Surit Ram Patel v. State Of Chhattisgarh

: Mr. K. P. Sahu, Advocate. For State/Respondents : Ms. M. Asha, Panel Lawyer. Hon’ble Shri Justice Amitendra Kishore Prasad 28/07/2025 Order on Board

#1. This petition has been preferred by the petitioner under Article 227 of the Constitution of India, seeking following reliefs:- “10.1 That this Hon'ble Court may kindly be pleased to issue an appropriate writ, thereby quashing the impugned order dated 10.04.2019 (Annexure-P/1) and further be pleased to direct the respondent authorities to extend the benefits of regularization in favour of petitioner as extended by the respondent No.2 in favour of other identically placed employees.

10.2 That any other relief/order which may deem fit 2 and just in the facts and circumstances of the case including award of the cost of the petition may be given.”

#2. Brief facts of the case are that the petitioner was engaged as daily wager employee in the year 1985 under the respondent No.1 Department and since then the petitioner was discharging his duties in the respondent Department and stood discontinued in the year 1994, against which the petitioner filed an application before the Labour Court/Industrial Court and vide order dated

12.06.2006 passed by the Industrial Court, the petitioner was ordered to be reinstated in service and pursuant to the said order of the Industrial Court, the petitioner was reinstated in service on 10.07.2007. Subsequently, the State Government has issued a circular dated 05.03.2008 directing all departments to regularize the employees who have been appointed between

01.01.1989 to 31.12.1997 as daily wagers/ad-hoc employees. The issue as to whether the period for which the petitioner was discontinued should be taken as continuous service was considered by the Division Bench of this Court in the matter of Tukaram Vs. State of Chhattisgarh and others bearing WPS No.1703/2015 vide 16.05.2017 and other connected matters and persons who were litigating before the Labour Court during the period between 1989 to 1997 were held entitled for continuity in service. Thereafter the petitioner made request before the respondent authorities for regularization of his services, but no action was taken by the authorities concerned, therefore the petitioner filed a writ petition bearing Writ Petition (S) No. 3433 of 2018 before this Court and vide order dated 01.05.2018, the said writ petition was disposed of directing the Scrutiny Committee to examine the petitioner's claim for regularization in accordance with the terms and conditions of circular dated 05.03.2008. Thereafter, the petitioner made representation before the respondent authorities, but vide the impugned order (Annexure-P/1), the claim of the petitioner for regularization has been rejected by the respondent authorities, against which the present writ petition has been filed by the petitioner. 3

#3. Learned counsel for the petitioner submits that the impugned order passed by the respondent authorities is bad, illegal and contrary to the circular dated

05.03.2008 issued by the State Government itself. The similarly situated daily wage employees namely Ram Vilas Sahu and Khelap Ram have already been regularized vide Annexure-P/6, but the claim of the petitioner has wrongly been rejected by the respondent authorities. The petitioner's being discontinued in service has already been decided by the Division Bench of this Court in Tukaram (supra), despite that the case of the petitioner has not been considered. He further submits that in the earlier round of litigation, this Court vide order dated 01.05.2018 in WPS No.3433/2018 has already directed the Scrutiny Committee to the consider the case of the petitioner regularization and the petitioner was also deemed to have continued in service from the initial date of appointment, despite that the order impugned has been passed by the respondent authorities, which is illegal and arbitrary. Further, counsel for the appellant placed his reliance upon the matter Sanjeeb Kumar Rathore vs. State of Chhattisgarh and others, bearing WPS No. 8559 of 2022 where regularisation was granted in similar circumstances. Therefore, the writ petition deserves to be allowed and the petitioner be extended the benefit of regularization. Learned State counsel objected the relief claimed by the petitioner and submits that the representation has rightly been rejected by the respondent authorities and the same does not call for any interference by this Court. I have heard learned counsel for the parties and perused the material available on record. The respondent authorities have denied the case of the petitioner for regularization for the reason that his services cannot be regularized, as according to circular dated 05.03.2008, the proceeding of regularization was for only once and it cannot be revived time and again. At present there is no

#6. 4 necessity to take work of daily wages employee, as such the petitioner is not entitled for regularization.

#7. The Hon’ble Supreme Court in the matter of State of Karnataka vs. Uma Devi reported in [2006] 3 S.C.R. 953 has held in para 46 as under:- “46. In cases relating to service in the commercial taxes department, the High Court has directed that those engaged on daily wages, be paid wages equal to the salary and allowances that are being paid to the regular employees of their cadre in government service, with effect from the dates from which they were respectively appointed. The objection taken was to the direction for payment from the dates of engagement. We find that the High Court had clearly gone wrong in directing that these employees be paid salary equal to the salary and allowances that are being paid to the regular employees of their cadre in government service, with effect from the dates from which they were respectively engaged or appointed. It was not open to the High Court to impose such an obligation on the State when the very question before the High Court in the case was whether these employees were entitled to have equal pay for equal work so called and were entitled to any other benefit. They had also been engaged in the teeth of directions not to do so. We are, therefore, of the view that, at best, the Division Bench of the High Court should have directed that wages equal to the salary that are being paid to regular employees be paid to these daily wage employees with effect from the date of its judgment. Hence, that part of the direction of the Division Bench is modified and it is directed that these daily wage earners be paid wages equal to the salary at the lowest grade of employees of their cadre in the Commercial Taxes Department in government service, from the date of the judgment of the Division Bench of the High Court. Since, they are only daily wage earners, there would be no question of other allowances being paid to them. In view of our conclusion, that Courts are not expected to issue directions for making such persons permanent in service, we set aside that part of the direction of the High Court directing the Government to consider their cases for 5 regularization. We also notice that the High Court has not adverted to the aspect as to whether it was regularization or it was giving permanency that was being directed by the High Court. In such a situation, the direction in that regard will stand deleted and the appeals filed by the State would stand allowed to that extent. If sanctioned posts are vacant (they are said to be vacant) the State will take immediate steps for filling those posts by a regular process of selection. But when regular recruitment is undertaken, the respondents in C.A. No. 3595- 3612 and those in the Commercial Taxes Department similarly situated, will be allowed to compete, waiving the age restriction imposed for the recruitment and giving some weightage for their having been engaged for work in the Department for a significant period of time. That would be the extent of the exercise of power by this Court under Article 142 of the Constitution to do justice to them.”

#8. Further, the Hon’ble Supreme Court in the matter of Jaggo vs. Union of India and Others reported in (2024) INSC 1034 has held in paras 22, 26 and 27 as under:- “22. The pervasive misuse of temporary employment contracts, as exemplified in this case, reflects a broader systemic issue that adversely affects workers' rights and job security. In the private sector, the rise of the gig economy has led to an increase in precarious employment arrangements, often characterized by lack of benefits, job security, and fair treatment. Such practices have been criticized for exploiting workers and undermining labour standards. Government institutions, entrusted with upholding the principles of fairness and justice, bear an even greater responsibility to avoid such exploitative employment practices. When public sector entities engage in misuse of temporary contracts, it not only mirrors the detrimental trends observed in the gig economy but also sets a concerning precedent that can erode public trust in governmental operations. xxx xxx xxx 6

#26. While the judgment in Uma Devi (supra) sought to curtail the practice of backdoor entries and ensure appointments adhered to constitutional principles, it is regrettable that its principles are often misinterpreted or misapplied to deny legitimate claims of long- serving employees. This judgment aimed to distinguish between "illegal" and "irregular" appointments. It categorically held that employees in irregular appointments, who were engaged in duly sanctioned posts and had served continuously for more than ten years, should be considered for regularization as a one-time measure. However, the laudable intent of the judgment is being subverted when institutions rely on its dicta to indiscriminately reject the claims of employees, even in cases where their appointments are not illegal, but merely lack adherence to procedural formalities. Government departments often cite the judgment in Uma Devi (supra) to argue that no vested right to regularization exists for temporary employees, overlooking the judgment's explicit acknowledgment of cases where regularization is appropriate. This selective application distorts the judgment's spirit and purpose, effectively weaponizing it against employees who have rendered indispensable services over decades.

#27. In light of these considerations, in our opinion, it is imperative for government departments to lead by example in providing fair and stable employment. Engaging workers on a temporary basis for extended periods, especially when their roles are integral to the organization's functioning, not only contravenes international labour standards but also exposes the organization to legal challenges and undermines employee morale. By ensuring fair employment practices, government institutions can reduce the burden of unnecessary litigation, promote job security, and uphold the principles of justice and fairness that they are meant to embody. This 7 approach aligns with international standards and sets a positive precedent for the private sector to follow, thereby contributing to the overall betterment of labour practices in the country.”

#9. Furthermore, in the matter of Vinod Kumar and others v. Union of India and others reported in (2024) 9 SCC 327, Hon’ble Supreme Court has held that procedural formalities cannot be used to deny regularization of service to an employee whose appointment was termed "temporary" but has performed the same duties as performed by the regular employee over a considerable period in the capacity of the regular employee. The relevant paras of the said judgment are reproduced herein-below : “5. Having heard the arguments of both the sides, this Court believes that the essence of employment and the rights thereof cannot be merely determined by the initial terms of appointment when the actual course of employment has evolved significantly over time. The continuous service of the appellants in the capacities of regular employees, performing duties indistinguishable from those in permanent posts, and their selection through a process that mirrors that of regular recruitment, constitute a substantive departure from the temporary and scheme-specific nature of their initial engagement. Moreover, the appellants' promotion process was conducted and overseen by a Departmental Promotional Committee and their sustained service for more than 25 years without any indication of the temporary nature of their roles being reaffirmed or the duration of such temporary engagement being specified, merits a reconsideration of their employment status.

#6. The application of the judgment in Umadevi (supra) by the High Court does not fit squarely with the facts at hand, given the specific circumstances under which the appellants were employed and have continued their service. The reliance on procedural formalities at the outset cannot be used to perpetually deny substantive rights that have accrued over a considerable period through continuous 8 service. Their promotion was based on a specific notification for vacancies and a subsequent circular, followed by a selection process involving written tests and interviews, which distinguishes their case from the appointments through back door entry as discussed in the case of Umadevi (supra).

#7. The judgment in the case Umadevi (supra) also distinguished between "irregular" and "illegal" appointments underscoring the importance of considering certain appointments even if were not made strictly in accordance with the prescribed Rules and Procedure, cannot be said to have been made illegally if they had followed the procedures of regular appointments such as conduct of written examinations or interviews as in the present case. Paragraph 53 of the Umadevi (supra) case is reproduced hereunder: "53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in [S.V. Narayanappa [(1967) 1 SCR 128: AIR 1967 SC 1071), R.N. Nanjundappa [(1972) 1 SCC 409: (1972) 2 SCR 799] and B.N. Nagarajan [(1979) 4 SCC 507: 1980 SCC (L&S) 4: (1979) 3 SCR 937] and referred to in para 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 the courts or of tribunals. The question of regularisation 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 regularise as a one-time measure, the services of such irregularly appointed, who have worked for ten 9 years or more in duly sanctioned posts but not under cover of orders of the 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 clarify that regularisation, if any already made, but not sub judice, need not be reopened based on this judgment, but there should be no further bypassing of the constitutional requirement and regularising or making permanent, those not duly appointed as per the constitutional scheme. (emphasis in original)"

#8. In light of the reasons recorded above, this Court finds merit in the appellants' arguments and holds that their service conditions, as evolved over time, warrant a reclassification from temporary to regular status. The failure to recognize the substantive nature of their roles and their continuous service akin to permanent employees runs counter to the principles of equity, fairness, and the intent behind employment regulations.”

#10. Further, in the matter of State of Karnataka and others vs. M.L. Kesari and others reported in (2010) 9 SCC 247, the Hon’ble Supreme Court while dealing the issue with regard to regularization, has held as follows:- “5. The decision in State of Karnataka vs. Umadevi, (2006) 4 SCC 1 was rendered on 10.04.2006. In that case, a Constitution Bench of this Court held that appointments made without following the due process or the rules relating to appointment did not confer any right on the appointees and courts cannot direct their absorption, regularization or re- engagement nor make their service permanent, and the High Court in exercise of jurisdiction under Article 226 of the Constitution should not ordinarily issue directions for absorption, regularization, or permanent 10 continuance unless the recruitment had been done in a regular manner, in terms of the constitutional scheme; and that the courts must be careful in ensuring that they do not interfere unduly with the economic arrangement of its affairs by the State or its instrumentalities, nor lend themselves to be instruments to facilitate the bypassing of the constitutional and statutory mandates. This Court in Umadevi (supra) further held that a temporary, contractual, casual or a daily- wage employee does not have a legal right to be made permanent unless he had been appointed in terms of the relevant rules or in adherence of Articles 14 and 16 of the Constitution. This Court however made one exception to the above position and the same is extracted below: "53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in [S.V. Narayanappa [1967 (1) SCR 128], R.N. Nanjundappa [1972 (1) SCC 409] and B.N. Nagarajan [1979 (4) SCC 507] and referred to in para 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 the 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 abovereferred 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 the courts or of tribunals and should further ensure that regular 11 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. " It is evident from the above that there is an exception to the general principles against 'regularization' enunciated in Umadevi, if the following conditions are fulfilled: The employee concerned should have worked for 10 years or more in duly sanctioned post without the benefit or protection of the interim order of any court or tribunal. In other words, the State Government or its instrumentality should have employed the employee and continued him in service voluntarily and continuously for more than ten years. The appointment of such employee should not be illegal, even if irregular. Where the appointments are not made or continued against sanctioned posts or where the persons appointed do not possess the prescribed minimum qualifications, the appointments will be considered to be illegal. But where the person employed possessed the prescribed qualifications and was working against sanctioned posts, but had been selected without undergoing the process of open competitive selection, such appointments are considered to be irregular. Umadevi (supra) casts a duty upon the concerned Government or instrumentality, to take steps to regularize the services of those 12 irregularly appointed employees who had served for more than ten years without the benefit or protection of any interim orders of courts or tribunals, as a one-time measure. Umadevi, directed that such one- time measure must be set in motion within six months from the date of its decision (rendered on 10.4.2006). The term 'one-time measure' has to be understood in its proper perspective. This would normally mean that after the decision in Umadevi, each department or each instrumentality should undertake a one-time exercise and prepare a list of all casual, daily-wage or ad hoc employees who have been working for more than ten years without the intervention of courts and tribunals and subject them to a process verification as to whether they are working against vacant posts and possess the requisite qualification for the post and if so, regularize their services.”

#11. Furthermore, in the matter of Tukaram (Supra), the Hon’ble Division Bench of this Court has held as under:- “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 13 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 ance 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 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 14 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 Dot-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. As a consequence, the workers in those cases where the claim has been rejected by the respective Respondents on the ground of there being break in service or the claim of the workers being rejected on the ground of their not serving the Respondents prior to 31.12.1997 are all set aside/quashed. The Respondents are directed to consider the case of these petitioners-workers for regularization in accordance with the circular granting them the advantage of continuity of service from the date of their initial engagement till date.”

#12. Considering the facts and circumstances of the case, particulary considering the fact that the petitioner was continuously working in the respondent Department since the year 1985 as daily wager employee and further considering the fact that when the services of the petitioner were terminated, the Labour Court passed an order of reinstatement and the petitioner was reinstated in service in the year 2007 and further taking note of this fact that the Hon'ble Division Bench of this Court in WPS No.1703/2015 in the matter of Tukaram vs State of Chhattisgarh and others and other batch of petitions has decided the issue involved in the matter vide order dated 16.05.2017 and further considering the relevant law in respect of regularization of daily wagers and contingency paid employee in the matter of Uma Devi (supra) and Jaggo (supra) as also in the matter of Vinod Kumar (supra), this Court is of the view that the petitioner has made out a good case for considering his 15 case for regularization of his services and as such considering the overall aspects of the matter, this Court directs the respondent authorities to pass appropriate orders in respect of regularization of the petitioner within the stipulated period, preferably within a period of 90 days from the date of production of this order.

#13. With the aforesaid observation/direction, the writ petition is allowed. Sd/- (Amitendra Kishore Prasad) Judge DEEPTI JHA NIRALA Digitally signed DEEPTI JHA NIRALA