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State Of U.P. & Others v. Chaturth Shreni Karamchari Sangh And Others - SPECIAL APPEAL No. 988 of 2006  RD-AH 15322 (4 September 2006)
COURT NO. 32
Special Appeal No. 988 of 2006
State of U.P. Vs. Chaturth Shreni Karmachari Sangh & others.
Hon'ble S. Rafat Alam, J.
Hon'ble Sudhir Agarwal, J.
Though the application for recall of this Court's order dated 28.11.2005 moved by the respondents was placed today for orders but during the course of submission, Sri Mahendra Pratap, learned counsel for the respondent-applicant and Sri Yadav, learned Standing Counsel submitted that the appeal itself may be heard on merit. The recall application is allowed. The order dated 28.11.2005 is recalled and the special appeal is taken up for final hearing and disposal.
We have accordingly heard learned Standing Counsel appearing for the appellant and Sri Mahendra Pratap, learned counsel appearing for the respondents.
The petitioner-respondents claiming themselves to be working as daily wager in the Irrigation Department had filed the writ petition for the following reliefs:
"(i) issue a writ, order or direction in the nature of Certiorari quashing the impugned orders dated 1.7.2000 and 29.4.1999/28.2.1999 (Annexures 18 and 19);
(ii) issue a writ, order or direction in the nature of Mandamus directing and commanding the respondents to pay salary to the petitioners no. 2 to 15 on the post of Class-IV employee in the department;
(iii) to summon the respondent no. 5 to 8 in person and punish them for committing the contempt of this Hon'ble Court;
(iv) issue any other suitable order or direction which this Hon'ble Court may deem fit and proper in the present circumstances of the case;
(v) to award the costs of the writ petition in favour of the petitioners."
The Hon'ble Single Judge having heard the learned counsel for the parties, disposed the writ petition with the direction to the respondent-appellant to engage the petitioner-respondents to work at least for 15 days in every month and also to consider their regular engagement if any person is going to be engaged on regular basis. It was further directed that the arrears of wages shall be paid for the period they have worked, within a period of one month from the date of production of certified copy of the order.
It is not in dispute that the respondents were engaged purely as daily wager and, therefore, they could have only been considered for regularization as per rules framed in this regard, i.e., U.P. Regularization of Daily Wages Appointment on Group 'D' Posts Rules, 2001 (hereinafter referred to as Rules 2001), wherein only such persons may be considered for regularization who were engaged prior to 29th June, 1991 and continued to work as daily wager until the promulgation of the Rules 2001.
Admittedly, the petitioner-respondents were not covered by the aforesaid Rules because they were not working on the cut off date or prior to that. Thus, their claim for regularization could not have been considered. This question has been concluded by a Constitution Bench of the Apex Court in the case of State of Karnataka & others Vs. Uma Devi & others, reported in 2006 (4) SCC 1, wherein their Lordships have held as under:
"(A)- Where a mandamus is sought to compel the authorities to do something, it must be shown that the statute imposes a legal duty on the authority and aggrieved party had a right under the statute or rule to enforce it. No mandamus can be issued to make an employee permanent unless he can show to have an enforceable legal right to be made permanent or absorbed or that the State has a legal duty to make him permanent. (Para-52).
(B)- Unless an appointment is in terms of relevant rules and after a proper competition amongst qualified persons, the same would not confer any right on the appointee. 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 being 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. (Para-43).
(C)- A person 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 acceptance also has no application in such case. (Paras 45 to 47).
(D)- There is no fundamental right of those, who have been employed on daily wages or temporary or on contractual basis to claim for regularization or absorption in service. A regular appointment is permissible only by making appointment consistent with the requirement of Articles 14 & 16 of the Constitution. (Para 48).
(E)- If in some cases, such a direction has been issued by the Court that would not confer any right to issue a similar direction as the Court can issue such a direction only where the person has any legal right to be enforced. A person who has never been appointed in terms of relevant rules or in adherence of the Article 14 and 16 of the Constitution cannot be said to have established a legal right for being permanent or absorbed. (Para 49)."
The petitioner respondents were never engaged in accordance with the procedure prescribed under rules giving opportunity of consideration for employment to all the persons concerned. Their initial appointment itself was not in accordance with rules and by adopting pick and choose method they were engaged on daily wage basis. In the circumstances, in view of the authoritative pronouncement of the Apex Court in State of Karnataka Vs. Uma Devi (Supra), the petitioner respondents could not have claimed regularization merely on account of their continuance in service as daily wager for some time. Further, in view of a categorical statement made on behalf of the appellant that there was no work available and hence the petitioner-respondents were not engaged further but if any work is available in future, they may be offered employment, we do not find any justification to issue a mandamus commanding the Superintending Engineer to engage the petitioner-respondents at least for 15 days in every month and to pay their wages. There is also no justification to direct the appellants to consider the petitioner-respondents for regular engagement in the absence of their claim for regularization under any statutory provision and, therefore, in our view, the judgment under appeal cannot be sustained.
The appeal is, therefore, allowed and the order of the Hon'ble Single Judge impugned in this appeal is set aside and consequently, the writ petition is dismissed.
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