SUNIL THOMAS Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) The petitioner has filed the present writ petition challenging the order dated 22.6.2018 as well as for directing the respondents to release all the retiral benefits.

(2.) The petitioner was initially appointed on ad-hoc temporarily basis vide order dated 12.8.1987 on the post of Assistant Engineer in the Dewas Development Authority on the vacant sanctioned post. After completion of requisite years of services, the Dewas Development Authority passed a Resolution on 26.6.1992 in the light of the existing regularization policy and norms, took policy decision to regularize the services of the petitioner along with few other similarly situated employees, who were working against the vacant sanctioned posts. Thereafter, on 15.7.1994, the petitioner was duly promoted by the Dewas Development Authority on the post of Executive Engineer, as per the decision taken by the concerned Departmental Promotion Committee. On 16.7.1991, an amendment was introduced in Section 47 of the M.P. Nagar Tatha Nivesh Adhiniyam [herein after referred as Adhiniyam], classifying two different cadres for the Development Authority Services, i.e. State cadre and local cadre. The State Government has given power to make appointment on State cadre, but, the Development Authority Services showing and specifying the posts which fall under local cadre and State cadre were not constituted thus, the said provision alongwith the complementary rules namely Development Authority Services Rules, 1988 were virtually kept as suspended. Subsequently, the State Government has constituted the M.P. Development Authority Serviuwes w.e.f. 01.7.1995, in which the State Cadre and local cadre have been specified. That, with effect from 1.7.1995 the Development Authority has given power to govern and control the services of the local cadre. The State Government thereafter, has raised an objection regarding validity of the promotion granted by the Dewas Development Authority to the employees of the Authority including the petitioner, who were alleged to be in State cadre. The State Government has cancelled the promotion granted to the petitioner on the post of Executive Engineer on 16.11.1995. The petitioner has filed a Writ Petition No.1538/1995. During the pendency of the said writ petition, the State Government has taken cognizance of the fact that the State Cadre was constituted subsequently on 1.7.1995 and before that, the Dewas Development Authority was competent to promote the employees of Development Authority, and that agreed to continue promotion of the petitioner and other similarly situated employees from the same date on which they were promoted by the Dewas Development Authority. In the light of the order passed by the State Government, the said writ petition was withdrawn. After constitution of Development Authorities Services, for the first time on 17.4.1998, a seniority/gradation list of State Cadre Executive Engineers/Assistant Engineers employed in Development Authority was prepared. On 8.9.2003, the services of the petitioner were transferred to Indore Development Authority and he was given the charge of Chief Engineer in Indore Development Authority. After completing more than 30 years of service, the petitioner decided to take voluntary retirement on account of family reasons and health issues. The petitioner has also deposited one month's salary. As the petitioner has submitted an application for voluntary retirement, he deemed to have voluntary retired w.e.f. 13.9.2017 in terms of Rule 42 of the Civil Services Pension Rules. However, instead of issuing retirement order and releasing post retiral dues of the petitioner, an enquiry after completing more than 30 years of services was initiated behind the back of the petitioner for deciding whether the appointment of the petitioner was illegal or not. The said enquiry was concluded without issuing any show cause notice or affording any opportunity of hearing. The respondent vide letter dated 30.12.2017 for the first time was informed the petitioner that the enquiry committee has been finally concluded against the petitioner and his appointment as well as order of regularization are held to be illegal and he was asked to file reply within 15 days vide letter dated 30.12.2017. The petitioner in response to the aforesaid letter took preliminary objection against the entire ex-parte proceeding concluded against him and prayed for quashment of the same for being grossly against the principles of natural justice. The petitioner was under bonafide belief that the respondents are processing payment of his post reitral dues after dropping aforesaid proceeding in view of his representation dated 23.1.2018. However, when his dues still remained unpaid, the petitioner again sent a reminder dated 12.6.2018 to the respondents for clearing his long due post retiral payments. The respondent No.2 vide letter dated 22.6.2018 has informed the petitioner that, his application for retirement shall be taken by the State Government after conclusion of proceeding initiated for revocation of his appointment. The petitioner has submitted his objection on 3.8.2018. However, no action was taken by the respondent and, therefore, the petitioner has filed the present petition.

(3.) Learned counsel for the petitioner argues that, the entire action of the respondents is illegal and arbitrary. The petitioner has already submitted an application for voluntary retirement along with one month's salary and therefore, it is deemed to be accepted, as per provisions of Rule 42 of the Pension Rules. He further submits that an ex-parte enquiry was held by the respondents behind the back of the petitioner regarding his appointment and a show cause notice was issued to him stating that his appointment is illegal. However, the petitioner was not given any opportunity of hearing before issuing the said notice and the entire enquiry was held behind the back of the petitioner. He further submits that the appointment of the petitioner is not illegal in the light of the judgment passed in the case of Mansukhlal Saraf vs. Arun KumarTiwari, 2016 2 MPLJ. He further submits that, the facts of Mansukhlal Saraf are distinguished from the facts of the present case. The appointment of Arun Kumar Tiwari in the said case was an outcome of the political recommendation there was a settled law against the order of this Court in the earlier litigation. However, in the present case, the petitioner was initially appointed on ad-hoc basis by the State Government and he was subsequently regularized. He further submits that at the relevant time, Dewas Development Authority was empowered to regularize the services of the petitioner because Dewas Development Authority was empowered to fill all the posts in authority till 1.7.1995 and his services were regularized. That, after completion of the period of 30 years of services, the respondent has issued show cause notice to the petitioner on the ground that his initial appointment is illegal. He further submits that, the initial appointment carried a clause for undergoing selection process as and when will be taken by the Dewas Development Authority. However, it is not the case of the respondent No.1 where the petitioner has neglected to undertake the selection process held by the Dewas Development Authority or respondent, rather he was always ready and willing to take selection process and no selection process was conducted by the Dewas Development Authority. Learned counsel for the petitioner relied on the judgment passed by the Apex Court in the case of Basudeo Tiwary vs. Sido Kanhu University and others , 1998 8 SCC 194; the judgment passed by this Court in the case of Ramchandra Chouthe vs. State of M.P. and others,1983 MPLJ 749 and Indra Prakash vs. State of M.P. , 1985 MPLJ 229.