Chattisgarh High Court
Suraj Prasad Soni & Ors vs State Of Chhattisgarh & Anr on 19 November, 2015
Author: Prashant Kumar Mishra
Bench: Prashant Kumar Mishra
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NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
WPS No. 1959 of 2014
1. Suraj Prasad Soni S/o Jhukuram Soni Aged About 48 Years
R/o Bemetara, P.S. Bemetara, Civil & Revenue Distt.
Bemetara C.G. Working As Section Writer, Tahsil Office
Bemetara, Distt. Bemetara C.G.
2. Motilal Sinha S/o Thanwarri Sinha Aged About 50 Years R/o
Patan, Distt. Durg. Civil & Revenue Distt. Durg C.G. Working
As Section Writer, Tahsil Office Patan, Distt. Durg. C.G.
3. Tilotma Dewangan D/o Sukhanandan Lal Dewangan Aged
About 49 Years, 51 years, R/o Bemetara, P.S. Bemetara,
Civil & Revenue Distt. Bemetara C.G. Working As Section
Writer, Tahsil Office Bemetara, Distt. Bemetara C.G.
---- Petitioner
Versus
1. State Of Chhattisgarh, through the Secretary, Department of
Revenue, Mahanadi Bawan, Naya Raipur, Dist. Raipur C.G.
2. The Collector, Distt. Durg. C.G
---- Respondent
For Petitioners Shri P.P. Sahu, Advocate For Respondent/State Shri P.K. Bhaduri, Govt. Advocate with Shri Sangarh Pandey, Dy. Govt. Advocate Hon'ble Shri Justice Prashant Kumar Mishra C A V Order 19/11/2015 2
1. In this petition under Article 226 of the Constitution of India the petitioners have prayed for quashment of the order dated 12-3-2014 (Annexure - P/1) passed by the State Government, Revenue and Disaster Management Department and for issuance of a writ of mandamus directing the respondents to regularize the petitioners' services on the post of Assistant Grade III from the date when the order of regularization of services of employees engaged in election duties have been passed or at least from the date of issuance of circular dated 5-3-2008 with all consequential benefits.
2. Indisputably, the petitioners were appointed as temporary Section Writer in the erstwhile Durg District Collectorate in the year 1988, 1990 & 1989 respectively. Presently the petitioner No.1-Suraj Prasad Soni is working in District Collectorate, Bemetara; whereas the petitioner No.2-Motilal Sinha is working in Tahsil Office, Patan, District Durg; and the petitioner No.3-Tilotma Dewangan is working in the Tahsil Office, Durg.
3. The petitioners had earlier preferred Original Applications bearing OA Nos.3742/1993, 3747/1993 & 3746/1993, respectively before the State Administrative Tribunal (for short 'the SAT'), which were disposed of by the SAT by order dated 2-12-1994 directing the Collector, Durg, to consider the 3 respective cases of the petitioners for appointment as Section Writers on regular basis as Lower Division Clerks against first available vacancies. For non-compliance of the said order, the petitioners had preferred contempt application bearing MA No.14/1996 before the SAT, which was eventually dismissed on 24-9-1997, however, when no steps were taken by the respondents, the petitioners again preferred WPS No.21/2012 before this Court, which was disposed of by order dated 22-1-2014 directing the respondents to consider the petitioners' case for regularization in terms of the circular dated 5-3-2008 and decide the same by a speaking order within a period of three months.
4. Pursuant to the said order, the State Government has now rejected the representation for regularization on the ground that the petitioners were not appointed under any selection process nor as ad hoc or daily wage employees, therefore, their case is not covered within the purview of the circular dated 5-3-2008.
5. It is argued by the learned counsel appearing for the petitioners that all the petitioners were appointed on temporary basis by issuing an order of appointment in terms of Rule 3 of the District Collectorate Regulation Part 15 Copying Section, as at that point of time services of few Section Writers were 4 terminated and there was need for appointment of Section Writers. The petitioners have continuously worked since thereafter and at present the petitioners have completed more than 25 years of service as temporary Section Writers. It is further argued that in the said view of the matter and for the fact that in an identical facts situation other similarly placed employees who were working in the successor State of Madhya Pradesh and similar orders were passed by the SAT in their favour have been granted the said benefit by the SAT have been regularized in the services pursuant to the order passed by the High Court of Madhya Pradesh in WP Nos.2762 & 2763 of 2010, therefore, the petitioners are also entitled to same relief.
6. On the other hand, learned counsel for the State would submit that in the State of Chhattisgarh similarly placed employees had preferred WP No.1472/2006 (Mukesh Mishra & Others The State of Chhattisgarh & Another) for regularization, which was dismissed by this Court by order dated 12-12-2006, therefore, the petitioners are not entitled for regularization.
7. I have heard learned counsel appearing for the parties, perused the pleadings and the documents appended thereto.
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8. It emerges from the record that after the order passed by the SAT in favour of the petitioners, some other similarly placed persons preferred OA No.389/1993 (Ram Bahadur Sharma & Others v. State of M.P. & Others). The said OA was also disposed of in terms of the order passed by the SAT in favour of the petitioners. Against the said order passed in Ram Bahadur Sharma (supra), the State of Madhya Pradesh preferred review application, which was dismissed by the SAT and thereafter, the State preferred WP No.1284/2002 (State of M.P. and Others v. Ram Bahadur Sharma & Others), which was dismissed by the Division Bench of the High Court of Madhya Pradesh on 31-1-2008.
9. The MP High Court in its order dated 5-3-2010 passed in WP No.2762/2010 (Bhupendra Kumar Dharya v. State of M.P. & Another) followed the order passed by the SAT in Ram Bahadur Sharma (supra), which, in turn, was decided on the basis of the order passed by the SAT in OA filed by the petitioners. Another order of similar nature was passed by the MP High Court on 5-3-2010 in WP No.2763/2010 (Ramshankar Chourasia v. State of M.P. & Another).
10. In Bhupendra Kumar Dharya (supra) & Ramshankar Chourasia (supra), the MP High Court has passed the following order :
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"Petitioner who was appointed initially as Section Writer has filed this petition claiming regularization in service on the ground that in the case of other similarly situated employees, the State Administrative Tribunal had directed to consider the cases of Section Writer for appointment to the post of L.D.C. in the regular set up against first available vacant post.
It is the case of the petitioner that the decision rendered by the Tribunal in O.A. No.389/1993 (Ram Bahadur Sharma Vs. State of Madhya Pradesh and others) decided on 13.05.1999 has been implemented in the cases of some employees and, therefore, petitioner is also entitled to similar benefits.
From the record, it is seen that after the order was passed by the Tribunal on 13.05.1999 in the case of Ram Bahadur Sharma (supra) a review application filed by the State Government was rejected and thereafter writ petition being W.P. No.1284/2002 (State of Madhya Pradesh and others Vs. Ram Bahadur Sharma and others) was filed, which was dismissed by the Division Bench of this court on 31.01.2008. In view of this, matter was allowed finally and respondents have granted benefit of the said order to the employees.
It is seen that the case of Ram Bahadur Sharma was decided on the basis of another order dated 02.12.1994 passed by the Tribunal in the case of Sainey Prasad Soni Vs. State of M.P. and others, passed in O.A. No.3743/1993.
In view of the fact that the petitioner is also similarly situated, there is no reason why the petitioner should be dealt in a different manner.
Accordingly, this petition is also
disposed of with a direction to give
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appointment on the regular basis in the post of L.D.C. as per directive issued by the Tribunal in the case of Ram Bahadur Sharma (supra) to the petitioner also.
For the present, petition is allowed and disposed of with the aforesaid directions."
11. The above background and history of the litigation between the petitioners and similarly placed persons working in the State of Madhya Pradesh would demonstrate that as back as in 1994 similar orders were passed in favour of all the persons and in the State of Madhya Pradesh they have been offered regular appointment.
12. When the earlier writ petition preferred by the petitioners was disposed of, this Court proceeded on the ground that since after dismissal of the writ petition in Mukesh Mishra (supra) the State Government has issued fresh circular dated 5-3-2008 for consideration of the cases of regularization of all such persons who were appointed prior to 31-12-1997, however, the representations preferred by the petitioners have been rejected by the order Annexure - P/1 on the ground that since they are neither daily wagers nor ad hoc employees, but were appointed temporarily, the circular dated 5-3-2008 does not apply. It is the stand of the State Government that temporary employees are not covered within the sweep of circular dated 5-3-2008, therefore, to appreciate the legality of 8 the said reasoning it becomes imperative to quote and refer to the contents of the circular dated 5-3-2008. The relevant part of the circular as occurred in clause (c), 2 & 3 reads thus :
c fnukad 01-01-1989 ls fnukad 31-12-1997 rd dh vof/k esa fu;qDr nSfud osruHkksxh@rnFkZ fu;qDr deZpkfj;ksa dk fu;fefrdj.k %& ekuuh; loksZPp U;k;ky; }kjk lfpo dukZVd jkT; ,oa vU; fo:) meknsoh ,oa vU; fo:) meknsoh ,oa vU; ¼2006½ 4 ,l-lh-lh- ds izdj.k esa fnukad 10-04-2006 dks vkns'k ikfjr dj ;g lkekU; funsZ'k fn;k gS fd dsoy ,d ckj@,d le; ds fy;s 10 o"kksZa ;k vf/kd le; ls fu;ekuqlkj Lohd`r inksa ij yxkrkj dk;Zjr nSfud osruHkksxh@rnFkZ@vLFkkbZ depkZ f j;k sa dks vfu;fer fu;qfDr ¼bjsZX;wyj vikbUVesaVl½ dks fu;fer djus dh dk;Zokgh dh tkuh pkfg, A 2- mijksDr ekuuh; mPpre U;k;ky; ds fu.kZ; ds ifjizs{; esa jkT; 'kklu }kjk lgkuqHkwfriwoZd fopkj dj nSfud osruHkksxh @rnFkZ :i ls fu;qDr deZpkfj;ksa dh fu;fefrdj.k dh izfØ;k fuEukuqlkj fu/kkZfjr dh tkrh gS %& xxx xxx xxx xxx xxx xxx xxx xxx xxx 3- ekuuh; mPpre U;k;ky; ds fu.kZ; esa ;g mYys[k gS fd fu;qfDr **voS/k** u jgh gks dsoy **vfu;fer** jgh gks rHkh fu;fefrdj.k ds fy;s fopkj fd;k tk ldsxk- bl laca/k esa vfu;fer fu;qfDr;ka mUgsa 9 ekuk tk;s ftuesa fu;qDr O;fDr lacaf/kr in ds fy;s lHkh vgZrk j[krk gS ijUrq fu;qfDr esa fu/kkZfjr izfØ;k dk ikyu ugha fd;k x;k gks - ,sls O;fDr fu;fefrdj.k gsrq ik=rk j[ksxk- ijarq ;fn dksbZ O;fDr vgZrk izkIr ugha gS ,oa mls fu;qDr fd;k x;k gS rks ,slh fu;qfDr voS/k fu;qfDr ekuh tk;sxh- fdarq fdlh O;fDr us fnukad 31-12-1997 ls iwoZ vgZrk izkIr dj yh gS ,oa mDr in dh vU; 'krksaZ dh iwfrZ djrk gks rks mls Hkh fu;fer fd;k tk;sxk -
13. It would, thus, be apparent that while issuing direction for regularization of daily wagers/ad hoc/temporary employees in Secretary, State of Karnataka and Others v. Umadevi (3) and Others reported in (2006) 4 SCC 1, the Supreme Court has not restricted the applicability of one time scheme for regularization only to daily wagers or ad hoc employees, but even temporary employees are also covered provided the appointment was not illegal, but only irregular. Such appointments, which were made in favour of persons who were not having the qualification at the relevant point of time, was held to be illegal appointment whereas such appointments in favour of persons who are qualified to hold the post at the relevant time, but were not appointed by following the selection process was considered as irregular appointment. It is not the case of the respondents that the petitioners were not having the requisite qualification at the 10 time when they were appointed as Section Writer on temporary basis, therefore, in view of the decision rendered by the Supreme Court in State of Karnataka and Others v. M.L. Kesari and Others reported in (2010) 9 SCC 247 the petitioners being qualified at the time of entry into service, their appointment was not illegal, but irregular, therefore, they are covered within the circular dated 5-3-2008.
14. In view of the above, since the circular dated 5-3-2008 was not in existence when Mukesh Mishra (supra) was decided by this Court, therefore, there being no enabling provision to consider regularization of the services as on 12.12.2006 when Mukesh Mishra (supra) was decided, therefore, the case of Mukesh Mishra (supra) is distinguishable.
15. The petitioners' earlier writ petition was disposed of by this Court on the basis of fresh cause of action in view of the circular dated 5-3-2008 and in the discussion made hereinabove, this Court has found that the circular dated 5-3-2008 is applicable in the present case and the finding to the contrary in the impugned order is wholly illegal as also for the reason that similarly placed persons have already been directed to be offered appointment on regular basis by the High Court of Madhya Pradesh, the present writ petition is allowed.
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16. Accordingly, the impugned order dated 12-3-2014 (Annexure
- P/1) is quashed. It is directed that the respective establishments shall issue necessary orders in favour of the petitioners for their regularization as Section Writers with effect from the date of this order.
17. Since it is the settled law that the order of regularization should be prospective and not retrospective, the petitioners are not entitled for consequential reliefs. (See: the decision of the Supreme Court in Union of India and others Vs. Sheela Rani reported in (2007) 15 SCC 230 and the decision of this Court in Nand Kumar Thakur v. State of Chhattisgarh & Others decided on 25-8-2015 in WPL No.197 of 2013).
18. As a sequel, the writ petition is allowed to the extent indicated above, leaving the parties to bear their own costs.
Sd/-
Judge Prashant Kumar Mishra Gowri