Chattisgarh High Court
Sagar Verma vs State Of Chhattisgarh on 16 January, 2025
1
2025:CGHC:3166
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
WPS No. 2800 of 2019
1 - Sagar Verma S/o Shri Dev Narayan Verma Aged About 35 Years
House No. 240 Jawahar Nagar, Durg, Disrtict- Durg, Chhattisgarh., District
: Durg, Chhattisgarh
... Petitioner(s)
versus
1 - State Of Chhattisgarh through Secretary, Health and Family Welfare
Department, Mahanadi Bhawan, New Mantralaya, Atal Nagar, Raipur,
Chhattisgarh.,District:Raipur,Chhattisgarh
2 - The Director Indian System Of Medicine and Homeopathy, Old Nurses
Hostel Behind Old Mantralaya Disrtict- Raipur, Chhattisgarh., District :
Raipur,Chhattisgarh
3 - District Ayurved Officer, Disrtict Ayurved Office Durg, Disrtict- Durg,
Chhattisgarh., District : Durg, Chhattisgarh
... Respondent(s)
-------------------------------------------------------------------------------------------
For the Petitioner :Mr. Prakash Tiwari, Advocate.
For State :Mrs. Mukta Tripathi, PL.
S.B.: Hon’ble Shri Parth Prateem Sahu, Judge
Order On Board
16/01/2025
Digitally
signed
NISHA
DUBEY
by
NISHA
1. Petitioner has filed this writ petition seeking following reliefs:-
DUBEY
“10.1 That, this Hon’ble Court may kindly be pleased to call
2for the entire records pertaining to the case of petitioner.
10.2 That, this Hon’ble Court may kindly be pleased to set
aside the order impugned dated 30.3.2019 (Annexure-P/1)
issued by the office of respondent No.3.
10.3 That, this Hon’ble Court may kindly be pleased to
issue writ/order/direction to direct the respondent
authorities to reinstate the service of petitioner on regular
basis with all consequential benefits.
10.4 That, this Hon’ble Court may kindly be pleased to
grant any other relief, as it may deem fit.”
2. Learned counsel for petitioner would submit that petitioner
was appointed by respondent No.3 on 9.7.2008 as Computer
Operator on Daily Wage basis. The order of appointment
Annexure-P/2 was also issued in this regard, order of
appointment is also forwarded to respondent No.2 and
Accounts Section. Since the date of appointment, petitioner is
continuously working on the said post, but on daily wage rate.
He has not been regularised on the said post even after
completion of about more than 13 years. Earlier petitioner has
filed writ petition bearing WPS No.609 of 2019 before this
Court with a prayer that the respondents be directed to
consider candidature of petitioner for regularization on the
post of Computer Operator. Said writ petition came-up for
hearing on 30.1.2019 and was disposed of with a direction to
respondent No.2 to consider the claim of petitioner for
regularisation and further directed to consider the seniority of
the petitioner as Daily Wage emplyee and the claim to be
considered based on the recent circular issued by the State
Government in this regard. Respondent No.3 pursuant to
order Annexure-P/1 has cancelled the order of appointment
dated 9.7.2008 vide order dated 30.3.2019 on the ground that
there is no requirement of engagement of the petitioner as
there are expert Computer Operators available in the office.
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The said order is only on papers. Petitioner even thereafter is
continuously working as Computer Operator on Daily Wage
basis. Petitioner has obtained the information under Right to
Information Act about the payment made to him from the date
of appointment and as per information supplied on 14.5.2024,
he is continuously working since 23.7.2008 and he was made
payment till 27.4.2024, which prima facie shows that
Annexure-P/1, which is issued by respondent No.3, is not
acted upon and service of the petitioner was continuously
being taken as Computer Operator (Daily Wage Employee).
3. It is further contended by learned counsel for the petitioner
that pursuant to the decision of Hon’ble Supreme Court in
case of Secretary, State of Karnataka v. Umadevi, reported
in (2006) 4 SCC 1, the State Government has issued a
circular on 5.3.2008 for regularization of the Daily Wage
employees, temporary employees, ad-hoc employees and
pursuant thereto thousand of employees working were
regularised. Petitioner was appointed after issuance of the
circular for regularization of service of daily wage employee,
temporary employee, adhoc employee, but as the petitioner
has already completed about more than 13 years in service,
therefore, in view of the observation made by Hon’ble
Supreme Court in case of Umadevi (supra) and further in case
of Sheo Narain Nagar & others v. State of Uttar Pradesh
and others, reported in (2018) 13 SCC 432 petitioner is
entitled for consideration of his candidature for regularisation
on the post of Computer Operator. He contended that
petitioner fulfills all the requisite qualification for his
appointment on the post of Computer Operator as he is a
gradute and thereafter done Post Graduate Diploma in
Computer Application (PGDCA) Course from Pt. Ravi Shankar
Shukla University, Raipur, Chhattisgarh. He also contended
that under the hope of regularisation of service, petitioner as
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of now has crossed the age for further employment, therefore,
the case of petitioner has to be considered on humanitarian
ground also.
4. Learned State counsel opposes the submission made by
counsel for petitioner and would submit that it is not in dispute
that the petitioner was initially engaged as Computer Operator
on daily wage basis, however, in the year 2019, the authority,
who had appointed the petitioner as Daily Wage employee
has cancelled his appointment vide order dated 30.3.2019,
hence, petitioner is not entitled for the relief as sought for in
the writ petition. However, upon asking, learned counsel for
the State submits that as per her information based on the
instruction received from the concerned department, petitioner
is still working as Computer Operator on Daily Wage basis.
5. Heard learned counsel for the respective parties and perused
the documents enclosed along with writ petition.
6. Petitioner has enclosed the order of appointment issued by
respondent No.3 on 9.7.2008 as Annexure-P/2, which shows
that the petitioner was engaged as Computer Operator on
Daily Wage basis on Collectorate rate. Petitioner has also
enclosed mark-sheets of his qualification from which it is
appearing that petitioner is Bachelor of Arts (B.A.) graduate.
He completed PGDCA course from Pt. Ravi Shanker Shukla
University, Raipur, Chhattisgarh and Modern Office
Management Course from Maharshi Mahesh Yogi Vedic
Vishwavidyalaya, District-Katni, Madhya Pradesh. After
completion of about 10 years of the service, petitioner has
approached this Court by way of filing a writ petition bearing
WPS No.609 of 2019, which was disposed of on 30.1.2019
and operating para of the order is extracted below for ready
reference:-
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” Without expressing any opinion on the merits of
the case so far as the entitlment is concerned,
this Court is of the opinion that ends of justice
would meet if the respondent No.2 is directed to
consider the claim of the petitioner for
regularisation . It is made clear while claim is
being considered the aspect of the petitioner’s
seniority in the department as Daily Wage
Employee would also taken note of and
appropriate orders would be passed. It is also
expected that while deciding the respondents
would aslo take into consideration the recent
circulars which the State has passed dealing with
the aspect of regularisation.”
7. Perusal of the aforementioned extracted para of the order
dated 30.1.2019 would show that this Court has directed
respondent No.2 to consider the claim of petitioner for
regularisation. Petitioner thereafter submitted a representation
before respondent No.2 on 11.2.2019, however, receipt seal is
of the office of respondent No.3. Annexure-P/6 is an order of
State Government constituting the Committee for examining
their case for regularisation, it is dated 8.3.2019.
Respondent/State in the reply has pleaded that the
appointment of petitioner was not after issuing the
advertisement for the appointment. There is no vacant
sanctioned post available and therefore service of petitioner
cannot be regularised. It is also pleaded that since the trained
Computer Operator is available in the department, there is no
requirement of the service of petitioner.
8. Respondents have not pleaded in specific terms that the
representation submitted by the petitioner pursuant to the
order passed by this Court before respondent No.3 was
forwarded to the respondent No.2 and any decision has been
taken by respondent No.2. In absence of any specific
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pleading, it is to be presumed that the order passed by this
Court in WPS No.609 fo 2019 dated 30.1.2019 has not been
complied with and the claim of the petitioner has not been
considered for his regularisation by the authority who was
directed by this Court. Respondent No.3 instead of forwarding
the representation submitted by petitioner after passing of an
order in WPS No.609 of 2019 dated 30.1.2019 has cancelled
the order of appointment dated 9.7.2008 on paper but
continued to take his service and made payment of wages
continuously.
9. Hon’ble Supreme Court in case of Umadevi(supra) has
observed thus:-
” 53. One aspect needs to be clarified. There may
be cases where irregular appointments (not
illegal appointments) as explained in S.V.
NARAYANAPPA , R.N.NANJUNDAPPA, and
B.N. NAGARAJAN, and referred to in paragraph
15 above, of duly qualified persons in duly
sanctioned vacant posts might have been made
and the employees have continued to work for
ten years or more but without the intervention of
orders of courts or of tribunals. The question of
regularization of the services of such employees
may have to be considered on merits in the light
of the principles settled by this Court in the cases
above referred to and in the light of this
judgment. In that context, the Union of India, the
State Governments and their instrumentalities
should take steps to regularize as a one time
measure, the services of such irregularly
appointed, who have worked for ten years or
more in duly sanctioned posts but not under
cover of orders of courts or of tribunals and
should further ensure that regular recruitments
are undertaken to fill those vacant sanctioned
posts that require to be filled up, in cases where
temporary employees or daily wagers are being
now employed. The process must be set in
motion within six months from this date. We also
7clarify that regularization, if any already made,
but not subjudice, need not be reopened based
on this judgment, but there should be no further
by-passing of the constitutional requirement and
regularizing or making permanent, those not duly
appointed as per the constitutional scheme.”
10. Pursuant to the decision of Hon’ble Supreme Court in case of
Umadevi (supra) and further considering the claim of
thousands of employees who were engaged on daily wage
basis for their regularisation the State Government had issued
circular dated 5.3.2008 for regularisation of Class-III & Class-
IV employees engaged on daily wage basis or temporary
basis. Under Clause-1(b), the cut off date for consideration of
employees for their regularisation is mentioned as they ought
to have been appointed from 1.1.1989 til 31.12.1997. The
date of issuance of the circular is dated 5.3.2008 and from the
date as mentioned it is prima facie appearring that the
employees who have completed 10 years or more of their
service as Daily Wage basis or temporary basis they are
required to be considered for regularisation. In the said
circular, it is also mentioned that if the vacant posts are not
available than the supernumerary post to be created for their
regularisation.
11.In the circular, case of Umadevi (supra) is also mentioned,
however, the respondents, as reflecting, in the case at hand
has appointed the petitioner on Daily Wage basis even
thereafter and kept him in service continuously for about more
than 13 years as of now. An employee who was engaged on
daily wage after issuance of circular and kept him continuously
engaged for more than 13 years, will not be permitted to be
exploited by an employer, who in this case is a State
Government.
8
12. Hon’ble Supreme Court in case of Sheo Narain Nagar and
others(supra) has observed thus:-
“7. When we consider the prevailing scenario, it
is painful to note that the decision in Umadevi (3)
has not been properly understood and rather
wrongly applied by various State Governments.
We have called for the data in the instant case to
ensure as to how many employees were working
on contract basis or ad-hoc basis or daily-wage
basis in different State departments. We can
take judicial notice that widely aforesaid practice
is being continued. Though this Court has
emphasised that incumbents should be
appointed on regular basis as per rules but new
devise of making appointment on contract basis
has been adopted, employment is offered on
daily wage basis etc. in exploitative forms. This
situation was not envisaged by Umadevi(3). The
prime intendment of the decision was that the
employment process should be by fair means
and not by back door entry and in the available
pay scale. That spirit of the Umadevi (3) has
been ignored and conveniently over looked by
various State Governments/ authorities. We
regretfully make the observation that Umadevi
(3) has not be implemented in its true spirit and
has not been followed in its pith and substance.
It is being used only as a tool for not regularizing
the services of incumbents. They are being
continued in service without payment of due
salary for which they are entitled on the basis of
Article 14, 16 read with Article 34 (1)(d) of the
Constitution of India as if they have no
constitutional protection as envisaged in D.S.
Nakara v. Union of India, AIR 1983 SC 130 from
cradle to grave. In heydays of life they are
serving on exploitative terms with no guarantee
of livelihood to be continued and in old age they
are going to be destituted, there being no
provision for pension, retiral benefits etc. There
is clear contravention of constitutional provisions
and aspiration of down trodden class. They do
have equal rights and to make them equals they
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require protection and cannot be dealt with
arbitrarily. The kind of treatment meted out is not
only bad but equally unconstitutional and is
denial of rights. We have to strike a balance to
really implement the ideology of Umadevi(3).
Thus, the time has come to stop the situation
where Umadevi (3) can be permitted to be
flouted, whereas, this Court has interdicted such
employment way back in the year 2006. The
employment cannot be on exploitative terms,
whereas Umadevi(3) laid down that there should
not be back door entry and every post should be
filled by regular employment, but a new device
has been adopted for making appointment on
payment of paltry system on contract/adhoc
basis or otherwise. This kind of action is not
permissible, when we consider the pith and
substance of true spirit in Umadevi(3).”
13. In the aforementioned decision Hon’ble Supreme Court has
considered that the employees who have been engaged on
temporary basis or daily wage basis be not exploited on the
hands of State or the employer.
14. Upon considering the entirety of the facts and circumstances
of the case, decision of Hon’ble Supreme Court as discussed
above; the circular issued by the State Government dated
5.3.2008 and further considering that this Court in WPS
No.609 of 2019 has earlier issued a direction to consider the
claim of the petitioner for regularisation at the end of
respondent No.2, however, till date respondent No.2 has not
considered the claim of petitioner for regularisation, State
Government has already constituted the Committee for
examing cases of regularization vide order dated 8.3.2019,
therefore, writ petition, at this stage, is disposed of directing
respondent No.1 & 2 to consider the claim of the petitioner for
regularisation, keeping in mind the decision of Hon’ble
Supreme Court in case of Umadevi (supra) and Sheo Narain
10
Nagar (supra) as also the circular issued by the State
Government dated 5.3.2008, and also that since the date of
appointment even after issuance of the order Annexure-P/1,
petitioner is continuously kept under employemnet as Daily
Wage employee for about more than 13 ½ years.
15.Let respondents No.1 & 2 consider and take decision on the
claim of the petitioner expeditiously adopting humanitarian
approach, sympathytically, considering that the petitioner
while continuing service has crossed maximum age as
prescribed under the service rules of the State Government,
expeditiously, preferably within a period of 4 months from the
date of receipt of the order of this Court.
16. Even after issuance of the letter Annexure-P/1 dated
30.3.2019 cancelling the appointment order dated 9.7.2008
petitioner is undisputedly continuously engaged in service and
he is being regularly paid the wages, and hence letter
Annexure-P/1 is quashed.
Sd/-
(Parth Prateem Sahu)
Judge
Nisha
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