Long-term employees cannot be denied regularization solely due to the absence of formal appointment documents; equitable treatment under Article 14 mandates similar consideration for all similarly situated employees.

ORDER :

VIVEK JAIN, J.

By way of present petition, the petitioner has prayed the relief of regularization in service as he is working since the year 1986 in Municipal Corporation Jabalpur.

2. The claim of the petitioner is that as per the gradation list of daily rated employees in the Municipal Corporation, the name of the petitioner appears at serial No. 79 in the list Annexure P/1 and his initial appointment is shown to be of the year 1986. It is contended that the private respondents No. 4 to 7 are at lower rung then the petitioner in the said list Annexure P/1 but still these private respondents have been regularized prior to the petitioner by order Annexure P/4 issued on 04.08.2017. Therefore, it is contended that the respondents have adopted a policy of pick and choose in regularizing theemployees.

3. Per contra, the learned counsel for respondent Corporation submits that there are no available vacant posts against which the petitioner can be regularized and in absence of the vacant posts the petitioner cannot be regularized. It is contended that a proposal has been sent for creation of posts which has not yet been approved by the State Government and therefore, the petitioner cannot be regularized.

4. So far as the parity with the private respondents No. 4 to 7 is concerned, it is contended that the said private respondents have been regularized in service in terms of certain orders passed by the Labour Court and therefore, the petitioner cannot pray for regularization at par with these employees.

5. Upon hearing the rival parties it is seen that the initial engagement of the petitioner in the year 1986 is not in dispute and the petitioners having put in 38 years of service as on date is also not in dispute. The respondents have rejected the case of the petitioners for regularization vide Annexure R/1 on the ground that there are no vacant posts and the request is pending before the State Government for sanction of posts. However, the private respondents have been regularized vide order Annexure P/4 in anticipation of creation of posts by the State Government. Therefore, it is clear that the Corporation has been regularizing various employees even in the anticipation of creation of posts. This type of the order is not for one or two employees but for a number of employees as per Annexure P/4 by which as many as 24employees have been regularized.

6. The petitioner has also put to challenge the rejection order Annexure R/1 by way of amendment and therefore, the reasons mentioned in the rejection order Annexure P/1 have also been scrutinized by this Court.

7. The Constitution Bench of Hon'ble Apex Court in case of Secretary, State of Karnataka vs. Smt. Uma Devi (2006) 4 SCC 1 has held that there is distinction between irregular and illegal appointment. The Constitution Bench has considered various judgments of the Supreme Court in the matter of illegal and irregular appointments and held as under:-

"15. 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 rul