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VED PRAKASH SHUKLA AND ANOTHER versus STATE OF U.P. AND OTHERS

High Court of Judicature at Allahabad

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Ved Prakash Shukla And Another v. State Of U.P. And Others - WRIT - A No. 53887 of 2004 [2006] RD-AH 20445 (1 December 2006)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

         Reserved

     Court No.55

 Civil Misc. Writ Petition No. 53887 of 2004

  Ved Prakash Shukla and another

Versus

State of U.P. through  Secretary, Ministry of Law and Justice, U.P.

           Lucknow and others  

Hon.Shishir Kumar, J.

The present writ petition has been filed for quashing the order dated 29.09.2004 and 18.11.2004 (Annexures 3 to the writ petition). Further issuing a writ in the nature of mandamus commanding the respondents to allow the petitioners to continue and further direction for constituting the Selection Committee to take final decision with regard to regularization of ad hoc appointees or to absorb the petitioners on the post likely to be vacant due to promotions.  

The facts arising out of the present writ petition are that the petitioner No.1 was appointed on 1.7.1999 on the post of Typist-cum-clerk on ad hoc basis against the sanctioned vacant post initially for a period of three months in the newly created Judgeship of District Kaushambi.  The petitioner No.2 was appointed as Stenographer on ad hoc basis.  The nature of appointment of both the petitioners are the same.  Both the petitioners have completed three years of continuous service, moved separate representations to the respondent No.3 for regularizing their services under their judgeship.  After receiving the representation of the petitioners the then District and Session Judge, Kaushambi sent a detailed report for regularization of ad hoc employees in the Hon'ble High Court for a direction in this regard.  The same was placed before the Inspecting Judge and after close scrutiny, the matter was sent back to the District Judge to take appropriate action in the matter of regularization of the employees of the district.  The respondent No.3 should have considered the case of the petitioners regarding regularization.  However, the respondent No.3 vide its letter dated 11.12.2002 requested the Hon'ble Inspecting Judge for extension of services of the employees working on ad hoc basis in his judgeship from the date of their joining to 31.1.2003.  In pursuance of the aforesaid letter, the Inspecting Judge of the Kaushambi Judgeship has communicated the respondent No.3 and directed not to make any ad hoc appointment, however, the persons who are working on ad hoc basis may be considered for regularization according to Rules.  A Selection Committee was constituted for the purposes of regularizing the services of ad hoc appointees and requested the High Court to allow the ad hoc appointees who were working since long to continue till the selection process is over.  Instead of giving permission an order was passed on 20.5.2003 terminating the services of all the ad hoc employees.  A writ petition was filed before this Court and by order dated 28.5.2003, an interim order was granted and subsequently by order dated 9.7.2003, an advertisement was issued in the newspaper for recruitment of stenographer, Typist-cum-clerk and class IV employee. Since the petitioners were assured for regularization of their services by the then District Judge they applied in pursuance of the advertisement.  It was also provided that the persons working on ad hoc basis will be considered for appointment by the District Judge and shall be allowed to complete in the regular selection while granting permission to file application of appearing in the examination within a week.

It has been submitted on behalf of the petitioner that various selections were made and there was a mass scale bungling was there in the said selection but the petitioners submit that they have not been considered.  The further submission has been made by the petitioners that the petitioners have clearly been discriminated that one Sri Rakesh Kumar Dixit, who was also appointed on ad hoc basis his services were regularized.  Further it has also been submitted that in other various districts the services of other persons have also been regularized.  The respondents without considering the legitimate claim of the petitioners issued a fresh advertisement in the newspaper on 31.7.2004.  Aggrieved by the aforesaid action on the part of the respondent No.3 not regularizing the services of the petitioners, they filed a Writ Petition before this Court as Writ Petition No.32651 of 2004. The writ petition was disposed of finally with a direction to the respondent No.3, District Judge, Kaushambi to decide the representation dated 20.7.2004 preferred by the petitioners with reasoned and speaking order within a period of two months.  The respondents without complying the order of this Court vide impugned order dated 20.9.2004 have dispensed the services of all the ad hoc employees with effect from 30.9.2004. Aggrieved by the aforesaid order, the petitioners have approached this Court.

The writ petition was entertained and by order dated 17.12.2004, this Court was pleased to grant time to the respondents for filing the counter affidavit and a direction as given to consider the case of the petitioners for appointment on the basis of experience, which they have rendered within a considerable period.

Petitioners submit that in spite of the aforesaid order, the claim of the petitioners has not been considered.

The petitioner has also placed reliance upon the various correspondence and has also submitted that the petitioners have been discriminated as various ad hoc appointees in various other districts, their services have been regularized, as such, the petitioners are also entitled for the same relief and the claim of the petitioners may be considered and services of the petitioners be regularized.

A counter affidavit has been filed and this fact has been denied that the Selection Committee was constituted for the purposes of consideration of the case of the petitioners for regularization of ad hoc employees.  The Committee was constituted for regular recruitment on Class III employees. On the basis of the order passed by the Hon'ble Administrative Judge in letter-dated 1.5.2005, the services of all the ad hoc appointees have been ceased.  It is wrong to say that any representation including the petitioners was pending.  In compliance of the order dated 9.7.2003, passed in Writ Petition No.23939 of 2003 a competitive examination was held and the results of successful candidates were declared on 29.9.2004.  But in spite of the order of this Court the petitioners did not appear in the examination although they have submitted their forms.  On the basis of select list, successful candidates have already joined and the other selected candidates are in the waiting list which is having life of one year.  The application for consideration of regularization of services of the petitioners was moved after constitution of new Committee for selection of Class III employees on the basis of competitive examination.  As the petitioners have not appeared in the examination, therefore, have got no right. The further submission has been made on behalf of the respondents that it is now well settled that ad hoc employees have got no right to the post.

I have considered the submission made on behalf of the parties and have perused the record.

From the record it is clear that the appointment of the petitioners were on ad hoc basis initially for a period of three months.  Subsequently on the basis of work the same was extended from time to time.  It is also apparent from the record that on the basis of advertisement fresh selection has already been made, the petitioners were given a liberty and opportunity to appear in the selection but they have not chosen so.  The petitioners have not come out with a case and are not able to proof from the record that the ad hoc appointment of petitioners were made on the basis of the procedure provided for the purposes of ad hoc appointment, whether the proper advertisement was made and the names were sponsored from the Employment Exchange and a proper Selection Committee for the purpose of ad hoc appointment was constituted, then the petitioners were appointed.  The petitioners are not able to prove or show from the record the aforesaid fact.  The reliance has been placed by the petitioners in the judgment of the Apex Court in Piara Singh Vs. State of Haryana, SLR 739, and it has been stated that as the petitioners have completed three years of service, as such, they are entitled for regularization.  If the petitioners do not come under the purview of the Ad hoc Appointments Regularization Niyamawali 2001, a person cannot claim regularization.

Now the Apex Court in case of Secretary of Karnataka Vs. Uma Devi and others reported in Judgment Today 2006(4) Supreme Court , 420 , the five Hon'ble Judges of the Hon'ble Apex Court has clearly held 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 under 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.  The 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 completion among qualified persons, the same would not confer any right on the appointee.  If it were an engagement and 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 been 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 employee whose period of employment has come to an end or of ad hoc employee who by the very nature of their appointment, do not acquire any right. The High Courts acting under Article 226 of the Constitution of India should not ordinarily issue for absorption, regularization or permanent continuance unless the recruitment itself was made regularly and in terms of the constitutional scheme.  

The Apex Court has further observed that while directing that appointments, temporary or casual, be regularized or made permanent, courts are swayed by the fact that concerned person has worked for sometime and in some cases for a considerable length of time.  It is not as if a 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 arms 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 causally got employed should be directed to be continued permanently.  The Apex Court has further observed that by doing so, it will be creating another mode of public appointment which is not permissible.

Another judgment reported in 2006 Supreme Court Cases (Labour and Service ) 1580, Principal, Mehar Chand Polytechnic and another Vs. Anu Lamba and others . While considering the cases of absorption of ad hoc/temporary appointees/promotees, the Apex Court again has considered the various judgments of the Apex Court as well as the case of Uma Devi (Supra).  The Apex Court has observed as follows:-  

"34. The rule of law compels the State to make appointments as envisaged by the Constitution and in the manner we have indicated earlier.  In most of these cases, no doubt, the employees had worked for some length of time but this has also been brought about by the pendency of proceedings in tribunals and courts initiated at the instance of the employees.  Moreover, accepting an argument of this nature would mean that the State would be permitted to perpetuate an illegality in the matter of public employment and that would be a negation of the constitutional scheme adopted by us, the people of India.  It is therefore not possible to accept the argument that there must be a direction to make permanent all the persons employed on daily wages. When the court is approached for relief by way of a writ, the court has necessarily to ask itself whether the person before it had any legal right to be enforced.  Considered in the light of the very clear constitutional scheme, it cannot be said that the employees have been able to establish a legal right to be made permanent even though they have never been appointed in terms of the relevant rules or in adherence of Articles 14 and 16 of the Constitution."

35. The respondents did not have legal right to be absorbed in service.  They were appointed purely on temporary basis.  It has not been shown by them that prior to their appointments, the requirements of the provisions of Article 14 and 16 of the Constitution had been complied with.  Admittedly, there did not exit any sanctioned post.  The Project undertaken by the Union of India although continued for some time was initially intended to be a time-bound one.  It was not meant for generating employment.  It was meant for providing technical education to the agriculturalists.  In the absence of any legal right in the respondents, the High Court, thus, in our considered view, could not have issued a writ of or in the nature of mandamus."

 

The Public Employment is a facet of right to equality envisaged under Article 16 of the Constitution of India.  The State although is a model  employer, its right to create posts and recruit people therefore emanates from the statutes or statutory rules and/ or rules framed under the proviso appended to Article 309 of the Constitution of India.  The recruitment rules are framed with a view to give equal opportunity to all the citizens of India entitled for being considered for recruitment to the vacant posts.  Parliament for giving effect to the provisions of Article 16 of the Constitution enacted the Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959.  The statutes and the statutory rules framed by the Union of India and other States also invariably require issuance of public notices so as to enable all eligible candidates to file applications thereof.  The constitution and/or statutes or statutory rules do not make any distinction between post and posts.  The recruitment process for all posts is the same.

In such situation, a person did not have any right to absorb in service as the petitioners were appointed purely on temporary/ad hoc basis.  It has not been shown by them that prior to their appointments, the requirements of Article 14 and 16 of the Constitution had been complied with.  Now admittedly, the fresh selection has already taken place on the basis of advertisement and selected candidates have already joined, therefore, in my opinion and in view of the settled principle of the Apex Court, the petitioners are not entitled for any relief.

In view of the aforesaid fact, the petitioners are not entitled for any relief as admittedly, the appointment of the petitioners were on ad hoc basis for a limited period of three months. If that has been extended from time to time, it will not confer any right on the petitioners.  The writ petition is devoid of merits and is hereby dismissed.

       There shall be no order as to costs.

Dt. December    1  ,2006.

SKD                


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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