1. This petition under Article 226 of the Constitution of India has been filed against the order dated 28.10.2017 passed by Chief Municipal Officer, Nagar Parishad, Chandla, District Chhattarpur in Case No.1510/NPC/2017/Chandla by which the regularization order of the petitioner dated 10.1.2014 has been cancelled.

2. It is the case of the petitioner that vide order dated 10.7.1998 he was engaged as daily rated employee on the post of Sweeper. The petitioner continued to work as Class IV employee and an experience certificate dated 17.1.2000 was also issued. The service of the petitioner and some other daily wages paid employees were terminated by order dated 15.1.2000 and accordingly the petitioner approached this Court vide W.P.No.469/2000 and an interim order was granted on 24.1.2000. The said writ petition was disposed of by order dated 9.3.2000 with a direction to constitute a screening committee. However, immediately thereafter the services of the petitioner were once again terminated on 1.5.2000. The petitioner approached the Labour Court which quashed his termination order and reinstated him vide order dated 30.11.2004. The petitioner was performing his duties continuously and accordingly Nagar Parishad Chandla passed a resolution dated 12.8.2013 in the President-in-Council according to which the petitioner was to be regularized on the post of Peon carrying the pay-scale of Rs.4440-7440/- plus grade pay of Rs.1,300/-. A formal order dated 10.1.2014 was issued and accordingly the petitioner submitted a formal joining on 13.1.2014. Some wrong information was given by some anonymous person to the respondent no.3 with regard to the date of birth of the petitioner and it was complained that by counting the age of the petitioner from his correct date of birth, he was not even 18 years of age when he was engaged on daily wages. Accordingly, it was claimed that initial order of appointment was incorrect. A show cause notice dated 24.8.2013 was issued by the S.D.M. Lavkush Nagar addressed to the C.E.O. Nagar Parishad Lavkush Nagar in which it was alleged that the mark-sheet of class V of the petitioner is a forged document and it appears that he had not completed 18 years of age at the time of his recruitment. The petitioner did not receive his salary for the month of April, 2015. Initially on enquiry he was given an evasive answer but ultimately by the end of July, 2015 he was informed of an order dated 4.3.2013 by which the Deputy Director had directed that payment of salary to the petitioner be stopped immediately because his regularization by order dated 10.1.2014 was not approved by the Deputy Director. The said order was challenged by the petitioner by filing W.P.No.11242/2014 which was disposed of by order dated 7.8.2014 by which the petitioner was given liberty to approach the Deputy Director, Urban Administration by filing a representation thereby bringing all the necessary facts and documents to his knowledge about his date of birth. The said order was confirmed by the Division Bench of this court in W.P.No.667/2014. Accordingly, the petitioner represented to the Deputy Director requesting to close all the complaints against him with regard to his date of birth. After the aforesaid development the petitioner was given his entire salary. The petitioner continued to work as regular employee, however, one show cause notice dated 29.5.2015 was issued to the petitioner wherein it was alleged that the date of birth of the petitioner as recorded at the time of his first appointment dated 1.7.1998 was 3.4.1980 whereas as per the enquiry report dated 28.12.2014 prepared by the D.E.O. Chhattarpur, the correct date of birth of the petitioner is 3.9.1980 as per the information received from the School. Therefore, he was less than 18 years of age on the date when he was given appointment of daily wages. The petitioner submitted his reply and denied the allegations. By the impugned order dated 14.10.2015 the regularization of the petitioner dated 10.1.2014 has been cancelled on the grounds mentioned above.

3. Challenging the order dated 14.10.2015 passed by the C.M.O. Nagar Parishad Chandla, District Chhattarpur, it is submitted by counsel for the petitioner that all the four allegations made in the impugned order are incorrect. So far as date of birth of the petitioner is concerned, his correct date of birth was recorded at the time of his recruitment. No show cause notice was ever issued to the petitioner with regard to the other three issues. Even copy of the enquiry report on the basis of which it is mentioned that the correct date of birth of the petitioner is 3.9.1980 and not 3.4.1980 has not been supplied. It is submitted that after the impugned order was passed the petitioner has been reverted to the status of daily wages employee.

4. Per contra, it is submitted by counsel for the State that the petition is completely silent with regard to the mode of his appointment. It is nowhere mentioned that the initial appointment of the petitioner as a daily wager was not illegal appointment. There is no whisper that any advertisement was ever issued prior to appointing the petitioner on daily wages. It is further submitted that in the light of the judgment passed by the Supreme Court in the case of State of Karnataka Vs. Uma Devi and others, reported in (2006) 4 SCC 1, [LQ/SC/2006/324] the employees who were given backdoor entry by giving them an appointment in an illegal manner cannot be regularized.

5. Refuting the submissions made by counsel for the respondents it is submitted by counsel for the petitioner that regularization of the similarly situated employees has not been disturbed, therefore, it is a case of hostile discrimination.

6. Heard the learned counsel for the parties.

7. The petition is completely silent with regard to the mode of appointment of the petitioner. The Supreme Court in the case of Umadevi (supra) has held as under :-

"43. Thus, it is clear that adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution, a court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution. Therefore, consistent with the scheme for public employment, this Court while laying down the law, has necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee. If it is a contractual appointment, the appointment comes to an end at the end of the contract, if it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued. Similarly, a temporary employee could not claim to be made permanent on the expiry of his term of appointment. It has also to be clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules. It is not open to the court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad hoc employees who by the very nature of their appointment, do not acquire any right. The High Courts acting under Article 226 of the Constitution, should not ordinarily issue directions for absorption, regularisation, or permanent continuance unless the recruitment itself was made regularly and in terms of the constitutional scheme. Merely because an employee had continued under cover of an order of the court, which we have described as “litigious employment” in the earlier part of the judgment, he would not be entitled to any right to be absorbed or made permanent in the service. In fact, in such cases, the High Court may not be justified in issuing interim directions, since, after all, if ultimately the employee approaching it is found entitled to relief, it may be possible for it to mould the relief in such a manner that ultimately no prejudice will be caused to him, whereas an interim direction to continue his employment would hold up the regular procedure for selection or impose on the State the burden of paying an employee who is really not required. The courts must be careful in ensuring that they do not interfere unduly with the economic arrangement of its affairs by the State or its instrumentalities or lend themselves the instruments to facilitate the bypassing of the constitutional and statutory mandates.

44. The concept of “equal pay for equal work” is different from the concept of conferring permanency on those who have been appointed on ad hoc basis, temporary basis, or based on no process of selection as envisaged by the rules. This Court has in various decisions applied the principle of equal pay for equal work and has laid down the parameters for the application of that principle. The decisions are rested on the concept of equality enshrined in our Constitution in the light of the directive principles in that behalf. But the acceptance of that principle cannot lead to a position where the court could direct that appointments made without following the due procedure established by law, be deemed permanent or issue directions to treat them as permanent. Doing so, would be negation of the principle of equality of opportunity. The power to make an order as is necessary for doing complete justice in any cause or matter pending before this Court, would not normally be used for giving the go-by to the procedure established by law in the matter of public employment. Take the situation arising in the cases before us from the State of Karnataka. Therein, after Dharwad decision [(1990) 2 SCC 396 [LQ/SC/1990/104] : 1990 SCC (L&S) 274 : (1990) 12 ATC 902 : (1990) 1 SCR 544 [LQ/SC/1990/104] ] the Government had issued repeated directions and mandatory orders that no temporary or ad hoc employment or engagement be given. Some of the authorities and departments had ignored those directions or defied those directions and had continued to give employment, specifically interdicted by the orders issued by the executive. Some of the appointing officers have even been punished for their defiance. It would not be just or proper to pass an order in exercise of jurisdiction under Article 226 or 32 of the Constitution or in exercise of power under Article 142 of the Constitution permitting those persons engaged, to be absorbed or to be made permanent, based on their appointments or engagements. Complete justice would be justice according to law and though it would be open to this Court to mould the relief, this Court would not grant a relief which would amount to perpetuating an illegality.

45. While directing that appointments, temporary or casual, be regularised or made permanent, the courts are swayed by the fact that the person concerned has worked for some time and in some cases for a considerable length of time. It is not as if the person who accepts an engagement either temporary or casual in nature, is not aware of the nature of his employment. He accepts the employment with open eyes. It may be true that he is not in a position to bargain—not at arm's length—since he might have been searching for some employment so as to eke out his livelihood and accepts whatever he gets. But on that ground alone, it would not be appropriate to jettison the constitutional scheme of appointment and to take the view that a person who has temporarily or casually got employed should be directed to be continued permanently. By doing so, it will be creating another mode of public appointment which is not permissible. If the court were to void a contractual employment of this nature on the ground that the parties were not having equal bargaining power, that too would not enable the court to grant any relief to that employee. A total embargo on such casual or temporary employment is not possible, given the exigencies of administration and if imposed, would only mean that some people who at least get employment temporarily, contractually or casually, would not be getting even that employment when securing of such employment brings at least some succour to them. After all, innumerable citizens of our vast country are in search of employment and one is not compelled to accept a casual or temporary employment if one is not inclined to go in for such an employment. It is in that context that one has to proceed on the basis that the employment was accepted fully knowing the nature of it and the consequences flowing from it. In other words, even while accepting the employment, the person concerned knows the nature of his employment. It is not an appointment to a post in the real sense of the term. The claim acquired by him in the post in which he is temporarily employed or the interest in that post cannot be considered to be of such a magnitude as to enable the giving up of the procedure established, for making regular appointments to available posts in the services of the State. The argument that since one has been working for some time in the post, it will not be just to discontinue him, even though he was aware of the nature of the employment when he first took it up, is not (sic) one that would enable the jettisoning of the procedure established by law for public employment and would have to fail when tested on the touchstone of constitutionality and equality of opportunity enshrined in Article 14 of the Constitution”.

8. Article 16 of the Constitution of India reads as under :-

16. Equality of opportunity in matters of public employment. —

(1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.

(2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State.

(3) Nothing in this article shall prevent Parliament from making any law prescribing, in regard to a class or classes of employment or appointment to an office [under the Government of, or any local or other authority within, a State or Union territory, any requirement as to residence within that State or Union territory] prior to such employment or appointment.

(4) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.

[(4A) Nothing in this article shall prevent the State from making any provision for reservation [in matters of promotion, with consequential seniority, to any class] or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State.]

[(4B) Nothing in this article shall prevent the State from considering any unfilled vacancies of a year which are reserved for being filled up in that year in accordance with any provision for reservation made under clause (4) or clause (4A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty per cent reservation on total number of vacancies of that year.]

(5) Nothing in this article shall affect the operation of any law which provides that the incumbent of an office in connection with the affairs of any religious or denominational institution or any member of the governing body thereof shall be a person professing a particular religion or belonging to a particular denomination.

[(6) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any economically weaker sections of citizens other than the classes mentioned in clause (4), in addition to the existing reservation and subject to a maximum of ten per cent of the posts in each category.]

9. Article 16(1) of the Constitution of India guarantees equal opportunities for all the citizens of India in the matters relating to employment or appointment to any office under the State.

10. The Supreme court in the case of State of M.P. v. Lalit Kumar Verma, (2007) 1 SCC 575 [LQ/SC/2006/1167] has held as under :-

"12. The question which, thus, arises for consideration, would be: Is there any distinction between “irregular appointment” and “illegal appointment” The distinction between the two terms is apparent. In the event the appointment is made in total disregard of the constitutional scheme as also the recruitment rules framed by the employer, which is “State” within the meaning of Article 12 of the Constitution of India, the recruitment would be an illegal one; whereas there may be cases where, although, substantial compliance with the constitutional scheme as also the rules have been made, the appointment may be irregular in the sense that some provisions of some rules might not have been strictly adhered to."

11. The Supreme Court in the case of Siraj Ahmed Vs. State of U.P. by judgment dated 13.12.2019 passed in Civil Appeal No.9412/2019 has held as under :-

“12. It can thus be seen that this Court has held that the distinction between irregular appointment and illegal appointment is clear. It has been held that in the event appointment is made in total disregard to the constitutional scheme and the recruitment rules framed by the employer, where the employer is “State” within the meaning of Article 12 of the Constitution of India, the recruitment will be illegal one. It has, however, been held that where although, substantial compliance with the constitutional scheme, as also the Rules have been made, the appointment would become irregular inasmuch as some provisions of some rules have been adhered to.

13. Subsequently, another Bench of this Court in State of Karnataka v. M.L. Kesari [State of Karnataka v. M.L. Kesari, (2010) 9 SCC 247 [LQ/SC/2010/772] : (2010) 2 SCC (L&S) 826] also had an occasion to consider the issue. The Court observed thus : (SCC p. 250, para 7) “

“7. It is evident from the above that there is an exception to the general principles against “regularisation” enunciated in Umadevi (3) [State of Karnataka v. Umadevi (3), (2006) 4 SCC 1 [LQ/SC/2006/324] : 2006 SCC (L&S) 753] , 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.”

14. This Court held in M.L. Kesari case [State of Karnataka v. M.L. Kesari, (2010) 9 SCC 247 [LQ/SC/2010/772] : (2010) 2 SCC (L&S) 826] that where the appointments are not made or continued against sanctioned posts or where the persons appointed do not possess the prescribed minimum qualifications, the appointment will be considered to be illegal. However, when the person employed possessed the prescribed qualifications and is working against the sanctioned posts, but had been selected without undergoing the process of open competitive selection, such appointments are considered to be irregular”.

12. Thus, it is clear that before seeking regularization the employee is under obligation to prove that his appointment was not illegal. As already pointed out there is not a single whisper with regard to the nature of initial appointment of the petitioner.

13. Under these circumstances, this court cannot direct the respondents to continue with the order of regularization dated 10.1.2014.

14. So far as the contention that regularization order of the similarly situated persons has not been disturbed by the respondents is concerned, it is well established principle of law that negative equality has no place under Article 14 of the Constitution of India.

15. The Supreme Court in the case of State of Bihar v. Upendra Narayan Singh, reported in (2009) 5 SCC 65 [LQ/SC/2009/615] has held as under :-

“67. By now it is settled that the guarantee of equality before law enshrined in Article 14 is a positive concept and it cannot be enforced by a citizen or court in a negative manner. If an illegality or irregularity has been committed in favour of any individual or a group of individuals or a wrong order has been passed by a judicial forum, others cannot invoke the jurisdiction of the higher or superior court for repeating or multiplying the same irregularity or illegality or for passing wrong order— Chandigarh Admn. v. Jagjit Singh [(1995) 1 SCC 745] [LQ/SC/1995/25] , Jaipur Development Authority v. Daulat Mal Jain [(1997) 1 SCC 35] [LQ/SC/1996/1535] , Union of India v. J.V. Subhaiah [(1996) 2 SCC 258 [LQ/SC/1995/1345] : 1996 SCC (L&S) 558 : (1996) 33 ATC 194] , Gursharan Singh v. NDMC [(1996) 2 SCC 459] [LQ/SC/1996/268] , State of Haryana v. Ram Kumar Mann [(1997) 3 SCC 321 [LQ/SC/1997/329] : 1997 SCC (L&S) 801] , Faridabad CT. Scan Centre v. D.G. Health Services [(1997) 7 SCC 752] [LQ/SC/1997/1266] , Style (Dress Land) v. UT, Chandigarh [(1999) 7 SCC 89] [LQ/SC/1999/756] , State of Bihar v. Kameshwar Prasad Singh [(2000) 9 SCC 94 [LQ/SC/2000/808] : 2000 SCC (L&S) 845] , Union of India v. International Trading Co. [(2003) 5 SCC 437] [LQ/SC/2003/607] and Directorate of Film Festivals v. Gaurav Ashwin Jain [(2007) 4 SCC 737] [LQ/SC/2007/485 ;] .”

16. The Supreme Court in the case of Doiwala Sehkari Shram Samvida Samiti Ltd. v. State of Uttaranchal, reported in (2007) 11 SCC 641 [LQ/SC/2006/1271] has held as under :-

“28. This Court in Union of India v. International Trading Co. [(2003) 5 SCC 437] [LQ/SC/2003/607] has held that two wrongs do not make one right. The appellant cannot claim that since something wrong has been done in another case, directions should be given for doing another wrong. It would not be setting a wrong right but could be perpetuating another wrong and in such matters, there is no discrimination involved. The concept of equal treatment on the logic of Article 14 cannot be pressed into service in such cases. But the concept of equal treatment presupposes existence of similar legal foothold. It does not countenance repetition of a wrong action to bring wrongs on a par. The affected parties have to establish strength of their case on some other basis and not by claiming negative quality. In view of the law laid down by this Court in the above matter, the submission of the appellant has no force. In case, some of the persons have been granted permits wrongly, the appellant cannot claim the benefit of the wrong done by the Government.”

17. Thus, it is clear that the petitioner has to stand on his own legs and he cannot claim that some wrong has been committed by the respondents, therefore, respondents should be directed to commit same wrong. Two wrongs would not result in correct action. Since the petitioner has failed to justify his initial appointment as a daily wager, therefore, this court is of the considered opinion that no interference can be made in absence of proof with regard to the nature of his initial appointment.

18. Accordingly, the petition fails and is hereby dismissed.