Smt. Usha Khare vs The State Of Madhya Pradesh
2023 Latest Caselaw 8325 MP

                                                              1
                            IN     THE       HIGH COURT OF MADHYA PRADESH
                                                  AT JABALPUR
                                                     BEFORE
                                  HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
                                                   ON THE 12 th OF JUNE, 2023
                                                WRIT PETITION No. 1012 of 2023

                           BETWEEN:-
                           SMT. USHA KHARE W/O SHRI RAM BAHADUR KHARE,
                           AGED ABOUT 56 YEARS, OCCUPATION: SERVICE R/O
                           GRAM KHARD MOHALLA NIWARI TEHSIL AND
                           DISTRICT NIWARI (MADHYA PRADESH)

                                                                                           .....PETITIONER
                           (BY SHRI GAURAV TIWARI - ADVOCATE)

                           AND
                           1.    STATE OF MADHYA PRADESH THROUGH ITS
                                 SECRETARY PUBLIC WORKS DEPARTMENT
                                 VALLABH BHAWAN BHOPAL (MADHYA PRADESH)

                           2.    ENGINEER IN CHIEF MP PUBLIC WORKS
                                 DEPARTMENT NIRMAN BHAWAN ARERA HILLS
                                 BHOPAL (MADHYA PRADESH)

                           3.    S D O PUBLIC WORKS DEPARTMENT NIWARI
                                 DIVISION DISTRICT NIWARI (MADHYA PRADESH)

                                                                                         .....RESPONDENTS
                           (BY SHRI MOHAN SAUSARKAR - GOVERNMENT ADVOCATE)

                                 This petition coming on for admission this day, th e court passed the
                           following:


                                                               ORDER

This petition under Article 226 of the Constitution of India has been filed seeking the following reliefs:

"(i) That, this Hon'ble Court be please to direct the Signature Not Verified Signed by: VARSHA CHOURASIYA Signing time: 14-06-2023 10:39:17

respondent to consider the representation filed by the petitioner dated 19/12/2022 Annexure P/6.

(ii) That, the Hon'ble Court be please to direct the respondent to consider the case of the petitioner for the post of time keeper as done in the case of Rajendra Prasad Sharma and Arvind Kumar Richaria.

(iii) That, any other relief this Hon'ble Court deem fit in the fact and circumstances of the case may be granted to be petitioner."

2 . It is submitted by the counsel for the petitioner that by order dated

19.12.1988, the petitioner was appointed as a Daily Wager. Thereafter, she moved an application for her regularization. Ultimately the petitioner filed a W.P. No.6207/2016 seeking a direction for consideration of her claim for regularization. The said writ petition was disposed of by order dated 06.04.2016 with liberty to the petitioner to resubmit the representation and the respondents were directed to decide the representation by reasoned order in accordance with law within 90 days. It is submitted that her representation has not been decided so far. It is further submitted that although the second writ petition for the similar relief may not be maintainable but the respondents have considered the cases of some of the similarly situated employees for their regularization and accordingly, the petitioner has made another representation on 19.12.2022 for consideration of her case for regularization. It is submitted that the subsequent events in the form of regularization of the co-employees have given a fresh cause of action to the petitioner to approach this Court.

3. Per contra, it is submitted by the counsel for the respondents that the Signature Not Verified Signed by: VARSHA CHOURASIYA Signing time: 14-06-2023 10:39:17

petitioner has filed some of the orders to show that in the year 2022 the cases of some of the employees have been considered by the respondents. It is submitted that since the petitioner has also made a representation, therefore, her case shall also be considered in the light of the judgment passed by the Supreme Court in the case of Uma Devi (supra).

4. Heard the learned counsel for the parties.

5. The petition is completely silent as to whether the initial appointment of the petitioner was illegal or irregular. It is well established principle of law that the claim for regularization has to be considered and decided in the light of the directions given by the Supreme Court in the case of Uma Devi (supra). It is equally true that if some benefit has been wrongly extended by the respondents to other co-employees, then the principle of negative equality cannot be applied.

6. Accordingly, this petition is disposed of with the following observations:

(i) The respondents shall consider the representation of the petitioner dated 19.12.2022 strictly in accordance with the directions given by the Supreme Court in the case of Uma Devi (supra). No negative equality shall be applied by the respondents.

(ii) The respondents are directed to find out as to whether the case of the

petitioner was considered and decided in the light of the order dated 06.04.2016 passed in W.P. No.6207/2016 or not? If the representation of the petitioner was already rejected/decided, then no further steps are required to be taken in the case, otherwise the respondents shall specifically consider and point out as to whether the initial appointment of the petitioner was illegal or irregular i.e. whether any public advertisement etc. was issued before giving appointment to Signature Not Verified Signed by: VARSHA CHOURASIYA Signing time: 14-06-2023 10:39:17

the petitioner or not.

7. Let the entire exercise be completed within a period of three months from the date of receipt of certified copy of this order. If the petitioner is so advised then she may also file a fresh representation.

8 . It is needless to mention here that this Court has not considered the merits of the case and the representation shall be decided strictly on its own merits without getting influenced or prejudiced by this order.

9. With aforesaid observation, the petition is finally disposed of.

(G.S. AHLUWALIA) JUDGE vc

Signature Not Verified Signed by: VARSHA CHOURASIYA Signing time: 14-06-2023 10:39:17