2025:CGHC:52906 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WPS No. 12339 of 2025 1 - Dukalu Ram S/o Uderam Aged About 59 Years Working As Daily Wager Employee And Posted At Office Of Water Resources Department Balar Canal Water Resources Sub Division Kasdol, Distt. Balodabazar-Bhatapara, Chhattisgarh. ... Petitioner(s) versus 1 - State Of Chhattisgarh Through The Secretary, Water Resources Department, Mantralaya, Mahanadi Bhawan, Atal Nagar, Naya Raipur, Distt. Raipur, Chhattisgarh. 2 - Director Directorate Of Water Resources Department, Atal Nagar, Nawa Raipur, Distt. Raipur, Chhattisgarh. 3 - The Chief Engineer Mahanadi Godawari Kachhar, Water Resources Department Raipur, Distt. Raipur, Chhattisgarh. 4 - Executive Engineer Water Resources Department Tahsil Kasdol Distt Balodabazar-Bhatapara, Chhattisgarh. 5 - The Sub Divisional Officer Balar Canal Water Resources Sub Division Kasdol Distt. Balodabazar Bhatapara, Chhattisgarh. ---- Respondents For Petitioner : Mr. K.P. Sahu, Advocate For State : Mr. Aditya Tiwari, Panel Lawyer Hon'ble Shri Justice Narendra Kumar Vyas Order on Board KISHORE KUMAR DESHMUKH Digitally signed by KISHORE KUMAR DESHMUKH Date: 2025.12.09 11:03:39 +0530 30.10.2025 1. The petitioner has filed this writ petition challenging the order dated 11.01.2018 passed by the Chief Engineer, Mahanadi Godawari Kachhar, WRD by which the representation of the petitioner for regularization has been rejected on the count that he was not appointed against sanctioned post and also on the count that he does not possess requisite qualification as he has not cleared Class Vth examination. 2. Brief facts as reflected from the record are that the petitioner was appointed as daily wages on 01.04.1989. Petitioner’s services were orally terminated by the respondents on 03.01.2003 and the petitioner challenged the said termination before Labour Court Raipur (C.G.) which was registered as Case No. 187/MPIRA/95. The learned Labour Court vide its award dated 30.1.2003 has directed for reinstatement of the petitioner without back wages. The State Government moved an appeal before the Industrial Court, Raipur in Civil Appeal No. 47/MPIR/A/II/2003 which was dismissed on 01.12.2004. Aggrieved with the same, the State preferred Writ Petition before this Court on 31.08.2005 which was registered as W.P. No. 4097/2005. During pendency of the writ petition the petitioner was reinstated in service on 29.09.2005. The coordinate Bench of this Court vide order dated 02.12.2013 allowed the petition and set aside the order dated 01.12.2004 passed by the Industrial Court and Order dated 03.01.2003 and directed the State to decide the case of the petitioner for regularization strictly in terms of Circular dated 05.03.2008. The respondents vide impugned order dated 11.01.2018 has rejected the claim of the petitioner for regularization though the petitioner is still working as daily wage worker and completed 25 years of continued service. 3. Learned counsel for the petitioner would submit that though the petitioner has worked for more than 25 years as daily wage worker still his service has not been regularised. He would further submit that other daily wage workers namely Khelap Ram has been regularised vide order dated 06.06.2022 who is also not having qualification of Class Vth Examination, thus, he has been put to hostile discrimination, therefore he would pray for allowing the petition. 4. Per contra, learned State Counsel would submit that the petitioner does not fulfill requisite qualification of Class Vth Examination, therefore, his case for regularization cannot be considered and the writ petition deserves to be dismissed. 5. I have heard learned counsel for the parties and perused the record. 6. The State Government has issued circular dated 05.03.2008 in view of the judgment of Hon’ble Supreme Court in case of Secretary State of Karnataka & Others vs. Uma Devi & Others reported in (2006) 4 SCC 1 wherein the Hon’ble Supreme Court has directed for regularization of daily wages employees as one time measure, the Hon’ble Supreme Court in paragraphs 53 and 54 has held as under:- “53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S. V. Narayanappall R.N. Nanjundappa and B.N. Nagarajan and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been d made and the employees have continued to work for ten 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 abovereferred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take e steps to regularise 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 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 be set in motion within six months from this date. We also clarify that regularisation, if any already made, but not sub judice, need not be reopened based on this judgment, but there should be no further bypassing of the constitutional requirement and regularising or making permanent, those not duly appointed as per the constitutional scheme. 54. It is also clarified that those decisions which run counter to the principle settled in this decision, or in which directions running counter to what we have held herein, will stand denuded of their status as precedents.” 7. In the said Circular dated 05.03.2008 for regularization of service of daily wage employee / temporary employee and under Clause B, it is mentioned that regularization of an employee engaged in between 01.01.1989 to 31.12.1997 as daily wage / temporary employee. In the said Circular, under Clause 2 (ii) and (Vii) wherein it is specifically provided that regularization be made against sanctioned and vacant post and it further mentions that wherever in the Department it is required, supernumerary post be created. Clause 2 (ii) and (vii) is extracted below for ready reference : ii. nSfud osru ij] rnFkZ #i ls vFkok dysDVj nj ij ¼nSfud osru ij½ tc ls fu;qfDr gqbZ rc ls vc rd ml in dh vko’;drk jghs gS vkSj vkxs Hkh ml in dh vko’;drk gks rks lacaf/kr in ds fo#) ,sls O;fDr dks inLFk ekurs gq, fopkj fd;k tk ldsxkA vii. fu;fefrdj.k Lohd`r ,oa fjDr in ij gh fd;k tk,xkA bl gsrq ftu foHkkxksa esa vko’;d gks ogka lka[;srj in fufeZr fd;s tk;saA ;fn in gh dysDVj nj ij Lohd`r gks rks Lohd`r inksa ¼nSfud osru ij½ dks fu;fer osrueku esa ifjofrZr ¼l`ftr½ djuk gksxkA 8. From bare perusal of the aforesaid circular dated 05.03.2008 it is quite vivid that Clause-B (2)(ii) provides that if a daily wage employee who is appointed between 01.01.1989 to 31.12.1997 can be regularised if his services are required. The petitioner has joined services on 01.04.1989 and till date he is in service for more than 25 years, indicates that his service is required. Even if there is no vacant regular post available in the department, as per Clause 2(Vii) of the circular, supernumerary post may be created, still the case of the petitioner has not been considered for regularisation. The respondents while rejecting the claim of the petitioner who is working as Mate in the Water Resources Department and their service is governed by Chhattigarh Water Resources Department Work Charged and Contingency Paid Employees Recruitment and Service Condition Rules, 1977 the Rule 7(2D) provides that the qualification should be essential which is required for regular appointment and where post is not existed in regular establishment in the department then the qualification can be prescribed by the authorities. Since the petitioner is working as Mate in the Water Resources Department as work-charged and contingency paid employee and there is no equivalent post in the regular establishment, as such, the qualification of passing Vth class is not mandatory. Since, the rule is silent about the qualification, therefore, the respondents by way of executive instruction cannot fillup the lacunae. It is well settled position of law that the executive instruction can be issued by the State to carry out the rules but cannot supplement or replace the Rules. Thus, the stand of the respondents that the petitioner is not having requisite qualification of Class Vth, therefore, his claim for regularsation cannot be considered, is misconceived and deserves to be rejected accordingly, it is rejected. 9. Further reason for declining the claim of the petitioner that post is not available, therefore, it cannot be considered, is misconceived as the Hon’ble Supreme Court in case of Jaggo vs. Union of India {2024 INSC 1034} has held as under :- 11. The appellants, throughout their tenure, were engaged in performing essential duties that were indispensable to the day-to-day functioning of the offices of the Central Water Commission (CWC). Applicant Nos. 1, 2, and 3, as Safaiwalis, were responsible for maintaining hygiene, cleanliness, and a conducive working environment within the office premises. Their duties involved sweeping, dusting, and cleaning of floors, workstations, and common areas—a set of responsibilities that directly contributed to the basic operational functionality of the CWC. Applicant No. 5, in the role of a Khallasi (with additional functions akin to those of a Mali), was entrusted with critical maintenance tasks,including gardening, upkeep of outdoor premises, and ensuring orderly surroundings. 12. Despite being labelled as “part-time workers,” the appellants performed these essential tasks on a daily and continuous basis over extensive periods, ranging from over a decade to nearly two decades. Their engagement was not sporadic or temporary in nature; instead, it was recurrent, regular, and akin to the responsibilities typically associated with sanctioned posts. Moreover, the respondents did not engage any other personnel for these tasks during the appellants’ tenure,underscoring the indispensable nature of their work. 13. The claim by the respondents that these were not regular posts lacks merit, as the nature of the work performed by the appellants was perennial and fundamental to the functioning of the offices. The recurring nature of these duties necessitates their classification as regular posts, irrespective of how their initial engagements were labelled. It is also noteworthy that subsequent outsourcing of these same tasks to private agencies after the appellants’ termination demonstrates the inherent need for these services. This act of outsourcing, which effectively replaced one set of workers with another, further underscores that the work in question was neither temporary nor occasional. 10. Since, the Recruitment Rule is silent about the educational qualification and the petitioner is working since 1989, therefore, his case has to be considered for regularization as per Clause-B of the policy of the State Government dated 05.03.2008 without insisting for educational qualification within 3 months from the date of receipt of copy of this order. 11. With the aforesaid observation and direction, the writ petition is allowed. Sd/- (Narendra Kumar Vyas) Judge kishore