Madhya Pradesh High Court

Mukesh Kumar Sharma vs The State Of Madhya Pradesh on 25 February, 2021

Author: Gurpal Singh Ahluwalia

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           HIGH COURT OF MADHYA PRADESH
                   W.P. No. 7325 of 2016
        Mukesh Kumar Sharma Vs. State of M.P. & others

Gwalior, dated 25-2-2021 (Final Hearing)

      Shri Prashant Sharma, Counsel for the petitioner.

      Shri G.K. Agrawal, Govt. Advocate for the respondents/State.

Heard finally.

This petition under Article 226 of the Constitution of India has

been filed against the order dated 1-8-2016, by which the claim of the

petitioner for regularization has been rejected.

It is the case of the petitioner, that the elder brother of the

Petitioner was working as Part time Waterman on daily wages in the

office of District Treasury. He died in the year 1997, therefore, the

petitioner was engaged as daily rated Waterman. Later on, he was

discontinued in the year 2000 and thereafter, on the orders of the

Collector, he was once again re-engaged as part time labourer at half

of the collectorate rates.

Thereafter, the petitioner applied for regularization of his

services, however, his claim has been rejected by the impugned order.

Challenging the impugned order dated 1-8-2016, it is

submitted by the Counsel for the petitioner that the petitioner was

appointed as Part time Waterman in the year 1997 and continued till

2000. Again in the year 2001, the petitioner moved an application for

his re-engagement and the Collector, by considering the application

in sympathetic manner, directed for his re-engagement as part time

labourer. In the year 2007, when the policy for regularization was

HIGH COURT OF MADHYA PRADESH W.P. No. 7325 of 2016 Mukesh Kumar Sharma Vs. State of M.P. & others

floated, the claim of the petitioner was not considered on the ground

that he had not completed 10 years of service, although various other

similarly situated persons were regularized. It is further submitted

that the petitioner was appointed as Part Time Waterman in the year

1997, and therefore, if his earlier service is counted, then it is clear

that the petitioner had already completed 10 years of service, thus,

the rejection of his claim on the ground that he had not completed 10

years of service is bad.

Per contra, it is submitted by the Counsel for the State, that the

initial appointment of the petitioner itself was illegal and was a back

door entry. Although it is the claim of the petitioner, that he was

appointed as Part Time Waterman, after the death of his elder brother,

but the elder brother of the petitioner was also working as Part Time

Waterman, and in the appointment order dated 7-11-1997, it is

nowhere mentioned that the petitioner has been appointed because of

death of his elder brother. Even otherwise, the appointment of the

petitioner was not a compassionate appointment. Further, without

there being any advertisement, it appears that on the application

moved by the petitioner, the then Collector, once again appointed the

petitioner as part time labourer, which is also incorrect and amounts

to back door entry. It is submitted that since, the initial appointment

of the petitioner itself was illegal and was a back door entry,

therefore, his claim for regularization has been rightly rejected.

HIGH COURT OF MADHYA PRADESH W.P. No. 7325 of 2016 Mukesh Kumar Sharma Vs. State of M.P. & others

In reply, it is submitted by the Counsel for the petitioner, that

similarly situated employees have been granted regularization and

therefore, rejection of the claim of the petitioner amounts to

discrimination.

Heard the learned Counsel for the parties.

It is well established principle of law that Principle of Negative

Equality is unknown to Article 14 of the Constitution of India.

The Supreme Court in the case of State of Bihar Vs. Upendra

Narayan Singh reported in (2009) 5 SCC 65 has held as under :-

''67. By now it is settled that the guarantee of equality before law enshrined in Article 14 is a positive concept and it cannot be enforced by a citizen or court in a negative manner. If an illegality or irregularity has been committed in favour of any individual or a group of individuals or a wrong order has been passed by a judicial forum, others cannot invoke the jurisdiction of the higher or superior court for repeating or multiplying the same irregularity or illegality or for passing wrong order--Chandigarh Admn. v. Jagjit Singh, Jaipur Development Authority v. Daulat Mal Jain, Union of India v. J.V. Subhaiah, Gursharan Singh v. NDMC, State of Haryana v. Ram Kumar Mann, Faridabad CT. Scan Centre v. D.G. Health Services, Style (Dress Land) v. UT, Chandigarh, State of Bihar v. Kameshwar Prasad Singh, Union of India v. International Trading Co. and Directorate of Film Festivals v. Gaurav Ashwin Jain.''

The Supreme Court in the case of Doiwala Sehkari Shram

Samvida Samiti Ltd. v. State of Uttaranchal, reported in (2007) 11

SCC 641, has held as under :-

''28. This Court in Union of India v. International Trading Co. has held that two wrongs do not make one

HIGH COURT OF MADHYA PRADESH W.P. No. 7325 of 2016 Mukesh Kumar Sharma Vs. State of M.P. & others

right. The appellant cannot claim that since something wrong has been done in another case, directions should be given for doing another wrong. It would not be setting a wrong right but could be perpetuating another wrong and in such matters, there is no discrimination involved. The concept of equal treatment on the logic of Article 14 cannot be pressed into service in such cases. But the concept of equal treatment presupposes existence of similar legal foothold. It does not countenance repetition of a wrong action to bring wrongs on a par. The affected parties have to establish strength of their case on some other basis and not by claiming negative quality. In view of the law laid down by this Court in the above matter, the submission of the appellant has no force. In case, some of the persons have been granted permits wrongly, the appellant cannot claim the benefit of the wrong done by the Government.''

Thus, it is clear that the petitioner has to stand on his own legs,

and he cannot claim that some wrong has been committed by the

respondents, therefore, the respondents should be directed to commit

same wrong. Two wrongs would not result in correct action.

If the facts of the case are concerned, it is clear that without

any advertisement, he was appointed on Part time Waterman in the

year 1997 and he was discontinued in the year 2000. Thereafter,

again on the application filed by the petitioner, he was again

appointed as Part Time Labourer. The Petitioner could not justify as

to how, such appointment can be said to be a legal appointment. It is

not the case of the petitioner, that he was selected in pursuance of an

advertisement issued by the respondents.

The Supreme Court in the case of State of Karnataka Vs.

HIGH COURT OF MADHYA PRADESH W.P. No. 7325 of 2016 Mukesh Kumar Sharma Vs. State of M.P. & others

Uma Devi reported in (2006) 4 SCC 1 has held as under :

''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 of their appointment, do not acquire any right. The High Courts acting under Article 226 of the Constitution, should not ordinarily issue directions for absorption, regularisation, 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 the 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

HIGH COURT OF MADHYA PRADESH W.P. No. 7325 of 2016 Mukesh Kumar Sharma Vs. State of M.P. & others

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 ad hoc 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 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

HIGH COURT OF MADHYA PRADESH W.P. No. 7325 of 2016 Mukesh Kumar Sharma Vs. State of M.P. & others

of jurisdiction under Article 226 or 32 of the Constitution or in exercise of power under Article 142 of the Constitution 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.

45. While directing that appointments, temporary or casual, be regularised or made permanent, the courts are swayed by the fact that the person concerned has worked for some time and in some cases for a considerable length of time. It is not as if the person who accepts an engagement either temporary or casual in nature, is not aware of the nature of his employment. He accepts the employment with open eyes. It may be true that he is not in a position to bargain--not at arm's length--since he might have been searching for some employment so as to eke out his livelihood and accepts whatever he gets. But on that ground alone, it would not be appropriate to jettison the constitutional scheme of appointment and to take the view that a person who has temporarily or casually got employed should be directed to be continued permanently. By doing so, it will be creating another mode of public appointment which is not permissible. If the court were to void a contractual employment of this nature on the ground that the parties were not having equal bargaining power, that too would not enable the court to grant any relief to that employee. A total embargo on such casual or temporary employment is not possible, given the exigencies of administration and if imposed, would only mean that some people who at least get employment temporarily, contractually or casually, would not be getting even that employment when securing of such employment brings at least some succour to them. After all, innumerable citizens of our vast country are in search of employment and one is not compelled to accept a casual or temporary employment if one is not inclined to go in for such an employment. It is in that context that one has to proceed on the basis that the employment was accepted fully knowing the nature of it and the consequences flowing from it. In other words, even while accepting

HIGH COURT OF MADHYA PRADESH W.P. No. 7325 of 2016 Mukesh Kumar Sharma Vs. State of M.P. & others

the employment, the person concerned knows the nature of his employment. It is not an appointment to a post in the real sense of the term. The claim acquired by him in the post in which he is temporarily employed or the interest in that post cannot be considered to be of such a magnitude as to enable the giving up of the procedure established, for making regular appointments to available posts in the services of the State. The argument that since one has been working for some time in the post, it will not be just to discontinue him, even though he was aware of the nature of the employment when he first took it up, is not one that would enable the jettisoning of the procedure established by law for public employment and would have to fail when tested on the touchstone of constitutionality and equality of opportunity enshrined in Article 14 of the Constitution.''

Thus, it is clear that, where the employee has failed to prove

that his appointment was legal and was not illegal, then this Court

cannot perpetuate the illegality by directing the regularization of the

petitioner.

Further, Article 16 of the Constitution of India reads as under :

''16. Equality of opportunity in matters of public employment.--(1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.

(2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State. (3) Nothing in this article shall prevent Parliament from making any law prescribing, in regard to a class or classes of employment or appointment to an office under the Government of, or any local or other authority within, a State or Union territory, any requirement as to residence within that State or Union territory prior to such employment or appointment. (4) Nothing in this article shall prevent the State from

HIGH COURT OF MADHYA PRADESH W.P. No. 7325 of 2016 Mukesh Kumar Sharma Vs. State of M.P. & others

making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State. (4-A) Nothing in this article shall prevent the State from making any provision for reservation in matters of promotion , with consequential seniority, to any class or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State. (4-B) Nothing in this article shall prevent the State from considering any unfilled vacancies of a year which are reserved for being filled up in that year in accordance with any provision for reservation made under clause (4) or clause (4-A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty per cent reservation on total number of vacancies of that year.

(5) Nothing in this article shall affect the operation of any law which provides that the incumbent of an office in connection with the affairs of any religious or denominational institution or any member of the governing body thereof shall be a person professing a particular religion or belonging to a particular denomination.

(6) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any economically weaker sections of citizens other than the classes mentioned in clause (4), in addition to the existing reservation and subject to a maximum of ten per cent. of the posts in each category.''

Article 16(1) of Constitution of India, guarantees equal

opportunities for all citizens of India in matters relating to

employment or appointment to any office under the State.

Thus, if an appointment has been made in a clandestine

HIGH COURT OF MADHYA PRADESH W.P. No. 7325 of 2016 Mukesh Kumar Sharma Vs. State of M.P. & others

manner, without inviting and informing general public by issuing

advertisement, it cannot be said that the appointment was legal or was

in accordance with law.

In the present case, since, the petitioner has failed to prima

facie show that his initial appointment was legal, therefore, this Court

is of the considered opinion, that no case is made out for

regularization of services of the petitioner.