Durgaprasad & Ors. vs The State Of Madhya Pradesh & Ors.

These are a bunch of writ petitions filed by the petitioners under Article 226 of the Constitution of India challenging the common order/letter dated 02/03/2019 and 19/03/2019 issued by respondent directing that the services of persons appointed on contractual basis as Technical Assistants under the Mahatma Gandhi National Rural Employment Guarantee Scheme (hereinafter referred to as “MNREGS/MNREGA”) shall not be continued after 28/02/2019, pursuant to which consequential steps have been taken by the authorities for discontinuance of the petitioners from service.

Since the facts involved in all these writ petitions are similar and the questions of law raised are identical, they were heard together and are being decided analogously by this common order. As the facts involved in all the writ petitions are identical, the pleadings and annexures filed in W.P. No. 5807/2019 are treated as the lead case and are taken into consideration for adjudication of the entire bunch of writ petitions.

The facts of the case, briefly stated, are that under the Mahatma Gandhi National Rural Employment Guarantee Scheme, Madhya Pradesh a process was initiated for appointment of Technical Assistants on contractual basis by issuance of notification inviting applications thereafter vide letter No. 2504 dated 10/05/2010, the Directorate of Training, Madhya Pradesh, directed the concerned authorities, including the Principal, Industrial Training Institute, Khilchipur, to make appointments to the post of Technical Assistant on contractual basis under MNREGS. Pursuant thereto, applications were invited in the prescribed format, interviews were conducted, and eligible candidates were selected and appointed as Technical Assistants on contractual basis by order dated 24/06/2010.

Prior to issuance of the appointment orders, correspondence was made by the competent authority, which is placed on record as Annexure P/5. During the course of their engagement, the petitioners were assigned various duties, including election-related duties, under different orders. The petitioners continued to work as Technical Assistants under MNREGS pursuant to extensions granted from time to time. On 02/03/2019 and 19/03/2019, respondent authority issued a letter/order directing that persons working on contractual basis under MNREGS shall not be continued after 28/02/2019. In compliance of the aforesaid order, the subordinate authorities initiated proceedings to discontinue the services of the petitioners. Aggrieved by the issuance of the order dated 02/03/2019 and 19/03/2019 and the consequential action taken thereunder, the petitioners have approached this Court by filing the present batch of writ petitions.

Learned counsel for the petitioners submitted that the impugned orders dated 02/03/2019 and 19/03/2019 are illegal, arbitrary, and contrary to the settled principles of law, and infringes the constitutional rights of the petitioners. It is contended that the petitioners were appointed to the post of Technical Assistant after following due procedure, including issuance of notification, interview, and selection, and have continuously rendered services under MNREGS since the year 2010. It is further contended that the petitioners were appointed on sanctioned posts and their services were extended from time to time, reflecting satisfaction of the respondents with their performance. According to the petitioners, as per the governing terms and conditions, termination of contractual appointment can be effected only in accordance with prescribed procedure, including notice, whereas the impugned action has been taken abruptly and without due process.

It is submitted that the petitioners have rendered long years of service and their discontinuance without assigning any reason or fault is arbitrary and violative of Articles 14 and 16 of the Constitution of India. The petitioners further contended that the posts of Technical Assistant are sanctioned under MNREGS, as evident from the operational guidelines of MNREGS, 2013, the job chart issued by circular dated 28/01/2011, and the letter dated 10/05/2010. It is also contended that the order dated 18/02/2019, which forms the background of the impugned action, was expressly made inapplicable to MNREGS by the subsequent order dated 02/03/2019, and therefore, the petitioners could not have been discontinued on that basis. In the rejoinder, the petitioners contended that the terms of appointment, particularly Clause 5 and Clause 6 of Annexure P/5, contemplate renewal of service on satisfaction of work and necessity, and the petitioners’ continued engagement over the years demonstrates such satisfaction. The petitioners further submitted that despite interim protection granted by this Court, issues relating to non-payment of salary have arisen, which have been brought on record through rejoinder and subsequent pleadings. On the aforesaid grounds, the petitioners seek quashment of the impugned order dated 02/03/2019, 19/03/2019 and consequential directions restraining the respondents from discontinuing them from the post of Technical Assistant.

Per contra, learned counsel for the respondents opposed the batch of writ petitions and submitted that the petitioners were appointed purely on contractual basis for a fixed period of one year, and such appointments were extended from time to time strictly as per administrative requirement. It is contended that as per Clause 25 of the appointment order (Annexure P/5), any dispute relating to the appointment is subject to the decision of the Madhya Pradesh State Employment Guarantee Board, and therefore, an alternative remedy is available. The respondents submitted that pursuant to the impugned orders dated 02/03/2019 and 19/03/2019, orders discontinuing the services of the petitioners were issued by the competent authority. It is further contended that the order dated 02/03/2019 directed that after 28/02/2019, contractual appointments under MNREGS should not be continued and no payments should be made, unless specific permission is obtained from the competent authority. According to the respondents, the posts held by the petitioners were contractual and temporary in nature and have subsequently been abolished, and therefore, the petitioners do not possess any right to continue in service.

The respondents placed reliance upon the judgment of the Hon’ble Supreme Court in State of Karnataka vs. Umadevi and others, reported in (2006) 4 SCC 1, to contend that contractual employees do not acquire any right to continue or to seek regularization. Reliance has also been placed on the decision of this Court in Hariom and others vs. State and others, WP No. 11482/2020 (S), wherein it has been held that long continuation on contractual basis does not confer a legal right to continue. It is contended that the discontinuance of the petitioners is termination simpliciter, not stigmatic in nature, and therefore, principles of natural justice are not attracted. The respondents further submitted that the petitioners were allowed to continue pursuant to interim orders passed by this Court and that salary has been paid for the period during which work was actually discharged. It is also contended that the issue regarding payment of salary was subject matter of Contempt Petition No. 195/2023, which was dismissed by order dated 22/04/2024. On the aforesaid grounds, the respondents prayed for dismissal of the bunch of writ petitions.

Heard both parties at length and examined the entire record available.

This Court, upon careful examination of the record, first proceeds to examine the impugned orders dated 02/03/2019 and 19/03/2019. The relevant portion whereof reads as under:-

From a plain and meaningful reading of the impugned order, the following position clearly emerges:-

Thus, the expression “no such employees shall be engaged or paid under the scheme” used in clause (c) cannot be read in isolation. The words “no such employees” are clearly referable to the category of employees described in clauses (a) and (b), namely:-

Therefore, the prohibition contained in clause (c) is not a blanket prohibition against all employees working under the Mahatma Gandhi NREGA Scheme. It is confined only to those employees who were appointed either on non-sanctioned posts or without approval of the State Government. This Court is of the considered view that the impugned order was intended only to regulate and discontinue the engagement of unauthorised daily wage/contract employees, who were engaged at the District or Panchayat level without State approval, or against posts which were not sanctioned under the Scheme. Consequently, the said order does not apply to employees who were appointed against sanctioned posts created and approved by the State Government in accordance with prescribed procedure.

The next question which arises for consideration is whether the petitioners were appointed against posts which were sanctioned or approved by the State Government. If the answer to the said question is in the affirmative, the impugned orders would not operate against the petitioners. Upon careful perusal of the circular dated 10/05/2010 issued by the Directorate of Training, State of Madhya Pradesh (Annexure P/2), it is evident that the said circular specifically records creation of a post of Technical Assistant on contractual basis under the Mahatma Gandhi National Rural Employment Guarantee Scheme. The relevant portion reads as under:-

The aforesaid circular clearly establishes that the post of Technical Assistant was created by the State Government itself under MNREGA and eligibility conditions were also prescribed therein. It is further borne out from the record that ten posts each were created in eleven districts, including the district to which the petitioners belong, and prescribed reservation was applied in the district of Rajgarh where ten posts were created (UR-6, SC-2, OBC-2). Pursuant thereto, applications were invited (Annexure P/3), and after due selection process, the petitioners were appointed to the said posts. Thus the records unequivocally establish that: -

In view of the aforesaid factual position, this Court has no hesitation in holding that the posts of Technical Assistant held by the petitioners were sanctioned and State-approved posts, and therefore, the impugned orders dated 02.03.2019 and 19.03.2019 do not apply to the petitioners.

Further, upon careful examination of Annexure P/11 and Annexure P/12, it is apparent that the duties and responsibilities of the Technical Assistant are specifically recognized under the Mahatma Gandhi National Rural Employment Guarantee Act, 2005 as well as by the State of Madhya Pradesh, clearly indicating that the post of Technical Assistant is a core and essential post for smooth functioning of MNREGA.

This Court also finds substance in the submission of the petitioners based on the Circular dated 05/06/2018 issued by the State of Madhya Pradesh, the subject whereof reads as “संविदा पर नियुक्त अधिकारियों/कर्मचारियों को नियमित पदों पर नियुक्ति के अवसर प्रदान किए जाने हेतु नीति-निर्देश”. The said Circular provides, inter alia:-

In view of the aforesaid policy, this Court finds that although the petitioners are contractual employees, the State itself has conferred upon them service conditions and protections akin to those of regular employees. Their engagement is not casual or ad hoc in nature, but regulated by a comprehensive policy framework providing parity in remuneration and protection against arbitrary termination. Thus, it is clear that the petitioners, despite being contractual employees, are entitled to the benefits flowing from the circular dated 05/06/2018, including structured remuneration comparable to regular posts and protection from termination except in accordance with due process. The impugned action, which abruptly affects their service without adherence to the said policy, is therefore contrary to the binding executive instructions of the State.

Moreover, the requirement of compliance with principles of natural justice, as embedded in clause 1.14.1 of the policy, has admittedly not been followed in the present case. No show-cause notice, no opportunity of hearing, and no enquiry preceded the impugned action, rendering it procedurally unsustainable.

The aforesaid position stands fortified by the decision of this Court in Malkhan Singh Malviya Vs. State of M.P., W.A. No. 1166/2017, decided on 08.03.2018 (Bench at Gwalior), wherein it has been held that even an employee not borne on the regular establishment is entitled to a reasonable opportunity of hearing before passing a stigmatic order of termination. The Division Bench observed as under:-

A reference may be also made to the recent judgment of the Hon’ble Supreme Court in Swati Priyadarshni v. State of Madhya Pradesh & Ors., Civil Appeal No. 9758 of 2024 [arising out of SLP (C) No. 11685 of 2021], decided on 22.08.2024, wherein the Hon’ble Court reiterated that:-

In view of the aforesaid, the contention of the respondents that the impugned orders apply to the petitioners is wholly misconceived and is based on a misreading of the impugned orders itself. The impugned orders do not apply to the petitioners, as they were appointed against sanctioned and State-approved posts.

The reliance placed by the respondents on the judgments in State of Karnataka vs. Umadevi and others, reported in (2006) 4 SCC 1, and Hariom and others vs. State and others, W.P. No. 11482/2020 (S), is misplaced and does not advance the case of the respondents in the facts of the present bunch of petitions, inasmuch as the said decisions do not lay down an absolute bar on regularization of contractual employees, but recognize that regularization may be permissible in exceptional and duly justified circumstances.

In the light of the aforesaid discussion, this Court is of the considered opinion that the impugned orders dated 02/03/2019 and 19/03/2019 cannot be sustained in the eyes of law.

Accordingly, the writ petitions are allowed. The impugned orders dated 02/03/2019 and 19/03/2019 are hereby quashed.

The respondents are directed to reinstate the petitioners on their respective posts with all consequential benefits, including notional pay fixation and back wages, in accordance with law. It is further directed that no coercive action shall be taken against the petitioners, and their services shall be regulated strictly in accordance with the applicable policies of the State Government and the relevant service laws.

It is made clear that this Court has not expressed any opinion on the issue of regularization of the petitioners, and the same, if raised, shall be considered independently in accordance with law.

The aforesaid directions shall be complied with by the respondents within a period of sixty (60) days from the date of receipt of a certified copy of this order.

Resultantly, the writ petitions are allowed with the aforesaid directions

A copy of this order shall be kept on record in the other connected matters and shall govern their disposal accordingly.

Pending applications, if any shall be disposed off accordingly.