»—S:i<ti; ^{^. f zro ^- IN THE HIGH COURT OF CHHATTISGARH, AT - BILASPUR Writ Petition fServicel No. f^ ]5~ OF 2007 .^"" PETITIQNER ^ /bftKHAN LAL YADAV, AGED -40 YEARS, lfr' ,.••^1^ SON OF PANCHU YADAV, ')f6^- ,.• WORKING AS - CHOWKIDAR, .^y.''""^^:-"'" AT - JANPAD PANCHAYAT, ABHANPUR, X-' y' RESPQN^ENTS DISTRICT - RAIPUR (C. G.) R/0 ABHANPUR, DISTRICT - RAIPUR (C. G.) VERSUS 1. y 4. STATE OF CHHATTISGARH, THROUGH - THE SECRETARY, PANCHAYAT & RURAL DEVELOPMENT DEPARTMENT, MANTRALAYA D. K. S. BHAWAN, RAIPUR(C. G.) DEVELOPMENT COMMISSIONER, CHHATTISGARH, H. Q. - RAIPUR (C. G.) THE COLLECTOR, DISTRICT - RAIPUR (C. G.) CHIEF EXECUTIVE OFFICER, JANPAD PANCHAYAT, ABHANPUR, DISTRICT - RAIPUR (C. G.) PUNU RAM YADAV, CHOWKIDAR CUM FARRASH, JANPAD PANCHAYAT, PALLARI, DISTRICT - RAIPUR (C. G.) LACHCHHIRAM CHOWKIDAR CUM FARRASH JANPAD PANCHAYAT, PITHOURA, DISTRICT - MAHASAMUND (C. G.) Writ Petition U/A - 226 of Constitution of_India 6. 1 HIGH COURT OF CHHATnSGARH AT BILASPUR Writ Ptetition (S) No. 1215 Petitioner: Respondents: Versus Lakhaa Lal Yadav State ofCMiattisgarh an others Sin^e Bench; Hon'ble Mr. Justice Satish K. Agnihotr!, F^esent: Mr. R.K. Kesharwani, Advocate forthe petitioner. Mr. Vinay Pandey, Panel Laroyer for the State/ respondents. ORDBR (P^»edon 1*( day ofMarch, 2007) The followmg order of fhe Court is passed by SattsSi K. Agfd'bottl, J. 1. By this petition, the petitioner cliatlenges the validity of fhe impugned order dated 30.12.1997 (Aiuiexure P-7), whereunder the regularization of the petitiouer, earlier granted, was cauceUed. 2. The indisputable facts in nutshcH are that the petitioner was appointed vide order dated 8.1.1987 (Annexure P-1) at CoUector's rate for 89 days as Chowfcidar-cum-Fan'ash. Thereafter, fhe service of fhe petitioner was continued in the saine capacity after 2 or 3 days break in between. The petitioner was granted regular pay scale vide orier dated 4.12.1993 (Annexure P-2). 3. The petitioner has ffled this writ petition after a period ofabout 9 years without slating any reasons for iaordiaate delay. At this K.-\tf '^- r stage, the case of ttie petitioner caunot be considered so asto distuTb placemeut of other similarly situated einployees and farfher to impose heavy bui-den on the exchequer. Even ofherwise, the applicatioii of the petitioner was not in accordaace wifh the Constitutionat scheine of the einployinent. Tfae petitioaer was not appointed thiuugh open selection by iuviting applications froni otfaer similarly situated candidates. The petitioner has no right to fhe post ia view of catena ofdecisions laid down by fhe Honlile Supreme Court. 4. Leamed counsel appearing for fhe petitioner relied oa observation of the Hon'ble Supreiue Court in the case Madhya Pradesh aad others Vs. Yogesh others1 to the efFect fhat the case ofthe petitioner be consideTed for regularization. Madhya Pradesh aad otber observed as 5. The Supreme Court ia case of State of ofeliers Vs. Yogesh Chandra Dubey under: "10. It is neither in doubt uor in dispute that the respondents were uot appointed iu teiins of fhe Statutoiy Rules. Their services were tateen by fhe officera only to meet the exigencies of situation. No post was sanctioned. Vacancies were not notified. It is now trite fhat a State wifhin the meaning of Article 12 of the Constitution of India, whfle ofFering public employinen.t, inust compfy with the constitutional as also statutory requirements. Appointments to the posts must be made in terms of the existing rules. Regutenzation is not a mode of appointnieiit. If any I'ecruitm.ent is inade by way of regularization, tfae saine would mean a back-door appointnient, which does not have aay legal sanction." "12. A person, who had been appointed by a State upon foUowuig the Recruitment Rules, enjoys a status. A post uiust be cieatd aud/or saactioned before filling it up. The question recentty canie up ibr coasideiatiou in M.P. Housiag Board aiid anofher Vs. Manoj Shrivastava [2006)2 SCC 702], wherem itwas held:- "33. for tiie purpose of this inatter, we would proceed ou the basis fhat the 1961 Act is a special statute vis-a-vis the 1973 Act and the Rules frasasd thereunder. But ui fhe absence ofany conflict in the provisious of the said Act, the coaditions, of service includuig those relating to recruitnient as provided for ui tlie 1973 Act aiid the 1987 Rules would appty. Ifby reason ofthe latter, fhe appouitaiient is iavalid, the same caunot be vaUdated by taking rccourae to regularization. For fhe purpose of reydlarization which would confer oa the einployee concerued a pennanent status, fhere niust exist a post. However, we may hasteu to add fhat regularization itself does not iinply permaaency. We have used the term keeping in view fhe provisions offlie 1963 Rules." It was further opined: 'The appointment made by a person who has no aufhority therefoic would t»e void. A fortiori an appoiatmeat made in violatioa of the maadatory provisions ofthe stetute or constitutional obligation shaB also be void. If no appoiataient could t>e made iu tenns of the statute, such appouituient being not within the purview of the provisions of the Act, would be void; he cannot be brought wifhin the cadrc of peimaaeut employees, The definitions of "permanent employee" and "temporary eniployee" as contained in the Rules must, thus, be construed having regari to the object and purport sought to be achieved by the Act" 6. Iu view of the above stated decision, it was submitted by fhe counsel fhat fhe State be directed to take steps to GU up fhe vacant posts, ifauy, in accordance wifh law, in which event, the case ofthe petitioner may also be coasidered together with ofher eligible candidates. However, age bar, if aay, to the extent fhey had worked with tfae respondent/State. 7. The petitioner has ffled fhis petition after a long inordmate and unexplained delay of over 9 years. The petitioner has not been able to produce or subniit any reasons for condonation of such a long delay in filuig fhis petition. 8. It is well setfled fhat High Court in exercise ofits discretion does not ordinEu-fly assist fhe tardy aud fhe indolent or the acquiescent and tfae lefhai^ic as the belated approach may have fhe efiect of inflicting not only hardship as iuconvenience but also iajustice ou ttiird parties. {See JeigAish Narsiin Mtittleir Va. The State ofBihar & athera^, P.S. ScieiGslvasweifng 7s. jgtate of TmnU NaiSu3. Stdte of ^.P. & others 7s. Nemttlal othersft, Bum. Standeird Cs. Ltd. & others 7s. COTparaffsn Ltd. through Us Chaimuin Ss SSemsytng Director& anstker Vs. K. Themgcsppssn. & another6}. r 9. As a result and for fhe aforesaid reasoas, fhe writ petition is dismissed as not maintainable on fhe ground of delay in approachiag fhis Court. Sd/- Satish K. Agnihotri Judge ,.l {2006 {4j M.P.H.T. 321 (SC& AIR 1973 SC 1343 AIR 1974 SC 2271 (1986] 4 SCC 566 (1995) 4 SCC 172 (2006) 4 SCC 322 Subh^h r