Ram Niwas Yadav v. Union of India & others

HiGH COURT OF CHHATTISGARH : BILASPUR WRIT PETtTION N0.3999/2003 Ram Niwas Yadav Versus Union of India & others (Writ Petition under Article 226/227 ofthe Consfitution of india) Sinaie Bench: Hon'ble Shri Satish K. Aanihotri. J. :• Shri Anand Dadariya, counsel for the petitioner. Shri R. Pradhan, counsel for respondents. ORAL ORDER (Passed on this 11 day of September, 2009) The petitioner, by this petition, seeks direction from this Court to the reguiarization of his service and further respondent authorities for considering the case ofthe petitioner for promotion. According to learned counsel.for the petitioner, the petitioner has (2) joined on the post of Additional postman in the Khaira Dangania Post Office on daily wages basis in the year 1976. Learned counsel further submits that the petitioner rendered his services with great sincerity and honestly. Even the respondents authorities vide order dated 30-12-2002 (Annexure P-3) asked the petitioner to submit his caste certificate for considering his case for promotion to the next higher post and in compliance of the same the petitioner has submitted all the requisite documents, but till date the petitioner has not been regularized. However, learned counsel for the petitioner fairly submits that there was no selection process for appointment. I have heard learned counsel appearing for the parties, perused the It is evidsnt that the (3) pleadings and.the documents appended thereto. petitioner has not filed the copy of his appointment order which was issued in the year 1976. Indisputably, there was no proper selection process by inviting the applications from the eligibie candidates by issuing the advertisement. The appointment of the petitioner itself was illegal and not in accordance with the constitutionat scheme of appointment and, as such, the petitioner has no right to grant of regularization. <s»eES^ ..^^:.-^'}vy"v'-v' \-Sss'fsRS'"i ffS^ %!"f"Sgl, ? t, .i^ ,^* ^.^'y^n'Sas'f"' ^ssS- s^^s^ i^vsy^- ;:?^?:i11'' ;:.SS»i?'1 The Supreme Court in Secretary, State of Kamataka and (4) Vs. Umadevi (3) and others1, observed as under: "43....Jf contractual appointment, the end of a appointment comes to an end at contract, if it were an engagement or appolntment on daily wages or casual basis, the same would come to an end when it is discontinued. Similarly, a temporary employee could not daim to be made permanent on It has also to be the expiry of his term of appointment. clarified that 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 made permanent, if the merely on the strength of such continuance, originai appointment was not made by foliowing a due process of selection as envisaged by the relevant rules. It is not open to the court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad hoc empioyees who by the very nature of their appointment, do not acquire any right..... in nature,

45. While directing that appointments, temporary or casual, be regularised or made permanent, the courts are swayed by the fact that the person concerned has worked for some time and in soma cases for a It is not as If the person considerable length of tlme. temporary or who accepts arf engagement either casual is not aware of the nature of his employment. He accepts the employment with open It may be true that he is not in a position to eyes. bargaln - not at arm's length - since he mlght have been searching for some employment so as to eke out his live!ihood and aceepts whatever he gets. But on it would not be appropriate to that ground alone, jattison the constitutional scheme of appointment and to take the view that a person who has temporarlly or casually got employed shoutd be directed to be continued permanently. By doing so, it will be creating another mode of public appointment which is not If the court wera to void a contractual permissible. 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 empioyee. A total embargo on such casual or is not possible, given the temporary employment exigencies of administration and if imposed, would only mean that some people who at least get temporarily, contractually or casually, employment would not be getting even that employment brings at (2006) 4 SCC 1 N .-3S9. 'i.i=-?'/-M! k.lMalSJiSg?'" ^i25* ;'" ^sasg^ t^a's^KW'''"':' T> nature making concemed established, constitutionality it will not be just least some succour to them. After all, innumerable citizens of our vast country are in seareh of employment and one is not compelled to accept a casual or temporary employment if one is not inclinsd It is In that context to go in.for such an employment. that one has to proceed on the basis that employment was accepted fully knowing the nature of it and the consequences flowing from it. In other words, even white accepting the employment, person It is not an appointment to a post in the employment. real sense of the term. The claim acquired by him in the post in which he is temporarily employed or the in that post cannot be considered to be of interest such a magnitude as to enable the glvlng up of the regular procedure appointments to available posts in the services of the Stete. The argument that since one has been working for some time in the post, discontinue him, even though he was aware of the nature of the employment when he first took it up, is not (s/c) one that would enable the jettisoning of the procedure established by law for public employment and would have to fail when tested on the touchstona opportunlty enshrined in Article 14 of the Constitution. 47. When a person enters a temporary employment or gete engagement as a contractual or casual worker is not based on a proper and the engagemerit selection as recognised 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 expeetation 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 in consultation with the Pubiic cases concemed, the theory of Service Commission. successfully legitimate expectatlon casual advanced 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 is also obvious that tha make such a promise. It theory cannot be invoked to seek a posltive relief of bsing made permanent in the post. '48....There Therefore, cannot is no fundamental right in those who have been employed on daily wages or temporarily or on contractual basis, to ctaim that they have a right to bs absorbed in service... ." contractual temporary, equaiity (5) approvai The observations made in Umadevi (supra) were quoted with in OfRciai Liquidator vs. Dayanand and Others . Their (2008)103cci -At Lordships further explained about the rights of the temporary employees and regularization. Para 70 reads as under: The shift "70. in the Court's approach became more prominent in A. Umarani v. Coop. Societies, decided by a three-Judge Bench, wherein it was held that the State the Constitution for cannot regularisatlon of the appointments made In violation of the mandatory statutory provisions." invoke Article 162 of If the appointment of the petitioner itself was iljegal. the subsequent (6) 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 others observed as under: "34. it is not a case where appointment was irregular. If an appointment is irregular, the same can be regularized. The court may not take serious note of an irregularity within the meaning of the provisions of the Act. But if an appointment is illegal, it is non est In the eye of law, which renders the appointment to be a nullity." The Supreme Court (7) Prakash Dubey observed as under : in Municipal Corpn., Jabalpur Vs. Om / "11. The question which, thus, arises for conslderation, Is there any distinction between "irregular would be: appointment" and "illegal appointment"? The distinction between the two termS is apparent. appointment is made constitutional scheme as also She framed by the employer, which is State within the meaning of Article 12 of the Constitution of India, recruitment would be an itlegai one; whereas there may be casos where, aithough, substantial compliance with the constitutional scheme as also the rules has been made, the appointment may be irregular in the sense ihat some provisions of th®rules might not have been strictly adhered to." In the evant recruitment disregard Applying the weil settled principles of the law as laid down by the (8) Hon'ble Supreme Court to the facts of the present case, the petitioner is not entitied to any relief, as the petitioner was appointed on daiiy wages basis, the question of regularisation does not arise. llijep"^" (9) dismissed. In view of the foregoing, the petition is liable to be and is hereby ————— -. -.__,__ Sd/. 1K. Judge 3 ' {(2007) 4 SCC 54} {(2007) I SCC 373}