Research › Search › Judgment

Madhya Pradesh High Court · body

2006 DIGILAW 774 (MP)

Laxman Singh v. Union of India

2006-06-26

P.K.JAISWAL

body2006
ORDER 1. Petitioners by this petition under Article 226/227 of the Constitution of India, arc challenging the order Annexure P-1 dated 6.7.2002 passed by the Laxmihai National Institute of Physical Education, Gwalior, withdrawing the resolution dated 13.11.2001 and 31.8.2001 on the ground that after the orders of regularisation were passed, a number of employees submitted representation/option that employees have been regularised retrospectively from 1985 and 1986 and that it will adversely affect the seniority of the regularised and other permanent employees who arc working in the department since long period of time and that the process of regular is at ion has not been properly done and seniority of the employees has not been properly determined, thus the action taken for regularisation without determining the seniority of employees was ordered to be cancelled, and therefore, process was initiated after fixing the seniority of the daily wages employees working in the Institute. By the said impugned order, the earlier orders of regularisation granting the temporary status have been recalled. 2. The petitioners were initially engaged as daily wages employees in the respondent No.2-Institute on different dates. The benefit of temporary status of regular pay-scale has been extended to them with effect from 31.8.2001 vide order dated 16.8.2001, Annexure P-6. It is contended by the learned counsel for the petitioners that benefits have been extended to the petitioners in pursuance to the directions issued by this Court in various cases and considering the law laid down by the apex Court in the case of State of Haryana v. Pyara Singh and others [ (1992)4 SCC 118 ]. By the impugned order dated 6.7.2002, Annexure P-1, the decision is taken by the Institute to cancel the orders of regularisation and order of granting temporary status to the petitioners. 3. Learned counsel for the petitioners contended that the impugned order is passed without giving any show cause notice to the petitioners and regularisation of the petitioners were made on the basis of the recommendation of the Screening Committee, and therefore, the same cannot be cancelled by the impugned order dated 6.7.2002 (Annexure P-1). 4. On the other hand, learned counsel for respondents contended that the impugned order was challenged by the similar petitioners in Writ Petitions No. 1311 of 2002, Ram Swaroop Mudgal and others v. Union of India and others. 4. On the other hand, learned counsel for respondents contended that the impugned order was challenged by the similar petitioners in Writ Petitions No. 1311 of 2002, Ram Swaroop Mudgal and others v. Union of India and others. This Court during the pendency of writ petition granted stay vide order dated 18.7.2002 (Annexure P-7) and thereafter the matter was finally decided by this Court vide order dated 7.2.2006 (Annexure R-1) and opportunity was given to the employees to seek regularization in accordance with the scheme and policies before the respondents. It is also clarified that in case in pursuance to the order of regularization certain monetary benefits have been extended to the petitioners in Writ Petition No. 1311/2002 and Writ Petition No. 1191/05(S), then the said benefit shall not be withdrawn in view of the order of re-regularisation passed by this Court. This Court made the following observations in para 10 and 11 of its order dated 7.2.2006 (Annexure R-1) which reads as under : "10. In the case of Gajanan L. Pernekar (supra) and Radha Mohan Goswami (supra) relied upon by the learned counsel for the parties, the facts and circumstances were entirely different. In the case of Radha Mohan Goswami (supra), this Court had interfered in the matter because different criteria was followed in the same State for the purpose of regularization of the employees in Gwalior Division employees who were regularized earlier were cancelled whereas in the case of other divisions of the State, like Rewa and other Divisions, the others of regularization were not cancelled and in the case of many other employees it was found that they were classified as permanent employees by the Labour Court and the Industrial Court. Considering those facts that was existing in that case this Court held that the right which had accrued top those petitioners cannot be taken away without hearing them in the present case, no such special circumstances or facts exist. In the present case, the respondents have given cogent and justifiable reasons for withdrawing the order of regularization and it is not a case where the order or regularization is withdrawn for all times to come and the right of the petitioners to claim regularization is taken away on a permanent basis. In the present case, the respondents have given cogent and justifiable reasons for withdrawing the order of regularization and it is not a case where the order or regularization is withdrawn for all times to come and the right of the petitioners to claim regularization is taken away on a permanent basis. This is a case where finding some irregularity in the matter of regularization done without properly formulating a seniority lit, the entire process of regularization is being redone and in doing so, opportunity is being granted to each and every employee who is being affected and to submit his objections to the seniority list and thereafter the matter has to be decided afresh. That being so, merely on the ground that opportunity is not granted to the petitioners, interference in the matter is not called for. Petitioners will have full opportunity to claim regularization retrospectively with reference to their date of appointment when the seniority, list is prepared and the process of regularisation is being done on the basis of the aforesaid preparation of the seniority list what being so merely on the ground of non-grant of opportunity of hearing in. the facts and circumstances of the case, present relief cannot be granted to the petitioners. 11. As far as benefit granted to junior employees like, Vidyaram is concerned, the petitioners have not made any prayer for canceling their order of regularisation. That being so without hearing the affected person and issuing notice to the affected person, this Court cannot interfere in, the matter. However; when the process on regularisation is being done afresh, the respondents are expected to take note of these irregularities, if any, and the petitioners have aright to point out that the persons junior to them have been regularised and it is for the respondents to take steps to remove the disparity in deciding the claim of various employees for regularisation. That being so, interference in the matter is not warranted by this Court as there is no error in the procedure being followed by the respondents for regularisation of the employees in their establishment." 5. That being so, interference in the matter is not warranted by this Court as there is no error in the procedure being followed by the respondents for regularisation of the employees in their establishment." 5. It is contended by the, learned counsel for the petitioners that petitioners are working from last more than 20 years and they were appointed as daily wagers in between period from 1981 to 1991 and their services were regularised in compliance to the direction issued by this Court in number of writ petitions and Screening Committee was constituted by the Institute and cases of the petitioners were considered, and benefit of regular pay-scale was granted and their services were regularised with effect from 31.8.2001. Learned counsel for the petitioner drew my attention to the circular dated, 8.4.1991 and contended that the respondent No.1., Union of India granted relaxation in age and in the process of appointment and petitioners were granted regularisation as per the scheme framed by the Union of India dated 10.9.1993 vide Annexure P-3 and P-4. Annexure P-5 is the order dated 31.8.2005 by which the petitioners were granted temporary status and regularisation. 6. The respondents No.2 to 4 in their return averred that earlier in Writ Petitions No. 1311/2001 the impugned order was challenged which was dismissed on 7.2.1996 vide Annexure R-1 and opportunity has been granted to make the objections, if any, after preparation of seniority list of labourers. In respect of order dated 31.8.2005 Annexure P-5 it is averred that no directions have been issued by this Court in any case for granting temporary status. In respect of circulars Annexure P-2 it is averred that respondent No.1 through Department of Personnel and Training, introduced a scheme Annexure P-3, whereas the respondent-institute is an autonomous body of the Central Government. The respondent No.1 vide letter dated 12.4.1996 (Annexure R-2) directed that the scheme for grant of temporary status and regularisation of casual workers are not automatically applicable in respect of casual employees working in the autonomous bodies of the Central Government. It is also averred that earlier respondents in violation to Annexure P-2 dated 12.4.1996 extended the benefit of scheme for granting temporary status to the petitioner. The respondent No.1 vide circular Annexure R-3 clarified that appointment or the casual employees without employment exchange is irregular. It is also averred that earlier respondents in violation to Annexure P-2 dated 12.4.1996 extended the benefit of scheme for granting temporary status to the petitioner. The respondent No.1 vide circular Annexure R-3 clarified that appointment or the casual employees without employment exchange is irregular. The respondents-Institute not only granted the temporary status to the petitioner hut also regularised their services on the pretext of orders of this Court in various cases and these regularisation have been done with retrospective effect, ignoring the seniority of others senior employees. 7. It is a well settled principle of law that by ignoring claim of the seniors, nobody can be regularised or granted the temporary status and therefore, respondents-Management resolved to recall all the orders of regularisation and temporary status and prepare the seniority list afresh and only thereafter, consider all casual labourers for regularisation/ temporary status as per their seniority and rules issued by the Government or India from time to time as applicable to them. 8. The Division Bench of this Court in the case of State of M.P. v. Padam Chand and others, Writ Petition No. 1116/2001 decided on 20.1.2006 (Annexure R-4) has held that any circular or executive instructions against the recruitment rules will not oversight the rules framed under Article 309 of the Constitution. Any circular directing regularisation de hors of recruitment rules will be a nullity and the said circular, if not consistent with the recruitment rules, will have no force of law. 9. The Division Bench of this Court in the case of Suresh Chandra v. State of M.P. [ 1993(1) MPJR 147 ], has held that the known and recognized modes of appointment to services are (i) direct recruitment (ii) by promotion and (iii) by transfer. Appointment by regularisation is unknown to service regulations. Any regularisation tentamounting to appointment of a person is permissible only under the rules framed under Article 309 of the Constitution. Therefore, in the light of judgment of the Division Bench no right has accrued to the petitioners-employees under the circulars and policy Annexure P-2 and P-3. Even otherwise, the policy and circular Annexure P-2, P-3 and P-4 will not be applicable because the respondents-Institute is a autonomous body of the respondent No.1 and they have not opted the above circulars. Therefore, in the light of judgment of the Division Bench no right has accrued to the petitioners-employees under the circulars and policy Annexure P-2 and P-3. Even otherwise, the policy and circular Annexure P-2, P-3 and P-4 will not be applicable because the respondents-Institute is a autonomous body of the respondent No.1 and they have not opted the above circulars. As stated above this Court in the case of Ram Swaroop Mudgal (supra), considered all the questions raised by the learned counsel for the petitioners and dismissed the petition. An employee appointed on daily wages without following the mandatory rules of recruitment and who claims regularisation on the basis of the circulars and schemes formulated by the Government cannot claim it as a matter of right. Regularisation has to he done keeping in view the length of service rendered by an employee and normally person with longer period of service has to he regularised first and deviation is permitted only in cases for specific reasons as per rules. Contention of the petitioners are that they had already been regularised vide orders on 31st August, 2001, Annexure P-5 and now the orders cannot be cancelled or withdrawn without hearing them and the question of following the principle of natural justice and granting opportunity of hearing has to be considered in the facts and circumstances of each case and it cannot be applied as a thumb rule in each and every case. Whenever a question with regard to grant of opportunity is to be considered by this Court, this Court has to take note of the reasons given for taking a particular action and the requirement of following the principles of natural justice is to be considered in the backdrop of the aforesaid reasons. In doing so, cases differ on facts, and therefore, in each and every case merely because opportunity is not granted, act ion cannot be held to be illegal. 10. In doing so, cases differ on facts, and therefore, in each and every case merely because opportunity is not granted, act ion cannot be held to be illegal. 10. The apex Court in the case of Secretary of Karnataka and others v. Umadevi and others [JT 2006(4) SC 420], has held that: "Adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution, a Court would certainly he disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution. Therefore, consistent with the scheme for public employment, this Court while laying down the law, has necessarily to hold that unless the appointment in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee. If it is a contractual appointment, the appointment comes to an end at the end of the contract, if it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued. Similarly, a temporary employee could not claim to he made permanent on the expiry of his term of appointment. It is also to be clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules. It is not open to the Court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad hoc employees who by the very nature of their appointment do not acquire any right. High Courts acting under Article 226 of the Constitution of India should not ordinarily issue directions for absorption, regularization, or permanent continuance unless the recruitment itself was made regularly and in terms of the constitutional scheme. High Courts acting under Article 226 of the Constitution of India should not ordinarily issue directions for absorption, regularization, or permanent continuance unless the recruitment itself was made regularly and in terms of the constitutional scheme. Merely because, an employee had continued under cover of an order of Court, which we have described as 'litigious employment' in the earlier part of the judgment, he would not be entitled to any right to be absorbed or made permanent in the service. In fact, in such cases, the High Court may not be justified in issuing interim directions, since, after all, if ultimately the employee approaching it is found entitled to relief, it may be possible for it to mould the relief in such a manner that ultimately no prejudice will be caused to him, whereas an interim direction to continue his employment would hold up the regular procedure for selection or impose on the State the burden of paying an employee who is really not required. The Court must be careful in ensuring that they do not interfere unduly with the economic arrangement of its affairs by the State or its instrumentalities or lend themselves the instruments to facilitate the by-passing of the constitutional and statutory mandates." 11. In view of the aforesaid dictum of the apex Court in the case of Umadevi and others (supra) and the reasons stated hereinbefore the petition has no merit and is accordingly dismissed without any order as to costs.