Smt Kiran Choudhary vs State of MP now State of CG and Others

Satish K. Agnihotri, J.—This intra-court appeal arises from the order dated 21.7.2010 passed by the learned Single Judge in WP (S) No.2299 of 2005 whereunder the writ petition, preferred by the appellant herein, for issuance of direction of payment of arrears of salary for the period from 6.7.1984 to 9.11.1986 along with increment and other consequential benefits, was dismissed. The case of the appellant, in brief, is that the appellant was initially appointed as Lower Division Teacher vide order dated 19.09.1981. The appellant was, thereafter, terminated from service vide order dated 06.07.1984. The aforesaid order was challenged by the appellant in the High Court of Madhya Pradesh, registered as M.P.No.2936 of 1984. During pendency of that petition, respondents decided to re-appoint the appellant in view of relaxation of age limit vide circular dated 20.01.1986 and pursuant to that, order of fresh appointment was passed on 09.10.1986.

In view of the subsequent developments of fresh appointment vide order dated 09.10.1986, the earlier writ petition was disposed of vide order dated 26.06.1987 reserving liberty to the appellant to claim for continuation of service, seniority and arrears of salary. Thereafter, the appellant claimed the benefit of continuation of service, seniority and arrears of salary, but no relief was granted to her. Vide letter dated 11.12.1989; the appellant was informed that for want of any order of the Government, she was not entitled to benefit of service rendered prior to reappointment.

Being aggrieved, the appellant preferred again an application, being O.A.No.3271 of 1992 before the State Administrative Tribunal (for short "the SAT"). After abolition of the SAT, the matter was transferred to this Court and re-numbered as WP (S) No.2299 of 2005. The learned Single Judge after hearing the learned counsel appearing for the parties dismissed the said petition by the impugned order dated 21.7.2010. Thus, this appeal

Shri H.B. Agrawal, learned Sr. counsel appearing with Shri Pankaj Agrawal, learned counsel for the appellant, would submit that once the respondents decided to relax the age criteria and reappointed the appellant vide order dated 09.10.1986, the appellant was entitled to continuity in service for the entire intervening period. Shri Agrawal would further submit that earlier order of termination was not correct and the appellant was not over age, the appellant was wrongly treated as over age. Services were terminated in the year 1984. Shri Agrawal would next submit that the learned Single Judge without appreciating the facts and circumstances of the case in its true perspective dismissed the writ petition in spite of the fact that the appellant was entitled to all the consequential benefits after her reappointment.

On the other hand, Shri Deo, learned Govt. Advocate appearing for the State, while supporting the impugned order dated 21-7-2010 passed by the learned Single Judge in WP (S) No. 2299 of 2005, would submit that the appellant could not have assailed the legality and validity of the order of termination passed earlier in the year 1984, as the same was subject matter of earlier writ petition i.e. M.P.No.2936 of 1984, which was finally disposed of vide order dated 26.06.1987. Shri Deo would further submit that the appellant was terminated as she was over age and subsequent relaxation only facilitated fresh appointment and not to give appointment from the original date, as indicated in the order dated 09.10.1986. Thus, there was no illegality or infirmity in the order passed by the learned Single Judge in WP (S) No.2299 of 2005.

We have heard learned counsel appearing for the parties, perused the pleadings and the documents appended thereto.

Initially, the appellant was appointed on 19.9.1981 as Lower Division Teacher. Thereafter, she was terminated from service vide order dated 6.7.1984, which was challenged before the High Court of Madhya Pradesh in M.P.No. 2936 of 1984. During pendency of the said petition, the appellant was reappointed, in view of circular dated 20.1.1986 in respect of relaxation of age, which she did not possess at the time of appointment, vide order dated 9.10.1986. Looking to the subsequent developments, M.P.No.2936 of 1984 was disposed of vide order dated 26.6.1987. However, on the request of learned counsel for the appellant herein, liberty was granted to make a representation for claiming seniority, arrears of salary, etc.

Thereafter, according to the appellant, the appellant made a representation, which was rejected and communicated to the appellant vide letter dated 11.12.1989, as there was no such circular of the State Government to give the abovestated benefits from the date of termination till fresh appointment by order dated 9.10.1986. Thus, WP (S) No.2299 of 2005 was preferred by the appellant seeking seniority, arrears of salary for the period from 6.7.1984 to 9.11.1986 along with increments and other consequential benefits.

Indisputably, the termination order, initially passed by the State Government, was not cancelled; however, a new appointment order was passed, in view of the circular dated 20.1.1986, issued in respect of age relaxation after termination of the services of the appellant. Thus, the fresh appointment of the appellant will not be entitled to any benefit from the date of termination till fresh appointment, as there was no provision for interregnum period and the period rendered earlier prior to termination could not have been treated as a continuation of service. It is evident from the nature of appointment i.e. fresh appointment order dated 9.10.1986.

The learned Single Judge has rightly opined that the administrative instructions are only prospective and not retrospective, unless otherwise contrary is shown in the instructions itself. The termination of the appellant was on account of over age, which was relaxed subsequently and in view of subsequent circular in respect of age relaxation fresh appointment order was passed. Thus, the appellant is not entitled to any benefit, as sought for in this appeal.

Reliance of Shri Agrawal, learned senior counsel appearing for the appellant, upon the decision of the Supreme Court rendered in State of Punjab and Others v. Bawa Singh Harijan1, is misplaced, as in the facts of the said case, the respondent (Bawa Singh Harijan) was employed as Peon-cum-Chowkidar in the Government Middle School at Mandi Cholian. Thereafter, he was dismissed from service and subsequently by order dated 6-3-1981 he was reinstated. It was not the case of fresh appointment, but reinstatement. The matter dealt with pensionary benefits and not in respect of fresh appointment.

For the reasons mentioned hereinabove, we are of the considered opinion that the appellant is not entitled to any relief, as sought for by the appellant. The impugned order is just & proper. There is no infirmity or illegality and the same does not warrant any interference. As an upshot, the appeal, sans substratum, is liable to be and is hereby dismissed, leaving the parties to bear their own costs.