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 expectation' if the appointment was not made in compliance with the constitutional scheme of public employment.

JUDGMENT :

Gurpal Singh Ahluwalia, J.

1. This petition under Article 226 of the Constitution of India has been filed seeking the following reliefs:-

(i) That, respondents may kindly be directed to regularized the service of the petitioners extending them all the service benefit like the other employee.

(ii) That, any other relief which this Hon'ble High Court may deem fit, with cost of the petition."

2. It is submitted by the Counsel for the petitioners that since the Municipal Council, Sironj was in need of some daily-rated employees, therefore, the petitioners submitted their applications and they were found suitable and accordingly, they were appointed on daily wages. It is submitted that looking to the vacancies, some of the petitioners preferred a writ petition before this Court seeking their regularization but they withdrew the petition with liberty to prefer representation for redressal of their grievances. In response to the representation, the respondents extended the benefit of Viniyamitikaran Scheme in the category of unskilled labour. It is submitted that this action of the respondents is not fair because they have regularized the services of some similarly placed employees by order dated 18/01/2017, whereas similar benefit is not being extended to the petitioners. It is further submitted that as per the Viniyamitikaran Scheme, the respondents have also decided to "regularize" Sthaikarmis so that they may get more opportunities in the regular service and accordingly, the petitioners are also entitled for the benefit of regularization. Accordingly, the Counsel for the petitioners has relied upon Annexure A appended to Scheme.

3. Per contra, it is submitted by the Counsel for the State that except by mentioning that the petitioners had applied for their appointment, no other pleadings has been made in order to show that the initial appointment was not illegal. So far as the benefit of regularization which has been given to other employees is concerned, it is submitted by the Counsel for the State that it is well-established principle of law that the principle of "negative equality" is not applicable to Article 14 of the Constitution of India. Further, it is submitted that the order dated 18/01/2017 by which one Kamlesh was regularized, has been passed on the misinterpretation of order dated 20/01/2016 passed in Writ Petition No. 425/2016.

4. Heard the learned counsel for the parties.

5. Article 16 of the Constitution of India reads as under:

"16. Equality of opportunity in matters of public employment.--(1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.

(2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State.

(3) Nothing in this article shall prevent Parliament from making any law prescribing, in regard to a class or classes of employment or appointment to an office under the Government of, or any local or other authority within, a State or Union territory, any requirement as to residence within that State or Union territory prior to such employment or appointment.

(4) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.

(4-A) Nothing in this article shall prevent the State from making any provision for reservation in matters of promotion, with consequential seniority, to any class or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State.

(4-B) Nothing in this article shall prevent the State from considering any unfilled vacanc