The State Of Madhya Pradesh vs Smt. Mangla Sharma
2021 Latest Caselaw 7695 MP

     HIGH COURT OF MADHYA PRADESH : JABALPUR
                   (Division Bench)


                        W.A. No.462 of 2019

               The State of Madhya Pradesh & others
                             -Versus-
                       Smt. Mangla Sharma

                                --
Shri B.D. Singh, Govt. Advocate for the appellants/State.
Shri Jaydeep Kumar Kaushal, Advocate for the respondent.
_______________________________________________________
CORAM :
        Hon'ble Shri Justice Ravi Malimath, Chief Justice.
        Hon'ble Shri Justice Vijay Kumar Shukla, Judge.

                          JUDGMENT

(Jabalpur, dtd.23.11.2021)

Per : Vijay Kumar Shukla, J.-

In this intra-court appeal preferred under Section 2(1) of

the Madhya Pradesh Uchcha Nyayalaya (Khand Nyaypeeth to

Appeal) Adhiniyam, 2005 the pregnability of the order dated 20-7-

2016 passed by the learned Single Judge in Writ Petition No.20338

of 2015 is called in question. By the impugned order the writ

petition filed by the respondent/writ-petitioner [hereafter referred to

as "the respondent"] has been allowed.

2. The facts which are requisite to be stated for

adjudication of this appeal, are that the respondent preferred the writ

petition inter alia challenged the order dated 27-6-2013 and 21-7-

2015 passed by the Assistant Commissioner, Tribal Welfare,

Balaghat rejecting her claim for regularisation. The case of the

respondent was that a decision was taken by the Committee in view

of the decision of the Apex Court rendered in the case of

Secretary, State of Karnataka vs. Uma Devi, (2006) 4 SCC 1

regularising 112 employees out of 157 employees and 45 employees

were held disqualified. Though the application filed by the

respondent was forwarded before the Collector for regularisation,

but against her name it was mentioned that her appointment was

illegal.

3. The respondent filed a writ petition forming the subject-

matter of W.P. No.3702 of 2010 (S) which was disposed of on 14-5-

2013 with the direction to consider the representation of the

respondent in the light of the judgment of the Hon'ble Supreme

Court in Secretary, State of Karnataka vs. Uma Devi (supra).

4. A reference was made to the Circular issued by the

General Administration Department (GAD) amending earlier

circulars dated 8-02-2008, 6-9-2008 and 16-5-2007 giving certain

clarifications that, if the post is not vacant and a candidate is held

disqualified, then regularisation may be given to an equivalent post.

The claim of the respondent for regularization was rejected by order

dated 02-6-2016. The learned counsel for the respondent submitted

that the case of the respondent cannot be treated as a case of "illegal

appointment". At best, it was an irregular appointment and the

respondent has the right for her regularization.

5. The learned counsel for the appellants/State submitted

that the respondent was working on daily-wages and her

appointment was not made through selection process and, therefore,

it was an illegal appointment.

6. Heard the learned counsel for the parties and bestowed

our anxious consideration on the respective arguments advanced.

7. The Circular dated 16-5-2007 shows that it was issued

in compliance of the decision rendered by the Supreme Court in

Secretary, State of Karnataka vs. Uma Devi (supra). Clause 4.1

of the Circular defines "illegal appointment", whereas Clause 4.2

defines "irregular appointment". The said clauses were considered

by the learned Single Judge. The case of the respondent was

rejected for the following reasons :

(i) No advertisement was issued nor candidature was invited, and without following the due procedure, the respondent was appointed.

(ii) The respondent was not appointed by the competent officer.

So far the reason (i) is concerned, it clearly falls within the

ambit of Clause 4.2 of the policy which specifies that, such violation

of procedural part, falls within the ambit of "irregular appointment".

So far as appointment by an incompetent officer is concerned, it

falls within the sweep of "illegal appointment".

8. The learned counsel for the respondent relied on para 1

of the impugned order, dated 02-6-2016, wherein it is mentioned

that the respondent was appointed on daily rated basis by the

Collector, Balaghat. In para 5.6 of the petition it was categorically

pleaded that the respondent was appointed by the competent

authority. Similar pleadings were also there in para 5.6 of the writ

petition.

9. The learned Single Judge has considered that the

appellants have not chosen to file parawise reply and there is no

rebuttal to the aforesaid categorical submissions of the respondent.

The learned Single Judge found that the illegality which has been

pointed out in the appointment of the respondent, falls within the

category of "irregular appointment". The matter for regularisation

has been remitted back for reconsideration and it has been held that

the claim of the respondent cannot be rejected on the ground that she

was not appointed by the competent authority. The learned Single

Judge has directed that entire exercise of reconsideration be

completed within three months from the date of production of the

copy of the order.

10. In view of the aforesaid, we do not perceive any

illegality or perversity in the impugned order passed by the learned

Single Judge, warranting any interference in the present intra-court

appeal. It deserves to be and is hereby dismissed without any order

as to costs.

Pending interlocutory application(s), if any, also stands

disposed of.

        (Ravi Malimath)                               (Vijay Kumar Shukla)
          Chief Justice                                       Judge


ac.
 Digitally signed by AJAY KUMAR CHATURVEDI
 Date: 2021.11.29 11:33:42 +05'30'