Krishan Kumar Paliya vs The State Of Madhya Pradesh
- Court
- Madhya Pradesh High Court
NEUTRAL CITATION NO. 2026:MPHC-GWL:26831
1 WP. No. 896 of 2025
THE IN HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE ANAND SINGH BAHRAWAT
WRIT PETITION No. 896 of 2025
KRISHAN KUMAR PALIYA
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Jitendra Kumar Sharma – Senior Advocate with Ms. Krati Sachdev –
Advocate for petitioner.
Shri B.M. Patel – Government Advocate for respondent/State.
Reserved on : 31.08.2026
Pronounced on : 08.09.2026
___________________________________________________________________
ORDER
Heard on IA. No.12446/2026, an application for amendment in the Memo
of Writ Petition.
1.1 The first question which arises for consideration is whether the proposed
amendment can be permitted at this stage of the proceedings.
It is true that while exercising jurisdiction under Article 226 of the Constitution,
this Court is not strictly governed by the provisions of the Code of Civil
Procedure, 1908. However, the principles underlying Order VI Rule 17 of the
CPC may be kept in view while considering an application for amendment. The
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power to permit amendment is discretionary and the Court has to examine
whether the proposed amendment is necessary for determining the controversy
already involved in the writ petition or whether it introduces a new factual
foundation, cause of action or relief. The amendment sought by the petitioner
cannot, in the facts of the present case, be treated as a mere consequential or
formal amendment. The original writ petition was instituted challenging the non-
payment of salary and non-acceptance of the petitioner's joining. The principal
grievance raised therein was that the petitioner who according to him had been
continuously working and had also been extended the benefit of Viniymatikaran,
was being prevented from discharging his duties. The relief sought was
consequently for release of salary and permitting him to work. The proposed
amendment, however, seeks to introduce an independent challenge to the enquiry
report/order dated 30.06.2026 on the ground that the same was passed in
violation of principles of natural justice and without giving the petitioner an
effective opportunity to place his case and relevant documents. The petitioner
further seeks quashing of the said report and consequential relief of
continuation/joining in service and salary. Thus, the proposed amendment is not
confined to supplying better particulars of the original grievance. It seeks to bring
into question the validity of a subsequent enquiry and the findings recorded
therein. The validity of the enquiry, the opportunity allegedly afforded to the
petitioner, the documents considered by the enquiry committee, the procedure
followed and the correctness of the findings recorded therein would all become
matters requiring separate consideration. The respondents have already filed their
pleadings in the original writ petition. Permitting the proposed amendment at this
stage would require the respondents to file a fresh and detailed response to the
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allegations regarding the enquiry proceedings and alleged violation of natural
justice. The scope of the proceedings would consequently stand enlarged and the
respondents would be required to meet a substantially different case from the one
originally pleaded.
1.2 It is also relevant that the petitioner is not without a remedy against the
subsequent order/report dated 30.06.2026. If the petitioner seeks to challenge the
validity of the said enquiry report on the ground of violation of natural justice or
on any other ground, he may raise such grievance in an appropriate and properly
constituted proceeding where the validity of the enquiry and the findings
recorded therein can be examined on the basis of the complete record.
The mere fact that the subsequent enquiry was conducted during the pendency of
the present writ petition does not, by itself, confer an absolute right upon the
petitioner to incorporate every subsequent grievance into the pending
proceedings. The Court has to examine whether the proposed amendment is
necessary for deciding the original controversy or whether it would introduce a
fresh and substantially different controversy. In the present case, permitting the
proposed amendment would require this Court to examine a fresh factual
controversy relating to the enquiry proceedings, the opportunity granted to the
petitioner, the material considered by the enquiry authority and the legality of the
findings recorded on 30.06.2026. Such an exercise would substantially enlarge
the scope of the present writ petition. Learned Senior Counsel for petitioner in
support of his amendment application has relied on order dated 05.05.2026
passed by the Division Bench of this Court in WA. No.1389/2026 [Jagdish
Singh Jatav Vs. State of M.P. And Others] .
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1.3 There is yet another important aspect. The respondents have taken a
specific stand that the petitioner has failed to establish the existence of any valid
foundational appointment order and that the departmental record does not
disclose a lawful selection or appointment process. The enquiry has also
examined the legality of the appointments of the petitioner and other similarly
situated employees. The proposed amendment would, therefore, require
adjudication of several factual aspects relating to the petitioner's initial
appointment and the subsequent enquiry, which cannot appropriately be
introduced into the present proceedings through the proposed amendment.
This Court is conscious that procedural rules are intended to advance the cause of
justice and ordinarily a subsequent event arising during pendency of a writ
petition may, in an appropriate case, be brought on record. However, such
discretion cannot be exercised where the proposed amendment substantially
alters the nature and scope of the proceedings and requires adjudication of a fresh
factual controversy.
1.4 In the considered opinion of this Court, the proposed amendment is not
merely consequential in nature. It seeks to introduce a fresh challenge to the
enquiry report dated 30.06.2026, based upon alleged violation of natural justice,
and also seeks a new substantive relief for quashing the said report and
consequential benefits. The same would enlarge the scope of the present writ
petition and require adjudication of issues which were not part of the original
controversy. The order relied on by petitioner in Jagdish Singh Jatav (supra) is
not applicable in the present case as in the said order the Division Bench of this
Court has specifically observed that the proposed amendment does not change
the nature of case whereas in the present case position is not the same.
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1.5 Accordingly, this Court is of the considered view that the amendment
application cannot be allowed. Consequently, I.A. No.12446/2026, filed by the
petitioner seeking amendment in the writ petition, is hereby rejected.
2. This petition, under Article 226 of Constitution of India, has been filed
seeking the following relief (s): -
“1. That, the respondents may kindly be directed to release the salary
of the petitioner w.e.f. March, 2024 and allow him to discharge
services in accordance with law in the interest of justice.
2. The cost of the petition be awarded to the petitioners.
3. Any other order or directions deemed fit in the circumstances of
the case be issued in favour of the petitioners.”
3. The present writ petition has been filed under Article 226 of the
Constitution of India seeking a direction to the respondents to release the salary
of the petitioner from March, 2024 and to permit him to join and discharge his
duties as Pump Driver. The petitioner has also challenged the action of the
respondents whereby he was not permitted to continue in service without passing
any formal order of termination. During pendency of the petition, an enquiry was
conducted pursuant to the order passed by this Court and the respondents have
brought on record the outcome thereof. The petitioner has thereafter sought
amendment of the writ petition to challenge the enquiry report/order dated
30.06.2026. The original grievance of the petitioner was that despite his long
service, his salary was withheld and he was not permitted to join.
4. The case of the petitioner is that he was initially appointed on 24.04.1993
on the post of Pump Driver and has thereafter continuously discharged his duties.
He relies upon his service book and further submits that he was granted the
benefit of the Government policy dated 07.10.2016 relating to Viniymitikaran by
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order dated 18.08.2017. According to the petitioner, after having been treated as a
Sthayi Karmi and having been extended the benefit of the aforesaid policy, the
respondents could not stop his salary or prevent him from discharging his duties
without giving him an opportunity of hearing.
5. Learned counsel for the petitioner submits that there is no allegation of any
misconduct against the petitioner. It is argued that the alleged enquiry before the
Lokayukt against certain officers of the Department has no connection with the
petitioner and he cannot be made to suffer for any alleged irregularity committed
by such officers. It is further submitted that the petitioner has continuously
worked for several years and his services were subsequently
regularised/classified under the Government policy. On these grounds, it is
contended that withholding of salary and restraining the petitioner from joining
service is arbitrary and unsustainable.
6. Per contra , the respondents have opposed the petition. In their return as
well as additional return, the respondents have specifically taken the stand that
the petitioner has failed to produce any valid appointment order, engagement
letter, selection record or approval of the competent authority. It is stated that
upon scrutiny of the departmental record, no appointment or engagement order in
favour of the petitioner could be traced. According to the respondents, in absence
of the foundational documents establishing a lawful appointment, the alleged
engagement of the petitioner itself is doubtful and unauthorised.
7. The respondents have further stated that a three-member committee was
constituted for examining the legality of the appointments, including that of the
petitioner. The respondents maintained that the scrutiny was not based merely
upon an oral complaint but was followed by examination of the available
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departmental records, which revealed absence of a valid appointment order. It is
also their case that the petitioner has not produced any document showing that
his appointment was made through a lawful selection process or against a
sanctioned post.
8. This Court, vide order dated 16.04.2026, had directed the competent
authority to finalise the enquiry within the stipulated period. The compliance
report filed by the respondents records that the enquiry was thereafter finalised
and an order dated 30.06.2026 was passed. The respondents have placed the said
order on record as Annexure R/1.
9. From the subsequent report/order placed on record, it is stated that the
enquiry examined the appointments of the petitioner and 21 other similarly
situated employees. The finding recorded therein is that the prescribed
recruitment procedure was not followed, appointment orders were not available
in the record and the names of the concerned persons were also not found in the
classification employee list. On the basis of the material available on record, the
appointments of all 22 persons, including the petitioner, have been found illegal.
10. During pendency of the petition, the petitioner has sought amendment of
the writ petition for challenging the enquiry report/order dated 30.06.2026. The
proposed amendment proceeds on the basis that the enquiry report has serious
civil consequences and that the petitioner was not granted proper and effective
opportunity to place his case and relevant documents before the enquiry
authority. The petitioner, therefore, seeks quashing of the enquiry report insofar
as it concerns him and consequential permission to continue/join service with
consequential salary and other benefits.
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11. The principal question which now arises for consideration is whether, in
the facts of the present case, the petitioner has established a legally enforceable
right to continue in service and claim salary merely on the basis of his long
service, service book and subsequent benefit of Viniymitikaran, despite the
categorical finding recorded by the competent authority that the foundational
appointment itself was not made in accordance with the prescribed procedure.
12. In the considered opinion of this Court, the answer has to be in the
negative. The petitioner claims his initial appointment from 24.04.1993.
However, when the legality of that appointment was specifically examined, the
petitioner was unable to establish the existence of the appointment order or any
other foundational record demonstrating that his appointment was made by the
competent authority through the prescribed process. The respondents, on the
other hand, have specifically stated that no such appointment order is available in
the official record.
13. The mere fact that the petitioner has worked for a considerable length of
time cannot, by itself, validate an appointment which was not shown to have
been made in accordance with law. Length of service may establish the fact that
the person worked, but it cannot, in the absence of a lawful initial appointment,
by itself establish a legal right to continue in public employment.
14. The petitioner has placed considerable reliance upon his service book.
However, the respondents have rightly pointed out that a service book is an
administrative record maintained during the course of service and cannot, by
itself, substitute the foundational appointment order or establish that the initial
appointment was made by the competent authority in accordance with the
prescribed recruitment procedure. Even past payment of salary or continuation in
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service cannot confer legality upon an appointment which was otherwise
unauthorised.
15. The same principle applies to the subsequent benefit granted to the
petitioner under the Viniymitikaran Policy dated 07.10.2016. The respondents
have specifically pleaded that classification under such a policy presupposes an
underlying engagement which is legally recognisable and traceable to the
competent authority. The petitioner has not placed before this Court the
foundational document showing that his original appointment was made through
the prescribed procedure.
16. The mere subsequent grant of a benefit under a policy cannot, in the facts
of the present case, be treated as an independent source of appointment so as to
dispense with proof of the legality of the original engagement. More particularly,
when the competent authority, after an enquiry directed by this Court, has
examined the relevant records and has recorded a categorical finding that no
appointment order was issued and that the prescribed recruitment procedure was
not followed, the petitioner cannot claim a right to public employment merely on
the basis of his past continuance.
17. Learned counsel for the petitioner has also relied upon the principle of
natural justice and has contended that no effective opportunity was granted to
him before the enquiry report dated 30.06.2026 was passed. The petitioner has
accordingly pleaded violation of natural justice in the amendment application.
18. However, the nature of the exercise undertaken by the respondents is also
required to be kept in view. The enquiry was directed to ascertain the legality of
the petitioner's initial engagement on the basis of the official record. The
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respondents have not proceeded on the basis of any alleged misconduct
committed by the petitioner during service. The fundamental issue examined was
whether there existed a lawful appointment in his favour. The report records
absence of appointment order and non-following of the prescribed recruitment
procedure.
19. The petitioner cannot derive a positive right to continue in public
employment merely because no misconduct has been attributed to him. The
absence of misconduct is a different matter from the existence of a lawful
appointment. Where the very foundation of appointment is found to be absent,
the question of permitting continuation merely because the employee has not
committed any misconduct does not arise.
20. It is also significant that the respondents have complied with the direction
issued by this Court to finalise the enquiry. The Court had earlier noticed that the
enquiry report had already been submitted and directed the competent authority
to take a final decision after taking the petitioner's explanation. Thereafter, the
respondents have placed the outcome of the enquiry and the order dated
30.06.2026 on record.
21. In these circumstances, this Court finds no justification to issue a
mandamus directing payment of salary for the period during which the petitioner
was not permitted to work, particularly when the very basis of his appointment
has subsequently been found illegal. The principle of payment of salary for work
rendered cannot be invoked to create or continue a substantive right to public
employment where the underlying appointment itself has not been established as
lawful.
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22. The contention of the petitioner that he has been made a scapegoat for the
alleged misconduct of certain officers also does not advance his case. The
enquiry report, as placed before this Court, is not founded merely upon the
alleged guilt of the officers. The respondents have relied upon examination of the
departmental records and the absence of the appointment and recruitment records
relating to the petitioner and similarly situated persons.
23. It is, therefore, not a case where the respondents have denied the petitioner
his right merely because some other officer was found guilty. The question before
the Court is whether the petitioner can establish his own lawful appointment. On
the material placed on record, he has failed to do so.
24. This Court is conscious of the fact that the petitioner claims to have served
the Department for a long period. However, equitable considerations arising from
long service cannot override the requirement that appointment to public service
must have a lawful foundation. Public employment cannot be continued only on
the ground that an employee has remained in service for a long period, if the
appointment itself is found to have been made contrary to the prescribed
procedure.
25. In view of the aforesaid discussion, this Court finds that the petitioner has
failed to establish any enforceable legal right to payment of salary from March,
2024 or to continuation in service on the basis of the documents and pleadings
placed before this Court.
26. Consequently, the writ petition is found to be devoid of merit and is
accordingly dismissed .
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27. It is made clear that the dismissal of the present writ petition and rejection
of the amendment application shall not prevent the petitioner from filing a fresh
petition in accordance with law against enquiry report/order dated 30.06.2026.
28. Needless to observe, this Court has considered the controversy on the basis
of the material placed on record in the present proceedings and has not expressed
any opinion regarding the rights, if any, of any other employee who is not before
this Court.
29. Pending interlocutory applications, if any, are also disposed of.
(Anand Singh Bahrawat)
Judge
pd
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