Haroon Shah Khan vs The State Of Madhya Pradesh
2021 Latest Caselaw 521 MP

        THE HIGH COURT OF MADHYA PRADESH 1
                      WP 5069 of 2021
      Haroon Shah Khan and Others vs. State of MP and Ors.

Gwalior, Dated :08/03/2021

      Shri SK Sharma, Counsel for the petitioners.

      Shri Deepak Khot, Govt. Advocate for the State.

      This petition under Article 226 of the Constitution of India has

been filed seeking the following reliefs:-

              (i) That, respondents may kindly be directed to

regularized the service of the petitioners extending them all the service benefit like the other employee.

(ii) That, any other relief which this Hon'ble High Court may deem fit, with cost of the petition.''

It is submitted by the Counsel for the petitioners that since the

Municipal Council, Sironj was in need of some daily-rated employees,

therefore, the petitioners submitted their applications and they were

found suitable and accordingly, they were appointed on daily wages. It

is submitted that looking to the vacancies, some of the petitioners

preferred a writ petition before this Court seeking their regularization

but they withdrew the petition with liberty to prefer representation for

redressal of their grievances. In response to the representation, the

respondents extended the benefit of Viniyamitikaran Scheme in the

category of unskilled labour. It is submitted that this action of the

respondents is not fair because they have regularized the services of

some similarly placed employees by order dated 18/01/2017, whereas

similar benefit is not being extended to the petitioners. It is further

submitted that as per the Viniyamitikaran Scheme, the respondents have THE HIGH COURT OF MADHYA PRADESH 2 WP 5069 of 2021 Haroon Shah Khan and Others vs. State of MP and Ors.

also decided to ''regularize '' Sthaikarmis so that they may get more

opportunities in the regular service and accordingly, the petitioners are

also entitled for the benefit of regularization. Accordingly, the Counsel

for the petitioners has relied upon Annexure A appended to Scheme.

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

except by mentioning that the petitioners had applied for their

appointment, no other pleadings has been made in order to show that

the initial appointment was not illegal. So far as the benefit of

regularization which has been given to other employees is concerned, it

is submitted by the Counsel for the State that it is well-established

principle of law that the principle of ''negative equality'' is not

applicable to Article 14 of the Constitution of India. Further, it is

submitted that the order dated 18/01/2017 by which one Kamlesh was

regularized, has been passed on the misinterpretation of order dated

20/01/2016 passed in Writ Petition No. 425/2016.

Heard the learned counsel for the parties.

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 THE HIGH COURT OF MADHYA PRADESH 3 WP 5069 of 2021 Haroon Shah Khan and Others vs. State of MP and Ors.

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 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.'' THE HIGH COURT OF MADHYA PRADESH 4 WP 5069 of 2021 Haroon Shah Khan and Others vs. State of MP and Ors.

Thus, it is clear that every citizen of India is entitled for equal

opportunities in public employment.

The Supreme Court in the case of Secretary, State of

Karnataka Vs. 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 THE HIGH COURT OF MADHYA PRADESH 5 WP 5069 of 2021 Haroon Shah Khan and Others vs. State of MP and Ors.

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 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 THE HIGH COURT OF MADHYA PRADESH 6 WP 5069 of 2021 Haroon Shah Khan and Others vs. State of MP and Ors.

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 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.

THE HIGH COURT OF MADHYA PRADESH 7 WP 5069 of 2021 Haroon Shah Khan and Others vs. State of MP and Ors.

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 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 in order to seek regularization, the employee

must come forward with a specific stand that his initial appointment

was not illegal but it was legal or irregular.

In the present case, the petitioners have merely pleaded as

under:-

''5(2) That, petitioners qualified to be appointed on the posts as given before their name in the office of respondent no.3 where taking the need of work asked the application to engage the employees for efficient work in the Municipal Council Sironj and petitioners submitted their applications and was found suitable to work and has been engaged and on joined the services petitioners discharged their duties duty fully.......'' THE HIGH COURT OF MADHYA PRADESH 8 WP 5069 of 2021 Haroon Shah Khan and Others vs. State of MP and Ors.

It is not the case of the petitioners that any advertisement was

issued by the respondents inviting the applications from similarly

placed aspirants. For compliance of Article 16 of the Constitution of

India and in order to make initial appointment as legal or irregular, the

employee is under obligation to plead and prove that his initial

appointment was after due information to all equally-placed aspirants.

Equal opportunity to all the equally-placed aspirants can be given only

when everybody is made known about the recruitment. Picking up few

persons from here and there, in a clandestine manner, without

information to general public cannot be said to be compliance of

Article 16 of the Constitution of India. Such type of appointment is

termed as a ''backdoor entry'' and the employees so appointed cannot

take advantage of principle of ''legitimate expectation''.

The Supreme Court in the case of Uma Devi (supra) while

negating the submission of ''legitimate expectation'' has held as

under :-

''46. Learned Senior Counsel for some of the respondents argued that on the basis of the doctrine of legitimate expectation, the employees, especially of the Commercial Taxes Department, should be directed to be regularized since the decisions in Dharwad, Piara Singh, Jacob, and Gujarat Agricultural University and the like, have given rise to an expectation in them that their services would also be regularized. The doctrine can be invoked if the decisions of the Administrative Authority affect the person by depriving him of some benefit or advantage which either (i) he had in the past been permitted by the decision-

maker to enjoy and which he can legitimately expect to be THE HIGH COURT OF MADHYA PRADESH 9 WP 5069 of 2021 Haroon Shah Khan and Others vs. State of MP and Ors.

permitted to continue to do until there have been communicated to him some rational grounds for withdrawing it on which he has been given an opportunity to comment; or (ii) he has received assurance from the decision-maker that they will not be withdrawn without giving him first an opportunity of advancing reasons for contending that they should not be withdrawn [See Lord Diplock in Council of Civil Service Unions V. Minister for the Civil Service (1985 Appeal Cases 374), National Buildings Construction Corpn. Vs. S. Raghunathan, (1998 (7) SCC 66) and Dr. Chanchal Goyal Vs. State of Rajasthan (2003 (3) SCC 485]. There is no case that any assurance was given by the Government or the concerned department while making the appointment on daily wages that the status conferred on him will not be withdrawn until some rational reason comes into existence for withdrawing it. The very engagement was against the constitutional scheme. Though, the Commissioner of the Commercial Taxes Department sought to get the appointments made permanent, there is no case that at the time of appointment any promise was held out. No such promise could also have been held out in view of the circulars and directives issued by the Government after the Dharwad decision. Though, there is a case that the State had made regularisations in the past of similarly situated employees, the fact remains that such regularisations were done only pursuant to judicial directions, either of the Administrative Tribunal or of the High Court and in some case by this Court. Moreover, the invocation of the doctrine of legitimate expectation cannot enable the employees to claim that they must be made permanent or they must be regularized in the service though they had not been selected in terms of the rules for appointment. The fact that in certain cases the court had directed regularization of the employees involved in those cases cannot be made use of to found a claim based on legitimate expectation. The argument if accepted would also run counter to the constitutional mandate. The argument in that behalf has therefore to be rejected.

47. When a person enters a temporary employment or gets engagement as a contractual or casual worker and the engagement is not based on a proper selection as recognized by the relevant rules or procedure, he is aware THE HIGH COURT OF MADHYA PRADESH 10 WP 5069 of 2021 Haroon Shah Khan and Others vs. State of MP and Ors.

of the consequences of the appointment being temporary, casual or contractual in nature. Such a person cannot invoke the theory of legitimate expectation for being confirmed in the post when an appointment to the post could be made only by following a proper procedure for selection and in concerned cases, in consultation with the Public Service Commission. Therefore, the theory of legitimate expectation cannot be successfully advanced by temporary, contractual or casual employees. It cannot also be held that the State has held out any promise while engaging these persons either to continue them where they are or to make them permanent. The State cannot constitutionally make such a promise. It is also obvious that the theory cannot be invoked to seek a positive relief of being made permanent in the post.''

Under these circumstances, after having obtained requirement in

an illegal manner and in utter violation of provision of Article 16 of the

Constitution of India, the employee cannot take advantage of Article 21

of the Constitution of India by submitting that once he has secured his

appointment in an illegal manner, therefore, now the State has to

regularize his services.

So far as Annexure A appended to the circular dated 7 th October,

2016 is concerned, the said Annexure is not relating to ''regularization''.

It is relating to ''appointment'' and the ''selection process''. Although the

counsel for the petitioners had tried to confuse this Court by regularly

submitting that Annexure A deals with the ''regularization'' of

Sthaikarmis but from the plain reading of Annexure A appended to the

circular dated 7th October, 2016, it is clear that it deals with a fresh

appointment.

THE HIGH COURT OF MADHYA PRADESH 11 WP 5069 of 2021 Haroon Shah Khan and Others vs. State of MP and Ors.

Without entering into the controversy as to whether the State can

make ''appointment'' from Sthaikarmis by giving a complete go-bye to

the provisions of Article 16 of the Constitution of India or not, this

Court is of the considered opinion that if the petitioners are seeking

their fresh appointment, then they have to forego all the benefits which

may have accrued to them for the services rendered by them in the past.

Further, this Court in contravention of the judgment passed by

the Supreme in the case of Uma Devi (supra) cannot upheld

Annexure A appended to the circular dated 7 th October, 2016 by

directing the State Government to consider the case of the petitioners in

accordance with the said circular. By keeping the general public out of

recruitment process and by recruiting the Sthaikarmis only, on regular

basis would be violative of Article 16 of the Constitution of India

because Sthaikarmis cannot be said to be a separate class for making

reasonable distinction with the object sought to be achieved.

Undisputedly, Sthaikarmis are those persons whose initial

appointment was not in accordance with law and in order to give

respite to the daily-wager employees, the State had come up with

Viniyamitikaran Scheme. If the employee is not entitled for

regularization in the light of the judgment passed in the case of Uma

Devi (supra), then he is also not entitled for his appointment on regular

basis in the light of Annexure A appended to the circular dated 7 th THE HIGH COURT OF MADHYA PRADESH 12 WP 5069 of 2021 Haroon Shah Khan and Others vs. State of MP and Ors.

October, 2016. Under these circumstances, this Court cannot direct the

State Government to consider the case of the petitioners under

Annexure A appended to the circular dated 7th October, 2016.

As no case is made out for entertain this petition, the petition

fails and is hereby dismissed.

(G.S. Ahluwalia) Judge

MKB

MAHENDRA KUMAR BARIK 2021.03.09 19:07:39 +05'30'