State of Madhya Pradesh vs Manoj Kumar Uike

Instant petition is directed against order of the Ld. Tribunal filed at the instance of Establishment (Union of India) Dt. 28.8.2012.

The respondent is a Class-IV employee and litigating for the last 20 years and still remain at the place from where he started his

Brief facts of the case are that the respondent employee initially appointed in the cadre of Class-IV (Peon) on 1.9.1994, however, his services were terminated without complying the provisions of Industrial Disputes Act, 1947 (Act 1947) vide order Dt. 1.7.1995, that was subject matter of challenge before the Tribunal and after the matter being heard, the Ld. Tribunal passed award Dt. 25.2.2000 and answered the reference in affirmative and it was held that the action of the petitioner employer was in violation of Sec. 25F of the Act 1947 and while setting aside the order of termination was directed to reinstate him with continuity of service with 50% back wages.

In compliance of award, the respondent employee was reinstated w.e.f. 11.8.2000, however, after working for almost two years, his services were again terminated vide order Dt. 27.3.2002 w.e.f. 1.4.2002 and that was again the subject matter of challenge by raising industrial dispute and the Ld. Tribunal after hearing the parties passed award Dt. 28.4.2005 setting aside the order of termination Dt. 27.3.2002 with direction to reinstatement him with continuity of service along with 50% back wages and that subsequent award Dt. 28.4.2005 was subject matter of challenge by filing writ petition-1859/2006 and that came to be dismissed on 7.3.2006 which was further challenged by the petitioner employer in intra court appeal (DB Special Appeal-1996/2008) and that also came to be dismissed on 30.6.2011 and after dismissal of appeal, the respondent employee was directed to join duties pursuant to letter Dt. 1.10.2011 and as he was working in the cadre of Class-IV and that too on the minimum of the scale he made a complaint that at least he may be considered for fixation in the regular pay scale on the post which he is holding initially since September 1994 and the respondent employee filed Original Application-536/2011 and the Ld. Tribunal on the basis of material came on record disposed of the OA vide its order Dt. 28.8.2012 and passed the following order-

"10- Be that as it may, the ends of justice will be met if I direct the respondents to consider case of applicant taking into account the fact that he has been working for such a pretty long time with the All India Radio on the post of Peon and as he has right of preferential consideration against the vacant post available anywhere in Rajasthan Zone of All India Radio, which the respondents cannot deny. Therefore, the respondents are directed to consider case of the applicant for regular appointment against the vacant post, as observed herein above, as per provisions of law. It is expected from the respondents to consider case of the applicant expeditiously, but in any case not later than a period of three months from the date of receipt of copy of this order." 5. It can be noticed by this Court that in the written statement filed by the petitioner before the Tribunal no objection was raised regarding academic qualification to hold the post in the cadre of Class-IV and the Tribunal was of the view that after the employee has served for sufficient long time and the post has become vacant on retirement of Kusum Sharma, he can be considered in the cadre of Class-IV and that became the subject matter of challenge in the instant writ petition.

Counsel for petitioner submits that there was an amendment in the academic qualification in the cadre of Class-IV vide notification Dt. 8.2.2011 and minimum academic qualification is 10th standard from recognized Board or any equivalent examination and he was suitably adjudged in compliance of order of the Tribunal vide order Dt. 24.3.2015 which is placed before us for perusal wherein it has been observed that for the post of Group-D (Class-IV cadre), minimum requisite qualification is matriculation or equivalent and since the respondent employee fails to hold minimum academic qualification, it is not possible to give him appointment in Group-D post.

Counsel for respondent on the other hand submits that at the time when he entered into service minimum qualification was 8th standard which he fulfills and the present amendment which has been made vide notification Dt. 28.2.2011 at least may not be applicable while considering candidature of the respondent employee and it was never the objection raised by the petitioner that he is not holding minimum qualification and he could not be considered for regularization as directed by the Tribunal under order impugned.

We have considered the submission made and with their assistance perused the material available on record. Either submission made by counsel for the petitioner is wholly without substance for the reason that the respondent employee joined service in the Cadre of Class-IV way back in September 1994 and it is his dismay that he could not please the staff members and his services were terminated on two different occasion but justice still came to his door steps and twice the award was passed setting aside the order of termination and direction for reinstatement with continuity in service and in compliance thereof he was allowed to join service pursuant to which he is continuously discharging his duties in Class-IV cadre and we are of the view that amendment notification Dt. 8.2.2011 shall not come in way of the respondent employee in seeking orders for his regularization in the cadre of Class-IV and the writ petitioner was under obligation to consider his candidature on the basis of prescribed qualification which he held at the time he entered into service. Indisputably, in the instant case, 8th was minimum qualification which he indeed possess and we are of the considered view that the consideration which has taken place by the petitioner keeping in view the amendment notification Dt. 8.2.2011 while passing the order Dt. 24.3.2015 does not hold good. We, however, grant liberty to the petitioner to pass appropriate orders in compliance of order of the Ld. Tribunal Dt. 28.08.2012 within a period of three months.

The writ petition is devoid of merit and accordingly dismissed with observation (supra).