Full Judgment
1 W.A.No.1286/2011 Anil Kumar Pathak State of M.P.& others 18.9.2012 Shri S.P.Mishra, Counsel for appellant.
Shri K.S.Wadhwa, Counsel for respondents No.2 & 3.
This appeal is directed against an order dated 20.9.2010 in W.P.No.3262/2009(s) by which a writ petition preferred by the appellant has been disposed of finally with certain directions.
Learned counsel for appellant submitted that in view of the order passed by the Apex Court in Civil Appeal No.392 of 2007 Om Parkash Agarwal versus State of M.P.& Others dated 20.7.2011, this appeal may be allowed and the order of voluntary retirement of the appellant may be quashed.
The prayer is opposed by the respondents on the ground that this is third round of litigation.
Earlier two petitions, preferred by the appellant, were finally disposed of.
Those orders have attained finality and in the third round litigation, if the learned Single Judge has disposed of the petition with certain directions, there is no fault and this appeal may be dismissed.
Shri Mishra, learned counsel for appellant reiterated his contentions and submitted that VRS was accepted because of the scheme floated by the respondents on the pretext that the department was going to be closed, but in fact the department was not closed and in 2004, a decision was taken by the respondents to continue the department.
In these circumstances, the appellant has challenged the action of the respondents of his voluntary retirement.
In the light of the judgment of the Apex Court in Om Parkash Agarwal (supra).the writ petition ought to have been allowed and the appellant is entitled to be reinstated.
Facts of the case are that the appellant was working as UDC under the respondents.
The respondents had floated a scheme on 8.1.2001 for voluntary retirement on the ground that a decision was taken to close the M.P.Police Housing Corporation.
2 W.A.No.1286/2011 Anil Kumar Pathak State of M.P.& others 18.9.2012 The appellant had moved an application on 18.3.2002 for voluntary retirement which was accepted on 1.4.2002 and the appellant was paid all the retiral dues by the respondents.
Thereafter, the appellant herein filed a writ petition before this Court registered as W.P.No.18410/2006(s) which was decided by the Single Bench on 21.2.2008 by an order which reads thus:- “21.2.2008 Shri Rajneesh Gupta, learned counsel for the petitioner.
Shri Vivekanand Awasthy, learned Govt.
Advocate for respondent No.1.
Shri K.S.Wadhwa, learned counsel for respondents No.2 and 3.
With consent heard finally.
When the matter came up for hearing it has not been disputed by learned counsel for the petitioner that the point involved in this petition is covered by the order dated 10.4.2007 passed by a Division Bench of this Court in M.P.Police Housing Corporation and another versus Anil Pradhan and another (Writ Appeal No.202/2006).He however, submits that this petition may be dismissed in the light of the aforesaid order dated 10.4.2007 passed in case of M.P.Police Housing Corporation and another versus Anil Pradhan and another (supra) but with a liberty to the petitioner to submit a representation in view of the subsequent event of issuance of order dated 3.5.2007 on the part of respondents No.2 and 3 to engage the persons working in other departments of the State Govt.
on contract basis.
The petitioner has placed on record the order dated 3.5.2007 in support of his contention.
Shri K.S.Wadhwa, learned counsel for respondents No.2 and 3 submits that in case the petitioner submits a representation with supporting documents, his representation shall be considered and appropriate decision shall be taken on it.
Having regard to the aforesaid, the petition is dismissed in light of order dated 10.4.2007 passed in case of M.P.Police Housing Corporation and another versus Anil Pradhan and another (supra) by the Division Bench of this Court.
However, the petitioner shall be 3 W.A.No.1286/2011 Anil Kumar Pathak State of M.P.& others 18.9.2012 at liberty to move a representation before the respondents in the light of the subsequent order dated 3.5.2007 filed by the petitioner along with the rejoinder.
In case the petitioner submits such representation, the same shall be considered and appropriate decision be taken on it within a three months from the date of receipt of such representation.”
Then, after the decision of the respondents, appellant had challenged the decision of the respondents rejecting the representation of the appellant, in Writ Petition No.3262/2009 and the Single Bench of this Court vide order dated 20.9.2010 had decided the matter by an order which reads thus:- “20.09.2010 Shri Rajneesh Gupta, learned counsel for the petitioner.
Shri Amod Gupta, learned Panel Lawyer for respondent No.1.
Shri K.S.Wadhwa, learned counsel for respondents No.2 and 3.
Challenging the order dated 12.6.2008 Annexure P/9 passed by the respondents rejecting his representation, petitioner has filed this writ petition.
From the records it is seen that petitioner was working as Upper Division Clerk in the M.P.Police Housing Corporation.
Record indicates that as the Corporation was at the verge of closure a voluntary retirement scheme was floated.
Petitioner submitted his option seeking voluntary retirement in accordance to the scheme.
His application was accepted and vide order Annexure P/2 he was retired from service after accepting his option.
It seems that subsequently certain decision was taken in the cabinet for modification of the police force and to take steps for revival of the Corporation.
Challenging the acceptance of the resignation petitioner and many others filed writ petitions.
As far as present petitioner is concerned, he filed writ petition No.15365/2005 (s) and during the pendency of the said writ petition it was brought to the notice of this Court that in various cases filed, a Division Bench has rejected the claim 4 W.A.No.1286/2011 Anil Kumar Pathak State of M.P.& others 18.9.2012 made by the employees and accordingly, the writ petition filed by the petitioner W.P.No.15365/2005 (s) was disposed of by holding that in view of the order passed in various writ petitions, petitioner’s option for grant of contract appointment be considered.
Orders passed in W.P.S.No.6189/2001 and by the Division Bench in the other cases are available on record.
In pursuance to the liberty granted to the petitioner, petitioner submitted an application for grant of contract appointment and the same having been rejected, the petitioner has filed this writ petition.
It is a case of the petitioner that his option for voluntary retirement was accepted contrary to the settled principle of law and therefore, was illegal.
It was further argued by Shri Rajneesh Gupta, learned counsel for the petitioner that while rejecting the claim of the petitioner for grant of contract appointment, the respondents have not disclosed any reason and even in the return filed, as no reason is indicated it is stated that respondents have committed error which warrants consideration.
Shri K.S.Wadhwa, learned counsel appearing for respondents No.2 and 3 submits that petitioner’s representation was rejected because there was no post available for appointment on contract basis in the cadre of Ministerial Staff.
Shri Wadhwa points out that only such employees have been granted contract appointment as is evident from Annexure P/7 who are working as Sub Engineer and for whom work was available.
Accordingly, during the couRs.of hearing of this writ petition Shri Wadhwa points out that only Sub Engineers have been given contract appointment and as there is no work available for the petitioner, no relief can be granted to him.
I have heard learned counsel for the parties at length and perused the record.
A Division Bench of this Court in W.A.No.202/2006 vide Annexure R2/1 has allowed the writ appeal filed by the Madhya Pradesh Police Housing Corporation and earlier orders passed by learned Single Judge in the matter of interfering with the voluntary retirement have been set aside.
The Division Bench has found that once the option of Voluntary Retirement Scheme has been accepted, the same cannot be withdrawn.
Keeping in view the order passed by the Division Bench in W.A.5 W.A.No.1286/2011 Anil Kumar Pathak State of M.P.& others 18.9.2012 No.202/2006, not on merit this Court cannot interfere with the acceptance of the Voluntary Retirement Scheme of the respondents.
To this effect, no interference is warranted.
This grievance of the petitioner cannot be not re-agitated in the light of the fact that the earlier writ petition filed by the petitioner on the same grounds being W.P.No.15365/2005 (s) is dismissed by a Bench of this Court on 24.6.2006 vide Annexure P/4.
The only consideration that was to be made is with regard to appointment of the petitioner on contract basis as was done in the case of various employees who have been granted contract appointment.
Even though in the order impugned passed by the respondents nothing is indicated as to why and on what ground the claim of the petitioner for contract appointment is rejected but during the couRs.of hearing of this writ petition by referring to Annexure P/7 the orders granting contract appointment to various employees, Shri K.S.Wadhwa has tried to point out that only such employees have been granted contract appointment who are working on the post of Sub Engineer and no Ministerial Staff is granted appointment on contract basis.
Keeping in view the aforesaid, it is not appropriate for this Court to interfere in the matter when there is nothing available on record to indicate that persons similarly situated and working on the post of Upper Division Clerk or other Ministerial Cadre have been granted contract appointment.
In case petitioner points out to the respondents any material on the basis of which it can be said that appointment to similarly situated employees have been granted, respondents may consider the claim of the petitioner and decide the same by a speaking order.
Accordingly, granting liberty to the petitioner to submit representation in case any similarly situated employee working like the petitioner is granted contract appointment and direct the respondents to consider such representation, if filed, in accordance to law, this petition is disposed of.”
Thereafter, the appellant had again filed a writ petition before the High Court registered as W.P.No.16498/2011 which 6 W.A.No.1286/2011 Anil Kumar Pathak State of M.P.& others 18.9.2012 was decided finally on 28.9.2011 by an order order which reads thus:- “28.09.2011 Shri S.P.Mishra, learned counsel for the petitioner.
The learned counsel for the petitioner prays for and is permitted to withdraw the petition with liberty to take up appropriate proceedings, in accordance with law, in case so advised.
With the aforesaid liberty, the petition filed by the petitioner is disposed of as withdrawn.”
After the decision in W.P.No.16498/2011(s).the appellant herein has challenged the order dated 20.9.2010 passed in W.P.No.3262/2009 in this appeal.
In this appeal, the appellant has challenged the order solely on the ground that the Apex Court in Om Parkash Agarwal (supra) directed reinstatement of such employee who had taken voluntary retirement in view of the scheme floated by the respondents.
Now, firstly, the order passed by the Apex Court in Om Parkash Agarwal (supra) may be looked into.
In the aforesaid case, after floating scheme on 8.1.2001, employee Om Parkash Agarwal had moved an application for VRS which was accepted on 28.11.2001.
Thereafter, he had challenged such decision by filing a writ petition on 5.12.2001.
The emoluments of VRS were also accepted by Om Parkash Agarwal on 24.1.2002 without prejudiced to his rights to challenge the order accepting VRs.The matter travelled up to the Apex Court.
The Apex Court in Om Parkash Agarwal (supra) considering peculiar facts of the case held thus:- “The respondent-Corporation floated the scheme by its order dated 8th January, 2001 and in unequivocal terms it represented that the Corporation is going to be closed and on that representation the 7 W.A.No.1286/2011 Anil Kumar Pathak State of M.P.& others 18.9.2012 appellant sought the voluntary retirement.
It is not the case of the respondents that in fact decision was taken to close the Corporation but for some or the other reason it has been decided to continue with the same.
The appellant was thus duped to seek voluntary retirement.
Further, the voluntary retirement was accepted on 28th November, 2001 but within a short span of time the appellant, on 05th December, 2001, challenged the same.
The benefits on account of voluntary retirement was paid thereafter to the appellant on 24th January, 2002 which the appellant received without prejudice to the rights.
In the face of it, we are of the opinion that the prayer made by the appellant withdrawing the voluntary retirement was fit to be accepted.
In the facts and circumstances of the case, we are of the opinion that the appellant shall be entitled for reinstatement, but he has to return the amount which he has received at the time of seeking voluntary retirement.
The period between the voluntary retirement and reinstatement shall be counted for all purposes except the back wages.
In the result, we allow this appeal, set aside the impugned judgment and direct that the appellant be reinstated in service forthwith but without back wages and further on the condition that he returns the amount already received by him within six weeks from today.
No costs.”
The factual position in the present case is entirely different.
The appellant herein moved an application for VRS on 18.3.2001 which was accepted on 1.4.2002.
The appellant had accepted retiral benefits immediately.
Thereafter, no action was taken by him till 2006 when he had filed W.P.No.18410/06(s) before the High Court.
In the said writ petition, prayer of the appellant as referred hereinabove was for contractual appointment, in other department was allowed and the High Court had passed an order which has been referred hereinabove, but no relief was pressed or granted by the High Court for reinstatement of the appellant in the 8 W.A.No.1286/2011 Anil Kumar Pathak State of M.P.& others 18.9.2012 same department.
Thereafter, the present appellant had filed writ petition before the the Single Bench which has been decided by the order which has been referred hereinabove.
It appears that one more writ petition was filed by the appellant which was withdrawn without any liberty.
In these circumstances, it is apparent that the benefit of the VRS was accepted by the appellant without any protest and for a period of 4 yeaRs.the appellant had not taken any action before any forum.
Even before the High Court in W.P.No.18410/06, prayer of the appellant was for contractual appointment in any of the department, but no prayer was pressed for reinstatement of the appellant in the M.P.Police Housing Corporation.
In aforesaid circumstances, judgment of Om Parkash Agarwal does not help the appellant in which factual position was entirely different.
In the present case, learned Single Judge after considering the entire facts of the case has issued aforesaid directions in which we do not find any error warranting our interference in this writ appeal.
This writ appeal is found without merit and is dismissed with no order as to costs.
(Krishn Kumar Lahoti) (Smt.Vimla Jain) Judge Judge C.