Writ A No. 36196 of 2001. Case: Girja Kishore and Others Vs State of U.P. Thru' D.M. Gorakhpur and Others. High Court of Allahabad (India)
| Case Number | Writ A No. 36196 of 2001 |
| Counsel | For Appellant: Vishnu Swaroop Srivastava and Shesh Kumar, Advs. and For Respondents: C.S.C. |
| Judges | Sudhir Agarwal, J. |
| Issue | Constitution of India - Articles 12, 14, 16, 226 |
| Citation | 2013 (10) ADJ 502, 2013 (IV) LLJ 691 All |
| Judgement Date | September 12, 2013 |
| Court | High Court of Allahabad (India) |
Order:
Sudhir Agarwal, J.
1. The writ petition having been restored vide order of date passed on Restoration Application, as requested by learned counsels for parties, I proceed to decide this matter finally at this stage. Heard Sri Shesh Kumar, learned counsel for the petitioner and learned Standing Counsel for the respondents.
2. This case is repetition of frequently visited litigation at the instance of illegal appointees, who are aspiring to get permanency/regularization on a post, which has been acquired and occupied by them, in a manner which is not consistent with the procedure for recruitment, and obviously continued on account of active support and collusion of appointing authority. A person, who entered a public office by committing breach of law with impunity, has come to this Court to obtain a seal of approval of his occupation so as to make it for all times to continue, without any intervention, and would confer a right upon him to such post in the garb of regularization or absorption etc. Another aspect of the argument advanced is that a person, even if entered service illegally, and, when competent authority, for whatever reason, intend to rectify his mistake by removing such illegal appointee, beneficiaries, come to this Court, obtain ex parte interim order and then continue to hold such post. After a long time, when the matter remained pending before this Court and interim order has continued, such person claim sympathy suggesting that his matter should be treated with a humane approach by conferring benefit initially given under the interim order, as a permanent one, even if on merits ultimately writ petitioner fails to make out any substantive case to succeed. In other words, an ex parte interim order having conferred benefit upon one of the party, should be constituted so as to cause a permanent loss to other side even if ultimately the writ petition fails.
3. In my view, both the submissions are thoroughly misconceived and deserve to fail outright.
4. The brief facts giving rise to the present dispute are that petitioner No. 1 was engaged as a Class IV employees against a substantive vacancy, caused due to the death of holder of the post one Ramagya Mishra. The competent appointing authority i.e. District Magistrate, Gorakhpur vide order dated 7.4.1993 appointed petitioner No. 1 for a period of 89 days on purely ad hoc basis with a clear stipulation that appointment is temporary and liable to be terminated at any point of time. The letter of appointment further states that after expiry of period of appointment i.e. 89 days, it shall automatically seize. The aforesaid appointment/engagement was extended from time to time and last extension was granted by order dated 13.6.2001 for the period of 8.6.2001 to 4.9.2001. Similar appointments were made in respect to petitioners No. 2, 3 and 4 and they were also granted extension from time to time.
5. Apprehending discontinuance, present writ petition was filed in November, 2001 seeking a writ of mandamus commanding respondents to allow petitioners to continue in service and do not discontinue them. Further mandamus was sought directing respondents to regularize petitioners on Class IV post, since working for more than seven years though with some artificial breaks.
6. Entertaining the writ petition, on 9.11.2001, this Court passed the following ex parte interim order:
List this petition on 22.11.2001 along with W.P. Nos. 30391 of 1995, 130 of 1996, and 36270 of 1995. The office will ensure that title of cases and names of parties are printed in the cause list. Till the next date of listing in case person junior than the petitioners are working then parties will maintain status quo.
7. Pursuant to the above orders, the petitioners continued to work.
8. Learned counsel for the petitioners contended that even if petitioners were not initially appointed after following procedure for recruitment provided for Class IV employees, still they are entitled for regularization having continued to work for more than seven years, when the writ petition was filed, and now almost 19 years since then, pursuant to ex parte interim order passed in November, 2001.
9. Learned Counsel for petitioners sought to rely on para 53 of the judgment in Secretary, State of Karnataka v. Uma Devi, AIR 2006 SC 1806: (2006) 4 SCC 1: LNIND 2006 SC 261: (2006) 2 MLJ 326: 2006-II-LLJ-722 and contended that Apex Court has carved out an exception in respect to such employees who have continued to work for ten years more, without intervention of the Courts and tribunal, and they are entitled to be considered for regularization. He also placed reliance on a learned Single Judge of this Court in Ramveer Singh and Others v. Gas Authority of India Ltd. (GAIL) and Others, 2007 (1) ESC 483 (All) in which it was held:
However, the Supreme Court in the case of Secretary, State of Karnataka v. Uma Devi (supra) has carved out an exception. In paragraph-53 of the said judgment, the Supreme Court held that if the persons appointed on ad hoc, casual or contract basis were duly qualified and were working against a sanctioned post and continued to work for several years without any intervention of an order of the Court, in such an eventuality, the process of regularisation could be made and if it was ultimately found that the employee was entitled for the relief, it would be possible for the Court to accordingly mould the relief.
10. Having given my anxious consideration, I do not find any force there to. In para 53 of the judgment, in Secretary, State of Karnataka v. Uma Devi (supra), the exception carved out by Apex Court is confined to the cases where the appointments are 'irregular' and not 'illegal' as explained in State of Mysore v. S.V. Narayanappa AIR 1967 SC 1071: LNIND 1966 SC 151, R.N. Nanjundappa v. T. Thimmiah AIR 1972 SC 1767: (1972) 1 SCC 409: LNIND 1971 SC 632: 1972-I-LLJ-565 and B.N. Nagrajan v. State of Karnataka AIR 1979 SC 1676: (1949) 4 SCC 507: LNIND 1979 SC 261: 1979-II-LLJ-209 (SC).
11. The distinction between "irregular" and "illegal" appointments as referred to in para 53 of the judgment in Secretary, State of Karnataka v. Uma Devi (supra) has been dealt with in a subsequent decision in State of M.P. and Others v. Lalit Kumar Verma: (2007) 1 SCC 575: LNIND 2006 SC 1034: 2007-I-LLJ-789 wherein para 12 it has been held:
12. 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 Constitutional scheme as also the recruitment rules framed by the employer, which is 'State' within the meaning of Article 12 of the Constitution of India, the recruitment would be an illegal one; whereas there may be cases where, although, substantial compliance with the constitutional scheme as also the rules have been made, the appointment may be irregular in the sense that some provisions of some rules might not have been strictly adhered to.
12. Learned counsel for the petitioners at this stage submitted that in Mineral Exploration Corpn. Employees' Union v. Mineral Exploration Corpn. Limited and Another, (2006) 6 SCC 310: LNIND 2006 SC 558: (2006) 4 MLJ 1212: 2006-III-LLJ-482, the Apex Court issued some direction for regularization of workmen who were continuing for a long time, referring to para 53 in Secretary, State of Karnataka v. Uma Devi (supra), therefore, the petitioners is also entitled. However, it would be useful to notice that relying on Mineral Exploration Corpn. Employees' Union v. Mineral Exploration Corpn. Limited and Another (supra), a similar argument was raised in State of M.P. and Others v. Lalit Kumar Verma (supra), but the same has been negatived by referring to para 39 of Mineral Exploration Corpn. Employees' Union v. Mineral Exploration Corpn. Limited and Another (supra), and the observations of Court in paras 13 to 16 of the judgment of State of M.P. and Others v. Lalit Kumar Verma (supra) are as under:
13. In National Fertilizers Ltd. v. Somvir Singh (supra) it has been held:
23. The contention of the learned counsel appearing on behalf of the respondents that the appointments were irregular and not illegal, cannot be accepted for more than one reason. They were appointed only on the basis of their applications. The Recruitment Rules were not followed. Even the Selection Committee had not been properly constituted. In view of the ban on employment, no recruitment was permissible in law. The reservation policy adopted by the appellant had not been maintained...
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