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