Ramautar Kushwah vs State Of M.P

The present petition is being preferred challenging the order dated 12.12.2012 passed by the respondents whereby, the order of regularization of petitioner has been cancelled and it has been further directed to recover the salary which has been paid to the petitioner.

It is alleged by learned counsel for the petitioner that the petitioner was initially engaged as daily wager w.e.f 01.02.1989 and he was regularized on 18.07.1994, since then, he was continuously working in the Department and benefits were granted from time to time. A show cause notice was issued to the petitioner on 20.11.2012 to the effect that the regularization was bad in law. In pursuance to the aforesaid show cause notice, reply was duly filed by the petitioner. After considering the reply filed by the petitioner, the impugned order has been passed and the same was recalled with further direction to recover the salary which has been paid to the petitioner. Even otherwise, the procedure for enquiry as contemplated in provisions of Civil Services (Classification Control and Appeal) Rules 1966 has not been adopted. He has further drawn attention of this Court to impugned order wherein, opportunity of hearing has not been granted to the petitioner prior to passing the order impugned, no enquiry has been conducted by the respondents and merely, issuing a show cause notice and after taking reply from the petitioner straight away the order impugned has been passed which is not sustainable and deserves to be set aside the impugned order.

Per contra, learned counsel for the respondents/State has denied all the averments in the petition and has submitted that after examination of the case of the petitioner, regularization of the petitioner has been cancelled. He has drawn attention of this Court to circular dated 09.01.1990, wherein, only direction was issued to regularize the services of the daily wager who were working before 31.12.1988, whereas, appointment date of the petitioner was 01.02.1989. He has relied upon the judgment rendered by Hon'ble Supreme Court in the case of Secretary, State Of Karnataka vs Umadevi And Others reported in (2006) 4 SCC 1 and submits that the Hon'ble Supreme Court has considered this aspect that daily wagers who have completed more than 10 years in service is entitled for regularization if the initial appointment is legal and as per rules and against any vacant post. He has prayed for dismissal of the writ petition.

Heard both the parties and perused the documents appended therein.

From the record, it is seen that the petitioner was initially engaged as daily wager w.e.f. 01.02.1989 and he was regularized on 18.07.1994. After his regularization in the year 1994, apart from a show cause notice issued in the year 2012, there is nothing against the petitioner for this intervening period of 16 years. The respondents have not been able to show as to what procedure was adopted after issuance of show cause notice and before passing the impugned order.

The constitutional Bench of Hon'ble 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 (supra), R.N. NANJUNDAPPA (supra), and B.N. NAGARAJAN (supra), and referred to in paragraph 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 courts or of tribunals. The question of regularization 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 regularize 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 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 regularization, if any already made, but not subjudice, need not be reopened based on this judgment, but there should be no further by-passing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme."

From the aforesaid it is seen that the Hon'ble Supreme Court in the aforesaid case has clearly held that "We also clarify that regularization, if any already made, but not subjudice, need not be reopened based on this judgment, but there should be no further by-passing of the constitutional requirement and regularizing or making permanent."

In the present case the petitioner was regularized far back vide order dated 18.07.1994, and show cause notice was issued in the year 2012.

Accordingly, the order dated 12.12.2012 is hereby quashed. The matter is remanded back to the respondents/Authorities to re-consider the case of the petitioner in light of the order passed by the Supreme Court in the case of Umadevi (Supra) in para 53 and observations made herein and pass self contained speaking order within a period of three months from the date of receipt of certified copy of this order.

Till a final decision is taken in the petitioner's case, status quo shall be maintained by the parties, so far as it relates to the petitioner.

The respondents are expected, that they will follow the principles/guidelines laid down by Hon'ble Supreme Court in the case of Kranti Associates Private Limited and another Vs. Masood Ahmed Khan and others reported in (2010) 9 SCC 496 as well as the observation made in the case of Umadevi (Supra).

It is made clear that this Court has not expressed any opinion on the merits of the case.

Petition stands disposed of. No order as to costs.