Shiv Kumar Nagarchi v. State of Chhattisgarh, through Secretary, Health Department, D.K.S. Bhawan, Raipur(CG)

Director, Directorate. Chhattisgarh Health Ser/ices, Raipur (CG), Chief Medical Officer, Baikunthpur, District Korea (CG). CA/rit Petition under Articte 226 of the Constitution of India) Single Bench : Hon'ble Shri Satish K. Agnihotri, J.

Present:- Shri H.V. Sharma, counsel for the petitioner. Ms. Smita Ghai, Panel Lawyer for the State. (Passed on ttiis 27"' day of March, 2009) ORDER With the consent of learned counsel appearing for the parties, the petitjon is heard finally. 2) By this petition. the petitioner seeks a direction to the respondent to the petitioner on the post of Lab authorities to grant appointment Technician and for continuation of his services. 3) Learned counsel appearing for the petitioner contended that the petitioner has been appointed as Lab Technician by order dated 20-11-2002 on contract basis for a limited period. The same was extended from time to time up to 31-3-2006. Thereafter, the respondent authorities declined to extend the same. The petitioner made several representations and requested the authorities concerned for extension of his service, but the same have not been considered till date. According to learned counsel for the petitioner, in other districts the services of simjlariy situated persons have been extended. 4) I have heard learned counsel appearing for the parties. perused the pteadings and the documents appended thereto. 5) The Supreme Court jn Secretary, State of Karnataka and others Vs. Umadevi (3) and others1, observed in paras 45 and 47 as under : "43.....If tho end of contractual appojntment, a appointment comes to an end at contract, if it were an engagement or appoirrtment on daily wages or casual basis, the same would come to an end when it Is discontinued. Slmilarly, a temporary employee could not claim to be made permanent on the expiry of his term of appointment. It has also to be clarifiect that merely because a temporary emptoyee or a casual wage workor is continued for a time beyond the term of his appointment, he would not be entitted to be absorbed in regular servtee or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of $©lection as envisaged by the rolevant mles. It is not open to the court to prevent regular recruitment at the instance of temporary employees whose poriod of employment has come to an ond or of ad hoc employees who by the very nature of their appointment, do not acquire any right.... in nature,

While directing that appointments, temporary or casual, be regularised or made permanent, the courts are swayed by the fact that the person concemed has worked for some time and in som© cases for a conslderable length of time. It Is not as If the person temporary or who accepts an engagement either casual is not aware of the nature of his employment. He accepts the employment with open It may be tru©that he is not in a position to eyes. bargain - not at arm's length - sjnce he might have been searching for some employment so as to eke out his liveiihood and accepts whatever he gets. But on it would not be appropriate to that ground alone, jettison the constitutional scheme of appointment and to take the view that a person who has temporarity or casually got employed should be directed to be continued permanentiy. By doing so, it will be creating another mode of public appointment which is not If the court woro to void a contractuai permissibJo. employment of this nature on the grouncS that tfie parties were not having equal bargaining power. that too would not enable the court to grant any relief to that employee.

When a person enters a temporary emptoyment or gete engagement as a contractuai or casual worker is not based on a proper and the engagement rules or selectjon as recognised by the relevant procedure, he is aware of the consequences of the appointment being temporary. casual or contractual in naturo. Such a person cannot invoke the thoory 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 selectton and in in consultation with the Public cases concerned, the theory of Service CommissJon. successfully legitimate casual advanced by temporary, It cannot also be held that the State has employees. hetd out any promjse white engagingthese persons either to continue them where they are or to make them permanent. The State cannot constjtutionally is also obvious that th© mako such a promiso. It theory cannot be invoked to seek a positive relief of being made permanent in the post. Therefore, cannot expectation contractual

48....There is no fundamental right in those who have been employed on daily wages or temporarily or on contractual basis. to daim that they have a n'ght to be absorbod in ser/ico...." 6) In Indian Drugs & Pharmaceuticals Ltd. Vs. Workmen, Indian Drugs & Pharmaceuticals Ltd-2, th@ Supreme Court observed as under: "34. Thus, it is well settled that there is no right vested regularisation. daily-wager (2007) 1 SCC 408 Regularisation can only be done in accordance with the rules and not dohors tho rules. 35. tn Sunnder Singh Jamwaf (Dr.) v. State ofJ&K\i was held thaf ad hoo appointment does not givo any rightfor regularization as regularization isgoverned by the statutory rules. " 7) The observations made in Umadevi approval in Official Liquidator vs. Dayanand and Others3. (supra) were quoted with Their Lordships further explained about the rights of the daily wagers and regularization. Para 70 reads as under: "70.

The shift in the Court's approach became more prominent in A. UmQrQni v- Coop. Socie^es, decided by a three-Judge Bench. wherein it was held that the Stat©cannot invoke Article 162 of the Constitution for regularisation ofthe appolntments made tnviolatlon of the mandatory statutory provisions. " 8) If the appointment of the petitioner jteeff was iKegal. the subsequent grant of regular pay scale and regularization does not change the status of the employee. The Supreme Court in Ashok Kumar Sonkar Vs. Union of India and others4 observed as under : "34. It is not a case where appointment was irregular. If an appointment is irregular, the same can be regulanzed. The court may not take serious note of an irrogularity within tho moaning of tho provisjons of tho Act. But ff an appointment is iltegal, it is non est in the eye of law, which renders the appointment to be a nullity. " 9) The Supreme Court in Munidpal Corpn.. Jabatpur Vs.

Om Prakash Dubey3 observed as under : "11. The thus, arises "irregular appointment" question which, Is there any distinction "jltegal consideration, would be: between appointmenf? Tho distinction between the two terms is apparent. In the event the appointment is made In total disregard ofthe constjtutional scheme as also the recruitment rules framed by the employer, which is State withln the meaning of Artlcle 12 of Constitution of the recruitment would be an illegal one; whereas there may be cases where, afthough, constitutional schemo as also the rul©s has been made, the appointment may be irregular in the sense that some provisions of the rules might not have been strictiy adhered to" compliance substantial India,