HIGH COURT OF MADHYA PRADESH, PRINCIPAL SEAT AT JABALPUR Case No. [CASE NUMBER] [PRECEDENT]. Date of Judgment 24/01/19 Bench Constituted Single Bench. Judgment delivered by Justice [ENTITY] Whether approved for reporting No. Name of counsels for parties For Petitioner : Shri [ENTITY], Advocate. For Respondent 1 : Shri [ENTITY], Panel Lawyer, For Respondent Nos.2 & 3 : Smt. [ENTITY], Senior Advocate with Shri [ENTITY], Advocate. Law laid down - Significant paragraph numbers - ORDER
(24.01.2019) In this petition filed under [SECTION] of the [ACT], petitioner has prayed for following reliefs :-
"7.1 That, it is therefore, prayed that this Hon'ble Court may kindly be pleased to issue an appropriate writ/ order/direction directing the respondents to regularize the petitioner on the post of Steno-cum-Data Entry Operator in M.P. Electricity Regulatory Commission with all consequential benefits. 7.2 That, this Hon'ble Court may please to grant any other relief as deemed just and proper in the facts and circumstances of the case.
7.3 That, this Hon'ble court may kindly be pleased to issue an appropriate writ/ order/ direction directing the respondent No.2 and 3 to allow the petitioner to perform his duties in accordance with the amended rules of 2012."
-:- 2 -:-
[CASE NUMBER] (2) This is not in dispute between the parties that petitioner has completed more than years of service before the date he was discontinued. Last date in his contract of appointment was 24.01.2015 (Annx.P/8) which contains a stipulation that petitioner will continue till 31.3.2015 or till the date a regularly selected incumbent joins (whichever is earlier). Indisputably, the petitioner's services were discontinued w.e.f March, 2015.
(3) Shri [ENTITY], learned counsel for the petitioner submits that respondents are bound by the statutory regulations, namely, [ACT] (hereinafter called as "Regulation") which came into being upon its publication in the official gazette on 31.08.2012. As per clause-6 of this Regulation, it is argued that petitioner had a valuable right to be regularized as a one time measure and respondents have erred in not regularizing the petitioner on flimsy ground that petitioner does not possess the qualification of Hindi/ English stenography with speed of 80 W.P.M from recognized institution. Reliance is placed on Annexure P/21 and P/22 (with the rejoinder) to contend that petitioner possesses the speed of 80 W.P.M which is evident from the certificate issued by the Polytechnic College.
(4) Learned counsel for the petitioner submits that petitioner's case was considered for regularization alongwith the other contractual employees. The proceedings of such Committee are filed alongwith the rejoinder. Heavy reliance is placed on Annexure P/26 which shows consideration of petitioner and one Shri [ENTITY] who were working as Steno-cum-Computer Operator on contractual basis. Shri [ENTITY] urged that petitioner was engaged prior in time qua Shri [ENTITY]. Both of them allegedly do not possess knowledge of Stenography, yet Shri [ENTITY] who was junior to the petitioner was appointed by order dated 03.10.2013 on the post of Steno-cum- Computer operator. The petitioner was subjected to a step-motherly treatment which hits [SECTION] of the [ACT]. Reliance is also placed
-:- 3 -:-
[CASE NUMBER] on Annex.P/15, a note-sheet whereby the competent authority has relaxed the Regulation and decided to regularize certain contractual employees despite not possessing essential qualification/ experience etc. It is urged that one Smt. [ENTITY], P.A who was working in a different department, namely, M.P.A.K.V.N between 1983-1995 was considered for regularization by way of relaxation whereas for the petitioner who has worked for more than a decade satisfactorily in the same department, no relaxation was given. In nutshell, Shri [ENTITY] advanced twin submissions: (i) petitioner does possess the essential qualification of 80 W.P.M. from recognized institution & (ii) petitioner was subjected to discrimination which resulted into deprivation from the right of regularization.
(5) Per contra, learned Senior counsel urged that petitioner has already been discontinued in March, 2015. After discontinuation, petitioner does not have any right whatsoever for regularization. The petitioner does not possess the qualification as prescribed in [SECTION] of the Regulation which makes it clear that petitioner must have "passed" the Hindi/ English Stenography with the speed of 80 W.P.M. The document Annex.P/21 shows that petitioner has merely completed the training and does not show that he has passed the examination. The employer, in order to clarify this aspect, requested the G.A.D of the State Government whether the certificate of petitioner can be treated to be a certificate of passing the Stenography examination with the speed of 80 W.P.M. The G.A.D by letter dated 07.02.2014 (Annx.D/3) filed with [CASE NUMBER] made it clear that the said certificate is merely a certificate showing the training undergone by the petitioner for six months and cannot be treated to be a certificate showing that petitioner has passed the Stenography examination. Thus, learned Senior counsel categorically submitted that the only hurdle in the way of the petitioner at the relevant time was that he did not have minimum essential qualification i.e speed of 80 W.P.M from the recognized institution.
-:- 4 -:-
[CASE NUMBER] (6) Learned senior counsel for the employer further submits that petitioner cannot claim negative equality. In the light of the judgments of Supreme court reported in [PRECEDENT], [[PRECEDENT] [PRECEDENT], [[PRECEDENT]] the petitioner had only a right of consideration for regularization. Due consideration was given to him on three occasions, but on all the occasions the competent committee found that petitioner lacks qualification of 80 W.P.M. in stenography. Thus, no right accrued in the favour of the petitioner.
(7) In rejoinder submissions, Mr. [ENTITY] urged that one Smt. [ENTITY] was appointed by order dated 03.10.2013 on the post of Computer Operator-cum-Stenographer despite the fact that she secured employment on the basis of fake/forged documents. After realizing this fact, the respondent terminated Smt. [ENTITY] and said post is now lying vacant.
(8) No other point is pressed by the learned counsel for the parties.
(9) I have heard the parties at length and perused the record.
(10) Before dealing with the rival contentions advanced at bar, it is apposite to refer Clause 6 of the Regulation which reads as under:
"6. Method of Recruitment-
(1) Recruitment to the service, after the commencement of these regulations, shall be made by any of the following methods, namely:-
(a) By direct recruitment through selection.
(b) By promotion of employees as specified in column (2) of Schedule- IV
(c) By deputation of persons, who hold a substantive or officiating capacity in such posts, and in such service as specified in this behalf by the Chairperson.
(d) One Time Special Provision- The employees, appointed by Commission on contract and who are in service of the Commission as on the date of notification of these regulations, shall be deemed as employees of
-:- 5 -:-
[CASE NUMBER] the Commission and their services shall be regularized at the post, on which they were working prior to notification of these Regulations, by appropriately fixing them in pay band and grade pay as specified in Schedule-I subject to fulfillment of following conditions stipulated in paragraph 5.1 of GAD circular no.F5-3/2006/1/3 dated 16.5.2007:
(1) Person is in service on contract for more than 10 years with continuity in service but this shall nor include persons working as per the orders of Court/Tribunal.
(2) Person is appointed against sanctioned vacant post. (3) Person qualifies for the post as per these Regulations. (4) Person fulfilled age criterion at the time of appointment. (5) Person was appointed by the competent authority. (6) Person belongs to the category (SC/ST/OBC/UR) against which he/she is appointed on the vacant post.
(7) Person is not serving on the basis of Court Orders.
Provided that after regularization of an employee on a post the Chairperson may permit appointment of an employee on a higher post in the channel by considering the length of contract service as experience of the employee on the post as shown in Sr. No.4 of Schedule-IV."
(11) In addition, it is relevant to mention to Clause 6(3) which prescribes method of regularization, which reads as under:
"(3) Method of Regularization-
(i) A Committee consisting of members as shown in Column (7) of [SECTION] shall be constituted by the Chairperson of the Commission.
(ii) The Committee so constituted under [SECTION] shall consider all cases of regularization of employees whose services were previously obtain by the Commission on contract before notification of these regulations.
(iii) The criteria of regularization shall be based on seniority as defined in paragraph 5.9 and 5.10 of GAD circular No.F5-3/2006/1/3 dated 16.05.2007.
(iv) The Committee shall prepare a list of such contract employee who satisfy the conditions as specified in [SECTION] and held by the Committee suitable for regularization to the post. The list so prepared by the Committee shall be submitted to Appointing Authority and Appointing Authority shall obtain necessary approval of the Chairperson on the list.
(v) The Committee shall also prepare a separate list for contact employees those who do not satisfy the conditions for regularization in ordinary course of regularization. The Committee shall specifically mention the reasons in writing for each employee for non-regularization and submit the list to the Appointing Authority.
(vi) The list so prepared by the Committee under [SECTION] for those employees who do not fulfill the criteria of regularization in normal course of regularization shall be examined carefully by the Appointing Authority and after submission of his recommendation for individual employee for relaxation put up the list to the Chairperson for necessary relaxation. The Chairperson at its discretion shall take decision in each case and approve the list.
(vii) The list so prepared by the Committee under [SECTION] as got approved by the Chairperson shall be the
-:- 6 -:-
[CASE NUMBER] list for regularization. The Appointing Authority while maintaining the seniority of the candidates shall issue concerning orders of regularization immediately.
(vii) Those employees, whose services cannot be regularized in terms of [SECTION], will continue their service on contract basis at the discretion of the Chairperson."
(Emphasis supplied) (12) A conjoint reading of Clause 6 & Clause 6(3) shows that the respondents as a one time measure decided to regularize the contractual employees of the department. The essential requirements for consideration are mentioned below the Sub-clause (d) of Clause 6 of the Regulation. As per method of regularization, it is clear that a preferential right is created for a person who is senior. This is evident from a bare reading of Clause 6(3)
(iii) and (vii). The relevant note sheet showing consideration of petitioner and Shri [ENTITY] is filed as Annexure-P/26 (at page 14), the relevant portion reads as under:
laoxZ osrueku DeZpk oxZ orZek Tuefrf vk;ksx esa vk;ksx laoxZ fnukad DeZpkjh u;s HkrhZ fofu;e 2012 ds esa jh u Fk fu;qfDr esa esa 31-08- dh HkrhZ vuqlkj vgrkZ nk;h Lohd dk /kfjr dh fu;qfDr fu;qfD vgrkZ fofu;e ;skX;rk gS vFkok ugha r in uke in frfFk@/kkf ds r dh 2012 jr in le; frfFk ds vk;q vuqlkj o"kksZ esa vgrkZ 5 Jh lh- LkkekU & 10-07- 02-08- 22 o"kZ 09-05- 13 o"kZ 10 o"kZ dh vf/kd dh ih- ; & 1977 1999 2006 yksd lsok iw.kZ djrk gS frokjh HkR; f'k{kk deZpkjh dz-1 o 3 dh lapuy; iwrhZ djrkgS"'kh?kzys[ku ls fgUnh dk Kku ugha budh eqnzys[ku fu;qfDr HkrhZ fofu;e mRrh.kZ 2001 ds vuqlkj lgk;d ch-,l- xzsM&3 ds in ij dh xbZ lh- Fkh orZeku esa lgk;d xzsM&3 d dksbZ in n Lohd r ugha gS fdUrq LVsuksa de dEI;wVj vkijsVj rFkk lgk;d xzsM&3 ds leku dsMj ds in gSAa vr% bUgsa lgk;d xzsM&3 ds in ij fu;fer fd;k tk ldrk gS rFkk LVsuks de dEI;wVj vkijsVj dk in kklu dks lefiZr fd;k tk ldrk gS A 6 Jh LkkekU LVs 12-08- 09-09- 26 o"kZ 09-09- 9 o"kZ yksd HkrhZ fofu;e 2012 fn-
vkj-ih- ; uks 1976 2002 2002 11ekg f'k{kk 31-08-12 dks vf/klwfpr
-:- 7 -:-
[CASE NUMBER] flUgk d 22 lapuy; fd;s x;s gSa tcfd bUgsa e fnu ls fgUnh 10 o"kZ dh lsok fn-
dE ,oa 08-09-12 dks iw.kZ gksrs I;w vxzsth gS deZpkjh dz- 1o 3 dh Vj eqnzys[ku iwfrZ djrk gS A 'kh? vk mRrh.kZ kzys[ku dk Kku ugha ijs ch- dke budh fu;qfDr HkrhZ Vj fofu;e 2001 ds vuqlkj lgk;d xzsM&3 ds in ij dh xbZ Fkh] orZeku esa lgk;d xzsM&3 dk dksbZ in Lohd`~r ugha gS fdUrq LVsuks de dEI;wVj vkijsVj rFkk lgk;d xzsM&3 leku dsMj ds in gSAa vr% bUgsa lgk;d xzsM&3 ds in ij fu;fer fd;k tk ldrk gS rFkk LVsuks de dEI;wVj vkijsVj dk in kklu dks lefiZr fd;k tk ldrk gS A (Emphasis supplied)
(13) A plain reading of this comparative chart shows that the petitioner was appointed on 02.08.1999, whereas Shri [ENTITY] was appointed on 09.09.2002. In the relevant column which deals with the aspect whether the candidate possess the essential qualification and experience or not, it is mentioned that petitioner although has completed 10 years of service, he does not have knowledge of Stenography. Similar findings are given in relation to one Shri [ENTITY]. This employee also did not have the knowledge of stenography. Despite having same deficiency, the petitioner was not appointed and Shri [ENTITY] was appointed by order dated 03.10.2013 on the post of Computer Operator-cum-Stenographer.
Pertinently, in aforesaid chart, it was mentioned that at present no post of Assistant Grade-III is lying vacant, but Steno-cum-Computer Operator is an equivalent post on which petitioner or Shri [ENTITY] can be regularized. Interestingly, Shri [ENTITY] was regularized on the post of Computer Operator- cum-Stenographer.
(14) In para-7 of rejoinder, the petitioner made following categorical pleadings :-
-:- 8 -:- [CASE NUMBER]
"That, the respondents in their reply has stated that the petitioner has not served the Commission continuously for 10 years on one post, in response thereof the petitioner most humbly submits that several persons who have been regularized in the Commission were appointed on different post and had served on different post have been treated serving the Commission continuously for more than 10 years and have been regularized. In some matters despite non-availability of the posts the persons have been regularized on the post reserved for the direct recruitment, some persons who have not completed 10 years of services as on 2012 (i.e., date of notification) have been regularized in complete violation of the terms of notification, in some cases the persons who were not possessing the qualification they have also been regularized by relaxing the conditions. The petitioner hereunder giving complete chart well supported by the documents mentioning the fact as to who pick-n-chose method has been adopted by the Commission while regularizing various persons on the post reserved for direct recruitment as well as the persons not qualified for the post as also the persons who have not completed the tenure of 10 years."
S. Name Post Period Terms of Lacking Post of Annexure No. worked Service as Qualification Regularizat for on ion on 1 Smt. Stenotypist 11.06.03 09 years, 1. Computer Computer P/25 Divya to 02 months diploma not operator- [ENTITY] 02.10.13 & 20 days from cum-steno DOEACC 2. 10 years service not completed as on 31.08.2012 2 [ENTITY] Assistant Grade-III 09.09.02 09 years 1. 10 years Computer P/26 Prasad to 11 months service not operator- [ENTITY] 06.11.07 completed as cum-steno Steno-Cum-Computer 07.11.07 on Operator to 31.08.2012 02.10.13 2. No shorthand knowledge 3 Smt. Assistant Grade-III11.07.02 10 years 1. Computer Computer P/27 [ENTITY] to 01 month diploma not operator- [ENTITY] 06.11.07 from cum-steno Steno-Cum-Computer 07.11.07 DOEACC Operator to 2. No 02.10.13 shorthand -:- 9 -:- [CASE NUMBER] knowledge 4 [ENTITY] Assistant Grade-III 05.10.00 10 years 1. No Computer P/28 [ENTITY] to 01 months [ENTITY] operator- 06.11.07 Knowledge cum-steno Steno-Cum-Computer 07.11.07 Operator to 02.10.13 5 Krishna Assistant Grade-III 09.07.02 10 years 1. Computer Computer P/29 Soni to 01 months diploma not operator- 30.10.05 from cum-steno Stenotypist 31.10.05 DOEACC to 18.11.12 6 Smt. Arti Assistant Grade-III 12.07.02 10 years 1. No Receptionis P/30 [ENTITY] to 01 months [ENTITY] t 06.11.07 Knowledge Steno-Cum-Computer 07.11.07 Operator to 02.10.13 7 Shri [ENTITY] Assistant Grade-III 08.07.02 10 years Nil Despatch P/31 Kujur to 01 months Clerk 29.04.08 Despatch Clerk 30.04.08 to 18.11.12 8 Shri Assistant Grade-III 12.07.02 10 years Nil Care Taker P/32 Rajendra to 01 months Sahu 15.08.05 Assistant Grade-II 16.08.05 to 06.11.07 Care Taker 07.11.07 to 18.11.12 9 Shri Assistant Grade-III 02.08.99 13 years Nil Personal P/33 Bharatlal to Assistant Gupta 30.09.03 Personal Assistant 01.10.03 to 18.11.12 10 Naseem Driver 08.10.04 07 years 10 years Driver P/34 Ahmad to 10 months service not 08.10.11 completed as on 31.08.12 -:- 10 -:- [CASE NUMBER]
(15) The reply to this para is cryptic and evasive in nature. The contents are denied on the ground that petitioner has to make out an independent case. It is further averred that information given by the petitioner is denied and does not tally if compared with certain columns. The chart mentioned in para-7 aforesaid shows that petitioner has given details with accuracy and precession. The respondents have given a bald reply to it and have not disclosed as to how there exists any discrepancy/ contradictions within the entries mentioned in the column. In this view of the matter, the reply to para-7 does not inspire confidence. This is trite law that if specific pleadings of petition are not denied by other side in clear terms with details, it can be treated to be an admission. {See : [PRECEDENT].
In addition, in the considered opinion of this court, the petitioner has given details of alleged favoritism/ relaxation given to other contractual employees by providing necessary particulars. The respondents were custodian of records. Hence they were duty bound to meet each of such grounds by furnishing necessary information in defense. In absence thereto, the bald denial will not cut any ice.
(16) The petitioner has successfully established that power of relaxation is exercised in favour of various contractual employees who were not having requisite qualification or experience etc. The respondents have contended that if any wrong benefit has been granted to other contractual employees, it cannot be a ground to claim similar benefit because `negative equality' cannot be claimed.
(17). In my view, the said contention is devoid of any substance. The Clause 6 of the Regulation provides method of regularization with an intention to regularize the contractual employees as a onetime measure. The power to relax the rule is an aid to fulfill the said intention to regularize the contractual employees in one go. The petitioner is not claiming any benefit dehors the rule nor it can be said that benefit of relaxation in the matter of qualification/experience granted to other persons is dehors the regulations.
-:- 11 -:-
[CASE NUMBER] This is a case where the Competent Authority is equipped with the power to relax the regulations and had exercised such power of relaxation selectively in favour of other persons whereas the petitioner was given a step motherly treatment. Thus, the said argument deserves simple rejection.
As analyzed above, under the power to relax, the discrimination or nepotism cannot be permitted to raise its ugly head. In other words, the authorities cannot adopt the principles of "pick and chose" and grant benefit of regularization to certain persons and put others to comparative disadvantageous position for no justifiable reasons.
(18) The Regulation provides the power of relaxation for regularization.
The intention of Regulation makers is to provide one time regularization and, for this purpose, the competent authority was empowered to exercise the power of relaxation. This is trite law that the authority can exercise power of relaxation in any or all those cases in which hardship is caused in implementation of the rules where injustice has been caused to either individual employee or class of employees. This power cannot be exercised capriciously or arbitrarily to give undue advantage or favour to an individual employee. {See:[PRECEDENT]).
(19). In [PRECEDENT] it was held that if relaxation is permitted in favour of the promotees then the same yardstick must be applied for direct recruits. In the present case, as noticed, the power of relaxation is exercised even in favour of erstwhile employees of different departments whereas it is denied in favour of petitioner for the reasons best known to the competent authority. I say so because the respondents have not chosen to file the relevant documents which may show the nature of consideration for the purpose of grant of relaxation to the petitioner. If such a relaxation is exercised in favour of erstwhile employees of different departments, I do not see any reason why it should not be extended in favour of the petitioner in the light of judgment of Supreme court in [ENTITY] (supra).
-:- 12 -:-
[CASE NUMBER] (20). Similarly in [PRECEDENT] it was held that while exercising power of relaxation, the authority must act judiciously keeping in mind the purport and object thereof. The consideration thereof, although may not partake a mathematical exactable but should always be fair and reasonable. It is poignantly held that if any person has been shown any undue favour, this by itself may not be a ground to favour another but when such a contention is raised, the State should be able to demonstrate a fair treatment. At the cost of repetition, in my view, as per the scheme and object of the Regulation, the intention was to give one time opportunity of regularization and, for this purpose, power of relaxation was embodied in the Regulation in order to regularize similarly situated contractual employees by giving them relaxation.
(21). In catena of judgments thereafter, the Apex Court reiterated the principle that power of relaxation cannot be exercised in arbitrary, cavalier or capricious manner. {See : [PRECEDENT] [PRECEDENT] [PRECEDENT].
(22). In view of aforesaid analysis, the action of respondents in not exercising power of relaxation in favour of petitioner cannot be countenanced. Moreso, when it was exercised in favour of Shri [ENTITY] who was lacking similar qualification/ eligibility and was junior to him. In addition, the petitioner has specifically pleaded in reply to [CASE NUMBER] that one Smt. [ENTITY] was regularized as computer operator-cum-
steno whereas she did not have requisite qualification. She had not completed ten years of service. Her case was also sent for clarification to G.A.D but before opinion of G.A.D could be received, in a hot haste, she was regularized. In support of this contention, reliance is placed on communication dated 23.08.2013, 08.10.2013 and 03.10.2013. In continuance of this contention, reliance is placed on document dated
-:- 13 -:-
[CASE NUMBER] 09.11.2015 and 22.05.2017. It is urged that Smt. [ENTITY] was not possessing qualification yet she was regularized. The certificate of CBSE was recognized on 09.11.2015 only. But she was given benefit of regularization. These are, in my view, relevant aspects which needs consideration and in no case petitioner can be deprived from the fruit of relaxation if he is similarly situated qua Shri [ENTITY] and Smt. [ENTITY]. It must be remembered that what is forbidden by the [ACT], is discrimination between the persons who are substantially in similar circumstances or conditions.
(23). This court will be failing in its duty if contention of Mrs. [ENTITY], learned Senior Advocate is not considered wherein it is urged that as petitioner stood discontinued on completion of contractual period, right of regularization is not available to him. Reverting back to Regulation, it is clear from bare reading of clause-6(d) (reproduced in para-10 of this order) that contractual employees were treated to be deemed employees of the Commission and their cases were required to be considered for regularization. "Consideration" means meaningful, transparent and fair consideration and not a consideration for name sake. Right of consideration of petitioner in the present case was taken away in an arbitrary manner. Merely because he was discontinued thereafter, it will not take away his right of consideration from due date in a just, reasonable, equitable and proper manner. Thus, this argument of learned Senior counsel, must fail.
(24). In view of forgoing analysis, I deem it proper to allow this petition and issue following directions :-
(1) The respondent shall consider the claim of petitioner for regularization by treating him as similarly situated qua Shri [ENTITY] and Smt. [ENTITY] and pass appropriate order in this regard. If the petitioner is found fit for regularization, he shall be regularized/appointed from the date said Shri [ENTITY] was appointed on notional basis. In that case, he shall get the benefit of notional seniority and notional fixation and pay
-:- 14 -:-
[CASE NUMBER] from the said date which will give him right to draw the same pay, which his contemporaries or juniors are drawing today. (2) For the purpose of considering the claim of petitioner for regularization, the respondent shall take into account GAD Circular dated 01-07-2013 and their own advertisement filed by the petitioner in reply to [CASE NUMBER]. In addition, the respondents shall take into account the fact that the petitioner has worked for more than ten years with the respondents and acquired long experience and knowledge of working. It is noteworthy that in the relevant claim of Annexure P/26, no finding is recorded that the petitioner's performance was not satisfactory. (3). It is made clear that it shall not be open to the respondents to contend that post of Computer operator/ stenographer was not available on account of the fact that Shri [ENTITY], a junior employee has already been regularized. One employee holding the said post has been terminated and it is not shown that the post was thereafter filled-up. (4). At the cost of repetition, it is directed that respondents shall consider the case of petitioner on the touch-stone of principle of parity which is flowing from [SECTION] of the [ACT]. (5). The entire action of consideration and issuance of appropriate order shall be completed within thirty days from the date of production of copy of this order.
(25) Petition is allowed to the extent indicated above.
([ENTITY]) Judge MKL/s@if [CASE NUMBER]