Madhya Pradesh High Court
Rajiv Nayan Joshi vs Union Of India on 8 May, 2023
Author: Sushrut Arvind Dharmadhikari
1
M.P. No. 744 of 2020
IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE SUSHRUT ARVIND
DHARMADHIKARI
&
HON'BLE SHRI JUSTICE PRAKASH CHANDRA GUPTA
ON THE 8th OF MAY, 2023
MISC. PETITION No. 744 of 2020
BETWEEN:-
RAJIV NAYAN JOSHI S/O PURUSHOTTAM JOSHI, AGED 46 YEARS,
OCCUPATION: UNEMPLOYED PREMIUM PARK OPPOSITE AUROBINDO
HOSPITAL INDORE (MADHYA PRADESH)
.....PETITIONER
(SHRI AMIT RAJ, LEARNED COUNSEL FOR THE PETITIONER )
AND
UNION OF INDIA SECRETARY MINISTRY OF SMALL AND MEDIUM
1.
ENTERPRISES NIRMAN BHAWAN NEW DELHI (DELHI)
GENERAL MANAGER INDO GERMAN TOOL ROOM SECTOR E,
2.
SANWER ROAD INDUSTRIAL AREA, INDORE (MADHYA PRADESH)
.....RESPONDENTS
(HIMANSHU JOSHI APPEARED FOR RESPONDENT)
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Reserved on : 14.02.2023
Pronounced on : 08.05.2023
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This petition having been heard and reserved for orders coming
on for pronouncement this day, Hon'ble Shri Justice S.A.
DHARMADHIKARI pronounced the following
ORDER
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Signed by: SEHAR HASEEN
Signing time: 5/8/2023
6:37:36 PM
M.P. No. 744 of 2020
Heard finally with the consent of both the parties.
In this petition, under Article 227 of the Constitution of India, the
petitioner has assailed the order dated 13.02.2019 passed in O.A. No.
201/00333/2017by the Central Administrative Tribunal, Jabalpur
Bench, Circuit Sitting, Indore dismissing the original application having
been rendered infructuous.
The brief facts of the case are that the petitioner was appointed by
the respondent no.2 as Trainee Engineer on contractual basis vide order
dated 17.08.2007. The contract period was extended on year to year
basis till 31.12.2017 and his designation was also modified as Junior
Engineer (Contract Basis) and Assistant Engineer (on contract).
Looking to the period of service, the petitioner sought
regularization of his service by filing various representations, but to no
avail. Being aggrieved, the petitioner preferred O.A. No.
201/00333/2017 before the learned Tribunal praying for the following:
This Hon'ble Tribunal may graciously be pleased:
(a) to call the relevant records of the case from the
respondents;
(b) to regularize the services of the present applicant in the
Respondent No.2 organization from the date of joining i.e.
from the year 2007 with all consequential benefits and dues
and/or
(bb) To grant the benefit of minimum pay scale of regular pay
scale to the present applicant; and
(c) to allow this application with costs;
(d) to pass such other order(s) as may be deemed appropriate
in the facts and circumstances of the case, to grant relief to
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M.P. No. 744 of 2020
the applicant."
Thereafter, the respondents filed the reply to the original
application stating that there is no post of Assistant Engineer in the
regular set up of respondent no. 2. The appointment of the petitioner
was based on need of the hour and not by following the recruitment
rules. The petitioner's engagement was purely on contract basis.
However, during the pendency of the original application, the
respondents issued an advertisement to fill up the post of Senior
Engineer. Petitioner participated in the selection process, but could not
be selected. In the meanwhile, the contract ended on 31.12.2017 which
was not further extended. The petitioner approached the learned
Tribunal by filing M.A. No. 201/290/2018 seeking continuation of his
contract. The said M.A. was dismissed vide order dated 15.03.2018.
Learned counsel for the petitioner contended that since the
petitioner has been working with the respondent organization for more
than 10 years continuously, he is entitled to be considered for
regularization as per para 43 of the judgment passed by the Apex Court
in the case of State of Karnataka V Vs. Uma Devi[2006(4) SCC 1].
On the other hand, learned counsel for the respondent vehemently
opposed the prayer and submitted that para 43 of the judgment passed in
the case of State of Karnataka(supra) does not get attracted to the
facts and circumstances of the present case, in as much as the petitioner
was not appointed after following due process of law. The appointment
was purely contractual which comes to an end at the end of the contract.
In the present case, admittedly, the appointment come to an end on
31.12.2017. Thereafter, it was never renewed. Even in the regular
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M.P. No. 744 of 2020
selection process for Senior Engineer, the petitioner was not selected.
Hence, the present petition is liable to be dismissed.
Heard, learned counsel for the petitioner and perused the record.
The learned Tribunal dismissed the original application having
been rendered infructuous stating that the petitioner has already been
discharged from service on completion of contract with the
respondent/organization.
The Apex Court in the case of State of Karnataka(supra) 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
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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. High Courts acting under Article 226 of the
Constitution of India, should not ordinarily issue directions
for absorption, regularization, or permanent continuance
unless the recruitment itself was made regularly and in
terms of the constitutional scheme. Merely because, an
employee had continued under cover of an order of 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.
In the present case, the petitioner was appointed purely on
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M.P. No. 744 of 2020
contract basis without there being any regular post on need of hour. No
regular selection process was ever initiated without filling up the post
which was hold by the petitioner.
In the light of State of Karnataka(supra), the petitioner cannot
be regularized. The learned Tribunal has not erred in rejecting the
original application seeking interference by this Court.
Accordingly, miscellaneous petition being bereft of merits and
substance is hereby dismissed. No order as to cost.
(S. A. DHARMADHIKARI) (PRAKASH CHANDRA GUPTA)
JUDGE JUDGE
08.05.2023 08.05.2023
sh
Signature Not Verified
Signed by: SEHAR HASEEN
Signing time: 5/8/2023
6:37:36 PM
