Kalpana Nikose vs The State Of Madhya Pradesh
2023 Latest Caselaw 16982 MP

                          1              W.P. No. 21570/2023


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. 21570 of 2023
BETWEEN:-
1.   KALPANA NIKOSE W/O RAJENDRA
     NIKOSE, AGED ABOUT 40 YEARS,
     OCCUPATION: PART TIME EMPLOYEE AT
     GOVERNMENT       KANYA    SHIKSHA
     PARISAR GONGLAI BALAGHAT R/O
     WARD   NO.   13,  BUDHI  DISTRICT
     BALAGHAT (MADHYA PRADESH)



2.   SARITA SALAMAE W/O NARENDRA
     SALAME, AGED ABOUT 32 YEARS,
     OCCUPATION: PART TIME EMPLOYEE AT
     GOVERNMENT      KANYA     SHIKSHA
     PARISAR GONGLAI BALAGHAT R/O W
     NO. 1 SEONI CAMP POST BHARVELI
     DISTRICT    BALAGHAT     (MADHYA
     PRADESH)



3.   PANKAJ MESHRAM S/O MEHTERLAL
     MESHRAM, AGED ABOUT 32 YEARS,
     OCCUPATION: PART TIME EMPLOYEE AT
     GOVERNMENT      KANYA     SHIKSHA
     PARISAR GONGLAI BIG R/O W NO. 16
     CHICHGAON    POST   BAINI  TEHSIL
     KHELANJI    DISTRICT    BALAGHAT
     (MADHYA PRADESH)



4.   SHILA DONGRE W/O KALICHARAN
     DONGE, AGED ABOUT 45 YEARS,
     OCCUPATION: PPART TIME EMPLOYEE
     AT GOVERNMENT KANYA SHIKSHA
     PARISAR GONGLAI BALAGHAT, R/O W
     NO. 33 GAIKHURI DISTRICT BALAGHAT
                             2              W.P. No. 21570/2023


     (MADHYA PRADESH)



5.   KRISHNA    KUMAR    LILHARE    S/O
     PREMLAL LILHARE, AGED ABOUT 23
     YEARS,  OCCUPATION:   PART   TIME
     EMPLOYEE AT GOVERNMENT KANYA
     SHIKSHA PARISAR GONGLAI BALAGHAT,
     R/O W NO. 6 GONGLAI DISTRICT
     BALAGHAT (MADHYA PRADESH)



6.   NEELU     MESHRAM     W/O    RAJESH
     MESHRAM, AGED ABOUT 30 YEARS,
     OCCUPATION: PART TIME EMPLOYEE AT
     GOVERNMENT       KANYA      SHIKSHA
     PARISAR GONGLAI BALAGHAT, R/O W
     NO. 16 CHICHGAON POST BAINI TEHSIL
     KHELANJI,    DISTRICT     BALAGHAT
     (MADHYA PRADESH)



7.   SANGEETA CHOURE W/O MANOHAR
     CHOURE, AGED ABOUT 42 YEARS,
     OCCUPATION: PART TIME EMPLOYEE AT
     GOVERNMENT       KANYA      SHIKSHA
     PARISAR GONGLAI BALAGHAT R/O W
     NO. 33 GAIKHURI, DISTRICT BALAGHAT
     (MADHYA PRADESH)



8.   POONAM     MEHSRAM    W/O   PANKAJ
     MESHRAM, AGED ABOUT 25 YEARS,
     OCCUPATION: PART TIME EMPLOYEE AT
     GOVERNMENT       KANYA     SHIKSHA
     PARISAR GONGLAI BALAGHAT R/O W
     NO. 16 CHICHGAON POST BAINI TEHSIL
     KHELANJI,    DISTRICT    BALAGHAT
     (MADHYA PRADESH)



                                            .....PETITIONERS
(BY SHRI KARAN SINGH THAKUR- ADVOCATE)
                                                  3                          W.P. No. 21570/2023



AND
1.      THE STATE OF MADHYA PRADESH
        THROUGH THE PRINCIPAL SECRETARY,
        TRIBAL DEVELOPMENT DEPARTMENT,
        MANTRALAYA,   VALLABH   BHAWAN,
        BHOPAL (MADHYA PRADESH)



2.      THE     COMMISSIONER        (TRIBAL
        DEVELOPMENT            DEPARTMENT)
        JABALPUR     DIVISION,     DISTRICT
        JABALPUR (MADHYA PRADESH)



3.      THE       COLLECTOR       (TRIBAL
        DEPARTMENT) BALAGHAT, DISTRICT
        BALAGHAT (MADHYA PRADESH)



4.      THE ASSISTANT COMMISSIONER TRIBAL
        DEVELOPMENT           DEPARTMENT,
        BALAGHAT     DISTRICT   BALAGHAT
        (MADHYA PRADESH)



5.      THE BLOCK DEVELOPMENT OFFICER,
        BAIHAR DISTRICT BALAGHAT (MADHYA
        PRADESH)



6.      THE PRINCIPAL GOVERNMENT KANYA
        SHIKSHA PARISAR GONGLAI, DISTRICT
        BALAGHAT (MADHYA PRADESH)



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

---------------------------------------------------------------------------------------------------------
                                     4                   W.P. No. 21570/2023


      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 the following reliefs:-

"7.1 That, the Hon'ble Court may kindly be pleased to issue a writ in the nature of mandamus, order or direction command respondent no. 3 Collector Balaghat to immediately comply with the pending orders dt.23.01.2023 r/w 30.06.2023 of Commissioner Jabalpur and the petitioners be appointed/continue at Government Kanya Shiksha Parisar Balaghat, in the interest of justice.

7.2 Any other suitable relief deemed fit in the facts and circumstances of the case may also kindly be granted to the petitioner's along with the cost of this petition."

2. It is submitted by counsel for the petitioners that the petitioners were appointed as Part Time Teachers in light of the urgent nature of work. Thereafter, the petitioners were removed. The Commissioner by order dated 23.01.2023 has directed the Collector, Balaghat to reinstate 11 Part Time Employees in accordance with law. Therefore, it is prayed that Collector Balaghat be directed to comply the order dated 23.01.2023 passed by Commissioner, Jabalpur, Division Jabalpur in File No.40/Development Branch-2/2023.

3. Considered the submissions made by counsel for petitioners.

4. In order dated 23.01.2023, the Commissioner, Jabalpur, Division Jabalpur has passed following order:-

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5. Thus, the Commissioner, Jabalpur, Division Jabalpur has directed Collector, Balaghat to take 11 Part Time Employees back in service in accordance with law. Accordingly, counsel for the petitioners was directed to address this Court with regard to the Rules regulating the service of Part Time Employees.

6. It is fairly conceded by counsel for the petitioners that the petitioners were not appointed after any advertisement was issued. Thus, it is clear that the appointment of the petitioners was illegal as it was contrary to the mandate of Article 14 and 16 of Constitution of India. There is a distinction between illegal and irregular appointment.

7. 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 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."

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, it is not the case of the petitioners that they were appointed after following the constitutional scheme as enshrined under Article 14 and 16 of Constitution of India coupled with the fact that the petitioners have failed to point out any Rule according to which the Collector, Balaghat is under obligation to reinstate the petitioners in service, no case is made out warranting interference.

11. The petition fails and is hereby dismissed.

12. Office is directed to immediately send a copy of this order to

Commissioner, Jabalpur, Division Jabalpur as well as Collector, Balaghat for necessary information and compliance.

(G.S. AHLUWALIA) JUDGE ashish

ASHISH KUMAR LILHARE 2023.10.13 17:23:08 +05'30'