Bablu Balmik vs The State Of Madhya Pradesh
2022 Latest Caselaw 204 MP

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                HIGH COURT OF MADHYA PRADESH
                              W.P. No.4677/2017
           (Bablu Balmik Vs. State of Madhya Pradesh & ors)


Jabalpur, Dated: 05.01.2022

     Shri Narinder Pal Singh Ruprah, Advocate for the
petitioner.
      Shri     Siddharth       S.Sharma,        Panel    Lawyer       for   the
respondents/State.

With the consent of parties, the matter is heard finally. By filing this petition under Article 226 of the Constitution of India, the petitioner is not challenging any specific order but is aggrieved by the inaction on the part of the respondents in not giving the benefit of full time Swachhakar (Sweeper) and also seeks regularization.

Brief facts leading to filing of the present petition are that the petitioner is a member of Scheduled Caste community. He was appointed as part time Swachhakar (Sweeper) in the service of the respondent vide order dated 18.1.1989. The petitioner is still working with complete sincerity and his services are taken for the whole day. Therefore, he represented for becoming a full time Swachhakar (Sweeper) from time to time. The work of the petitioner is liked by the respondent authorities and appears to be indispensible. Looking to his performance he was extended the salary of full time Swachhakar w.e.f. 17.7.2009 upto 15.3.2010. But, again the order dated 15.3.2010 was passed by which he was reverted on the post of Part time Swachhakar and accordingly the salary was also reduced to half. On complaint of one Hakim Singh he was reverted back as a part time Swachhakar. The petitioner has been making representations from time to time to make him full time Swachhakar, but to no avail. The petitioner is serving for last more than 20 years but with a meager amount of salary. It is not possible for him to meet both the ends. The respondents have sufficient number of class IV employees in Chhattarpur District where he can be regularized. Denial to extend the benefits amounts to violation of the fundamental rights of equity and equal protection of laws. In such circumstances, the

HIGH COURT OF MADHYA PRADESH W.P. No.4677/2017 (Bablu Balmik Vs. State of Madhya Pradesh & ors)

respondents authorities may be directed to make him full time Swachhakar as well as regularize him on the said post. Learned counsel for the petitioner placed reliance on the Apex Court judgment in the case of State of U.P. and others Vs. Uttam Singh, in Civil Appeal No.4575/2021 arising out of S.L.P. (C).No.20650/2019(S) decided on 3.8.2021.

Per contra the return has been filed by the respondents. Learned counsel for the respondents opposed the prayer and prayed for its dismissal on the ground that the petition suffers from delay and laches. The order cancelling his appointment was passed way back in the year 2020 and thereafter the petitioner kept silent and did not assail the same. There is no explanation to the delay in filing this petition. The law on the point is well settled that a part time employee cannot be regularised as a full time employee. There is no provision stipulating for promotion or absorption of a part time Swachhakar to a full time Swachhkar. The part time employees are not subject to service rules or other regulations which govern and control other regular staff of the Department, therefore, consideration of case of regularization does not arise. In view of the aforesaid, this petition deserves to be dismissed.

Heard learned counsel for the parties and perused the record.

In the case of State of Rajasthan and others Vs. Daya Lal and others, reported in (2011)2 SCC 429 the Apex court in para 12 has observed and held as under :-

12. We may at the outset refer to the following well-settled principles relating to regularisation and parity in pay, relevant in the context of these appeals:

(i) The High Courts, in exercising power under Article 226 of the Constitution will not issue directions for regularisation, absorption or permanent continuance, unless the employees claiming regularisation had been appointed in pursuance of a regular recruitment in accordance with relevant rules in an open competitive process, against sanctioned vacant posts. The equality clause contained in Articles 14 and 16 should be scrupulously followed and Courts should not issue a direction for regularisation of services of an employee which would be violative of the constitutional scheme. While something that is irregular for want of

HIGH COURT OF MADHYA PRADESH W.P. No.4677/2017 (Bablu Balmik Vs. State of Madhya Pradesh & ors)

compliance with one of the elements in the process of selection which does not go to the root of the process, can be regularised, back door entries, appointments contrary to the constitutional scheme and/or appointment of ineligible candidates cannot be regularised.

(ii) Mere continuation of service by a temporary or ad hoc or daily-wage employee, under cover of some interim orders of the court, would not confer upon him any right to be absorbed into service, as such service would be "litigious employment". Even temporary, ad hoc or daily-wage service for a long number of years, let alone service for one or two years, will not entitle such employee to claim regularisation, if he is not working against a sanctioned post. Sympathy and sentiment cannot be grounds for passing any order of regularisation in the absence of a legal right.

(iii) Even where a scheme is formulated for regularisation with a cut-off date (that is a scheme providing that persons who had put in a specified number of years of service and continuing in employment as on the cut-off date), it is not possible to others who were appointed subsequent to the cut-off date, to claim or contend that the scheme should be applied to them by extending the cut-off date or seek a direction for framing of fresh schemes providing for successive cut-off dates.

(iv) Part-time employees are not entitled to seek regularisation as they are not working against any sanctioned posts. There cannot be a direction for absorption, regularisation or permanent continuance of part-time temporary employees.

(v) Part-time temporary employees in government-run institutions cannot claim parity in salary with regular employees of the Government on the principle of equal pay for equal work. Nor can employees in private employment, even if serving full time, seek parity in salary with government employees. The right to claim a particular salary against the State must arise under a contract or under a statute.

This view has been affirmed by the Apex Court in the case of Union of India and others Vs. Ilmo Devi and another decided on 7.10.2021 in Civil Appeal Nos.5689-56990/2021. In view of the law laid down by the Apex Court in the case of Dayalal (supra) and Ilmodevi (supra) as well as in the case of Secretary, State of Karnataka Vs. Umadevi (2006)4 SCC 1, no relief claimed by the petitioner in the petition can be granted to the petitioner.

Moreover, the judgment relied by learned counsel for the petitioner in the case of Uttam Singh (supra) is not distinguishable and is not applicable in the facts and

HIGH COURT OF MADHYA PRADESH W.P. No.4677/2017 (Bablu Balmik Vs. State of Madhya Pradesh & ors)

circumstances of the case inasmuch as in that case the father of the petitioner was given the benefits of regular employee while designating him as a part time Tubewell Operator. The case of Uttam Singh (supra) was for the purpose of grant of compassionate appointment due to death of his father.

In view of the aforesaid, the petition is bereft of merit and substance is liable to be and is hereby dismissed. No order as to cost.

(S.A.Dharmadhikari) Judge HS

HEMANT SARAF 2022.01.12 18:13:05 +05'30'