Madhya Pradesh High Court
Vinod Kumar Chaurasiya vs State Of M.P. on 15 January, 2025
Author: Anil Verma
Bench: Anil Verma
NEUTRAL CITATION NO. 2025:MPHC-GWL:809
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IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE ANIL VERMA
ON THE 15 th OF JANUARY, 2025
WRIT PETITION No. 385 of 2013
VINOD KUMAR CHAURASIYA
Versus
STATE OF M.P. AND OTHERS
Appearance:
Shri Prashant Sharma with Shri Siddharth Sharma - advocate for the
petitioner.
Shri G. K. Agrawal- GA for respondents/State.
Shri Nakul Khedkar- Advocate for respondent No.4.
ORDER
with consent, both the parties heard finally.
The instant petition has been preferred by petitioner under Article 226 of
the Constitution seeking following reliefs:-
i- The orders impugned annexure P/1 and P/2 may kindly be
quashed.
ii.-Respondents may kindly be directed to regularize the services
of petitioner from the date when the petitioner has been found fit for
such.
Any other relief which this Hon'ble Court deems fit in the facts
and circumstances of the case same may kindly be granted to the
petitioner.
Brief facts of the case are that the petitioner was initially appointed on
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01.09.1995 as a daily wage employee by order Annexure P/3. On 14.01.2000, by
an oral order his services were terminated by the respondents. Then, the Industrial
dispute was referred for adjudication to Labor Court No.3,Gwalior and vide order
dated 22.12.2006 (Annexure P/4), petitioner was reinstated in the services with
25% back wages. Respondents preferred a writ petition vide W.P. No.4868/2007
before this Court challenging the order of the Labor Court dated 22.12.2006, but
the same has been dismissed by order Annexure P/5. Still, the respondents have
not considered the case of petitioner for reinstatement, therefore, he preferred a
writ petition vide W.P. No.4490/2010 which has been disposed of vide order
Annexure P/6. But the said order was not complied with by the respondents, then
petitioner preferred a contempt petition vide Conc No.926/2012, but during the
pendency of the petition, respondents have passed the order Annexure P/1 and P/2
whereby they have rejected the case of petitioner for regularization without
assigning any valid reason. Being aggrieved by the aforesaid, petitioner has
preferred this petition.
Per contra, learned counsel for respondent No.4 opposed the prayer by
submitting in their return that petitioner was initially engaged as daily wager and
at that time no post was available and his appointment was purely on temporary
basis and without following any due process of regular recruitment. Services of the
petitioner were disengaged in the year 2000 and thereafter in the year 2006 his
service was reinstated in pursuance of the Court's order, therefore, his initial
engagement has also been found in term of illegal appointment and the case of
petitioner does not come within a purview of notification issued on 16.05.2007,
hence the order Annexure P/1 has been rightly passed. Representation of petitioner
was duly considered in the light of the relevant circular and the policy, therefore,
his representation has been rightly rejected. The impugned order has been passed
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in the light of judgement of Hon'ble Supreme Court passed in the case of State of
Karnataka Vs. Uma Devi reported in 2006 (4) SCC 1 . Therefore, the petition is
devoid of merits and deserves to be dismissed.
Learned counsel for respondents No. 1 to 3 also opposed the prayer by
submitting in their return that petitioner was no appointed on any sanctioned
vacant post and his initial appointment was illegal and the same was done without
following any due procedure of recruitment. Therefore, the case of petitioner for
regularization was rightly rejected and the impugned order is in accordance with
law laid down in the case of Uma Devi (Supra). Merely fulfilling the eligibility
criteria, does not confer any right to the petitioner for regularization. Vide order
dated 06.09.2008, the selection committee has considered the case of the petitioner
and he has is not found entitled for regularization. Therefore, the petition being
misconceived, deserves to be dismissed.
Learned counsel for petitioner filed rejoinder and submitted that petitioner
is a qualified person and the post is available with the respondents but the
respondents have not considered his case in relation to regularization of service.
Initially, he was duly appointed and has also completed more than 10 years of
service and he fulfils all the eligibility criteria and therefore, there is no reasons for
non-regularization of the services of the petitioner.
Both the parties are heard and perused the entire record with due care.
The Supreme Court in the case of Uma Devi (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.
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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.
The 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
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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.
Therefore, the crux of the matter is as to whether appointment of the
petitioners was in accordance with the mandate of the Constitution of India or
not. It is submitted by counsel for petitioners that since petitioners are holding the
prescribed minimum qualification and their appointment was made against the
sanctioned post, therefore, at the most their appointment can be said to be irregular
but the counsel for the petitioners was not in a position to point out as to whether
initial appointment was made after due advertisement, thereby giving equal
opportunity to similarly situated persons to participate in the recruitment as
enshrined under Article 16 of the Constitution of India.
The Supreme Court in the case of State of Karnataka v. M.L. Kesari, (2010)
9 SCC 247 has held that irregularly appointed employees who have completed 10
years or more on 10.4.2006 i.e. the date on which the judgment in the case of Uma
Devi (Supra) was pronounced, would be entitled for one-time consideration.
Therefore, twin conditions are required to be fulfilled for grant of
regularization i.e. (i) that an employee, as a daily wager, must have completed
continuous service of 10 years or more as on 10.4.2006; and (ii) that he must be an
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irregularly appointed daily wager. The Division Bench of this Court in the case of
Municipal Corporation Vs. Ayodhya Sharan Sharma and another vide order dated
04.07.2024 (in W.A. No.169/2024) has held as under:-
17. Under these circumstances, after having obtained recruitment
in an illegal manner and in utter violation of provisions of Article 16 of
the Constitution of India, the employee cannot take advantage of
Article 21 of the Constitution of India by submitting that once he has
secured his appointment in an illegal manner, therefore, now the State
has to regularize his services.
The Co-ordinate Bench of this Court in the case of Brajendra Rajpoot and
others Vs. The State of Madhya Pradesh and another (W.P. No.4782/2021) vide
its order dated 20.11.2024 has held that since petitioner has failed to establish
prima facie that he has been regularly appointed, no direction can be issued for
regularizing their services.
The Supreme Court in the case of Siraj Ahmed Vs. State of U.P. by
judgement dated 13.12.2019 passed in Civil Appeal No.9412/2019 has held that
"there is a distinction between the irregular and illegal appointments. 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."
Petitioner has failed to prove that he has been initially appointed against the
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sanctioned vacant post, therefore, the appointment of the petitioner cannot be
treated as regular and legal.
Therefore, in view of the law laid down by the the Constitutional Bench of
the Supreme Court in the Case of Uma Devi (Supra), petitioner is not entitled for
benefit of regularization.
Resultantly, the instant petition stands dismissed.
(ANIL VERMA)
JUDGE
Vishal
