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SIYA RAM SINGH versus STATE OF U.P. AND OTHERS

High Court of Judicature at Allahabad

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Siya Ram Singh v. State Of U.P. And Others - WRIT - A No. 16689 of 1999 [2006] RD-AH 12921 (3 August 2006)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No. 26

Civil Misc. Writ Petition No. 16689 of 1999

Siya Ram Singh

Vs.

State of U.P. & Anr.,

*********

Hon. Dilip Gupta, J.

This writ petition has been filed for quashing the order dated 22nd July, 1995 by which the representation filed by the petitioner for regularising his services was rejected and for a direction upon the respondents to regularize the services of the petitioner on the post he had worked or on any other post suitable for him in the Department.

The petitioner was engaged on daily wages from time to time with many breaks in between in different offices of the Forest Department but after 21st June, 1992 he was not engaged. He, therefore, filed Writ Petition No. 6043 of 1993 which was disposed of on 10th February, 1993 with a direction that if the petitioner represents his case to the Divisional Forest Officer, Obra Forest Division, Sonebhadra, the said authority shall decide the representation by a speaking order having due regard to the judgment and order dated 24th November, 1992 passed by this Court in Writ Petition No. 21840 of 1991. The representation filed by the petitioner was rejected by the District Forest Officer, Obra Forest Division, Sonebhadra, by means of the order dated 22nd July, 1995. The petitioner was found not entitled for regularization as he had worked as a daily wager with many breaks in different capacities in different Departments and that the case of the petitioner was also not comparable with that of the two petitioners in Writ Petition No. 21840 of 1991 as they had worked continuously on the same post and the Service Rules were entirely different.

Learned counsel for the petitioner has submitted that in view of the provisions of U.P. Regularization of Daily Wages Appointment on Group ''D' Posts, Rules 2001 (hereinafter referred to as the ''2001 Rules') the petitioner was entitled to be regularised and in support of his contention, he has placed reliance upon the judgment of this Court in Sanjay Kumar Srivastava Vs. Principal, Chief Conservator of Forest, U.P. Lucknow & Ors., (2005) 3 UPLBEC 2527.  He has further submitted that the break in his service is artificial and is likely to be condoned in view of the decision of the Supreme Court in Sri Rabinarayan Mohapatra, Vs. State of Orissa & Ors., AIR 1991 SC 1286.

Learned Standing Counsel appearing for the respondents has, however, contended that the order rejecting the representation suffers from no infirmity as the services of the petitioner cannot be regularised; that the petition suffers from laches as the order rejecting the representation that was passed in the year 1995 was challenged after a period of four years and that there can be no regularization of services of a daily wager who was not engaged after 21st June, 1992.

I have carefully considered the submissions advanced by the learned counsel for the parties.

In order to appreciate the controversy raised in the present petition, it may be useful to refer to certain decisions of the Supreme Court dealing with the issue relating to regularization of services of daily wager/ad-hoc employee.

The Supreme Court in R.N. Nanjundappa Vs. T. Thimmaiah & Anr. (1992) 2 SCR 799 held:-

"If the appointment itself is in infraction of the rules or if it is in violation of the provisions of the Constitution illegality cannot be regularised. Ratification or regularisation is possible of an act which is within the power and province of the authority but there has been some non-compliance with procedure or manner which does not go to the root of the appointment. Regularisation cannot be said to be a mode of recruitment. To accede to such a proposition would be to introduce a new head of appointment in defiance of rules or it may have the effect of setting at naught the rules."

In State of M.P. & Anr., vs. Dharam Bir, (1998) 6 SCC 165, the Supreme Court held that the Government services are essentially a matter of status rather a contract and in that context observed :

"Whether a person holds a particular post in a substantive capacity or is only temporary or ad hoc is a question which directly relates to his status. It all depends upon the terms of appointment. It is not open to any Government employee to claim automatic alteration of status unless that result is specifically envisaged by some provision in the statutory rules. Unless, therefore, there is a provision in the statutory rules for alteration of status in a particular situation it is not open to any Government employee to claim a status different than that which was conferred upon him at the initial or any subsequent stage of service.

Applying these principles to the instant case, since the respondent, admittedly, was appointed in an ad hoc capacity, he would continue to hold the post in question in that capacity........."

In Ramakrishna Kamat & Ors., vs. State of Karnataka & Ors., JT 2003 (2) SC 88, the Supreme Court rejected the plea for regularisation of services stating :

"............We repeatedly asked the learned counsel for the appellants on what basis or foundation in law the appellants made their claim for regularisation and under what rules their recruitment was made so as to govern their service conditions. They were not in a position to answer except saying that the appellants have been working for quite some time in various schools started pursuant to resolutions passed by Zilla Parishads in view of the Government Orders and that their cases need to be considered sympathetically. It is clear from the order of the learned single Judge and looking to the very directions given a very sympathetic view was taken. We do not find it either just or proper to show any further sympathy in the given facts and circumstances of the case. While being sympathetic to the persons who come before the Court, the Courts cannot at the same time be unsympathetic to the large number of eligible persons waiting for a long time in a long queue seeking employment........."

In Dr. Chanchal Goyal (Mrs.) vs. State of Rajasthan, (2003) 3 SCC 485, the Supreme Court categorically held that there was no scope of regularisation unless the appointment was made on a regular basis.

In State of Haryana & Anr., vs. Tilak Raj & Ors., (2003) 6 SCC 123, the Supreme Court held that a person appointed as a daily wager holds no post and is thus not entitled to claim the benefit of work.

In Jawaharlal Nehru Technology University vs. T. Sumanlatha (Smt.) and others, (2003) 10 SCC 405, the Supreme Court rejected a similar contention stating :

".........The learned counsel, therefore, contends that there is every justification for absorbing the respondents concerned on regular basis in recognition of their long satisfactory service. The learned counsel further contends that the ad hoc arrangement to employ them on consolidated pay should not go on forever. The contention of the learned counsel cannot be sustained for more than one reason and we find no valid grounds to grant the relief of regularisation. There is nothing on record to show that the employees concerned were appointed after following due procedure for selection. Apparently, they were picked and chosen by the University authorities to cater to the exigencies of work in the Nodal Centre."

The Supreme Court in A. Umarani Vs. Registrar, Co-operative Societies & Ors., (2004) 7 SCC 112 held:-

"Regularisation in our considered opinion is not and cannot be the mode of recruitment by any "State" within the meaning of Art. 12 of the Constitution of India or any body or authority governed by a Statutory Act or the Rules framed thereunder. It is also now well settled that an appointment made in violation of the mandatory provisions of the Statute and in particular ignoring the minimum educational qualification and other essential qualification would be wholly illegal. Such illegality cannot be cured by taking recourse to regularization (See State of H.P. v. Suresh Kumar Verma and another, (1996) 7 SCC 562)."

A Constitution Bench of the Supreme Court of five Hon'ble Judges in the case of Secretary, State of Karnataka & Ors., Vs. Umadevi & Ors., JT 2006 (4) 420 examined at length the issue about regularisation of services of daily wage/ad hoc employees as there were conflicting decisions and it would be appropriate to refer to the relevant portions of the judgment which are as follows:-

"The Union, the States, their departments and instrumentalities have resorted to irregular appointments, especially in the lower rungs of the service, without reference to the duty to ensure a proper appointment procedure through the Public Service Commission or otherwise as per the rules adopted and to permit these irregular appointees or those appointed on contract or on daily wages, to continue year after year, thus, keeping out those who are qualified to apply for the post concerned and depriving them of an opportunity to complete for the post. It has also led to persons who get employed, without the following of a regular procedure or even through the backdoor or on daily wages, approaching Courts, seeking directions to make them permanent in their posts and to prevent regular recruitment to the concerned posts. Courts have not always kept the legal aspects in mind and have occasionally even stayed the regular process of employment being set in motion and in some cases, even directed that these illegal, irregular or improper entrants be absorbed into service. A class of employment which can only be called ''litigious employment', has risen like a phoenix seriously impairing the constitutional scheme. Such orders are passed apparently in exercise of the wide powers under Article 226 of the Constitution of India. Whether the wide powers under Article 226 of the Constitution is intended to be used for a purpose certain to defeat the concept of social justice and equal opportunity for all, subject to affirmative action in the matter of public employment as recognized by our Constitution, has to be seriously pondered over. It is time, that Courts desist from issuing orders preventing regular selection or recruitment at the instance of such persons and from issuing directions for continuance of those who have not secured regular appointments as per procedure established. The passing of orders for continuance, tends to defeat the very Constitutional scheme of public employment. It has to be emphasized that this is not the role envisaged for High Courts in the scheme of things and their wide powers under Article 226 of the Constitution of India are not intended to be used for the purpose of perpetuating illegalities, irregularities or improprieties or for scuttling the whole scheme of public employment. Its role as the sentinel and as the guardian of equal rights protection should not be forgotten.

This Court has also on occasions issued directions which could not be said to be consistent with the Constitutional scheme of public employment. Such directions are issued presumably on the basis of equitable considerations or individualization of justice. The question arises, equity to whom?. Equity for the handful of people who have approached the Court with a claim, or equity for the teeming millions of this country seeking employment and seeking a fair opportunity for competing for employment? When one side of the coin is considered, the other side of the coin, has also to be considered and the way open to any court of law or justice, is to adhere to the law as laid down by the Constitution and not to make directions, which at times, even if do not run counter to the Constitutional scheme, certainly tend to water down the Constitutional requirements. It is this conflict that is reflected in these cases referred to the Constitution Bench.......................

While directing that appointments, temporary or casual, be regularized or made permanent, courts are swayed by the fact that the concerned person 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 eyes open. 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 casually got employed should be directed to be continued permanently. By doing so, it will be creating another mode of pubic 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 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 succor 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 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 of India..............

When a person enters a temporary employment or gets engagement as a contractual or casual worker and the engagement is not based on a proper selection as recognized by the relevant rules or procedure, he is aware of the consequences of the appointment being temporary, casual or contractual in nature. Such a person cannot invoke the theory of legitimate expectation for being confirmed in the post when an appointment to the post could be made only by following a proper procedure for selection and in concerned cases, in consultation with the Public Service Commission. Therefore, the theory of legitimate expectation cannot be successfully advanced by temporary, contractual or casual employees. It cannot also be held that the State has held out any promise while engaging these persons either to continue them where they are or to make them permanent. The State cannot constitutionally make such a promise. It is also obvious that the theory cannot be invoked to seek a positive relief of being made permanent in the post.

It was then contended that the rights of the employees thus appointed, under Articles 14 and 16 of the Constitution, are violated. It is stated that the State has treated the employees unfairly by employing them on less than minimum wages and extracting work from them for a pretty long period in comparison with those directly recruited who are getting more wages or salaries for doing similar work. The employees before us were engaged on daily wages in the concerned department on a wage that was made known to them. There is no case that the wage agreed upon was not being paid. Those who are working on daily wages formed a class by themselves, they cannot claim that they are discriminated as against those who have been regularly recruited on the basis of the relevant rules. No right can be founded on an employment on daily wages to claim that such employee should be treated on a par with a regularly recruited candidate, and made permanent in employment, even assuming that the principle could be invoked for claiming equal wages for equal work. There is no fundamental right in those who have been employed on daily wages or temporarily or on contractual basis, to claim that they have a right to be absorbed in service. As has been held by this Court, they cannot be said to be holders of a post, since, a regular appointment could be made only by making appointments consistent with the requirements of Articles 14 and 16 of the Constitution. The right to be treated equally with the other employees employed on daily wages, cannot be extended to a claim for equal treatment with those who were regularly employed. That would be treating unequals as equals. It cannot also be relied on to claim a right to be absorbed in service eve though they have never been selected in terms of the relevant recruitment rules. The arguments based on Articles 14 and 16 of the Constitution are, therefore, overruled." (emphasis supplied)  

 

It is, therefore, clear from the aforesaid decisions of the Supreme Court that unless there is a provision in the statutory Rules for alteration of status in a particular situation, it is not open to any employee to claim a status different then that which was conferred upon him at the initial stage; that regularisation is possible of an act which was within the power of the authority but there was non-compliance with the procedure which does not go to the root of the appointment; that the Court should desist from issuing orders for continuance of those who have not secured regular appointments as per the prescribed procedure; that mere continuance on ad hoc basis for sometime cannot confer a right upon the employee not to discontinue him as that would be violative of the equality of opportunity enshrined in Article 14 of the Constitution; that the theory of legitimate expectation cannot be successfully advanced by such employee and that there is no fundamental right in those who have been employed on daily wages or temporary basis or on contractual basis to claim that they have a right to be absorbed in service.

It is in the light of the principles enunciated in the aforesaid decisions of the Supreme Court that the present case of the petitioner has to be examined. The petitioner has not brought on record the manner in which he was appointed on daily basis. It is, therefore, difficult for this Court to grant any relief to the petitioner for regularization of his services. The only Rule which has been referred to by the learned counsel for the petitioner for seeking regularisation of his services is the 2001 Rules which into force on 21st December, 2001 and the cut-off date mentioned is 29th June, 1991. It provides that all those who were directly appointed on daily wage basis on Group-D posts in government service on or before 29th June, 1991 and were continuing in service as such on the date of commencement of the Rules and possess the requisite qualification prescribed for regular appointment for that post at the time of such appointments on daily wage basis, shall be considered for regular appointment before any regular appointment is made in such a vacancy. The petitioner was not engaged after 21st June, 1992 and as such was not continuing in service on 21st December, 2001 when the Rules came into force. The 2001 Rules are, therefore, not applicable to the case of the petitioner. The decision of this Court in the case of Sanjay Kumar Srivastava (supra) is, therefore, of no help to the petitioner. The decision of Sri Rabinarayan Mohapatra (supra) also does not help the petitioner as the petitioner was not engaged after 21st June, 1992 and the period from 21st June, 1992 to 21st December, 2001 cannot be said to be an artificial break in service.

It needs to be pointed out that the petitioner was not engaged as a daily wager after 21st June, 1992. Learned Standing Counsel vehemently urged that in such a situation the petitioner cannot claim regularisation of his services. The submissions advanced by the learned Standing Counsel deserves to be accepted in view of the decision of the Supreme Court in H.P. Housing Board Vs. Om Pal & Ors., (1997) 1 SCC 269 and in Ram Chander & Ors., Vs. Additional District Magistrate & Ors., (1998) 1 SCC 183.  

For all the reasons stated above, there is no merit in this petition. It is, accordingly, dismissed.  

Date: 3.8.2006

NSC

                     


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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