[Cites 4, Cited by 0]
Madhya Pradesh High Court
Dhruv Sharma vs The State Of Madhya Pradesh Thr. on 7 January, 2026
NEUTRAL CITATION NO. 2026:MPHC-GWL:552
1 WP-5271-2016
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE ANAND SINGH BAHRAWAT
ON THE 7 th OF JANUARY, 2026
WRIT PETITION No. 5271 of 2016
DHRUV SHARMA AND OTHERS
Versus
THE STATE OF MADHYA PRADESH THR. AND OTHERS
Appearance:
Shri Dharmendra Singh Raghuwanshi - Advocate for the petitioners.
Shri K.K. Prajapati - Government Advocate for the respondents/State.
Shri Raghvendra Dixit - Advocate and Shri Janmajay Singh Tomar -
Advocate for respondent No.4.
ORDER
This petition, under Article 226 of the Constitution of India has been
filed seeking the following reliefs:-
"(i) That, the present petition filed by the petitioner may kindly be
allowed;
(ii) That, the order dated 23.7.2016 Annexure P/1 passed by the
respondent no.4, order dated 21.7.2016 Annexure P/2 passed by
the respondent no.2 and the order dated 23.7.2016 Annexure P/2
passed by the respondent no.5 may kindly be directed to be set
aside and the respondents may kindly be directed to continue the
services of the petitioners.
(iii) That, any other just, suitable and proper relief, which this
Hon'ble Court deems fit, may also kindly be granted to the
petitioner. Costs be also awarded in favour of the petitioners."
2. Learned counsel for the petitioners submits that the fair price shops
are run by the respondent No.4 in the locality to provide the basic and
NEUTRAL CITATION NO. 2026:MPHC-GWL:552
2 WP-5271-2016
primary facilities to the citizen. To that effect the Officer Incharge who was
vested with the powers delegated by the Registrar of the Cooperative
Societies act in order to run the primary facilities smoothly and properly
granted appointment of the petitioner after following the due process of law.
It is further submitted that petitioners were appointed looking towards the
urgency and need of their services because of the fair price shop stood closed
by non-availability of the salesman working therein. Thereafter, a question
was asked in the State Assembly with respect to appointment of the
petitioners and it was stated that the petitioners have been legally appointed
by the Officer Incharge. Thereafter, by order dated 21.07.2016, the Registrar
cum Commissioner directed the Joint Commissioner, Chambal Morena to
terminate the services of the petitioners. However, in view of the law laid
down by the Hon'ble Apex Court in the case of Mansukhlal Vithaldas
Chauhan Vs. State of Gujarat reported in (1997) 7 SCC 622, no such
direction can be issued, as the higher authorities are not expected to
pressurize to take away the powers vested in the statutory authority or to
direct termination of the services of employees. It is further submitted that
without affording any opportunity of hearing and without issuing any show-
cause notice, the services of the petitioners were terminated by the impugned
order dated 23.07.2016. Since the impugned order entails civil consequences,
the basic principles of natural justice were required to be complied with.
3. Per contra, learned counsel for the respondent/State as well counsel
for the respondent No.4 have supported the impugned order and opposed the
prayer made by learned counsel for the petitioners and submitted that there is
NEUTRAL CITATION NO. 2026:MPHC-GWL:552
3 WP-5271-2016
a condition mentioned in the appointment order that the services of the
petitioners can be terminated at any point of time without giving any notice
and petitioners were appointed illegally and therefore, no opportunity of
hearing was required to be afforded prior to termination of their services. It
is further submitted that the then OIC has no authority as per the statutory
rules(Ann. R-5/1) to appoint any employee in the society by passing the
resolution dated 17-09-2012 (Ann. P/8). So, it is well establish legal
preposition that if any order passed wrongly or illegally or without having
any jurisdiction could not be having any sanctity and per se void. Further, it
is provided u/s 53(5) of the Act 1960 that the administrator so appointed
shall manage the affairs of the society under the control and guidance of the
registrar. Therefore, any appointment is made by the administrator shall be
made with the prior approval of the registrar.
4. It is further submitted by learned counsel for the respondents that in
the present matter, no prior approval of the registrar was obtained, therefore
the said appointment is illegal. So, there is no requirement to provide any
opportunity or hold any enquiry prior to pass impugned order. Registrar
having supreme authority to pass impugned order dated 21-07-2016 because
recruitment rules has been framed by the registrar by exercising the power
u/s 55 (1) of M.P. co-operative societies Act 1960. It is also held in the case
of State of Orissa vs. Mamta Mohanty reported in 2011(3) SCC 436 that it is
settle legal proposition that no person can be appointed even on temporary or
ad hoc basis without inviting applications from all eligible candidates. A
person employed in violation of these provisions is not entitles to any relief
NEUTRAL CITATION NO. 2026:MPHC-GWL:552
4 WP-5271-2016
including salary. Even in the present matter, no invitation for appointment
was given and petitioners were appointed merely by passing are solution.
Therefore, said appointment of petitioners is illegal and void ab initio.
Further, it was observed by the Apex Court in the case of School Education
Department, Chennai Vs. R.Govindaswamy reported in (2014) 4 SCC 769
that Temporary, ad-hoc or daily wager employee are not entitled for
regularization even when they had put in long service because they were not
duly appointed. Sympathy and sentiment cannot be valid argument for
regularization of service in absence of legal right.
5. Heard learned counsel for the parties and perused the record.
6. Initially, the petitioners were appointed by order dated 31.03.2015
(Annexure P/6) and thereafter continued to work till the issuance of the
impugned order dated 23.07.2016. Since the impugned order entails civil
consequences and affects the rights of the petitioners, affording an
opportunity of hearing was necessary. Further, the impugned order has been
issued on the basis of instructions given by the Joint Commissioner vide
letter dated 21.07.2016, which is contrary to the judgment of the Hon'ble
Supreme Court in the case of Mansukhlal Vithaldas Chauhan v. State of
Gujarat, reported in (1997) 7 SCC 622 , wherein the Supreme Court has held
as under:-
"23. In the performance of this duty, if the authority in whom the
discretion is vested under the statute, does not act independently
and passes an order under the instructions and orders of another
authority, the Court would intervene in the matter, quash the order
and issue a mandamus to that authority to exercise its own
discretion."
7. Considering the above, the impugned orders dated 23.07.2016
NEUTRAL CITATION NO. 2026:MPHC-GWL:552
5 WP-5271-2016
(Annexure P/1), dated 21.07.2016 (Annexure P/2) and dated 23.07.2016
(Annexure P/3) are hereby quashed. The respondents are also directed to
extend all the consequential benefits to the petitioners except backwages on
the principle of "No Work No Pay". However, respondents would be at
liberty to proceed against petitioners in accordance with law, in case if need
so arises in future.
8. With the aforesaid, the present petition is allowed and disposed of.
9. All pending interlocutory applications, if any, are also disposed of.
(ANAND SINGH BAHRAWAT)
JUDGE
Monika
