State of M.P. vs Pradeep Jain

Challenge in this writ appeal u/s 2(1) of the Madhya Pradesh Uchch Nyayalaya (Khand Nyay Peeth Ko Appeal) Adhiniyam, 2005 has been made to an order dated 13/03/2012 passed by the writ Court in W.P. No. 2127/2004. Challenging the same order dated 13/03/2012 passed in W.P.N. 2127/2004, two writ appeals were filed by the GDA and various other aggrieved persons. These writ appeals were registered as W.A. No. 235/12 and WA. No. 787/2012 and have been disposed of by a common order passed by the Division Bench of this Court on 24/1/2013. The directions issued in these writ appeals read as under:-

(8) Consequently, both these appeals are disposed of with the following directions:-

(i) The order passed by the learned Single Judge in regard to sanction of five posts and directions issued in this regard are hereby upheld.

(ii) It is further held that the respondent Nos. 3 to 6 would be senior to the present appellants and their seniority shall be in accordance with the order passed by the Division Bench of this Court in W.P. No. 135/2006.

In these writ appeals, the State Government was a party and for all this period, no challenge was made by the State Government to the order passed by the learned Single Bench.

Now, this writ appeal is filed and the only ground taken and canvassed at the time of hearing by the learned counsel for the State was that the direction given for sanction and creation of 5 posts by the writ Court and upheld by the writ appellate Court was not proper. It was submitted that no direction for creation of posts could be granted and therefore, the order passed by learned Single Judge warrants interference.

Arguments on behalf of the parties on this question have been heard.

It may be appropriate at this stage to take note of the directions issued by the learned Single Judge in the writ petition, which is impugned in this appeal. In para 19 and 20 of the order passed on 13/03/2012, in W.P. No. 2127/2004, the following directions have been issued by the writ Court:-

Accordingly, I am of the considered opinion that the ends of justice would be met if the Gwalior Development Authority is directed to send a fresh requisition to the State Government for sanctioning of the posts for petitioners within 15 days from the date of receipt of this order and, in turn, the State Government shall sanction the posts by taking into account the fact that the order of permanency in favour of the petitioners was passed by the Industrial Court from a particular date, which has attained finality. The State Government shall sanction those posts within 30 days from the date of receipt of communication/requisition by the Gwalior Development Authority. Orders in this regard be passed by the State Government and Gwalior Development Authority to confer these benefits in favour of the petitioners. After passing this order, respondent-Gwalior Development Authority shall draw a fresh provisional seniority list showing the position of petitioners and the private respondents and others employees on their getting permanent status and invite the objections from the aggrieved persons and thereafter finalise that seniority list for the purpose of further career advancement.

In the result, petition is allowed. The respondents shall complete the aforesaid exercise strictly within the time frame. No costs.

A detailed analysis of the facts and circumstances has been done by the writ appellate Court, when writ appeal No. 235/12 and 787/12 were considered and decided and at that point of time, the State Government was also a party and in our considered opinion, all the questions involved in the matter which were in dispute between the parties have already been adjudicated and decided by a coordinate Division Bench of this Court. That being so, this is not appropriate for this Bench, which is exercising coordinating jurisdiction to reopen the matter at the instance of the State Government when the State Government was a party in the earlier proceedings and did not raise such a ground when the matters were pending since year 2012. That apart, the question of creation of 5 posts has to be evaluated in the background of the fact that all the employees were directed to be classified as permanent employees by the Industrial Court. The order passed by Industrial Court had already been attained finality after the writ petitions and writ appeal were dismissed by this Court and based on the orders passed with regard to classification of the employees as permanent employees, seniority list of the employees was published. Records indicate that the seniority list was published vide Annexure P/22 available in the record of writ petition and in this seniority list, the name of the petitioners who had filed W.P. No. 2127/2004 were placed over and above the private respondents. It was considering all these factus, that a direction was issued in the earlier round of litigation to recall the seniority and to give benefit of absorption to the petitioners in W.P. No. 2127/2004 as they were senior to the other private respondents, who have already been absorbed. Once, it is found that there was an order granting permanent status to the employees by the Industrial Court and which has attained finality and when it is observed that junior employees have been absorbed in service in comparison to seniors like the petitioners in the present writ petition No. 2127/2004, we therefore, find no error in the order passed by the writ Court which warrants interference. The Gwalior Development Authority, looking to the need of work and the orders passed, had sought for sanction for creating posts to absorb the senior employees and when a direction is issued to give sanction of the posts for the reasons that seniors have not been absorbed, in spite of permanency being granted to them by virtue of orders passed by Industrial Court, we see no reason to interfere in the matter. Accordingly, taking note of the totality of the circumstances, we are of the considered view that once a coordinate Division Bench of this Court in W.A. No. 235/2012 and W.A. No. 787/2012 has already upheld the impugned order passed by learned Single Judge in W.P. No. 2127/2004, now on the grounds canvassed by the State Government, we see no reason to interfere in the matter, particularly when the directions issued is to grant parity in the matter of absorption of employees where seniors are found to be discriminated in the matter of absorption in comparison to their juniors. Accordingly, finding no ground to interfere, the writ appeal is dismissed.