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Judgment
1) The case in brief is that the petitioner on 8th March, 2005 was allowed to officiate as L.D.A. by the Director of Health Services, (MI) for a period of 2 months from the date of joining with a break of 7 days. Thereafter, similar letters have been issued by the Director of Health Services for a period of 90 days at a time, with 1 day break in service on many occasions. The pleaded case of the petitioner is that the appointment was against a vacant sanctioned post and in spite of completing 10 years in service, his services were not considered for regularization, and the representations filed in this regard have also remained unanswered till date.
2) Mr. S.C. Chakrawarty, learned senior counsel assisted by Ms. E. Slong, learned counsel for the petitioner submits that the petitioner was initially allowed to officiate as L.D.A. in the Directorate of Health by order dated 8th March 2005, and the same was for a period of 2 months with a break of 7 days. He also submits that thereafter the petitioner was kept on officiating basis for a period of 3 months at a time with 1 day break in service, and this arrangement continues till date.
3) Mr. S.C. Chakrawarty, learned senior counsel submits that the simple prayer made in the writ petition is for regularization of the services of the petitioner who has completed 10 years of continuous service against the vacant post. The learned senior counsel to buttress his case has also placed reliance on the case of U.P. State Electricity Board vs. Pooran Chandra Pandey &Ors. reported in (2007) 11 SCC 92 which he submits, an exception has been carved out from the application of the decision in the case of the Secretary, State of Karnataka & Ors. v. Umadevi & Ors. reported in (2006) 4 SCC 1 in such matters.
4) Ms. S. Bhattacharjee, learned GA in reply to the submissions made by the learned senior counsel for the petitioner submits that no case is made out for issuance of mandamus for regularization the services of the petitioner. Learned counsel contends that firstly, the petitioner has not been serving continuously as claimed but the officiating appointment has been renewed from time to time. She also submits that the appointment is irregular, without following due process of selection and further as reflected in a series of orders, it has been clearly indicated therein that the officiating arrangement was contingent upon the filling up of the post by a regular candidate to be recommended by the M.P.S.C.
5) The learned GA further submits that the case of the petitioner will not be covered by the exception of Para-53 of Umadevi's judgment. The learned GA has placed reliance on the judgment dated 7th March, 2017 passed in the case of Secretary to Govt. Commercial Taxes and Registration Department, Secretariat and Anr. vs. A. Singamuthu in Civil Appeal No. 3770 of 2017 wherein she submits that continuance of service for a long period on part-time and on temporary basis confer no right to seek regularization in service. Learned counsel next cited the case of State of Rajasthan & Ors. vs. Dayalal & Ors. reported in (2011) 2 SCC 429 where similar views has been held, and also placed reliance on the case of State of Karnataka & Ors. vs. M.L. Kesari & Ors. reported in (2010) 9 SCC 247 where the law as laid down by Umadevi was reiterated.
6) After hearing the learned counsel for the parties, the only point which emerges for consideration is whether by virtue of serving for over 10 years against a sanctioned post, though in officiating arrangement with breaks in service, the petitioner would be entitled to claim and be considered for regularization. The law in this regard has been enunciated in a multitude of judgments post Umadevi also. However as the arguments advanced are for consideration of the case of the petitioner as against Para 53 of Umadevi, the petitioner's eligibility and his claim are to be examined as per the requirements set out therein, and whether the said claim will fall within the exception as set out in Para-53 of the judgment.
7) In the instant case, the undisputed fact is that the petitioner was appointed as far back as on 8th March, 2005, which was renewed from time to time for periods not exceeding 90 days. On examination and on consideration of the facts and materials, it is seen that, even if the service as rendered by the petitioner is taken to be continuous, notwithstanding the artificial breaks, the petitioner would still not come within the exception as prescribed by Umadevi, as the petitioner was not in service for the required period before the said decision. In this regard to illustrate the same, it would be apposite to refer herein, to the judgment rendered by the Hon'ble Supreme Court in the case of State of Karnataka & Ors. vs. M.L. Kesari & Ors. reported in (2010) 9 SCC 247, as placed by the learned counsel for the respondents. This ruling, has explained and applied the exception as carved out by Para 53 Umadevi's judgment, as also to the circumstances under which such persons were to be considered, apart from distinguishing from the prescribed period of 6 months, commencing from 10th April, 2006 for such consideration. Paras 6, 7 & 8 of the judgment which are relevant are quoted herein below:-
"6.This Court in Umadevi (2006) 4 SCC 1 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 : (SCC p. 42, para 53)
"53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in State of Mysore v. S.V. Narayanappa, AIR (1967)SC 1071, R.N. Nanjundappav. T. Thimmiah, (1972) 1 SCC 409 and B.N. Nagarajan v. State of Karnataka (1979) 4 SCC507 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 fourteen 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 fourteen 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 beset in motion within six months from this date."
It is evident from the above that there is an exception to the general principles against "regularisation" enunciated in Umadevi, if the following conditions are fulfilled :
(i) 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.
(ii) 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 casts a duty upon the concerned Government or instrumentality concerned, to take steps to regularize the services of those 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)." (Emphasis supplied)
8) Apart from the law as laid down by this judgment, the case of the petitioner does not also come under the scope for consideration as applied to daily wages/adhoc/casual employees who have put in 10 years continuous service as on 10th April, 2006, without availing the protection of any interim order of the courts or of tribunals, who were however not considered within the 6 month period, or were not part of a onetime exercise to be considered in terms of Para-53 as laid down in Para-11 of the above quoted judgment. Para-11 for easy reference is quoted herein below:-
"11. The object behind the said direction in para 53 of Umadevi is two-fold. First is to ensure that those who have put in more than ten years of continuous service without the protection of any interim orders of courts or tribunals, before the date of decision in Umadevi was rendered, are considered for regularization in view of their long service. Second is to ensure that the departments/instrumentalities do not perpetuate the practice of employing persons on daily-wage/ad-hoc/casual basis for long periods and then periodically regularize them on the ground that they have served for more than ten years, thereby defeating the constitutional or statutory provisions relating to recruitment and appointment. The true effect of the direction is that all persons who have worked for more than ten years as on 10.4.2006 (the date of decision in Umadevi) without the protection of any interim order of any court or tribunal, in vacant posts, possessing the requisite qualification, are entitled to be considered for regularization. The fact that the employer has not undertaken such exercise of regularization within six months of the decision in Umadevi or that such exercise was undertaken only in regard to a limited few, will not disentitle such employees, the right to be considered for regularization in terms of the above directions in Umadevi as a one-time measure."
9) The case of U.P. State Electricity Board vs. Pooran Chandra Pandey &Ors. reported in (2007) 11 SCC 92 as set out by the learned senior counsel for the petitioner is not applicable in the instant case as the said case is on a different set facts and circumstances altogether.
10) For the foregoing reasons and in the facts and circumstances of the case, no case is made out for issuance of mandamus for regularization of services of the petitioner; as such the writ petition is accordingly dismissed.
11) However, dismissal of the writ petition will not bar the respondents from answering the representation of the petitioner for consideration.
12) No order as to costs.