{"id":31866,"date":"2010-08-30T00:00:00","date_gmt":"2010-08-29T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ram-mani-dwivedi-vs-the-state-of-madhya-pradesh-on-30-august-2010"},"modified":"2017-06-28T13:38:55","modified_gmt":"2017-06-28T08:08:55","slug":"ram-mani-dwivedi-vs-the-state-of-madhya-pradesh-on-30-august-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ram-mani-dwivedi-vs-the-state-of-madhya-pradesh-on-30-august-2010","title":{"rendered":"Ram Mani Dwivedi vs The State Of Madhya Pradesh on 30 August, 2010"},"content":{"rendered":"
Madhya Pradesh High Court<\/div>\n
Ram Mani Dwivedi vs The State Of Madhya Pradesh on 30 August, 2010<\/div>\n
                                                                                           1\n\n\n\n        HIGH COURT OF MADHYA PRADESH AT JABALPUR\n\n\n\n\n                        Writ Petition No : 2124 OF 2010\n\n\n\n                             Ram Mani Dwivedi & Others\n                                        - V\/s -\n                           State of Madhya Pradesh & Others\n\n\n\nPresent :              Hon'ble Shri Justice Rajendra Menon.\n--------------------------------------------------------------------------------------------\n               Shri V.K. Shukla, learned counsel for the petitioner.\n               Shri S.S. Bisen, learned Govt. Advocate for respondent No.1\/State.\n               Shri Kamlesh Dwivedi, learned counsel for respondent Nos.2 & 3\n               Shri Samdarshi Tiwari, learned counsel for respondent No.4.\n               Shri Sourabh Bhushan Shrivastava, learned counsel for respondents\n               No.5 & 7.\n--------------------------------------------------------------------------------------------\n                                       ORDER\n<\/pre>\n
                                     (30 \/ 08 \/ 2010)<\/p>\n
               Challenging the order dated 02\/02\/2010 annexure P-15
\npassed by the M.P. State Agricultural Marketing Board, respondent No.2,
\nrejecting the claim of petitioners for reinstatement and regularization in
\nservice, petitioners have filed this writ petition.\n<\/p>\n
2.             Petitioners were appointed as daily wages employee by
\nrespondent No.4 in the year 1995, 1996 and 1997, their services were
\ndispensed with on 17\/02\/1998 on the ground that no work is available for
\nthem and the financial condition of the Jawahar Krishi Upaj Mandi Samiti
\nGadarwara, respondent No.4, does not permit continuation of petitioners
\nservice. Challenging the aforesaid action of the respondents in terminating
\nthem from service petitioners filed a writ petition being W.P.
\nNo.991\/1998(s) before this Court. Initially stay was granted by this Court
\n                                                                            2<\/span><\/p>\n
on 06\/03\/1998 and, therefore, petitioners continued in service by virtue of
\nstay granted. However, the writ petition, W.P. No.991\/1998(s) was
\ndismissed by this Court on 06\/07\/2009 vide annexure P-6. This Court
\nafter considering the law laid down by a constitutional Bench of the
\nSupreme Court in the case of Secretary, State of Karnataka Vs. Uma
\nDevi, 2006(4) SCC, 1, and another judgment in the case of Post Master
\nGeneral Kolkata & Others Vs. Tutu Das (Dutta), (2007) 5 SCC, 317,
\nfound that petitioners are not entitled for any benefit, their appointment is
\nnot in accordance to rule, they cannot be regularized and, therefore, their
\nservices were rightly terminated. In pursuance to order passed in writ
\npetition on 06\/07\/2009, petitioners were removed from the service on
\n21\/08\/09. The order passed by learned Single Bench of this Court in the writ
\npetition on 06\/07\/09 was challenged by filing a writ appeal bearing number
\nW.A. No.597\/2009 and when the writ appeal came up for hearing before a
\nDivision Bench of this Court on 27\/10\/09 counsel for the Krishi Upaj Mandi
\nBoard made a statement that the said respondents would consider the
\nrepresentation, if any, filed by the petitioners with regard to their
\nreinstatement and regularization and keeping in view the aforesaid the
\nDivision Bench set aside the order passed by the learned Single Judge and
\nremanded the matter back to the respondents 1, 2 & 3 for reconsidering the
\ncase of petitioners and their representation for regularization and their
\ncontinuation in service in accordance to policy and circulars of the State
\nGovernment which was in vogue. Para 6 & 7 of the order passed by the
\nDivision Bench in the writ appeal reads as under :\n<\/p>\n
      “6.   Mr. Agrawal, learned counsel appearing for the
\n            respondents Mandi submitted that in case the appellants
\n            submit their representations the same shall be considered
\n            in the light of the policy in vogue.\n<\/p><\/blockquote>\n
      7.    Since the learned counsel appearing for the respondents
\n            Mandi has agreed to consider the representations in
\n            relation to reinstatement and regularization of the
\n                                                                                 3<\/span><\/p>\n
             services of the appellants, we are inclined to allow the
\n             present writ appeal and set aside the order passed by the
\n             learned single Judge. Needless to emphasize, in case the
\n             appellants submit their representations, the cases of the
\n             appellants shall be considered only with reference to the
\n             policy in vogue issued by the State Government with
\n             reference to continuance and regularization of daily rated
\n             employees. The said exercise shall be carried out within a
\n             period of three months from the date of receipt of
\n             representations along with copy of the order passed
\n             today.”\n<\/p><\/blockquote>\n
3.           After consideration of the matter, by the impugned order the
\nclaim is rejected, petitioners have, therefore, again filed this writ petition. It
\nis the case of petitioner that respondents No.5, 6 & 7 were similarly situated
\nand were junior to the petitioner have been regularized and similar benefit is
\nnot extended, petitioners claim parity with respondents 5, 6 & 7. Petitioners
\nseek interference into the matter. That apart it is stated by the petitioners that
\ntheir claim have not been properly considered and grounds given for
\nrejection of their representation in the impugned order is unsustainable.
\nInviting attention of this Court to the certain orders passed by another Bench
\nof this Court in W.P. No.4107\/2009(s) Ramashray Patel & Ors. Vs. State of
\nM.P. & Others, 28\/08\/09 and upholding of the order passed in the said case
\nby a Division Bench in W.A. No.986\/09 and various other cases on
\n22\/02\/2010, Shri V.K. Shukla seeks for interference into the matter. It is the
\ncase of the petitioners that as termination of service of the petitioners was
\nnot proper and as the earlier Single Judge while dismissing the writ petition
\nNO.991\/98 did not take note of the interim order due to which petitioners
\ncontinues upto 2009, it is stated that action of rejecting claim of the
\npetitioners for reinstatement and subsequent regularization is not proper and,
\ntherefore, the matter be re-examined or relief granted to the petitioners.\n<\/p>\n
                                                                           4<\/span><\/p>\n
4.           Shri Samdarshi Tiwari, appearing for respondent No.4 pointing
\nout that the petitioners case are not similar to the case of Ramashray Patel
\nand others decided by this Court. He points out that in the case of
\nRamashray Patel and others the claim was examined in the light of circular
\nissued by the State Government on 16\/07\/2007 and the law laid down in the
\ncase of Uma Devi (supra) and as their claims were rejected on the ground
\nthat in their cases certain proceedings were pending before the Labour Court
\nthey were reinstated by virtue of the order of the Labour Court and,
\ntherefore, they cannot be reinstated. This Court found that interpretation
\ngiven to policy annexure P-11 dated 16\/05\/2007 was not proper and,
\ntherefore, the claim was rejected. Shri Samdarshi Tiwari points out that in
\nthis case the petitioners have not worked for more than 10 years they worked
\nonly from 1995 to 1998 by virtue of interim order passed by this Court,
\ntherefore, they cannot get benefit of said orders passed. However, pointing
\nout that as petitioners appointment itself is not in accordance to law, they
\ncannot seek any benefit. Accordingly, Shri Samdarshi Tiwari prays for
\nrejection of the claim.\n<\/p>\n
5.           Learned counsel appearing for private respondents Shri
\nSourabh Bhushan Shrivastava and Shri Kamlesh Dwivedi supported the
\ncontention of Shri Samdarshi Tiwari and sought for dismissal of this writ
\npetition.\n<\/p>\n
6.           I have heard learned counsel for the parties and perused the
\nrecord. From the records it is clear that petitioners were appointed as and
\nwhen work was available, that is, during the season when work was
\navailable in the Mandi. They were appointed intermittently for various
\nperiod during the period 1995-1996-1997 and they were never appointed for
\na period of 10 years or more by the Mandi. After their services were
\nterminated on 17\/02\/1998 they have filed the writ petition and it was by
\nvirtue of interim order passed in the writ petition that they continued.
\nHowever, after writ petition was dismissed their service also came to an end
\nand they were removed. The question required consideration before this
\n                                                                                     5<\/span><\/p>\n
Court is, as to whether under such circumstances petitioners can be directed
\nto be reinstated and thereafter their services regularized, in the light of the
\nlaw laid by the Constitutional Bench of Supreme Court in the case of Uma
\nDevi (Supra). If the law laid down by the Supreme Court in the case of Uma
\nDevi (supra) is meticulously scanned, it is found that Supreme Court has
\nclassified initial appointment into two categories; the first category is the
\ncase which are termed as illegal appointment and second category are those
\ncases where appointment are termed as irregular appointment. Illegal
\nappointments are all those appointment which are undertaken without
\nfollowing the due process of law and in contravention of rules governing
\npublic employment. Irregular appointments are those which are undertaken
\nafter following some procedure known to law, but in which there is some
\nirregularity in the matter of appointment. The Supreme Court has held that
\nwhat can be regularized is an irregular appointment and not a illegal
\nappointment. However, after taking note of various judgments and after
\nholding that regularization of illegally appointed daily wages employees
\ncannot be ordered merely on sympathetic consideration, the Supreme Court
\nin para 43 and 44 has laid down the following principles :\n<\/p>\n
            “43.             Thus, it is clear that adherence to the rule of
\n            equality in public employment is a basic feature of our Constitution
\n            and since the rule of law is the core of our Constitution, a Court
\n            would certainly be disabled from passing an order upholding a
\n            violation of Article 14 or in ordering the overlooking of the need to
\n            comply with the requirements of Article 14 read with Article 16 of
\n            the Constitution. Therefore, consistent with the scheme for public
\n            employment, this Court while laying down the law, has necessarily
\n            to hold that unless the appointment is in terms of the relevant rules
\n            and after a proper competition among qualified persons, the same
\n            would not confer any right on the appointee. If it is a contractual
\n            appointment, the appointment comes to an end at the end of the
\n            contract, if it were an engagement or appointment on daily wages
\n            or casual basis, the same would come to an end when it is
\n            discontinued. Similarly, a temporary employee could not claim to
\n            be made permanent on the expiry of his term of appointment. It
\n            has also to be clarified that merely because a temporary employee
\n            or a casual wage worker is continued for a time beyond the term of
\n            his appointment, he would not be entitled to be absorbed in regular
\n            service or made permanent, merely on the strength of such
\n            continuance, if the original appointment was not made by
\n            following a due process of selection as envisaged by the relevant
\n            rules. It is not open to the court to prevent regular recruitment at
\n            the instance of temporary employees whose period of employment
\n            has come to an end or of ad hoc employees who by the very nature
\n                                                                          6<\/span><\/p>\n
of their appointment, do not acquire any right. High Courts acting
\nunder Article 226 of the Constitution of India, should not ordinarily
\nissue directions for absorption, regularization, or permanent
\ncontinuance unless the recruitment itself was made regularly and in
\nterms of the constitutional scheme. Merely because, an employee
\nhad continued under cover of an order of Court, which we have
\ndescribed as ‘litigious employment’ in the earlier part of the
\njudgment, he would not be entitled to any right to be absorbed or
\nmade permanent in the service. In fact, in such cases, the High
\nCourt may not be justified in issuing interim directions, since, after
\nall, if ultimately the employee approaching it is found entitled to
\nrelief, it may be possible for it to mould the relief in such a manner
\nthat ultimately no prejudice will be caused to him, whereas an
\ninterim direction to continue his employment would hold up the
\nregular procedure for selection or impose on the State the burden of
\npaying an employee who is really not required. The courts must be
\ncareful in ensuring that they do not interfere unduly with the
\neconomic arrangement of its affairs by the State or its
\ninstrumentalities or lend themselves the instruments to facilitate the
\nbypassing of the constitutional and statutory mandates.\n<\/p><\/blockquote>\n
44.     The concept of ‘equal pay for equal work’ is different from
\nthe concept of conferring permanency on those who have been
\nappointed on adhoc basis, temporary basis, or based on no process
\nof selection as envisaged by the Rules. This Court has in various
\ndecisions applied the principle of equal pay for equal work and has
\nlaid down the parameters for the application of that principle. The
\ndecisions are rested on the concept of equality enshrined in our
\nConstitution in the light of the directive principles in that behalf.
\nBut the acceptance of that principle cannot lead to a position where
\nthe court could direct that appointments made without following
\nthe due procedure established by law, be deemed permanent or
\nissue directions to treat them as permanent. Doing so, would be
\nnegation of the principle of equality of opportunity. The power to
\nmake an order as is necessary for doing complete justice in any
\ncause or matter pending before this Court, would not normally be
\nused for giving the go-by to the procedure established by law in the
\nmatter of public employment. Take the situation arising in the
\ncases before us from the State of Karnataka. Therein, after the
\nDharwad decision, the Government had issued repeated directions
\nand mandatory orders that no temporary or ad hoc employment or
\nengagement be given. Some of the authorities and departments had
\nignored those directions or defied those directions and had
\ncontinued to give employment, specifically interdicted by the
\norders issued by the executive. Some of the appointing officers
\nhave even been punished for their defiance. It would not be just or
\nproper to pass an order in exercise of jurisdiction under Article 226
\nor 32 of the Constitution or in exercise of power under Article 142
\nof the Constitution of India permitting those persons engaged, to be
\nabsorbed or to be made permanent, based on their appointments or
\nengagements. Complete justice would be justice according to law
\nand though it would be open to this Court to mould the relief, this
\nCourt would not grant a relief which would amount to perpetuating
\nan illegality”\n<\/p>\n
                                                                                     7<\/span><\/p>\n
             Finally as a one time measure, the following directions were
\nissued in para 53 :\n<\/p>\n
             53.     One aspect needs to be clarified. There may be cases
\n             where irregular appointments (not illegal appointments) as
\n             explained      in    S.V.    NARAYANAPPA             (supra),   R.N.\n<\/p><\/blockquote>\n
             NANJUNDAPPA (supra), and B.N. NAGARAJAN (supra), and
\n             referred to in paragraph 15 above, of duly qualified persons in duly
\n             sanctioned vacant posts might have been made and the employees
\n             have continued to work for ten years or more but without the
\n             intervention of orders of courts or of tribunals. The question of
\n             regularization of the services of such employees may have to be
\n             considered on merits in the light of the principles settled by this
\n             Court in the cases above referred to and in the light of this
\n             judgment.      In that context, the Union of India, the State
\n             Governments and their instrumentalities should take steps to
\n             regularize as a one time measure, the services of such irregularly
\n             appointed, who have worked for ten years or more in duly
\n             sanctioned posts but not under cover of orders of courts or of
\n             tribunals and should further ensure that regular recruitments are
\n             undertaken to fill those vacant sanctioned posts that require to be
\n             filled up, in cases where temporary employees or daily wagers are
\n             being now employed. The process must be set in motion within six
\n             months from this date. We also clarify that regularization, if any
\n             already made, but not subjudice, need not be reopened based on
\n             this judgment, but there should be no further by-passing of the
\n             constitutional requirement and regularizing or making permanent,
\n             those not duly appointed as per the constitutional scheme.\n<\/p><\/blockquote>\n
                                                            (Emphasis Supplied)<\/p>\n<\/blockquote>\n
7.           It is, therefore, clear that the petitioners are only entitled to seek
\nregularization in service in accordance to law laid down by constitutional
\nBench of the Supreme Court and this Court by ignoring the law or in utter
\ndisregard to the principles laid by Supreme Court cannot grant any relief to
\nthe petitioners. State Government on 16\/05\/07 has issued a circular vide
\nannexure P-11 and in the said circulars a principle for regularization in
\naccordance to law laid by Supreme Court in the case of Uma Devi (supra) is
\nprescribed. Petitioners have to show that as on 10\/04\/2006 they have worked
\nin the department for more than 10 years. However, by considering the case
\nof employees for regularization employees who are working for this period
\nof 10 years by virtue of order passed by tribunal or Courts cannot be taken
\nnote of. That apart, only such appointment can be regularized which are
\nirregular in nature and not illegal. In the case of the petitioners respondents
\nhave clearly came out with the case that appointment to the post of Nakedar
\n                                                                                  8<\/span><\/p>\n
subsequently re-designated as Asst. Sub Inspector is done in accordance to
\nstatutory rules and the employees can be appointed only after following the
\nsame. In the case of petitioners, it is crystal clear that no rules or even
\nprocedure know to law for appointment to public service was followed.
\nPetitioners on their own showing submitted some applications to the
\nPresident of Mandi and it is stated that petitioners were appointed. It is not at
\nall the case of petitioners that their initial appointment in the organization
\nwas in accordance to rule. It is a case where prima facie the appointment of
\nthe petitioners are found to be dehorse the rules and they are back door
\nentries to the organization. That apart petitioners have only worked for time
\nperiod between 1995, 1996 & 1997. From the return filed by the respondents
\nit is seen that petitioners were season employees and depending upon the
\nneed of work, they were appointed according to the respondents. Even in the
\nyear 1997, petitioners services were dispensed with in March 1997.
\nthereafter, they were engaged on 25\/12\/97 and their services were terminated
\non 17\/02\/1998. It is, therefore, a case where the petitioner have not worked
\nfor 10 years and even their continuation after 17\/02\/98 was by virtue of
\ninterlocutory order passed by this Court.\n<\/p>\n
8.           In the case of Uma Devi (supra), it is clearly stipulated that
\nemployees who can be regularized are such who have worked in the
\ndepartment for 10 years and this period of 10 years has to be calculated by
\nexcluding the period on which employee working by virtue of the stay of a
\nCourt\/tribunal. In the light of the aforesaid it is clear that petitioners have not
\nworked for 10 years continuously and, therefore, no right accrues to them for
\nbeing regularized. That apart, even if it is assumed that petitioners have
\nworked for 10 years and even if the period of work undertaken by them by
\nvirtue of interlocutory order passed in the earlier writ petition is taken note
\nof, then also petitioners can claim regularization only if it is demonstrated
\nbefore this Court that their appointment fall in the category of “irregular
\nappointment” and not in the category of “illegal appointment”. There is
\nnothing to indicate that the appointment of the petitioners were made after
\nfollowing any procedure known to law. It is a case where appointment of
\n                                                                              9<\/span><\/p>\n
the petitioners are illegal and, therefore, they cannot be regularized. In the
\nimpugned order passed by the respondents rejecting the claim of
\npetitioners as directed by the Division Bench in W.A. No.597\/09 and as
\nreproduced hereinabove respondents have examined the case and it is
\nfound by the respondents that in accordance to circular earlier issued by
\nthe state Government i.e. R-1 dated 21\/01\/2004 petitioners only submitted
\ntheir candidature for reconsideration. The form in which the claim has to
\nbe submitted is appended by respondents and is available at page 11 of
\nannexure R-1 and respondents finding that petitioners services terminated
\nin 1998 have refused to consider their case for regularization. In doing so,
\nrespondents have not committed any error. Now when the petitioners
\nwants this Court to issue necessary directions for regularization of their
\nservices this Court is required to take note of the law laid down by the
\nSupreme Court in the Case of Uma Devi (supra), the circular issued by
\nthe State Government in pursuance thereof on 16\/05\/07 and directions can
\nbe issued only if the case falls within the parameter laid down in the
\njudgment rendered by the Supreme Court in the case of Uma Devi (supra)
\nand the circular in question dated 16\/05\/2007 and annexure P-11, 12 & 13
\nare fulfilled. As indicated hereinabove petitioners cases do not come
\nwithin the parameter laid down in these circulars and, therefore, a writ of
\nmandamus for regularizing the petitioners in service contrary to the
\naforesaid principle cannot be issued.\n<\/p>\n
9.           Petitioners have also compared their case with that of
\nrespondents No.6, 7 & 8 and by pointing out that they are junior to
\npetitioner and have been regularized petitioners claim parity. However,
\nfor doing so, petitioners have neither brought to the notice of this Court,
\nthe procedure followed for appointment of respondents No.6, 7 & 8, the
\nmanner in which their appointments were made, the period for which they
\nhave worked as daily wages employee and their consideration in
\naccordance to policy and circulars issued by the State Government earlier
\nand the procedure followed for regularization. In the absence of specific
\n                                                                        10<\/span><\/p>\n
challenge being made to the appointment\/regularization of these
\nrespondents with reference to the requirement of law based on various
\nfacts as indicated hereinabove, interference into their regularization
\ncannot be made. That apart in the absence of cogent evidence and
\nmaterial being available to show that petitioners and respondents No.6,
\n7 & 8 stands on the same pedestrian by comparing their cases with
\nthese respondents relief cannot be granted to petitioners. Accordingly,
\nfinding petitioners to have failed to demonstrate parity with the case of
\nthese private respondents this Court does not deem it appropriate to
\ninterfere in the mater.\n<\/p>\n
10.         Accordingly, respondents having considered the case of
\npetitioners in accordance to law and having rejected it after due
\nconsideration now no case is made out for any further indulgence into
\nthe matter. Accordingly, finding no merit in the claim made by the
\npetitioner, the petition is dismissed.\n<\/p>\n
                                          (RAJENDRA MENON)
\n                                               JUDGE
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Madhya Pradesh High Court Ram Mani Dwivedi vs The State Of Madhya Pradesh on 30 August, 2010 1 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. ——————————————————————————————– Shri […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,24],"tags":[],"class_list":["post-31866","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madhya-pradesh-high-court"],"yoast_head":"\nRam Mani Dwivedi vs The State Of Madhya Pradesh on 30 August, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/ram-mani-dwivedi-vs-the-state-of-madhya-pradesh-on-30-august-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Ram Mani Dwivedi vs The State Of Madhya Pradesh on 30 August, 2010 - 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