Full Judgment
1 HIGH COURT OF MADHYA PRADESH AT JABALPUR Writ Petition No :
605. OF 200.(s) Mukesh Kumar Rai V/s State of M.P. & Ors. Writ Petition No :
671. OF 200.(s) Ramsujan Patel & Ors. V/s State of M.P. & Ors. Writ Petition No :
672. OF 200.(s) Preetam Singh Thakur V/s State of M.P. & Ors. & Writ Petition No :
674. OF 200.(s) Navneet Tiwari & Ors. V/s State of M.P. & Ors. Present : Hon’ble Shri Justice Rajendra Menon. ---------------------------------------------------------------------------------------------- Shri Maninder Singh Bhatti, Shri Sankalp Kochar and Shri Rajesh Agnihotri, learned counsel for the petitioners. Shri S.S. Bisen, learned Government Advocate for respondents/State. ---------------------------------------------------------------------------------------------- ORDER
8.10.2012 As common questions of law and facts are involved in all these four petitions and as the impugned orders are also identical in nature they are being disposed of by this common order and for the sake of convenience pleadings and documents available in the record 2 of W.P. No.605/2007(s) (Mukesh Kumar Rai Vs. State of M.P.& Ors.) and W.P. No.674/2007(s) (Navneet Tiwari & Ors. Vs. State of M.P. & Ors.) are being referred to in the order.
2. All the petitioners who are before this Court in these writ petitions were working as Teachers or in other categories in the A.L. Rai Higher Secondary School, Bachchaiya, Bahoriband, District Katni. The school in question was a Private Institute which was being run by the registered society and all the petitioners after their appointments by the said society were working in the school on the post for which no grant in aid was being paid by the State Government. A policy decision was taken by the State Government for taking over of the institute in question. The decision was taken in the year 2000 and subsequently vide order Annexure P-4 dated 16.11.2000 the Department of School Education, based on a cabinet decision dated 14.10.2000, passed the order for absorption of the teachers and other staff of the institute on the pay-scale and post as indicated in this order Annexure P-4 dated 16.11.2000 and procedure to be followed was also indicated in this circular. In pursuance to the aforesaid, orders were passed on 12.4.2001, Annexure P-5 is the order passed in the case of petitioner Shri Mukesh Kumar Rai whereby he was observed on the post of Shiksha Karmi Grade-II and started working in the Government Institute with effect from the said date. Similar orders were passed in the case of other employees and were available on record. While position was so continuing it seems that once Shri 3 N.K. Rai and various other employees, who were not granted the benefit of absorption were not given proper designation approached this Court in W.P. No.6850/2000 and on 28.1.2004 vide order Annexure P-6 a Bench of this Court found that the petitioners in those cases have not been granted their due benefit, accordingly the petitioners therein were directed to be absorbed as Teachers/U.D.T. and L.D.T. It may be taken note of that in the case of N.K. Rai (supra) the grievance of petitioners were two fold. Some of them came out with pleading that even though they have been absorbed, but they have not been absorbed on appropriate post and not granted proper pay- scale and in certain cases it was said that their claim for absorption was not properly considered. Be it as it may be, after considering the totality of circumstances the order passed by this Court in the case of N.K. Rai (supra), directions therein reads as under :
“22. In view of above discussion, writ petition is allowed. The teaching staff is held entitled for absorption as Lecturer, UDT (redesignated as “Teacher”.), LDT (redesignated as “Asst. Teacher”.) and non-teaching staff has also to be absorbed as per their qualifications on the post of Peon, Watchman, etc. in the prevailing pay scale of the posts, salary of the petitioners has to be fixed in accordance with memo (P/6). Let needful be done within three months. Parties to bear their own cost as incurred.”
3. It seems that when the aforesaid order was passed the State Government took a decision to implement the directions issued and, therefore, with a view to consider the cases of all the employees, petitioners herein who were already absorbed in the year 2001 were 4 issued with show-cause notice Annexure P-7 dated 27.9.2005 indicating them as to why their absorption order, earlier passed vide Annexure P-5, be not cancelled mainly on two counts; the first ground was that their absorption is without taking note of minimum qualification and other criterias fixed for absorption and secondly the rules of reservation has not been followed. On the same being done petitioners approached this Court by filing petitions.
4. In the case of petitioner Shri Mukesh Kumar Rai he filed W.P. No.12744/2005(s) and a Bench of this Court vide order Annexure P-9 dated 27.10.2005 came to the conclusion that as only a show-cause notice is issued and matter is still pending, the petitioners are free to demonstrate before the competent authority that they have been properly absorbed and there is no reason for cancelling their absorption. Accordingly petitions were disposed of directing the District Education Officer to take independent decision after considering the objections of the petitioners, granting them opportunity of hearing and pass speaking order. It was also directed that the District Education Officer shall not be influenced by earlier decision rendered by this Court in the case of N.K. Rai (supra). In pursuance to same, records indicate that each of the petitioners submitted a detailed objection to the show-cause notice, they indicated their qualification and other criterias laid down for absorption and tried to demonstrate as to how and on what basis they claim to be qualified for absorption. It also transpires from the record that they 5 filed various circulars and brought to the notice of authorities concerned that in the present set of cases the rules of reservation do not apply and submitted multifarious objections in this regard which included the fact that they are appointed on the post which are not paid grant-in-aid and, therefore, rules of reservation are not applicable.
5. Be it as it may be, impugned order has been passed on 28.12.2006 vide Annexure P-14 and by contending that the absorption of the petitioners ordered earlier vide Annexure P-5 is not correct they are not qualified to be absorbed, their absorption have been cancelled. While issuing notice to the respondents operation of the order impugned Annexure P-14 dated 28.12.2006 have been stayed, as a result petitioners continued on the post ever since they was absorbed in the year 2000.
6. Shri M.S. Bhatti, learned counsel for the petitioner, Shri Sankalp Kochar and Shri Rajesh Agnihotri, learned counsel for the petitioners taking me through the documents available on record and submission made by petitioners tried to demonstrate that the petitioners were rightly absorbed, they fulfilled all the qualifications required for absorption and even before the order Annexure P-5 was passed with regard to their absorption an appropriate Screening Committee was constituted, the said Screening Committee evaluated cases of each of the employee concerned and thereafter as per the decision taken by the cabinet for absorption, the criteria laid down 6 therein was followed and the petitioners absorbed, all this is undone in a very casual and arbitrary manner, even without indicating to the petitioners as to what are the defects in their absorption, what are shortcomings which goes to show that they are not entitled for absorption. It is submitted by learned counsel that without indicating to the petitioners the reason which goes to show that they are not fulfilling the qualification and without considering the fact that the rules of reservation are not applicable the decision taken is unsustainable. It is submitted that inspite of specific direction issued by this Court on 27.10.2005 in W.P. No.12744/2005(s) and other cases the District Education Officer by the impugned order Annexure P-14 has rejected the claim of petitioners by merely showing that the petitioners do not fulfill the qualification for absorption or that the reservation roster has not been followed and while so doing has not adverted to consider the objection and grounds raised by petitioners. Accordingly, contending that the action taken is unsustainable for the reasons as indicated hereinabove, petitioners prays for interference.
7. Shri S.S. Bisen, learned counsel for respondents refuted the aforesaid and points out that after the orders were passed by this Court in the earlier writ petition, the District Education Officer considered each and every aspect of the matter, after referring to the enquiry conducted and the reasons indicated in the show-cause notice dated 27.9.2005 Shri S.S. Bisen tried to emphasize that the reservation rules and the minimum criteria for absorption have not been followed, 7 for eg. Shri S.S. Bisen referred to the reasons given for cancelling the absorption of Shri Mukesh Kumar Rai, petitioner in W.P. No.605/2007(s), and submitted that he does not fulfill the required minimum qualification. Persons junior to him have not been absorbed and reservation roster has not been followed. It is stated that as specific reasons have given in column No.3 with reference to each of the petitioners. The contention of petitioners that they have not been heard or no reason is forth-coming, is not correct. Shri Bisen refers to report available along with order dated 27.9.2005 that indicate that all the procedure have been followed and, therefore, he says that there is no question of interference not in these writ petitions.
8. I have heard learned counsel for the parties and perused the record. From the record it is clear that after the institute in question was taken over by the State Government a Screening Committee was constituted wherein the claim of each individual was considered and thereafter the orders of absorption Annexure P-5 was passed on 12.4.2001. Before the absorption orders were passed, as indicated hereinabove, it is seen that the matter was placed before the Cabinet on 14.10.2000 and based on the decision of the cabinet the posts were sanctioned, pay-scale prescribed and the procedure laid down for absorption, as is evident from Annexure P-4 dated 16.11.2000. Thereafter the appropriate Screening Committee scrutinized cases of each and every individual as per the criteria and it is only then that the orders of absorption were passed. If that is the 8 factual position, a presumption has to be drawn that the Screening Committee had considered cases of petitioners at the very first instance and recommended for their absorption, on being satisfied about entitlement of each of the petitioner based on the same when the initial order of absorption were passed on 12.4.2001 vide Annexure P-5, accordingly it has to be assumed that everything was done in accordance to requirement of the laws, procedure prescribed and there was not illegality, but when certain orders were passed in the case of N.K. Rai (supra) Show-cause notice were issued to petitioners and in the show-cause notice three grounds were indicated for taking action against the petitioners, the first ground was that they do not fulfill the requisite qualification or are not entitled for absorption, next ground is that seniority has not been taken note of and senior persons have not been absorbed and third ground was that the reservation roster and rules have not been followed. The respondents are free to take action, if a mistake has been committed and are entitled under law after hearing the petitioners concerned to correct their mistake and it was because of these reasons that on 27.10.2005 a Bench of this Court in W.P. No.12744/2005(s) granted liberty to the respondents to proceed in the matter subject to condition that they should hear the petitioners, consider their objections and decide the matter in accordance to law indicating reasons and justification for their action. Inspite of aforesaid when the final action is taken the respondents have not indicated as to what is error in the earlier action done, on what ground it is stated that the petitioners are not qualified, who are persons who 9 are senior to petitioners have been ignored and what particular reservation rules are applicable, when petitioners have raised various grounds to show that reservations rules are not applicable in the case of absorption.
9. During the course of hearing of this writ petition Shri Bhatti, learned counsel has brought to the notice of this Court an order passed by the Gwalior Bench of this Court on 23.3.2010 in W.P. No.2336/2004 to show that in the matter of absorption of Teacher working in Private Institute the reservation rules are not applicable and Shri Sankalp Kochar has also brought to the notice of this Court certain facts with regard to reservation roster not being applicable to post when no grant-in-aid is paid and a Division Bench judgment of the Gwalior Bench in the case of W.A. No.260/2009 to contend that the rules of reservation are not applicable.
10. Be it as it may be, the fact remains that the petitioners were working in the private institute and when a decision was taken to take over the management of the institute by State Government, a Screening Committee was constituted, the said committee evaluated cases of each of the petitioners and found them eligible to be absorbed, these goes to show that initially when the petitioners were absorbed their cases were Scrutinized by the Screening committee, they were eligible for appointment and, therefore, the benefit was granted to them. If there was any mistake or error in the earlier action the respondents are free to take action, but before taking action the 10 bare minimum of indicating reasons as to why the earlier action was incorrect has to be fulfilled and when the petitioners have given various objections/explanations in reply to the show-cause notice and tried to demonstrate before authority that they have been properly absorbed, they fulfill all the qualification and other criterias laid down, it was incumbent upon the District Education Officer to refer to each of the case indicated, meet the objections and the grounds raised, pass a speaking order showing application of mind either accepting or rejecting the claim and thereafter take decision. This is the requirement of law and the principle of natural justice and is essential to rule out any arbitrary action being taken. In the present case nothing of these sought was done, the impugned order Annexure P-14 dated 28.12.2006 indicates that, except for reproducing facts with regard to decision taken by the State Government for taking over of the school and the cabinet decision, order of absorption, sanction of post, pay-scale and fact about filing of the earlier writ petition by Shri N.K. Rai and orders passed without hearing petitioners in a very casual manner by a three line order a final decision is taken and in this the only reason given is that the petitioners are not qualified and reservation roster has not been followed. On what basis such a finding has been recorded it is not indicated not is the case of each individual analyzed in the back drop of observations made or objection raised by them. On the contrary a cyclostyle order is passed, as indicated hereinabove, which is identified in all the cases”
11. When the order is passed in contravention to the direction and when the order of the nature as indicated hereinabove has the effect of taking away certain rights which had accrued to petitioners by virtue of their absorption order vide Annexure P-5 dated 12.4.2001 the District Education Officer should have passed a speaking order showing application of mind and decision on each and every objection and submissions made by petitioner. This having not been done the order impugned is an order which suffers from vices of arbitrariness, is unsustainable and illegal and, therefore cannot upheld by this court.
12. In view of aforesaid, this petition is allowed respondents are directed to consider that the petitioners have been absorbed in service when the order Annexure P-5 was passed and grant to them all the consequential benefit treating them to have been absorbed w.e.f. the date the order Annexure P-5 was passed.
13. Even though in pursuance to earlier directions issued by this Court Shri S.S. Bisen has produced the record of the case, it is not for this Court to scrutinize the records and substitute its decision with that of District Education Officer. It is for the Departmental Authorities to go through the objections of the petitioners and decide it by a speaking order. not by going through the record this Court will not substitute its decision to that of the competent authority and give reasons or justification or otherwise of the impugned action. This function is to be done by the administrative authority and not by this Court exercising jurisdiction under article 226 of the Constitution. 12 Accordingly, I see no reason to go through the record and decide this petition.
14. In view of above all these petitions are allowed. Order impugned Annexure P-14 dated 28.12.2006 passed in the case of each of the petitioners are quashed. Treating the petitioners to have been absorbed from the date when Annexure P-5 was passed grant them all the benefit. If the respondents wants to take any action in the matter, they can do so only after complying with the requirements as indicated hereinabove. With the aforesaid all the petitions stand allowed and disposed of. Certified copy as per rules. (Rajendra Menon) Judge ss/-