Satya Bhanu Singh vs The State Of Madhya Pradesh
2023 Latest Caselaw 16981 MP

                          1                  W.P.No.4874/2013



IN THE HIGH COURT OF MADHYA PRADESH
            AT JABALPUR
                        BEFORE
     HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
              ON THE 12th OF OCTOBER, 2023
               WRIT PETITION No. 4874 of 2013

BETWEEN:-

SATYA BHANU SINGH S/O BADRI SINGH, AGED
ABOUT 51 YEARS, OCCUPATION: ASSISTANT
GRADE III, DAILY WAGER IN THE OFFICE OF
EXECUTIVE    ENGINEER    PUBLIC     WORKS
DEPARTMENT, SIDHI DIVISION, SIDHI (MADHYA
PRADESH)
                                                .....PETITIONER
(BY SHRI ADITYA VEER SINGH - ADVOCATE)

AND

1.    THE STATE OF MADHYA PRADESH
      THROUGH : PRINCIPAL SECRETARY P.W.D.
      VALLABH BAHWAN, BHOPAL (MADHYA
      PRADESH)

2.    THE ENGINEER IN CHIEF, PUBLIC WORKS
      DEPARTMENT      MADHYA      PRADESH
      SATPURA BHAWAN. BHOPAL (MADHYA
      PRADESH)

3.    THE CHIEF ENGINEER, PUBLIC WORKS
      DEPARTMENT,  REWA    ZONE.  REWA
      (MADHYA PRADESH)

4.    THE SUPERINTENDING ENGINEER, PUBLIC
      WORKS DEPARTMENT, REWA ZONE,
      REWA (MADHYA PRADESH)

5.    THE EXECUTIVE ENGINEER PUBLIC
      WORKS DEPARTMENT, SIDHI DIVISION,
      SIDHI (MADHYA PRADESH)
                                             .....RESPONDENTS
                                 2                     W.P.No.4874/2013


(BY SHRI K. S. BAGHEL - GOVERNMENT ADVOCATE)

      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) A writ, order or direction in the nature of certiorari thereby quashing the orders dated 02/02/2011 passed by respondent No. 3 (Annexure-P/5) and the order dated 16/06/2011 issued by respondent No. 5 (Annexure-P/6).

(ii) A writ order or direction in the nature of mandamus thereby directing the respondents to regularize the services of the petitioner as Assistant Grade-III from the date he completed 10 years as a daily wages Assistant Grade-III with all consequential benefits such as arrears of salary, seniority and continuity of service.

(iii) Any other appropriate writ, order or direction which the Hon'ble court may deem just and proper in the nature and circumstances of the case."

2. It is submitted by counsel for petitioner that he was appointed as a daily wager on the post of Assistant Grade-III and is working since 1988. In spite of the recommendations by the Executive Engineer, his services have not been regularized.

3. The return has also been filed thereby denying the relief claimed by petitioner.

4. Heard the learned counsel for parties.

5. The Supreme Court in the case of Secretary, State of Karnataka and Others Vs. Uma Devi (3) and Others reported in (2006) 4 SCC 1:-

"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 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."

7. 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."

8. Thus, it is clear that if an initiatial appointment was made contrary to the constitutional scheme as enshrined under Article 14 and 16 of Constitution of India and if the appointment was made against non existing vacant and sanctioned post or if the employee was not having minimum qualification, then he cannot be placed in the category of irregularly appointed employee but he has to be placed in the category of illegal appointed employee.

9. The Supreme Court had directed the State Government to adopt a one time measure for regularizing the services of those irregularly appointed employees who had completed 10 years of service on the date of pronouncement of judgment in the case of Umadevi (supra) i.e. 10.04.2006. Thus, it is clear that for claiming regularization the petitioner is required to prove the following three ingredients:-

(i) His initial appointment was in accordance with the constitutional scheme as enshrined under Article 14 and 16 of Constitution of India.

(ii) His initial appointment was against vacant and sanctioned post.

(iii) He was holding all the minimum qualifications for the post on which he was appointed.

10. If the petition is considered then it is clear that the petition is completely silent on the issue as to whether the initial appointment of petitioner was illegal or irregular. There is no averment that petitioner was appointed after the advertisement was issued. Merely, serving the department for more than decades by itself is not sufficient to grant regularization.

11. Furthermore, the State of Madhya Pradesh by scheme dated 07.10.2016 has conferred the status of Sthai Karmi to the daily wager. Since, the petition was filed in the year 2013 and the return was also filed in the year 2013, therefore it is not clear as to whether petitioner was conferred the status of Sthai Karmi or not. Since, the petitioner has not claimed benefit of Sthai Karmi by amending the petition, therefore it is presumed that he has been given the benefit of Viniyamitikarn scheme floated by the State Government in the month of October, 2016.

12. Since the petition lacks the basic averments warranting a direction to regularize the petitioner or to consider his case for

regularization accordingly, no case is made out warranting interference.

13. The petition fails and is hereby dismissed.

14. It is made clear that in case if petitioner has not been given the benefit of Viniyamitikaran scheme, then he shall be free to claim the same either by approaching the authorities or by filing a fresh petition before this Court.

(G.S. AHLUWALIA) JUDGE

vinay* VINAY KUMAR BURMAN 2023.10.13 16:55:26 +05'30'