1 HIGH COURT OF MADHYA PRADESH: BENCH: INDORE (SINGLE BENCH: HON.MR.JUSTICE PRAKASH SHRIVASTAVA) WRIT PETITION NO.897/2010(S) Lalit S/o Ratanlal Malviya .... Petitioner Vs. State of MP through Principal Secretary & three others .... Respondent WRIT PETITION NO.1394/2003(S) Girishkumar Sharma S/o Late Narayandas Sharma .... Petitioner Vs. Managing Director, MP State Industrial Development Corporation & another .... Respondent For petitioner: Ku.Vandana Kasrekar, Advocate. For respondents: Mrs.Rashmi Pandit, Dy.GA. No.1 to 3. For respondent: None appears. No.4 ----------------------------------------------------------------------------------- Whether approved for reporting:- _______________________________________________________ O R D E R (Passed on 8th August, 2011) THIS order will also govern the disposal of Writ Petition 2 No.898/2010(S), 899/2010(S), 900/2010(S), 901/2010(S) and 902/2010(S). [2] These Writ Petitions have been filed by the petitioners' challenging the orders, rejecting their prayer for regularization in service on the post they are working. [3] The relevant details relating to the appointments of the petitioners' are as under:- Writ Petition Number Name of petitioner Date of initial appointment Post 897/2010 Lalit Malviya 8/2/1993 Lab Technician 898/2010 Omprakash Mistri 10/3/1986 -do- 899/2010 RameshChandra Namdev 16/11/1987 -do- 900/2010 Ganpat 2/11/1987 -do- 901/2010 Shivprasad Sen 15/7/1985 -do- 902/2010 Rakeshrao Awad 14/11/1991 Class IV employee [4] These Writ Petitioners' were initially appointed for a period of 89 days and their case is that they have been continued in service since then without any break. Their services were regularized by order dated 13/9/1999 passed by the Principal of the respondent No.3 College but they were not given the benefit of regularization, therefore, they had filed Writ Petition No.298/2003 before this Court with other similar petitions. The Writ Petitions were 3 disposed of by order dated 4/5/2005 with certain directions to the government to consider the proposal of the University regarding creation of posts. The Writ Appeals were also dismissed against the said order and in the contempt proceedings, a direction was issued to the respondents to comply with the order passed in the Writ Petitions. The State had thereafter passed the order dated 26/5/2009 stating that the circular dated 9/1/1990 relating to the regularization issued by the State does not apply to the daily rated employees of the university; therefore, the proposal for creation of post in the University was rejected. The Jt. Director, Higher Education had also sent the communication dated 22/6/2009 to the respondent No.3 stating that since the principal of the college is the appointing authority for appointment of Class IV employees, therefore, the entire proceedings in this regard will be taken at his level. The respondent No.3 thereafter, by the impugned order dated 12/9/2009 has rejected the petitioners' case for regularization. [5] Learned counsel appearing for the petitioner submitted that the respondent No3 Principal, Government Madhav Science College, while rejecting the case for regularization has not properly appreciated the claim of the petitioners in the light of the settled position in law. She has submitted the petitioners' are entitled to the appropriate relief in terms of the judgment of the Supreme Court in the matter of State of Karnataka and others Vs. M.L. Kesari and 4 others reported in 2010 (9) SCC 247 whereby the earlier judgment of the Supreme Court in the matter of State of Karnataka Vs. Umadevi (3) reported in 2006 (4) SCC 1 has been clarified. [6] Learned counsel for respondents has supported the impugned decision and submitted that no error has been committed by the respondent No.3 in rejecting the petitioners' claim for regularization. [7] I have heard the learned counsel for parties and perused the record. [9] The Supreme Court in the matter of Umadevi (supra) in para 53 has clarified that in case where the irregular appointments (not illegal appointments) of duly qualified persons in daily sanctioned post have been made and the employees have continued to work for 10 years or more but without the intervention of the orders of the Court or Tribunal, the question of regularization of services of such employees is to be considered on merit in light of the principles settled by the Supreme Court in this regard and for that necessary steps to regularize them as one time measure should be taken. [10] The Supreme Court in the matter of State of Karnataka and others Vs. M.L. Kesari (supra) has further clarified its earlier judgment in the matter of Umadevi by holding that:- “7:- It is evident from the above that there is an exception to the general principles against “regularisation” enunciated in Umadevi (3), if the following conditions are fulfilled: 5 (i) The employee concerned should have worked for 10 years or more in duly sanctioned post without the benefit or protection of the interim order of any court or tribunal. In other words, the State Government or its instrumentality should have employed the employee and continued him in service voluntarily and continuously for more than ten years. (ii) The appointment of such employee should not be illegal, even if irregular. Where the appointments are not made or continued against sanctioned posts or where the persons appointed do not possess the prescribed minimum qualifications, the appointments will be considered to be illegal. But where the person employed possessed the prescribed qualifications and was working against sanctioned posts, but had been selected without undergoing the process of open competitive selection, such appointments are considered to be irregular”. [11] What is meant by one time measure as observed in the matter of Umadevi (supra) has been clarified in the matter of M.L. Kesari (supra) by observing:- “10:- At the end of six months from the date of decision in Umadevi(3), cases of several daily-wage/ad hoc/casual employees were still pending before courts. Consequently, several departments and instrumentalities did not commence the one-time regularisation process. On the other hand, some government departments or instrumentalities undertook the one-time exercise excluding several employees from consideration either on the ground that their cases were pending in courts or due to sheer oversight. In such circumstances, the employees who were entitled to be considered in terms of para 53 of the decision in Umadevi (3), will not lose their right to be considered for regularisation, merely because the one-time exercise was completed without considering their cases, or because the six-month period mentioned in para 53 of Umadevi(3) has expired. The 6 one-time exercise should consider all daily-wage/ad hoc/casual employees who had put in 10 years of continuous service as on 10-4-2006 without availing the protection of any interim orders of courts or tribunals. If any employer had held the one time exercise in terms of para 53 of Umadevi(3), but did not consider the cases of some employees who were entitled to the benefit of para 53 of Umadevi(3), the employer concerned should consider their cases also, as a continuation of the one-time exercise. The one- time exercise will be concluded only when all the employees who are entitled to be considered in terms of para 53 of Umadevi(3), are so considered”. [12] The object of issuing such a direction in the matter of Umadevi (supra) has also been clarified in the matter of M.L.Kesri (supra) by observing:- “11:- The object behind the said direction in para 53 of Umadevi (3) is twofold. First is to ensure that those who have put in more than ten years of continuous service without the protection of any interim orders of courts or tribunals, before the date of decision in Umadevi (3) was rendered, are considered for regularisation in view of their long service. Second is to ensure that the departments/instrumentalities do not perpetuate the practice of employing persons on daily-wage/ad hoc- casual basis for long periods and then periodically regularise them on the ground that they have served for more than ten years, thereby defeating the constitutional or statutory provisions relating to recruitment and appointment. The true effect of the direction is that all persons who have worked for more than ten years as on 10-4-2006 [the date of decision in Umadevi(3)] without the protection of any interim order of any court or tribunal, in vacant posts, possessing the requisite qualification, are entitled to be considered for regularisation. The fact that the employer has not undertaken such exercise of regularisation within six months of the decision in Umadevi(3) or that such exercise was undertaken 7 only in regard to a limited few, will not disentitle such employees, the right to be considered for regularisation in terms of the above directions in Umadevi(3) as a one-time measure”. [13] The case of the petitioners ought to have been examined by respondents keeping in view the above principle. [14] The impugned order dated 12/9/2009 indicates that the case of the petitioners' has been rejected on the ground that the appointment of the petitioners' was not in accordance with the Service Recruitment Rules, the Roster was not followed and that they were not appointed against the regular post. [15] In the present matter, the impugned order passed by the respondents does not make it clear as to whether the appointment of the petitioner on their respective post was irregular or illegal appointment. Their case for regularization has not been rejected on the ground that they do not fulfill the minimum eligibility conditions prescribed under the Rules. It is also noticed that the petitioners' have placed on record the communication dated 13/10/2008 (Annexure P.12) issued by the respondent No.3 to show that the sanctioned post are lying vacant. This communication has not been disputed by the respondents. Referring to this communication, the petitioners have set up a case that they are working against the sanctioned post. [16] So far as the objection of the respondents that appointment of 8 the petitioner's was not as per Roster, is concerned, it has not been clarified by the respondents before this Court as to how the Roster has been violated. [17] In view of the aforesaid, the impugned orders passed by the respondent No.3, rejecting the petitioners' case for regularization cannot be sustained and are hereby set aside. The respondent No.3 is directed to consider the petitioners' case for regularization afresh keeping in view the law settled by the Supreme Court in the above noted judgments. [18] The Writ Petitions are allowed to the extent indicated above. [19] Original Order be kept in Writ Petition No.897/2010 and a copy thereof be placed in the record of connected Writ Petition No. 898/2010, 899/2010, 900/2010, 901/2010 and 902/2010. (Prakash Shrivastava) JUDGE VM