IN THE HIGH COURT OF CHATTISGARH AT BILASPUR WPS No 1794 of 2008 and WPS No 1796 of 2008 and WPS No 1798 of 2008 and WPS No 1816 of 2008 WPS No 1799 of 2008 and WPS No 1815 of 2008 and WPS No 1898 of 2008 and 1 Rakesh Kushwaha
2 Shiv Kumar Lahri
3 Sudev Kumar Yadav
4 Ventesh Prasad Sahu
5 Durga Prasad Dewangan
6 Rajmani Kushwaha
7 Manoj Agrawal
8 Rachna Agrawal
9 Rashmi Agrawal
1 State of Chhattisgarh
2 Chhattisgarh Lok Ayog
! Shri Jitendra Pali and Shri Amrito Das, Advocates for the petitioners ^ Shri Yashwant Singh Thakur, Deputy Advocate General for the respondents Honble Shri Satish K. Agnihotri J
WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA JUDGMENT AND ORDER
(Passed on this 20th Day of March, 2009)
1. The petitioners, who were working on various class-III and class-IV posts in the Chhattisgarh Lok Ayog, Raipur, have filed these petitions challenging the common order (Annexure P/1), whereby pursuant to the letter No. 10/466/2006/1-3 dated 3.1.2007 and the letter No. 301/466/2006/1-3 dated 4.4.2007 issued by the General Administration Department, the regularization on the respective posts of the petitioners, was cancelled w.e.f. 1.4.2008 and they were appointed for a period of 89 days on daily wages (Collector's rate).
2. The brief facts, necessary for disposal of these petitions are that :
z The petitioner (Rakesh Kushwaha) in W.P.(S) No.1794/2008 was initially appointed as Peon on 7.10.2002 (Annexure - P/2) for a period of 89 days on a vacant post. Thereafter, regular pay scale was granted to him by order dated 19.4.2004 (Annexure - P/3).
z The petitioner (Shiv Kumar Lahari) in W.P.(S) No.1796/2008 was initially appointed as Assistant Grade - III on 29.10.2002 (Annexure - P/2) for a period of 89 days on a vacant post. Thereafter, regular pay scale was granted to him by order dated 25.9.2003 (Annexure - P/3). z The petitioner (Sudev Kumar Yadav) in W.P.(S) No.1798/2008 was initially appointed as Assistant Grade - III on 1.10.2002 (Annexure - P/2) for a period of 89 days on a vacant post. Thereafter, regular pay scale was granted to him by order dated 28.10.2004 (Annexure - P/3). z The petitioner (Ventesh Prasad Sahu) in W.P.(S) No.1799/2008 was initially appointed as Driver on 7.10.2002 (Annexure - P/2) for a period of 89 days on a vacant post. Thereafter, regular pay scale was granted to him by order dated 19.4.2004 (Annexure - P/3).
z The petitioner (Durga Prasad Dewangan) in W.P.(S) No.1815/2008 was initially appointed as Peon on 8.1.2003 (Annexure - P/2) for a period of 89 days on a vacant post. Thereafter, regular pay scale was granted to him by order dated 30.12.2005 (Annexure - P/3).
z The petitioner (Rajmani Kushwaha) in W.P.(S) No.1816/2008 was initially appointed as Peon on 7.10.2002 (Annexure - P/2) for a period of 89 days on a vacant post. Thereafter, regular pay scale was granted to him by order dated 19.4.2004 (Annexure - P/3).
z The petitioners (Manoj Agrawal, Rachna Agrawal and Rashmi Agrawal) in W.P.(S) No.1898/2008 were initially appointed as Assistant Grade - III on 29.10.2002, 29.10.2002 and 6.10.2001, respectively (Annexure - P/2) on fixed pay for 89 days. Thereafter, they were appointed on probation for a period of two years by order dated 25.9.2003, 28.10.2004 and 29.3.2003, respectively (Annexure - P/3).
3. The aforementioned seven writ petitions involve common question of facts and law therefore they are being disposed of by this common judgment and order.
4. For the sake of convenience the documents filed in W.P.(S) No. 1815/2008 are being referred. The State Government vide circular dated 3.1.2007 (Annexure P/4) directed that the employees, who were appointed on daily wages and collector's rate prior to 31.12.1988 may not be regularized. It was further stated in the circular that if any regularization is already made the same shall be cancelled and recovery be made. Thereafter, by circular dated 4.4.2007 (Annexure P/5) the effect and operation of the earlier circular dated 3.1.2007 was kept in abeyance.
5. A show cause notice dated 15.5.2007 (Annexure P/6) was issued to the petitioners asto why their regularization be not cancelled and excess amount paid to them be not recovered. The petitioners submitted their reply (Annexure P/7). The impugned order dated 13.3.2008 shows that after considering the reply filed by the petitioners their regularization on respective posts was cancelled and they were appointed on collector's rate for a period of 89 days.
6. Shri Jitendra Pali and Shri Amrito Das, learned counsel appearing for the petitioners would submit that the petitioners have been availing regular pay scales from various dates till the impugned orders were passed. The impugned orders could not have been passed without issuing proper show cause notice or without giving the petitioners an opportunity of hearing in the matter. The show cause notice, issued to the petitioners was a mere formality.
7. Learned counsel appearing for the petitioners heavily placed reliance on a decision of this Court in Sukhdev Malakar Vs. State of C.G. & others1 and would submit that in the similar set of facts and circumstances, the petitioners therein, were put back to their original status (to drawn daily wages as per Collector's rate), canceling their regularization. This Court relying on a earlier decision in Sant Kumar & Others Vs. State of Chhattisgarh and Others2, which was upheld by Hon'ble Supreme Court in Special Leave Petition (Civil) No. 17122/2006 (State of Chhattisgarh & others Vs. Sant Kumar & Others), allowed the petition, holding that the petitioner is entitled to regular pay scale from the date the same was withdrawn by the impugned order.
8. Learned counsel appearing for the petitioners further placed reliance on a decision of Hon'ble Supreme Court in Official Liquidator Vs. Dayanand and others3 where in para 75 it is observed that "...a two-Judge Bench has attempted to dilute the Constitution Bench Judgment in State of Karnataka Vs. Umadevi4, by suggesting that the said decision cannot be applied to a case where regularization has been sought for in pursuance of Article 14 of the Constitution and that the same is in conflict with the judgment of the seven-Judge Bench in Maneka Gandhi v. Union of India5."
9. Per contra, Shri Yashwant Singh Thakur, learned Deputy Advocate General would submit that the nature of appointment of the petitioners was not in accordance with rules and as such the petitioners do not acquire any right to the post. It is well settled principle of law that the employee appointed de-hors the constitutional scheme of employment and not in accordance with law, has no right to continuation, reinstatement or regularization in service. This is also not the case of the petitioners that they were legally appointed, in accordance with law.
10. Shri Thakur further submits that firstly, the grant of regular pay scale was not regularization, and secondly, this was not in accordance with the circular dated 3rd January, 2007, wherein it was envisaged that if daily-wager employees have completed three years of service in work-charged and contingency paid, may be regularized on grant of regular pay scale. The present petitioners were not working as work- charged and contingency employees, accordingly the impugned order was passed stating that the grant of regular pay scale was not in accordance with the provisions of the circular dated 3rd January, 2007.
11. Having heard learned counsel appearing for the parties and having perused the pleadings and documents appended thereto it is apparent that the initial appointments of the petitioners were not in accordance with the constitutional scheme of employment. The applications were not invited from the similarly situated eligible candidates for appointment and as such it is violative of Articles 14 and 16 of the Constitution of India. The Hon'ble Supreme Court in State of Karnataka v. Uma Devi (supra) observed as under: "36. This Court also quoted with approval (at SCC p.131, para 69) the observations of this Court in Teri Oat Estates (P) Ltd. v. U.T., Chandigarh to the effect: (SCC p. 144, para 36)
"36. We have no doubt in our mind that sympathy or sentiment by itself cannot be a ground for passing an order in relation whereto the appellants miserably fail to establish a legal right. It is further trite that despite an extraordinary constitutional jurisdiction contained in Article 142 of the Constitution, this Court ordinarily would not pass an order which would be in contravention of a statutory provision." This decision kept in mind the distinction between "regularization" and "permanency" and laid down that regularization is not and cannot be the mode of recruitment by any State. It also held that regularization cannot give permanence to an employee whose services are ad hoc in nature."
12. If the appointments of the petitioners itself were illegal, the subsequent grant of regular pay scale and regularization does not change the status of the employees. The Supreme Court in the matter of Ashok Kumar Sonkar Vs. Union of India and others6 has observed as under:- "34. It is not a case where appointment was irregular. If an appointment is irregular, the same can be regularized. The court may not take serious note of an irregularity within the meaning of the provisions of the Act. But if an appointment is illegal, it is non est in the eye of law, which renders the appointment to be a nullity."
13. The Hon'ble Supreme Court in Municipal Corpn., Jabalpur Vs. Om Prakash Dubey7 observed as under : "11. The question which, thus, arises for consideration, would be: Is there any distinction between "irregular appointment" and "illegal appointment"? The distinction between the two terms is apparent. In the event the appointment is made in total disregard of the constitutional scheme as also the recruitment rules framed by the employer, which is State within the meaning of Article 12 of the Constitution of India, the recruitment would be an illegal one; whereas there may be cases where, although, substantial compliance with the constitutional scheme as also the rules has been made, the appointment may be irregular in the sense that some provisions of the rules might not have been strictly adhered to."
14. The reliance of the petitioner on the judgment of this Court in Sukhdev Malakar (supra) is not applicable to the present case as the ratio laid down by the Supreme Court in the matter of State of Karnataka v. Uma Devi (supra) was not brought to the notice of the Court. Further, the Supreme Court in the subsequent decision in Official Liquidator (supra) has made it clear that the provisions of Article 14 of the Constitution would not be applicable to the cases of regularization of ad hoc, temporary, daily-wagers, casual employees and employees appointed on contract basis, as their appointment itself is illegal.
15. The reliance of the petitioners on the observations made in para 53 in the matter of State of Karnataka (supra) is not applicable to the petitioners as the grant of regular pay scale itself was not in accordance with law. The observation of the Supreme Court was made in respect of those cases wherein if regularization was made but the matter was not sub judice. In the present case the regularization was not cancelled on account of judgment in the matter of State of Karnataka v. Uma Devi (supra) but on the ground that the grant of regular pay scale was not in accordance with any rules or regulations. In the instant case, the show cause notice was issued, and after considering the reply of the petitioner, the impugned order was passed.
16. For the reasons mentioned herein above, the petitions are dismissed. However, in the facts of the case there shall not be any recovery from the petitioners towards the regular pay scale which has already been paid to the petitioners. No order asto costs.
J U D G E