Madhya Pradesh High Court
Shri Aslam Khan vs The State Of Madhya Pradesh on 22 July, 2025
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IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK JAIN
ON THE 22nd OF JULY, 2025
WRIT PETITION No. 12339 of 2021
SHRI ASLAM KHAN
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
WITH
WRIT PETITION No. 14291 of 2021
SHRI MOHD. IRPHAN
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
WRIT PETITION No. 14399 of 2021
AMAR SINGH
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Ram Suphal Verma - Advocate for the petitioner.
Ms. Shikha Sharma Government Advocate for the respondent-State.
ORDER
All the three petitions have been filed on the identical issues and
challenging awards passed on identical grounds and containing identical
facts. Therefore all the three petitions are taken up and decided by this
common order. For the sake of convenience facts are taken from W.P. No.
12339/2021.
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2. W.P. No. 12339/2021 has been filed by a employee who was
appointed as Lower Division Clerk W.P. No.14291/2024 and 14399/2021
have been filed by the employees who were appointed on the Post of peon in
MP Minorities Commission.
3 . Learned counsel for the petitioner has submitted that the petitioners
were appointed on their respective posts at collector rate after advertisement
being issued in daily newspaper and they being called for interviews and
selection process having been carried out. It is contended that after
completion of selection process they were appointed on the post and
continued from 1998 till 2009 i.e. for eleven years and even their cases were
processed for regularization and vide Annexure P/11, a proposal for
regularization was sent by the Commission to the State Government.
However instead of processing their proposal for regularization they were
unceremoniously retrenched from service in the year 2009 and therefore, the
petitioners approached the Labor Court where the respondents remained ex-
parte and ex-parte award was passed on 24.11.2009 vide Annexure P/6
which was later set aside by this Court in W.P. No. 3081 of 2010 and the
matter was remanded back to the Labour Court for decision afresh. After
remand the Labour Court has rejected the claim holding that the petitioners
have been illegally appointed and are not irregularly appointed.
4 . It is contended that the petitioners having been appointed after
issuing advertisement in "Rojgar Avam Nirman" and having applied for the
post and faced the selection process hence the their appointments could not
be termed as illegal by the Labour Court and what was required to be seen
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was whether the retrenchment was illegal or not and not whether their
appointment was illegal or not which would have been a relevant fact only
for regularisation and for no other purpose.
5. Per contra, learned counsel for the State has supported the award
by contending that the petitioners are back door appointees and there was no
vacant sanctioned post. By placing reliance on document Annexure R/2, it is
contended that four posts were sanctioned, one was of Personal Assistant and
3 of peons which was only till the tenure of the Chairman and members of
the Commission and not to be continued thereafter. Thus it is contended that
it was a pleasure appointment only till the tenure of the then Chairman and
members of the Commission.
6. Heard.
7. In the present case the Labour Court has rejected the claim of the
petitioners only on the ground that the petitioners seem to be illegally
appointed and not irregularly appointed. First of all the issue into which the
Labour Court has gone was not at all relevant for the purpose of the
reference made to the Labour Court which was only in the matter of whether
the retrenchment of services of petitioners is valid or not and that what is the
relief to which the petitioners are entitled. The question of the appointment
being illegal or irregular would crop up at the time of regularization of the
petitioners but for the purpose of section 25-B and 25-F of Industrial
Disputes Act what is relevant is that whether the retrenchment was illegal or
not and what is the relief which can be granted. Therefore in the considered
opinion of this Court, the Labour Court absolutely misdirected itself to the
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question of legality of appointment and/or illegality of appointment of the
petitioners which was not relevant for the purpose of reference made to the
Labour Court by the appropriate government.
8. However as the Labour Court has held in detail that the
appointment of the petitioners was illegal and therefore, this Court touches
on this aspect also.
9. The advertisement was issued in Rojgar Avam Niraman dated
08.08.1996. The said newspaper is a official publication of the State
Government of Madhya Pradesh and advertisement of various vacancies
arising in the State Government and its undertakings are published in the
said newspaper. As per the said advertisement three posts of LDC, two posts
of Stenographers, 3 posts of Drivers and three posts of Peons were
advertised. The petitioners applied in pursuance to the said advertisement
and the interviews were held on 12.09.1997 as is evident from note-sheet
placed on record as Annexure P/2 and therefore, the appointment orders
were issued in the year 1998. So far as the reliance on Annexure R-2 is
concerned, which is sanction of certain posts, it is relevant that the said
sanction order is of the year 1997 prior to which the posts had already been
advertised. Even otherwise there is no clause in the appointment order of the
petitioners that they are being appointed only till the tenure of the current
President and members of the Commission. The advertisement was
unconditional and the appointment order is also unconditional.
10. The constitution Bench of the Hon'ble Supreme Court in the case
of Secretary, State of Karnataka & Others Vs. Uma Devi and Others reported
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in (2006) 4 SCC 1 by relying on earlier three Judges Bench judgement in the
case of Umarani v. Registrar, Coop. Societies, (2004) 7 SCC 112 has held
that when appointments are made in contravention of mandatory provisions
of the Act and statutory rules framed thereunder and by ignoring essential
qualifications the appointment would be illegal and cannot be regularized by
the State. Constitution Bench held as under:-
"34. In A. Umarani v. Registrar, Coop. Societies [(2004) 7 SCC 112 : 2004
SCC (L&S) 918] a three-Judge Bench made a survey of the authorities and
held that when appointments were made in contravention of mandatory
provisions of the Act and statutory rules framed thereunder and by ignoring
essential qualifications, the appointments would be illegal and cannot be
regularised by the State. The State could not invoke its power under Article
162 of the Constitution to regularise such appointments. This Court also held
that regularisation is not and cannot be a mode of recruitment by any State
within the meaning of Article 12 of the Constitution or any body or authority
governed by a statutory Act or the rules framed thereunder. Regularisation
furthermore cannot give permanence to an employee whose services are ad hoc
in nature. It was also held that the fact that some persons had been working for
a long time would not mean that they had acquired a right for regularisation."
11. The Constitution Bench in the same judgment held that
regularization of irregular appointment and regularization of illegal
appointment cannot be made and in para 15 of the judgment also held that
when regularization of irregular appointments can be made by holding that if
there has been some non compliance with procedure or manner which it does
not go to the root of appointment, it may be a regular appointment. The
Hon'ble Supreme Court held in para 15 as under:-
"15. Even at the threshold, it is necessary to keep in mind the distinction
between regularisation and conferment of permanence in service jurisprudence.
In State of Mysore v. S.V. Narayanappa [(1967) 1 SCR 128 : AIR 1967 SC
1071] this Court stated that it was a misconception to consider that
regularisation meant permanence. In R.N. Nanjundappa v. T.
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Thimmiah [(1972) 1 SCC 409 : (1972) 2 SCR 799] this Court dealt with an
argument that regularisation would mean conferring the quality of permanence
on the appointment. This Court stated : (SCC pp. 416-17, para 26)
"Counsel on behalf of the respondent contended that regularisation would
mean conferring the quality of permanence on the appointment whereas
counsel on behalf of the State contended that regularisation did not mean
permanence but that it was a case of regularisation of the rules under Article
309. Both the contentions are fallacious. If the appointment itself is in
infraction of the rules or if it is in violation of the provisions of the
Constitution illegality cannot be regularised. Ratification or regularisation is
possible of an act which is within the power and province of the authority but
there has been some non-compliance with procedure or manner which does not
go to the root of the appointment. Regularisation cannot be said to be a mode
of recruitment. To accede to such a proposition would be to introduce a new
head of appointment in defiance of rules or it may have the effect of setting at
naught the rules."
12. In view of the aforesaid, once the petitioners are appointed after
advertisement of the posts in government newspaper, they being called for
interviews, interviews being conducted by the Commission and then
appointment orders issued, then there is nothing to show that the
appointment the appointment of the petitioners was illegal in any manner.
13. The State Government has issued circular dated 16.05.2007 in
compliance or judgment in the case of Uma Devi (supra) and in the said
judgment also, various instances have been cited that what appointments
would be illegal and what would be irregular ones and even from the tests
laid down in the circular of the State Government the appointments of the
petitioners do not fall within the purview of illegal appointments, though
they may debatably fall in the purview of irregular appointments. However
as that is not the scope of adjudication of in the present matter, this Court
refrains from holding that whether the appointment of petitioners was
irregular or not. However, it is clear that the appointment of the petitioners
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was not illegal in any manner.
14. The sanction order relied by the State Annexure R/2 is also
insignificant for the very basic reason that the Chairman and Members who
are holding the post in the 1997 must have demitted the office within two to
three years at the most but the petitioners were continued in the appointment
till 2009. It appears that only when the proposal was initiated for the
regularization that the Commission retrenched their services to deny them
the rightful benefits of regularization.
15. So far as the non-availability of posts relied by the Labour Court
is concerned, it has already been observed by this Court above that the
appointment of the petitioners was unconditional and even the sanction letter
may be till the tenurre of the President and Members of the Commission but
the petitioners were continued and continued for as many as 12 years in
service. The appointment orders are unconditional and no condition as
mentioned in the sanction letter was made in the appointment of the
petitioners. Therefore the Commission in its wisdom decided to grant
unconditional appointment to the petitioners which cannot be faulted with
because if some posts in personal staff of the Chairman and Members were
sanctioned then it was likely that such staff would be required by the
succeeding Chairman and Members also.
16. Therefore, the impugned award cannot be sustained, it deserves
to be and is hereby set-aside.
17. The retrenchment of the petitioners is held illegal the petitioners
are held entitled to be reinstated back in service forthwith. They shall be
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entitled to 50% of the backages from the date of retrenchment till the date of
this order and for the period after date of this order they would be entitled to
full salary. It is made clear that if the petitioners have been made any
payment in compliance or section 17-B during pendency of earlier round of
litigation, then that would be adjustable from the back wages to be paid to
the petitioners.
18. Petitions are allowed.
(VIVEK JAIN)
JUDGE
MISHRA
