Nafr High Court
Case Details
1 Order Reserved on 02.07.2025 Order Pronounced on 26.09.2025 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WPS No. 2792 of 2015 1. Naresh Sonkar S/o Shri Indal Sonkar, Aged About 45 Years R/o Kumharapara, Dhamtari Tahsil And District Dhamtari Chhattisgarh, Chhattisgarh 2. Dinesh Sarthi, S/o Shri Faaguram Sarthi, Aged About 38 Years R/o Brahmanpara, Dhamtari Tahsil And District Dhamtari Chhattisgarh, District : Dhamtari, Chhattisgarh 3. Jaikumar Sarthi, S/o Shri Jagdish Sarthi, Aged About 41 Years R/o Sarthimohalla, Ganesh Chowk, Dhamtari Tahsil And District Dhamtari Chhattisgarh, District : Dhamtari, Chhattisgarh 4. Prakash Sahu, S/o Shri Pardeshi Sahu, Aged About 40 Years R/o Daanitola, Dhamtari Tahsil And District Dhamtari Chhattisgarh, District : Dhamtari, Chhattisgarh 5. Raghuveer Singh, S/o Shri Rikhan Singh Aged About 46 Years R/o Koshtapara, Dhamtari Tahsil And District Dhamtari Chhattisgarh, District : Dhamtari, Chhattisgarh 6. Mithun Dhimar, S/o Shri Mangluram Dhimar, Aged About 28 Years Ward Jaalampur, Dhamtari Tahsil And District Dhamtari Chhattisgarh, District : Dhamtari, Chhattisgarh 7. Vijay Kumar Devdas, S/o Shri Jugeshar Aged About 28 Years R/o Village Sorabh-Bhatagaon Tahsil And District Dhamtari Chhattisgarh, District : Dhamtari, Chhattisgarh 8. Bhanupratap Sinha, S/o Chandulal Sinha, Aged About 42 Years R/o Ward Sorid, Dhamtari Tahsil And District Dhamtari Chhattisgarh, District : Dhamtari, Chhattisgarh 2 9. Jairam Sahu, S/o Ramadhar Sahu, Aged About 36 Years Bajrang Chowk, Village Soram, Tahsil And District Dhamtari Chhattisgarh, District : Dhamtari, Chhattisgarh 10. Devlal Sahu, S/o Santram Sahu, Aged About 42 Years R/o Village Boddrakasahi, Tahsil And District Dhamtari Chhattisgarh, District : Dhamtari, Chhattisgarh 11. Sia-Ram Sahu, S/o Ramadhar Sahu, Aged About 29 Years R/o Bajrang Chowk, Village Soram, Tahsil And District Dhamtari Chhattisgarh, District : Dhamtari, Chhattisgarh 12. Manharan Nirmalkar, S/o Maansingh Aged About 44 Years R/o Jailroad Bathena, Dhamtari, Tahsil And District Dhamtari Chhattisgarh, District : Dhamtari, Chhattisgarh 13. Remeshwar, S/o Kartikram, Aged About 46 Years R/o Village Bhothali, Tahsil And District Dhamtari Chhattisgarh, District : Dhamtari, Chhattisgarh 14. Parsuram, Jhaaduram Yadaw, Aged About 43 Years R/o Village Sorambaada, Tahsil And District Dhamtari Chhattisgarh, District : Dhamtari, Chhattisgarh --- Petitioners versus 1. State Of Chhattisgarh Through The Secretary Department Of Urban Administration And Development, Mantralaya, Mahanadi Bhawan, Naya Raipur Chhattisgarh, Chhattisgarh 2. Municipal Corporation, Dhamtari Through Its Coommissioner, District Dhamtari Chhattisgarh, District : Dhamtari, Chhattisgarh 3. State Urban Development Authority Chhattisgarh, 4th Floor, D- Block, Indrawati Bhawan, Naya Raipur Chhattisgarh Through Its Chief Executive Officer, District : Raipur, Chhattisgarh --- Respondents WPS No. 2802 of 2015 1.
Legal Reasoning
Shailesh Dewangan S/o Shri Dashrath Dewangan Aged About 43 Years R/o Koshtapara, Dhamtari Tahsil And Distt. Dhamtari, Chhattisgarh, Chhattisgarh 2. Anuj Gupta S/o Shri Govind Prasad Aged About 35 Years R/o Brahmanpara, Dhamtari Tahsil And Distt. Dhamtari, Chhattisgarh, District : Dhamtari, Chhattisgarh 3 3. Ajay Dewangan S/o Shri Dashrath Dewangan Aged About 40 Years R/o Koshtapara, Dhamtari Tahsil And Distt. Dhamtari, Chhattisgarh, District : Dhamtari, Chhattisgarh 4. Tribhuvan Yadav S/o Shri Kumar Yadav Aged About 42 Years R/o Jalampur, Dhamtari Tahsil And Distt. Dhamtari, Chhattisgarh, District : Dhamtari, Chhattisgarh 5. Teeju Nishad S/o Shri Vishram Nishad Aged About 29 Years R/o Village Soram, Tah And Dist Dhamtari Chhattisgarh, District : Dhamtari, Chhattisgarh 6. Madhav S/o Shri Sudhakar Rao Aged About 34 Years R/o Poward Dhamtari Tahsil And District Dhamtari, Chhattisgarh, District : Dhamtari, Chhattisgarh 7. Narottam S/o Shri Mohan Aged About 42 Years R/o Village Chidoud Tahsil And District Dhamtari, Chhattisgarh, District : Dhamtari, Chhattisgarh 8. Agesar S/o Samaru Sahu Aged About 43 Years R/o Village Loharsingh, Tahsil And District Dhamtari, Chhattisgarh, District : Dhamtari, Chhattisgarh 9. Kumar S/o Nammu Yadav Aged About 51 Years R/o Risaipara, Dhamtari Tahsil And District Dhamtari Chhattisgarh, District : Dhamtari, Chhattisgarh 10. Santu Patel S/o Pusau Aged About 36 Years R/o Nandi Chowk, Bedharapara, Dhamtari Tahsil And District - Dhamtari Chhattisgarh, District : Dhamtari, Chhattisgarh 11. Sanjay Yadav S/o Ashok Yadav Aged About 39 Years R/o Ramsagarpara, Dhamtari Tahsil And Distt. Dhamtari Chhattisgarh, District : Dhamtari, Chhattisgarh 12. Bharat Sahu S/o Munnalal Sahu Aged About 35 Years R/o Ramsagarpara, Dhamtari Tahsil And Distt. Dhamtari Chhattisgarh, District : Dhamtari, Chhattisgarh 13. Shyam S/o Sher Singh R/o Rampur Ward, Dhamtari Tahsil And Distt. Dhamtari Chhattisgarh 14. Ram Singh S/o Balbir Singh Thakur Aged About 45 Years R/o Near Sai Mandir, Dhamtari Tahsil And Distt. Dhamtari Chhattisgarh, District : Dhamtari, Chhattisgarh ---Petitioners Versus 4 1. State Of Chhattisgarh Through The Secretary Department Of Urban Administration And Development, Mantralaya, Mahanadi Bhawan, Naya Raipur Chhattisgarh, Chhattisgarh 2. Municipal Corporation, Dhamtari Through Its Commissioner Distt. Dhamtari Chhattisgarh, District : Dhamtari, Chhattisgarh --- Respondents For Petitioners : Mr. Ashish Shrivastava, Sr. counsel with Ms. Hiya For Respdt. No. 1 /State For Respdt No. 2 Sonchhatra and Mr. Ravi Singh, Advocate : Mr. Sanjeev Pandey, Dy. AG : Mr. Dharmesh Shrivastava and Mr. Kanhaiya Ram Yadav, Advocate (Hon’ble Shri Justice Sachin Singh Rajput) C A V Order Since the issue involved in these two petitions is one and the same,
Decision
they are being disposed of by this common order. 2. The petitioners in both the writ petitions have sought for quashment of notice/advertisement dated 21.04.2015 (Annexure P-1). Another relief sought for is to direct the respondents to consider the case of the petitioners for regularization on appropriate posts looking to their qualification and multidimensional experience. Yet another relief sought for by the petitioners is to decide their representation considering their candidature in view of their qualification and multidimensional experience. The petitioners have also prayed for quashing and setting aside the impugned circular dated 31.03.2015 (Annexure P-8), advertisement dated 21.04.2015 and the order darted 01.06.2015 passed by the Mayor-in-Council, Municipal Corporation, Dhamtari (Annexure P-9) being illegal and inoperative in laws. 3. The Fact situation: The duly qualified petitioners herein were appointed on daily wage basis and are presently working in Municipal Council, Dhamtari. Their services were never discontinued and no complaint 5 with regard to their work was ever made. This fact has been acknowledged by Chief Municipal Officer as well as other officers of the respondent/ municipality. Petitioners continuously worked for more than 240 days in a year. It is also submitted that the petitioners though were class IV daily wage employees yet considering their qualification and efficiency they were not only assigned clerical jobs but their services were also taken by the Collector for enforcement squads where they performed multiple jobs. They were also employed in all types of administrative set ups. The case of the petitioners is that at least 29 posts of class IV employees are available for direct recruitment and the petitioners are fully eligible for the same. When the petitioners joined their duties, they were given payment on the the basis of muster rolls however the respondent/Corporation without taking their consent and even without intimating them, started treating them as contractual labours by making payment to them on monthly basis at the rates lower than the minimum wages fixed by the Collector. The petitioners also suspect that the municipal authorities are hand in glove with some local labour contractors and are not only giving undue advantages to them by petitioners' salary, but the petitioners are also being denied their opportunity of being considered for regularization. Further case of the petitioners is that the Commissioner, Municipal Council, Dhamtari, in a most arbitrary manner without even considering the petitioners' case issued another notice inviting rates from the placement agencies/labour contractors for supply of labours to be employed in place of the present petitioners. For the work which the petitioners are already performing at much lower costs, the implementation of new system by induction of placement agencies/labour contractors will not at all be cost effective. Hence these petitions. 4. Learned Senior Counsel appearing for the petitioners submits that the 6 Impugned notice/advertisement dated 21.04.2015 (Annexure P-1) inviting tender from the placement agency (Labour Contractor) for execution of various departmental works in respondent corporation instead of considering cases of petitioners for regularization looking to their strength of service/skill/qualification for more than a decade in not only bad, illegal, arbitrary but is in serious violation of law. He submits that the impugned notice/advertisement dated 21.04.2015 issued by respondent No. 2 inviting tender from the placement agency (Labour Contractor) for execution of various departmental works in respondent corporation without resorting to prescribed process under Service Jurisprudence i.e.by issuing advertisement inviting applications from qualified and eligible candidates is not only arbitrary, illegal and unconstitutional but also in serious violation of the service jurisprudence and Articles 14,16 and 21 of the Constitution of India. Learned Sr. counsel further submits that the action of the respondents is arbitrary inasmuch as the fact that without considering petitioners' case the impugned notice/advertisement was issued for the requirement of labours for various works mentioned therein distinctly and the petitioners herein are already performing the said work comprehensively. It is submitted that the petitioners are already executing those works at much lower costs and the implementation of new system by induction of placement agencies/labour contractors will not at all be cost effective, on the contrary that will cost heavily on the budget of the municipality as the contractor will make his own profit and the petitioners holding the requisite qualification and experience and also considering the fact that they have served for such a long time have legitimate expectations of getting regularized. Learned Sr. counsel submits that the respondents are taking the decision which will cause loss to public exchequer in as much as the fact that those placement agencies/labour 7 contractors will not function as multitasking units at which the petitioners are trained and ultimately that will also cause rise in the overall costings. It is further submitted that the action of the respondents in changing the status of the petitioners from daily wagers to contractual and paying them monthly remuneration less than the prescribed minimum wages is also arbitrary and mala fide. 5. According to learned counsel for the petitioners, the impugned communication circular dated 31.03.2015 as well as the order dated 01.06.2015 are not only arbitrary and illegal in nature but also de hors the Recruitment Rules framed by the respondent/State in the exercise of its powers under the Chhattisgarh Municipal Corporation Act, 1956 i.e Rules 2007 and further in serious violation of Article 14,16 and 21 of Constitution of India. He submits the action on the part of respondents while issuing circular dated 31.03.2015 advertisement dated 21.04.2015 and the order dated 01.06.2015 for engaging placement agencies for providing various public utility services in Municipal Corporation Dhamtari and further issuance of impugned advertisement inviting the rates from such placement agencies for engagement of skilled/semi-skilled/unskilled laborers for execution of various public utility services and fixing maximum rate for aforesaid labourers under the Municipal Corporation Act is in serious contravention of provisions of Rules 2007 inasmuch as the fact that under the aforesaid Rules of 2007, Schedule framed under Rule 3, 4 and 5 there are separate provisions for appointment/recruitment of various classes of employees which includes class IV employees who also are executing various public utility services within the municipal corporation area, as such, engagement of placement agencies for execution of a foresight work frustrate the provision of the rules of 2007 and further transgressed the employment opportunities of the 8 aforesaid class of employees. Therefore, it is arbitrary, discriminatory, irrational, and violated Article 14, 16 and 21 of the Constitution of India. In support of his submissions, reliance is placed on the decisions of the Supreme Court in the matter of Secretary, State of Karnataka and others v. Uma Devi reported in (2006) 4 SCC 1, in the matter of Manish Gupta and another v. President, Jan Bhagidari Samiti and others reported in (2022) 15 SCC 540, in the matter of Hargurpratap Singh v. State of Punjab reported in (2007) 13 SCC 292, in the matter of Rattan Lal and others v. State of Haryana reported in (1985) 4 SCC 43, in the matter of Mohd. Abdullah Bhat v. State Bank of India and others reported in (2018) SCC OnLine Jammu and Kashmir 891, in the matter of Cochin University of Science and Technology v. Shobika M.M. and others reported in (2023) SCC OnLine Ker 913, in the matter of State of Bihar and others v. Chandreshwar Pathak reported in (2014) 13 SCC 232 and in the matter of Bhupendra Nath Hazarika and another v. State of Assam and another reported in (2013) 2 SCC 516. 6. On the other hand, learned counsel for respondent/State supports the impugned notice/advertisement and submits that the respondent No. 3 - State Urban Development Authority, has issued a communication dated 31.03.2015 for engaging placement agencies to provide various public utility services in the area of Municipal Corporation, Dhamtari. which is applicable to all the Municipal Corporations of the State of CG. He further submits that the meetings of various municipal corporations had been called on different dates, and in the meeting called on 07.04.2015 maximum number of the skilled/semi-skilled/un-skilled labours were limited to 183 and the respondent No. 2 was directed to issue an advertisement for inviting rates from the placement agencies for engaging skilled/semi-skilled/un-skilled labours to 9 work against different posts. Thereafter, an advertisement was published by the respondent No. 2 on 21.04.2015, which has already been annexed in the petition as Annexure-P/1. Learned State counsel submits that after issuance of advertisement dated 21.04.2015, the respondent No. 1 issued an order dated 01.06.2015 by fixing the maximum number of skilled/semi-skilled/un- skilled labours under the placement in the respondent No. 2 i.e. Municipal Corporation, Dhamtari. He further submits that it appears from perusal of condition No. 8 of the order dated 01.06.2015 that any daily-wager who is working under the corporation in view of the order passed by this Court or any prior order passed by the State Government, and not working under the placement scheme, their status will not be affected by this order, however, they will be counted for the purpose of counting of maximum number of skilled/semi-skilled/un-skilled labours under the placement. Learned State counsel further submits that regularization/absorption cannot be claimed in absence of a legal right as the petitioners had not been appointed/recruited in accordance with the relevant rules in an open competitive process, against sanctioned vacant posts. State counsel submits that the services of the petitioners cannot be regularized or the relief claimed by them cannot be granted, de hors the constitutional scheme. It is submitted that the petitioners are still working in the establishment of Municipal Corporation as daily wagers, therefore, the present writ petitions are not maintainable and liable to be dismissed. According to the State counsel, mere continuation of service by a temporary or ad-hoc or daily wage employee would not confer upon him any right to be absorbed into service and that even temporary, ad-hoc or daily-wage service for a long number of years, let alone service for one or two years, will not entitle such employee to claim regularization, if he is not working against a sanctioned post. Reliance is placed on the constitution 10 Bench decision of the Supreme Court in the matter of Secretary, State of Karnataka v. Umadevi, (supra) paragraph No. 47. According to learned State counsel, it is thus not open for the petitioners to invoke the theory of legitimate expectation because at the time of engagement of their services as daily wagers, they were aware of the consequences of their engagement being temporary, casual or contractual in nature. 7. Learned counsel for respondent No. 2 submits that the petitioners are daily wagers working in the establishment of Municipal Corporation, Dhamtari. He submits that the State Government, Urban Administration and Development called a meeting by sending a letter No. F/4-11/2015/18/(3) vide dated 31.03.2015 for fixation of maximum number of the skilled/semi- skilled/unskilled labourers against different Class-IV posts, and in pursuance thereof the meeting was held 07.04.2015 where the maximum number of the skilled/semiskilled/unskilled labourers were limited to 183. It is submitted that respondent No.2 was directed to issue an advertisement for inviting rates from the placement agencies for engaging skilled/semi-skilled/unskilled labourers to work against different Class-IV posts, and in compliance thereof, the advertisement was published. It is submitted that on 01.06.2015 the State Government, Urban Administration and Development Department had passed an order and limited the number of the skilled/semiskilled/unskilled labourers working in the establishment of Municipal Corporation Dhamtari. It is submitted that respondent No.2 preferred a caveat application before this Court apprehending that the affected party or general public may file writ petition before this Court against the steps taken by them in compliance of the above order dated 01.06.2015. It is further submitted that pursuant to the notice/advertisement dated 21.04.2015 some rates were received from various placement agencies and labourer contractors, and then the matter 11 was placed in the meeting on 13.06.2015 where a resolution was passed. Learned counsel for respondent No.2 further submits that since respondent No.2 is working under the State Government, it is duty bound to follow the order/direction of the State Government and the entire steps taken by them are compliance of the order/direction of the State Government. It is submitted that the petitioners are still working in the establishment of Municipal Corporation, therefore, the instant writ petitions are liable to be dismissed. 8. 9. Heard counsel for the parties and perused the documents on record. The documents on record go to show that the petitioners were appointed as class IV employees in Municipal Council, Dhamtari on daily wages and put in their services for a considerable long period without there being any break in service. They discharged their duties for more than 240 days in a year. It is also manifest from the documents on record that though the petitioners were appointed on a class IV post yet by virtue of their efficiency and qualification the employer was taking clerical work from them. However, there is nothing on record to show that the procedure prescribed under Relevant Recruitment Rules was followed; any advertisement was published inviting applications from the eligible candidates to compete or any selection process was undertaken before appointment of the petitioners. Nothing even to show is there that the names of the petitioners were called through the Employment Exchange, or that their appointment was against any sanctioned vacant post. Such appointment as in the case in hand has in a series of decisions of the Supreme Court been held to be the back door entry. Dealing with almost identical situation in the matter of State of Orissa v. Mamata Mohanty reported in (2011) 3 SCC 436 which has subsequently been followed in many other cases, it has been held by the Supreme Court that no person can be appointed even on a temporary or ad hoc basis 12 without inviting applications from all eligible candidates. Relevant portion of the said decision reads as under:- “Therefore, it is a settled legal proposition that no person can be appointed even on a temporary or ad hoc basis without inviting applications from all eligible candidates. If any appointment is made by merely inviting names from the Employment Exchange or putting a note on the Notice Board etc. that will not meet the requirement of Articles 14 and 16 of the Constitution. Such a course violates the mandates of Articles 14 and 16 of the Constitution of India as it deprives the candidates who are eligible for the post, from being considered. A person employed in violation of these provisions is not entitled to any relief including salary. For a valid and legal appointment mandatory compliance of the said Constitutional requirement is to be fulfilled. The equality clause enshrined in Article 16 requires that every such appointment be made by an open advertisement as to enable all eligible persons to compete on merit.” 10. Another submission of learned counsel for the petitioners that having rendered service for a long span of time extending to 15-20 years without any interruption inures a legitimate expectation to the petitioners that sooner or later they would become an integral part of the system, does not appeal to the judicial conscience of this Court. It is for the reason that at the time of their entry into the establishment of Municipal Council Dhamtari, they are supposed to have been aware of the consequences of their appointment being on daily wages, and therefore, they with the passage of time cannot invoke the theory of legitimate expectation for being confirmed in the post. It is not as if the petitioners who accepted the engagement on dailty wage basis, were not aware of the nature of their employment, because they accepted the employment with eyes open. It may be true that they were not in a position to bargain because they might have been searching for some employment so as to eke out their livelihood and accepted whatever they 13 got. But on this ground alone, it would not be appropriate for this Court to jettison the constitutional scheme of appointment and to take the view that a person who has temporarily or casually got employed should be directed to be continued permanently. This theory has been propounded by a constitution Bench decision of the Supreme Court in the matter of Secretary, State of Karnataka v. Uma Devi (supra) where it has been held as under:- “36. While directing that appointments, temporary or casual, be regularized or made permanent, courts are swayed by the fact that the concerned person has worked for some time and in some cases for a considerable length of time. It is not as if the person who accepts an engagement either temporary or casual in nature, is not aware of the nature of his employment. He accepts the employment with eyes open. It may be true that he is not in a position to bargain -- not at arms length -- since he might have been searching for some employment so as to eke out his livelihood and accepts whatever he gets. But on that ground alone, it would not be appropriate to jettison the constitutional scheme of appointment and to take the view that a person who has temporarily or casually got employed should be directed to be continued permanently. By doing so, it will be creating another mode of public appointment which is not permissible. If the court were to void a contractual employment of this nature on the ground that the parties were not having equal bargaining power, that too would not enable the court to grant any relief to that employee. A total embargo on such casual or temporary employment is not possible, given the exigencies of administration and if imposed, would only mean that some people who at least get employment temporarily, contractually or casually, would not be getting even that employment when securing of such employment brings at least some succor to them. After all, innumerable citizens of our vast country are in search of employment and one is not compelled to accept a casual or temporary employment if one is not inclined to go in for such an employment. It is in that context that one has to proceed on the basis that the employment was accepted fully knowing the nature of it and the consequences flowing from it. In 14 other words, even while accepting the employment, the person concerned knows the nature of his employment. It is not an appointment to a post in the real sense of the term. The claim acquired by him in the post in which he is temporarily employed or the interest in that post cannot be considered to be of such a magnitude as to enable the giving up of the procedure established, for making regular appointments to available posts in the services of the State. The argument that since one has been working for some time in the post, it will not be just to discontinue him, even though he was aware of the nature of the employment when he first took it up, is not one that would enable the jettisoning of the procedure established by law for public employment and would have to fail when tested on the touchstone of constitutionality and equality of opportunity enshrined in Article 14 of the Constitution of India.” "47. When a person enters a temporary employment or gets engagement as a contractual or casual worker and the engagement is not based on a proper selection as recognized by the relevant rules or procedure, he is aware of the consequences of the appointment being temporary, casual or contractual in nature. Such a person cannot invoke the theory of legitimate expectation for being confirmed in the post when an appointment to the post could be made only by following a proper procedure for selection and in concerned cases, in consultation with the Public Service Commission. Therefore, the theory of legitimate expectation cannot be successfully advanced by temporary, contractual or casual employees. It cannot also be held that the State has held out any promise while engaging these persons either to continue them where they are or to make them permanent. The State cannot constitutionally make such a promise. It is also obvious that the theory cannot be invoked to seek a positive relief of being made permanent in the post.” 11. The next submission made on behalf of the petitioners is that the State Government has issued a circular dated 05.03.2008 to the effect that the persons working for longer period, may be considered for regularization. The 15 said circular reveals that the persons who were engaged before 31.12.1988 as daily wager or on ad hoc basis or have worked as such for the period 01.01.1989 to 31.12.1997. However, in the case in hand, perusal of the list of the persons as annexed with the petitions shows that none of the petitioners can get anything from that circular because they do not fall in the said category, and therefore it is of no help to the petitioners. 12. As far as the advertisement dated 21.04.2015 for engagement of contractual employees – skilled, unskilled or semi-skilled in Municipal Corporation, Dhamtari, is concerned, it is absolutely upon the employer to engage employees for its requirement on its own terms and conditions . This Court has no occasion to make any direction in this regard. 13. This Court has taken note of the decisions cited by the learned Sr. counsel appearing for the petitioners, but as they stand on an altogether different factual scenario, they are of no help to the petitioners in this case. 14. In aforesaid view of the matter, this Court is of the considered opinion that the petitions have no merit and are liable to be dismissed. They are accordingly dismissed. Sd/- (Sachin Singh Rajput) Judge Jyotishi AVANISH JYOTISHI Digitally signed by AVANISH JYOTISHI Date: 2025.09.26 16:00:13 +0530