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Judgment
The petitioner has filed the present writ petition challenging the order dated 30/12/2017 against ex parte enquiry proceedings declaring his appointment illegal.
The petitioner was initially appointed on ad-hoc temporarily basis vide order dated 11/07/1988 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 28/11/1994, 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. After completing more than 30 years of service, 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 has submitted his objection on 23/01/2018. However, no action was taken by the respondent and, therefore, the petitioner has filed the present petition.
Learned counsel for the petitioner argues that, the entire action of the respondents is illegal and arbitrary. He 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 Kumar Tiwari reported in 2016 vol. 2 M.P.L.J. 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 : reported in (1998)8 SCC 194; the judgment passed by this Court in the case of Sunil Thomas Vs. State of M.P. (W.P. No.18906/2018).
The respondent No.1 has filed the reply stating that the action has been taken against the petitioner is in accordance with law and in the light of the judgment passed by this Court in the case of Mansukhlal Saraf vs. Arun Kumar Tiwari (W.P. No.198/1999 dated 6.8.2015). In furtherance of the direction issued by this Court in the case of Mansukhlal Saraf (supra), a State Level Committee was constituted including the Commissioner, Town and Country Planning, Bhopal and Commissioner Urban Administration and Development Department and others to enquire into the matter of appointment and irregularities committed in the services of employees in various Development Authorities. The case of the petitioner was duly considered by the Committee and it was found that the petitioner has been regularized illegally by the Dewas Development Authority and same is bad in law. Subsequently several notices were issued to the petitioner whereas no reply has been filed by the petitioner. Thereafter, another notice was issued on 10.1.1999, which was replied by the petitioner on 2.2.1999. The respondent No.1 has further stated that the petitioner has failed to substantiate and also fails to describe that under which provision of service rules, he has been appointed in the said services. It is further stated that the services of the petitioner were never regularized as per Service Rules. Before amendment of M.P. Special Area Development Authority [Chairman and Officers and Services] Recruitment and Condition of Services Rules, 1976 was applicable and admittedly the petitioner was not recruited under the said Rules. As initial appointment of the petitioner was not in accordance with the Rules. The final order is to the validity of appointment taken by the State Government in the matter of petitioner by duly examining the reply filed by the petitioner and the judgment passed by this Court. In the light of the aforesaid, the learned Government submits that the petition has no force and deserves to be dismissed.
Heard learned counsel for the parties and also perused the record.
In the present case, the petitioner was initially appointed on ad-hoc basis by the respondent No.1 vide order dated 11/07/1988 on the post of Assistant Engineer in Dewas Development Authority. Subsequently, his services were regularized on 26.6.1992 and thereafter, he was promoted on the post of Executive Engineer on 28/11/1994. After completion of 30 years of services, initiated an ex-parte enquiry for revocation of petitioner's appointment behind his back. Further, the Enquiry Committee without serving any show cause notice or even affording any opportunity of hearing to the petitioner concluded its proceeding against the petitioner holding his appointment is illegal. Subsequently, vide order dated 30.12.2017, for the first time, the petitioner was intimated about the adverse decision already taken in the enquiry against him. Thereafter, merely by way of formality, the petitioner was asked to submit his reply. Despite filing objections and reminders for issuing retirement order, the respondents have neither dropped the aforesaid proceeding conducted against the petitioner. Being aggrieved by the said order, the present petition has been filed.
In the present case, the petitioner was initially appointed on ad-hoc basis by the State Government on the post of Assistant Engineer in the Dewas Development Authority on 11/07/1988. His services were subsequently, regularized on 26.6.1992 and he was also promoted by the Departmental Promotion Committee on the post of Executive Engineer. However, the respondent has issued a notice to the petitioner on 30/12/2017 stating that his initial appointment is illegal and therefore, he is not entitled to get retiral dues. The show cause notice was issued to the petitioner stating that his appointment is illegal on the basis of the report submitted by the Screening Committee. In the said notice, it has been stated that, at the relevant time, the Statement Government has no power of appointment. However, the powers of the appointment were vested in the Dewas Development Authority and at the time of regularization, the said power is vested in the State Government and, therefore, the appointment made by the Dewas Development Authority is illegal. The petitioner filed reply to the said show notice stating that, the entire enquiry was conducted against the petitioner behind his back and he was not given any show notice or afforded any opportunity of hearing to him. So far as the appointment of the petitioner is concerned, he was appointed in the year 1987 by the order issued by the State Government. Thereafter, his services were regularized on 26.6.1992 and amendment in the rules has been made thereby giving powers of regularization to the State Government on 1.7.1995. However, the services of the petitioner were duly regularized on 26.6.1992 and at that time the Dewas Development Authority was empowered to regularize the services of the petitioner. The Apex Court in the case Basudeo Tiwary (supra) in para 12 has held as under;
"12. The said provision provides that an appointment could be terminated at any time without notice if the same had been made contrary to the provisions of the Act, statutes, rules or regulations or in any irregular or unauthorized manner. The condition precedent for exercise of this power is that an appointment had been made contrary to Act, Rules, Statutes and Regulations or otherwise. In order to arrive at a conclusion that an appointment is contrary to the provisions of the Act, statutes, rules or regulations etc. a finding has to be recorded and unless such a finding is recorded, the termination cannot be made but to arrive at such a conclusion necessarily an enquiry will have to be made as to whether such appointment was contrary to the provisions of the Act etc. If in a given case such exercise is absent, the condition precedent stands unfulfilled. To arrive at such a finding necessarily enquiry will have to be held and in holding such an enquiry will the person whose appointment is under inquiry will have to be issued to him. If notice is not given to him then it is like playing Hamlet without the Prince of Denmark, that is, if the employee concerned whose rights are affected, is not given notice of such a proceeding and a conclusion is drawn in his absence, such a conclusion would not be just, fair or reasonable as noticed by this Court in D.T.C. Mazdoor Sabha's case. In such an event, we have to hold that in the provision there is an implied requirement of hearing for the purpose of arriving at a conclusion that an appointment had been made contrary to the Act, statute, rule or regulation etc. and it is only on such a conclusion being drawn, the services of the person could be terminated without further notice. That is how Section 35(3) how in this case will have to be read."
Thus, in the light of the aforesaid, the entire enquiry regarding his appointment is illegal as the same is initiated against the petitioner behind his back after completion of 30 years of services is held to be bad in law.
In the light of the aforesaid judgment, the present petition is allowed and the impugned order dated 30/12/2017 is hereby quashed and the entire proceedings taken by the respondents for declaring his appointment as illegal are hereby quashed.
No order as to costs.