Chattisgarh High Court
Sanjeeb Kumar Rathore vs State Of Chhattisgarh on 27 January, 2025
1
2025:CGHC:4832
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
WPS No. 8559 of 2022
1 - Sanjeeb Kumar Rathore S/o Anjor Singh Rathore Aged About 38 Years
R/o Village Nawagaon, Venket, Tahsil Lormi, District Mungeli Chhattisgarh
... Petitioner(s)
versus
1 - State Of Chhattisgarh Through Secretary, Department Of Forest,
Mahanadi Bhawan, Mantralaya, Atal Nagar, New Raipur, District Raipur
Chhattisgarh
2 - Chief Conservator Of Forest Aranya Bhawan, Medical College Road,
Raipur,District-Raipur,Chhattisgarh
3 - Deputy Director Acchanakmar Tiger Reserve Lormi District Mungeli
Chhattisgarh
... Respondent(s)
-------------------------------------------------------------------------------------------
For the Petitioner :Mr. Ratnesh Kumar Agrawal, Advocate.
For State :Mr. Ajit Singh, Govt. Advocate.
S.B.: Hon'ble Shri Amitendra Kishore Prasad, Judge
Order On Board
27/1/2025
1. Petitioner is seeking indulgence of this Court under Article 226
of Constitution of India inter alia challenging the order dated
3.7.2020 passed by respondent No.3 by which his
application/representation seeking regularization has been
dismissed by the respondent No.3 holding him to be not
Digitally
NISHA signed by
DUBEY NISHA
eligible for regularization.
DUBEY
2. Petitioner has sought following reliefs in this writ petition:-
"10.1 That, this Hon'ble Court may kindly be
pleased to quash order dated 03.07.2020
(Annexure-P/1) and the petitioner may be
considered for regularization from 25.06.2012
on which petitioner was found eligible for the
first time with all consequential benefits, in the
interest of justice.
10.2 Any other relief which may be suitable in
the facts and circumstances of the case, may
also be granted."
3. The case, as projected by the petitioner, is like that on
14.2.1995 petitioner was appointed as 'Data Entry Operator'
(Class-III Post) on daily wage basis in the office of respondent
No.3 and since then he is in continuously serving in the office
of respondent No.3. When other employees of different
departments whose work and duties are akin to the one
discharged by petitioner, were regularised, the petitioner
approached the concerned authorities with a request to
regularise him in service. However, when nothing was done
for regularizing the petitioner, he filed a writ petition bearing
WPS No.514 of 2016, before this Court, which came to be
allowed vide order dated 6.2.2018, directing the respondents
to consider the case of the petitioner in accordance with policy
of the State Government dated 5.3.2008 as also the judgment
of Hon'ble Supreme Court, without creating any impediment
only on the ground that before 31.12.1997 there were breaks
in service. Relevant paragraphs of the order dated 6.2.2018
passed in WPS No.514 of 2016 are reproduced herein below:-
"4.Taking into consideration the submission of
learned counsel for the parties and also
considering the reason assigned not to
regularise the petitioners is not according to the
spirit of the circular based on the judgment of
the Supreme Court in the case of Uma Devi
(supra) that the daily wage employees who were
continuing in service for 10 years, should be
considered for regularization.
5. It goes without saying that they should be
treated as continued in service i.e. those who
have been appointed prior to 31/12/1997 but
continuing, their case for regularisation should
be considered. There is nothing in the order of
the Supreme Court to show that prior to
31/12/1997, employee's services is required to
be continuous. This reason appears to be
irrational and destructive of the very object of
issuance of circular dated 05/03/2008 in view of
what has been observed by the Supreme Court
in para 53 in the case of Uma Devi (Supra).
"53. One aspect needs to be clarified.
There may be cases where irregular
appointments (not illegal
appointments) as explained in State of
Mysore v. S.V. Narayanappa, AIR
1967 SC 1071, R.N.Nanjundappa v. T.
Thimmiah, (1972) 1 SCC 409 and
B.N.Nagarajan v. State of Karnataka
(1979) 4 SCC 507 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."
6. Accordingly, this petition is allowed.
Respondents are directed to consider
petitioners' case in accordance with policy dated
05/03/2008 and judgment of the Supreme Court
without creating any impediment only on the
ground that before 31/12/1997, there were
breaks in service.
4. It is in the above background, the petitioner has moved an
application for regularization of his service which came to be
dismissed vide order dated 3.7.2020 which the petitioner has
challenged in this writ petition.
5. Learned counsel for petitioner submits that the petitioner is
seeking regularization on the post of Data Entry Operator
(Class-III post) in the office of respondent No.3. It has been
argued by learned counsel for petitioner that he was appointed
way back on 14.2.1995 and since then he is in continuous
service in the office of respondent No.3. After passing of the
judgment in case of Secretary, State of Karnataka v.
Umadevi, reported in (2006) 4 SCC 1, petitioner is entitled to
be regularised on the post of Data Entry Operator, however,
the respondents are not considering the case of petitioner for
regularization. The State Government, on the basis of decision
in Umadevi's case (supra), has also issued a circular dated
5.3.2008 according to which petitioner is required to be
regularised, however, even after completion of 27 years of
service, respondent/State is not regularizing the petitioner. In
support of his submissions, learned counsel for petitioner
placed reliance on the decision of Hon'ble Supreme Court in
case of Vinod Kumar and others v. Union of India and
others, reported in (2024) 9 SCC 327 and in the case of
Jaggo v. Union of India and others in SLP(C) No.5580 of
2024, in which, Hon'ble Supreme Court was of the opinion that
the persons, who are in continuous service for more than 10
years, are required to be regularised and for that, the benefit
of one time recruitment could not come into the way. Hence,
he submits that this is the fit case where direction can be
issued to respondents for regularization of service of the
petitioner.
6. On the other hand, learned State counsel submits that in each
and every case regularization cannot be granted and it has to
be seen whether person concerned has been recruited or
appointed on the vacant post or not and whether he is on
regular service or not.
7. Heard learned counsel for the parties and perused the
documents available in record of writ petition.
8. The State Government, on the basis of the decision of Hon'ble
Supreme Court in case of Umadevi (supra), which dealt with
the question of regularization of back-door entrants in Government
service, has issued the Circular dated 5.3.2008 in which it has
been categorically mentioned that the persons, who are in
service for last 10 years, are required to be regularized.
9. Recently, in case of Vinod Kumar and others v. Union of
India and others, reported in (2024) 9 SCC 327, while
considering the entitlement of temporary employees to
regularization in service, Hon'ble Supreme Court has held
thus:-
"The judgement in the case Uma Devi (supra) also
distinguished between "irregular" and "illegal"
appointments underscoring the importance of
considering certain appointments even if were not
made strictly in accordance with the prescribed
Rules and Procedure, cannot be said to have been
made illegally if they had followed the procedures of
regular appointments such as conduct of written
examinations or interviews as in the present case.
Paragraph 53 of the Uma Devi (supra) case is
reproduced hereunder:
"53. One aspect needs to be clarified. There may be
cases where irregular appointments (not illegal
appointments) as explained in S.V. Narayanappa
[(1967) 1 SCR 128 : AIR 1967 SC 1071] , R.N.
Nanjundappa [(1972) 1 SCC 409 : (1972) 2 SCR
799] and B.N. Nagarajan [(1979) 4 SCC 507 : 1980
SCC (L&S) 4 : (1979) 3 SCR 937] and referred to in
para 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 the
courts or of tribunals. The question of regularisation
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 regularise 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 the 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 regularisation, if any
already made, but not sub judice, need not be
reopened based on this judgment, but there should
be no further bypassing of the constitutional
requirement and regularising or making permanent,
those not duly appointed as per the constitutional
scheme."
8. In light of the reasons recorded above, this Court
finds merit in the appellants' arguments and holds
that their service conditions, as evolved over time,
warrant a reclassification from temporary to regular
status. The failure to recognize the substantive
nature of their roles and their continuous service
akin to permanent employees runs counter to the
principles of equity, fairness, and the intent behind
employment regulations.
9. Accordingly, the appeals are allowed. The
judgment of the High Court is set aside, and the
appellants are entitled to be considered for
regularization in their respective posts. The
respondents are directed to complete the process of
regularization within 3 months from the date of
service of this judgment.
10. In the case of Jaggo v. Union of India an others in SLP(C)
No.5580 of 2024, Hon'ble Supreme Court has observed that
the persons in regular service for more than 10 years are
required to be regularized. Relevant portion of Jaggo(supra) is
extracted below for ready reference:-
"20. It is well established that the decision in Uma Devi
(supra) does not intend to penalize employees who
have rendered long years of service fulfilling ongoing
and necessary functions of the State or its
instrumentalities. The said judgment sought to prevent
backdoor entries and illegal appointments that
circumvent constitutional requirements. However,
where appointments were not illegal but possibly
"irregular," and where employees had served
continuously against the backdrop of sanctioned
functions for a considerable period, the need for a fair
and humane resolution becomes paramount.
Prolonged, continuous, and unblemished service
performing tasks inherently required on a regular basis
can, over the time, transform what was initially ad-hoc or
temporary into a scenario demanding fair regularization. In
a recent judgement of this Court in Vinod Kumar
and Ors. Etc. Vs. Union of India & Ors.5, it was
held that held that procedural formalities cannot
be used to deny regularization of service to an
employee whose appointment was termed
"temporary" but has performed the same duties
as performed by the regular employee over a
considerable period in the capacity of the regular
employee. The relevant paras of this judgement
have been reproduced below:
"6. The application of the judgment in Uma
Devi (supra) by the High Court does not fit
squarely with the facts at hand, given the
specific circumstances under which the
appellants were employed and have continued
their service. The reliance on procedural
formalities at the outset
cannot be used to perpetually deny substantive
rights that have accrued over a considerable
period through continuous service. Their
promotion was based on a specific notification
for vacancies and a subsequent circular,
followed by
a selection process involving written tests and
interviews, which distinguishes their case from
the appointments through back door entry as
discussed in the case of Uma Devi (supra).
7. The judgement in the case Uma Devi (supra)
also distinguished between "irregular" and
"illegal" appointments underscoring the
importance of considering certain appointments
even if were not made strictly in accordance with
the prescribed Rules and Procedure, cannot be
said to have been made illegally if they had
followed the procedures of regular appointments
such as conduct of written examinations or
interviews as in the present case..."
21. The High Court placed undue emphasis on the initial
label of the appellants' engagements and the
outsourcing decision taken after their dismissal. Courts
must look beyond the surface labels and consider the
realities of employment:
continuous, long-term service, indispensable
duties, and absence of any mala fide or
illegalities in their appointments. In that light,
refusing regularization simply because their
original terms did not explicitly state so, or
because an outsourcing policy was belatedly
introduced, would be contrary to principles of
fairness and equity.
22. The pervasive misuse of temporary employment
contracts, as exemplified in this case, reflects a
broader systemic issue that adversely affects workers'
rights and job security. In the private sector, the rise of
the gig economy has led to an increase in precarious
employment arrangements, often characterized by
lack of benefits, job security, and fair treatment. Such
practices have been criticized for exploiting workers
and undermining labour standards. Government
institutions, entrusted with upholding the principles of
fairness and justice, bear an even greater
responsibility to avoid such exploitative employment
practices. When public sector entities engage in
misuse of temporary contracts, it not only mirrors the
detrimental trends observed in the gig economy but
also sets a concerning precedent that can erode
public trust in governmental operations.
23. The International Labour Organization (ILO), of
which India is a founding member, has consistently
advocated for employment stability and the fair
treatment of workers. The ILO's Multinational
Enterprises Declaration6 encourages companies to
provide stable employment and to observe obligations
concerning employment stability and social
International Labour Organization- Tripartite
Declaration of Principles concerning Multinational
Enterprises and Social Policy Security. It emphasizes
that enterprises should assume a leading role in
promoting employment security, particularly in
contexts where job discontinuation could exacerbate
long-term unemployment.
24. The landmark judgement of the United State in the
case of Vizcaino v. Microsoft Corporation7 serves as
a pertinent example from the private sector, illustrating
the consequences of misclassifying employees to
circumvent providing benefits. In this case, Microsoft
classified certain workers as independent contractors,
thereby denying them employee benefits. The U.S.
Court of Appeals for the Ninth Circuit determined that
these workers were, in fact, common-law employees
and were entitled to the same benefits as regular
employees. The Court noted that large Corporations
have increasingly adopted the practice of hiring
temporary employees or independent contractors as a
means of avoiding payment of employee 97 F.3d
1187 (9th Cir. 1996) benefits, thereby increasing their
profits. This judgment underscores the principle that
the nature of the work performed, rather than the label
assigned to the worker, should determine employment
status and the corresponding rights and benefits. It
highlights the judiciary's role in rectifying such
misclassifications and ensuring that workers receive
fair treatment.
25. It is a disconcerting reality that temporary
employees, particularly in government institutions,
often face multifaceted forms of exploitation. While the
foundational purpose of temporary contracts may
have been to address short-term or seasonal needs,
they have increasingly become a mechanism to evade
long- term obligations owed to employees. These
practices manifest in several ways:
• Misuse of "Temporary" Labels: Employees
engaged for work that is essential, recurring, and
integral to the functioning of an institution are often
labeled as "temporary" or "contractual," even when
their roles mirror those of regular employees. Such
misclassification deprives workers of the dignity,
security, and benefits that regular employees are
entitled to, despite performing identical tasks.
• Arbitrary Termination: Temporary employees are
frequently dismissed without cause or notice, as
seen in the present case. This practice undermines
the principles of natural justice and subjects workers
to a state of constant insecurity, regardless of the
quality or duration of their service.
• Lack of Career Progression: Temporary employees
often find themselves excluded from opportunities
for skill development, promotions, or incremental pay
raises. They remain stagnant in their roles, creating
a systemic disparity between them and their regular
counterparts, despite their contributions being
equally significant.
• Using outsourcing as a Shield; Institutions
increasingly resort to outsourcing roles performed by
temporary employees, effectively replacing one set
of exploited workers with another. This practice not
only perpetuates exploitation but also demonstrates
a deliberate effort to bypass the obligation to offer
regular employment.
• Denial of Basic Rights and Benefits: Temporary
employees are often denied fundamental benefits
such as pension, provident fund, health insurance,
and paid leave, even when their tenure spans
decades. This lack of social security subjects them
and their families to undue hardship, especially in
cases of illness, retirement, or unforeseen
circumstances.
26. While the judgment in Uma Devi (supra) sought to curtail
the practice of backdoor entries and ensure appointments
adhered to constitutional principles, it is regrettable that its
principles are often misinterpreted or misapplied to deny
legitimate claims of long-serving employees. This judgment
aimed to distinguish between "illegal" and "irregular"
appointments. It categorically held that employees in
irregular appointments, who were engaged in duly
sanctioned posts and had served continuously for more than
ten years, should be considered for regularization as a one-
time measure. However, the laudable intent of the judgment
is being subverted when institutions rely on its dicta to
indiscriminately reject the claims of employees, even in
cases where their appointments are not illegal, but merely
lack adherence to procedural formalities. Government
departments often cite the judgment in Uma Devi (supra) to
argue that no vested right to regularization exists for
temporary employees, overlooking the judgment's explicit
acknowledgment of cases where regularization is
appropriate. This selective application distorts the judgment's
spirit and purpose, effectively weaponizing it against
employees who have rendered indispensable services over
decades.
27. In light of these considerations, in our opinion, it is
imperative for government departments to lead by example
in providing fair and stable employment. Engaging workers
on a temporary basis for extended periods, especially when
their roles are integral to the organization's functioning, not
only contravenes international labour standards but also
exposes the organization to legal challenges and undermines
employee morale. By ensuring fair employment practices,
government institutions can reduce the burden of
unnecessary litigation, promote job security, and uphold the
principles of justice and fairness that they are meant to
embody. This approach aligns with international standards
and sets a positive precedent for the private sector to follow,
thereby contributing to the overall betterment of labour
practices in the country."
11. In light of the above decisions of Hon'ble Supreme Court and
in view of the fact that the petitioner herein is working in
respondent department since 27 years and he has also been
found fit for regularization of service by the Screening
Committee in its report dated 18.6.2019 (Annexure-P/14), this
Court is of the considered opinion that the petitioner is entitled
for regularization of service.
12. Accordingly, this writ petition is disposed of with a direction to
the respondent/State to consider the case of the petitioner for
regularization in service in accordance with law expeditiously,
keeping in mind the decisions of the Hon'ble Supreme Court
Umadevi (supra), Vinod Kumar (supra) and Jaggo (supra)
as also the Circular issued by the State Government in this
regard. The said exercise be done within a period of three
months from the date of production of this order.
13. Certified copy as per rules.
Sd/-
(Amitendra Kishore Prasad)
Judge
Nisha
