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Madhya Pradesh High Court · body

2018 DIGILAW 53 (MP)

Mukesh Vishwakarma v. State of M. P.

2018-01-12

SUJOY PAUL

body2018
ORDER 1. In this petitioner, the petitioners, daily rated employees have assailed the order dated 13.10.2016 (Annexure P-9) whereby their claim for regularization was turned down on the ground that they have not completed ten years of service as daily rated employee on the cut-off date i.e. 1.1.2009. 2. During the course of arguments, learned counsel for the parties fairly admitted that the date of appointment and other details of petitioners mentioned in Annexure P-8 are correct. In addition, the parties further agreed that service particulars of the petitioners mentioned in Annexure P-1 (cumulatively) are also correct. The parties fairly admitted that the initial service period of the petitioners was on contingency basis for two years which was followed by employment on daily rated basis. The department has considered and counted the services rendered on daily rated basis only and excluded the period of two years of contingency period because of which petitioners services fall short than ten years which is the minimum period for the purpose of considering an employee for regularization. Thus, the spinal issue before this Court is whether the petitioners were rightly deprived from right of consideration and regularization by excluding the period of two years during which they rendered services on contingency basis? 3. Shri Lala criticized the order on the basis of Government circular which prescribed the cut-off date on which the employee must complete ten years and pointed out that as per circular dated 20.5.2009, the said cut-off date was altered as 1.1.2009 for the employees of present department. 4. Shri Duggal supported the impugned order by contending that a conscious decision was taken to consider those employees who have completed ten years of service as daily rated employees and the minutes dated 28.7.2015 (Annexure R-2) shows that period of contingency was decided to be excluded. These minutes were as such accepted by the Commissioner on 24.9.2015 (Annexure R-4). Since the resolution Annexure R-2 was approved, as such, the condition of exclusion of period of contingency is also approved. Thus, the petitioners cannot get the benefit of counting that period of contingency service. Moreso, when they have not assailed the resolution/ minutes Annexure R-2. 5. Shri Lala submits that the said documents are internal correspondence and petitioners were not part of such correspondence. Thus, the petitioners cannot get the benefit of counting that period of contingency service. Moreso, when they have not assailed the resolution/ minutes Annexure R-2. 5. Shri Lala submits that the said documents are internal correspondence and petitioners were not part of such correspondence. They are entitled to get the benefit as per the basic circular of the Government and the decision of the Commissioner dated 20.5.2009. 6. Shri G.P.Singh, GA for the respondents/state submits that the Government has no role to play in the present matter. 7. No other point is pressed by counsel for the parties. 8. I have bestowed my anxious consideration on the rival contentions of the parties and perused the record. In the Government circular it is mentioned that the employees who have not been regularized and have rendered ten years of service, they can be considered for regularization. It is not in dispute that on the cut-off date i.e 1.1.2009 all the petitioners have completed ten years of service if the services rendered on workcharge basis are included. Admittedly, the services rendered by petitioners on workcharge basis were prior in time, followed by about eight years' of services on daily rated basis. The basic purpose of issuing the circular is to provide the benefit of regularization to those stagnated daily rated employees who have not been regularized. If petitioners have worked on contingency basis for two years, followed by their employment on daily rated basis for eight years, the fact remains that they were not regularized for more than ten years and on the cut-off date their status was of daily rated employees. The thread spliting on the part of the respondents runs contrary to the intention behind issuance of circular by the Government followed by the circular dated 20.5.2009. The employees who were not regularized and have admittedly rendered ten years of service cannot be put in different classes. The object and purpose of issuing the circulars for regularizing the employees is to give benefits to those employees who have rendered ten years of service and yet not given status of a regular employee. Indisputably, on the date of consideration, those employees who have rendered ten years of service and yet were bearing status of daily rated employee on their sleeve are entitled to be considered for regularization. Indisputably, on the date of consideration, those employees who have rendered ten years of service and yet were bearing status of daily rated employee on their sleeve are entitled to be considered for regularization. Their birth mark i.e. their initial appointment on workcharge basis for a small period has no significance. If the petitioners are deprived from the right of consideration for regularization despite the fact that for last ten years they have worked and are still working as daily rated employees, this will defeat the very purpose of issuing the circular regarding regularization. This will also divide the homogeneous class of daily rated employees on irrelevant basis namely they worked initially for two years on workcharge basis. Such classification will be an arbitrary classification and it will amount to create a class within the class or putting it differently, it will divide a homogeneous class. The employees who have rendered complete ten years of service as daily rated employees and the petitioners who have completed ten years of service out of which two years are on workcharge basis are sailing in the same boat. Any attempt to give them different treatment will hit Article 14 of the Constitution. The governing circulars do not permit any such artificial classification or deprivation of petitioners. Thus, the minutes on which reliance is placed by Shri Duggal cannot deprive the petitioners from the right of consideration. 9. In view of forgoing discussion, the impugned order dated 13.10.2016 (Annexure P-9) has become vulnerable and is hereby set aside. If the petitioners have completed ten years of service put together as workcharge employees followed by services rendered on daily rated employees and if they are otherwise eligible, they are entitled to be considered for regularization. The respondent shall consider the claim of the petitioners for regularization within 60 days from the date of communication of this order. 10. Petition is allowed. No cost.