Rajesh Khare vs The State Of Madhya Pradesh
2021 Latest Caselaw 3314 MP

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         THE HIGH COURT OF MADHYA PRADESH
                      WP.12248.2021
            Rajesh Khare v. State of M.P and Anr.

                      Through Video Conferencing.

Gwalior, Dated : 15-07-2021

      Shri B.B. Shukla, Counsel for the petitioner.

      Shri Deepak Khot, Counsel for the State.

      This petition under Article 226 of the Constitution of India has

been filed seeking the following reliefs:-

                 "(1)That, the petitioner may be regularize
           on a class IV Post since 05/03/1993.
                 (2) That, the petitioner be paid full pay of
           a IV Class employee i.e Rs. 4000-80-7000 with
           back arrears of pay
                 (3) That any other relief which this
           Hon'ble High Court deem fit may also be
           awarded."


      It is submitted by the Counsel for the petitioner that the

petitioner was appointed on the post of Sweeper by order dated

5.3.1993 at the Collectorate rate. It is further submitted that the

petitioner was not regularized and ultimately he has been granted

benefit of Viniyamitikaran Scheme floated by the State in the year

2016 and has been declared as Sthaikarmi. It is submitted that by

order dated 24.07.2017 (Annexure P/7), he has been granted pay

scale of Rs. 4,000-80-7,000/-. However, the petitioner is being paid

monthly salary of Rs. 5,680/- ie 4000+1680 whereas he should have

been paid salary in accordance to the pay scale of Rs. 4,000-80-

7,000/-. It is further submitted that in fact, the petitioner is entitled

for regularization.
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         THE HIGH COURT OF MADHYA PRADESH
                      WP.12248.2021
            Rajesh Khare v. State of M.P and Anr.

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

far as the prayer of regularization is concerned, it is not the case of

the petitioner that his initial appointment was irregular or illegal.

Even from the order of his initial appointment, it appears that the

said appointment was made without inviting applications from the

general public by issuing a general advertisement. Thus, it is clear

that the initial appointment of the petitioner was illegal and in the

light of the judgment passed by the Supreme Court in the case of

Secretary, State of Karnataka and others vs. Uma Devi (3) and

others, reported in (2006) 4 SCC 1, the employees who had

succeeded in getting back door entry in the government employment

cannot be regularized as the same would be violative of Article 14

and 16 of the Constitution of India and the illegality cannot be

perpetuated in such a manner. So far as the question of payment of

pay scale of Rs. 4,000-80-7,000/- is concerned, the Counsel for the

respondent by referring to the order dated 24.07.2017 (Annexure

P/7) submitted that, it is specifically mentioned in the said order that

the petitioner would be entitled for the pay-scale of Rs. 4,000-80-

7,000/- and accordingly his salary was fixed at Rs. 4000+1840

=5,840/- as on 1.9.2016. Thus, it is submitted that the petitioner is

being paid the salary as per the scale admissible to the Sthaikarmi,

and therefore this petition sans merits.

Heard the learned Counsel for the parties.

THE HIGH COURT OF MADHYA PRADESH WP.12248.2021 Rajesh Khare v. State of M.P and Anr.

So far as the prayer made by the petitioner for regularization of

his service is concerned, the Supreme Court in the case of Uma Devi

(supra) has held as under:-

"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 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

THE HIGH COURT OF MADHYA PRADESH WP.12248.2021 Rajesh Khare v. State of M.P and Anr.

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 (sic) 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.

51. The argument that the right to life protected by Article 21 of the Constitution would include the right to employment cannot also be accepted at this juncture. The law is dynamic and our Constitution is a living document. May be at some future point of time, the right to employment can also be brought in under the concept of right to life or even included as a fundamental right. The new statute is perhaps a beginning. As things now stand, the acceptance of such a plea at the instance of the employees before us would lead to the consequence of depriving a large number of other aspirants of an opportunity to compete for the post or employment. Their right to employment, if it is a part of right to life, would stand denuded by the preferring of those who have got in casually or those who have come through the backdoor. The obligation cast on the State under Article 39(a) of the Constitution is to ensure that all citizens equally have the right to adequate means of livelihood. It will be more consistent with that policy if the courts recognise that an appointment to a post in government service or in the service of its instrumentalities, can only be by way of a proper selection in the manner recognised by the relevant legislation in the context of the relevant provisions of the Constitution. In the name of individualising justice, it is also not possible to shut our eyes to the constitutional scheme and the right of the numerous as against the few who are before the court. The directive principles of State policy have also to be reconciled with the rights available to the citizen under Part III of the Constitution and the obligation of the State to one

THE HIGH COURT OF MADHYA PRADESH WP.12248.2021 Rajesh Khare v. State of M.P and Anr.

and all and not to a particular group of citizens. We, therefore, overrule the argument based on Article 21 of the Constitution."

The petitioner has not come forward with a case that his initial

appointment was irregular or legal. The petitioner has filed the copy

of his initial appointment dated 05.03.1993 (Annexure P/1) from

which also it is not clear as to whether the appointment was made

after issuing General Advertisement or not. In absence of any

pleadings, it is clear that the petitioner was given appointment

without inviting applications from general public, therefore, prima

facie appointment of the petitioner was illegal having been made in

violation of Article 14 and 16 of the Constitution of India and

accordingly in the light of the law laid down by the Supreme Court

in the case of Uma Devi (supra), the petitioner is not entitled to be

regularized. Considering the said aspect, the State Government has

extended the establishment of Viniyamitikaran by declaring the

petitioner has Sthaikarmi. The petitioner has not challenged the

order by which he has been declared as Sthaikarmi. Therefore, the

prayer for regularization is hereby rejected.

Next grievance of the petitioner is that the petitioner is not

being paid pay scale of Rs. Rs. 4,000-7,000/-. However from the

order dated 24.7.2017 (Annexure P/7), it is clear that the salary of

the petitioner was fixed at Rs. 5,680/- after extending the benefit of

pay scale of Rs. 4,000-80-7,000/-, but it appears that there is some

THE HIGH COURT OF MADHYA PRADESH WP.12248.2021 Rajesh Khare v. State of M.P and Anr.

confusion in the mind of the petitioner as to whether he is getting his

salary in accordance with the admissible pay scale or not. Since the

petitioner has already made a representation in this regard, therefore,

it is directed that the respondents shall decide the said representation

and in case if the petitioner is getting his salary in accordance with

the pay scale payable to Sthaikarmi, then the same shall be clarified

by them by passing a speaking order. It is further directed that in

case if respondents find that there is a discrepancy in the salary fixed

by them and the pay scale admissible to the Sthaikarmi, then they

shall refix the salary of the petitioner in accordance with pay scale of

Rs. 4,000-80-7,000/-.

Let entire exercise be completed within a period of three

months from the date of receipt of certified copy/soft copy of this

order.

The petitioner is directed to to supply a certified copy/soft

copy of this order to the respondents along with a copy of the

representation made by him on 04.02.2021 (Annexure P/9). The

direction to decide the representation should not be construed as

direction to allow the representation and the representation shall be

decided strictly, in accordance with law.

With aforesaid liberty, the petition is finally disposed of

(G.S. Ahluwalia) Judge

ABDUR RAHMAN 2021.07.16 12:39:20 +05'30'

THE HIGH COURT OF MADHYA PRADESH WP.12248.2021 Rajesh Khare v. State of M.P and Anr.

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