State of M.P. and Others vs Suresh Kumar Upadhyaya

This writ v.appeal u/s 2 (I) of the M.P. Uchcha Nyayalaya ( Khand Nyayapeeth Ko Appeal ) Adhiniyam, 2005 preferred by the Appellants is directed against the impugned order of the learned Single Judge dated 27/9/2010 in Writ Petition No. 1720/10 (s) allowing the writ petition in favour of the Respondent by quashing the impugned orders (Annexures P-1 and P-2 to the writ petition) pertaining to the Respondent.

Briefly stated, the facts of the case relevant for the disposal of this writ appeal are that the Respondent is working 2WA 599/10 as Forest Ranger in Lok Vaniki Mission under the Forest Department of the State of Madhya Pradesh. He was granted exemption from his posting in the ''working plan'' by virtue of order of the Appellants dated 11/8/1999, Annexure P-7 to the writ petition at page 43 of the paper book. This exemption from his posting in the ''working plan'' was granted to him in terms of policy of the Appellants contained in office memorandum No. F-3-428/94/10-1 dated 22/3/1995. Lateron, the Appellants vide office order dated 5/10/2005, Annexure A/2 at page 13 of the paper book, withdrew the benefit of exemption granted to the forest rangers from their posting in the ''working plan'' in terms of their earlier policy dated 22/3/1995, referred above. Pursuant thereto, the Appellants vide orders (Annexures P-1 and P-2 to the writ petition) posted the Respondent in the ''working plan'', aggrieved wherefrom the Respondent had filed a writ petition being W.P. No. 1720/10 (s) which was allowed by the learned Single Judge vide impugned order mainly for the reason that the exemption from posting in the ''working plan'' already granted to the forest rangers cannot be withdrawn retrospectively and the policy of the Appellants not to grant exemption to the forest rangers in terms of their earlier policy dated 22/3/1995 would apply only prospectively.

The learned Single Judge at the Main Seat relying 3WA 599/10 on the impugned order of the learned Single Judge of the Bench at Gwalior dated 27/9/2010 allowed two writ petitions of two other similarly situated forest rangers namely Sudheer Singh and Ram Lal Sharma being Writ Petitions bearing numbers 7121 and 7672 of 2010 respectively vide order dated 12/10/2010. The Appellants aggrieved by the said order of the learned Single Judge at the Main Seat preferred a writ appeal bearing W.A.1320/10 which was dismissed by the Division Bench headed by Hon''ble the Chief Justice vide order dated 5/1/2011. While dismissing the said writ appeal of the Appellants the Division Bench took note of the orders passed by the Appellants in the cases of forest rangers S/s Anoop Parashar and P.K. Khatri in whose cases the Appellants themselves have recalled their order of posting in the ''working plan'' on the ground that their Policy of 5/10/2005 withdrawing the exemption from posting in ''working plan'' would not govern cases where exemption from posting in ''working plan'' has already been granted by the Department to the forest rangers. Relevant portion of the order of the Division Bench at the Main Seat is extracted below:

The learned Counsel appearing for the State submits that the representation of the Respondent No. 1 had rightly been rejected by the authorities as the exemption from posting in the working plan had subsequently been withdrawn by a policy decision of the State Government dated 05.10.2005 and, therefore, the Petitioner cannot claim any exemption from posting in the working plan area. However, on a specific query being made, the learned Government Advocate appearing for the Appellant/State, does not deny the fact that Shri Anoop Parashar and Shri P.K Khatri have been granted exemption from posting in the working plan subsequent to the policy decision of the State dated 05.10.2005 on the ground that it does not have a retrospective effect The learned Counsel for the Appellant/State has failed to point out as to how the cases of Shri Anoop Parashar and Shri P.K. Khatri are different from that of the Petitioner. Therefore, on the ground of parity the Petitioner/Respondent is entitled to receive the same and similar treatment which has been extended to other similarly placed persons/employees. The Appellant/State cannot now contend after extending the benefits to other persons that the same cannot be applicable in the case of Petitioner/Respondent without showing any reasonable basis for such differential treatment. We, therefore, do not find any error in the order of the learned Single Judge.

Shri Khedkar, learned Government Advocate appearing on behalf of the Appellants/State has vehemently argued that the above referred judgment of the Division Bench in Writ Appeal No. 1320/10 is distinguishable and would not govern the decision of the present appeal. Relying on two judgment of Hon''ble the Supreme Court in Directorate of Film Festivals and Others Vs. Gaurav Ashwin Jain and Others, and Chandigarh Administration and another Vs. Jagjit Singh and another, he has argued that the Respondent could not have been granted benefit of an illegal or unwarranted orders in the cases of S/s Anoop Parahar and P.K. Khatri passed by the Appellants. According to 5WA 599/10 Mr. Khedkar, in view of the above judgments of the Hon''ble Supreme Court, the High Court cannot compel the Appellants to repeat the illegality over again and again since orders passed by the administrative authorities do not constitute precedents for their application to the similarly situated persons.

We have perused both these judgments of the Hon''ble Supreme Court and have given our thoughtful consideration to the arguments advanced on behalf of the Appellants, but we are sorry we cannot persuade ourselves to agree with the submissions of Shri Khedkar, learned Government Advocate appearing on behalf of the Appellants/State for the reasons to follow hereinafter.

It is true that the Respondent cannot be granted any relief by the Court on the basis of an illegal or unwarranted order passed by the Appellants in cases of other similarly situated employees. However, the question that arises for our consideration in this appeal is whether orders in cases of S/s Anoop Parashar, P.K. Khatri and Radhacharan Sharma on which reliance is placed by the Respondent can be said to be illegal or unwarranted. It is not disputed by Shri Khedkar, learned Government Advocate appearing on behalf of the Appellants that orders in cases of S/s Anoop Parashar, P.K. Khatri and Radhacharan Sharma, who all three are forest 6WA 599/10 rangers working in the Forest Department with the Appellants, were passed subsequent to coming into force of their policy dated 5/10/2005. Order in case of Annop Parashar is dated 15/1/2008 and was annexed as Annexure P-3 to the writ petition; in case of Shri Radhacharan Sharma is dated 29/3/2008 and was annexed as Annexure P-4 to the writ petition and order in case of P.K. Khatri is dated 1/8/2009 and has been placed before us at the time of hearing of the appeal. It is suffice to refer to only one of these three orders as they all are verbatim the same. Order dated 15/1/2008 in case of Anoop Parashar ( Annexure P-3 to the writ petition at page 38 of the appeal paper book) is extracted below:

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It is not the case of the Appellants that the above referred orders in the cases of S/s Anoop Parashar, P.K. Khatri and Radhacharan Sharma are illegal or unwarranted orders. There is no ground taken by the Appellants in the present 7WA 599/10 appeal to allege that these orders passed by them subsequent to the policy dated 5/10/2005 are in any manner unwarranted or illegal. It may be noticed from the above extracted order in case of Shri Anoop Parashar that the Appellants themselves have taken a policy decision that their policy dated 5/10/2005 pursuant to which exemption from posting in the ''working plan'' was withdrawn shall apply prospectively and not retrospectively. Admittedly, in the present case, the Respondent was already granted exemption from his posting in the ''working plan'' prior to the guidelines issued by the Appellants vide their policy circular dated 5/10/2005 referred above. We are informed that orders passed by the Appellants in the cases of S/s Anoop Parashar, P.K. Khatri and Radhacharan Sharma on 15/1/2008, 29/3/2008 and 1/8/2009 respectively have already been implemented by them. We fail to understand that if the Appellants themselves have taken a decision, the in cases of S/s Anoop Parashar, P.K. Khatri and Radhacharan Sharma to apply their policy dated 5/10/2005 prospectively and not retrospectively, how they can treat the Respondent differently. We are of the considered view that the Appellants are liable to extend the same and similar treatment which has been extended by them to S/s Anoop Parashar, P.K. Khatri and Radhacharan Sharma who all three are similarly situated like him. In our opinion, the judgments of 8WA 599/10 the Hon''ble Supreme Court in the cases of Gaurav Ashwin Jain''s case and in Jagjit Singh''s case (supra) are not at all applicable to the facts and circumstances of the present case.

In view of the foregoing, we do not find any merit in this appeal which fails and is hereby dismissed but with no order as to costs.