r f WfJL$CANW' ¥ \RESPORSEWTS ii BEFORE “13% MAXDFfa P ADEST§ @WE A wwm“ A33 ma: HIGH COURT OF CHHATTISGARH : BILASPUR WRIT PETITION (S) NO. 3799 of 2005 Single Bench : Hon’ble Shri Satish K. Agnihotri, J. Present :- Shri K.A.Ansari, Senior Advocate with Shri Vipin Singh, Advocate for the petitioner. Shri Sushil Dubey, Government Advocate for the State. (Delivered on .loIAday of March, 201 1) Challenge in this petition is to the legality and validity of the order dated 22.1.1998, whereby it was held that the appointment of the petitioner was made on regular pay—scale against two posts shown by mistake, wherein there was only one available post of Driver. Thus, the order of regularization held in the year 1996 may be cancelled. Further challenge is to the order dated 20.2.1998, whereby the regularization of the petitioner by order dated 20.8.1996 was cancelled. 2. The brief facts, in nutshell, are that the petitioner was initially appointed on daily wages basis, on the basis of interview for a period of 89 days on 15.12.1988 (Annexure A-4). Thereafter, he continued on the basis of daily wages for 89 days by orders passed from time to time. On 28.3.1992 (Annexure A-17), the petitioner was directed to submit his explanation asto on the basis of which order, he was continuing; when his appointment for the period of 89 days, came to an end on 28.2.1992. The petitioner submitted his response on 30.3.1992, stating that he was appointed by order dated 27.12.1991 for 89 days and on that PETITIONER Nasir Khan Versus RESPONDENTS The State of Madhya Pradesh (Now C.G.) & Others basis, he was continuing as such. He was informed again by the Project Administrator, Hasdev Aayakat Vikas Pradhikaran, Bilaspur (hereinafter referred to as “the Pradhz'karan") on 06.04.1992 (Annexure P—l9) that his last appointment for 89 days on daily wages basis had come to an end. Therefore, the petitioner was directed to discontinue. On 27.04.1992 (Annexure A—20), the payment for the work done by the petitioner from 29.02.1992 to 06.04.1992 was sanctioned. It appears, that the petitioner being aggrieved, preferred an application before the Presiding Officer, Labour Court, Bilaspur, in case No. 79 M.P.l.R. 92. The Labour Court passed the order on 20.10.1993 (Annexure A-22) directing reinstatement of the petitioner, as the discontinuation of the petitioner was not legal. Pursuant thereto, the petitioner was reappointed by order dated 10.01.1994 (Annexure A-24) subject to the decision of pending appeal before the Industrial Court. The order of the Labour Court dated 20.10.1993 (Annexure A- 22) was set aside by the Industrial Court on 30.03.1994 (Annexure A- 25) remitting back the matter for fresh consideration, after affording the opportunity of hearing to the parties. The petitioner, made an application on 17.06.1996 (Annexure A-26) for regularization of service, as according to him, he was appointed on daily wages basis on Contingency Fund at Collector’s rate. The petitioner was informed by the Project Administrator, the Pradhikaran, that his case for regularization was under consideration. Thereafter, the case pending before the Labour Court was withdrawn on 271996 (Annexure A-30). The Commissioner—cum—Chairman, the Pradhika’ran, by order dated 20.08.1996 (Annexure A—3 l) regularized the services of the petitioner on the regular establishment on a regular pay scale with a condition 3 that his services may be twminated at any tim6 with 0m month notica. Thereafter, by the impugned order dated 20.2.1998, the regularization Ofthe petitioner was cancelled. Thus, this petition. During pendency of this petition, it was informed that the petitioner has subsequently been regularized by order dated 19.1.2006, in accordance with the GAD circular dated 9. l .1990. iShri Ansari, learned senior counsel appearing for the petitioner submits that the appointment of the petitioner, as daily wages basis, was in accordance with law, as the name of the petitioner was forwarded by the employment exchange. Thus, the appointment of the petitioner was not illegal, it was irregular. Since, the appointment of the petitioner was irregular, the regularization of the petitioner was in accordance with law and the same could not have been cancelled without affording proper opportunity of hearing. Shri Ansari, further submits that the appointment of the petitioner was through proper selection, as he was interviewed on 26.9.1988 before the petitioner was appointed by order dated 15.12.1998 on daily wages basis. On the other hand, Shri Dubey, learned Government Advocate, appearing for the State/respondents would submit that the appointment of the petitioner was on daily wages basis for a period of 89 days, and thereafter, the petitioner was discontinued in service; The petitioner was regularized on mistaken believe that there were two available posts of Driver. ln fact, there was only one post and as such, it was informed by the Superintendent Engineer to the Commissioner—cutn— Chairman, the Pradhikaran, that the regularization of the petitioner was bad and as such, the steps may be taken to cancel the regularization, as two posts of Driver was not available in the regular a a e$tablishmcnt Th€reaftcr, the impugned ordar datad 20.2.1998 was passed. l0. Shri Dubey, further submits that since appointment 0f the petitioner was on daily wages basis, which was not in accordance with the constitutional scheme of employment or in accordance with the law, thus the regularization of the petitioner in the year 1996, even) otherwise, was not permissible by executive instructions, as it is well settled principle of law that only irregular appointments can be regularized nor the illegal appointment, as illegal appointment is non est. However, having regard to the facts situation, during pendency of the petition the petitioner was regularized by order dated 19.1 .2006, thus, this petition has become infructuous. l li The contention of learned counsel for the petitioner that if the tirst regularization by order dated 28.8.1996, is sustainable, the petitioner would be entitled to continuity and seniority, may be dismissed on thc ground that illegal appointment cannot be regularized. Having heard learned counsel appearing for the parties, perused the pleadings and documents appended thereto, it appears that the appointment of the petitioner on daily wages basis was not in accordance with law and it was de hors constitutional scheme of employment. Even the petitioner has failed to prove that his appointment was in accordance with law, that the selection was done on the basis of registration in employment exchange and the name of the petitioner was sponsored pursuant to the request made by the employer for sending all the eligible candidates for appointment on the post of Driver. Thus, the initial appointment oi‘the petitioner was not in consonance 'with the constitutional scheme of employment or in accordance with law. 13. The contention of Shri Ansari, that the appointment of the petitioner was through proper selection, as he was interviewed by the authority before he was appointed on daily wages basis for 89 days, is noticed to be rejected on a simple ground that if the selection has‘been made on open selection by inviting applications from all the eligible candidates or on request to the employment exchange to send names of all the eligible candidates for selection, the case of the petitioner would have been proper selection. It has neither been pleaded nor proved that on the request of the authority, the employment exchange has forwarded the names of all the eligible candidates for selection. Thus, the appointment was not in consonance with the constitutional scheme of employment. 14. The Supreme Court in State ofBz’har v. Upendra Narayan Singh and Others] wherein the identical issue was under consideration, observed as under :— “25. The equality clause enshrined in Article 16 mandates that every appointment t0 public posts or ojj‘ice should be made by open advertisement so as to enable all eligible persons to compete for selection on merit - Umesh Kumar Nagpal v. State of Haryana, UPSC v. Girish Jayantz' Lal Vaghela, State ofManipur v. Y. Token Singh and Municipal Corpn., Hyderabad v. P. Mary Manoranjani. Although, the Courts have carved out some exceptions to this rule, for example, compassionate appointment of the dependent of deceased employees, for the purpose of this case it is not necessary to elaborate that aspect. 31. The ratio of the above noted three judgments is that in terms ofSection 4 ofthe 1959 Act, every public employer is duty—bound to notijy the vacancies‘to the concerned employment exchange so as to enable it to sponsor the names 0f eligible candidates and also advertise the same in the newspapers having wider circulation, employment news bulletins, get announcement made on radio and television and consider all eligible candidates whose names may be forwarded by the employment exchange concerned and/or who may apply pursuant to the advertisement I l (2009)'5 scc 65 published in the newspapers 0r announcements made 0n radio/television. 60. In our opinion, there is no merit in the submission of the learned senior counsel. If the initial appointments ofthe respondents arefound to be illegal per se, the direction given by the High Courtfor their reinstatement with consequential benefits cannot be approved by relying upon the so—called regularization oftheir services. Had the respondents been appointed by the competent authority after issuing an advertisement or sending requisition to the employment exchange so as to enable the latter to sponsor the names ofeligible persons then they would have certainly produced the relevant documents before the High Court or at least before this Court. However, the fact of the matter is that none of the documents which could give a semblance of legitimacy tol’the appointments of the respondents was produced before the High Court and none has been produced before this Court. " 15. In respect of the regularization of the temporary, ad hoc and daily wages employee, the Supreme Court in State ofRajasthan and Others v. Daya Lal and 0thers2 held as under :- “12. We may at the outset refer to the following well- settled principles relating to regularisation and parity in pay, relevant in the context ofthese appeals: (i) The ‘High Courts, in exercising power under Article 226 ofthe Constitution will not issue directions for regularisation, . absorption or permanent continuance, unless the employees claiming regularisation 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 scrupulouslyfollowed and Courts should not issue a direction for regularisation of services of an employee which would be violative of the constitutional scheme. While something that is irregular for want of compliance with one of the elements in the process ofselection which does not go to the root of the process, can be regularised, back door entries, appointments contrary to the constitutional scheme and/or appointment of ineligible candidates cannot be regularised. (ii) Mere continuation ofservice by a temporary or ad hoe 'or daily—wage employee, under cover of some interim orders ofthe court, would not‘confer upon him 2 (2011) 2 scc 429 any rig/1t to be absorbed into service, as such service would be ”/z'ligiaus employment Even temporary, ad hoc 0r daily—wage service for a long number ofyears, let alone service for one 0r two years, will not entitle such employee t0 claim regularisation, if he is not working against a sanctioned post. Sympathy and sentiment cannot be grounds for passing any order of regularization in the absence ofa legal right. " cancellation of the regularization dated 20.2.1998 is bad”’in law, as being contrary to the policy of the State Government, contained in circular dated 9.1.1990 (Annexure R—2), does not merit acceptance. The appointment of the petitioner, as held in the preceding-para, was de hors the constitutional scheme 0f employment and as such, the same was illegal. Thus, the petitioner cannot get advantage of circular dated 9.1.1990, which was issued by the State Government, as the same wasissued in exercise of its power under Article 162 of the Constitution. 17. The Supreme Court in Official Liquidator v. Dayanand and 0thers3 held as under : “70. The shift in the Court’s approach became more prominent in A. Umarani v. Coop. Societies, decided by a three-Judge Bench, wherein it was held that the State cannot invoke Article 162 ofthe Constitutionfor regularisation ofthe appointments made in violation of the mandatory statutoryprovisions. " l8. For the reasons mentioned hereinabove, the petitioner was not entitled to any hearing before cancellation of regularization of illegal appointees by the impugned order dated 20.2.1998. The petitioner I " (2008) 10 SCC 1 (iii) X x x x x x (iv) x x X x x x (v) X x x . x x x pa 16. The contention of learned counsel for the petitioner that the [yék has been regularized subsequently by order dated 19.1.2006. The Coun does not express any opinion on the said order, as the same is not under consideration in this Court. 19. In View of foregoing, the writ petition is dismissed. No order asto costs. SdL Satish K. Agniizm‘ri ' Judge ashok