Chattisgarh High Court
Ghanshyam Prasad Tiwari vs The State Of Chhattisgarh on 17 January, 2025
Author: Parth Prateem Sahu
Bench: Parth Prateem Sahu
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2025:CGHC:3161
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
WPS No. 4088 of 2020
1 - Ghanshyam Prasad Tiwari S/o Late Sukhdev Prasad Aged About 48 Years R/o
Village- Changurda, Post- Itar, Thana- Gatapar, Tahsil- Kairagarh, District -
Rajnandgaon (Chhattisgarh).
... Petitioner(s)
versus
1 - The State Of Chhattisgarh Through The Secretary, Department Of Forest, New
Mantralaya, Mahanadi Bhavan, Hasaud, Naya Raipur, District- Raipur
(Chhattisgarh)
2 - The Principal Chief Conservator Of Forest Head Quarter, Jail Road, Arenya
Bhavan Medical College Road, Raipur (Chhattisgarh).
3 - The Chief Conservator Of Forest, Durg Circle, Durg, District- Durg
(Chhattisgarh).
4 - The Conservator Of Forest, Durg Circle, Durg, District- Durg (Chhattisgarh)
5 - The Divisional Forest Officer Khairagarh Forest Division Khairagarh, District-
Rajnandgaon (Chhattisgarh)
... Respondent(s)
For Petitioner : Mr. Bharat Rajput, Advocate
For State : Ms. Mukta Tripathi, Panel Lawyer
(Hon’ble Shri Parth Prateem Sahu, Judge)
Order on Board
17/01/2025
1. Petitioner has filed this writ petition seeking following relief :
“10.1 That, this Hon’ble Court may kindly be
set-aside/quash the impugned order dated
25.11.2019 and further issue a direction to
the respondent authorities for consideration
of regularization of the services of petitioner
on the basis of order dated 16.05.2017.
10.2 Any other relief/order which may deem
fit and just in the facts and circumstances of
the case including award of the cost of the
petition may be given.”
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2. Learned counsel for petitioner submits that petitioner was initially appointed
as Watchman / Chowkidar on daily wage basis in the office of Divisional
Forest Office, Division – Khairagarh in the year 1989. He was discontinued as
daily wage employee in the year 2007 by oral instruction. Discontinuation of
engagement of petitioner as daily wage employee was challenged before
Labour Court. Case of petitioner was allowed vide award dated 30.05.2012.
He was directed to be reinstated in service without back-wages. Petitioner,
thereafter, is continuously working with respondents. Earlier, petitioner has
filed a writ petition bearing W.P.S. No. 7874 of 2018 which was disposed of
vide order dated 01.12.2018 directing respondents to consider case of
petitioner for regularization in the light of the award of Labour Court dated
30.05.2012 as also the order of Division Bench of this Court in the case of
Tukaram vs. State of Chhattisgarh which is an order dated 16.05.2017
passed in W.P.S. No. 1703 of 2015. Initially, when claim of petitioner was
considered, he was found eligible for regularization in service upon
assessment by Divisional Forest Officer. When even after receipt of report,
petitioner was not regularized in service, he filed a contempt petition and only
because of filing of contempt petition against higher officials, subsequently,
claim of petitioner was rejected by impugned order dated 25.11.2019. It is
contention of learned counsel for petitioner that while rejecting claim for
regularization of petitioner, respondents have considered that petitioner has
not completed ten years of service and he was not engaged against
sanctioned and vacant post which is contrary to the facts of the case, order of
Labour Court dated 30.05.2012 and further in contravention of Circular dated
05.03.2008 issued by State Government for regularization of daily wage /
temporary employee working in the Departments of State Government.
Petitioner from the date of reinstatement is continuously working.
3. Learned State counsel opposes the submission made by learned counsel for
petitioner and would submit that though petitioner was initially engaged in the
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year 1989, however, his services were discontinued in the year 2007 and as
per order Labour Court dated 30.05.2012, he was reinstated only in the year
2012 and therefore, it cannot be said that on the date of issuance of Circular
dated 05.03.2008, petitioner has completed ten years of service. She further
contended that benefit of Circular is to be given only to the person who were
engaged prior to 1997 and have completed ten years of service. She also
contended that specific reason has been assigned by respondent authorities
for not adverting to the claim of petitioner for regularization on the ground that
he was not engaged against sanctioned and vacant post.
4. I have heard learned counsel for the respective parties and also perused
documents annexed along with the record.
5. It is not in dispute that petitioner was initially engaged in the year 1989 as
Watchman / Chowkidar with the respondent and posted at Divisional Forest
Office, Khairagarh, his services were discontinued in the year 2007 by oral
order / instruction. Order of discontinuation of service was put to challenge
before Labour Court, Rajnandgaon and application submitted by petitioner
was allowed vide order dated 30.05.2012 directing reinstatement of
petitioner, he was reinstated and as per submission of learned counsel for
petitioner, he is still continuing as daily wage employee and not disputed by
learned State counsel.
6. In the aforementioned facts of the case when there is an order of competent
Court for reinstating service of petitioner, he was reinstated, it will have its
effect that petitioner continued in service since initial date of his engagement
i.e. from the year 1989 unless otherwise specified.
7. State Government has issued Circular dated 05.03.2008 for regularization of
service of daily wage employee / temporary employee and under Clause B, it
is mentioned that regularization of an employee engaged in between
01.01.1989 to 31.12.1997 as daily wage / temporary employee. In the said
Circular, under Clause 2 (VII) wherein it is specifically provided that
regularization be made against sanctioned and vacant post and it further
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mentions that wherever in the Department it is required, supernumerary post
be created. Clause 2 (VII) is extracted below for ready reference :
“(viii) नियमितिकरण स्वीकृत एवं रिक्त पद पर ही
किया जाएगा। इस हेतु जिन विभागों में आवश्यक
हो वहां सांख्येतर पद निर्मित किये जायें। यदि पद
ही कलेक्टर दर पर स्वीकृत हो तो स्वीकृत पदों
(दैनिक वेतन पर) को नियमित वेतनमान में
परिवर्तित (सृजित) करना होगा । ”
8. While rejecting claim of petitioner, Divisional Forest Officer vide Annexure-P/7
dated 25.11.2019 erred in rejecting claim of petitioner observing that
petitioner was discontinued from service in the year 2007 and petitioner has
not continuously worked for a period of ten years and further that he has not
worked against sanctioned and vacant post. Said observation / reason
assigned for rejecting claim for regularization of petitioner is contrary to the
order passed by Labour Court wherein petitioner has been reinstated which
is having effect of reinstating in service from initially date of his appointment
and further is in contravention of specific Clause under Circular dated
05.03.2008 as extracted above.
9. Division Bench of this Court while considering almost identical issue in case
of Tukaram Vs. State of Chhattisgarh passed in W.P.S. No. 1703 of 2015
and batch of writ petitions, has observed thus :
“21. In the landmark decision in the case of
Olga Tellis & Others v. Bombay Municipal
Corporation & Others, 1985 (3) SCC 545, the
Hon’ble Supreme Court in very categorical
terms dealing with Article 21 and comparing it
with the right to livelihood held that, “The
sweep of the right to life conferred by Article
21 is wide and far reaching. An equally
important facet of that right is the right to
livelihood because, no person can live without
the means of living, that is, the means of
livelihood. If the right to livelihood is not
treated as a part of the constitutional right to
live, the easiest way of depriving a person of
5his right to life would be to deprive him of his
means of livelihood. Right to work is the most
precious liberty that man possesses. It is most
precious liberty because, it sustains and
enables a man to live and the right to life thus
is a precious freedom. Life means something
more than mere animal existence and the
inhibition against the deprivation of life
extends to all those limits and faculties by
which life is enjoyed”.
22. Now if we look into the facts of the present
case, undisputedly, by now it has to be
accepted that these workmen were initially
appointed on different dates as mentioned in
the aforementioned chart. Perusal of the said
chart would reveal that all the workmen have
put in a considerable period of time from the
date of their appointment before they were
discontinued in service and after the order of
the Labour Court which in due course of time
has attained finality they have also been
reinstated. From the date of reinstatement
also till date all the workmen are still working
with the Respondents and from the date of
reinstatement also they have put in a
considerable period of time. All these workers
have been slogging with the Respondents with
a hope and legitimate expectation of being
regularized one day. Based upon the judgment
of Umadevi (supra), the State of Chhattisgarh
also has issued a circular on 5.3.2008. The
object of the said circular also was for
considering the persons who had completed
more than 10 years of service they should be
regularized. The alleged order of termination
of service of the daily wage workers was held
to be illegal by the Labour Court. The effect of
the termination order being set aside would
mean that the workmen remained in
continuous employment as if the order of
discontinuance never existed. All these
workmen as on date are all middle aged
persons and would not be now in a position for
getting a regular employment elsewhere.
23. Considering the fact that the Industrial
Disputes Act is a social welfare legislation and
the circular dated 5.3.2008 also being the
circular of the State Government issued
keeping in mind the welfare of the poor
workers and has been issued for the
promotion and welfare of the people ensuring
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equality and equity between the workers
appointed on daily wage basis and the post
against which these persons are discharging
so as to subserve the common good that can
occur to the workers for the long service
rendered by the respective workmen.
24. Once when we reach to the conclusion
that the implication of the order of dismissal,
removal or termination being set aside it has
to be construed as, the workers would be put
in the same position at which they were, but
for the illegal dismissal, removal or termination
order. If this analogy is applied to the facts of
the present cases then all the workmen before
this Court would squarely fall within the ambit
of the category of workers who would be
eligible for regularization in terms of the
circular dated 5.3.2008.
25. In view of the legal precedents
enumerated in the preceding paragraphs and
also considering the facts and circumstances
of the present cases, this Court is of the
opinion that the claim of these workmen for
consideration of regularization in terms of the
circular dated 5.3.2008 is just, proper and
legal.
26. Accordingly, these Writ Petitions are
allowed. The question of law discussed earlier
to be decided in these petitions is answered in
the affirmative in favour of the petitioners-
workers holding that they would not fall in the
category of litigious worker and that they
would be entitled for continuity of service for
the period they were out of employment while
they were litigating before the Labour Court.”
10. Order of Division Bench of this Court was put to challenge by State in S.L.P.
bearing S.L.P. (Civil) Diary No. 35123 of 2017 which came to be dismissed
vide order dated 22.01.2018, which is also not in dispute.
11. Considering aforementioned facts of the case and discussion made above as
also decision in case of Tukaram (supra), in the considered opinion of this
Court, respondent No. 5 committed error of law in rejecting claim of
regularization of petitioner which is not sustainable in the eyes of law.
Accordingly, order dated 25.11.2019 (Annexure-P/7) is quashed.
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12. Undisputedly, petitioner, till date, is continuously working for the work on
which he is engaged as daily wage employee and therefore, in the
aforementioned facts of the case, respondents are directed to consider case
of petitioner for regularization in accordance with Circular dated 05.03.2008
granting him advantage of continuity of service from date of his initial
engagement till date, subject to verifying facts. Let exercise of regularization
be completed within a period of three months from the date of receipt of this
order.
13. The writ petition is accordingly allowed in above terms.
Sd/-
Digitally (Parth Prateem Sahu) signed by JUDGE SHAYNA Shayna KADRI
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