Smt. Meena Sinha Vs State Of Chhattisgarh

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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WPS No. 474 of 2018

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Smt. Meena Sinha W/o Shri M. Sinha Aged About 46 Years, Presently Working as Peon at Forest Office, South Division Kondagaon District Kondagaon Chhattisgarh

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---- Petitioner

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Versus

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State Of Chhattisgarh Through The Secretary, Forest Department, Mahanadi Bhawan New Raipur Chhattisgarh

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Divisional Forest Officer, South Kondagaon, Division Kondagaon District Kondagaon Chhattisgarh

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---- Respondent

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.................................................................................................................................... For Petitioner Mr. Somkant Verma, Advocate For Respondent/State Mr. Rajeev Bharat, Govt. Advocate

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SB.: Hon'ble Mr. Justice Deepak Kumar Tiwari Order On Board

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20/3/2024

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This writ petition is filed under Article 226 of the Constitution of India by the petitioner seeking regularization of service in view of the Circular dated 5.3.2008-Annexure P/5 issued by the respondent authorities.

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Brief facts of the case are that the petitioner was initially appointed as Dailywage Worker in the office of the concerned Divisional Forest Officer, Raipur in the year 1990, but later on, she was removed from the work in the year 1993. When it came to the notice of the petitioner that the State authorities have taken a policy decision vide Circular dated 5.3.2008-Annexure P/5, the petitioner filed WPS No.5290/2016 to consider her case for regularisation and the said petition was disposed of on

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1.12.2016 reserving liberty in favour of the petitioner to file a representation. The petitioner filed a representation, which was dismissed by the respondent authorities on 24.3.2017(Annexure P/1) on the ground that the petitioner was not found eligible as per the Policy of the State Government for regularisation in view of the Circular dated 5.3.2008. Hence, this petition.

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Learned counsel for the petitioner would submit that the respondent authorities have wrongly rejected the claim of the petitioner for her regularisation and also no proper reason has been assigned for such rejection. He submits that the petitioner is working under the respondents since 23.11.1981 without any break so she is entitled for regularisation as per the Policy taken by the State Government. Hence, he prays to allow the petition.

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Learned counsel for the State submits that as a one-time measure, a Policy has been taken by the State Government for regularisation of the daily wage/adhoc employees and contingency paid employees, who have been appointed prior to 31.12.1997 and has completed 10 years of service. He submits that there is a specific clause in the said Circular that if a person is having break in service for more than one month in any year, then such person is not entitled for regularization and in the case of the petitioner, it was found that there was a long break in her service as she has worked for a period of 14 days in the year 2006, for a period of 116 days in the year 2007, for a period of 135 days in the year 2008 and for a period of 15 days in the year 2009. Learned counsel for the State would further submit that in view of the policy decision, the petitioner is not entitled for regularization. He places reliance on the judgments rendered in the matters of Secretary, State of Karnataka & Others Vs.

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Umadevi (3), reported in (2006) 4 SCC 1 , Darbar Singh Porte and Another Vs. State of Chhattisgarh and Another, reported in (2010) 3 CGLJ 418 and Official Liquidator Vs. Dayanand & Ors reported in (2008) 10 SCC 1 and prays to dismiss the petition.

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Heard learned counsel for the parties and also perused the record with utmost circumspection.

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In the matter of Union of India and Ors Vs. Ilmo Devi and Anr, reported in (2021) 20 SCC 290, the Hon’ble Supreme Court referred to the observations made in State of Rajasthan and Others Vs. Daya Lal and others , reported in (2011) 2 SCC 429 , wherein, it was observed that the temporary employees are not entitled to seek regularisation since they are not working against sanctioned posts. Further, the principles have been summarised with regard to regularization and services of temporary, ad hoc or daily-wage employees. The relevant portion of the said judgment reads thus:-

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“ 15.In Daya Lal (supra) in paragraph 12, it is observed and held as under (SCC 435-36):-

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12.We may at the outset refer to the following well settled principles relating to regularization and parity in pay, relevant in the context of these appeals:

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(i) The High Courts, in exercising power under Article 226 of the Constitution will not issue directions for regularization, absorption or permanent continuance, unless the employees claiming regularization had been appointed in pursuance of a regular recruitment in accordance with relevant rules in an open competitive process, against sanctioned vacant posts. The equality clause contained in Articles 14 and 16 should be scrupulously followed and courts should not issue a direction for regularization of services of an employee which would be violative of constitutional scheme. While something that is irregular for want of compliance with one of the elements in the process of

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selection which does not go to the root of the process, can be regularized, back door entries, appointments contrary to the constitutional scheme and/or appointment of ineligible candidates cannot be regularized.

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(ii) Mere continuation of service by an temporary or ad hoc or daily-wage employee, under cover of some interim orders of the court, would not confer upon him any right to be absorbed into service, as such service would be “litigious employment”. Even temporary, ad hoc or daily-wage service for a long number of years, let alone service for one or two years, will not entitle such employee to claim regularization, if he is not working against a sanctioned post. Sympathy and sentiment cannot be grounds for passing any order of regularization in the absence of a legal right.

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(iii) Even where a scheme is formulated for regularization with a cut off date (that is a scheme providing that persons who had put in a specified number of years of service and continuing in employment as on the cut off date), it is not possible to others who were appointed subsequent to the cut off date, to claim or contend that the scheme should be applied to them by extending the cut off date or seek a direction for framing of fresh schemes providing for successive cut off dates.

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(iv) Part-time employees are not entitled to seek regularization as they are not working against any sanctioned posts. There cannot be a direction for absorption, regularization or permanent continuance of part time temporary employees.

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(v) Part time temporary employees in government run institutions cannot claim parity in salary with regular employees of the government on the principle of equal pay for equal work. Nor can employees in private employment, even if serving full time, seek parity in salary with government employees. The right to claim a particular salary against the State must arise under a contract or under a statute.

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[See : Secretary, State of Karnataka vs. Uma Devi¹ , M. Raja vs. CEERI Educational Society Pilani² , S.C. Chandra vs. State of Jharkhand³ , Kurukshetra Central Co-operative Bank Ltd vs. Mehar Chand⁴ , and Official Liquidator vs. Dayanand⁵ ]

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16.Thus, as per the law laid down by this Court in the aforesaid decisions part-time employees are not entitled to seek regularization as they are not working

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1 (2006) 4 SCC 1

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2 (2006) 12 SCC 636

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3 (2007) 8 SCC 279

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4 (2007) 15 SCC 680

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5 (2008) 10 SCC 1

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against any sanctioned post and there cannot be any permanent continuance of part-time temporary employees as held. Part-time temporary employees in a Government run institution cannot claim parity in salary with regular employees of the Government on the principle of equal pay for equal work.”

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In Darbar Singh Porte (supra) , this Court, in view of the principle laid down in the matter of Umadevi (Supra), has categorically held that if any appointment de hors a constitutional scheme of employment is made, no regularisation can be made and the relevant paragraphs 8 to 10 read thus :

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“8. Be that as it may, the daily wager cannot claim regularization, continuance or reinstatement in service on the basis of appointment, which was temporary and not in accordance with law and de hors the constitutional scheme of employment. (See : Secretary, State of Karnataka and Others vs. Umadevi (3)2, Indian Drugs & Pharmaceuticals Ltd. v. Workmen, Indian Drugs & Pharmaceuticals Ltd. and Official Liquidator v. Dayanand."

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The contention of the petitioners that the State Government by its letter dated 5-3-2008 directed all the departments to regularize the services of daily wagers is concerned, the same is also noticed to be rejected, as in Umadevi (supra), the Supreme Court observed that “those decisions which run counter to the principle settled in this decision, or in which directions running counter to what will have held herein, will stand denuded of their status as precedents”. Thus, reliance of the petitioners on the letter dated 5-3-2008 issued by the State Government is of no assistance.

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The above ratio laid down by the Supreme Court has been reiterated by this Court in Ashwani Kumar Verma v. State of Chhattisgarh, WP (S) No. 1743 of 2009 decided on 28-4-2009. This Court in Sanjay Patil v. State of Chhattisgarh, WP (S) No. 5845 of 2009 decided on 9- 102009, while dealing with similar issue observed that “if the State Government has regularized some of the daily wagers, not appointed in accordance with the constitutional scheme of employment, this Court cannot issue a positive direction to legalise the illegal appointment on the ground that certain illegal appointments have been legalized/regularized by the

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employer.”

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Furthermore, in the matter of Renu and others Vs. District and Sessions Judge, Tis Hazari Courts, Delhi and another, (2014) 14 SCC 50, the principles to be adopted in the matter of public appointments have been discussed and the relevant para 12 reads thus :

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The principles to be adopted in the matter of public appointments have been formulated by this Court in M.P. State Coop. Bank Ltd. Vs. Nanuram Yadav , as under:

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“(1) The appointments made without following the appropriate procedure under the rules/government circulars and without advertisement or inviting applications from the open market would amount to breach of Articles 14 and 16 of the Constitution of India.

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(2) Regularisation cannot be a mode of appointment.

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(3) An appointment made in violation of the mandatory provisions of the statute and in particular, ignoring the minimum educational qualification and other essential qualification would be wholly illegal. Such illegality cannot be cured by taking recourse to regularisation.

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(4) Those who come by back-door should go through that door.

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(5) No regularisation is permissible in exercise of the statutory power conferred under Article 162 of the Constitution of India if the appointments have been made in contravention of the statutory rules.

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(6) The court should not exercise its jurisdiction on misplaced sympathy.

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(7) If the mischief played is so widespread and all

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pervasive, affecting the result, so as to make it difficult to pick out the persons who have been unlawfully benefited or wrongfully deprived of their selection, it will neither be possible nor necessary to issue individual show-cause notice to each selectee. The only way out would be to cancel the whole selection.

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(8) When the entire selection is stinking, conceived in fraud and delivered in deceit, individual innocence has no place and the entire selection has to be set aside.”

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In view of the aforesaid discussion, this Court is of the view that if the petitioner is not entitled for regularization as per the Policy of/Scheme framed by the State Government, this Court cannot issue a positive direction to regularize such appointment by stepping into the shoes of the employer in order to frame a policy.

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In view of the above, the petition is dismissed. No order as to cost. Sd/-

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(Deepak Kumar Tiwari)

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Judge

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Shyna

Smt. Meena Sinha v. State Of Chhattisgarh

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Smt. Meena Sinha v. State Of Chhattisgarh

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