Pradeepsingh Bhadoriya vs Sate Of Madhya Pradesh And Ors

This order shall also govern the disposal of connected writ writ petition bearing W.P. No.12164/2018.

Regard being had to the similitude in the controversy involved in the present case, both these writ petitions were analogously heard and by a common order, they are being disposed of by this Court. For the sake of convenience, the facts are being narrated from W.P. No.3373/2017.

The petitioner has filed the present writ petition against the inaction of respondents in non-regularization of the service of the petitioner on the post of "Law Officer/Inspector, despite the fact that the petitioner is a Law Graduate and fully eligible for appointment on the said post.

The petitioner was initially appointed on 10/02/1992 under the respondent no.3, but he was paid salary on the daily rated basis. Vide order dated 14/12/2005, the respondent no.3 has recommended the name of the petitioner for appointment in regular establishment. That, the letter dated 21/12/2005 of Executive Engineer clearly shows that the petitioner was appointed against clear vacant post of Law Assistant. The name of the petitioner was also recommended for appointment on the said post vide letter dated 16/07/1996 issued by respondent no.3. The Administrative Officer of the Indore Region has issued a letter dated 31/07/1996 by which the said officer called the information about employees having degree of Law Graduate. In response to the aforesaid letter, the respondent no.3 has again recommended the name of the petitioner. The petitioner submits that he had continuously worked under the respondent from 10/02/1992 till date. Meanwhile, his services were terminated by the respondents. Thereafter, he approached to the Labour Court and he was again reinstated in service.

Recently, the State Government has issued a Circular dated 6/09/2008 regarding regularization of daily rated employee which provides that those daily rated employee which are not regularized at the time of appointment due to non-availability of posts now be regularized on seniority basis if at present posts are available on roster basis.

In response to the aforesaid Circular dated 6/09/2008, the respondent no.2 vide order dated 20/10/2008 allowed the allowance of Rs.500/- and Rs.1,000/- respectively on completion of 10 years and 20 years service. The petitioner is being paid only daily wages rate although he is working and performing the duties at par with regular employees for more than 17 years. He, therefore, approached to this Court by filing W.P. No.6621/2009(S). The said writ petition was disposed off vide judgment dated 22/09/2009 and this Court was pleased to direct the respondents to decide the representation of the petitioner within a period of eight weeks from the date of its receipt. Thereafter, the petitioner again approached to this Court by filing W.P. No.261/2016 which was decided by order dated 12/11/2016 and directions were issued to the respondents to decide the case in accordance with law keeping in view the Government Circular. Inspite of this directions issued by this Court, neither service of the petitioner has been regularized nor he has been paid salary of regular employee. Hence, the present writ petition has been filed.

Learned counsel for the petitioner submits that the recommendation has already been made by the respondent no.3 for regularizing the service of the petitioner and the note-sheet dated 28/01/2017 clearly shows that there was clear vacant post available at the time of appointment of the petitioner. Thus, counsel for the petitioner submits that the petition(s) deserves to be allowed and the respondents be directed to regularize the services of the petitioner.

The respondent No.2 and 3 have filed their reply and in the reply they have stated that the petitioner was inducted in the service of M.P. Housing and Infrastructure Development Board (hereinafter referred as "MPHIDB"), Dhar Division on Muster-roll as daily wager. Since the inception he continues to work as daily rated employee. Neither he was appointed on any vacant sanction post with MPHIDB nor did he participated in any of the selection process taken up for filing regular posts as per the relevant service rules. The petitioner despite being well aware of the nature of his appointment and work has filled the present petition on misleading and false grounds. The respondents have further denied that the petitioner was appointed on the post of Law Assistant, which was against any vacant sanction post. However, he has deliberately not filled his appointment order or any document issued by the MPHIDB showing that his appointment was against any vacant sanction post.

It is further submitted by the learned counsel for the respondents that it is no more Res-Integra that appointment on public post/offices can only be given as per the procedure in terms of the Service recruitment Rules and on and on adherence of process enshrined therein. This settled proposition has been retreated by the Apex Court in number of judgments. He further submitted that the petitioner was not appointed through any selection process conducted for filling the regular posts. He has been paid salary as per Collector Guidelines applicable to the daily wagers. The nature of work as well as the petitioner's engagement was duly accepted and acted upon by the petitioner for years together. The MPHIDB is an independent establishment having its own service rules and regulations. Any appointment in the services of the MPHIDB can only be made in terms of the relevant recruitment rules/regulation. The service conditions of its employees are not directly governed by the circulars issued by the State Governments for implementation of any State Policy, in respect of Service Conditions of MPHIDB employees the approval of Board is a necessity. Therefore, the claim of the petitioner for getting benefit arising out of State Governments circular dated 6/09/2008 is not tenable. Even otherwise such regularization is warranted only when the incumbent was appointed against vacant sanctioned post and continues to work there under. The petitioner who was engaged merely as a daily wager and not against any vacant sanctioned post cannot, by any stretch of imagination be considered for appointment on any other sanctioned posts. The Apex Court in the case of Uma Devi has held that the continuance of a temporary employee or a casual wage worker would not entitle him to be absorbed in regular service or made permanent, merely on the strength of such continuance, particularly when the original appointment was not made as per due process of selection. He further relied on the judgment of the Apex Court in the case of Union of India & Ors. Vs. All India Trade Union Congress & Ors.  reported in [(2019) 5 SCC 773], wherein the Apex Court has held that merely long years of service cannot by itself a ground regularization. Para 13 and 14 of the judgment are relevant which reads as under :-

That was also a case where the Union of workers namely "Vartak Labour Union" had claimed a relief of regularization of the services of the casual workers who were working in BRO for a considerable period in construction activities undertaken by BRO in the State of Assam. The Union of workers, therefore, filed a writ petition against the Union of India in the Gauhati High Court. The High Court allowed the writ petition and directed the Union of India to regularize the services of all such casual workers. The Union of India felt aggrieved and filed special leave to appeal in this Court against the judgment of the Gauhati High Court. This Court allowed the appeal and set aside the order of the Gauhati High Court with the following observations:

"17. We are of the opinion that the respondent Union's claim for regularisation of its members merely because they have been working for the BRO for a considerable period of time cannot be granted in light of several decisions of this Court, wherein it has been consistently held that casual employment terminates when the same is discontinued, and merely because a temporary or casual worker has been engaged beyond the period of his employment, he would not be entitled to be absorbed in regular service or made permanent, if the original appointment was not in terms of the process envisaged by the relevant rules. [See State of Karnataka v. Umadevi (3); Official Liquidator v. Dayanand; State of Karnataka v. Ganapathi Chaya Nayak; Union of India v. Kartick Chandra Mondal; Satya Prakash v.  State of Bihar and Rameshwar Dayal v. Indian Railway Construction Co. Ltd.]

Therefore, in the facts and circumstances of the instant case, where members of the respondent Union have been employed in terms of the Regulations and have been consistently engaged in service for the past thirty to forty years, of course with short breaks, we feel, the Union of India would consider enacting an appropriate regulation/scheme for absorption and regularisation of the services of the casual workers engaged by the BRO for execution of its ongoing projects.

In the final analysis, the appeals are allowed, and the impugned judgments and orders are set aside. However, in the circumstances of the case, the parties are left to bear their own costs."

Keeping in view the law laid down by this Court in the case of Union of India (supra) when we examine the facts of the case at hand, we find that the facts of the case at hand and the one which were subject matter in the case of Union of India (supra) are identical in all respects except that name of the Trade Union of workers and place of working in both the cases are different, which is hardly of any significance. The High Court, in our view, should have, therefore, examined the case in the light of the law laid down by this Court in the case of Union of India (supra) rather than to evolve its own separate scheme.

Similarly, the Apex Court in the case of  State of  Karnataka  &  Ors.  Vs.  KGSD  Canteen  Employees' Welfare ASSN. & Ors. reported in [(2006) 1 SCC 567] in Para 44 and 46 has held as under :-

The question which now arises for consideration is as to whether the High Court was justified in directing regularization of the services of the Respondents. It was evidently not. In a large number of decisions, this Court has categorically held that it is not open to a High Court to exercise its discretion under Article 226 of the Constitution of India either to frame a scheme by itself or to direct the State to frame a scheme for regularising the services of ad hoc employees or daily wages employees who had not been appointed in terms of the extant service rules framed either under a statute or under the proviso to Article 309 of the Constitution of India. Such a scheme, even if framed by the State, would not meet the requirements of law as the executive order made under Article 162 of the Constitution of India cannot prevail over a statute or statutory rules framed under proviso to Article 309 thereof. The State is obligated to make appointments only in fulfilment of its constitutional obligation as laid down in Articles 14, 15 and 16 of the Constitution of India and not by way of any regularization scheme. In our constitutional schemes, all eligible persons similarly situated must be given opportunity to apply for and receive considerations for appointments at the hands of the authorities of the State. Denial of such a claim by some officers of the State times and again had been deprecated by this Court. In any view, in our democratic polity, an authority howsoever high it may be cannot act in breach of an existing statute or the rules which hold the field.

In Mahendra L. Jain and Others v. Indore Development Authority and Others [(2005) 1 SCC 639], it was categorically held:

"The question, therefore, which arises for consideration is as to whether they could lay a valid claim for regularisation of their services. The answer thereto must be rendered in the negative. Regularisation cannot be claimed as a matter of right. An illegal appointment cannot be legalised by taking recourse to regularisation. What can be regularised is an irregularity and not an illegality. The constitutional scheme which the country has adopted does not contemplate any back-door appointment. A State before offering public service to a person must comply with the constitutional requirements of Articles 14 and 16 of the Constitution. All actions of the State must conform to the constitutional requirements. A daily-wager in the absence of a statutory provision in this behalf would not be entitled to regularisation. ( See State of U.P. v. Ajay Kumar and Jawaharlal Nehru Krishi Vishwa Vidyalaya  v. Bal Kishan Soni.)"

Thus, in the light of the aforesaid judgments, as the initial appointment of the petitioner was not made on clear vacant post and so also the fact that no process of recruitment was followed, at any point of time for appointing the petitioner, I am of the view that the relief prayed for by the petitioner cannot be granted, in the peculiar facts and circumstances of the case. However, he is not entitled to be regularized.

Both the writ petitions filed by the petitioner have no merit and are, accordingly, dismissed. A copy of the order be retained in the record of connected W.P. No.12164/2018.