Madhya Pradesh High Court
Awadh Kumar Gupta vs The State Of Madhya Pradesh on 9 January, 2025
Author: Gurpal Singh Ahluwalia
Bench: G.S.Ahluwalia
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE G.S.AHLUWALIA
ON THE 9TH OF JANUARY, 2025
WRIT PETITION NO. 197 OF 2025
AWADH KUMAR GUPTA AND ORS.
VS.
STATE OF MADHYA PRADESH AND ORS.
APPEARANCE
Shri Nirmal Sharma- Advocate for petitioners.
Shri G.K.Agrawal - Govt. Advocate for the respondents/State.
ORDER
This petition under Article 226 of the Constitution of India has been
filed seeking followings relief:-
"(i) That, the respondents may kindly be directed to
regularize services of the petitioners with all
consequential benefit and accordingly the arrears be
released in favour of the petitioners. ,
(ii) That cost of the litigation may also kindly be awarded
to the petitioner.
Any other relief which this Hon'ble Court may deems fit
in the facts and circumstances of the case same may
kindly be granted to the petitioner."
2. It is submitted by counsel for the petitioner that prior to year 1998,
the petitioners were appointed as daily wager. Thereafter by order dated
26/4/1994, they were appointed in Work Charge Establishement. Now they
are seeking relief of regularization.
3. 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
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 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 insearch 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 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."
4. There is no pleadings in the petition to the effect as to whether initial
appointment of petitioners were illegal or irregular. 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 and 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 11 irregular in the sense
that some provisions of some rules might not have been
strictly adhered to."
5. 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 [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. 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.
6. In absence of any pleadings to prima facie show that initial
appointment of petitioners were irregular, no direction can be given to
respondents to regularize the services because if such a direction is given
then it would be violative of Articles 14 and 16 of the Constitution of
India.
7. Accordingly, no case is made out warranting interference. Petition
fails and is hereby dismissed.
(G.S.AHLUWALIA)
JUDGE
jps/-
JAI PRAKASH
SOLANKI
2025.01.10
16:48:57 +05'30'
