/' '8i^i^i'.il.& ^ i*WU3.:£ W •^£H ^ i'?c7&^ IN THE HIGH COURT OFCHHATTISGARH BILASPUR PETITIONERS < ^y^ _-w^ '^ <;• 1. 2. 3. ^-4. 5. 6. 7. ^ 8. 9. Writ Petition (S) NoM of2011 Ram Gopal Pandey, aged 57 years S/o Shri Mathura Prasad Pandey Field Assistant, Water Resources Department Khamhar Pakur, Lailunga Distt. Raigarh (C.G.) Dhruw Narayan Pandey, aged 53 years. S/o Shri Chandra Bhushan Pandey Field Assistant, Wafer Resources Department Khamhar Pakur, Lailunga Distt. Raigarh (C.G.) Manohar Lal Sao, aged 51 years S/o Shri Rathorani Field Assistant, Water Resources Department Khamhar Pakur, Lailunga Distt. Raigarh (C.G.) Rameshwar Prasad Gupta, aged 54 years S/o Shri Shri Munshi Sao Field Assistant, Water Resources Department KhamharPakur, Lailunga Distt. Raigarh (C.G.) Gajanand Sahu aged 54 years S/o Shri Dhaneshwar Sahu Field Assistant,Water Resources Department Khamhar Pakur, Lailunga Distt. Raigarh (C.G.) Kailash Das Mahant, aged 54 years ;S/o Shri Yogendra Kumar Sinha Chowkidar, Water Resources Department Khamhar Pakur, Lailunga Distt. Raigai-h (C.G.) Mangal Singh Rawat aged 54 years , S/o Shri Dukhiram, Chowkidar,Water Resources Department IChamhar Pakur, Lailunga Distt. Raigarh (C.G.) Pyandas Mahant aged 59 years S/o Shri Sukhdeo Mah.ant Chowkidar Water Resource Departinent Khamhar Pakur, Lailunga District Raigarh Arjun aged 49 years S/.o Shri Ledaram Peon, Water Resource Department Khamhar Pakur, Lailunga District Raigarh /10. / ;-• RESPONDENTS Birbal aged 45 years S/o Shri Ramratan Peon.Water Resource Department Khamhar Pakur, Lailunga District Raigarh ,11. Nanhiram aged 44 years S/o Shri Rajau Peon, Water Resource Department Khamhar Pakur, Lailunga District Raigarh /12. Bhunesharaged41 years S/oShriSukdas Peon, Water Resource Department Khainhar Pakur, Lailunga District Raigarh /13. Firan aged 41 years S/o Shri Chiruram Peon, Water Resburce Department Khamhar Pakur, Lailunga District Raigarh -14. Roopdhan aged 42 years . S/oShriKariya Peon.Water Resource Department Khamhar Pakur, Lailunga District Raigarh ^1-5. Pardeshi aged 42 years S/oShriDhuran .. Peon, Water Resource Department Khamhar Pakur, Lailunga District Raigarh ^--16. Satteram aged 42 years S/o ShriKadamSai Pepn, Water Resource Department Khamhar Pakur, Lailunga District Raigarh VERSUS 1. State of Chhattisgarh Through the Secretary Water Resource Department, D.K.S. Bhawan, Manta-alaya, Raipur (C.G.) 2. The Principal Chief Engineer Water Resource Department, D.K.S. Bhawan, Mantralaya, Raipur (C.G.) 3. The ChiefEngineer, '/" ...... " „ " Water Resource Department, Hasdeo Kachhar District Bilaspur (C.G.) '4. -5. Superintendent Engirieer, Water Resource Department District -Raigarh Executive Engineer, Water Resource Department District -Raigarh (C.G.) WRIT PETITION UNDER ARTICLE 226 OF THECONSTITUTION OF INDIA AFi^ HIGH COURT OF CHHATTISGARH AT BILASP1 PETITIONER WRIT PETITION (S) No. 1318 of 2011 Ram Gopal Pandey & Others. RESPONDENTS VERSUS State ofChhattisgarh & Others. WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA SB^Hon'ble^ShriSatish ICAgnihotn, J. Present: Shri J.N.Nande, Advocate for the petitioners. Shri A.V.Shridhar, Panel Lawyer for the State/respondenfs. ORDER(ORAL) (Passed on 17th day ofMarch, 2011) By this petition, the petitioners seek a writ in the nature of mandamus to consider the seniority ofthe petitioners and re-fix the pay scale and also to grant the difference of monetary benefits from the date oftheir initialjoining. Learned counsel appearing for the petitioners submits that initially the petitioners were appointed on temporary basis in the year 1988. The General Administration Department of the then State of Madhya Pradesh, vide memo dated 15.10.1997, directed all the departments to regularize the daily wager employees who were appointed prior to 31.12.1988. But due to negligence of the respondent authorities, the petitioners were regularized in the year 2005. Thus, they have been deprived ofthe benefit ofregular pay scale and seniority. On the other hand, leamed counsel appearing for the State/respondents submits that the initial appointment of the petitioners' itself was not in accordance with the constitutional '%, % Si Si scheme of employment. However, they were considered for regularization later on but they cannot claim regularization as a matter ofright from the date oftheir initial appointment. Heard leamed counsel appearing for the parties, perused the pleadings and documents appended thereto. On pemsal of the order of regularization dated 17.11.2005 (Armexure P/2), and posting order dated 26.11.2005, it is evident that the petitioners were appointed on daily wages basis, not in accordance with law and constitutional scheme of employment. The claim of the petitioners is for regularization on the basis of earlier circular dated 15.10.1971 (Annexure P/l) as the petitioners were subsequently regularized by order dated 17.11.2005. The question which arises for consideration is asto whether an employee engaged in service on daily wages basis is entitled to be regularized on the basis of executive instmctions issued by the State Govemment, it is well settled principle of law that any appoiatment either on daily wages basis, temporary or conta-act basis, de hors the constitutional scheme of employment, is illegal and illegal appointment cannot be regularized even by the State Govemment, invoking Article 162 of the Constitution of India. Thus, the grievance of the petitioner that they are not being regularized w.e.f. the back date, has no basis as appointment ofthe petitioners was illegal. Further, no appointment order has been produced by the petitioners. 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'l1 9ef9S'i. l T.,^ ofdeceased employees, for the purpose ofthis case it is not necessary to elaborate that aspect. 31. The ratio of the above noted three judgments is that in terms of Section 4 of the 1959 Act, every public employer is duty- bound to notify the vacancies to the concemed employment exchange so as to enable it to sponsor the names of 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 published in the newspapers or announcements made on radio/television. 60. In our opinion, there is no merit in the submission of the leamed senior counsel. If the initial appointments of the respondents are found to be illegal per se, the direction given by the High Court for their reinstatement with consequential benefits cannot be approved by relying upon the so-called regularization of their 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 of eligible 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 to the appointments of the respondents was produced before the High Court and none has been produced before this Court." 9. In respect ofthe regularization ofthe temporary, ad hoc and daily wages employee, the Supreme Court in State of Rajasthan and Others v. Daya Lal and Others beld as under : (2011)2-6cc429 "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 of the 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 m Articles 14 and 16 should be scmpulously followed 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 ofthe 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 of service by a 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 ofyears, let alone service for one or two years, will not entitle such employee to claim regularisation, if he is not working against a sanctioned post. Sympathy and sentiment cannot be grounds for passing any order of regularization m the absence of a legal right." (iii) xxx x xx (iv) xxx x xx (v) xxx x xx 10. Applying the well settled principles of law to the facts ofthe case as aforestated on hand, the petitioners are not entitled to relief of seniority and pay scale w.e.f. the date of regularization of other similarly situated employees in pursuance of the memo dated 15.10.1997. 11. As a result, the petition being bereft of merit, is dismissed. •ai • Amit tistiK.Ag1 Judge