AF^ (f' HIGH COURT OF CHHATTISGARH AT BILASPUR Writ Petitioa IS) No. 1794 of2008 Petitioner t- Raksh Kushwaha Versus Respondents State of Chhattisgarh S& another And sfac other connected inatters ^* __ Post for Judgment & Order on -20 day of March, 2009. Sd/- SatishK.Agnihutri -! Judge Jf.- ^vwiasww-sffi^w, SiaaSSiSaifi IN THE HIGH COURT OF CHHAmSGARH : BILASPUR Petitioner Respondents Versus 1. 2. W.P. (St No. 1794 of 2008 Rakesh Kushwaha, S/o Shri Dwarika Kushwaha, aged about 26 years, presently working as Peon in the office of C.G. Lok Ayog, Raipur, R/o Yadav Complex, Raipura, Raipur (C.G.) State of Chhattisgarh, through the Secretaiy, Department of General Administration, Mantralaya, D.K.S. Bhawan, Raipur (C.G.) Chhattisgarh Lok Ayog through Secretary, Mahadeo Ghat Road, Raipur (C.G.) Petitioner W.P. (S) No. 1796 of 2008 Shiv Kumar Lahri, S/o Shri Arjun Singh Lahri, aged about 27 years, presently working as Assistant Grade III in the office of C.G. Lok Ayog, Raipur, R/o Ambleshwardih, Tahsil - Patan, Distt. Durg Respondents Versus 1. 2. State of Chhattisgarh, through the Secretary, Department of General Administa-ation, Mantralaya, D.K.S. Bhawan, Raipur (C.G.) Chhattisgarh Lok Ayog through Secretary, Mahadeo Ghat Road, Raipur (C.G.) Petitioner Respondents Versus 1. 2. W.P. (S) No. 1798 of 2008 Sudev Kumar Yadav, S/o Shri Rameshwar Prasad Yadav, aged about 34 years, presently working as Assistant Grade III in fhe ofiice of C.G. Lok Ayog, Raipur, R/o Ganesh Nagar, Raipur (C.G.) State of Chhattisgarh, through the Secretaiy, Department of General Administration, Mantralaya, D.K.S. Bhawan, Raipur (C.G.) Chhattisgarh Lok Ayog through Secretary, Mahadeo Ghat Road, Raipur (C.G.) Petitioner ^.- Respondents Versus 1. 2. W.P. (S) No. 1799 of 2008 Ventesh Prasad Sahu, S/o Shri Gendram Sahu, aged about 29 years, presently working as Driver in the office of C.G. Lok Ayog, Raipur, R/o Ambleshwardih, Tahsil Patan, Distt. Durg (C.G.) State of Chhattisgarh, through the Secretary, Department of General Administration, Mantralaya, D.K.S. Bhawan, Raipur (C.G.) Chhattisgarh Lok Ayog through Secretary, Mahadeo Ghat Road, Raipur (C.G.) '•^i^'^W^S^iKS Petitioner Respondents Versus 1. 2. W.P. ISt No. 1815 of 2008 Durga Prasad Dewangan, S/o Sukhram Dewangan, aged about 36 years, presently working as Peon ui the office of C.G. Lok Ayog, Raipur, R/o Shahid Bhagat Singh Chowk, Tikarapara, Raipur (C.G.) State of Chhattisgarh, through the Secretary, Department of General Administration, Mantralaya, D.K.S. Bhawan, Raipur (C.G.) Chhattisgarh Lok Ayog through Secretary, Mahadeo Ghat Road, Raipur (C.G.) Petitioner W.P. (Sl No. 1816 of 2008 Rajmani Kushwaha, S/o Satya Narayan Kushwaha, aged about 38 years, presendy working as Peon in the office of C.G. Lok Ayog, Raipur, C/o office of C.G. Lok Ayog, Raipur (C.G.) Respondents Petidoners Versus 1. State of Chhattisgarh, through the Secretary, Department of General Administration, Manta-alaya, D.K.S. Bhawan, Raipur (C.G.) 2. Chhattisgarh Lok Ayog through Secretary, Mahadeo Ghat Road, Raipur (C.G.) And W.P. (S( No. 1898 of 2008 1. Manoj Agrawal, son of Dr. J.M.Agrawal, aged about 29 years, presently posted as Lower Divisional Clerk, Chhattisgarh Lok Ayog, Raipur, Chhattisgarh, resident of F>urani Basti, Turi Hatri, Kayast Para Chowk, Dista-ict Raipur, Chhattisgarh. 2. Rachna Agrawal, wife of Shri Manoj Agrawal, aged about 25 years, presently posted as Lower Divisional Clerk, Chhattisgarh Lok Ayog, Raipur, Chhattisgarh, resident of Purani Basti Turi Hatri, Kayast Para Chowk, District Raipur, Chhatdsgarh. 3. Rashmi Agrawal, wife of Shri Rakesh Agrawal, aged about 26 years, presently posted as Lower Divisional Clerk, Chhattisgarh Lok Ayog, Raipur, Chhattisgarh, resident of Purani Basti, Turi Hatri, District Raipur, Chhattisgarh. Respondents Versus 1. 2. State of Chhattisgarh, through the Secretary, Chattisgarh Lok Ayog, Mahadev Ghat Road, Raipur, Chhattisgarh. Secretary, Department of General Administo-ation, D.K.S. Bhawan, Mantralaya, Raipur, Chhattisgarh. 'S:3SsSsSSe3SSS pousd is JQJ (g/d - sjnxguuv) COOS'OT'T "o III - ap^O ^UBISISSV SB pa^moddB AitBproi SBA 800S/86ZT"oN (s)'d"M u? (AfpBA ^uina Aapng) jsuoppad aqj, • "(e/d - amxguuy) EOOS'6'SZ P3V3p -iap.io &\ unq o: paiuejg SBA SIBOS Sed jeinSaj '.isyBsjaqj, -}sod IUBOBA v uo sAtep gg jo pouad 13 JOj (g/d - ajnxsuuy) ZOOS'OT'ee uo IH - 3pv.iQ ^UB}STSSV SB pa^moddB A^piui SBA 8002/962,1 "ON (s)"d['M m [UWI Jsviny, Aiqg) ^suoppad sqj, • •(e/d - sjnxsuuy) woz'yei ps^p -isp-io ^q miq 0} pa^UBjg SBA a^eos Ad jetnSsJ 'jaijesjaqj, •^sod IUBOBA v uo sXBp 68 jo pouad v joj (g/j - ajnxsuuy) SOOS'OT 'Z uo uosj STS psiuroddB AI{BP;UI SBA 800Z/fr6ZT'c)N (S)'d'M "T (Bi.tBAqsn^ qsaspa) jauoppsd aqj, • : vsvft 3-re suoppsd assip jo (Bsodsip JQJ Aressaoau 's^o^j jauq sqj, •(a^j s^o^osnoo) ssSBA ^irep uo sjfep 68 jo pousd B joj p3:uroddB SJSM Aq^ pire 800Z"t7'T "J'S'A^ psnaoireo SBA 'sjsuoppad aq; jo sisod aAposdsaj aq^ uo uopBZiJBinSsj aq^ 'iuami^redaQ uop^j^siuTmpv rejausQ aq? Xq panssi ^.OOZ'fr-fr ps^p e-1/900e/99fr/T0e '"N -I3W3I sip pUB 2,OOZ'T'£ PS^P S-T/900Z;/99fr/OT '"N -isnsi sip 0:> ^trensjnd ^qsjsqA '(]:/<j ajnxsuuv) jspjo uomuioo aip SuiSuanBqo suoppsd ssaip paig 3ABq 'jndrey 'goXy ^<y~l qjBSsp^qqo atp m sisod AI -SSBp plIB IH-SSBp SnOTJBA UO §Up(-IOAaJSA OqA 'SjaUOppad 3T.[J, (600Z 'qo^I/M jo ^Q 'oT' siqi uo passad) ^ :fT •g •T aacrao QNV ANaBioanr "s^uapuodssj 3lp JOJ IBJ3U3Q SlBOOApV AtndsQ 'jro[Bqj, qSuTg ^ireAyqsBA uitS •sjauoppsd aq^ joj sa^aooApv 'SVQ o^umv T-ILIS Pirc ilBd ^-ipua^ip uqs (T Lqoqiugv -^ qsp^g uqg aiq.uoH :gs) VIQNI d0 NOIJ-nj-IJ-SNOO 3HJ, dO 95S a^^IJ,yv aaaNn NomjLad J.MM ^ 1^^ of 89 days on a vacant post. Thereafter, regular pay scale was granted to hira by order dated 28.10.2004 (Annexure - P/3). The petidoner (Ventesh Prasad Sahu) in W.P.(S) No. 1799/2008 was initially appointed as Driver on 7.10.2002 (Annexure - P/2) for a period of89 days on a vacant post. Thereafter, regLdar pay scale was granted to him by order dated 19.4.2004 (Annexure - P/3). The petitioner (Durga Prasad Dewangan) in W.P.(S) No. 1815/2008 was initially appointed as Peon on 8.1.2003 (Annexure - P/2) for a period of 89 days on a vacant post. Thereafter, regular pay scale was granted to him by order dated 30.12.2005 (Annexure - P/3). The petitioner (Rajmani Kushwaha) in W.P.(S) No. 1816/2008 was initially appointed as Peon on 7.10.2002 (Annexure - P/2) for a period of 89 days on a vacant post. Thereafter, regular pay scale was granted to him by order dated 19.4.2004 (Annexure - P/3). The petitioners (Manoj Agrawal, Rachna Agrawal and Rashmi Agrawal) in W.P.(S) No. 1898/2008 were initially appointed as Assistant Grade - III on 29.10.2002, 29.10.2002 and 6.10.2001, respectively (Annexure - P/2) on fixed pay for 89 days. Thereafter, they were appointed on probation for a period of two years by order dated 25.9.2003, 28.10.2004 and 29.3.2003, respectively (Annexure - P/3). The aforementioned seven writ petitions involve common question of facts and law therefore they are being disposed of by this common judgment and order. For the sake of convenience the documents filed in W.P.(S) No. 1815/2008 are being referred. The State Government vide circular dated 3.1.2007 (Annexure P/4) directed that the employees, who were appointed on daily wages and collector's Yate prior to 31.12.1988 may not be regularized. It was further j^n^ 7. ^.. stated in the circular that if any regularization is already raade the same shall be cancelled and recovery be made. Thereafter, by circular dated 4.4.2007 (Annexure P/5) the effect and operation offhe earlier circular dated 3.1.2007 was kept in abeyance. A show cause notice dated 15.5.2007 (Annexure P/6) was issued to fhe petitioners asto why their regularization be not cancelled and excess amount paid to them be not recovered. The petitioners submitted their reply (Annexure P/7). The impugned order dated 13.3.2008 shows that after considering the reply Eled by the petitioners their regularization on respective posts was cancelled and they were appointed on collector's rate for a period of 89 days. Shri Jitendra Pali and Shri Amrito Das, learned counsel appearing for the petitioners would submit that the petitioners have been avaifing regular pay scales from various dates till the unpugned orders were passed. The impugned orders could not have been passed without issuing proper show cause notice or without giving the petitioners an opportunity of hearing in the matter. The show cause notice, issued to the petitioners was a mere formality. Leamed counsel appearing for the petitioners heavily placed reliance on a decision of this Court in Sukhdev Malakar Vs. State ofC.G. fiB others1 and would submit that in the similarset of facts and circumstances, the pedtioners therein, were put back to their original status (to drawn daily wages as per Collector's rate), canceling their regularization. This Court rel}dng on a earlier decision in Sant Kuniar & Others Vs. State of ' (2008(2) C:G.L.J. 33} 8. 9. ^. Chhattisgarh and Others2, which was upheld by Hon'ble Supreme Court in Special Leave Petition (Civil) No. 17122/2006 (State of Chhattisgarh & others Vs. Sant Kumar 85 Others), allowed fhe petition, holding fhat the petitioner is entitled to regular pay scale from the date the same was withdrawn by the impugned order. Learned counsel appearing for the petitioners further placed reliance on a decision of Hon ble Supreme Court in Official Liquidator Vs. Dayanand and others3 where in para 75 it is observed that ".....a two-Judge Bench has attempted to dilute the Constitution Bench Judgment in State of Karnataka Vs. Uniadevi4, by suggesting that the said decision cannot be applied to a case where regularization has been sought for in pursuance ofArticle 14 ofthe Constitution and that the same is in conflict with the judgment of the seven-Judge Bench in Maneka Gandhi v. Union of Indias." Per contra, Shri Yashwant Singh Thakur, learned Deputy Advocate General would submit that the nature of appointment of the petitioners was not ui accordance with rules and as such the petitioners do not acquire any right to the post. It is well settled principle of law that the employee appointed de-hors the constitutional scheme of employment and not in accordance with law, has no right to continuation, reinstateinent or regularization in service. This is also not the case of the petitioners that they were legally appointed, in accordance with law. 2 W.P.No. 2.125/2002, 18.1.2006. 3 {(2008) 10 SCC 1) "(2006)4SCC1 5 (1978) 1 SCC'248 aa»®^MaSs61tS K^ ii&S 10. 11. ^w. ^ Shri Thakur further submits that firstly, the grant of regular pay scale was not regularization, and secondly, this was not in accordance with fhe cireular dated 3rd January, 2007, wherein it was envisaged that if daily-wager employees have completed three years of service in work-charged and contingency paid, may be regularized on grant of regular pay scale. The present petitioners were not working as work-charged and contingency employees, accordingly fhe iinpugned order was passed stating that the grant of regular pay scale was not in accordance with the provisions ofthe circular dated 3ri January, 2007. Having heard learned counsel appearing for the parties and havkig perused fhe pleadings and dociunents appended thereto it is apparent that the uiitial appointments of the petitioners were not in accordance with the constitutional scheme of employment. The applications were not invited from the similarly situated eligible candidates for appointment and as such it is violative of Articles 14 and 16 of the Constitution of India. The Hon'ble Supreme Court in State of Karnataka v. Unia Devi (supra) observed as under: "36. This Court also quoted with approval (at SCC p.131, para 69) the observations of this Court in Teri Oat Estates (P) Ltd. v. U.T., Chandigarh to the effect: (SCC p. 144, para 36) 36. We have no doubt in our mind that syinpathy or sentiment by itself cannot be a ground for passing an order in relation whereto the appellants miserably fail to establish a legal right. It is further trite that despite an extraordinary constitutional jurisdiction contained in Article 142 of the Constitution, this Court ordinarily would not pass an order which would be in contravention of a statutory provision." This decision kept in mind the distinction between "regularization" and "permanency" and laid down - that 12. 13. ^.. regularization is not and cannot be the mode of recruitment by any State. It also held that regularization cannot give permanence to an employee whose services are ad hoc in nature." If the appointments of the petitioners itself were illegal, the subsequent grant of regular pay scale and regularization does not change the status of the employees. The Supreme Court in the matter of Ashok Kumar Sonkar Vs. Union of India and others6 has observed as under:- "34. It is not a case where appointment was irregular. If an appointment is irregular, the same can be regularized. The court may not take serious note of an irregularity within the meaning of fhe provisions of the Act. But if an appointanent is illegal, it is non est in Che eye of law, which renders the appointment to be a nuUity." The Hon'ble Supreme Court in Municipal Corpn., Jabalpur Vs. Oin Prakash Dubey7 obseryed as under: 11. The question which, thus, arises for consideration, would be: Is there any distinction between "irregular appointment" and "illegal appointment"? The distinction between the two terms is apparent. In the event the appointment is made in total disregard of the constita-itional scheme as also the recruitment rules framed by the employer, which is State within the meaning of Article 12 of fhe Constitution of India, the recruitment would be an illegal one; whereas there may be cases where, alfhough, substantial compliance wifh the constitutional scheme as also the rules has been made, the appointment may be irregular in the sense that some provisions of the rules inight not have been strictly adhered to." ' {(2007) 4 SCC 54} ''{(2007) 1 SCC373}' l^ ^ 14. The reliance of the petitioner on the judgment of this Court in Sukhdev Malakar (supra) is not applicable to the present case as the ratio laid down by the Supreme Court in the matter of State of Karnataka v. Unia Devi (supra) was not brought to the notice of the Court. Further, the Supreme Court in the subsequent decision in Official Liquidator (supra) has made it clear that the provisions of Article 14 of the. Constitution would not be applicable to the cases of regularizadon of ad hoc, temporaiy, daily-wagers, casual employees and employees appointed on contract basis, as their appointanent itself is illegal. 15. The reliance of the pedtioners on the observations made in para 53 in the matter of State of Karnataka (supra) is not applicable to the petitioners as the grant of regular pay scale itself was not in accordance with law. The observa.tion of the Supreme Court was made in respect of those cases wherein if regularization was made but the matter was not sub judice. In the present case the regularization was not cancelled on account ofjudgment in the matter of State of Karnataka v. Unia Devi (supra) but on the ground that the grant of regular pay scale was not in accordance with any rules or regulations. In the instant case, the show cause notice was issued, and after considering the reply of the petitioner, the impugned order was passed. ^..16. For the reasons mentioned herein above, the pedtions are dismissed. However, in the facts of the case there shall not be any recovery froni the petitioners towards the regular pay scale which has already been paid to the petitioners. No order asto costs. -— Tliakur Sd/- SatishK.Agnihotri Sudge