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ARVIND KUMAR SHARMA versus STATE OF U.P. AND OTHERS

High Court of Judicature at Allahabad

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Arvind Kumar Sharma v. State Of U.P. And Others - WRIT - A No. 45482 of 2004 [2007] RD-AH 4628 (16 March 2007)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No.25

Civil Misc. Writ Petition No. 45482 of 2004

Arvind Kumar Sharma Vs. State of U.P. and others

Hon. Sudhir Agarwal, J.

      The petitioner Arvind Kumar Sharma has filed this petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding the respondents to continue him as a regular employee since 1995,  give all service benefits and to consider him for the post of highly skilled workman according to his qualification and experience etc.

       In brief, the facts as disclosed in the writ petition are that the petitioner was engaged as a muster roll employee on 1.9.1992 in Ganga Nagar Division, Lal Diggi, Aligarh and was discontinued on 7.8.1995 whereagainst he raised an industrial dispute alleging that his termination was made in violation of section 6N of the U.P. Industrial Disputes Act. Industrial Tribunal (4), U.P., Agra in Adjudication Case No. 249 of 1996 declared his termination illegal and directed for his reinstatement with back wages vide award dated 4.4.1997 whereagainst writ petition no. 18439 of 1998 was filed by the respondents before this Court which was dismissed vide order dated 9.12.2002. Special Leave Petition was also dismissed by the Apex Court on 21.7.2003. Thereafter the petitioner was reinstated on daily wage basis vide order dated 11.8.2003. He made representation dated 20.8.2003 claiming that pursuant to the order of the Tribunal, now he should be regularized with all other consequential benefits of regular pay scale and promotion to higher post etc. but the same has not been considered by respondents and therefore, he has filed the present writ petition.

     I have heard Sri Ajay Kumar, learned counsel for the petitioner and perused the record. It is not disputed that the petitioner's engagement in 1992 was not made after the advertisement of the vacancy and making selection against vacant post in accordance with the procedure prescribed under the rules. The petitioner was engaged only as a muster roll employee on daily wage basis and is continuing as such. The order of the Tribunal was not concerned with the issue of regularization but the reference made for adjudication before the Industrial Tribunal was whether the termination of the workman Sri Arvind Kumar on 7.8.1995 was valid or not and for what relief he was entitled to. The termination of the workman who had continuously worked for 240 days in a year was found illegal being in violation of the provisions of U.P. Industrial Disputes Act. The matter of regularization is wholly a  different issue involving different questions of fact and consequences thereof. Learned counsel for the petitioner could not place before this Court that there is any adjudication by any Court or authority of competent jurisdiction regarding regularisation of the petitioner. However, he submits that since he has been allowed the benefit of past service and, therefore, his service being more than a decade, he is entitled for regularisation. He also contended that he should be considered for regularisation in accordance with the U.P. Regularisation of Daily Wage Appointments on Group 'D' Posts  Rules 2001.

       Per contra, learned Standing Counsel submits that the petitioner being only a daily wage employee and not appointed in accordance with the Rules after observing the procedure consistent with Article 16 of the Constitution, is not entitled for regularisation.

    The short question involved in this case is whether the petitioner is entitled for regularisation on Class IV posts since he is working since 1.9.1992 on daily wage basis.

Regularization has never been held to be a valid mode of recruitment ordinarily. In the past, sometimes on account of large scale engagements continuing for long period has been taken a relevant consideration by the authorities for enacting statutory provisions for regularization of the persons engaged without following statutory procedure for recruitment. Besides, sometimes the Courts have also issued directions to the authorities to regularize such appointees depending upon the facts and circumstances of the individual cases. However, time and again on judicial review, the Courts have largely deprecated practice of engagement of some persons without following the recruitment procedure and, thereafter, continue them for considerable length of time and then confer permanence upon them by way of regularization since it has generated a different kind of litigation and a regular channel of such appointees. Fortunately, the diversion expressed in various judicial pronouncements drew attention of the Apex Court and the issue came to be considered before a Constitution Bench recently in Secretary, State of Karnataka vs. Uma Devi (2006) 4 SCC 1. The Court reviewed the entire law on the aspect and after discussing the issue at great length, overruling all the earlier judgments taking a different view, has held that a sovereign government or its instrumentality, considering economic situation in the Country and the work got to be done is not precluded from making temporary appointments or engaging workers on daily wages, but whenever a regular vacancy occur, it has to be filled in as per Constitutional scheme by giving equal opportunity of employment to all concerned persons. The Court has rejected the approach of taking a lenient view and termed  it as a misplaced equity against teeming millions of the country seeking employment and a fair opportunity for competing for employment and a fair opportunity for competing for employment. The Court categorically held that adherence to Article 14 and 16 of the Constitution is a must in the process of public employment and also stressed that adherence to the rule of equality in public employment is a basic feature of our constitution. It held:

"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. ...................."

       It further held that the High Courts, acting under Article 226 of the Constitution should not ordinarily issue directions for absorption/regularization or permanence unless the recruitment itself was made in a regular manner consistent with the Constitutional scheme. The Apex Court very categorically held:

"The High Courts acting under Article 226 of the Constitution, should not ordinarily issue directions for absorption, regularization or permanent continuance unless the recruitment itself was made regularly and in terms of the Constitutional Scheme."

      The Apex Court also cautioned the Courts that they must be careful in ensuring that they do not interfere unduly with the economic arrangement of the affairs of the State or its instrumentalities or lend themselves an instrument to facilitate the bypassing of the constitutional and statutory mandates.  

Following Uma Devi (supra), in Surinder Prasad Tiwari Vs. U.P. Rajya Krishi Utpadan Mandi Parishad & others, 2006 (7) SCC 684, in paragraphs 35, 37 and 38, it was held :

"35. Equal opportunity is the basic feature of our Constitution. Public employment is repository of the State power. Certain status and powers emanate from public employment.

37. Our constitutional scheme clearly envisages equality of opportunity in public employment. The Founding Fathers of the Constitution intended that no one should be denied opportunity of being considered for public employment on the ground of sex, caste, place of birth, residence and religion. This part of the constitutional scheme clearly reflects strong desire and constitutional philosophy to implement the principle of equality in the true sense in the matter of public employment.

38. In view of the clear and unambiguous constitutional scheme, the courts cannot countenance appointments to public office which have been made against the constitutional scheme. In the backdrop of constitutional philosophy. It would be improper for the courts to give directions for regularization of services of the person who is working either as daily-wager, ad employee, probationer, temporary or contractual employee, not appointed following the procedure laid down under Articles 14, 16 and 309 of the Constitution. In our constitutional scheme, there is no room for back door entry in the matter of public employment."

Elaborating the procedure of regular appointment, in Union Public Service Commission Vs. Girish Jayanti Lal Vaghela 2006 (2) SCC 482, the Court observed that regular appointment to a post under the State or Union cannot be made without issuing advertisement in the prescribed manner, which would include inviting of applications from the employment exchange where eligible candidates get their names registered. Any regular appointment made on a post under the State or Union without issuing advertisement inviting applications from eligible candidates and without holding a proper selection where all eligible candidates get a fair chance to compete would violate the guarantee enshrined under Article 16 of the Constitution. This view has been referred and approved in Uma Devi (supra)  and reiterated in National Fertilizers Ltd. Vs. Somvir Singh 2006 (5) SCC 493 observing that the "State" within the meaning of Article 12 of the Constitution is bound to comply with the constitutional mandate under Article 14 and 16.

Again a question cropped up as to whether by issuing executive orders, or certain guidelines, a regularization is permissible where recruitment is not consistent with Article 16, and in Accounts Officer (A&I) APSRTC and others Vs. P Chandra Sekhara Rao & others 2006 (7) SCC 488, it was held that no regularization is permissible even in exercise of powers conferred under Article 162 of the Constitution if the appointment has been made in contravention of the statutory rules or Article 16 of the Constitution. Earlier even in State of Haryana and others Vs. Piara Singh & others AIR 1992 SC 2130, the Apex Court declining to accept the contention that general directions can be issued by the Court for regularization observed as under :

"The  court cannot obviously help those who cannot get regularized under these details, for their failure to satisfy the conditions prescribed therein. Issuing general declaration of indulgence is no part of our jurisdiction. In case of such persons we can only observe that it is for the respective Governments to consider the feasibility of giving them appropriate relief, particularly in cases where persons have been continuing over a long number of years, and were eligible and qualified on the date of their ad hoc appointment and further whose record of service is satisfactory."

   In view of the above discussed authoritative pronouncements, it is too late in the day to uphold the general direction of framing a scheme for regularization and to regularize the employees engaged on daily basis or on contract or temporary but without complying the requirement of Article 16 of the Constitution and the procedure for regular appointment.

Coming to the authorities referred by the learned counsel for the petitioner, in Workmen of Bhurkunda Colliery (Supra) the Tribunal gave an award observing that the casual workmen of Bhurkunda Colliery deserve the same benefit which was given to workmen of another Colliery and therefore they deserve regularization. The Management challenged the award by filing the writ petition, which was dismissed by the Hon'ble Jharkhand High Court. The management approached the Apex Court in appeal. In the facts and circumstances of the case, the Apex Court declined to interfere, observing  that the main object of enacting industrial and labour law is to ensure peace and harmony between the employers and the employees in the larger interest of society, since the industrial growth leading to economic prosperity largely depends on happy and healthy relationship and employers and employees. The Apex Court did not lay down any principle of law in the said judgment that if a person has worked for long time even contrary to the statutory provisions, yet he would be entitled for regularization, therefore, the aforesaid judgment lends no support to the petitioner.

           In  Gujarat Agricultural University Vs. Rathod Labhu Bechar and others (supra) again the issue was raised in an  industrial dispute, wherein the Industrial Tribunal, Rajkot directed the Gujrat Agricultural University to regularize such daily wage employees, who have completed ten years of services as on 1.1.1993. The University filed a writ petition, which was partly allowed-modifying the award directing the University to make payment of  salary at the minimum of the pay scale and also to frame a scheme for regularization of such daily rated labourers. The University filed appeal before the Apex Court but it appears that instead of contesting various issues, during the pendency of the appeal, it submitted a scheme framed by the University for absorption of daily rated employees and the learned counsels for the respondents addressed the Apex Court with respect to objections raised pertaining to certain part of the scheme, which was considered as is evident from the following observation in para 9 and 10 of the judgment:-

 "9. It seems instead of contesting various issues during pendency of these appeals in this interregnum, learned counsel for the appellant submitted a scheme framed by the University for the absorption of these employees with the approval of the State Government, which is also filed in this case. Learned counsel for the respondents desired to file objections to this scheme, which this Court permitted. The objections accordingly were filed by the respondents.

   "10. We heard learned counsel for the parties at length and considered the objections of the respondents with respect to the proposed scheme for the regularization of daily rated workers."

Therefore,  in my view the judgment in Gujarat Agricultural University Vs Rathod Labhu Bechar and others (supra) is not a binding precedent on the issue whether a daily rated employee after rendering particular length of service is entitled for regularization though his engagement was contrary to the statutory provisions. Even otherwise, both the aforesaid judgments would not render any help to the petitioner for the reason that subsequently a Constitution Bench of the Apex Court considered the entire aspect pertaining to regularization in public employment in Umadevi (supra) and has specifically declared that all earlier judgments laying down principles inconsistent to the law laid down therein  stand overruled. In this view of the matter, this Court is bound by the law laid down by the Apex Court in  Umadevi (supra) which has already been discussed hereinabove showing that a person engaged without advertisement of the vacancies in an illegal manner cannot claim regularization.

Sri Shukla at this stage sought to rely on para 53 of the judgment in Uma Devi (supra)  and contended that the Apex Court has carved out an exception in respect to such employees who have continued to work for ten years more without the intervention of the courts and tribunal, and they are entitled to be considered for regularization. In support of the above he also placed reliance on the learned Single Judge of this Court in Ramveer Singh and others Vs Gas Authority of India Ltd. (GAIL) and others (supra) in which it was held:

"However, the Supreme Court in the case of Uma Devi (3) (supra) has carved out an exception. In paragraph-53 of the said judgment, the Supreme Court held that if the persons appointed on ad hoc, casual or contract basis were duly qualified and were working against a sanctioned post and continued to work for several years without any intervention of an order of the Court, in such an eventuality, the process of regularisation could be made and if it was ultimately found that the employee was entitled for the relief, it would be possible for the Court to accordingly mould the relief."

       Having given my anxious consideration, I do not find any force there too. In para 53 of the judgment in Uma Devi (supra) the exception carved out by the Apex Court is confined to the cases where the appointments are 'irregular' and not 'illegal' as explained in State of Mysore Vs. S.V.Narayanappa A.I.R. 1967 SC 1071, R.N. Nanjundappa Vs. T. Thimmiah 1972 1 SCC 409 and B.N. Nagrajan Vs. State of Karnataka 1949 SCC 507.

          The distinction between "irregularity" and "illegal" appointments as referred to in para 53 of the judgment in Uma Devi (supra) has been dealt in a subsequent decision of the Apex Court in State of M.P. And others Vs. Lalit Kumar Verma (2007) SCC 575 wherein para 12 it has been held:

"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."

       

Learned counsel for the petitioner at this stage submitted that in Mineral Exploration Corpn Employees' Union Vs. Mineral Exploration Corpn. Limited and another (supra) the Apex Court issued some direction for regularization of the workmen who were continuing for a long time, referring to para 53 in Uma Devi (supra), therefore, the petitioner is also entitled. However, it would be useful to notice that relying on Mineral Exploration Corpn. Employees' Union Vs Mineral Exploration Corpn Limited and another (supra),  a similar argument was raised in State of M.P. Vs Lalit Kumar Verma (supra), but the same has been negatived by the Apex Court by referring to para 39 of  Mineral Exploration Corpn. Employees' (supra), and the observations of the Apex Court in paras  13 to 16 of the judgment of Lalit Kumar Verma (supra) are as under:

"13. In National Fertilizers Ltd. v. Somvir Singh (supra) it has been held: (SCC pp.500-01) paras 23-25)

"23. The contention of the learned counsel appearing on behalf of the respondents that the appointments were irregular and not illegal, cannot be accepted for more than one reason. They were appointed only on the basis of their applications. The Recruitment Rules were not followed. Even the Selection Committee had not been properly constituted. In view of the ban on employment, no recruitment was permissible in law. The reservation policy adopted by the appellant had not been maintained. Even cases of minority had not been given due consideration.

24. The Constitution Bench  thought of directing regularization of the services only of those employees whose appointments were irregular as explained in State of Mysore v. S.V.Narayanappa, R.N. Najundappa v. T.Thimmiah and B.N. Nagaranaj v. State of Karnataka wherein this Court observed: (Uma Devi (3) case, SCC p.24, para 16).

    "16. In B.N.Nagarajan v. State of Karnataka, this Court clearly held that the words "regular" or "regularisation" do not connote permanence and cannot be construed so as to convey an idea of the nature of tenure of appointments. They are terms calculated to condone any procedural irregularities and are meant to cure only such defects as are attributable to methodology followed in making the appointments."

25. Judged by the standards laid down by this Court in the aforementioned decisions, the appointments of the respondents are illegal. They do not, thus, have any legal right to continue in service."

14. In R.S.Garg V. State of U.P. 2006(6 SCC 430 it has been held by this Court : (SCC p.448,para 24)

    "24. The original appointment of the 3rd respondent being illegal and not irregular, the case would not come within the exception carved out by the Constitution Bench. Furthermore, relaxation, if any, could have been accorded only in terms of Rule 28 of the Rules; Rule 28 would be attracted when undue hardship in any particular case is caused. Such relaxation of Rules shall be permissible only in consultation with the Commission. It is not a case where an undue hardship suffered by the 3rd respondent could legitimately be raised being belonging to a particular class of employee. No such case, in law could have been made out. It, in fact, caused hardship to other employees belonging to the same category, who were senior to him; and thus, there was absolutely no reason why an exception should have been made in his case."

(See also State of Gujarat V. Karshanbhai K. Rabari (2006) 6 SCC 21.)

15. Yet, recently, in Principal, Mehar Chand Polytechnic v. Anu Lamba (2006) 7 SCC 161 it was held: (SCC p.171, para 35)

"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 Articles 14 and 16 of the Constitution had been complied with. Admittedly, there did not exist 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 agriculturists. 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."

16.We may, however, notice that in Mineral Exploration the attention of this Court was not drawn to the earlier precedents including a three-judge Bench of this Court in B.N. Nagarajan V. State of Karnataka."

      The same view has been reiterated in Municipal Corpn., Jabalpur vs. Om Prakash Dubey (2007) 1 SCC 373 (para 10 to 19 ) and State of U.P. And others Vs. Deshraj (2007) 1 SCC 257 (para 9 to 12) .

   It is not disputed by learned counsel for the petitioner that the petitioner having been engaged on daily wage basis on the date subsequent to cut-off date prescribed in the 2001 Rules, his case is not covered for regularization under the said Rules. In this view of the matter and in absence of any legal right of the petitioner to claim regularization, a writ of mandamus directing the respondents to consider him for regularization cannot be issued. A Division Bench of this Court (of which I was a Member) in Special Appeal No. 1317 of 2003 (M.D./Chief Engineer, U.P.Jal Nigam and others Vs. Sri Nath Singh and others) decided on 22.12.2006, has also taken the same view. Therefore, the relief sought by the petitioner for directing the respondents to consider him for regularization cannot be granted.

      The writ petition, therefore, lacks merit and is, accordingly, dismissed without there being any order as to costs.

Dated:16.3.2007

S.P/Akn

 


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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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