Research › Search › Judgment

Madhya Pradesh High Court · body

2010 DIGILAW 423 (MP)

SHAILENDRA KUMAR SAHU v. STATE OF M. P.

2010-04-12

RAJENDRA MENON

body2010
Judgment Rajendra Menon, J ( 1. ) Challenging the order-dated 2.8.2008 - Annexure P/4, imposing certain conditions with regard to eligibility criteria for regularization of the petitioner, who is working as a daily wage Sub-Engineer, this writ petition has been filed. ( 2. ) Petitioner claims to have been appointed as a daily wage employee in the Department on 1.12.1993. Thereafter, on 31.3.2004, in view of certain orders passed by the Labour Court he was classified as a permanent employee within the meaning of the Industrial Employment Standing Orders, Act and Rules. It is the case of the petitioner that while in service he appeared in an examination conducted by the Rajiv Gandhi Proudyogiki Vishwavidyalaya (University of Technology of Madhya Pradesh) in December 2000 - February 2001 and obtained a Diploma in Mechanical Engineer. ( 3. ) On 5.2.2008 vide Annexure P/2, a Notification was issued wherein daily wage employees, who had worked for more than 10 years, were granted an opportunity to participate in an examination for being regularized in service and to fill up the existing vacant posts of Sub-Engineers in the Department of Public Health Engineering. It is the grievance of the petitioner that even though on the basis of his qualification i.e... Diploma, and the fact that he has completed 10 years service, the Head of the Department vide Annexure P/3 empanelled the petitioner in the list of eligible candidates entitled to appearing in the selection process, but by the impugned order a condition is imposed that only such of the employees, who have been in service for more than 10 years and the Diploma or the Degree course and certificate obtained by them should also be of a period of more than 10 years can participate in the selection procedure. It is stated that on the ground that petitioner has obtained Diploma only 8 years ago, as such he is ineligible, his candidature is rejected and, therefore, petitioner is before this Court challenging the condition to that effect imposed in the circular - Annexure P/4. ( 4. ) Interalia contending that in the original Notification - Annexure P/2, no such condition is imposed and in the recruitment rules i.e.. ( 4. ) Interalia contending that in the original Notification - Annexure P/2, no such condition is imposed and in the recruitment rules i.e.. M.P. Public Health Department (Non-Gazetted) Class III Recruitment and Service Condition Rules, 1972, the only requirement is of possessing a Diploma or Degree in Engineering and as petitioner fulfils the said qualification, it is stated that the condition imposed by the order impugned is impermissible. By making certain amendments to the writ petition and by filing a document - Annexure P/14, it was tried to be emphasized that in the light of certain orders passed by the Gwalior Bench in a writ petition, Writ Petition No.3794/2008(S) - Siyaram Sharma Vs. State of MP, cut-off date of 10.4.2006 has been fixed to calculate the eligibility criteria and as on the said date petitioner had completed 10 years service so also possessed a Diploma in Engineering, this entitled him to seek participation in the process for regularization, accordingly, petitioner has filed this writ petition, on these grounds. ( 5. ) It is further pointed out by Shri Atul Anand Awasthy, learned counsel for the petitioner, that certain employees, who had obtained Diploma while in service and in whose cases also the period after obtaining Diploma is less than 10 years, have been appointed as is evident from Annexure P/16, on this count also relief is sought for in the matter. Accordingly, contending that petitioner fulfils the requisite criteria laid down for consideration and his claim is being improperly rejected on grounds, which are not permissible and totally unjustified, learned counsel prays for interference into the matter. ( 6. ) It was also pointed out during the course of hearing that in the light of the interim order passed by this Court, petitioner had participated in the examination and according to the petitioner in his category he is at Serial No. 1 of the merit list and, therefore, regularization is sought for on the aforesaid grounds. ( 7. ) Respondents have resisted the claim of the petitioner and it is pointed out by the respondents that after the judgment rendered by the Supreme Court, in the case of Secretary, State of Karnataka and others Vs. ( 7. ) Respondents have resisted the claim of the petitioner and it is pointed out by the respondents that after the judgment rendered by the Supreme Court, in the case of Secretary, State of Karnataka and others Vs. Umadevi (3) and others, (2006) 4 SCC 1 , the State Government issued a circular on 16 5.2007 vide Annexure A/1, in the matter of regularizing of employees as a one time measure on certain conditions that are contemplated in the said circular. It is the case of the State Government that the Notification for examination - Annexure P/2 was issued on 5.7.2008 in accordance to the policy of the State Government as contained in Annexure R/l dated 16.5.2007 and the clarification issued by the impugned Notification - Annexure P/4 is based on the principles laid down by the Supreme Court in the case of Umadevi (supra) and the conditions stipulated in the Circular - Annexure R/1. ( 8. ) It is the case of the respondents that only such of the employees are entitled to be considered for regularization who fulfilled the requisite criteria as per the recruitment rule at the time of their initial engagement itself as a daily wage employee. It is stated that as per the policy formulated in Annexure R/1, based on the law laid down in the case of Umadevi (supra), employees who have completed 10 years of service and whose appointment was irregular, were entitled to be considered for regularization. It is stated that under the recruitment rules, to be eligible for appointment as a Sub Engineer a person has to be a Degree or Diploma holder in Engineering and only such appointments/engagement can be treated as irregular appointment, if on the initial date of engagement the employee fulfilled the requisite criteria laid down in the recruitment rules. It is argued that only such employees, who have completed 10 years of service in accordance to the principles laid down by the Supreme Court in the case of Umadevi (supra), in paragraph 53, and who on the initial date of appointment i.e.. 10 years back were possessing the requisite qualification as per the recruitment rules, would fall in the category of irregular appointments and only their services can be regularized. Other appointments are illegal appointments and cannot be regularized. 10 years back were possessing the requisite qualification as per the recruitment rules, would fall in the category of irregular appointments and only their services can be regularized. Other appointments are illegal appointments and cannot be regularized. Accordingly, contending that the criteria laid down in Annexure P/4 is a reasonable criteria, based on the principles laid down in the case of Umadevi (supra), respondents resist the claim of the petitioner. ( 9. ) I have heard learned counsel for the parties at length and have perused the record. ( 10. ) It is clear that on the initial date of appointment of the petitioner on 1.12.1993, he was not holding the requisite qualification of Diploma or Degree in Engineering. It was only obtained by him in February 2001 i.e.. about 8 years prior to the process of regularization. The question therefore, would be as to whether the criteria fixed for possessing the requisite qualification also for a period of 10 years is a just and reasonable criteria and is sustainable. ( 11. ) As regularization in question is being undertaken by the State Government as a one time measure, in the light of the directives issued by the Supreme Court, in paragraph 53 of Umadevis case, it would be appropriate at this stage to consider as to what is the principle laid down by the Supreme Court in this regard. ( 12. ) The Constitutional Bench of the Supreme Court in the case of Umadevi (supra) found that appointments made on daily wage by various State Governments and Statutory Authorities fell in two different categories. These were illegal appointments and irregular appointments. As far as illegal appointments are concerned, it is held that there is no question of regularization of an illegality committed. However, irregular appointments and appointees under this category, who have worked for 10 years or more and who at the initial stage of engagement as daily wages employees possessed the requisite qualification for appointment, were entitled to be considered for regularization as a one-time measure. The aforesaid is laid down by the Supreme Court in the case of Umadevi (supra), after taking note of the principles laid down in the case of State of Mysore Vs. S.V. Narayanappa, AIR 1967 SC 1071 , and in the case of B.N. Nagarajan Vs. State of Karnataka, (1979) 4 SCC 507 . The aforesaid is laid down by the Supreme Court in the case of Umadevi (supra), after taking note of the principles laid down in the case of State of Mysore Vs. S.V. Narayanappa, AIR 1967 SC 1071 , and in the case of B.N. Nagarajan Vs. State of Karnataka, (1979) 4 SCC 507 . In this regard, the principles laid down by the Supreme Court in the case of Umadevi (supra), in paragraphs 15, 16, 17 and 53 is reproduced hereinunder: "15. Even at the threshold, it is necessary to keep in mind the distinction between regularization and conferment of permanence in service jurisprudence. In STATE OF MYSORE Vs. S. V. NARAYANAPPA [ 1967 (1) S.C.R. 128 ], this Court stated that it was a mis-conception to consider that regularization meant permanence. In R.N. NANJUNDAPPA Vs T. THIMMIAH and ANR. [ (1972) 2 S.C.R. 799 ], this Court dealt with an argument that regularization would mean conferring the quality of permanence on the appointment. This Court stated:- "Counsel on behalf of the respondent contended that regularization would mean conferring the quality of permanence on the appointment, whereas counsel on behalf of the State contended that regularization did not mean permanence but that it was a case of regularization 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 regularized. Ratification or regularization 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. Regularization 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." 16. In B.N. Nagarajan and Ors. Vs. State of Karnataka and Ors. [ (1979) 3 SCR 937 ], this court clearly held that the words "regular" or "regularization" do not connote permanence and cannot be construed so as to convey an idea of the nature of tenure of appointments. They are terms calculated to condone any procedural irregularities and are meant to cure only such defects as are attributable to methodology followed in making the appointments. They are terms calculated to condone any procedural irregularities and are meant to cure only such defects as are attributable to methodology followed in making the appointments. This court emphasized that when rules framed under Article 309 of the Constitution of India are in force, no regularization is permissible in exercise of the executive powers of the Government under Article 162 of the Constitution in contravention of the rules. These decisions and the principles recognized therein have not been dissented to by this Court and on principle, we see no reason not to accept the proposition as enunciated in the above decisions. We have, therefore, to keep this distinction in mind and proceed on the basis that only something that is irregular for want of compliance with one of the elements in the process of selection which does not go to the root of the process, can be regularized and that it alone can be regularized and granting permanence of employment is a totally different concept and cannot be equated with regularization. 17. We have already indicated the constitutional scheme of public employment in this country, and the executive, or for that matter the Court, in appropriate cases, would have only the right to regularize an appointment made after following the due procedure, even though a non-fundamental element of that process or procedure has not been followed. This right of the executive and that of the court, would not extend to the executive or the court being in a position to direct that an appointment made in clear violation of the constitutional scheme, and the statutory rules made in that behalf, can be treated as permanent or can be directed to be treated as permanent. XXX XXX XXX XXX 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 bypassing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme" (Emphasis Supplied) ( 13. ) From the aforesaid principle, it would be clear that if the appointment made initially is illegal, contrary to the statutory rules or regulation or constitutional provision, then such an illegal appointment cannot be regularized. What could be regularized under the one time measure contemplated under paragraph 53 above, are the irregular appointments made. Irregular appointments would be such appointments which is made contrary to the procedural requirement, but where the appointee was a candidate, who was fulfilling the requisite requirement as per the recruitment rules. ( 14. ) The principle so laid down by the Supreme Court in the case of Umadevi (supra) by the Constitutional Bench is further explained and clarified in the case of State of Karnataka and others Vs. G.V Chandrashekhar, (2009) 4 SCC 342 , and the meaning and import of the directions contained in paragraph 53, of the judgment in the case of Umadevi (supra), is explained by the Supreme Court in the said case. Infact interpretation of paragraph 53, in Umadevis case, is undertaken in the said case of G. V. Chandrashekar (supra) and explanation is to the same effect as has been indicated hereinabove. Infact interpretation of paragraph 53, in Umadevis case, is undertaken in the said case of G. V. Chandrashekar (supra) and explanation is to the same effect as has been indicated hereinabove. For the sake of convenience, the observations made by the Supreme Court in paragraph 29, in the case of G. V Chandrashekar (supra), may be taken note of, which clarifies the position and reads as under: In Postmaster General, Kolkata and Others vs. Tutu Das (Dutta), [ (2007) 5 SCC 317 ], this Court held as under:- "20. The statement of law contained in para 53 of Umadevi cannot also be invoked in this case. The question has been considered by this Court in a large number of decisions. We would, however, refer to only a few of them. 21. In Punjab Water Supply and Sewerage Board v. Ranjodh Singh referring to paras 15, 16 and 53 of Umadevi (3) this Court observed : "17. A combined reading of the aforementioned paragraphs would clearly indicate that what the Constitution Bench had in mind in directing regularization was in relation to such appointments, which were irregular in nature and not illegal ones. 18. Distinction between irregularity and illegality is explicit. It has been so pointed out in National Fertilizers Ltd. v. Somvir Singh in the following terms: (SCC pp. 500-01, paras 23-25) 23. The contention of the learned counsel appearing on behalf of the respondents that the appointments were irregular and not illegal, cannot be accepted for more than one reason. They were appointed only on the basis of their applications. The Recruitment Rules were not followed. Even the Selection Committee had not been properly constituted. In view of the ban on employment, no recruitment was permissible in law. The reservation policy adopted by the appellant had not been maintained. Even cases of minorities had not been given due consideration. 24. The Constitution Bench thought of directing regularisation of the services only of those employees whose appointments were irregular as explained in State of Mysore v. S.V. Narayanappa, R.N. Nanjundappa v. T. Thimmiah and B.N. Nagarajan v. State of Karnataka wherein this Court observed: [Umadevi (3) case, SCC p. 24, para 16] "16. 24. The Constitution Bench thought of directing regularisation of the services only of those employees whose appointments were irregular as explained in State of Mysore v. S.V. Narayanappa, R.N. Nanjundappa v. T. Thimmiah and B.N. Nagarajan v. State of Karnataka wherein this Court observed: [Umadevi (3) case, SCC p. 24, para 16] "16. In B.N. Nagarajan v. State of Karnataka this Court clearly held that the words regular or regularisation do not connote permanence and cannot be construed so as to convey an idea of the nature of tenure of appointments. They are terms calculated to condone any procedural irregularities and are meant to cure only such defects as are attributable to methodology followed in making the appointments." 25. Judged by the standards laid down by this Court in the aforementioned decisions, the appointments of the respondents are illegal. They do not, thus, have any legal right to continue in service. " (Emphasis Supplied) ( 15. ) If the policy formulated by the State Government as contained in Annexure R/l on 16.5.2007 is scanned, it would be seen that this is a one time measure initiated by the State Government to regularize the irregular appointments made, which had continued for more than 10 years. In paragraph 3 of the aforesaid Circular, the import of the words irregular appointments and illegal appointments as explained by the Supreme Court in the case of Umadevi (supra) is explained and in paragraph 4.1, illegal appointment is clarified and certain categories are indicated which includes classes of persons who do not fulfil the criteria as per the recruitment rules and whose appointment are without any authority. In the circular - Annexure R/l itself appointments contrary to the recruitment rules is classified as illegal appointment and in paragraph 5.1, of the aforesaid circular, the procedure for evaluating the eligibility criteria and the guidelines to the Scrutiny Committee is indicated and the criteria clearly shows that the candidate to be regularized should be a candidate whose appointment at the initial stage is irregular and he should be fulfilling the criteria laid down in paragraph 5.1, which includes that he should have been appointed 10 years back and working continuously and he should have been appointed on the basis of fulfillment of criteria laid down in the recruitment rules. Further in paragraph 5.5, the Scrutiny Committee is cautioned to regularize only irregular appointments and illegal appointments are not to be regularized. ( 16. ) It is clear that the policy laid down in Annexure R/l dated 16.5.2007 is in conformity with the requirements of law laid down by the Supreme Court in the cases of Umadevi (supra) and G. V. Chandrashekar (supra) and if the case of the petitioner is scrutinized in the backdrop of the aforesaid principles, it would be seen that on 1.12.93 when he was appointed, he was not possessing the qualification of Diploma or Degree in Engineering, which is the minimum criteria for appointment to the post in question. That being so, his initial appointment on 1.12.1993 would fall in the category of illegal appointment. However, to regularize his service on the ground that he has completed 10 years of service, respondents have liberally construed the provision and are permitting such persons to participate in the process of regularization, who have worked for 10 years continuously and at the same time possess the minimum criteria laid down in the recruitment rules during this period of 10 years. It is, therefore, clear that the criteria of possessing the Degree or Diploma for a period of 10 years laid down in the circular - Annexure P/4 and impugned in this petition is a criteria laid down on the basis of principles of law as has emerged from the judgments referred to hereinabove and in doing so, I am of the considered view that the State Government and the competent authority has not committed any error. They are justified in doing so and the same is in conformity with the requirement of legal principles. ( 17. ) The justification for imposing the condition in the impugned order can be considered in a different manner. In accordance to the law laid down in the case of Uma Devi (supra) and the policy contained in the Circular Annexure R/l dated 16.5.2007 only such appointments or engagements are to be regularized which fall in the category of "irregular appointment", that apart, the irregular appointment has to be continuously for a period of 10 years. In accordance to the law laid down in the case of Uma Devi (supra) and the policy contained in the Circular Annexure R/l dated 16.5.2007 only such appointments or engagements are to be regularized which fall in the category of "irregular appointment", that apart, the irregular appointment has to be continuously for a period of 10 years. That being so when petitioner did not possess the requisite Diploma/ Degree in Engineering, even though he was working for 10 years, his appointment will fall in the category of "illegal appointment", it is only from the date he acquires the qualification and thereafter works for 10 years continuously that his appointment will fall within the ambit of irregular appointment. This would be achieved only when petitioner has worked for a period of 10 years after obtaining the requisite Degree or Diploma. ( 18. ) As far as contention of the petitioner that certain persons indicated in Annexure P/16, having less period of Diploma i.e.. less than 10 years have been appointed is concerned, respondents in their additional return have denied the said fact and it is stated that Annexure P/16 is prepared by the petitioner and not an authentic document. On the contrary, respondents themselves have filed various documents alongwith their additional return as Annexure R/2 collectively to show that no person having the criteria of Diploma or Degree less than 10 years are appointed. In that view of the matter, contention of the petitioner that he is being discriminated cannot be accepted. ( 19. ) Even otherwise, when the law warrants certain criteria to be fulfilled, in contravention to the said criteria, plea of discrimination cannot be made by the petitioner. At best, petitioner may point out the irregularities, if any, in the matter of regularization and it would be for the State Government to rectify the irregularity or illegality in case any error has been committed or benefit granted to non- deserving candidates in the matter. ( 20. ) Accordingly, for the grounds and reasons indicated hereinabove, this Court is of the considered view that in laying down the criteria impugned in this petition, as contained in Annexure P/4, respondents have not committed any error warranting interference. The petition is accordingly dismissed. Petition dismissed.