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Jai Pratap Singh v. Director Of Yuwa Kalyan & Others - WRIT - A No. 22860 of 1994 [2007] RD-AH 2141 (9 February 2007)


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Court No.32

Civil Misc. Writ Petition No.22860 of 1994

Jai Pratap Singh v. The Director of Yuva

Kalyan and Administrative Commandant of Pradashik

Vikas Dal U.P., Lucknow and others.

Hon'ble S. Rafat Alam, ACJ

In the instant writ petition under Article 226 of the Constitution of India, the sole petitioner has prayed for quashing of the order of the Director, Yuva Kalyan and Administrative Commandant of Pradashik Vikas Dal U.P., Lucknow, contained in annexure VIII to the writ petition, and also for issuance of mandamus commanding the respondents to pay salary to the petitioner for the post of clerk in the basic pay scale of Rs.950/- per month along with difference of arrears. Further prayer has been made for quashing the orders of respondent no.1 dated 25.5.1998 (Annexure-14), and of respondent no. 2 dated 8.6.1998 informing the petitioner that his service as daily wager is no more required and thus, dispensed with.

The petitioner has claimed that he was selected by respondent no. 1 and deputed to discharge duties of Clerk in the office of respondent no. 2 vide order dated 26.10.1988 (Annexure-1). Pursuant thereto he joined on 29.10.1988 as Clerk in the office of respondent no. 2 and since then continuously working satisfactorily and has always been appreciated by the authorities throughout. However, since the petitioner was not paid salary of clerk and was only being paid wages of a daily wager, he made a representation before respondent no.1 yet when no action was taken, he approached this Court by filing Civil Misc. Writ Petition No. 30715 of 1991, which was dismissed vide judgment dated 19.2.1994 because of factual dispute and liberty was given to the appellant to make representation before the appropriate authority who shall dispose of the same by a speaking order within six weeks from the  date of filing of such representation. It is further alleged that pursuant thereto, the petitioner made a representation on 4.3.1994, which has been rejected by the impugned order dated 25.4.1994.

Shri I.R. Singh, learned counsel for the petitioner vehemently contended that the petitioner having been appointed as daily wager against Class III post was entitled to get salary prescribed for Class III employee. He further submits that he is also entitled to be considered for regularization of his services as Class III employee as Clerk. He further submits that the petitioner is discharging duties and functions of the post of Clerk in the office of respondent no.2 and, therefore, he is entitled to get salary of a regular Clerk, whereas the respondent was paying Rs.35/- per day as daily wager, although the pay scale of Clerk at the relevant time was Rs.950/-.

We have considered the submissions and also perused the writ petition, counter and rejoinder affidavits filed by the parties, which are on record. The petitioner has primarily based his claim of appointment on the letter dated 26.10.1988 of respondent no.1, a copy whereof is enclosed as Annexure-1 to the writ petition and from a perusal thereof it is evident that the representation of the petitioner was forwarded to respondent no. 2 with the order that he may be entrusted with the work of Clerk purely as a daily wager for which he has volunteered his services. It was further provided in the order that his wages shall be paid from the head of Social Welfare Department. By the above order he was never given appointment on regular basis or even on temporary basis to the post of Clerk nor it could have been given as the same would have been in the teeth of Articles 14 and 16 of the Constitution. That apart, in Writ Petition No.30715 of 1991 almost similar prayer was made and the learned Single Judge of this Court in the judgment dated 19.2.1994, found that the petitioner himself volunteered and was given chance to work as daily wage worker and sometimes he used to work as Routine Grade Clerk, which does not amount that he has right to get permanent appointment as Clerk and, therefore, the prayer regarding payment of arrears of salary payable to a Clerk and regularization to the post of Clerk were not allowed and the writ petition was dismissed. However, it was left open for the petitioner to make representation in this regard before the appropriate authority. Now virtually the same relief after rejection of his representation has been sought for.

In the order dated 25.4.1994 rejecting the representation of the petitioner it has been stated that his appointment as Clerk in the office of respondent no.2 was never made and he was engaged as a volunteer and like other volunteers wages were paid to him from the head of Social Welfare Department. It further reveals from the aforesaid order that the Social Welfare Department never appointed him on the post of Clerk either on ad hoc basis or on regular basis and, therefore, his claim for regularization has also been rejected by the said order. Consequently, the representation dated 7.3.1994 was rejected.

In the facts and circumstances of the case and also in view of the categorical statement in the counter affidavit regarding denial of the fact that he was ever appointed to the post of Clerk either on ad hoc basis or on daily wage basis, the petitioner has no right to the post. Besides that the appointment on a Class III post is to be made after holding due selection as per the procedure prescribed, which, admittedly, was not undertaken in the case in hand. No material has been brought on record to show that the post in question was ever advertised pursuant to which the petitioner applied and having been selected by the duly constituted selection board was given letter of appointment as Clerk. Thus, I do not find any reason to interfere with the orders impugned in this petition.

At this stage, Sri I.R. Singh, learned counsel for the petitioner submitted that several persons junior to the petitioner in the list prepared by the Director have been regularized without considering the claim of the petitioner for regularization of his services. I am afraid such a direction cannot be given at this stage. The question as to when and where direction for considering the claim of regularization can be given, is no more res integra and is concluded by a recent Constitution Bench judgment of the Apex Court in the case of Secretary, State of Karnataka & others Vs. Uma Devi & others, reported in 2006 (4) SCC 1, wherein in para 43 of the judgment, the Apex Court has held that unless appointment is made in accordance with the relevant rules and after a proper competition amongst the qualified persons, the same would not confer any right on such appointee. It has further been held that merely because a temporary employee or a casual wage worker has continued for a period beyond the term of his appointment would not make him 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 the due process of selection as envisaged under the relevant rules. It has further been held in paras 45 to 47 that an employee having accepted the appointment on temporary or casual basis with open eyes cannot subsequently claim absorption merely on the basis of such engagement and the doctrine of legitimate expectation also has no application in such cases. Therefore, in view of the exposition of law as has been made by the Apex Court, no such direction can be issued in this writ petition. However, if any person similarly placed has been regularized as contended by Sri I.R. Singh, learned counsel for the petitioner, it would be open for the petitioner to ventilate his grievance before the appropriate authority by making appropriate representation with necessary facts and materials. There is no doubt that if such a representation is filed, the respondents shall make necessary enquiry into the matter and take appropriate decision in accordance with law.

With the aforesaid observation the writ petition stands dismissed.




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