1 2025:CGHC:14138 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WPS No. 778 of 2016 1 - Narayan Markande S/o Konda Ram Markande, Aged About 39 Years Occupation Service, R/o Kumhadatola, Post And P.S. Dongargarh, Tahsil Dongargarh, District Rajnandgaon Chhattisgarh, Chhattisgarh ... Petitioner(s) versus 1 - State Of Chhattisgarh Through Secretary, Department Of Urban Administration And Development Mantralaya Naya Raipur, District Raipur Chhattisgarh, Chhattisgarh 2 - Urban Administration And Development, Regional Office, Durg Division, Through Its Joint Director, Urban Administration And Development, Regional Office, Durg Division, Durg Chhattisgarh, District : Durg, Chhattisgarh 3 - Municipal Council, Dongargarh, Through The Chief Municipal Officer, Municipal Council, Dongargarh, Tahsil Dongargarh District Rajnandgaon Chhattisgarh., District : Rajnandgaon, Chhattisgarh ... Respondent(s) For Petitioner(s) : Mr. Sourabh Sharma and Ms. Harneet Kaur, Advocates For State / Respondent Nos. 1 & 2 : Mr. Abhishek Singh, PL For Respondent No. 3 : Mr. Shikhar Shukla, Advocate Hon’ble Shri Justice Sachin Singh Rajput Order on Board 24/03/2025 This writ petition has been filed by the petitioner claiming following reliefs : I. That, this Hon'ble Court may kindly be pleased to issue a writ/writs, order/orders, direction/directions commanding and directing the respondents-authorities to consider the case of 2 petitioner for regularization in accordance with circular dated 05/03/2008. ii. That, this Hon'ble Court may kindly be pleased to issue a writ/writs, order/orders, direction/directions commanding and directing that period from 2006 to 2013 is not a break period and is continuity of service. iii. Any other relief as this Hon'ble Court may deems fit looking to the facts and circumstances of the case may also be awarded. 2. Learned counsel for the petitioner submits that the petitioner is an employee of Municipal Council, Dongargarh and he was appointed as daily wager and presently working on the post pump attendant. The initial appointment of the petitioner was made in the year 1991 and he continued as such till July, 2006. However, by an oral order, the services of the petitioner as daily wager were discontinued by the respondent No. 3. This action of the petitioner was subjected to challenge after reference having been made before the Labour Court. The Labour Court vide its order dated 28.06.2012 (Annexure P-1) passed in Case No. 39/I.D.Act/reference/2010 reinstated the petitioner and the finding has been given that the petitioner continued to work with respondent No. 3 from the year 1991 to July 2006. He submits that in compliance of the order passed by the Labour Court, vide Annexure P-2 and communication dated 17.04.2013 the petitioner was asked to make his joining and ultimately on 26.04.2013, the petitioner joined with the respondent No. 3. He submits that in the light of judgment passed by the Hon’ble Supreme Court in case of Secretary, State of Karnataka and others Vs. Uma Devi (3) and others, (2006) 4 SCC 1, the State Government has issued a circular dated 05.03.2008 for consideration of cases of daily wagers who had been performing their duties till 31.12.1997. He submits that various conditions have been mentioned for the proceedings of regularization and one of the conditions is that the daily wagers ought to have been in continuation of service till 31.12.1997. He submits that though the petitioner was terminated in the year 2006 by an oral order, he was reinstated the order of Labour Court in light of judgment passed by this Court in Writ Petition No. 3747 of 2005 dated 21.01.2013 State of Chhattisgarh Vs. Presiding Officer, Labour Court and others, the period between termination and the reinstatement 3 should be considered to be continuation of the service. Thus, considering the case of the petitioner, his name was also forwarded by the respondent No. 3 to the State Government for regularization but till date, he has not been regularized. 3. Learned counsel for the respondents submits that the circular dated 05.03.2008 postulates various conditions to be fulfilled by the daily wagers before his case could be considered for regularization and one of the conditions is that he should be in continuation of service till 31.12.1997. Apart from this, other conditions are required to be fulfilled like the educational qualification, availability of the post etc. They submit that the petitioner did not fulfill the condition No. (iii) and there was a break in service from the year 1991 till 2006 therefore, the case of the petitioner could not be considered for regularization. 4. In rejoinder, Mr. Sharma, Advocate submits that this defence cannot be permitted to be taken by the respondents as the same was available to them in the proceedings before the Labour Court and as such the issue with regard to continuation of service has been set at rest by the order of the Labour Court. This Court has also laid down the law that the services are deemed to be continued from the retrenchment till the reinstatement and the submission amount to res judicata for which he placed reliance upon the judgment of Hon’ble Supreme Court in case of Samir Kumar Majumder Vs. Union of India, AIR 2023 SC 4698 in which it has been head as under:- “32. In the earlier round of proceedings culminating in the order of this Court dated 15.02.1996, this issue was never raised. His claim for absorption as an assistant teacher in the Higher Secondary Section is clearly barred by constructive res judicata. Law on Constructive Res Judicata: 33. Almost two centuries ago, in Henderson vs. Henderson, (1843) 3 Hare, 100, the Vice-Chancellor Sir James Wigram felicitously puts the principle thus:- “In trying this question I believe I state the rule of the Court correctly when I say that, where a given matter becomes the subject of litigation in, and of adjudication by, a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and 4 pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time. ….” 34. This principle popularly known as the doctrine of constructive res judicata, based on the might and ought theory, has been recognized by this Court in several judgments. In Maharashtra Vikrikar Karamchari Sangathan vs. State of Maharashtra and Another, (2000) 2 SCC 552, this Court held as under:- “22. It was then contended on behalf of the appellants that neither the Recruitment Rules of 1971 nor the Seniority Rules of 1982 provided for carrying forward the vacancies falling in either category. In the absence of such rules which specifically provide for carrying forward the vacancies falling in either category, no such carry-forward rule could be implied either in the Recruitment Rules or in the Seniority Rules. This contention need not detain us any longer because such a contention was available to the appellants in the earlier proceedings, namely, Transfer Application No. 822 of 1991 and the same was not put in issue. That not having been done, it must follow that such a contention is barred by the principles of constructive res judicata. Neither the contesting respondents nor the appellants ever raised this contention at any stage of the proceedings in Transfer Petition No. 822 of 1991. It would, therefore, be too late to raise such a contention when the seniority list has been finalized pursuant to the judgment of MAT, Bombay Bench in Transfer Petition No. 822 of 1991.” 5. I have heard learned counsel for the parties and perused the records. 6. Firstly, this Court would like to deal with the issue as to whether the respondents can raise a defence with regard to break in service in consonance with the condition No. iii of the circular dated 05.03.2008? From perusal of record, it appears that the petitioner was orally terminated from service as a daily wager which was put to challenge before the Labour Court. Labour Court vide its order dated 17.04.2013 gave a categorical finding that the petitioner was in continuation of service from 1991 till July 2006. 7. The respondents had all the opportunity to raise this issue before the Labour Court. Even if they have raised the same here, it has to be tuned down as it has not been brought to the notice of this Court whether the order of the Labour Court was put to challenge before the higher judicial forums or not. Therefore, as regards continuation of service without any break from 1991 to July 2006 has already been decided in favour of the petitioner and thereafter in light of judgment of this Court in Writ Petition No. 3747 of 2005 dated 21.01.2013 State of Chhattisgarh Vs. Presiding Officer, Labour Court and others, till today, the petitioner can safely be said to be in continuation of service. Therefore, in light of 5 judgment of Hon’ble Supreme Court in case of Samir Kumar Majumder (supra) respondents are restrained from taking a plea with regard to break in service of the petitioner. 8. Therefore, the condition No. (iii) put in circular dated 05.03.2008 cannot come in the way of consideration of the case of the petitioner for regularization. However, apart from this, various other conditions have also been put like the educational qualification, availability of the post etc, which certainly the respondent/State has the authority to look into for ascertaining the suitability of the case of the petitioner for regularization. 9. In light of above, this petition is disposed of at this stage, directing the respondents that without insisting upon fulfillment of the condition No. iii of the circular dated 05.03.2008, the case of the petitioner shall be considered by the respondents in light of circular dated 05.03.2008 and if the petitioner is found suitable and eligible, his case may be considered for regularization at the earliest preferably within an outer limit of 120 days from the date of receipt of copy of this order. 10. In view of above, this writ petition is disposed of. Sd/- (Sachin Singh Rajput) JUDGE Pawan