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IN THE HIGH COURT OF MADHYA PRADESH AT GWALIOR BENCH
Gurpal Singh Ahluwalia, J.
Mukesh Kumar Sharma – Appellant
Versus
State of M.P. and Ors. – Respondents
W.P. No. 7325 of 2016
Decided On : 25-02-2021
Regularization - Appointment - Article 226 - State of Bihar Vs. Upendra Narayan Singh (2009) 5 SCC 65, Doiwala Sehkari Shram Samvida Samiti Ltd. v. State of Uttaranchal (2007) 11 SCC 641, State of Karnataka Vs. Uma Devi (2006) 4 SCC 1 - The court discussed the principles of negative equality, illegal appointments, and regularization of services. It highlighted the importance of legal appointments and the prohibition of perpetuating illegality through regularization.
Fact of the Case:
The petitioner sought regularization of his services after being appointed as a part-time waterman and later as a part-time laborer. His claim was rejected, leading to the petition under Article 226 of the Constitution of India.
Finding of the Court:
The court found that the petitioner's initial appointment was illegal and amounted to a back door entry. It emphasized the principle of negative equality and held that no case was made out for the regularization of the petitioner's services.
Issues: The issues revolved around the legality of the petitioner's initial appointment, the rejection of his claim for regularization, and the alleged discrimination in comparison to similarly situated employees.
Ratio Decidendi: The court emphasized the importance of legal appointments, the prohibition of perpetuating illegality through regularization, and the principle of negative equality. It also highlighted the guarantee of equal opportunities for all citizens in matters relating to employment under Article 16(1) of the Constitution of India.
Final Decision: The petition was dismissed, and the court held that no case was made out for the regularization of the petitioner's services.
JUDGMENT :
Gurpal Singh Ahluwalia, J.
1. Heard finally.
2. This petition under Article 226 of the Constitution of India has been filed against the order dated 1-8-2016, by which the claim of the petitioner for regularization has been rejected.
3. It is the case of the petitioner, that the elder brother of the Petitioner was working as Part time Waterman on daily wages in the office of District Treasury. He died in the year 1997, therefore, the petitioner was engaged as daily rated Waterman. Later on, he was discontinued in the year 2000 and thereafter, on the orders of the Collector, he was once again re-engaged as part time labourer at half of the collectorate rates.
4. Thereafter, the petitioner applied for regularization of his services, however, his claim has been rejected by the impugned order.
5. Challenging the impugned order dated 1-8-2016, it is submitted by the Counsel for the petitioner that the petitioner was appointed as Part time Waterman in the year 1997 and continued till 2000. Again in the year 2001, the petitioner moved an application for his re-engagement and the Collector, by considering the application in sympathetic manner, directed for his re-engagement as part time labourer. In the year 2007, when the policy for regularization was floated, the claim of the petitioner was not considered on the ground that he had not completed 10 years of service, although various other similarly situated persons were regularized. It is further submitted that the petitioner was appointed as Part Time Waterman in the year 1997, and therefore, if his earlier service is counted, then it is clear that the petitioner had already completed 10 years of service, thus, the rejection of his claim on the ground that he had not completed 10 years of service is bad.
6. Per contra, it is submitted by the Counsel for the State, that the initial appointment of the petitioner itself was illegal and was a back door entry. Although it is the claim of the petitioner, that he was appointed as Part Time Waterman, after the death of his elder brother, but the elder brother of the petitioner was also working as Part Time Waterman, and in the appointment order dated 7-11-1997, it is nowhere mentioned that the petitioner has been appointed because of death of his elder brother. Even otherwise, the appointment of the petitioner was not a compassionate appointment. Further, without there being any advertisement, it appears that on the application moved by the petitioner, the then Collector, once again appointed the petitioner as part time labourer, which is also incorrect and amounts to back door entry. It is submitted that since, the initial appointment of the petitioner itself was illegal and was a back door entry, therefore, his claim for regularization has been rightly rejected.
7. In reply, it is submitted by the Counsel for the petitioner, that similarly situated employees have been granted regularization and therefore, rejection of the claim of the petitioner amounts to discrimination.
8. Heard the learned Counsel for the parties.
9. It is well established principle of law that Principle of Negative Equality is unknown to Article 14 of the Constitution of India.
10. The Supreme Court in the case of State of Bihar Vs. Upendra Narayan Singh reported in (2009) 5 SCC 65 has held as under:-
The main legal point established in the judgment is the importance of legal appointments, the prohibition of perpetuating illegality through regularization, and the guarantee of equal opportunities f....
The main legal point established in the judgment is that for regularization, an employee must prove the legality of their initial appointment and cannot claim permanency based on 'legitimate expectat....
The court emphasizes that regularization of temporary employees must adhere to principles of equality and fairness, ensuring parity in treatment for similarly situated employees.
Ad-hoc/daily wage employees appointed without statutory recruitment rules have no right to regularization despite vacancies or long service; constitutional scheme of equality under Articles 14/16 man....
In order that a mandamus may issue to compel the authorities to do something, it must be shown that the statute imposes a legal duty on the authority and the aggrieved party had a legal right under t....
Appointments made on contractual basis, without following the regular process of selection as per the relevant rules, do not confer any right to the appointee for regularization.
Irregular appointments may be regularized after prolonged continuous service, as technical grounds cannot undermine substantive employment rights.
The court ruled that employees employed for lengthy periods cannot be denied regularization of service, emphasizing principles of fairness and equality under the Constitution.
Appointments not being sponsored by the employment exchange, as prescribed under Rule 149(2) of the Rules, would only make the appointments irregular and not illegal.
Temporary or casual employment does not confer legal rights to regularization; adherence to proper recruitment processes is mandatory for permanent appointments.
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