed on the post that fell vacant by death of Smt. Shakuntala Edlawadi and
this appointment of Shashank Shekhar Thakur was made on 03.03.1998 while
the petitioner-appellant was appointed on 16.12.1998, therefore as per
respondents, the post was not vacant and for this reason appointment of the
petitioner was against the post of Lecturer. The appointment order of Shri
Shashank Shekhar Thakur (Annexure R-2/6) reads as under:-
"Jh 'k'kkad 'ks[kj Bkdqj dks va'kdkyhu ifj;kstuk vf/kdkjh ds in ij
fnukad 03-03-98 ls 89 fnol gsrq fu;qfDr iznku dh tkrh gSA mDr dk;Z
gsrq bUgs :i;s 1000=00@& izfrekg dh nj ls Hkwxrku fd;k tkosxkA
vuqifLFfr dh n'kk esa :i;s 75@& izfrfnol ds eku ls dVkS=k fd;k
tk;sxkA
;g fu;qfDr iw.kZr% vLFkkbZ gS ,oa fcuk fdlh lwpuk ds fdlh Hkh le;
lekIr dh tk ldrh gSA"
25. Upon going through document Annexure R-2/6 filed by the
respondents before the learned Single Judge, it is the appointment order of
Shashank Shekhar Thakur on the post of Project Officer by which it is being
projected before us that the post was not vacant. The said appointment order is
an appointment order of Shashank Shekhar Thakur on the part time post of
Project Officer for 89 days from 11.03.1998 on Rs.1000/- per month salary.
Undoubtedly no post of part time Project Officer was available in the university
and the only post available vide sanction letter dated 23.06.1986 was the full
time post of Project Officer. It is difficult to understand that how a person
appointed on fixed pay of Rs.1000/- per month on part time post of Project
Officer can be said to have filled up the regular full time post of Project Officer
which was duly sanctioned in the university. On the other hand, the appointment
order of the petitioner is in the regular pay scale of Rs.5500-175-9000 on the
post of Project Officer and only his salary was to be drawn against the vacant
post of Lecturer. This order is in following terms (Annexure P-3):-
"@@vkns'k@@
dk;Zifj"kn dh cSBd 26-10-1998 esa fy;s x;s fu.kZ;kuqlkj Jh ujsUnz f=ikBh dks
osrueku :i;s 5500&175&9000 esa izkS<+ f'k{kk esa **ifj;kstkuk vf/kdkjh** ds in ij
fu;qDr fd;k tkrk gSA
;g fu;qfDr fnukad 01-12-1998 ls izHkko'khy gksxh **bl lac/a k esa gksus okyk
O;;] 'kS{kf.kd foHkkxksa esa **fjDr O;k[;krk ds in ds fo:)** 1&LFkkiuk ls
fodyuh; gksxkA
vkns'kkuqlkj
dqylfpo"
26. The aforesaid two orders when seen in juxtaposition to each other
duly establish that the post of project Officer was vacant and available and only
because one person had been appointed on part time basis on fixed pay of
Rs.1000/- in March, 1998, therefore, the university authorities in their own
wisdom deemed as if the post is not vacant and salary has to be drawn against
the vacant post of Lecturer. Nothing has been placed on record that whether the
petitioner was not having requisite qualification for the post of Project Officer
which could have justified his appointment to be illegal and not irregular. Even
when the Executive Council minutes dated 26.10.1998 are scrutinized minutely
it can be seen that the Executive Council has come to a conclusion that the
requirement of work for project officer is such that even three persons can work
as Project Officer. The relevant consideration made by the Executive Council is
as under :-
** in dz- 7
fo'ofo|ky; ds izkS<+ f'k{kk foHkkx esa funZs'kd MkW- uhjt 'kekZ }kjk izkS< f'k{kk
ds fodkl gsrq fofHkUu ;kstuk;s rS;kj dh x;h gSA foHkkx esa 'kS{kf.kd ikB~;dze
Hkh pyk;s tk jgs gSA izkS<+ f'k{kk ds dk;Z laiknu gsrq lgk0 funsZ'kd dk ,d in
tks funsZ'kd ds in esa mu;u gks pqdk gS ,oa ifj;kstuk vf/kdkjh ds nks in gS]
Jhefr ,ynkoknh ds fu/ku ds mijkar ifj;kstuk vf/kdkjh dk ,d in fjDr gS
ftlds fo:) Mk- 'k'kkad Bkdqj fu/kkZfjr osru ij dk;Zjr gS c<+s gq, dk;Z dks
ns[krs gq;s ,d ifj;kstuk vf/kdkjh dh vksj vko';drk gS fdarq inkHkko esa ogka
dksbZ O;oLFkk laHko ugha gS vr% ,slh fLFkfr esa fo'ofo|ky; esa O;k[;krk ds fjDr
in ds fo:) ogka O;k[;krk ls dze ds osrueku eas vFkkZr r`rh; Js.kh ds
osrueku esa ,d ifj;kstuk vf/kdkjh dh fu;qfDr izLrkfor gS bl gsrq Jh ujsUnz
f=ikBh us viuk vkosnu i= izLrqr fd;k gS fd osrueku 1640&2900 esa ftldk
ifjofrZr osrueku 5500&175&9000 gsS esa Jh ujsUnz f=ikBh dk ifj;kstuk
vf/kdkjh ds :i esa fu;qDr fd;k tk;s ;g fu;qfDr vLFkkbZ :i ls vfxze vkns'k
rd dh tkuk gS izdj.k dk;Zifj"kn ds vkns'kkFkZ ,oa fopkjkFkZ izLrqrA**
27. In view of the aforesaid minutes, it is evident that apart from one part
timer i.e. Shashank Shekhar Thakur no other regular employee was working as
Project Officer and merely because one part timer was working it could not be
said that there was no vacant post of Project Officer available in the university.
Even if it is so deemed, then the circular of the State Government dated
08.02.2008 in para-5 thereof duly mentions that if there is a temporary post then
regularization can be made even on temporary post if the said post is being
continued for more than 10 years continuously. In the present case, the
Executive Council has considered that indeed the requirement of work is
sufficient for three posts and therefore, even if sanctioned post was not vacant,
this resolution would have had the effect of setting up of a temporary post.
28. In the present case, the petitioner was confirmed in service in the year
2012 till which date he had put in 14 years of service and therefore, from any
angle the order of confirmation of services of the petitioner does seem to be
illegal and the order of termination of services of petitioner by declaring the
petitioner to be illegally appointed 25 years after his appointment seems to be
an wrongful action taken against the petitioner because we could not find any
ingredients of illegal appointment in the matter of petitioner.
29. The learned counsel for the appellant has relied on the judgments of
the Supreme Court in the cases of Dr. M.S. Mudholand Another v. S.D.
Halegkar and Others (1993) 3 SCC 591, K.Amir Khan & Another v. A.
Gangadharan and Others (2001) 9SCC 84, Vikas Pratap Singh & Others v.
State of Chhattisgarh& Other (2013) 14 SCC 494, Anmol Kumar Tiwari and
Other v. State of Jharkhand & Others (2021) 5 SCC 424, Vivek Kaisth &
Another v. State of Himachal Pradesh & Others (2024) 2 SCC269,
Sivanandan C.T. and Others v. High Court of Kerala &' Others (2024) 3 SCC
99, Radhey Shyam Yadav and Another v. State of U.P. & Others 2024 SCC
OnLine SC 10 and State of Karnataka v. M.L. Kesari & Others (2010) 9 SCC
247. He argued that once an incumbent continues in service from 3 to 12 years
despite irregularities in his initial appointment which is not attributable to him
then the employee is entitled to be continued in service.
30. In our opinion, since we have already held that the appointment of
petitioner-appellant was not illegal and was merely irregular which could
always be regularised by the employer in terms of para-53 of the judgment in
the case of Uma Devi (supra), the appointing authority could always have
confirmed and regularize such irregular appointment which it did in the year
2012 and said action could not have been reopened 12 years after it stood
closed. Therefore, we are not required to consider the argument of long
continuation put forth by learned counsel for the petitioner/appellant.
31. Apart from that once the petitioner was a confirmed employee his
services could only be terminated on allegation of misconduct and once having
joined in service and continued for 25 years, he has got indefeasible right to
remain in employment which could be curtailed only after conducting an
enquiry as laid down in the Rules applicable to the respondent-University, that it
did not choose to do. Not even any charge sheet or enquiry, but not even a show
cause notice was issued to the petitioner who was a employee having put in 25
years of service and short-circuiting the procedure, his services were terminated
unceremoniously which cannot be given stamp of approval.
32. Consequently, we are of the opinion that the appeal deserves to be
allowed and the termination order (Annexure P-7) challenged in the writ
petition, deserves to be set aside. Consequently, the appeal is allowed. The
impugned order passed by the learned Single Judge is set aside and the
termination order (Annexure P-7) is also quashed. The appellant would be
entitled to 50% back wages from the date of dismissal of writ petition till the
date of this order and thereafter he shall be entitled to full wages. The appeal is
allowed and disposed of in above terms.
(SURESH KUMAR KAIT) (VIVEK JAIN)
CHIEF JUSTICE JUDGE
rj/nks
