Madhya Pradesh High Court
Ram Sajeevan vs The State Of Madhya Pradesh on 8 January, 2025
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
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W.P. No. 70 of 2025
1
IN THE HIGH COURT OF MADHYA PRADESH
AT G WA L I O R
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
ON THE 8th OF JANUARY, 2025
WRIT PETITION No. 70 of 2025
RAM SAJEEVAN
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Sudhir Chaturvedi, Advocate for the petitioner.
Shri Ravindra Dixit, Government Advocate for the respondents/State.
JUDGEMENT
This petition, under Article 226 of Constitution of India, has been filed
seeking the following reliefs:-
"i. That, the respondent may please be directed to comply the
Order dated 13.05.2004 of this Hon'ble Court and regularize the
services of the Petitioner with benefits thereon.
ii. Please to issue writ of Mandamus to the respondents directing
him to pay all financial benefits.
iii. That, the respondents further may please be directed to pay the
amount of benefits after adding interest @ 12% over all these
benefits for delay of payments. paid to the petitioner.
iv. That, the cost of the petition, may kindly be allowed.
v. That any other order or direction doing justice in the matter in
favour of the petitioner may also be please to pass."
2. This Court, by a separate order passed today in the case of Chandra
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Prakash Gupta Vs. The State of M.P. & Others (W.P. No. 64/2025) has
dismissed the petition by observing as under:-
"This petition, under Article 226 of Constitution of India, has been filed
seeking the following reliefs:-
"i. That, the respondent may please be directed to comply the
Order dated 13.05.2004 of this Hon'ble Court and regularize the
services of the Petitioner with benefits thereon.
ii. Please to issue writ of Mandamus to the respondents directing
him to pay all financial benefits.
iii. That, the respondents further may please be directed to pay
the amount of benefits after adding interest @ 12% over all these
benefits for delay of payments. paid to the petitioner.
iv. That, the cost of the petition, may kindly be allowed.
v. That any other order or direction doing justice in the matter in
favour of the petitioner may also be please to pass."
2. It is submitted by counsel for petitioner that on 1/3/1987, petitioner
was appointed as daily wager on the post of Pump Attendant. On 9/1/1990,
guidelines were issued for regularization of daily wagers, according to which
work of regularization was to be completed within a period of 3 months i.e.
by the end of March, 1990. Since respondents were not acting upon their own
instructions, therefore, petitioner approached the State Administrative
Tribunal at Gwalior by filing O.A. No. 1533/1999. After abolition of
Tribunal, the case was transferred to the High Court which was re-numbered
as W.P. No.4486/2003 and was decided by order dated 13/5/2004 with
direction to respondents to consider the case of regularization of petitioner as
per the directions issued by Division Bench in the case of State of M.P. Vs.
Madan Lal Pandey and another decided on 25/03/2004 in W.P. No.
1387/1999. Since respondents were not paying any heed, therefore, petitioner
filed Conc. No. 311/2004 which was disposed of by order dated 10/12/2004
with a direction that petitioner should wait for some more time and he can
pray for initiating action only if in-ordinate delay is caused. By letter dated
11/7/2005, petitioner was informed that a Committee was constituted for
regularization of employees, but on account of non availability of vacant and
sanctioned post, the aforesaid exercise could not be done. Further, the
Committee had directed to prepare a waiting-list for 25% of the posts and,
accordingly, it was informed that name of petitioner is at S.No.363 of the
seniority list and for the time being he cannot be regularized on account of
non availability of vacant posts. Thereafter, by order dated 13/01/2010, again
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a direction was given to take immediate action for regularization of petitioner,
but no action was taken and his status remained un-changed. It is submitted
that even otherwise petitioner after completing 36 years of service has
become entitled for pension under Rules 3 and 4 of the M.P. (Work-charged
and Contignency) Paid Employees Pension Rules, 1979 and, accordingly, the
present petition has been filed seeking compliance of order dated 13/5/2004
passed by this Court in W.P. No. 4486/2003.
3. Per contra, petition is vehemently opposed by counsel for respondents.
It is submitted that petition suffers from delay and latches. Direction was
given to respondents to consider the case of petitioner by order dated
13/5/2004. Thereafter, Conc. No. 311/2004 was dismissed by order dated
10/12/2004. Petitioner has approached this Court after 20 years and no
explanation has been given for delay and latches. It is submitted that
meanwhile the law has changed in the light of judgment of Supreme Court in
the case of Secretary, State of Karnataka Vs. Uma Devi reported in (2006)
4 SCC 1 and now an illegally appointed employee cannot be considered for
regularization.
4. Heard learned counsel for the parties.
5. Counsel for petitioner was directed to point out as to whether he was
irregularly appointed or illegally appointed ?
6. It is fairly conceded by by counsel for petitioner that there is nothing in
the writ petition to indicate as to whether initial appointment of petitioner on
the post of Pump Attendant was illegal or irregular.
7. The words "illegal" and "irregular" have been explained by Supreme
Court in the case of State of M.P. v. Lalit Kumar Verma, (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."
8. The Supreme Court in the case of Siraj Ahmed Vs. State of U.P. by
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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 [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 M.L. Kesari case [State of Karnataka v.
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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."
9. The Supreme Court in the case of Secretary, State of Karnataka Vs.
Umadevi reported in (2006)4 SCC 1 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
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. The High Courts acting
under Article 226 of the Constitution, should not ordinarily issue
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directions for absorption, regularisation, 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 the 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.
44. The concept of "equal pay for equal work" is different from
the concept of conferring permanency on those who have been
appointed on ad hoc basis, temporary basis, or based on no
process of selection as envisaged by the rules. This Court has in
various decisions applied the principle of equal pay for equal
work and has laid down the parameters for the application of that
principle. The decisions are rested on the concept of equality
enshrined in our Constitution in the light of the directive
principles in that behalf. But the acceptance of that principle
cannot lead to a position where the court could direct that
appointments made without following the due procedure
established by law, be deemed permanent or issue directions to
treat them as permanent. Doing so, would be negation of the
principle of equality of opportunity. The power to make an order
as is necessary for doing complete justice in any cause or matter
pending before this Court, would not normally be used for giving
the go-by to the procedure established by law in the matter of
public employment. Take the situation arising in the cases before
us from the State of Karnataka. Therein, after Dharwad decision
[(1990) 2 SCC 396 : 1990 SCC (L&S) 274 : (1990) 12 ATC 902 :
(1990) 1 SCR 544] the Government had issued repeated
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directions and mandatory orders that no temporary or ad hoc
employment or engagement be given. Some of the authorities
and departments had ignored those directions or defied those
directions and had continued to give employment, specifically
interdicted by the orders issued by the executive. Some of the
appointing officers have even been punished for their defiance. It
would not be just or proper to pass an order in exercise of
jurisdiction under Article 226 or 32 of the Constitution or in
exercise of power under Article 142 of the Constitution
permitting those persons engaged, to be absorbed or to be made
permanent, based on their appointments or engagements.
Complete justice would be justice according to law and though it
would be open to this Court to mould the relief, this Court would
not grant a relief which would amount to perpetuating an
illegality.
45. While directing that appointments, temporary or casual, be
regularised or made permanent, the courts are swayed by the fact
that the person concerned has worked for some time and in some
cases for a considerable length of time. It is not as if the person
who accepts an engagement either temporary or casual in nature,
is not aware of the nature of his employment. He accepts the
employment with open eyes. It may be true that he is not in a
position to bargain-- not at arm's length--since he might have
been searching for some employment so as to eke out his
livelihood and accepts whatever he gets. But on that ground
alone, it would not be appropriate to jettison the constitutional
scheme of appointment and to take the view that a person who
has temporarily or casually got employed should be directed to
be continued permanently. By doing so, it will be creating
another mode of public appointment which is not permissible. If
the court were to void a contractual employment of this nature on
the ground that the parties were not having equal bargaining
power, that too would not enable the court to grant any relief to
that employee. A total embargo on such casual or temporary
employment is not possible, given the exigencies of
administration and if imposed, would only mean that some
people who at least get employment temporarily, contractually or
casually, would not be getting even that employment when
securing of such employment brings at least some succour to
them. After all, innumerable citizens of our vast country are in
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search of employment and one is not compelled to accept a
casual or temporary employment if one is not inclined to go in
for such an employment. It is in that context that one has to
proceed on the basis that the employment was accepted fully
knowing the nature of it and the consequences flowing from it. In
other words, even while accepting the employment, the person
concerned knows the nature of his employment. It is not an
appointment to a post in the real sense of the term. The claim
acquired by him in the post in which he is temporarily employed
or the interest in that post cannot be considered to be of such a
magnitude as to enable the giving up of the procedure
established, for making regular appointments to available posts
in the services of the State. The argument that since one has been
working for some time in the post, it will not be just to
discontinue him, even though he was aware of the nature of the
employment when he first took it up, is not one that would
enable the jettisoning of the procedure established by law for
public employment and would have to fail when tested on the
touchstone of constitutionality and equality of opportunity
enshrined in Article 14 of the Constitution.
***
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 above referred 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
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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.
10. The Supreme Court in the case of State of Karnataka v. M.L. Kesari;
(2010) 9 SCC 247 has held that the cut off date as per the judgment in the
case of Uma Devi (supra) is 10.4.2006 {i.e. date on which the judgment in
the case of Uma Devi (supra) was passed}.
11. Although it is the case of petitioner that he was appointed in the year
1987, therefore, it is clear that he had already completed more than 10 years
of his service on the date when judgment was pronounced by Supreme Court
in the case of Uma Devi (Supra), but in absence of any pleading to claim
that his appointment was irregular, it cannot be held that respondents were
required to consider the case of petitioner for regularization. So far as the
direction given by this Court in W.P. No.4486/2003 is concerned, it was
issued prior to pronouncement of judgment in the case of Uma Devi (Supra),
and secondly there was no affirmative direction by this Court to regularize
the services of petitioner but merely a direction was given to respondents to
consider the case of petitioner in the light of direction issued by Division
Bench of this Court in the case of State of M.P. Vs. Madan Lal Pandey
reported in 2004 (2) MPWN 119. Since the law with regard to regularization
has changed after judgment was pronounced by Supreme Court in the case of
Uma Devi (Supra), therefore, any direction to reconsider the case of
petitioner which was issued prior to pronouncement of judgment in the case
of Uma Devi (Supra), will not hold the field. Furthermore, there was no
affirmative direction and the respondents were merely required to consider
the case of petitioner. In view of the changed legal proposition of law and in
absence of any pleading to show that initial appointment of petitioner was
irregular, this Court is of considered opinion that respondents did not commit
any mistake in not regularizing the services of petitioner.
12. Furthermore, petition suffers from delay and latches. The direction
was given by this Court in the year 2004. Contempt petition was also
dismissed in the year 2004 with liberty to petitioner to approach the Court in
case of any inordinate delay, but petitioner waited for 20 long years. Twenty
long years would certainly fall within the meaning of delay and latches.
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Furthermore, there is nothing on record to suggest that there is any vacant or
sanctioned post.
13. Under these circumstances, this Court is of considered opinion that no
case is made out warranting interference.
14. Petition fails and is, hereby, dismissed."
3. Accordingly, this petition is also dismissed on the terms and conditions
of the order passed in the case of Chandra Prakash Gupta (Supra).
(G.S. Ahluwalia)
Judge
(and)
