Madhya Pradesh High Court
Umesh Babu Khare vs The State Of Madhya Pradesh on 23 August, 2023
Author: Gurpal Singh Ahluwalia
1 W.P. No.23871/2018
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
ON THE 23rd OF AUGUST, 2023
WRIT PETITION No.23871 of 2018
BETWEEN:-
UMESH BABU KHARE S/O SHRI LAKHPAT RAI
KHARE, AGED ABOUT 59 YEARS, OCCUPATION:
COPYIST O/O WATER RESOURCES
DEPARTMENT, DIVISION REWA (MADHYA
PRADESH)
.....PETITIONER
(BY SHRI SHAKTI PRASAD PANDEY - ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH
THROUGH ITS PRINCIPAL SECRETARY,
WATER RESOURCES DEPARTMENT,
VALLABH BHAWAN, BHOPAL (MADHYA
PRADESH)
2. ENGINEER- IN-CHIEF, WATER RESOURCE
DEPARTMENT, WATER RESOURCES
BUILDING, TULSI NAGAR, BHOPAL
(MADHYA PRADESH)
3. CHIEF ENGINEER, GANGA KACHHAR,
WATER RESOURCES DEPARTMENT DISTT-
REWA (MADHYA PRADESH)
4. EXECUTIVE ENGINEER WATER
RESOURCES DIVISION DISTT-REWA
(MADHYA PRADESH)
5. SHRI ASHOK KUMAR PANDEY S/O SHRI
RAMDARSHAN PANDEY AGED ABOUT
MAJOR, OCCUPATION: COPYIST O/O
WATER RESOURCES DEPARTMENT,
DIVISION REWA (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI G.P. SINGH - GOVERNMENT ADVOCATE)
Signature Not Verified
Signed by: SHUBHANKAR
MISHRA
Signing time: 25-Aug-23
4:54:12 PM
2 W.P. No.23871/2018
.........................................................................................................
This petition coming on for admission this day, the court passed the
following:
ORDER
This petition under Article 226 of Constitution of India has been
filed seeking following reliefs:-
"(i) To call for the record for perusal of this
Hon'ble Court and quash the order impugned
Annexure P/6.
(ii) To command the respondents to extend the
benefit of appointment to the petitioner on the
post of Assistant Grade-III in place of Sthai
Karmi along with all consequential benefits like
respondent No.5.
(iii) Any other relief which this Hon'ble Court
deems fit in the facts and circumstances of the
case, may kindly be granted."
2. It is submitted by counsel for the petitioner that on 06/08/1986,
petitioner was appointed on the post of Copyist as a daily wager
employee. One Ashok Kumar Pandey, who was much junior to
petitioner has been regularized in the year 2004 on the post of Assistant
Grade-III. Earlier petitioner had also filed one Writ Petition bearing
registration No.4911/2004 which was decided by this Court with a
direction to the respondents to consider representation of petitioner and
decide the same in the light of policy of the State Government. When
respondents did not pay any heed to the representation submitted by
petitioner, therefore he preferred a Contempt Petition bearing Conc.
No.1023/2005, in which wrong information was given that order has
been complied with but representation was ultimately decided on
05/05/2015 thereby rejecting the claim of the petitioner. Petitioner again
Signature Not Verified
Signed by: SHUBHANKAR
MISHRA
Signing time: 25-Aug-23
4:54:12 PM
submitted a representation on 10/06/2015. In the meanwhile, petitioner
again filed one W.P. No.2978/2014 which was withdrawn on
11/11/2016. Now petitioner has been given the benefit of
Viniyamitikaran scheme dated 07/10/2016 but he has not been
regularized. Accordingly, present petition has been filed.
3. From the plaint averments, it is clear that petitioner had filed W.P.
No.2978/2014 for similar reliefs but the same was withdrawn. Thus, it is
clear that second petition has been filed for the similar relief and
therefore, the same is not maintainable.
4. Furthermore, by referring to order dated 05/05/2015, it is
submitted by counsel for the petitioner that claim of petitioner was
rejected in the light of circular dated 16/05/2007 and once the State
Government had decided to consider case of those employees who have
put in 10 years of service, then rejection of claim of petitioner is
unwarranted and bad in law.
5. Per contra, petition is vehemently opposed by counsel for the
respondents. It is submitted that Supreme Court in the case of
Secretary, State of Karnataka and Others Vs. Uma Devi (3) and
Others reported in (2006) 4 SCC 1 has held that in case of an irregular
appointment, the persons who have completed more than 10 years of
their service can be considered for regularization as a one-time measure
and accordingly, circular dated 16/05/2007 was issued, according to
which services of only those candidates were to be considered whose
appointments were irregular and not illegal and thus, case of petitioner
has been rightly rejected by order dated 05/05/2015.
6. Heard learned counsel for the parties.
Signature Not Verified
Signed by: SHUBHANKAR
MISHRA
Signing time: 25-Aug-23
4:54:12 PM
7. The Supreme Court in the case of Uma Devi (supra) has held as
under:-
"53. One aspect needs to be clarified. There may
be cases where irregular appointments (not
illegal appointments) as explained in S.V.
Narayanappa [(1967) 1 SCR 128 : AIR 1967 SC
1071], R.N. Nanjundappa [(1972) 1 SCC 409 :
(1972) 2 SCR 799] and B.N. Nagarajan [(1979)
4 SCC 507 : 1980 SCC (L&S) 4 : (1979) 3 SCR
937] and referred to in para 15 above, of duly
qualified persons in duly sanctioned vacant posts
might have been made and the employees have
continued to work for ten years or more but
without the intervention of orders of the courts or
of tribunals. The question of regularisation of the
services of such employees may have to be
considered on merits in the light of the principles
settled by this Court in the cases above referred
to and in the light of this judgment. In that
context, the Union of India, the State
Governments and their instrumentalities should
take steps to regularise as a one-time measure,
the services of such irregularly appointed, who
have worked for ten years or more in duly
sanctioned posts but not under cover of orders of
the courts or of tribunals and should further
ensure that regular recruitments are undertaken
to fill those vacant sanctioned posts that require
to be filled up, in cases where temporary
employees or daily wagers are being now
employed. The process must be set in motion
within six months from this date. We also clarify
that regularisation, if any already made, but not
sub judice, need not be reopened based on this
judgment, but there should be no further
bypassing of the constitutional requirement and
regularising or making permanent, those not duly
appointed as per the constitutional scheme."
Signature Not Verified
Signed by: SHUBHANKAR
MISHRA
Signing time: 25-Aug-23
4:54:12 PM
8. Therefore, in order to avail the benefit of ten years of service,
candidate must come up with a case that his initial appointment was
irregular.
9. It is the case of petitioner that circular dated 16/05/2007 does not
provide that only case of employees whose initial appointments were
irregular shall be considered and not of illegal appointment.
10. Circular dated 16/05/2007 provides as under:-
"3. ek- loksZPp U;k;ky; ds vkns'kkuqlkj jkT; ljdkj
,oa buds fu;a=.k ds v/khu lHkh LFkkuh; vkSj vU;
izkf/kdkjh dsoy ,d gh ckj ds fy;s 10 o"kksZa ;k
vf/kd ls fu;ekuqlkj Lohd`r inksa ij dk;Zjr nSfud
osru Hkksxh@vLFkkbZ deZpkfj;ksa dh vfu;fer
fu;qfDr;ksa (Irregular appointment) dks ¼voS/kkfud
fu;qfDr;ksa (Illegal appointments) dks ugha½ fu;fer
djus dh dk;Zokgh dh tkuh pkfg,A U;k;ky; vFkok
iz'kklfud vf/kdj.k ds vkns'k ls dk;Zjr deZpkfj;ksa
dks bl izdkj ds fu;ferhdj.k dh ik=rk ugha gksxhA
orZeku esa ;g lqfuf'pr fd;k tkos fd Lohd`r
fu;fer inks]a tgk¡ ij vLFkkbZ deZpkjh vFkok nSfud
osru Hkksxh HkrhZ fd, tk jgs gSa] ogka ij dsoy HkrhZ
fu;eksa ds vuqlkj gh fu;fer fu;qfDr dh dk;Zokgh
dh tkosaA Hkfo"; esa fu;ferhdj.k ,oa LFkkbZ lsok esa
fy, tkus ds fy, laoS/kkfud vko';drkvksa ,oa
lafo/kku dh ea'kkuqlkj fd, x, izko/kkuksa dk mYya?ku
ugha gksuk pkfg,A ek- loksZPp U;k;ky; }kjk ;g Hkh
Li"V fd;k x;k gS fd ;fn dksbZ fu;ferhdj.k iwoZ esa
fd;k x;k gS ,oa U;k;ky;ksa esa fopkjk/khu ugha gS] ,sls
izdj.kksa dks ek- loksZPp U;k;ky; ds vkns'k ds ifjizs{;
esa iqu% ijh{k.k dh vko';d ugha gSA
4.1 voS/kkfud fu;qfDr ls rkRi;Z gS fd & ^^laoS/kkfud
izko/kkuksa ds foijhr vik= yksxksa dh] ,slh dk;Zokgh ds
varxZr dh xbZ fu;qfDr tks fof/k }kjk izfrf"k) gks ;k
tks flfoy dk;Zokgh ds fy, vk/kkj mRiUu djrh gks
rFkk ,slh fu;qfDr djus gsrq fu;qfDrdrkZ oS/k :i ds
vkc) u gks rFkk ,slh fu;qfDr djuk voS/kkfud gks
rFkk ,slh fu;qfDr ds fy, in Lohd`r ugha gksrs gq,
Signature Not Verified
Signed by: SHUBHANKAR
MISHRA
Signing time: 25-Aug-23
4:54:12 PM
;k fu;qfDrdrkZ dks fu;qfDr ds vf/kdkj ugha gksrs gq,
fu;e@ck/;dkjh izko/kkuksa ds mYya?ku esa dh xbZ
gksA^^ mnkgjkFkZ&
in Lohd`r u gksuk
vkj{k.k fu;eksa dk mYya?ku dj dh xbZ HkrhZ
fu;qfDr ds le; fu/kkZfjr vk;q lhek u gksuk
HkrhZ fu;e vuqlkj vgZrk u gksuk
fu;qfDr ds vf/kdkj ds fcuk fu;qfDr
dksbZ in ij fu;qfDr fof/k }kjk izfrf"k) gks] fQj Hkh
,sls fu;eksa ;k lafo/kku ds vkKkid izko/kkuksa ds
mYy?kau esa HkrhZ dh xbZ gksA
;g lwph mnkgj.kLo:i gS u fd iw.kZ gSA
4.2 vfu;fer fu;qfDr ls rkRi;Z gS & ^^,slh fu;qfDr
tks Hkkjrh; lafo/kku ds vuqPNsn 14 o 16 rFkk 309
ds varxZr fdlh jkT; }kjk fu;qfDr gsrq fufeZr fu;eksa
esa ls fdlh ,sls fu;e ls gVdj fu;qfDr nh xbZ gks
tks ewy vk/kkj dks izHkkfor ugha djrk gks ;k fu;eksa
ds vHkko esa izfØ;k viuk, fcuk ;k HkrhZ ds izfØ;kxr
fu;eksa dk ikyu fd, cxSj dh xbZ gksA izfØ;k dk
ikyu fd, cxSj tks fu;qfDr dh xbZ gks og vfu;fer
fu;qfDr dh Js.kh esa vk,xhA vFkkZr~ fu;qDr fd;k x;k
O;fDr ik= rks gS ysfdu HkrhZ dh dksbZ ,d&nks rjg
dh lkekU; izfØ;k ugha viukus ls ,slh HkrhZ
vfu;fer fu;qfDr dgyk,xhA^^
fdlh in ij fu;qfDr gsrq vk/kkjHkwr vgZrkvksa
dks izHkkfor fd, cxSj] l{ke izkf/kdkjh }kjk fdlh
izfØ;kxr fu;eksa dk ikyu fd, cxSj Lohd`r fjDr
in ds miyC/k gksus ij vLFkk;h] lafonk fu;qfDr
vFkok fdlh fo'ks"k dk;Z@;kstuk ds fufeRr nSfud
osru ij vLFkk;h fu;qfDr] lafonk fu;qfDr] LFkkukiUu
fu;qfDr] ml in ds fy, okafNr ik=rk j[kus okys
O;fDr dks fu;qfDr nh gks rks og vfu;fer fu;qfDr
dgyk;sxhA mnkgj.kkFkZ &
fdlh izfØ;kxr fu;eksa dk mYya?ku fd;k
tkuk tks ewyHkwr vk/kkj dks izHkkfor u djrk
gksA
Signature Not Verified
Signed by: SHUBHANKAR
MISHRA
Signing time: 25-Aug-23
4:54:12 PM
fdlh fu;e ek= dk mYy?kau fd;k gks tks
izfØ;kxr ,slh =qfV u gks fd ewy vk/kkj dks
gh izHkkfor djrh gksA"
11. Thus, the circular is specifically clear that a one-time measure was
taken in respect of the employees whose initial appointments were
irregular and not illegal. Therefore, circular was clearly in consonance
with the directions given by Supreme Court in the case of Uma Devi
(supra).
12. The Supreme court in the case of State of M.P. Vs. Lalit Kumar
Verma reported in (2007) 1 SCC 575 has held as under :-
"12. The question which, thus, arises for
consideration, would be: Is there any distinction
between "irregular appointment" and "illegal
appointment"? The distinction between the two
terms is apparent. In the event the appointment is
made in total disregard of the constitutional
scheme as also the recruitment rules framed by
the employer, which is "State" within the meaning
of Article 12 of the Constitution of India, the
recruitment would be an illegal one; whereas there
may be cases where, although, substantial
compliance with the constitutional scheme as also
the rules have been made, the appointment may be
irregular in the sense that some provisions of
some rules might not have been strictly adhered
to."
13. The Supreme Court in the case of Siraj Ahmed Vs. State of U.P.
by judgment dated 13/12/2019 passed in Civil Appeal No.9412/2019
has held as under :-
"12. It can thus be seen that this Court has held
that the distinction between irregular appointment
and illegal appointment is clear. It has been held
that in the event appointment is made in total
disregard to the constitutional scheme and the
Signature Not Verified
Signed by: SHUBHANKAR
MISHRA
Signing time: 25-Aug-23
4:54:12 PM
recruitment rules framed by the employer, where
the employer is "State" within the meaning of
Article 12 of the Constitution of India, the
recruitment will be illegal one. It has, however,
been held that where although, substantial
compliance with the constitutional scheme, as also
the Rules have been made, the appointment would
become irregular inasmuch as some provisions of
some rules have been adhered to.
13. Subsequently, another Bench of this Court
in State of Karnataka v. M.L. Kesari, (2010) 9
SCC 247 : (2010) 2 SCC (L&S) 826 also had an
occasion to consider the issue. The Court
observed thus : (SCC p. 250, para 7)
"7. It is evident from the above that there
is an exception to the general principles
against "regularisation" enunciated
in Umadevi (3) [State of
Karnataka v. Umadevi (3), (2006) 4
SCC 1 : 2006 SCC (L&S) 753] , if the
following conditions are fulfilled:
(i) The employee concerned should have
worked for 10 years or more in duly
sanctioned post without the benefit or
protection of the interim order of any
court or tribunal. In other words, the
State Government or its instrumentality
should have employed the employee and
continued him in service voluntarily and
continuously for more than ten years.
(ii) The appointment of such employee
should not be illegal, even if irregular.
Where the appointments are not made or
continued against sanctioned posts or
where the persons appointed do not
possess the prescribed minimum
qualifications, the appointments will be
considered to be illegal. But where the
person employed possessed the
prescribed qualifications and was
working against sanctioned posts, but
Signature Not Verified
Signed by: SHUBHANKAR
MISHRA
Signing time: 25-Aug-23
4:54:12 PM
had been selected without undergoing
the process of open competitive
selection, such appointments are
considered to be irregular."
14. This Court held in State of Karnataka v. M.L.
Kesari, (2010) 9 SCC 247 : (2010) 2 SCC (L&S)
826 that where the appointments are not made or
continued against sanctioned posts or where the
persons appointed do not possess the prescribed
minimum qualifications, the appointment will be
considered to be illegal. However, when the
person employed possessed the prescribed
qualifications and is working against the
sanctioned posts, but had been selected without
undergoing the process of open competitive
selection, such appointments are considered to be
irregular."
14. Thus, it is clear that petitioner must point out that his initial
appointment was not illegal but irregular. However, he has completely
failed to do so.
15. So far as contention made by counsel for petitioner that his junior
has been regularized is concerned, the same cannot be accepted for the
simple reason that juniors were appointed on different dates. Therefore,
it is clear that the procedure which was adopted for recruitment of the
petitioner was different from recruitment of private respondent. If the
initial appointment of private respondent was irregular, then he was
entitled for regularization as per policy dated 16/05/2007.
16. Under these circumstances, petitioner cannot be given the benefit
due to regularization of private respondent.
17. Since petitioner has failed to prove that his original appointment
was not illegal but irregular coupled with the fact that claim of petitioner
was rejected by the respondents with a specific finding that initial
Signature Not Verified
Signed by: SHUBHANKAR
MISHRA
Signing time: 25-Aug-23
4:54:12 PM
appointment of the petitioner was an illegal appointment, therefore this
Court is of the considered opinion that no case is made out warranting
interference in the matter.
18. Petition fails and is hereby dismissed.
(G.S. AHLUWALIA)
JUDGE
Shubhankar
Signature Not Verified
Signed by: SHUBHANKAR
MISHRA
Signing time: 25-Aug-23
4:54:12 PM
