Nitesh Kumar Pandey vs State of M.P. and Others

A.K. Shrivastava, J.

By this petition under Articles 226 and 227 of the Constitution of India, the petitioner is seeking relief for quashment of Annexure - P/5 dated 09.03.2005, since it is not in accordance with the direction dated 21.01.2004 of the State Government. The petitioner has further prayed for his reinstatement.

The case of the petitioner is that vide Annexure - P/6 dated 21.01.2004 the State Government took a decision that the employees whose services were terminated after 31.12.1988 they may be taken back in the service. The contention of learned counsel for the petitioner is that the petitioner was appointed after the cut off date i.e. 31.12.1988 and his services were terminated after January, 2000. After the Government had taken the decision vide Annexure-P/6 dated 21.01.2004 to reinstate all those employees whose services were terminated after cut off date, thereafter clarification was also issued vide Annexure-P/7 dated 15th April, 2005. The contention of learned counsel for the petitioner is that in terms of Annexure-P/6, since the petitioner is an employee appointed after cut off date and his service was terminated, he is entitled for reinstatement in accordance to Annexure-P/6.

On the other hand, it has been contended by Shri Vinod Mehta, learned Govt. Advocate, that vide Annexure-P/7 clarification was made by the State Government. It has also been putforth by him that the petitioner has not served for 240 days, therefore, vide impugned order Annexure-P/5 he was not taken back in service.

After having heard learned counsel for the parties, I am of the view that this petition deserves to be allowed.

On going through Annexure - P/6 which is a circular of the State Government dated 21.01.2004, it is gathered that the services of those employees who are the appointees after 31.12.1988 and whose services were terminated later on, their services were directed to be reinstated. Thereafter, on 12.04.2004 another circular was issued by the State Government and it was directed that the direction of the earlier circular (Annexure-P/6) may be complied with positively on or before 30th April, 2004. There is a specific averment of the petitioner in his petition in para 5.2 that he was appointed after 31.12.1988 and on the basis of the circular of the State Government of January, 2000, since he was an appointee after 31.12.1988, his services were terminated. It be seen that vide Annexure-P/6 dated 21.01.2004 the State Government took a decision that the class-IV employees who were appointed after 31.12.1988 and whose services were terminated, they be reinstated and further it was made clear vide Annexure-P/7 dated 12.04.2004 that the order should be complied on or before 30th April, 2004. There is no merit in the contention of learned Govt. Advocate that since the petitioner has not served for 240 days, therefore, by the impugned order Annexure - P/5 he was rightly not reinstated. On going through para 11 of the return, it is found that petitioner had worked for more than 240 days. On X-raying Annexure-P/6, no where it is gathered that this was the condition stipulated that the employees should have served for 240 days. The clarification which has been made on 15.04.2005 also does not indicate that the employees should complete 240 days of their service. Therefore, the decision taken by the respondents vide Annexure - P/5 not to reinstate the petitioner on the ground that he has not completed 240 days, is arbitrary in nature. In para 11 of the return, it has been admitted that the petitioner had worked for more than 240 days. Learned counsel has also invited my attention to Annexure-P/1 in which it has been mentioned that he is serving since 1994. The petitioner has also made specific pleading in that regard in para-51 in his petition. In the return though the averments made by the petitioner in para-51 have been denied by the respondents and it has been further stated that the petitioner never engaged against the sanctioned post and it has been mentioned that he was engaged only as daily rated muster roll employee as per the job requirement and budgetary provision in the department, but, the authenticity of Annexure-P/1 has not denied. Even otherwise the reinstatement of the petitioner has been denied by the impugned order Annexure-P/5 only on the ground that he was not served for 240 days which according to respondents own showing is erroneous. Since this is not the criteria in the circular of the Government AnnexureP/6 dated 21.01.2004, Annexure-P/7 dated 12.04.2004 and the clarification dated 15.04.2005, the view of this Court is that the petitioner has made out a case for his reinstatement. The decision of the Apex Court in the case of Mahendra L. Jain Vs. Indore Development Authority and others, AIR 2005 SC 1252 is not applicable in the present case because in this case the circulars Annexure-P/6 and P/7 were not the subject matter.

For the reasons stated hereinabove, this petition is allowed. The respondents are hereby directed to give appointment to the petitioner in accordance to the circular Annexure-P/6 dated 21.01.2004. However, the petitioner shall not be entitled for any back wages. But, he will be entitled for the wages from today. Annexure-P/5 dated 09.03.2005 is, accordingly, quashed. The parties are directed to bear their own costs.