Prahlad Kumar Banchhore v. State of Chhattisgarh & Ors.

(Writ petition underArticle 226/227 ofthe Constitution of India) Single Bench : Hon'ble Shri Satish K. Agnihotri, J. Present:- Shri R.K. Kesharwani, counsel for the petitioner. Shri Arun Sao, Govt. Advocate for the State. ORAL ORDER (Passed on this 20th day of IVIarch, 2009) With the consent of learned counsel appearing for the parties, the petition is heard finally. 2) By this petition, the petitioner seeks quashing of the order dated 31-3-2006 (Annexure—P/3) passed by the respondent No.2 whereby the petitioner was directed to be removed from service w.e.f. 1-5-2006 and also seeks a direction to the respondent authorities to regularize the services of the petitioner from the year 1998. 3) Learned counsel appearing for the petitioner would contend that the petitioner has been working in the respondent department since a long the name of the period on daily wages basis and in the seniority list, petitioner is at S.No.25. Services of the persons, who were junior to the petitioner, were regularized, but the case of the petitioner has not been considered for regularization. The nature of duties performed by the petitioner is similar to that of the regular employees. The petitioner has submitted representation respondent authorities before regularisation of his services, but the same has not been considered and decided till date. However, all of a sudden by order dated 31-3-2006 the respondent authorities directed removal of the services of the petitioner w.e.f. 1-5-2006. 2-- 4) I have heard learnedcounsel appearing for the parties, perused the pleadings and the documents appended thereto. 5) The Supreme Court in Secretary, State of Karnataka and others Vs. Umadevi (3) and others , observed in paras 45 and 47 as under: jettison directing in nature, "45. While appointments, temporary or casual, be regularised or made permanent, the courts are swayed by the fact the person concerned has worked for some time and a considerable length of time. It is not as if the person who accepts an engagement either temporary or casual is not aware of the nature of his employment. He accepts the It may be true employment with open eyes. that he is not in a position to bargain - not at arm's 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 constitutional appropriate 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 public appointment If the court were to which is not permissible. void a contractual employment of this nature on the ground that the parties were not having equal bargaining power, too would not to that enable the court employee. A total embargo on such casual or temporary employment is not possible, given exigencies imposed, would only mean that some people temporarily, who at contractually or casually, would not be getting even that employment brings at least some succour to them. After all, innumerable citizens of our employment and one is not compelled to accept a casual or temporary employment one is not inclined to go in for such an It is in that context that one has employment. 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 It is not an appointment to a post employment. in the real sense of The claim in which he is acquired by him in the post in that temporarily employed or the interest to grant any relief least get employment administration the term. country search c, 1 (2006) 4 SCC 1 - -2. engagement post cannot be considered to be of such a magnitude as to enable the giving up of the for making regular procedure established, 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 is not (s/c) one that when he first took it up, 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 Constitution. "47. casual worker When a person enters a temporary a employment contractual engagement is not based on a proper selection rules or procedure, he is awareofthe consequences of the appointment being temporary, casual or in nature. Such a person cannot contractual invoke the theory of legitimate expectation for appointment to the post could be made only by following a proper procedure for selection and in consultation with the in cases concerned, Public Service Commission. legitimate expectation cannot be theory of temporary, successfully It cannot contractual or casual employees. 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 It is also obvious that make such a promise. the theory cannot be invoked to seek a positive relief of being made permanent in the post." post when the relevant recognised Therefore, confirmed advanced 6) In Indian Drugs & Pharmaceuticals Ltd. Vs. Workmen, Indian Drugs & Phafmaceuticals Ltd. , the Supreme Court observed as under : "34. Thus, it is well settled that there is no right vested Regularisation can only be regularisation. done in accordance with the rules and not dehors the rules. daily-wager

35. In SurinderSingh Jamwal (Dr.) v. State ofJ & /< it was held that ad hoc appointment does not give any regularization is governed by the statutory rules." regularization (2007) 1 SCC 408 -^ 7) The observations made in Umadevi Pharmaceuticals Ltd. (supra), with approval, Official Liquidator vs. Dayanand and Others , has further explained about the rights of the daily wagers and regularization. Para 70 reads as (supra) & Indian Drugs & the Supreme Court under: in A. Umarani

70. The shift in the Court's approach became more prominent v. Coop. Societies, decided by a three-Judge Bench, wherein it was held that the State cannot invoke Article 162 of the Constitution for regularisation of the appointments made in violation of the mandatory statutory provisions." ^:.. 8) If the appointment of the petitioner itself was illegal, 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 others observed as under: "34. It is irregular, If an appointment is not a case where appointment was irregular. 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." 9) The Supreme Court in IVIunicipal Corpn., Jabalpur Vs. Om Prakash Dubey observed as under : appointment" and "11. The question Which, thus, arises for consideration, would be: Is there any distinction "illegal between "irregular appointment"? The distinction between the two terms is apparent. In the event the appointment is made in total disregard of the constitutional scheme as also the recruitment rules framed by the employer, which is State within the meaning of Article 12 of the Constitution of India, the recruitment would be an illegal one; whereas there may be cases where, although, substantial compliance with the constitutional scheme as also the rules has been made, the appointment may be irregular in the sense that some provisions of the rules might not have been strictly adhered to."