Nafr High Court
Case Details
1 Digitally signed by GOPAL SINGH Date: 2025.05.01 11:53:48 +0530 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WPS No. 387 of 2022 Order Reserved on 3.2.2025 Order Passed on 30.4.2025 1 - Tikaram Sinha S/o Shri Rameshwar Singh Aged About 57 Years Presently Posted As Peon, Chhattisgarh Administrative Academy, Nimora, Raipur District Raipur Chhattisgarh 2 - Parshuram Sinha S/o Shri Lachiram Sinha Aged About 36 Years Presently Posted As Peon, Chhattisgarh Administrative Academy, Nimora, Raipur District Raipur Chhattisgarh 3 - Kumari Laxmi Saandekar D/o Shri Santosh Sandekar Aged About 33 Years Presently Posted As Peon, Chhattisgarh Administrative Academy, Nimora, Raipur District Raipur Chhattisgarh --- Petitioners versus 1 - State of Chhattisgarh Through The Secretary, General Administration Department, Mantralaya, Mahanadi Bhawan, Atal Nagar Nawa Raipur District Raipur Chhattisgarh 2 - The Director General, Chhattisgarh Administrative Academy, Nimora, Raipur District Raipur Chhattisgarh 3 - The Joint Director, Chhattisgarh Administrative Academy, Nimora, Raipur District Raipur Chhattisgarh 2 4 - The Deputy Director, Chhattisgarh Administrative Academy, Nimora, Raipur District Raipur Chhattisgarh --- Respondents WPS No. 455 of 2022 1 - Darbar Singh Porte S/o Shri Budharu Porte Aged About 46 Years Presently Posted As Peon Chhattisgarh Administrative Academy, Nimora, Raipur District Raipur Chhattisgarh. 2 – Maheshwar Prasad Yadav, S/o Shri Ghasiram Yadav, aged about 53 years, Presently Posted as Peon, Chhattisgarh Administrative Academy, Nimora, Raipur, District Raipur, Chhattisgarh ---Petitioners Versus 1 - State of Chhattisgarh Through The Secretary, Gad, Mahanadi Bhawan, Mantralaya, Atal Nagar, District Raipur Chhattisgarh. 2 - The Director General Chhattisgarh Administrative Academy, Niumora, Raipur District Raipur Chhattisgarh. 3 - The Joint Director, Chhattisgarh Administrative Academy, Nimora, Raipur District Raipur Chhattisgarh. 4 - The Deputy Director, Chhattisgarh Administrative Academy, Nimora, Raipur District Raipur Chhattisgarh. (Cause title is taken from Case Information System) --- Respondents For Petitioners For State/Respondents : :
Legal Reasoning
applicants for appointment to the said post. It is trite law that an illegality cannot stand to be cured or condoned on account of efflux of time or for the 12 reason that it is not attributed to the petitioners. The petitioners were beneficiaries of the order of appointment, which cannot be classified as irregular, but on the face of it is patently illegal. It is evident from the very pleading made by the petitioners that pursuant to the sanction given by the General Administration Department vide its order dated 29/10/2015 for 5 posts in the category of Work Charged & Contingency Paid Employees, the petitioners were straightaway appointed vide order dated 29/04/2016. There was, therefore, neither any advertisement issued nor was the procedure as prescribed under the Rule 7 complied with. The committee after due scrutiny of the case of the petitioners arrived at the conclusion that the petitioners claim for grant of regular pay cannot be exceeded, since the petitioners were never appointed in accordance with the due process of law. Furthermore, the order of appointment of the petitioners, does not entail the petitioners to grant of any regular pay. The order dated 29/10/2015 was only to the extent whereby the General Administration Department had approved for creation of five posts under the Work Charged & Contingency Paid Employees. The said order was not to grant appointment to the petitioners and therefore the contention raised by the petitioners is absolutely misconceived and misplaced. The claim raised by the petitioners is to seek a mandamus for a continuous breach of the statutory rules and further to recognize an order, which is fundamentally opposed to the statutory rules. The answering respondents, while discharging its duties has to ensure that the statutory provisions of law are complied with in pith and substance without any exception. At the same time, it is also the solemn duty on part of the answering respondents to ensure that a wrong committed stands to be rectified and there is no undue advantage drawn by any person arising from an order, which prima facie does not stand on the anvil of Constitutional Principles. The appointment of the petitioners 13 vide order dated 29/04/2016 did not receive any approval/sanction from the Finance Department. In fact, the order of the Finance Department, which has been strongly relied upon by the petitioners antedates the order of appointment dated 29/04/2016. Needless to mention that the order dated 29/10/2015 was only an order issued for grant of sanction for creation of 5 posts under Work Charged & Contingency Paid Employees. The appointment of the petitioners have to be judged strictly in accordance with the extant rule. The judgment delivered by the Hon'ble Supreme Court has to be read and understood in the facts of the given case. The ratio laid down by the Hon'ble Supreme Court cannot be divorced from the facts and treated like a statute. The facts mentioned in the said judgment referred to by the petitioners are entirely different from the facts of the instant case. Since the instant petitions differ in fact from the judgment referred to by the petitioners, reference to the said judgment is wholly misconceived. The instant case is not a case of irregular appointment, since the appointment of the petitioners itself would show that they were appointed without abiding to the statutory rules, there was neither any competition held nor any opportunity granted to the public at large to participate as against any vacancy. The appointment of the petitioners was, therefore, contrary to the Constitutional provisions and is thus not an appointment, which can be treated to be an appointment in accordance with law with minor irregularities. The instant case is an absolute non-compliance of the statutory rules and, therefore, the defect, which is patent in the order of appointment, is not curable. The judgment delivered by the Hon'ble Supreme Court has to be understood in the factual background in which the judgment has been delivered. The facts of the present cases are entirely different from the facts of the cases referred to by the petitioners and hence reference to the judgments made by the petitioners is absolutely misconceived. The order of 14 appointment of the petitioners clearly demonstrate that there was neither any advertisement issued nor any competition held prior to the appointment of the petitioners. The petitioners were appointed dehors the statutory scheme and therefore the said appointment is absolutely illegal. Admittedly, the petitioners were neither appointed pursuant to an advertisement nor were the petitioners appointed on the basis of merit. The appointment of the petitioners was as a daily wager on Collector rate basis for a period of 89 days. The said appointment cannot be considered to be an appointment in compliance of the aforesaid Rule 7. The hardships faced by the petitioners, as has been referred to, cannot create a right contrary to the provisions of law. The petitioners cannot seek a mandamus from this Court to grant premium upon an erroneous order after having discovered the error, which is competent by its very nature. The petitioners have sought for a mandamus from this Court, which is contrary to the Constitutional principles as continued under Articles 14 & 16 of the Constitution of India. The petitioners have utterly failed to demonstrate any unreasonableness or arbitrariness on part of the answering respondents while issuing the order dated 22/02/2021. The appointment of the petitioners was not with concurrence of the Finance Department, but, then the Finance Department had simply granted sanction for 5 posts of Work Charged & Contingency Paid Employee under the establishment of Chhattisgarh Administrative Academy. Upon creation of the said post, it was duty bound upon the authorities to have proceeded along with the provisions of law as contained under the Chhattisgarh Daily Wages, Work Charged and Contingency Paid Employees Rules for making direct recruitment. On the contrary, the petitioners were appointed, which itself shows that the rules were not complied with. The petitioners are therefore not entitled to grant of benefit of regular pay-scale. The petitioners were never granted the benefit of 15 regular pay-scale, on the contrary, a perusal of the order dated 29/10/2015 would only disclose that the Finance Department sanctioned creation of 5 posts of Work Charged & Contingency Paid Employees, who would be given the Collector Rate for the initial 3 years and thereafter give the pay-scale equivalent to that of temporary employee. It was never provided in the said order that a regular pay-scale had to be given. Likewise, the order dated 29/04/2016 does not provide for payment of regular pay-scale to the petitioners. A perusal of the order dated 29/04/2016 would further demonstrate that the appointment of the petitioners were made directly without even abiding by the provisions of law as contained under the Chhattisgarh Daily Wages, Work Charged and Contingency Paid Employees Rules. The petitioners have made bald allegations without placing on record any material. The answering respondents have acted strictly in accordance with law. The petitioners are not entitled to grant of any relief in the instant petitions. The instant writ petitions deserve to be dismissed. 7. I have heard learned counsel appearing for the parties and perused the record with utmost circumspection. 8. In the earlier round of litigation, this Court in WPS No.937 of 2020 has directed the respondents authorities that if the petitioners have completed 3 years of service as per circular dated 29.10.2015 then they may be considered for grant of pay scale of Rs.4750-7440 grade pay Rs.1300. However, for that, the respondents authorities were directed to decide the representation filed by the concerned petitioners within 60 days. Upon this, the respondents authorities have considered and dismissed the representations of the petitioners stating that while their appointment Rule 7 of the Chhattisgarh Daily Wagers Work Charged and Contingency Paid Employees Rules have 16 not been followed and as such they cannot be granted pay band of Rs.4750- 7440 grade pay Rs.1300 and accordingly their representation has been dismissed. The petitioner were initially appointed as peons in the approved set up which is not disputed here. They were appointed on 4.6.2006 and 28.10.2006 on Collector rate for a period of 89 days for a remuneration of Rs.2421 per month. Their appointment order was further renewed from time to time. Petitioner No.3 was also appointed on 15.1.2009 on the post of peon on same method. Since all the petitioners are having requisite qualification, they were appointed on the said post. Their appointment was further approved in the approval order dated 27.8.2015 and 29.10.2015. in the said order, it has been specifically mentioned that 5 posts for Work Charged Contingency Paid Employees have been approved by Finance concurrence and the petitioners were appointed on the said posts. Till 3 years the petitioners were treated as temporary employees. However, after 3 years, upon completion of their probation, they are entitled to grant of regular pay scale, which is at the rate of Rs.4750-7440 grade pay Rs.1300. Since after completion of 3 years, the petitioners are entitled to get regular pay scale as per grade pay scale for which earlier they moved a petition which was came to an end with direction that they will prefer a representation and the authorities will decide the same in accordance with law. Now, when the representation was decided against the petitioners, the petitioners were left with no other option but to file the instant petition. From a perusal of documents, it is apparent that the petitioners were appointed on vacant posts. They have completed their probation period and as such they are in legitimate expectation to get their regular salary. However, their claims were turned down by the State authorities. The Hon’ble Supreme Court in the matter of Rakesh Kumar Charmakar and others v. State of M.P. and others, reported in 2025 SCC OnLine SC 212 has held as under: 17 “13. It is clear that all the nine appellants were appointed under an order issued by Deputy Director of Veterinary Sciences in compliance with direction and order of Collector, on the ground of recommendation of the Selection Committee constituted by Collector, against the vacant posts as part time sweepers at Collector's prescribed rates. The appointment orders make it clear that appellants were appointed on sanctioned and vacant posts although on temporary basis. Further, the appellants were appointed for posts reserved for Scheduled Castes, Scheduled Tribes and Other Backward Classes under Special Recruitment Drive. This contradicts the argument of the State that appellants were appointed on non-sanctioned posts, only for necessity of work. 15. Additionally, the Circular dated 07.10.2016 extended the benefit of regular pay-scale to daily wagers. It would be unjust, unfair and arbitrary if such benefit is not extended to the appellants who were appointed as temporary employees against vacant and sanctioned posts. Even if the State denies the benefit of regular pay-scale after completing three years, the appellants shall be benefitted from this Circular dated 07.10.2016 as they were appointed initially as daily wagers at Collector's rate. 16. The Appellants herein have been fighting this battle for regular pay-scale since 2016. They have extended their service to the State for substantial years. But more importantly they have proven that their situation is covered under the State issued Circular and Rules. Thus, it confers upon them a legal right to avail regular pay-scale. 18 17. After considering the facts and circumstances of the case, we are of the opinion that Division Bench erred in setting aside the judgment of the Single Judge of High Court dated 12.07.2019. The Single Judge rightly granted the benefit of regular pay-scale to the appellants.” 9. Now, when this case is examined while considering the aforesaid case decided by the Hon’ble Supreme Court, it is apparent that the petitioners were appointed on the post of peon on the basis of memo dated 3.10.2006 issued by the General Administration Department, State of Chhattisgarh, according to which, 3 posts o peon were directed to be filled up at Collector rate while regularising regular appointment. Thereafter, the petitioners were appointed by the Joint Director, Chhattisgarh Administrative Academy on the basis of Collector rate. As such, at this stage, it cannot be said that the petitioners were not appointed as per Rule 7 of the Chhattisgarh Daily Wagers Work Charged and Contingency Paid Employees Rules. There is a circular dated 29.10.2015 of the State Government, according to which, it has been directed to the Director, Chhattisgarh Administrative Academy which also states that 5 posts which were vacant and in which the peons were appointed on Collector rate and contingency paid employees after completion of 3 years of service they are entitled to regular pay scale of Rs.4750-7440 grade pay Rs.1300 which is approved. When this order has already been passed in light of order dated 3.10.2006 as well as circular dated 29.10.2015 the petitioners cannot be denied regular pay scale after completion of 3 years of service. In the aforesaid aspect of the matter, this Court is inclined to allow the petitions. 10.
Arguments
Ms. Naushina Afrin Ali, Advocate Shri Suyashdhar Badgaiya, Deputy Government Advocate Hon’ble Shri Justice Amitendra Kishore Prasad CAV Order 1. Since the issue involved in both the petitions is common, they are decided by this common order. WPS No. 387 of 2022 is taken up as the lead case. 3 2. The instant petitions have been preferred against the report of the committee dated 19.02.2021 and order/communication dated 22.02.2021 issued by the respondent No. 3 (Annexure P1). In the said order/communication, it is mentioned that the appointment of the petitioners has not been made as per Rule 7 of the Chhattisgarh Daily Wages, Work Charged and Contingency Paid Employees Rules, therefore, they are not eligible for regular pay scale. The impugned order/communication is contrary to the notings/observations and contents of the note-sheet prepared by the respondent No. 3 as well as approval/order dated 29.10.2015. 3. According to the petitioners, the Additional Secretary, Government of Chhattisgarh had written a letter to the respondent No. 2 on 03.10.2006 mentioning therein that as per the department's letter No. F 7-1/03/1/6 dated 4.8.2004, the condition of direct recruitment for appointment to the post of peon in the approved setup of the Administrative Academy has been relaxed and approval of 03 posts of peon to be filled up at Collector rate was granted. Thereafter, the petitioners No. 1 and 2 were appointed vide order dated 04.10.2006 and 28.10.2006 on the post of peon respectively for a period of 89 days at Collector rate on a consolidated remuneration of Rs. 2421/- per month. The order of appointment of the petitioners were renewed from time to time by the respondent No. 3 since 04.10.2006 and 28.10.2006 respectively and as per the renewal, the remuneration was also enhanced year by year. The petitioner No. 3 was appointed vide order dated 15.01.2009 on the post of peon w.e.f. 12.01.2009 for a period of 89 days at Collector rate on a consolidated remuneration of Rs. 2864/ per month. The order of appointment of the petitioner no.3 was renewed for time to time by the respondent No. 3 4 since 15.01.2009 and as per the renewal, the remuneration was also enhanced year by year. The petitioners have the requisite qualification for the said post and have passed class 10th. As the matter stood thus, an order dated 29.04.2016 was issued by respondent No. 3 wherein the petitioners were appointed on the post of peon as per the terms and conditions laid down in the approval/order dated 29.10.2015 passed by respondent No.1. In the approval/order dated 29.10.2015, it has been specifically mentioned that 5 posts for work charged and contingency paid employees have been approved after Finance Department’s concurrence and the petitioners are appointed on the posts. It was further mentioned that, the appointed employees would be treated as temporary employees and after completion of 3 years they would be entitled for regular pay scale at Rs.4750-7440 grade pay Rs.1300 per month. The petitioners after the passing of the order dated 29.04.2016 assumed charge on the post of peon in the afternoon of 29.04.2016 and duly intimated the same to respondent No. 2. The petitioners have completed 3 years of service on 29.04.2019 and have preferred representations before the respondent No. 2 for grant of regular pay scale in view of approval/order dated 29.10.2015 at regular intervals, but, to no avail. Despite making several representations when the respondent No. 2 did not pass orders for grant of regular pay scale to the petitioners in view of approval/order dated 29.10.2015, the petitioners have filed Writ Petitions before this Court which were registered as WPS No. 939/2020 and 937/2020 respectively and after hearing, this Court vide order dated 13.02.2020 & 18.02.2020 was kind enough to dispose of the petitions and directed the respondent authorities to decide the representation of the petitioners within a further period of 60 days from the date of receipt of a copy of the order. While disposing of the aforementioned writ petitions, this Court made the following order/direction at para 2 and 3, which are reproduced below: 5 “2. It is contended that since the petitioners have already completed 3 years of service on 29.04.2019 as such they are entitled to get the pay band of 4750-7440 Grade Pay 1300 as per circular dated 29.10.2015. It is further contended that the petitioners have made several representations, however, the same has not been decided and the pay scale has not been granted to her. So the limited prayer of the petitioners is that the representation of the petitioners may be decided so that the petitioners may get the salary according to the circular dated 29.10.2015. 3. Perusal of appointment letter and the circular would show that the petitioners were appointed on 29.04.2016 which has a reference of circular dated 29.10.2015, therefore, taking into such fact that representation having already been filed which is pending, respondent No. 2 & 3 are directed to decide the same within a further period of 60 days from the date of receipt of a copy of this order.” In compliance of the order passed by this Hon'ble Court dated 13.02.2020 & 18.02.2020 the petitioners preferred representation on 26.02.2020 along with copy of the order passed by this Hon'ble Court for providing benefit according to the circular dated 29.10.2015. Thereafter the respondent No. 2 had written a letter on 22.04.2020 to the Secretary, Government of Chhattisgarh with regards to permission of regular pay band of 4750-7440 Grade Pay 1300 to the contingency employee as per the order of the Hon'ble High Court dated 13.02.2020. The respondent No. 1 Secretary, Government of Chhattisgarh sought information on 22.12.2020 with regards to (i) what is the provision in departmental recruitment rules and (ii) whether or not these posts were approved in the departmental setup. Thereafter the then Director, Chhattisgarh Administrative Academy, Nimora, Raipur District Raipur (C.G.) has given information on 26.12.2020 about the above mentioned queries sought by the 6 Secretary. In the information, it is clearly mentioned that the departmental recruitment rules have not been made in relation to the post of the said employees who are work charged and drawing salary from contingency fund in Chhattisgarh Academy of Administration. The Joint Secretary, Government of Chhattisgarh has given his advice on 29.01.2021 to the respondent No. 2 to take decision as per the rules with regards to pay band of 4750-7440 Grade Pay 1300 to the contingency employee. The representation of the petitioners dated 26.02.2020 was not decided as per the order of this Hon'ble Court dated 13.02.2020, in the meanwhile the respondent No. 3 issued the impugned order/communication dated 22.02.2021 and in the said order/communication wherein it is mentioned that the appointment of the petitioners have not been made as per Rule 7 of the Chhattisgarh Daily Wages, Work Charged and Contingency Paid Employees Rules as such the petitioners are not entitled for the regular pay scale. Thereafter the petitioners and other identically placed employees have filed contempt petition before this Hon'ble Court which were registered as Contempt Case (C) No. 272/2021, 247/2021 and 250/2021. After hearing notices were issued to the contemnors. Out of 3 contempt petitions one contempt case i.e. Cont. Case (C) No. 272/2021 was listed again on 03.01.2022 and after hearing the Hon'ble Court was kind enough to disposed of the Contempt Case No. 272/2021 with liberty to challenge the main grievance under a duly constituted petition. The order dated 22.02.2021 passed by the respondent No. 3 is highly unreasonable, arbitrary and colorable exercise of power violating the fundamental Rights of the petitioner guaranteed under Article 14 and 16 of Constitution of India. Because after the Finance concurrence, the petitioners were posted on vacant and sanctioned posts of Peon and also fulfill the criteria of having completed 3 years of service on 28.04.2019 and thus are entitled for the benefit of regular pay scale 7 in view of approval/order dated 29.10.2015, as there is no ambiguity in the said approval. The order of appointment dated 29.04.2016 was issued after proper approval, before issuing of the order dated 29.04.2016 the complete services of the petitioners were counted and proper note sheet was prepared and after sanctioning of 5 posts the petitioners were appointed on the vacant posts. Hence, the petitions. 4. The petitioners have prayed for the following reliefs in WPS No.387 of 2022: “10.1 That the Hon'ble Court may kindly be pleased to call for the entire records pertaining to the case of the petitioners. 10.2 That, this Hon'ble Court may kindly be pleased to issue an appropriate writ/order/ direction and quash the impugned report of the committee dated 19.02.2021 and communication/orders dated 22.02.2021 issued by respondent no.3. 10.3 That, this Hon'ble Court may kindly be pleased to issue an appropriate writ/order/ direction and direct the respondent No. 2 to confer the benefit of regular pay scale to the petitioners in view of the approval/order passed by Respondent No. 1 dated 29.10.2015 within a specified time frame. 10.4 That, this Hon'ble Court may kindly be pleased to issue an appropriate writ/order/ direction and direct the respondent authorities to take all consequential steps to grant the benefit of arrears of regular pay scale @ 4750-7440 grade pay 1300 to the petitioners w.e.f. 28.04.2019 i.e from the date of completion of three years of service as per the Finance concurrence dated 29.10.2015. 10.5 Any other relief/reliefs which the Hon'ble Court may deem fit and proper in the facts and circumstances of the case may also kindly be granted.” 5. Learned counsel appearing for the petitioners submitted that the impugned report of the committee is erroneous as the committee has ignorantly come to 8 the conclusion that the petitioners were not appointed as per Rule 7 of the Chhattisgarh Daily Wages, Work Charged and Contingency Paid Employees Rules as their names were neither called from the employment office nor their appointment was through any advertisement. The impugned order dated 22.02.2021 is highly unreasonable, arbitrary and colorable exercise of power violating the fundamental Rights of the petitioner guaranteed under Article 14 and 16 of the Constitution of India, as the petitioners were duly appointed after following due process of law. The respondent No. 2 is duty bound to comply and enforce the order of respondent No. 1 dated 29.10.2015 passed in the name of the Governor. The State being a model employer and a welfare State has to work for the overall interest of its employees by conferring the benefit of regular pay scale in consonance of the approval/order passed by Respondent No.1. After the Finance Department’s concurrence, the petitioners were posted on vacant and sanctioned posts of Peon and also fulfill the criteria of having completed 3 years of service on 28.04.2019 and thus are entitled for the benefit of regular pay scale in view of approval/order dated 29.10.2015, as there is no ambiguity in the said approval. The Hon'ble Supreme Court in the case of State of Jharkhand and others v. Kamal Prasad and others, (2014) 7 SCC 223 has held as under: "14. The Division Bench of the High Court after referring to the case of Secretary, State of Karnataka & Ors. v. Umadevi & Ors., has clearly held that if a person has served for 10 years or more, then it is the duty of the State Government to consider his case for regularization in the post. The said conclusion came to be reached by relying on Articles 309, 14, 16 of the Constitution of India. Relying upon Umadevi & Ors. (supra), the High Court has further referred to the judgment in the State of Karnataka & Ors. v. M.L. Kesari & Ors. which is considered by this Court and this Court has clearly held that the case of Umadevi & Ors. (supra) cast a duty upon the State Government to take steps to regularize the services of those irregularly appointed appointees, who 9 had served for more than 10 years without the benefit or protection of any interim order. Further in the said case, this Court has declared that it has been clearly ordered that one time settlement/measure should be taken within six months ie., from 10.04.2006. With reference to the aforesaid decision the learned senior counsel appearing on behalf of the respondent-employees placed reliance upon Article 142 of the Constitution in support of the submission that order of the Supreme Court be respected and implemented by its true meaning and spirit. Therefore, the Division Bench of the High Court accepted the same and came to the conclusion that the claims of the respondent-employees for regularization in their posts are fit cases and they became unfortunate only because of the creation of the State of Jharkhand over which the employees had no control and could not have prevented creation of the State of Jharkhand and because of that reason only, one State cannot take a different stand with respect to the employees appointed by same process. The State Government cannot throw the employees jobless after 30 years of their continuous service in public employment guaranteed under Article 16 of the Constitution, which would result in great injustice since their source of income will be taken away and thereby the employees and their families will suffer due to the arbitrary action of the State Government of Jharkhand which deprived a person of life and liberty guaranteed under Articles 19 and 21 of the Constitution of India." 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." It is most respectfully submitted that irregularity can be cured at a later stage, by not denying the rightful benefits to the petitioners. The position in law has been reaffirmed in a recent judgment of the Hon’ble Supreme Court 10 in State of Jammu & Kashmir and others v. District Bar Association, Bandipora, reported in (2017) 3 SCC 410. The Hon’ble Supreme Court has observed that the judgment in the matter of Secretary, State of Karnataka v. Umadevi, (2006) 4 SCC 1 cleared the cloud in respect of an irregular and illegal appointment. Any appointment which is illegal as per the test laid down in Umadevi (supra) cannot be regularized. It was further held that the scheme of regularization should be such as would require an exercise in the exigencies of the situation, with the view to bring those employees whose employment were irregular within the protective umbrella of regular service but without the intervention or command of a Court's direction. The appointment of the petitioners has been made on a duly sanctioned post and after the concurrence from the Finance Department, therefore cannot be said to be illegal, hence the impugned report as well as the impugned communication/order dated 22.02.2021 is bad in law. As per the letter dated 03.10.2006 written to the respondent No. 2 by respondent No. 1 it has been specifically mentioned that the condition of direct recruitment to the class-IV post of peon has been relaxed and 3 sanctioned/approved. of peon posts Hence the have been respondent authorities cannot take the plea that the appointment of the petitioners was not in accordance with Rule 7 of Contingency Paid Employees Rules. The petitioners are Class IV, employees working on a meagre consolidated payment and are finding it difficult to make their ends meet. The order dated 22.02.2021 passed by the respondent No. 3 is highly unreasonable, arbitrary and colorable exercise of power violating the fundamental Rights of the petitioner guaranteed under Article 14 and 16 of Constitution of India. After the Finance concurrence, the petitioners were posted on vacant and sanctioned posts of Peon and also fulfill the criteria of having completed 3 years of service on 28.04.2019 and thus are entitled for the benefit of regular 11 pay scale in view of approval/order dated 29.10.2015, as there is no ambiguity in the said approval. The order of appointment dated 29.04.2016 was issued after proper approval, before issuing of the order dated 29.04.2016, complete services of the petitioners were counted and proper note sheet was prepared and after sanctioned of 5 posts the petitioners were appointed on the vacant posts. The respondent authorities have earlier passed the order for conferring the benefit of the regular pay scale to the petitioners vide approval dated 29.10.2015 but now are blowing hot and cold without having conducted the process of verification in a transparent manner thereby ignoring the relevant documents and have passed the impugned communication dated 22.02.2021. In the reply filed by the respondent No. 2 in Contempt Case No. 247/2021 & 250/2021, it has been mentioned that the names of the petitioners were not sent by the employment office nor the recruitment has been made through advertisement which is false erroneous and misleading. The non-responsive attitude of the respondent authorities to the representations made by the petitioners and identically placed employees is an act of high handedness and arbitrary exercise of power. 6. Learned counsel appearing for the State/respondents submitted that a perusal of Rule 7 of the Chhattisgarh Daily Wages, Work Charged and Contingency Paid Employees Rules would clearly demonstrate that the appointment of an employee as against a post for Work Charged & Contingency Paid can only be made either by way of direct recruitment or promotion or transfer. There is no other mode of appointment under the said Rules. As far as the direct recruitment is concerned, an advertisement has to be published inviting
Decision
Accordingly, both the writ petitions are allowed. The respondents authorities are directed to grant regular pay scale of Rs.4750-7440 grade pay Rs.1300 to 19 the petitioners. The impugned report dated 19.2.2021 as well as memo dated 22.2.2021 are quashed. The authorities are directed to grant aforementioned higher pay scale and grade pay to the petitioners from the date of their entitlement. 11. With the aforesaid observations and directions, both the writ petitions are allowed. Gopal Singh Sd/- (Amitendra Kishore Prasad) JUDGE