Madhya Pradesh High Court
Vinod Kumar Badgaiya vs The State Of Madhya Pradesh on 27 April, 2015
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Writ Petition No.13297/2010
27.4.2015.
Petitioner Vinod Kumar Badgaiya in person. He submits
that his counsel is abstaining from Court work on the call by Bar
Association. He disengages his counsel and seeks leave to
address on merits.
He is heard.
Vide this petition, petitioner seeks regularization and
extend of such benefits related to the regularization.
Initially engaged on daily wages on 26.6.1995 in Municipal
Corporation Katni, petitioners' services were dispensed by order
dated 8.3.1999. The petitioners alongwith other similarly
situated daily wagers approached this Court vide Writ Petition
No.2010/1999 and batch of other writ petitions. The petitions
were dismissed vide common order dated 29.7.1999;
whereagainst, the petitioner preferred a Letter Patent Appeal :
L.P.A.294/1999 whereby the Division Bench vide order-dated
30.10.2002 interfered with the order passed by learned Single
Judge and disposed of the appeal on ground that the petitioner
was not given opportunity of hearing. Observing thus, it was
held -
"11. In view of our preceding analysis, we think
that the order of the learned single Judge should be
set aside so that the competent authority of the
Municipal corporation can consider the matter
whether the appointments have been done in
accordance with Rules and necessary factors can be
looked into and the principles of natural justice are
followed. Accordingly we set aside the order of the
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learned single Judge and direct that the competent
authority of the Municipal Corporation, namely, the
Commissioner of the Corporation shall issue notice
to the employees whose services have been
terminated within two months. In addition to the
issuance of the show-cause notices, notices of
show-cause be served on the learned counsel for
the appellants. The learned counsel appearing for
the appellants have conceded to that it would
amount to issue of notice to the appellants. The
employees shall submit their representations to the
said authority within a period of eight weeks
therefrom and thereafter the commissioner shall
pass a cogent and reasoned order.
12. Though we have issued the aforesaid
directions no right shall accrue in favour of the
petitioners to lodge their claim that they should be
taken back in the services and allowed to work. We
say so because they are basically daily wages
workers. We only clarify that the Commissioner
shall pass appropriate order keeping in view the
circular, letter-circular and executive instructions
and any such document which govern the field. He
shall keep in mind that he has to play a fair role and
shall function independently without being
influenced. There is no need to state that the
Commissioner shall pass an independent and
individual order qua each employee without being
influenced by the earlier order of termiantion
passed. We hope and trust that the Commissioner
shall act with utmost objectivity and rationality and
ostracize the concept of prejudice from his mind.
The Commissioner shall also bear in mind that in a
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Writ Petition No.13297/2010
welfare State back-door entry is not appreciated as
it corrodes the base of public interest. This order is
restricted to the appellants before us."
That, in furtherance to the liberty granted to the Municipal
Corporation, the petitioner was given a show cause notice on
24.2.2003. After considering the reply filed by petitioner and
taking into consideration that the petitioner was not engaged on
daily wages by following the known procedure of recruitment,
the order was passed on 25.6.2003 in the following terms -
"Pursuant to the order passed by the Hon'ble High
Court dt. 30.10.2002 in Letters Patent Appeals and
in strict compliance of the same. I had given a
show-cause notice to you on 31.01.2003 requesting
you to show-cause within a period of 8 weeks from
the date of receipt of the copy of the show-cause
notice to demonstrate the manner of appointment
and your claim for regularization. It was requested
that you should produce all the relevant original
documents in your possession. Pursuant to which
you were called in person to appear before me with
all the original testimonials and showing the manner
in which you were appointed as daily wager in the
services of the Municipal Corporation, Katni.
That on the said date, you have failed to
produce original documents nor you have justified
by showing an appointment letter appointing you on
daily wage basis on the post of Skilled/Unskilled
Labour. Since you were given sufficient opportunity
and you were authorized to produce all the original
documents pertaining to your qualification and
other testimonials including the order of
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Writ Petition No.13297/2010
appointment, if any. Since you have only produced
the original documents regarding the qualification
held by you but in the absence of any paper
showing your appointment on the post.
That looking to the financial condition of the
Municipal Corporation, Katni and as the total
expenditure has already been increased to the
extent of 65% and as there is ban on the new
recruitment and as looking to the critical financial
position of the Corporation, the Corporation could
not deposit even the G.P.F./P.F. Contribution nor
there is salary distribution per month to the
employees already working in the Corporation and
in the wake of the ban of the State Government to
appoint fresh persons and if sanction is given and if
daily wagers are regularized, there would be
impediment in allowing them to work. Since there
are no vacant posts lying available. In view of this,
it is not possible to appoint you as Skilled/Unskilled
Labour."
Evidently, the petitioner was not engaged as there was no
vacant post with the Municipal Corporation. The petitioner has
allowed the order dated 25.06.2003 to attain finality and after a
period of about 7 years, he has approached this Court seeking
direction for regularization.
The petitioner since is not engaged with the Municipal
Corporation, no such direction can be given to reinstate the
petitioner and consider claim for regularization. In this context,
reference can be had of a decision rendered by the Apex Court
in National Fertilizers Ltd. v. Somvir Singh: (2006) 5 SCC 493,
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wherein it is held -
23. The contention of the learned counsel
appearing on behalf of the Respondents that the
appointments were irregular and not illegal cannot be accepted for more than one reason. They were appointed only on the basis of their applications. The Recruitment Rules were not followed. Even the Selection Committee had not been properly constituted. In view of the ban in employment, no recruitment was permissible in law. The reservation policy adopted by the appellant had not been maintained. Even cases of minorities had not been given due consideration.
24. The Constitution Bench thought of directing regularization of the services only of those employees whose appointments were irregular as explained in State of Mysore v. S.V.Narayanappa [(1967) 1 SCR 799], Nanjundappa v. T.Thimmiah & another [(1972) 2 SCR 799] and B.N.Nagarajan & others v. State of Karnataka & others [(1979) 3 SCR 937] wherein this Court observed: -
16. In B.N. Nagarajan v. State of Karnataka (1979) 3 SCR 937, this court clearly held that the words "regular" or "regularization" do not connote permanence and cannot be construed so as to convey an idea of the nature of tenure of appointments.
They are terms calculated to condone any procedural irregularities and are meant to cure only such defects as are attributable to methodology followed in making the appointments.
25. Judged by the standards laid down by this Court in the aforementioned decisions, the appointments of the Respondents are illegal. They do not, thus, have any legal right to continue in service."
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Writ Petition No.13297/2010Similarly, in State of U.P. v. Desh Raj: (2007) 1 SCC 257; it is held-
"7. Whatever may be the import and purport of such regularization rules, in view of the recent Constitution Bench decision of this Court in Secretary, State of Karnataka vs. Umadevi (2006) 4 SCC 1), it is now well-settled that the appointments, if made in violation of the constitutional scheme of equality as enshrined under Articles 14 and 16 of the Constitution of India, would be rendered illegal and, thus void ab initio. No regularization rules, therefore, could have been made by the State of Uttar Pradesh in derogation to the statutory or constitutional scheme." (Also see : State of Karnataka v. Gadilingappa and others : (2010) 2 SCC 728; Satya Prakash and others v. State of Bihar and others : (2010) 4 SCC 179; State of Rajasthan and others v. Daya Lal and others : (2011) 2 SCC 429; Union of India and others v. Vartak Labour Union : (2011) 4 SCC 200; Alka Ojha v. Rajasthan Public Service Commission and another : (2011) 9 SCC 438."
In view of above proposition of law, no case is made out by the petitioners seeking direction for regularization in service.
In the result, petition fails and is hereby dismissed. No costs.
(SANJAY YADAV)
vinod JUDGE