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Anup Bihari Lal Srivastava v. Pradeep Jauhari & Others - SPECIAL APPEAL No. 1290 of 2006 [2006] RD-AH 18696 (6 November 2006)


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  COURT NO. 32

    Special Appeal  No. 1290 of 2006

 Anup Bihari Lal Srivastava Vs. Pradeep Jauhari & others


    Special Appeal No. 1291 of 2006

     Anup  Behari Lal Srivastava Vs.  J.P. Rai & others


Hon'ble S. Rafat Alam, J.

Hon'ble Sudhir Agarwal, J.

On the request made by the learned counsel for the parties, both these appeals which are against the common judgment of the Hon'ble Single Judge, are heard together and are being disposed of by this common judgment.

The facts necessary for understanding the dispute in the appeal as discernible from the records are that the petitioner appellant was engaged on daily wage basis at Rs. 50/- per day on 15.4.1988 by the order issued by the Director, North Central Zone Culture Centre, Allahabad (hereinafter referred to as the NCZCC). It was mentioned in the letter of appointment that he will look after the court cases of the Centre and do such other work as assigned to him by the officers of NCZCC and the appointment is purely temporary and terminable at any point of time without any prior notice. After working for about one year and nine months, he was discontinued on 26.12.1990, where against he preferred Writ Petition No. 1794 of 1991 which was dismissed by this Court on 13.8.1991 on the ground of alternative remedy under the provision of the U.P. Industrial Disputes Act, 1947 (in short the Act). Thereafter the petitioner-appellant raised industrial dispute which was referred for adjudication to the Labour Court, Allahabad and registered as adjudication case no. 23 of 1992. The employer sought to assail the reference itself in Writ Petition No. 23708 of 1992, which was dismissed on 23.12.1993 holding that since the matter is pending for adjudication before the Labour Court on the preliminary issue, this Court should not entertain any writ petition. The Labour Court, consequently, vide its award dated 28.2.1995, held discontinuance of the petitioner-appellant on 26.12.1990 as illegal since the procedure of retrenchment under Section 6 (N) of the Act was not followed and, therefore, directed for reinstatement and also declared the petitioner-appellant entitled for arrears of salary and all benefits of continuity in service. In the aforesaid award the Labour Court also held that the engagement of the petitioner-appellant was as Upper Division Clerk. The employer assailed the aforesaid award in Writ Petition No. 19784 of 1995, which was dismissed on 8.9.1995. Consequently, the petitioner-appellant was re-employed/reinstated on 4.1.1996. Thereafter he submitted a representation dated 19.3.1996 claiming that some other persons who were engaged on daily wage basis subsequent to his engagement as Office Assistant or Public Relations Officer have been regularized and, therefore, he also be regularized as Upper Division Clerk with effect from 23.3.1988 and Section Officer with effect from December, 1991. and thereafter should also be considered for appointment as Administrative Officer in the pay scale of Rs. 3000-4500 against the vacancy occurred in November, 1995. The aforesaid representation  remained pending, whereupon reminders were sent on 22.5.1996 and 24.6.1996 and thereafter the petitioner-appellant filed Writ Petition No. 31585 of 1996, which was disposed of on 4.10.1996 directing the Director, NCZCC to consider and decide his representation dated 19.3.1996, if not already disposed of, by a reasoned order. Consequently, the Director NCZCC passed order on 11.11.1996 rejecting claim of the petitioner-appellant for regularization on any post and in any capacity. It appears that against this order he preferred Writ Petition No. 2187 of 1997. During the pendency of the aforesaid writ petition, the appointment of the petitioner was made on honorarium basis by an order dated 18.1.1997 and the petitioner-appellant was allowed appointment with effect from 1.1.1997 at the honorarium of Rs. 2000/- per month. Thereafter it appears that the Director, NCZCC sent a proposal to the Chairman, NCZCC, i.e., the Governor of Uttar Pradesh, proposing regularization of such employees who are working at NCZCC for last six years  or more. In the aforesaid proposal while other persons working were proposed to be regularized as peon, driver, sweeper and typist, the petitioner-appellant was proposed to be regularized against the post of Section Officer in the pay scale of Rs. 6500-10,500 which was lying frozen at the Centre. It appears that the Director, NCZCC, thereafter passed an order on 19.7.2000 regularizing the petitioner-appellant as Section Officer referring to the Executive Board's resolution dated 19.4.2000 whereagainst Writ Petition No. 33238 of 2000 has been filed by Pradeep Jauhari and Ram Prakash Rai who are working as Class III employee at NCZCC and were expecting consideration for promotion on the post of Section Officer, but stood denied the same on account of the aforesaid act of regularization on the part of the Director, NCZCC. Both the writ petitions were heard together by the Hon'ble Single Judge vide judgment under appeal and while petitioner-appellant's writ petition no. 2187 of 1997 has been dismissed, Writ Petition No. 33238 of 2000 has been allowed quashing the order dated 19.7.2000 passed by the Director, NCZCC regularizing the petitioner-appellant as Section Officer.

Sri R.N. Singh, learned Senior Advocate assisted by Sri Rajiv Misra has appeared for the appellant and Sri P.N. Ojha, learned counsel has appeared on behalf of respondents no. 1 & 2, whereas Sri Vipul Kumar has appeared for respondents no. 3 & 4.

Sri R.N. Singh, learned senior counsel for the petitioner-appellant sought to argue that since various other employees were regularized as peon, sweeper, typist etc., therefore, there was no error on, the part of the authorities in considering him and regularizing as Section Officer. However, he admits that the NCZCC being a society registered under the Societies Registration Act, answers the description of "State" under Article 12 of the Constitution of India being an instrumentality of the State and, therefore, is under a constitutional obligation to observe various provisions of the Constitution including Articles 14 & 16 thereof. That being so, the Constitutional scheme provides that no appointment in public office or employment shall be made unless the post has been advertised and all persons eligible are given opportunity, i.e.,  right of consideration for such employment. The issue has been considered in great detail recently by a Constitution Bench of the Apex Court in the case of Secretary of State of Karnataka Vs. Uma Devi & others, AIR 2006, SC  1806 = 2006 (4) SCC 1 and the Apex Court has laid down, in brief, 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 has 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 Articles 14 & 16 of the Constitution cannot be said to have established a legal right for being permanent or absorbed. (Para 49)."

Following the law laid down in Uma Devi (Supra), in Nagar Mahapalika Vs. State of U.P., AIR 2006, SC 2113, the Apex  Court also observed that continuance of an employee for a period of 240 days in a year or non-compliance of the provisions of Section 6 (N) of the U.P. Industrial Disputes Act would have different results and consequences but would not result automatically in relief of treating such employees entitled for regularization. The concept of regularization is totally different and distinct than the effect of working of an employee for 240 days in a year continuously and requirement of compliance of Section 6 (N) of the Act in case of retrenchment. The Court also categorically held that the appointment made without complying the provisions of Articles 14 & 16 of the Constitution and of other statutory provisions pertaining to recruitment is illegal and cannot be regularized. In S. Narayana Vs. M. Ahmedulla Khan & others, AIR 2006 SC 2224; National Fertilizers Ltd. & others Vs. Somvir Singh, AIR 2006 SC 2319; State of Gujarat & another Vs. Karshan Bhai K. Rabri & others, 2006 (6) SCC 21; Mineral Exploration Corporation Employees Union Vs. Mineral Exploration Corporation Ltd. & others, Judgments Today 2006 (7) SC 151; R.S. Garg Vs. State of U.P.& others, AIR 2006 SC 2912; Principal Meharchand  Polytechnic, Jalandhar Vs. Anu Lamba & others, AIR 2006 SC 3074; State of Madhya Pradesh Vs. Yogesh Chandra Dubey, 2006 (4) MLJ, 932 (SC); and State of Bihar Vs. Amrendra Kumar Misra, 2006 (2) UJSC 1346, the same view has been reiterated.

In the circumstances, we do not find any fault in the judgment of the Hon'ble' Single Judge in observing that the order of regularization of the petitioner-appellant on the post of Section Officer cannot be sustained and, therefore, the said order has rightly been set aside and the writ petition has rightly been allowed. However, Sri  R.N. Singh very fairly sought to confine his grievance that he was engaged to discharge ministerial job in 1988 and a number of persons have subsequently been regularized, therefore, at least the respondents may be allowed to consider his case for regularization on the ministerial Class III post at least from the date his juniors have been regularized. Though we find that in Karshan Bhai K.Rabri (Supra), the Apex Court observed that the basis of alleged regularization for appointment of some persons does not connote entitlement of other employees for regularization or appointment, but in Mineral Exploration Corporation Employees Union (Supra), the Apex Court permitted the authorities to consider the matter of regularization of such employees who have worked for a long time provided the conditions and directions laid down in Uma Devi (Supra) and other subsequent judgments are followed in words and spirit. Learned counsel for the respondents at this stage could not seriously oppose the aforesaid prayer and submitted that the Chairman, NCZCC may consider the case of the petitioner appellant as to whether he is entitled for regularization under law against any post available in the Centre from the date other persons have been regularized after taking into consideration the principles laid down by the Apex Court in Uma Devi (Supra) and other subsequent judgments referred to hereinabove.

We, therefore, modify the judgment of the Hon'ble Single Judge to the extent that it would be open to the appellant to prefer representation before the Executive Board of NCZCC making a prayer for regularization on the post  he was engaged and is continuing and in case such a representation is made within four weeks along with a certified copy of this order before the Executive Board, it shall examine the grievance of the appellant and dispose of the aforesaid representation taking into account the law laid down by the Apex Court in Uma Devi (Supra) and other judgments referred  to hereinabove, and shall pass appropriate order in accordance with law expeditiously, preferably within a period of three months. It is needless to say that the Executive Board shall pass a speaking order and communicate the same to the petitioner-appellant within the aforesaid period.

With the aforesaid modification in the order of the Hon'ble Single Judge, the appeals are finally disposed of.

Dated: 6.11.2006




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