Madhya Pradesh High Court
Brajendra Rajpoot vs The State Of Madhya Pradesh on 29 January, 2025
Author: Anand Pathak
Bench: Anand Pathak, Hirdesh
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE ANAND PATHAK
&
HON'BLE SHRI JUSTICE HIRDESH
ON THE 29th OF JANUARY, 2025
WRIT APPEAL NO. 233 of 2025
BRAJENDRA RAJPUT & ORS.
Vs.
STATE OF MADHYA PRADESH & ANR..
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APPEARANCE:
Shri Nakul Khedkar - Advocate for the appellant.
Shri A.K. Nirankari - Government Advocate for the
respondents/State.
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JUDGMENT
Per: Justice Anand Pathak
1. The present appeal under Section 2 (1) of the Madhya Pradesh
Uchcha Nyayalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005
is preferred by the appellant/petitioner being crestfallen by the order
dated 20-11-2024 passed by learned Single Judge in Writ Petition
No.4782 of 2021 whereby the writ petition filed by the appellant
(hereinafter referred to as "the petitioner") has been dismissed.
2. Matter pertains to non grant of benefit of regularization to the
petitioners. Petitioners were earlier appointed in the respondents'
department and earlier petitioners have preferred writ petition
bearing No.7827 of 2012 seeking regularization of their services
and that writ petition was disposed of with the direction to the
respondents to consider the case of petitioners. Thereafter, in
January, 2013 respondents considered the case of petitioners and
turned down their prayer on the ground that regularization of
services can only be made against the vacant and sanctioned post.
The respondents vide orders dated 26-04-2017 and 28-07-2017
given the status of Sthaikarmi to the petitioners. Petitioners
challenged that orders by filing writ petition, which was dismissed,
therefore, petitioners are before this Court.
3. It is the submission of learned counsel for the petitioners that
petitioners were appointed against the vacant and sanctioned post
and they are discharging their duties with utmost devotion and
sincerity without any complaint, therefore, their services are
required to be regularized. It is further submitted that appointment
of petitioners may be irregular but it was not illegal and placed
reliance over the judgment of Secretary, State of Karanataka and
others Vs. Uma Devi and other, (2006) 4 SCC 1. Learned Writ
Court also did not consider the controversy in correct perspective
and dismissed the writ petition. Thus, prayed for setting aside the
orders impugned.
4. Learned counsel for the respondents/ State while supporting the
order passed by learned Writ Court, opposed the prayer and submits
that in view of service conditions of petitioners, they have already
been given the status of Sthaikarmi and they are not found to be
eligible for regularization of their services. Thus, prayed for
dismissal of this appeal.
5. Heard.
6. In the instant case from the pleadings and submissions of learned
counsel for the petitioners, it appears that writ petition was filed by
the petitioners for regularization of services of petitioners.
Petitioners are already given the benefit of Sthaikarmi as per
circular dated 07-10-2016.
7. So far as the contention of petitioners that they were appointed
against vacant post and their appointment was not illegal, at best it
can be termed as irregular, said contention has been dealt with by
learned Writ Court in detail and after considering the mandate of
Apex Court in the case of Uma Devi and other (supra), State of
M.P. Vs. Lalit Kumar Verma, (2007) 1 SCC 575 and the order
dated 13-12-2019 passed by the Apex Court in the case of Siraj
Ahmed Vs. State of U.P. in Civil Appeal No.9412 of 2019, came to
the conclusion that petitioners were not appointed as per relevant
service rules and against the regular vacant posts.
8. Learned Writ Court after considering the mandate of Apex Court,
discussed the factual details in following manner:
"7. 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
8. 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.
9. Therefore, twin conditions are required to be fulfilled
for grant of regularisation 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 irregularly appointed daily wager. Accordingly, it
is held that unless and until provisions of Articles 14 and
16 of the Constitution of India are followed for the
appointment of a daily wager, it cannot be said that the
daily wager was legally or irregularly appointed. In fact,
any appointment in derogation of Articles 14 and 16 of
the Constitution of India, as well as service rules, would
be an illegal appointment. Counsel for petitioners was
directed to point out as to whether the initial
appointments of petitioners as daily wagers was
irregular/legal or it was illegal. It is fairly conceded by
counsel for the petitioners that there is nothing on record
to show that the appointment of petitioners was
irregular.
10. Under the circumstances, this Court is of the
considered opinion that since the petitioners have failed
to establish the prima facie requirement that they were
irregularly appointed, no direction can be issued for
regularising their services. Petitioners have already
been granted the benefit of Sthakarmi. Nothing more can
be given to them."
9. From perusal of the aforesaid discussion made by learned Writ
Court, it appears that there is difference between irregular and
illegal appointment, since the appointment of petitioners does not
fulfill the compliance of Articles 14 and 16 of the Constitution,
therefore, the status of Sthaikarmi as granted by the respondents to
the petitioners appears to be just and proper.
10. Considering the rival submission and the discussion surfaced in the
impugned order, it appears that no case for interference is made out.
Petitioners failed to establish their source of appointment. They are
already made Sthaikarmi as per the policy dated 07-10-2016, hence
nothing more can be given to the petitioners and no interference can
be shown by this Court. Accordingly, the order passed by learned
Writ Court is hereby affirmed and the writ appeal preferred by the
petitioners is hereby dismissed.
11. Appeal stands dismissed.
(ANAND PATHAK) (HIRDESH)
Anil* JUDGE JUDGE
ANIL KUMAR
CHAURASIYA
2025.02.14
10:48:45 +05'30'
