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HIGH COURT OF MADHYA PRADESH AT JABALPUR
Writ Petition No : 2124 OF 2010
Ram Mani Dwivedi & Others
- V/s -
State of Madhya Pradesh & Others
Present : Hon'ble Shri Justice Rajendra Menon.
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Shri V.K. Shukla, learned counsel for the petitioner.
Shri S.S. Bisen, learned Govt. Advocate for respondent No.1/State.
Shri Kamlesh Dwivedi, learned counsel for respondent Nos.2 & 3
Shri Samdarshi Tiwari, learned counsel for respondent No.4.
Shri Sourabh Bhushan Shrivastava, learned counsel for respondents
No.5 & 7.
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ORDER
(30 / 08 / 2010)
Challenging the order dated 02/02/2010 annexure P-15
passed by the M.P. State Agricultural Marketing Board, respondent No.2,
rejecting the claim of petitioners for reinstatement and regularization in
service, petitioners have filed this writ petition.
2. Petitioners were appointed as daily wages employee by
respondent No.4 in the year 1995, 1996 and 1997, their services were
dispensed with on 17/02/1998 on the ground that no work is available for
them and the financial condition of the Jawahar Krishi Upaj Mandi Samiti
Gadarwara, respondent No.4, does not permit continuation of petitioners
service. Challenging the aforesaid action of the respondents in terminating
them from service petitioners filed a writ petition being W.P.
No.991/1998(s) before this Court. Initially stay was granted by this Court
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on 06/03/1998 and, therefore, petitioners continued in service by virtue of
stay granted. However, the writ petition, W.P. No.991/1998(s) was
dismissed by this Court on 06/07/2009 vide annexure P-6. This Court
after considering the law laid down by a constitutional Bench of the
Supreme Court in the case of Secretary, State of Karnataka Vs. Uma
Devi, 2006(4) SCC, 1, and another judgment in the case of Post Master
General Kolkata & Others Vs. Tutu Das (Dutta), (2007) 5 SCC, 317,
found that petitioners are not entitled for any benefit, their appointment is
not in accordance to rule, they cannot be regularized and, therefore, their
services were rightly terminated. In pursuance to order passed in writ
petition on 06/07/2009, petitioners were removed from the service on
21/08/09. The order passed by learned Single Bench of this Court in the writ
petition on 06/07/09 was challenged by filing a writ appeal bearing number
W.A. No.597/2009 and when the writ appeal came up for hearing before a
Division Bench of this Court on 27/10/09 counsel for the Krishi Upaj Mandi
Board made a statement that the said respondents would consider the
representation, if any, filed by the petitioners with regard to their
reinstatement and regularization and keeping in view the aforesaid the
Division Bench set aside the order passed by the learned Single Judge and
remanded the matter back to the respondents 1, 2 & 3 for reconsidering the
case of petitioners and their representation for regularization and their
continuation in service in accordance to policy and circulars of the State
Government which was in vogue. Para 6 & 7 of the order passed by the
Division Bench in the writ appeal reads as under :
“6. Mr. Agrawal, learned counsel appearing for the
respondents Mandi submitted that in case the appellants
submit their representations the same shall be considered
in the light of the policy in vogue.
7. Since the learned counsel appearing for the respondents
Mandi has agreed to consider the representations in
relation to reinstatement and regularization of the
3services of the appellants, we are inclined to allow the
present writ appeal and set aside the order passed by the
learned single Judge. Needless to emphasize, in case the
appellants submit their representations, the cases of the
appellants shall be considered only with reference to the
policy in vogue issued by the State Government with
reference to continuance and regularization of daily rated
employees. The said exercise shall be carried out within a
period of three months from the date of receipt of
representations along with copy of the order passed
today.”
3. After consideration of the matter, by the impugned order the
claim is rejected, petitioners have, therefore, again filed this writ petition. It
is the case of petitioner that respondents No.5, 6 & 7 were similarly situated
and were junior to the petitioner have been regularized and similar benefit is
not extended, petitioners claim parity with respondents 5, 6 & 7. Petitioners
seek interference into the matter. That apart it is stated by the petitioners that
their claim have not been properly considered and grounds given for
rejection of their representation in the impugned order is unsustainable.
Inviting attention of this Court to the certain orders passed by another Bench
of this Court in W.P. No.4107/2009(s) Ramashray Patel & Ors. Vs. State of
M.P. & Others, 28/08/09 and upholding of the order passed in the said case
by a Division Bench in W.A. No.986/09 and various other cases on
22/02/2010, Shri V.K. Shukla seeks for interference into the matter. It is the
case of the petitioners that as termination of service of the petitioners was
not proper and as the earlier Single Judge while dismissing the writ petition
NO.991/98 did not take note of the interim order due to which petitioners
continues upto 2009, it is stated that action of rejecting claim of the
petitioners for reinstatement and subsequent regularization is not proper and,
therefore, the matter be re-examined or relief granted to the petitioners.
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4. Shri Samdarshi Tiwari, appearing for respondent No.4 pointing
out that the petitioners case are not similar to the case of Ramashray Patel
and others decided by this Court. He points out that in the case of
Ramashray Patel and others the claim was examined in the light of circular
issued by the State Government on 16/07/2007 and the law laid down in the
case of Uma Devi (supra) and as their claims were rejected on the ground
that in their cases certain proceedings were pending before the Labour Court
they were reinstated by virtue of the order of the Labour Court and,
therefore, they cannot be reinstated. This Court found that interpretation
given to policy annexure P-11 dated 16/05/2007 was not proper and,
therefore, the claim was rejected. Shri Samdarshi Tiwari points out that in
this case the petitioners have not worked for more than 10 years they worked
only from 1995 to 1998 by virtue of interim order passed by this Court,
therefore, they cannot get benefit of said orders passed. However, pointing
out that as petitioners appointment itself is not in accordance to law, they
cannot seek any benefit. Accordingly, Shri Samdarshi Tiwari prays for
rejection of the claim.
5. Learned counsel appearing for private respondents Shri
Sourabh Bhushan Shrivastava and Shri Kamlesh Dwivedi supported the
contention of Shri Samdarshi Tiwari and sought for dismissal of this writ
petition.
6. I have heard learned counsel for the parties and perused the
record. From the records it is clear that petitioners were appointed as and
when work was available, that is, during the season when work was
available in the Mandi. They were appointed intermittently for various
period during the period 1995-1996-1997 and they were never appointed for
a period of 10 years or more by the Mandi. After their services were
terminated on 17/02/1998 they have filed the writ petition and it was by
virtue of interim order passed in the writ petition that they continued.
However, after writ petition was dismissed their service also came to an end
and they were removed. The question required consideration before this
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Court is, as to whether under such circumstances petitioners can be directed
to be reinstated and thereafter their services regularized, in the light of the
law laid by the Constitutional Bench of Supreme Court in the case of Uma
Devi (Supra). If the law laid down by the Supreme Court in the case of Uma
Devi (supra) is meticulously scanned, it is found that Supreme Court has
classified initial appointment into two categories; the first category is the
case which are termed as illegal appointment and second category are those
cases where appointment are termed as irregular appointment. Illegal
appointments are all those appointment which are undertaken without
following the due process of law and in contravention of rules governing
public employment. Irregular appointments are those which are undertaken
after following some procedure known to law, but in which there is some
irregularity in the matter of appointment. The Supreme Court has held that
what can be regularized is an irregular appointment and not a illegal
appointment. However, after taking note of various judgments and after
holding that regularization of illegally appointed daily wages employees
cannot be ordered merely on sympathetic consideration, the Supreme Court
in para 43 and 44 has laid down the following principles :
“43. Thus, it is clear that adherence to the rule of
equality in public employment is a basic feature of our Constitution
and since the rule of law is the core of our Constitution, a Court
would certainly be disabled from passing an order upholding a
violation of Article 14 or in ordering the overlooking of the need to
comply with the requirements of Article 14 read with Article 16 of
the Constitution. Therefore, consistent with the scheme for public
employment, this Court while laying down the law, has necessarily
to hold that unless the appointment is in terms of the relevant rules
and after a proper competition among qualified persons, the same
would not confer any right on the appointee. If it is a contractual
appointment, the appointment comes to an end at the end of the
contract, if it were an engagement or appointment on daily wages
or casual basis, the same would come to an end when it is
discontinued. Similarly, a temporary employee could not claim to
be made permanent on the expiry of his term of appointment. It
has also to be clarified that merely because a temporary employee
or a casual wage worker is continued for a time beyond the term of
his appointment, he would not be entitled to be absorbed in regular
service or made permanent, merely on the strength of such
continuance, if the original appointment was not made by
following a due process of selection as envisaged by the relevant
rules. It is not open to the court to prevent regular recruitment at
the instance of temporary employees whose period of employment
has come to an end or of ad hoc employees who by the very nature
6of their appointment, do not acquire any right. High Courts acting
under Article 226 of the Constitution of India, should not ordinarily
issue directions for absorption, regularization, or permanent
continuance unless the recruitment itself was made regularly and in
terms of the constitutional scheme. Merely because, an employee
had continued under cover of an order of Court, which we have
described as ‘litigious employment’ in the earlier part of the
judgment, he would not be entitled to any right to be absorbed or
made permanent in the service. In fact, in such cases, the High
Court may not be justified in issuing interim directions, since, after
all, if ultimately the employee approaching it is found entitled to
relief, it may be possible for it to mould the relief in such a manner
that ultimately no prejudice will be caused to him, whereas an
interim direction to continue his employment would hold up the
regular procedure for selection or impose on the State the burden of
paying an employee who is really not required. The courts must be
careful in ensuring that they do not interfere unduly with the
economic arrangement of its affairs by the State or its
instrumentalities or lend themselves the instruments to facilitate the
bypassing of the constitutional and statutory mandates.
44. The concept of ‘equal pay for equal work’ is different from
the concept of conferring permanency on those who have been
appointed on adhoc basis, temporary basis, or based on no process
of selection as envisaged by the Rules. This Court has in various
decisions applied the principle of equal pay for equal work and has
laid down the parameters for the application of that principle. The
decisions are rested on the concept of equality enshrined in our
Constitution in the light of the directive principles in that behalf.
But the acceptance of that principle cannot lead to a position where
the court could direct that appointments made without following
the due procedure established by law, be deemed permanent or
issue directions to treat them as permanent. Doing so, would be
negation of the principle of equality of opportunity. The power to
make an order as is necessary for doing complete justice in any
cause or matter pending before this Court, would not normally be
used for giving the go-by to the procedure established by law in the
matter of public employment. Take the situation arising in the
cases before us from the State of Karnataka. Therein, after the
Dharwad decision, the Government had issued repeated directions
and mandatory orders that no temporary or ad hoc employment or
engagement be given. Some of the authorities and departments had
ignored those directions or defied those directions and had
continued to give employment, specifically interdicted by the
orders issued by the executive. Some of the appointing officers
have even been punished for their defiance. It would not be just or
proper to pass an order in exercise of jurisdiction under Article 226
or 32 of the Constitution or in exercise of power under Article 142
of the Constitution of India permitting those persons engaged, to be
absorbed or to be made permanent, based on their appointments or
engagements. Complete justice would be justice according to law
and though it would be open to this Court to mould the relief, this
Court would not grant a relief which would amount to perpetuating
an illegality”
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Finally as a one time measure, the following directions were
issued in para 53 :
53. One aspect needs to be clarified. There may be cases
where irregular appointments (not illegal appointments) as
explained in S.V. NARAYANAPPA (supra), R.N.
NANJUNDAPPA (supra), and B.N. NAGARAJAN (supra), and
referred to in paragraph 15 above, of duly qualified persons in duly
sanctioned vacant posts might have been made and the employees
have continued to work for ten years or more but without the
intervention of orders of courts or of tribunals. The question of
regularization of the services of such employees may have to be
considered on merits in the light of the principles settled by this
Court in the cases above referred to and in the light of this
judgment. In that context, the Union of India, the State
Governments and their instrumentalities should take steps to
regularize as a one time measure, the services of such irregularly
appointed, who have worked for ten years or more in duly
sanctioned posts but not under cover of orders of courts or of
tribunals and should further ensure that regular recruitments are
undertaken to fill those vacant sanctioned posts that require to be
filled up, in cases where temporary employees or daily wagers are
being now employed. The process must be set in motion within six
months from this date. We also clarify that regularization, if any
already made, but not subjudice, need not be reopened based on
this judgment, but there should be no further by-passing of the
constitutional requirement and regularizing or making permanent,
those not duly appointed as per the constitutional scheme.
(Emphasis Supplied)
7. It is, therefore, clear that the petitioners are only entitled to seek
regularization in service in accordance to law laid down by constitutional
Bench of the Supreme Court and this Court by ignoring the law or in utter
disregard to the principles laid by Supreme Court cannot grant any relief to
the petitioners. State Government on 16/05/07 has issued a circular vide
annexure P-11 and in the said circulars a principle for regularization in
accordance to law laid by Supreme Court in the case of Uma Devi (supra) is
prescribed. Petitioners have to show that as on 10/04/2006 they have worked
in the department for more than 10 years. However, by considering the case
of employees for regularization employees who are working for this period
of 10 years by virtue of order passed by tribunal or Courts cannot be taken
note of. That apart, only such appointment can be regularized which are
irregular in nature and not illegal. In the case of the petitioners respondents
have clearly came out with the case that appointment to the post of Nakedar
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subsequently re-designated as Asst. Sub Inspector is done in accordance to
statutory rules and the employees can be appointed only after following the
same. In the case of petitioners, it is crystal clear that no rules or even
procedure know to law for appointment to public service was followed.
Petitioners on their own showing submitted some applications to the
President of Mandi and it is stated that petitioners were appointed. It is not at
all the case of petitioners that their initial appointment in the organization
was in accordance to rule. It is a case where prima facie the appointment of
the petitioners are found to be dehorse the rules and they are back door
entries to the organization. That apart petitioners have only worked for time
period between 1995, 1996 & 1997. From the return filed by the respondents
it is seen that petitioners were season employees and depending upon the
need of work, they were appointed according to the respondents. Even in the
year 1997, petitioners services were dispensed with in March 1997.
thereafter, they were engaged on 25/12/97 and their services were terminated
on 17/02/1998. It is, therefore, a case where the petitioner have not worked
for 10 years and even their continuation after 17/02/98 was by virtue of
interlocutory order passed by this Court.
8. In the case of Uma Devi (supra), it is clearly stipulated that
employees who can be regularized are such who have worked in the
department for 10 years and this period of 10 years has to be calculated by
excluding the period on which employee working by virtue of the stay of a
Court/tribunal. In the light of the aforesaid it is clear that petitioners have not
worked for 10 years continuously and, therefore, no right accrues to them for
being regularized. That apart, even if it is assumed that petitioners have
worked for 10 years and even if the period of work undertaken by them by
virtue of interlocutory order passed in the earlier writ petition is taken note
of, then also petitioners can claim regularization only if it is demonstrated
before this Court that their appointment fall in the category of “irregular
appointment” and not in the category of “illegal appointment”. There is
nothing to indicate that the appointment of the petitioners were made after
following any procedure known to law. It is a case where appointment of
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the petitioners are illegal and, therefore, they cannot be regularized. In the
impugned order passed by the respondents rejecting the claim of
petitioners as directed by the Division Bench in W.A. No.597/09 and as
reproduced hereinabove respondents have examined the case and it is
found by the respondents that in accordance to circular earlier issued by
the state Government i.e. R-1 dated 21/01/2004 petitioners only submitted
their candidature for reconsideration. The form in which the claim has to
be submitted is appended by respondents and is available at page 11 of
annexure R-1 and respondents finding that petitioners services terminated
in 1998 have refused to consider their case for regularization. In doing so,
respondents have not committed any error. Now when the petitioners
wants this Court to issue necessary directions for regularization of their
services this Court is required to take note of the law laid down by the
Supreme Court in the Case of Uma Devi (supra), the circular issued by
the State Government in pursuance thereof on 16/05/07 and directions can
be issued only if the case falls within the parameter laid down in the
judgment rendered by the Supreme Court in the case of Uma Devi (supra)
and the circular in question dated 16/05/2007 and annexure P-11, 12 & 13
are fulfilled. As indicated hereinabove petitioners cases do not come
within the parameter laid down in these circulars and, therefore, a writ of
mandamus for regularizing the petitioners in service contrary to the
aforesaid principle cannot be issued.
9. Petitioners have also compared their case with that of
respondents No.6, 7 & 8 and by pointing out that they are junior to
petitioner and have been regularized petitioners claim parity. However,
for doing so, petitioners have neither brought to the notice of this Court,
the procedure followed for appointment of respondents No.6, 7 & 8, the
manner in which their appointments were made, the period for which they
have worked as daily wages employee and their consideration in
accordance to policy and circulars issued by the State Government earlier
and the procedure followed for regularization. In the absence of specific
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challenge being made to the appointment/regularization of these
respondents with reference to the requirement of law based on various
facts as indicated hereinabove, interference into their regularization
cannot be made. That apart in the absence of cogent evidence and
material being available to show that petitioners and respondents No.6,
7 & 8 stands on the same pedestrian by comparing their cases with
these respondents relief cannot be granted to petitioners. Accordingly,
finding petitioners to have failed to demonstrate parity with the case of
these private respondents this Court does not deem it appropriate to
interfere in the mater.
10. Accordingly, respondents having considered the case of
petitioners in accordance to law and having rejected it after due
consideration now no case is made out for any further indulgence into
the matter. Accordingly, finding no merit in the claim made by the
petitioner, the petition is dismissed.
(RAJENDRA MENON)
JUDGE
ss*