Vijay Kasle vs Life Insurance Corporation Of ...
2023 Latest Caselaw 16438 MP

                           1                    W.P.No.24902/2023



IN THE HIGH COURT OF MADHYA PRADESH
            AT JABALPUR
                         BEFORE
     HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
               ON THE 6th OF OCTOBER, 2023
              WRIT PETITION No. 24902 of 2023

BETWEEN:-

VIJAY KASLE S/O KAILASH KASLE, AGED
ABOUT 38 YEARS, OCCUPATION: DAILY WAGES
WORKER(IN     THE    DEPARTMENT      OF
RESPONDENT    AUTHORITY)    R/O   H  NO
166,JYOTIWA GULE NAGAR. CHAR IMLI HUZUR.
DISTRICT BHOPAL (MADHYA PRADESH)
                                                .....PETITIONER
(BY SHRI AKASH SINGHAI - ADVOCATE)

AND

1.    LIFE INSURANCE CORPORATION OF INDIA
      THROUGH ITS CHAIRMAN CENTRAL
      OFFICE     YOGAKSHENA,     MUMBAI
      (MAHARASHTRA)


2.    LIFE INSURANCE CORPORATION OF INDIA
      THROUGH     ITS  ZONAL    MANAGER
      CENTRAL ZONAL OFFICE, 60-B, JEEWAN
      SHIKSHA, HOSHANGABAD ROAD, BHOPAL
      (MADHYA PRADESH)


3.    LIFE INSURANCE CORPORATION OF INDIA
      THROUGH    ITS  SENIOR  DIVISIONAL
      MANAGER, DIVISION OFFICE , JEEWAN
      PRAKASH, MADAN MAHAL JABALPUR
      (MADHYA PRADESH)


4.    LIFE INSURANCE CORPORATION OF INDIA
      THROUGH    ITS  SENIOR  DIVISIONAL
                                 2                        W.P.No.24902/2023



       MANAGER DIVISION OFFICE            , 60-A   ,
       JEEWAN PRAKASH, ARERA              HILLS    ,
       BHOPAL (MADHYA PRADESH)
                                                       .....RESPONDENTS
     (NONE)

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

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

"(i) That this Hon'ble Court may kindly be please to issue a writ of mandamus or any other appropriate writ, order or direction, directing the respondent authority to regularize the petitioner's employment with all consequential benefits and seniority, as applicable.

(ii) that, this Hon'ble Court may kindly be please to give direction to the respondent authorities to consider or decide the representation submitted by the petitioner (ANN...P/3).

(iii) It is most humbly prayed that any other relief which this Hon'ble court deems fit in the facts and circumstances of the case may also kindly be granted in the favour of petitioner."

2. It is submitted by counsel for petitioner that he was appointed as daily wager and is working for last 14 years and in the light of the judgment passed in the case of Secretary, State of Karnataka and Others Vs. Uma Devi (3) and Others reported in (2006) 4 SCC 1, the respondents have failed to consider the claim of the petitioner for regularization.

3. It is further submitted that although in the writ petition he has mentioned that he was appointed in the year 2009 but it is clear from the experience certificate (Annexure P/1) that petitioner is working since 01.06.2005.

4. Considered the submissions made by counsel for petitioner.

5. The Supreme Court in the case of Umadevi (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 abovereferred 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."

6. The question with regard to cut of date was considered by the Supreme Court in the case of State of Karnataka v. M.L. Kesari, reported in (2010) 9 SCC 247 in which it has been held that the departments are required to be considered the case of irregular appointed persons who have completed 10 years of service on 10.04.2006 (the date on which the judgment in the case of Umadevi (supra) was passed) and has held as under:-

"9. The term "one-time measure" has to be understood in its proper perspective. This would normally mean that after the decision in Umadevi (3) [(2006) 4 SCC 1] , each department or each instrumentality should undertake a one-time exercise and prepare a list of all casual, daily-wage or ad hoc employees who have been working for more than ten years without the intervention of courts and tribunals and subject them to a process verification as to whether they are working against vacant posts and possess the requisite qualification for the post and if so, regularise their services.

10. At the end of six months from the date of decision in Umadevi (3) [(2006) 4 SCC 1] , cases of several daily-wage/ad hoc/casual employees were still pending before courts. Consequently, several departments and instrumentalities did not commence the one-time regularisation process. On the other hand, some government departments or instrumentalities undertook the one-time exercise excluding several employees from consideration either on the ground that their cases were pending in courts or due to sheer oversight. In

such circumstances, the employees who were entitled to be considered in terms of para 53 of the decision in Umadevi (3) [(2006) 4 SCC 1] , will not lose their right to be considered for regularisation, merely because the one-time exercise was completed without considering their cases, or because the six-month period mentioned in para 53 of Umadevi (3) [(2006) 4 SCC 1] has expired. The one-time exercise should consider all daily-wage/ad hoc/casual employees who had put in 10 years of continuous service as on 10-4-2006 without availing the protection of any interim orders of courts or tribunals. If any employer had held the one-time exercise in terms of para 53 of Umadevi (3) [(2006) 4 SCC 1] , but did not consider the cases of some employees who were entitled to the benefit of para 53 of Umadevi (3) [(2006) 4 SCC 1] , the employer concerned should consider their cases also, as a continuation of the one-time exercise. The one-time exercise will be concluded only when all the employees who are entitled to be considered in terms of para 53 of Umadevi (3) [(2006) 4 SCC 1], are so considered.

11. The object behind the said direction in para 53 of Umadevi (3) [(2006) 4 SCC 1] is twofold. First is to ensure that those who have put in more than ten years of continuous service without the protection of any interim orders of courts or tribunals, before the date of decision in Umadevi (3) [(2006) 4 SCC 1] was rendered, are considered for regularisation in view of their long service. Second is to ensure that the departments/instrumentalities do not perpetuate the practice of employing persons on daily-wage/ad hoc/casual basis for long periods and then periodically regularise them on the ground that they have served for more than ten years, thereby defeating the constitutional or statutory provisions relating to recruitment and appointment. The true effect of the direction is that all persons who have worked for more than ten years as on 10-4-2006 [the date of decision

in Umadevi (3) [(2006) 4 SCC 1] ] without the protection of any interim order of any court or tribunal, in vacant posts, possessing the requisite qualification, are entitled to be considered for regularisation. The fact that the employer has not undertaken such exercise of regularisation within six months of the decision in Umadevi (3) [(2006) 4 SCC 1] or that such exercise was undertaken only in regard to a limited few, will not disentitle such employees, the right to be considered for regularisation in terms of the above directions in Umadevi (3) [(2006) 4 SCC 1] as a one-time measure.

12. These appeals have been pending for more than four years after the decision in Umadevi (3) [(2006) 4 SCC 1] . The appellant (Zila Panchayat, Gadag) has not considered the cases of the respondents for regularisation within six months of the decision in Umadevi (3) [(2006) 4 SCC 1] or thereafter.

13. The Division Bench of the High Court has directed that the cases of the respondents should be considered in accordance with law. The only further direction that needs to be given, in view of Umadevi (3) [(2006) 4 SCC 1] , is that the Zila Panchayat, Gadag should now undertake an exercise within six months, as a general one-time regularisation exercise, to find out whether there are any daily-wage/casual/ad hoc employees serving the Zila Panchayat and if so whether such employees (including the respondents) fulfil the requirements mentioned in para 53 of Umadevi (3) [(2006) 4 SCC 1] . If they fulfil them, their services have to be regularised. If such an exercise has already been undertaken by ignoring or omitting the cases of Respondents 1 to 3 because of the pendency of these cases, then their cases shall have to be considered in continuation of the said one-time exercise within three months. It is needless to say that if the respondents do not fulfil the requirements of para 53 of Umadevi (3) [(2006) 4 SCC 1] , their services need not be

regularised. If the employees who have completed ten years' service do not possess the educational qualifications prescribed for the post, at the time of their appointment, they may be considered for regularisation in suitable lower posts."

7. Thus, it is clear that in the light judgment passed in Umadevi (supra), the respondents can consider the cases of the irregular appointed employees who had completed 10 years of service on 10.04.2006. It is the case of the petitioner that he was appointed as daily wager on 01.06.2005, therefore it is clear that he had not completed 10 years of his service 10.04.2006. Furthermore, there is not a single whisper in the writ petition about the nature of his original appointment. There is distinction between illegal and irregular appointment.

8. 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."

9. 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 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 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."

10. Since, petitioner had not completed 10 years of service on 10.04.2006 and further there is nothing on record to show that the

initial appointment of the petitioner was irregular, no case is made out to issue direction to the respondents.

11. Accordingly, the petition fails and is hereby dismissed.

(G.S. AHLUWALIA) JUDGE

vinay* VINAY KUMAR BURMAN 2023.10.10 18:57:27 +05'30'