Keshav Niwas Saxena Vs. State of Madhya Pradesh and ors. - Court Judgment

Excerpt:
- madhya pradesh nagar tatha gram nivesh adhiniyam (23 of 1973)section 50(4) proviso (as inserted by act of 2004): [dipak misra, krishna kumar lahoti & rajendra menon, jj] preparation of town development scheme proviso prescribing time limit held, object of amendment is to remove hardship caused to citizens and to provide time limit to consider objections and suggestion and to provide a deeming clause so that the authority would act in quite promptitude. proviso unequivocal, categorical and unambiguous and does not permit any other kind of construction but a singular one. section 50 (4) proviso (as inserted by act of 2004): [dipak misra, krishn kumar lahoti & rajendra menon, jj] preparation of town development scheme held, proviso is not retrospective. scheme already finalised will not lapse and has to be completed within the time span provided under proviso. no vested right accrues in favour of authority on commencement of process of preparation of scheme, which cannot be impaired by introducing proviso. section 50(4) proviso (as inserted by act of 2004): [dipak misra, krishn kumar lahoti & rajendra menon, jj] preparation of town development scheme held, proviso uses the term shall be deemed to have lapsed. it does not convey that scheme gets automatically lapsed. - kishore kumar thakuriya was taken back in service after he was discontinued because the job of water pressure tester was available and his employment had not been terminated validly earlier having denied him his entitlement to be continued in terms of government notification dated 15-5-1987. it is not complained to us indeed that when petitioner's services were terminated after his first appointment order for 29 days spent its force any other person was employed in his place to man the job for which the petitioner was employed. we are satisfied therefore that the petitioner cannot complain of hostile discrimination vis-a-vis kishore kumar thakuriya as facts of his case are entirely different. 6. we must therefore satisfy ourselves in this case if petitioner could complain that he had been continued in service by giving breaks and then suddenly his services are discontinued and on that ground he is therefore entitled to invoke the aid of the circular dated 15-5-1987. this is an occasion however to amplify also the purport of the circular and dymystify the extent of its application. with these few words we conclude explaining brij kishore and its application and expounding more clearly the purport of the circular.ordert.n. singh, j. 1. the law has to be made clear in regard to the holding of often cited decision of this court in brij kishore sharma's case, 1988 mplj 363 = 1988 jlj 137 = 1988 mprcj (hc) 162. that we are required to do because reliance is placed by shri k. n. gupta, appearing for the petitioner, on the decision of this court rendered on 164-1992 in misc. petition no. 2819 of 1990, smt. madhu vaish, to which one of us (shacheendra dwivedi, j.) was a party. otherwise, on a short point the petition could be disposed of on its limited scope, judicially confined under the orders passed earlier in this matter.2. at one stage, before this court, on 12-3-1992, the contention pressed was of hostile discrimination vis-a-vis one k. k. thakuriya. that order was passed by division bench of which one of us (shacheendra dwivedi, j.) was a member. to consider obviously that contention time was granted to respondent-state to file additional return and that has today come before us. we heard this matter on 5-8-1992, 11-8-1992, 19-8-1992 and finally we are disposing of this petition today. we had also taken the view that the question to be decided is, if petitioner suffered hostile discrimination vis-a-vis kishore kumar thakuriya.3. in the additional return facts are brought on record vested on oath and supported by annexures. it appears the other man, kishore kumar thakuriya, alias verma was appointed as daily rated employee on muster roll on the post of water pressure tester and that appointment was made for a short period of 29 days which was extended from time to time and he was continued in service. that was done because the post of water pressure tester had to be manned and he is still therefore continuing in service. kishore kumar thakuriya was taken back in service after he was discontinued because the job of water pressure tester was available and his employment had not been terminated validly earlier having denied him his entitlement to be continued in terms of government notification dated 15-5-1987. it is not complained to us indeed that when petitioner's services were terminated after his first appointment order for 29 days spent its force any other person was employed in his place to man the job for which the petitioner was employed. what is also the admitted fact established on records is that the petitioner came and went and did not tarry to have his appointment renewed for any period or any part or any spell. we are satisfied therefore that the petitioner cannot complain of hostile discrimination vis-a-vis kishore kumar thakuriya as facts of his case are entirely different.4. it is true that in smt. madhu vaish (supra) relief was given to the petitioner and that was done following this court's decision in brij kishore sharma 's case (supra). however, what is to be noted is that on a clear finding that was done -- 'it is not disputed that the petitioner is covered by the circulars.' shri gupta submits that smt. madhu vaish (supra) had also been appointed for 29 days and had not been continued ever thereafter but those facts are not projected in the order and that does not appear to be basis for that order. the order proceeded on the basis of a concession as stated above.5. the unspoken premises of brij kishore (supra) is the constitutional mandate of article 16 which has now blossomed further in terms of recent decisions of the apex court. see, however, in this connection brojo nath 's case, air 1986 sc 1571 and deshbandhu gupta, air 1985 sc 722 etc. the rights of a daily rated worker enforced by the apex court in the decisions dhirendra chamoli, 1986 (1) scc 637 and p. and t. employees' case, air 1987 sc 2342 was taken notice of and applied in brij kishore (supra) because there was a question of hostile discrimination of such casual employees who had been continued in service for long times with breaks affecting their chance of regularisation. such breaks were held expressly, to be unconstitutional and judicially those were killed. brij kishore's ratio is nothing beyond that and it is only that.6. we must therefore satisfy ourselves in this case if petitioner could complain that he had been continued in service by giving breaks and then suddenly his services are discontinued and on that ground he is therefore entitled to invoke the aid of the circular dated 15-5-1987. this is an occasion however to amplify also the purport of the circular and dymystify the extent of its application. the purport of the circular, it appears, was to bring the department's act in line with the constitutional mandate expressed in the decisions cited and in our view the circular was issued to give effect to that. it came in the year 1987 after the apex court's decisions. it is meant to apply to such persons who had been arbitrarily removed without being continued in service (even on a temporary basis) without breaks. the key words are of this circular -- 'nirantar nahi rakhate huye' indeed the word 'nirantar' is the soul of the circular. it was a reference to the practice followed by different departments to give breaks in employing casual workers and that was sought to be interdicted by the circular. with these few words we conclude explaining brij kishore and its application and expounding more clearly the purport of the circular.7. we have no doubt that smt. madhu vaish (supra) cannot be relied on by petitioner in this case for the simple reason that on concession that decision was rendered.8. for all the aforesaid reasons, there is no merit in this petition and it is dismissed.

Judgment:
ORDER

T.N. Singh, J.

1. The law has to be made clear in regard to the holding of often cited decision of this Court in Brij Kishore Sharma's case, 1988 MPLJ 363 = 1988 JLJ 137 = 1988 MPRCJ (HC) 162. That we are required to do because reliance is placed by Shri K. N. Gupta, appearing for the petitioner, on the decision of this Court rendered on 164-1992 in Misc. Petition No. 2819 of 1990, Smt. Madhu Vaish, to which one of us (Shacheendra Dwivedi, J.) was a party. Otherwise, on a short point the petition could be disposed of on its limited scope, judicially confined under the orders passed earlier in this matter.

2. At one stage, before this Court, on 12-3-1992, the contention pressed was of hostile discrimination vis-a-vis one K. K. Thakuriya. That order was passed by Division Bench of which one of us (Shacheendra Dwivedi, J.) was a member. To consider obviously that contention time was granted to respondent-State to file additional return and that has today come before us. We heard this matter on 5-8-1992, 11-8-1992, 19-8-1992 and finally we are disposing of this petition today. We had also taken the view that the question to be decided is, if petitioner suffered hostile discrimination vis-a-vis Kishore Kumar Thakuriya.

3. In the additional return facts are brought on record vested on oath and supported by annexures. It appears the other man, Kishore Kumar Thakuriya, alias Verma was appointed as daily rated employee on muster roll on the post of Water Pressure Tester and that appointment was made for a short period of 29 days which was extended from time to time and he was continued in service. That was done because the post of Water Pressure Tester had to be manned and he is still therefore continuing in service. Kishore Kumar Thakuriya was taken back in service after he was discontinued because the job of Water Pressure Tester was available and his employment had not been terminated validly earlier having denied him his entitlement to be continued in terms of Government notification dated 15-5-1987. It is not complained to us indeed that when petitioner's services were terminated after his first appointment order for 29 days spent its force any other person was employed in his place to man the job for which the petitioner was employed. What is also the admitted fact established on records is that the petitioner came and went and did not tarry to have his appointment renewed for any period or any part or any spell. We are satisfied therefore that the petitioner cannot complain of hostile discrimination vis-a-vis Kishore Kumar Thakuriya as facts of his case are entirely different.

4. It is true that in Smt. Madhu Vaish (supra) relief was given to the petitioner and that was done following this Court's decision in Brij Kishore Sharma 's case (supra). However, what is to be noted is that on a clear finding that was done -- 'It is not disputed that the petitioner is covered by the circulars.' Shri Gupta submits that Smt. Madhu Vaish (supra) had also been appointed for 29 days and had not been continued ever thereafter but those facts are not projected in the order and that does not appear to be basis for that order. The order proceeded on the basis of a concession as stated above.

5. The unspoken premises of Brij Kishore (supra) is the constitutional mandate of Article 16 which has now blossomed further in terms of recent decisions of the Apex Court. See, however, in this connection Brojo Nath 's case, AIR 1986 SC 1571 and Deshbandhu Gupta, AIR 1985 SC 722 etc. The rights of a daily rated worker enforced by the Apex Court in the decisions Dhirendra Chamoli, 1986 (1) SCC 637 and P. and T. Employees' case, AIR 1987 SC 2342 was taken notice of and applied in Brij Kishore (supra) because there was a question of hostile discrimination of such casual employees who had been continued in service for long times with breaks affecting their chance of regularisation. Such breaks were held expressly, to be unconstitutional and judicially those were killed. Brij Kishore's ratio is nothing beyond that and it is only that.

6. We must therefore satisfy ourselves in this case if petitioner could complain that he had been continued in service by giving breaks and then suddenly his services are discontinued and on that ground he is therefore entitled to invoke the aid of the circular dated 15-5-1987. This is an occasion however to amplify also the purport of the circular and dymystify the extent of its application. The purport of the circular, it appears, was to bring the department's act in line with the constitutional mandate expressed in the decisions cited and in our view the circular was issued to give effect to that. It came in the year 1987 after the Apex Court's decisions. It is meant to apply to such persons who had been arbitrarily removed without being continued in service (even on a temporary basis) without breaks. The key words are of this circular -- 'Nirantar Nahi Rakhate Huye' indeed the word 'Nirantar' is the soul of the circular. It was a reference to the practice followed by different departments to give breaks in employing casual workers and that was sought to be interdicted by the circular. With these few words we conclude explaining Brij Kishore and its application and expounding more clearly the purport of the circular.

7. We have no doubt that Smt. Madhu Vaish (supra) cannot be relied on by petitioner in this case for the simple reason that on concession that decision was rendered.

8. For all the aforesaid reasons, there is no merit in this petition and it is dismissed.