HIGH COURT OF CHATTISGARH AT BILASPUR
WRIT PETITION S No 417 of 2010
Durjan Ram Songer & 22 Others
...Petitioners
Versus
State of Chhattisgarh & 5 Others
...Respondents
! Shri R K Kesharwani Advocate for the petitioners
^ Shri N N Roy Panel Lawyer for the State respondents
CORAM: Honble Shri Satish K Agnihotri J
Dated: 29/01/2010
: Judgement
ORDER ORAL
Passed on 29th day of January 2010
WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA
1. By this petition, the petitioners seek to challenge the
decision of the Statutory Committee dated 31.01.2009
communicated to the Commissioner, Public Instructions, vide
letter dated 6.3.2009 (Annexure P/1) and further to direct the
respondent authorities to consider and decide the
representations of the petitioners afresh in light of the order
dated 7.9.2006 passed in W.P. (S) No. 1588/2005 (Murali Prasad
Kashyap & Others v. State of M.P. & Others) (Annexure P/5).
2. The facts, in brief, as projected by the petitioners are
that the petitioners were appointed as Teacher on ad hoc basis
vide order dated 7.12.1982 (Annexure P/2). All of a sudden,
their services were terminated. Some of the similarly situated
teachers filed Original Application before the Madhya Pradesh
State Administrative Tribunal at Jabalpur (for short `the
SAT’). Pursuant to the order passed by the SAT, the similarly
situated persons were taken back in regular service.
Thereafter, the petitioners also approached the SAT wherein
vide order dated 09.01.1998 (Annexure P/3), the petitioners
were directed to appear before the Selection Committee and it
was further directed to consider the case of the petitioners
and if they were found fit, they should be considered for
appointment/reappointment keeping in view the availability of
the vacancies. Pursuant to the said order, the similarly
situated persons made a representation to the Selection
Committee upon which the State Government respondent
authorities issued a memo dated 9.6.2008 (Annexure P/4) to all
the Collectors and District Education Officers, stating that
the ad hoc teachers whose services have come to an end, their
representations may be decided within a period of one month if
their cases are similar to that of Murli Prasad Kashyap
(supra). In such cases, if reappointment is made, those persons
shall not be entitled to the salary for the period they were
out of service on the basis of `no work-no pay’.
3. Shri Kesharwani, learned counsel appearing for the
petitioners submits that pursuant to the memo dated 9.6.2008
(Annexure P/4) the petitioners have made representations to the
District Education Officer, Raipur which was forwarded to the
Collector. Thereafter, the Collector, Raipur, instead of
deciding the said representations, referred the same to the
Additional Collector. The petitioners were informed to appear
before him alongwith relevant documents. The petitioners
appeared before the authorities alongwith relevant documents.
Their cases were considered by the Statutory Committee and vide
the impugned order dated 06.03.2009 (Annexure P/1), the
District Education Officer, Raipur, informed the Commissioner,
Public Instructions, Chhattisgarh, that the Statutory Committee
has taken a decision on 31.01.2009 that it would not be proper
to reappoint the ad hoc teachers in service.
4. Shri Kesharwani further submits that the action of the
respondent authorities is in contravention of the order passed
by this Court in Murli Prasad Kashyap (supra). The petitioners
ought to have been reappointed on the post of Teacher.
5. Per contra, Shri Roy, learned counsel appearing for the
State/respondents submits that the petitioners were not
appointed in accordance with the constitutional scheme of
employment.
6. The question which arises in the present petition is asto
whether the petitioners appointed on ad hoc basis can continue
on the posts or be reinstated in service when their services
have been discontinued or disengaged thereafter.
7. The issue involved in the present petition is no longer
res integra as the Supreme Court, in a catena of decisions has
made clear that the employees appointed on ad hoc basis have no
right to continue in service or reinstatement. The appointment
itself is de hors the constitutional scheme of employment.
8. Admittedly, the petitioners were appointed on ad hoc basis
and not in accordance with the constitutional scheme of
employment. The appointment of the petitioners was purely on
temporary basis. A temporary, ad hoc employee/daily wager
cannot claim regularization, continuance or reinstatement in
service on the basis of appointment, which was temporary and
not in accordance with law and the same was de hors the
constitutional scheme of employment. (See Secretary, State of
Karnataka and Others vs. Umadevi (3) and Others1, Indian Drugs
& Pharmaceuticals Ltd. v. Workmen, Indian Drugs &
Pharmaceuticals Ltd.2, Official Liquidator v. Dayanand and
others3 and State of Punjab and Others v. Surjit Singh and
Others4).
9. With regard to regularisation of the employees working on
temporary basis, the Supreme Court in Umadevi (supra), observed
as under:
“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.”
10. The above ratio laid down by the Supreme Court has been
reiterated by this Court in Ashwani Kumar Verma & Others v.
State of Chhattigarh & Another5 and Somendra Pratap Singh v.
The State of M.P. & others6. Against the order passed in
Somendra Pratap Singh (supra), the petitioner therein preferred
a writ appeal being W.A. (PR) No. 2077/2008, which was
dismissed by the Division Bench of this Court by order dated
29.04.2008 affirming the order passed by the Single Bench.
Thereagainst, the matter was taken upto the Supreme Court by
filing Special Leave Petition being S.L.P.(C) No. 27190/2008
(Somendra Pratap Singh v. State of Chhattisgarh & Others),
which was also dismissed by the Supreme Court affirming the
view taken by this Court, vide its order dated 23.03.2009.
11. This Court in Sanjay Patil v. State of Chhattisgarh &
Another7, while dealing with similar issue observed that “if
the State Government has regularized some of the daily wagers,
not appointed in accordance with the constitutional scheme of
employment, this Court cannot issue a positive direction to
legalise the illegal appointment on the ground that certain
illegal appointments have been legalized/regularized by the
employer.
12. In this context, the Supreme Court, in Ashok Kumar Sonkar
v. Union of India8, observed as under:
“34. It is not a case where
appointment was irregular. If an
appointment is irregular, the same
can be regularised. The Court may
not take serious note of an
irregularity within the meaning of
the provisions of the Act. But if
an appointment is illegal, it is
non est in the eye of law, which
renders the appointment to be a
nullity. ”
13. Further, in State of Punjab & another v. Surjit Singh &
Others9, the Supreme Court reaffirmed the above ratio in the
following terms:
“39. We would, however, before
parting make an observation that
the submission of the learned
counsel that only because some
juniors have got the benefit, the
same by itself cannot be a ground
for extending the same benefit to
the respondents herein. It is now
well known that the equality
clause contained in Article 14
should be invoked only where the
parties are similarly situated and
where orders passed in their
favour are legal and not illegal.
It has a positive concept.”
14. For the reasons stated hereinabove and applying the well
settled principles of law to the facts of the present case
wherein the petitioners were appointed purely on temporary
basis, they are not entitled to any relief of in-instatement
/reappointment.
15. Resultantly, the writ petition fails and is dismissed.
16. No order asto costs.
J U D G E
