Kamlesh Pathak vs The State of M.P. and Others

Sanjay Yadav, J—Heard.

Petitioner seeks direction for appointment as Assistant Sub-Inspector (Nakedar) in Mandi Services with effect from the year 1991 with consequential benefits.

That earlier, engagement of the petitioner as Nakedar was terminated w.e.f. 01.09.1988, which was questioned vide Miscellaneous Petition: M.P. No. 4095/1988 (Kamlesh Pathak and others v. Krishi Upaj Mandi, Burhar) wherein the Division Bench of this Court vide order dated 29.08.1990 found the termination just and proper holding:

"5- It has not been disputed that the petitioner''s names were not forwarded by any employment exchange. It has also not been disputed that the posts were not advertised in any news paper before the petitioner''s appointment. There was no due selection of the Petitioner''s by any selection committee. The petitioner''s appointment was made only on a purely temporary basis and their services were terminable at any time without notice. The petitioner''s appointment was thus contrary to the guidelines laid down by the Director Mandi as per his order dated 13-1-1978 (Annexure R-1) and order dated 22-1-1987 (Annexure R-2). Apart from the aforesaid facts, it is clear from the memo dated 10-3-1981 (Annexure R-3), that there are only four sanctioned posts of Nakedar out of which two posts are occupied by permanent Nakedar, namely, Brijendra Mishra and Sardar Singh. As per statement made in the return supported by an affidavit, there are five Nakedare appointed on contingency basis which are much more senior to all the petitioner''s and that being so. If the Mandi Samiti is unable to employee more Nakedare due to financial exigencies, the termination of the petitioner''s services who are junior most cannot be said to be unjustified. But, it may be pointed out that the respondents No. 1 and 2 in their return, have made a categorical statement that whenever the posts of Nakedare shall be advertised after approval from Director Mandi, the Petitioner''s shall be considered for the said post and due weight shall be given to them. It has been further stated that whenever any seasonal appointments of Nakedare is made, these petitioners shall be given preference over other. In view of these statements, we do not find that the respondents action in terminating the services of the petitioners was malafide."

It is the observation in the later part of the order which the petitioner seeks invocation of.

Notices were issued to respondents No. 2 and 3, however no one appear, nor any return is filed.

Be that as it may. Petitioner has to stand on his own pleadings to gain the relief sought, but having not disputed the fact that the employment in Mandi Services is governed by Rules framed under the provisions of M.P. Krishi Upaj Mandi Adhiniyam, 1972 and since no rules have been commended at that the recruitment can be by virtue of absorption it is too late for the petitioner, whose services were dispensed with in the year 1988, to claim appointment. The reliance placed on the observation in Kamlesh Pathak (supra) does not create vested right in the petitioner to claim an appointment.

Even otherwise being out of employment since 1988 a direction for reinstatement and then regularization cannot be granted.

In this context reference can be had of the decision in the case of Secretary, State of Karnataka and Others Vs. Umadevi and Others, AIR 2006 SC 1806 : (2006) 6 CompLJ 1 : (2006) 4 JT 420 : (2006) 2 LLJ 722 : (2006) 4 SCALE 197 : (2006) 4 SCC 1 : (2006) 3 SLJ 1 : (2006) AIRSCW 1991 : (2006) 3 Supreme 415 wherein it is held that -

"33- It is not necessary to notice all the decisions of this Court on this aspect. By and large what emerges is that regular recruitment should be insisted upon, only in a contingency an ad hoc appointment can be made in a permanent vacancy, but the same should soon be followed by a regular recruitment and that appointments to non-available posts should not be taken note of for regularization. The cases directing regularization have mainly proceeded on the basis that having permitted the employee to work for some period, he should be absorbed, without really laying down any law to that effect, after discussing the constitutional scheme for public employment.

39- There have been decisions which have taken the cue from the Dharwad (supra) case and given directions for regularization, absorption or making permanent, employees engaged or appointed without following the due process or the rules for appointment. The philosophy behind this approach is seen set out in the recent decision in The Workmen of Bhurkunda Colliery of Central Coalfields Ltd. Vs. The Management of Bhurkunda Colliery of Central Coalfields Ltd., (2006) 108 FLR 826 : (2006) 2 JT 1 : (2006) 1 LLJ 842 : (2006) 1 SCALE 595 : (2006) 3 SCC 297 : (2006) SCC(L&S) 530 : (2006) 1 SCR 851 : (2006) 2 SLJ 190 : (2006) AIRSCW 2740 : (2006) AIRSCW 452 : (2006) 5 Supreme 73 : (2006) 1 Supreme 545 , though the legality or validity of such an approach has not been independently examined. But on a survey of authorities, the predominant view is seen to be that such appointments did not confer any right on the appointees and that the Court cannot direct their absorption or regularization or re-engagement or making them permanent.

54- It is also clarified that those decisions which run counter to the principle settled in this decision, or in which directions running counter to what we have held herein, will stand denuded of their status as precedents."

Similarly in State of U.P. and Others Vs. Desh Raj, AIR 2007 SC 628 : AIR 2006 SC 1712 : (2006) CriLJ 2108 : (2007) 1 JT 306 : (2006) 3 SCALE 194 : (2006) 13 SCALE 382 : (2007) 1 SCC 257 : (2006) 10 SCR 352 Supp : (2006) 1 UJ 644 : (2006) AIRSCW 1526 : (2006) 2 Supreme 710 ; it is held-

"7. Whatever may be the import and purport of such regularization rules, in view of the recent Constitution Bench decision of this Court in Secretary, State of Karnataka and Others Vs. Umadevi and Others, AIR 2006 SC 1806 : (2006) 6 CompLJ 1 : (2006) 4 JT 420 : (2006) 2 LLJ 722 : (2006) 4 SCALE 197 : (2006) 4 SCC 1 : (2006) 3 SLJ 1 : (2006) AIRSCW 1991 : (2006) 3 Supreme 415 ], it is now well-settled that the appointments, if made in violation of the constitutional scheme of equality as enshrined under Articles 14 and 16 of the Constitution of India, would be rendered illegal and, thus void ab initio. No regularization rules, therefore, could have been made by the State of Uttar Pradesh in derogation to the statutory or constitutional scheme."

Furthermore, the parity is claimed with one Prem Bahadur Singh, however, there being no material on record to establish the manner in which said person was appointed, claim of parity cannot be assumed.

Considered thus since no relief can be granted, petition fails and is dismissed. No costs.