--- 1 --- HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE S.B.: HON'BLE MR. S. C. SHARMA, J WRIT PETITION NO. 13855 / 2010 RANJEET S/O RAMNARAYAN Vs. STATE OF MP & TWO OTHERS * * * * * O R D E R ( 15/11/2011) The petitioner before this Court has filed this present writ petition being aggrieved by the Show Cause Notice dt. 18/3/10 issued by the respondents and the subsequent order passed by the respondents dt. 27/12/10 putting an end to the petitioner's services. The contention of the petitioner is that an advertisement was issued by the respondent State inviting applications for various vacancies under the drive to fill up backlog vacancies for Scheduled Caste / Scheduled Tribe and Other Backward Castes and the petitioner was appointed by an order dt. 14/9/98 as Area Assistant. Petitioner has further stated that he has joined the post in --- 2 --- question on 28/9/98, however, while he was serving as an Area Assistant a telephonic message was received by his superior officer and the Director has telephonically informed his immediate superior to discontinue the petitioner from service. Petitioner has further stated that later on the instructions issued bythe State Government to discontinue the services of the petitioner were subjected to judicial scrutiny and the M P State Administrative Tribunal vide order dt. 8/2/99 allowed the writ petition and directed the petitioner as well as all other identically placed persons to join their duties. Petitioner has further stated that the order passed by the M P State Administrative Tribunal directing reinstatement was challenged by the State of Madhya Pradesh by filing the writ petitions and one such writ petition was registered as WP NO. 1145 / 1999 and it was withdrawn on 23/2/2000. Thereafter notices cum termination order dt. 15/3/2000 were issued by the State Government and similar orders were issued to other identically placed persons and therefore the petitioner along with other identically placed persons came up before this --- 3 --- court by filing writ petitions. The petition filed by the petitioner was registered as WP no. 5042 / 2003 and this court while deciding a bunch of writ petitions vide order dt. 18/5/07 has allowed the writ petition directing reinstatement without backwages. Grievance of the petitioner is that the respondents instead of reinstating the petitioner, in order to circumvent the orders passed by this Court in WP NO. 5042 / 2003, has issued a fresh appointment order and thereafter they have issued a Show Cause Notice as contained in Annexure P/1 dt. 18/3/10. Petitioner has further stated that the respondents have finally issued an order of termination putting an end to the petitioner's services. Grievances of the petitioner is that in the earlier round of litigation ie., in WP NO. 5042 / 2003, it was brought to the notice of this court by the respondents / State that large number of irregularities took place in the matter of appointment, persons were appointed without there being sanctioned posts and this court after hearing the parties at length has disposed of the writ petition with a direction to the respondents to issue a fresh Show Cause Notice and to --- 4 --- decide each case on its own merits and to pass necessary orders in accordance with law. Grievance of the petitioner is that the respondents on the basis of the some enquiry report have again mechanically issued a common Show Cause Notice and they have passed the impugned order mechanically without deciding the cases individually. Learned counsel for the petitioner has also pointed out before this court that at the relevant point of time posts were very much in existence and the petitioner was appointed against the sanctioned vacant post and therefore the stand of the respondent in rejecting the contention of the petitioner is bad in law and the impugned order of termination deserves to be set aside. Learned counsel for the petitioner has drawn the attention of this court towards para 10 of the order passed in WA No. 432 / 2007 (State of Madhya Pradesh and two others Vs. Ajmer Singh) and his contention is that the Division Bench in para 10 has categorically held that 87 posts were available in the year 1998 and the persons appointed by the State Government were only 72. His contention is that once the aforesaid observation has been --- 5 --- made based upon the record, the respondents are estopped from saying that the vacancies were not available at the relevant point of time. Petitioner has prayed for quashing of the impugned order of termination as well as the Show Cause Notice issued by the respondents. A reply has been filed in the matter and the stand of the State Government is that certain appointments were made from September 1997 to October 1998 by the then Director Mr. M.S. Murthy and total 74 appointments were made by the then Director against the backlog vacancies for Scheduled Caste / Scheduled Tribe and Other Backward Castes. The respondents have also stated that large number of irregularities were committed by the then Director Mr. M.S. Murthy and therefore an enquiry took place in the matter and the enquiry report reflects that the appointments were made by the then Director Mr. M.S. Murthy in absence of posts. It has also been stated that as directed by this court, a Show Cause Notice was issued to the petitioner as well as to other identically placed persons and a copy of enquiry report was also furnished to the petitioner who submitted a --- 6 --- reply to the Show Cause Notice. The respondents have stated that after taking into account the reply of the Show Cause Notice they have finally passed an order of termination. It is pertinent to note that initially this petition was filed against the Show Cause Notice and the respondents have placed heavy reliance upon a judgment delivered by the apex court in the case of Union of India and another Vs. Kunisetty Satyanarayana reported in (2006) 12 SCC 28 and contention of the respondent / State is that a writ petition against a mere Show Cause Notice is not at all maintainable. However, the fact remains that subsequently the order of termination has also been passed in the present case which is also under challenge. Learned counsel for the respondent State has vehemently argued before this Court that the petitioner is not entitled for any relief of whatsoever kind as the appointment itself of the petitioner was illegal and therefore no case for interference is made out in the matter and the writ petition deserves to be dismissed. Heard learned counsel for the parties at length and perused the record. The matter is being disposed of at the --- 7 --- admission stage itself with the consent of the parties. In the present case, an advertisement was issued on 14/9/98 by the respondents inviting applications under the drive to fill up backlog vacancies reserved for Scheduled Caste / Scheduled Tribe and Other Backward Castes candidates. The petitioner as well as large number of other candidates submitted their applications and appointments were made by the respondents in respect of various posts. An appointment order was issued in respect of the petitioner on 14/9/98 and the petitioner submitted his joining on 28/9/98. The record of the case further reveals that telephonic instructions were given by the then Director Mr. M.S. Murthy for discontinuing the services of the petitioner as well as other identically placed persons on 15/4/99 and the petitioner as well as other identically placed persons preferred Original Applications before the M P State Administrative Tribunal. The Original Applications preferred by the petitioner as well as other identically placed persons were allowed. In O.A.NO. 866 / 98 which was immediately filed apprehending termination and against non --- 8 --- payment of salary, the M P State Administrative Tribunal has granted a liberty to initiate an enquiry and to take action in accordance with law. The M P State Administrative Tribunal in para 9 of the O.A.No. 866 / 1999 has held as under : 9. Since there are allegations of fraud, forgery and irregularities in the making of the appointments of several of the persons who have petitioned the Tribunal in the cases referred to abive it is necessary that the matter is fully and effectively enquired into and action is taken as per the law against the persons who have secured appointments by fraud, forgery or in an irregular manner contrary to the provisions of the rules. Apart from the action that may be taken against the appointees we trust that the Government will also take action against those officers who are found to be instrumental in making such appointments or those we have aided and abetted in the making of such appointments irrespective of the position they hold. Therefore, the respondents shall be at full liberty to complete the enquiry into the matter and take appropriate action as indicated in this paragraph. It is pertinent to note that a 3 member committee was constituted by the State Government and the Committee has later on submitted a report on 8/3/99. The respondents have --- 9 --- thereafter on the basis of enquiry report dt. 8/3/99 issued a fresh order of termination dt. 20/7/99 and again the same was subjected to judicial scrutiny. The order of termination issued in respect of all employees were subject to judicial scrutiny and this court in WP NO. 5042 / 2003 has passed a common order which includes all other connected cases pending before the Gwalior Bench on 18/5/07. Learned Single Judge has set aside the order of termination dt. 20/7/99 and has directed reinstatement of the petitioner without backwages. The order passed by the learned Single Judge in para 24 to 27 reads as under : 24. In all the judgments the Apex Court has laid down the law that if the order of termination of probationer is non – stigmatic then he is having no right to get an opportunity of hearing and principle of natural justice is having no application. The probationer is having no right to hold the post and his service may be terminated at any time as per law. Mere mention of unsatisfactory performance, does not cast stigma against the employee. But, the stigmatic order may be challenged, by seeking protection of Article 311 of the Constitution, or the interference may be made by the Court on the ground of arbitrary exercise of the --- 10 --- powers. There cannot be any doubt to the principle of law laid down by the Hon'ble Supreme Court. 25. From the perusal of the order it is clear that the order of termination was passed against the petitioners is stigmatic and cannot be recorded as a termination simplicitor. The allegations incorporated in the order clearly established that stigma has been casted and it will affect the future prospects of the petitioners. 26. As discussed above, appointments have been made by calling application through advertisement. The petitioners have successfully completed their training, after medical and police verification they were appointed in the year 1998. No document or enquiry report has been filed or produced before the Court to demonstrate that the order of termination is based on valid reason. However, in absence of specific denial of the pleadings and in absence of any material available on record, it cannot be held that the reason for their termination is supported by the material available on record. In absence of such material and in view of the pleadings of the case it is to be held that the respondent No.2 has exercised his power arbitrarily with intent to terminate the petitioners without any adverse material available against them. Thus, in view of the discussions made hereinabove, the action of the respondent No.3 is arbitrary and the order of termination is liable to be quashed. --- 11 --- 27. Accordingly, these petitions succeeds and are hereby allowed. The impugned order dated 20/7/1999 (Annexure A/ 1) and 15/3/1990 (Annexure A/1) are hereby quashed. The respondents are directed to reinstate the petitioners without any backwages. Needful be done within a period of two months from the date of communication of the order. However, the respondents are at liberty to initiate proceedings after supplying the copy of the enquiry report to them and after giving opportunity of hearing to them and each case be decided on its own merits and necessary orders be passed in accordance with law. In the facts and circumstances of the case there is no order as to costs. The aforesaid order makes it very clear that the Writ Petitions were allowed, the termination order was set aside and reinstatement of the petitioners therein was ordered. In the present case, the respondents instead of reinstating the petitioner have issued a fresh appointment order. The order passed by the learned Single Judge was subject to judicial scrutiny and an appeal preferred by the State of Madhya Pradesh before the Division Bench of this Court and the Division Bench has dismissed the appeal preferred by the State of Madhya Pradesh and the order passed by the --- 12 --- Division Bench in para 10 to 17 reads as under : 10. From perusal of the enquiry report, it appears that in the year 1996, 13 posts were available to be filled up from amongst the categories of SC, ST and other backward classes, 34 posts were available in the year 1997 and 34 posts were available in the year 1998. Thus 81 posts were available upto the year 1998, when the persons who were appointed against the said posts are only 72. 11. The main question involved in these appeals is whether or not the notice / order impugned in the writ petition casts any stigma on the writ petitioners. 12. Learned Government Advocate for the appellants State has relied upon the judgments in the cases of State of U.P. Vs. Ram Bachan Tripathi (2005) 6 SCC 496 and, Dhananjay Vs. Chief Executive Officer, Zilla Parishad, Jalna, (2003) 2 SCC 386 wherein the Apex Court has considered the scope and meaning of the word “Stigma” and the Apex Court has laid down that mere description of a background fact cannot be called as stigma. 13. While, in reply to the aforesaid argument, the learned counsel for the respondents writ petitioners relied upon the judgment of the Apex Court in the cases of D.P. Banerjee Vs. S. N. Bose National Centre for Basic Sciences, Calcutta (AIR 1999 SC 983), Radheshyam Gupta Vs. U. P. State Agro Industries Corpn., Ltd., (AIR 1999 SC 609), Bausdev Tiwary --- 13 --- Vs. Sido Kanhu University, (AIR 1998 SC 3261) and a Division Bench decision of this Court in the case of Rahu Tripathi Vs. Rajiv Gandhi Shiksha Mission, Bhopal (2001 (3) MPLJ 616) and number of other judgments. From perusal of these authorities, it is a settled principle of law that if services of an employee are terminated simplicitor by an innocuous order then also the court can go behind the order to find out the real reasons behind the termination. The Court can find out the motive for passing such order of termination by finding out the reasons behind the termination order and what is the real intention behind the same. Whether a particular order casts stigma or not depends upon the facts and circumstances of each case, stigmatic words need not be contained in the order of termination itself. The material recorded in the order of termination order may also contain material which may amount to stigma and would vitiate the order of termination. 14. In the present case, the Tribunal in para 9 of its order dt. 8/2/99 had made observations that number of employees have obtained employment by playing fraud and this position is quoted in the notice / order dt. 15/3/2000 impugned in the writ petitions wherein it is recorded that since there are allegations of fraud and forgery and irregularities in the making of the appointments of several of the persons who have petitioned the --- 14 --- Tribunal in the cases referred to above, it is necessary that the matter is fully and effectively enquired into and action is taken as per the law against the persons who have secured appointments by fraud, forgery or in an irregular manner contrary to the provisions of the rule. 15. Thus, there are allegations of playing fraud against the employees who have secured appointments and that observation quoted in the order / notice impugned in the writ petitions itself casts stigma on the writ petitioners hence the learned writ court has rightly held that by the order of termination stigma is casted upon the writ petitioners and they were not afforded any opportunity to explain the same. Hence, the writ court set aside the order / notice impugned in the writ petitions by granting liberty to the State to conduct enquiry and then proceed against the writ petitioners in accordance with law. 16. We do not find any irregularity or illegality in the order impugned in these writ appeals so as to call interference. Notice / order dt. 15/3/2000 impugned in the writ petitions as Annexure A/1 making allegations that the writ petitioners obtained appointments by playing fraud and forgery definitely cast stigma on the writ petitioners. 17. Hence all the writ appeals being without any merit are dismissed affirming the order passed by the learned Writ Court. --- 15 --- Thus, the order passed by the learned Single Judge was affirmed wherein a liberty was granted to the State Government to initiate proceedings afresh against the petitioner after supplying a copy of the enquiry report to him and after granting an opportunity of hearing. It was also observed that each case has to be decided on its own merits. The respondent State has thereafter issued a Show Cause Notice on 18/3/10 and the petitioner has filed an exhaustive reply which is also on record as Annexure P/8. The impugned order has been passed subsequently putting an end to the petitioner's services dt. 27/12/2010. The impugned order reflects that the respondents have not at all considered the facts and grounds raised by the petitioner in his reply. The impugned order has been passed in a mechanical manner in case of the petitioner. The Show Cause Notice as well as the impugned order reflects that the petitioned was appointed without there being any sanctioned post whereas the Division Bench has observed in para 10 of order dt. 6/8/2008 that 81 posts were available upto 1998 and persons appointed against the said posts were only 72. --- 16 --- All these facts have not been considered at all by the respondent State while passing the impugned order. It appears that a mechanical exercise has been done by the State Government while passing the impugned order. Not only this, this Court has directed the reinstatement of the petitioner vide order dt. 18/5/07 and the respondents have not complied the aforesaid order also, on the contrary, a fresh appointment order was issued appointing the petitioner afresh. Resultantly, as the respondents have not decided the petitioner's case on its own merits and have not considered the reply of the petitioner at all, this court is left with no other choice except to quash the impugned order, Show Cause Notice dt. 18/3/10 and the consequential termination order, as this Court has directed reinstatement of the petitioner, the question of reappointment of the petitioner on the post in question does not arise and therefore the reappointment order dt. 17/2/10, the Show Cause Notice and the termination order are hereby set aside. The respondents are directed to continue the petitioner in service. It is --- 17 --- needless to mention that the respondents shall be free to issue fresh Show Cause Notice pointing out illegality or irregularity in the order of appointment of the petitioner and the petitioner shall be free to submit a reply to the Show Cause Notice. The respondents shall thereafter pass an appropriate order in case of the petitioner on merits in accordance with law. It is needless to mention that the respondents while passing a fresh order shall also take into account the earlier orders passed by this Court on 18/5/07 in WP NO. 5021 / 2003 and other connected cases as well as the order passed by the Division Bench of this Court in WA NO. 432 / 2007. The aforesaid exercise be concluded within a period of 6 months from the date of receipt of certified copy of this order. (S. C. SHARMA) J U D G E KR