In the matter of an Application under Articles 226 and 227 of the Constitution v. Narasingha Murty @ V. Narasimha Murty Aged about 45 years Son of V. Narayan
Case Details
ORISSA HIGH COURT : CUTTACK W.P.(C) No.4078 of 2013 In the matter of an Application under Articles 226 and 227 of the Constitution of India, 1950 *** Shri V. Narasingha Murty @ V. Narasimha Murty Aged about 45 years Son of V. Narayan Murty At/P.O./P.S.: Berhampur District: Ganjam, Odisha State … -VERSUS- 1. State of Odisha Represented through Commissioner-cum-Secretary Rural Development Department Secretariat, Odisha, Bhubaneswar 2. Executive Engineer Rural Works Division-II, Ganjam At/P.O.: Berhampur District: Ganjam, Odisha State… Counsel appeared for the parties: Petitioner Opposite parties For the petitioner : M/s. Tanmay Mishra and Sangramjeet Senapati, Advocates For the opposite parties : Mr. Sachidananda Nayak, Additional Standing Counsel W.P.(C) No.4078 of 2013 Page 1 of 77 P R E S E N T: THE HONOURABLE ACTING CHIEF JUSTICE DR. B.R. SARANGI THE HONOURABLE MR. JUSTICE MURAHARI SRI RAMAN AND Date of Hearing : 07.12.2023 :: Date of Judgment : 13.12.2023 J UDGMENT MURAHARI SRI RAMAN, J.— THE PRAYER FOR RELIEF: Aggrieved by the Order dated the 23rd September, 2011 passed by the learned Odisha Administrative Tribunal, Bhubaneswar in Original Application under Section 19 of the Administrative Tribunals Act, 1985, registered as O.A. No.807 of 1999, the petitioner, one of the six other joint-applicants, came up before this Court in the instant writ petition for issue of writ in the nature of certiorari as also writ of mandamus, beseeching the following relief(s): <It is, therefore, most respectfully prayed that the Hon9ble Court would be graciously pleased to admit the writ petition, And Issue notice to the opposite parties and after hearing the parties be pleased to set aside the impugned Order dated 23.09.2011 in O.A. No.807 of 1999 (Annexure-13): W.P.(C) No.4078 of 2013 Page 2 of 77 And Be pleased to direct that the Petitioner is entitled to regularization in accordance with the scheme prepared under Annexures-6, 7, 8 and 9 and further be pleased to declare that since the petitioner is not engaged after 12.04.1993, Orders at Annexure-10 and 11 read with Annexure-6 are not binding on the petitioner. And Further be pleased to grant the consequential service benefits. And May grant any other relief/reliefs as deemed fit and proper.= PLEADINGS: 2. The factual details as adumbrated by the petitioner in the writ application necessary for addressing the grievance would suffice to say like thus: 2.1. The petitioner-V. Narasingha Murty @ V. Narasimha Murty, a Diploma holder in Mechanical Engineering, having made application along with many others, was engaged as <consolidate wager= on 20.11.1991 in Rural Works Section (Stores), Berhampur, in terms of Paragraph (v) of Appendix-XXXIII4 <DEPARTMENTAL EXECUTION OF WORK= as inserted by Office Memorandum No.26178-Code-11/86, dated 14.10.1987 forming part of W.P.(C) No.4078 of 2013 Page 3 of 77 Volume-II contained in the Odisha Public Works Department Code. 2.2. For engagement of unemployed Graduate Engineers and Diploma Holders in supervision, survey and investigation etc. of Departmental execution of works under the Departmental Engineers, the Orissa Public Works Department Code had provided certain provision. 2.3. The Superintending Engineer, Rural Works Circle, Berhampur prepared seniority/gradation list of Daily Labour Rate workers engaged in the Berhampur Division, where the name of the petitioner claimed to have stood at Serial No.7 depicting engagement in 1991 for 36 days, 1992 for 313 days, 1993 for 352 days, 1994 and 1995 for 365 days each, 1996 for 366 day, 1997 for 365 days and 1998 for 151 days. 2.4. It is stated by the petitioner that while he was being paid Rs.40/- per day on daily wage basis, the wage has been enhanced vide Letter No.8800, dated 18.04.1994 issued by Financial Adviser-cum-Joint Secretary to Government of Odisha in Works Department addressed to Chief Engineer/ Roads/ N.Hs./ Buildings, Odisha, Bhubaneswar, to the following effect: <Sub.: Revision of wages of NMR/DLR Engineering Diploma Holder. I am directed to say that consequent upon the revision of wages of N.M.R. Graduate Engineers the W.P.(C) No.4078 of 2013 Page 4 of 77 revision of wages of NMR/DLR question of Engineering Diploma Holders in Investigation, Survey, Supervision etc. of works was under active consideration of Government for some time past. engaged After careful consideration, Government have been pleased to revise the wages of N.M.R./D.L.R. Engineering Diploma Holders from Rs.1416/- to Rs.1600/- per month effect from the date of its issue. This has been concurred in by Finance Department in their U.O.R. No.98 WF-I dated 4.2.94.= 2.5. While the matter stood thus, on 10.03.1999 following letter came to be issued by the Executive Engineer, Rural Works Division-II, Ganjam, Berhampur indicating advance three months9 notice indicating disengagement: <Office of the Executive Engineer, Rural Works Division II, Ganjam, Berhampur 3 760 010 No.3247 Date:10.03.1999 In accordance with the Government of Odisha, Finance Department, Bhubaneswar Resolution No.22764/F., dated 15.05.1997 read with Finance Department, Odisha, Circular No.17015/F., dated 12.04.1993 and Rural Development Department, Odisha Letter No.9390, dated 24.05.1997 and Memo No.2511, dated 16.02.1999. It is hereby notified that the following D.L.R. workers of the categories against such sub-division and sections of this for engagement after division are not 10.06.1999. required W.P.(C) No.4078 of 2013 Page 5 of 77 This notice is issued as no examination has been made/conducted for their engagement and engagement has been made according to Appendix XXXIII, Note (v) of O.P.W.D. Code, Vol.II for Graduate/Diploma Engineers. This is also as per provisions contained in the I.D. Act. This may please be treated as an advance notice for disengagement of D.L.R. workers under this Division engaged authorisedly in conformity to the Letter No.12620 dated _____ and No.13174 dated 14.12.1998 of S.E.,R.W. Circle. This three month advance notice is issued for arranging their livelyhood elsewhere. This notice is issued further in continuation to this Office notice No.2919, dated 06.03.1999. Sl. No. 1 2 3 4 5 6 7 8 9 10 Name of D.L.R. Category Name of R.W. Sub-divn. where working Berhampur Name of R.W. section where working Berhampur Supervisory Chitaranjan
Legal Reasoning
Sri Panda Sri V.N. Murty Sri pradeep Padhi Sri S.S. Narayan Subudhi Kr. -do- -do- -do- -do- -do- -do- -do- -do- -do- -do- Prasad -do- -do- Sri Braja Ballabha Padhi Sri Arjun Kr. Padhi Sri Jyoti Biswasray Sri P.K. Padhi Sri Monaj Panigray Sri Bijaya Kr. Nayak Semiskilled -do- -do- Kr. Digapahandi Digapahandi -do- -do- Nuapada -do- Berhampur Khalikote Kukudakhandi Khalikote Chatrapur Ganjam Sd./- (B.K. Das) Executive Engineer, R.W. Divn-II, Ganjam, Berhampur= W.P.(C) No.4078 of 2013 Page 6 of 77 2.6. Citing that such disengagement vide Letter dated 10.03.1999 (Annexure-5) was issued having no regard for certain directions and considered views of the Government in various letters/circulars, the petitioner along with six others, namely Pradip Kumar Padhi, Graduate Engineer, Chittaranjan Panda, Graduate Engineer, Anjana Kumar Padhy, Diploma Holder, S. Sankar Narayan Subudhi, Diploma Holder, Jyoti Prasad Biswashray, Diploma Holder, Pradeep Kumar Padhi, Diploma Holder, approached the Odisha Administrative Tribunal, Bhubaneswar, by way of filing Original Application under Section 19 of the Administrative Tribunals Act, 1985, seeking for a direction to the opposite parties to regularize their services. Declining to show indulgence, said Tribunal passed following Order on 23.09.2011 in O.A. No.807 of 1999: <Heard learned counsel for the applicant and State- Respondents at length. The applicant seeks regularization of service pursuant to Order of Finance Department dated 15.05.1997 at Annexure-6. In view of the decision in the case of Secretary of State of Karnataka and Others Vrs. Umadevi, 2006 (3) SLJ-I S.C. [(2006) 4 SCC 1] such an incumbent cannot claim for regularization of service. However, if applicant has already been regularized in service and order has been obtained for regularization of service that shall stand. W.P.(C) No.4078 of 2013 Page 7 of 77
Decision
The O.A. is accordingly disposed of.= 2.7. Questioning propriety of said Order of the Odisha Administrative Tribunal, Bhubaneswar, the petitioner seeking invocation of jurisdiction of this Court under Article 226/227 of the Constitution of India, filed the aforenoted writ petition. 3. Counter affidavit on behalf of the opposite parties has been filed on 01.09.2016 contending that in view of the Finance Department Office Memorandum No.WF-I- 105/944 30375, dated 01.08.1995, since there is no necessity for engaging the Engineers holding Diploma qualification in supervisory position for the purpose of departmental execution of work on daily wage basis, notice has been issued contemplating disengagement. 3.1. Referring to Notice No. 5592, dated 30.04.1999 issued by the Executive Engineer, Rural Works Division-II, Ganjam, Berhampur indicating that the services of daily labour rate workers of different categories including that of Graduate Engineers and Diploma Engineers in Sub- Division/Sections of the Division were not required on or after 10.06.1999, it has been stated that 76 employees including the present petitioner were intimated with regard to disengagement and the engagement, if any, after 10.06.1999 would be treated as unauthorized. 3.2. In the said Letter dated 30.04.1999 it has been made clear that: W.P.(C) No.4078 of 2013 Page 8 of 77 <As no examination for recruitment has been conducted for their engagement. As there is no authority to empower the Executive Engineer to engage Degree/Diploma holders deviating the list from the panel. As there is no authority to engage Degree/Diploma holders empowering the Executive Engineer to engage them for a longer period. As no notice has been issued inviting application for engagement of Degree/Diploma Engineers and other category of D.L.Rs. Since no appointment orders have been issued for their engagement and no recruitment procedure has been followed. As the DLRs listed below (name of petitioner appears at Serial No.2 among total serial numbers of 76) has not been engaged against any sanctioned posts.= 3.3. It is further stated by the opposite parties that since no cadre of engineers does exist nor is it maintained under the opposite party No.1-Rural Development Department, the claim of the petitioner for regularization cannot be acceded to. This apart, the petitioner does not draw salary, but was paid daily wage as per the norm fixed from time to time under the Minimum Wages Act, 1948. 3.4. The aforesaid factual position does not entail consideration of the case of the petitioner for regularization in service as none of the criteria envisaged W.P.(C) No.4078 of 2013 Page 9 of 77 in State of Karnataka Vrs. Uma Devi, (2006) 4 SCC 1 is satisfied. 3.5. Raising objection against the averments of the petitioner justifying consideration for regularization in service in view of Finance Department Resolution dated 15th May, 1997 with regard to <Scheme for absorption of NMR/DLR/Job Contract workers under Regular Establishment= (Annexure-6), Rural Development Department Letter No.8390/RD, dated 24.05.1997 regarding <Scheme for absorption of NMR/DLR/Job Contract workers under Regular Establishment= (Annexure-7) and Letter vide Memo No.2511/RD, dated 16.02.1998 issued by the Principal Secretary to Government, Rural Development Department (Annexure- 8), the opposite parties have contended that the said scheme is applicable to the cases of <menial and ministerial workers=, but not to Engineers (Graduate/ Diploma Holders). 4. Explaining the delay in approaching this Court in writ application challenging the Order dated 23.09.2011 passed in O.A. No.807 of 1999, the petitioner by way of additional affidavit dated 21.07.2014 submitted that he was unaware of dismissal of said Original Application as the conducting lawyer before the Odisha Administrative Tribunal did not intimate the fact. Therefore, he could be able to challenge said Order before this Court only in the W.P.(C) No.4078 of 2013 Page 10 of 77 year 2013. He has further submitted that <till date the petitioner is continuing on daily wage basis=. Further additional affidavit dated 08.05.2022 has come to be filed affirming therein, <5. That it is further humbly submitted that the petitioner had filed the O.A. No.807 of 1999 along with 6 others. The other applicants in the said O.A. No.807 of 1999 have been regularized in the meantime but the petitioner has not yet been regularized. The petitioner is still continuing on DLR basis.= 5. Against such affidavit, in compliance of direction of this Court in Order dated 18.08.2023 that <as to why the services of the petitioner have not been regularized, even though he has already rendered more than 32 years of service on DLR basis in the meantime, when the services of similarly situated persons serving under Mechanical Engineering wing have been regularized, particularly when there is availability of vacancy and he has been continuing against a vacant post=, it has been stated by the opposite parties by way of affidavit that vide Order No.8, dated 17.05.1999, the Odisha Administrative Tribunal directed as follows: <the services of the applicant shall not be terminated without leave of the Tribunal.= 5.1. However, in the said affidavit, the opposite parties asserted that since by Order dated 23.09.2011 the Odisha Administrative Tribunal, applying the principles Page 11 of 77 W.P.(C) No.4078 of 2013 laid down in the case of Umadevi, (2006) 4 SCC 1, dismissed the Original Application, there is no merit in the matter for consideration of the case of the petitioner for regularization in service. 5.2. Notwithstanding the fact of dismissal of such Original Application at the instance of the petitioner, the opposite party No.2-Superintending Engineer (upgraded post of Executive Engineer), Rural Works Division-II, Ganjam, Berhampur in the aforesaid affidavit conceded the position as follows: <Therefore, on the strength of the interim order of the learned Tribunal the petitioner is continuing as DLR worker and is paid wages as admissible.= HEARING OF WRIT PETITION BEFORE THIS COURT: 6. On the pleadings being exchanged among counsel for respective parties, on their consent, the matter is taken up for final hearing at the stage of admission. This Court heard Sri Sangramjeet Senapati, learned Advocate for the petitioner and Sri Sachidananda Nayak, learned Additional Standing Counsel appearing on behalf of the opposite parties. SUBMISSIONS AND ARGUMENTS OF RESPECTIVE PARTIES: 7. Sri Sangramjeet Senapati, learned Advocate submitted that vide Finance Department Resolution No.WF-I- 24/974 22764/F., dated 15.05.1997 under Annexure-6, W.P.(C) No.4078 of 2013 Page 12 of 77 it is clearly mentioned that large number of persons were engaged as workmen on Nominal Muster Roll (NMR)/ Daily Labour Roster (DLR)/Job Contract basis under different Departments of regular establishments of the Government of Odisha and considering the directions of this High Court as well as the Hon9ble Supreme Court for absorption of such workers, schemes were prepared. It has categorically been mentioned in Resolution dated 15.05.1997 (Annexure-6) that the Schemes were prepared for absorption of workers, who were engaged prior to 12.04.1993, i.e., prior to promulgation of ban on engagement of NMR/DLR/Job Contract workers, vide Finance Department Circular No.WF-II-180/924 17815/F., 12.04.1993. In the Letter bearing No.8390/RD, dated 24.05.1997 under Annexure-7, Rural Development Department also issued orders for absorption of such workers. Sri Sangramjeet Senapati, learned counsel has pressed into service paragraph 2.3 of said letter which stated as follows: <Therefore, it is necessary to ascertain the seniority of a worker belonging to his category for the purpose of preparation of gradation list. In this connection it may be stated that the workers must have been engaged in any one of the five categories namely (a) unskilled, (b) semi- skilled, (c) skilled, (d) highly skilled and (e) clerical and supervisory as per Notifications of Labour and Employment Department. *** Clerical and Supervisory category consists of clerk, cashier, accountant, steno, W.P.(C) No.4078 of 2013 Page 13 of 77 typist, steno-typist, foreman, time-keeper, storekeeper, manager and supervisor.= 7.1. It is, therefore, submitted that since the present petitioner, being engaged in <supervisor= category in terms of Paragraph (v) of Appendix-XXXIII of Volume-II of the Odisha Public Works Department Code, for <supervision, survey, investigation etc. of departmental execution of works under the direction of departmental engineers=, the assertion of the opposite parties at paragraph 11 of the counter affidavit that <Annexures-6 and 7 are only applicable to the cases of menial and ministerial workers= is thoroughly misconceived and the opposite parties have misdirected themselves. 7.2. It is further forcefully submitted by the counsel for the petitioner that vide Finance Department Circular No.WF- II-180/92417815/F., 12.04.1993 under Annexure-8, the ban was applicable on recruitment of work-charged employees, NMRs and DLRs. Said letter has clarified as follows: <*** However, this may not be applicable for payment of wages to labourers actually engaged in execution of works, against labour component of estimates of works, directly undertaken by the Departments. ***= 7.3. It is, thus, submitted that as per Paragraph (v) of Appendix-XXXIII of Volume-II of the Odisha Public Works Department Code that the pay and allowances of engineers engaged for supervision, survey, investigation, W.P.(C) No.4078 of 2013 Page 14 of 77 etc. of departmental Engineers <shall be provided for in the estimates under a separate unit 8overhead expenses9 for such survey, investigation, supervision of works, etc.=. 7.4. Sri Sangramjeet Senapati, learned counsel strenuously urged that the Letter No.12620/RWC/BAM, dated 02.12.1998 issued by the Superintending Engineer, Rural Works Circle, Berhampur, under Annexure-10 and Letter No.13174, dated 14.12.1998 issued by the Superintending Engineer, Rural Works Department, under Annexure-11 stating that <any engagement after 12.04.1993 is unauthorised violating Finance Department Circular= and payment of wages made to the DLR staff engaged <after 12.04.1993= was construed to be deviation of instructions of higher authorities, the Letter No.3247, dated 10.03.1999 issued by the Executive Engineer, Rural Works Division-II, Ganjam at Berhampur vide Annexure-5 contemplating three months9 advance notice for <disengagement of DLR workers=, appending a list thereto including therein the name of the petitioner at Serial No.2, is fallacious, inasmuch as the authority treated the petitioner as if engaged after 12.04.1993. Attention is drawn to the fact on record, which is apparent from the seniority/gradation list vide Annexure-2, that the petitioner has been engaged to work as DLR since 1991. W.P.(C) No.4078 of 2013 Page 15 of 77 7.5. Therefore, Sri Sangramjeet Senapati, learned Advocate for the petitioner prayed for consideration of the case of the petitioner for absorption who has been working till date, being engaged prior to 12.04.1993. 7.6. It is asserted that without any discussion with respect to substantive merit of the matter the Odisha Administrative Tribunal, Bhubaneswar merely referred to Umadevi, (2006) 4 SCC 1. Therefore, it could not have dismissed the Original Application. The counsel for the petitioner has placed for consideration the factual position that even though the Odisha Administrative Tribunal dismissed the Original Application on 23.09.2011, the petitioner has been continuing in the vacant post. Amplifying his submission Sri Sangramjeet Senapati, learned Advocate laid stress on the additional affidavit dated 08.05.2022 of the petitioner, wherein the petitioner affirmed as follows: <5. That it is further humbly submitted that the petitioner had filed the O.A. No. 807 of 1999 along with 6 others. The other applicants in the said O.Α. No. 807 of 1999 have been regularized in the meantime but the petitioner has not yet been regularized. The petitioner is still continuing on DLR basis. This fact is clear from the Letter dated 25.03.2022 of the Superintending Engineer, letter dtd.27.08.2021 of Engineer-in-Chief, Rural Works along with chart, Account statement and Hand Receipt, copies of which are annexed hereto as Annexure-15 Series. W.P.(C) No.4078 of 2013 Page 16 of 77 6. That it is pertinent to mention here that a Diploma Holder in Mechanical Engineering, who had been engaged on DLR basis in the year 1991 in Jajpur Rural Works Division-II namely Sri Madhusudan Mishra has been absorbed vide Order dated 20.09.2021 but the petitioner has not yet been absorbed in regular establishment, which is clear case of discrimination and violation of Articles-14 and 16 of the Constitution of India. Copies of Gradation List of R. W. Division-II, Jajpur and order dtd.20.09.2021 are annexed hereto as ANNEXURE- 16 Series.= 7.7. As the position elicited in the above additional affidavit of the petitioner has not been answered nor has it been denied by the opposite party No.2 in the compliance affidavit dated 16.11.2023 furnished to this Court in pursuance of Order dated 18.08.2023, learned counsel for the petitioner, Sri Sangramjeet Senapati, thus, contended that discrimination attracting vice of Article 14 and Article 16 of the Constitution of India is writ large for the opposite parties could not have and ought not to have ignored to consider the case of the petitioner for absorption in service. He placed reliance on the decision of the Hon9ble Supreme Court of India in the case of Raman Kumar Vrs. Union of India, 2023 LiveLaw (SC) 520. 8. Reiterating the stand taken by the opposite parties in counter affidavit as also compliance affidavit, Sri Sachidananda Nayak, learned Additional Standing W.P.(C) No.4078 of 2013 Page 17 of 77 Counsel opposing the arguments advanced by Sri Sangramjeet Senapati, learned Advocate, submitted that the petitioner has not been engaged against any <sanctioned post= and his engagement was also not preceded by following any recruitment procedure nor by way of any open selection process. He was engaged as DLR in 1991 and continuing as such till date. He clarified that such continuance of the petitioner was by virtue of protection granted by the Odisha Administrative Tribunal by Order dated 17.05.1999. 8.1. Supporting the rejection of claim of the petitioner by the Odisha Administrative Tribunal vide Order dated 23.09.2011 passed in O.A. No.807 of 1999 (Annexure- 13), Sri Sachidananda Nayak, learned Additional Standing Counsel vehemently urged that the petitioner was not entitled to be engaged to work as DLR employee in view of Office Memorandum No. WF-I-105/944 30375, dated 01.08.1995 issued by the Finance Department instructing for <abolition of the system of departmental execution of work=. Regularising his services and thereby absorbing the petitioner in service would fall foul of interdiction laid down in Secretary, State of Karnataka Vrs. Umadevi (3), (2006) 4 SCC 1. DISCUSSIONS AND ANALYSIS: 9. What remains as a matter of fact is this that the petitioner, a Diploma Holder in Mechanical Engineering, W.P.(C) No.4078 of 2013 Page 18 of 77 has been working as DLR, being engaged in the year 1991 as provided in Paragraph (v) of Appendix-XXXIII of Volume-II contained in the Odisha Public Works Department Code, which reads as follows: <Unemployed Graduate Engineers and Diploma Holders of the State shall be engaged in supervision, survey, investigation etc. of departmental execution of works under the direction of departmental Engineers and their pay and allowances shall be provided for in the estimates under a separate unit 8overhead expenses9 for such survey, investigation, supervision of works, etc. The expenditure of this account shall not exceed 12‰ per cent of the estimate in each case.= 9.1. Thus, it transpires from the pleading that he was not engaged against any sanctioned post nor working against any vacant post. It is apparently clear from Notice/Letter No.5592, dated 30.04.1999 of the Executive Engineer, Rural Works Division-II, Ganjam at Berhampur vide Annexure-D/1 enclosed to counter affidavit that no examination for recruitment was conducted; there was no authority vested and/or delegated on the Executive Engineer to engage such Engineers for a long period; no notice was issued inviting application for engagement of Degree/Diploma Engineers to work as DLR. It was also made clear in the said letter that: W.P.(C) No.4078 of 2013 Page 19 of 77 <This notice is issued without any prejudice to claim of anybody and claim of others to disengage after 10.06.1999 the unauthorized engagees.= 9.2. The engagement of the petitioner was for limited purpose to carry out supervision, survey and investigation, etc., of Departmental execution of work under the direction of the Departmental Engineers. 9.3. As remained uncontroverted by the learned counsel for the petitioner neither during the course of hearing nor by way of filing any reply/objection, factually, it seems to be correct statement of fact as affirmed in the compliance affidavit dated 16.11.2023 sworn to by the Superintending Engineer (upgraded post of Executive Engineer), Rural Works Division-II, Ganjam at Berhampur that: <*** the petitioner had initially filed O.A. No.807 of 1999 for regularization of his service before the learned Odisha Administrative Tribunal, Bhubaneswar. In the interim the learned Odisha Administrative Tribunal vide their Order No.8 dated 17.05.1999 directed that, 8the services of the applicant shall not be terminated without leave of the Tribunal9. Therefore, on the strength of the interim order of the learned Tribunal the petitioner is continuing as DLR worker and is paid wages as admissible.= 10. With the above factual matrix, this Court, before proceeding to ascertain whether the petitioner is entitled W.P.(C) No.4078 of 2013 Page 20 of 77 to claim regularization and/or absorption in service having stated to have worked for around 32 years, feels it expedient to have overview of the legal position. 10.1. Any discussion on the contentious issue as raised in the instant case would be incomplete without reference to the Constitution Bench decision in Umadevi (3), (2006) 4 SCC 1 which marks a watershed moment in the development of law in this country by providing a legal foundation for equality of opportunity in the matter of public employment. For better understanding, certain excerpts of said Judgment considered apt to the present context are placed hereunder: precluded from making <3. A sovereign Government, considering the economic situation in the country and the work to be got done, temporary is not appointments or engaging workers on daily wages. Going by a law newly enacted, the National Rural Employment Guarantee Act, 2005, the object is to give employment to at least one member of a family for hundred days in a year, on paying wages as fixed under that Act. But, a regular process of recruitment or appointment has to be resorted to, when regular vacancies in posts, at a particular point of time, are to be filled up and the filling up of those vacancies cannot be done in a haphazard other manner considerations. Regular appointment must be the rule. on patronage or based or 4. But, sometimes this process is not adhered to and the constitutional scheme of public employment is W.P.(C) No.4078 of 2013 Page 21 of 77 the bypassed. The Union, the States, their departments and instrumentalities have resorted to irregular appointments, especially in the lower rungs of the service, without reference to the duty to ensure a proper appointment procedure through the Public Service Commissions or otherwise as per the rules adopted and to permit these irregular appointees or those appointed on contract or on daily wages, to continue year after year, thus, keeping out those who are qualified to apply for the post concerned and depriving them of an opportunity to compete for the post. It has also led to persons who get employed, without following of a regular procedure or even through the backdoor or on daily wages, approaching the courts, seeking directions to make them permanent in their posts and to prevent regular recruitment to the posts concerned. The courts have not always kept the legal aspects in mind and have occasionally even stayed the regular process of employment being set in motion and in some cases, even directed illegal, irregular or improper entrants be absorbed into service. A class of employment which can only be 8litigious employment9, has risen called like a the constitutional impairing phoenix seriously scheme. Such orders are passed apparently in exercise of the wide powers under Article 226 of the Constitution. Whether the wide powers under Article 226 of the Constitution are intended to be used for a purpose certain to defeat the concept of social justice and equal opportunity for all, subject to affirmative action in the matter of public employment as recognised by our Constitution, has to be seriously pondered over. It is time, that the courts desist from issuing orders preventing regular selection or recruitment at the instance of such persons and from Page 22 of 77 these that W.P.(C) No.4078 of 2013 *** 12. issuing directions for continuance of those who have not secured regular appointments as per procedure established. The passing of orders for continuance tends to defeat the very constitutional scheme of public employment. It has to be emphasised that this is not the role envisaged for the High Courts in the scheme of things and their wide powers under Article 226 of the Constitution are not intended to be used for the purpose of perpetuating illegalities, irregularities or improprieties or for scuttling the whole scheme of public employment. Its role as the sentinel and as the guardian of equal rights protection should not be forgotten. to employ persons, In spite of this scheme, there may be occasions when the sovereign State or its instrumentalities will have in posts which are temporary, on daily wages, as additional hands or in without following the required taking them procedure, to discharge the duties in respect of the posts that are sanctioned and that are required to be filled in terms of the relevant procedure established by the Constitution or for work in temporary posts or projects that are not needed permanently. This right of the Union or of the State Government cannot but be the there Constitution which prohibits such engaging of persons temporarily or on daily wages, to meet the needs of the situation. But the fact that such engagements are resorted to, cannot be used to defeat the very scheme of public employment. Nor can a court say that the Union or the State Governments do not have the right to engage persons in various capacities for a duration or until recognised and is nothing in W.P.(C) No.4078 of 2013 Page 23 of 77 the work in a particular project is completed. Once this right of the Government is recognised and the mandate of the constitutional requirement for public employment is respected, there cannot be much difficulty in coming to the conclusion that it is ordinarily not proper for the Courts whether acting under Article 226 of the Constitution or under Article 32 of the Constitution, to direct absorption in permanent employment of those who have been engaged without following a due process of selection as envisaged by the constitutional scheme. *** for 14. During the course of the arguments, various orders of the courts either interim or final were brought to our notice. The purport of those orders more or less was the issue of directions for continuation or absorption without referring to the legal position obtaining. Learned counsel the State of Karnataka submitted that chaos has been created by such orders without reference to the legal principles and it is time that this Court settled the law once and for all so that in case the Court finds that such orders should not be made, the courts, especially, the High Courts would be precluded from issuing such directions or passing such orders. The submission of learned counsel for the respondents based on the various orders passed by the High Court or by the Government pursuant to the directions of the Court also highlights the need for settling the law by this Court. The bypassing of the constitutional scheme cannot be perpetuated by the passing of orders without dealing with and deciding the validity of such orders on the touchstone of constitutionality. While approaching the questions W.P.(C) No.4078 of 2013 Page 24 of 77 falling for our decision, it is necessary to bear this in mind and to bring about certainty in the matter of public employment. The argument on behalf of some of the respondents is that this Court having once directed regularisation in Dharwad District PWD Literate Daily Wage Employees Association Vrs. State of Karnataka, (1990) 2 SCC 396 all those appointed temporarily at any point of time would be entitled to be regularised since otherwise it would be discrimination between those similarly situated and in that view, all appointments made on daily wages, temporarily or contractually, must be directed to be regularised. Acceptance of this argument would mean that appointments made otherwise than by a regular process of selection would become the order of the day completely jettisoning the constitutional scheme of appointment. This argument also highlights the need for this Court to formally lay down the law on the question and ensure certainty in dealings relating to public employment. The very divergence in approach in this Court, the so-called equitable approach made in some, as against those decisions which have insisted on the rules being followed, also justifies a firm decision by this Court one way or the other. It is necessary to put an end to uncertainty and clarify the legal position emerging from the constitutional scheme, leaving the High Courts to follow necessarily, the law thus laid down. *** 43. Thus, it is clear that adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution, a court would certainly be disabled from passing an order upholding a violation of Article W.P.(C) No.4078 of 2013 Page 25 of 77 it If 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution. Therefore, consistent with the scheme for public employment, this Court while laying down the law, has necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any is a contractual right on the appointee. appointment, the appointment comes to an end at the end of the contract, if it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued. Similarly, a temporary employee could not claim to be made permanent on the expiry of his term of appointment. It has also to be 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, 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. 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 employees who by the very nature of their appointment, do not acquire any right. The High Courts acting under Article 226 of the Constitution, should not ordinarily issue directions or permanent regularisation, for absorption, continuance unless the recruitment itself was made regularly and in terms of the constitutional scheme. Merely because an employee had continued under cover of an order of the court, which we have described as ’litigious employment’ in the earlier part Page 26 of 77 W.P.(C) No.4078 of 2013 of the judgment, he would not be entitled to any right to be absorbed or made permanent in the service. In fact, in such cases, the High Court may not be justified in issuing interim directions, since, after all, if ultimately the employee approaching it is found entitled to relief, it may be possible for it to mould the relief in such a manner that ultimately no prejudice will be caused to him, whereas an interim direction to continue his employment would hold up the regular procedure for selection or impose on the State the burden of paying an employee who is really not required. The courts must be careful in ensuring that they do not interfere unduly with the economic arrangement of its affairs by the State or instrumentalities or the its instruments the to facilitate constitutional and statutory mandates. themselves lend the bypassing of 44. The concept of <equal pay for equal work= is different from the concept of conferring permanency on those who have been appointed on ad hoc basis, temporary basis, or based on no process of selection as envisaged by the rules. This Court has in various decisions applied the principle of equal pay for equal work and has laid down the parameters for the application of that principle. The decisions are rested on in our Constitution in the light of the directive principles in that behalf. But the acceptance of that principle cannot lead to a position where the court could direct that appointments made without following the due procedure established by law, be deemed permanent or issue directions to treat them as permanent. Doing so, would be negation of the principle of equality of opportunity. The power to make an order as is necessary for doing complete the concept of equality enshrined W.P.(C) No.4078 of 2013 Page 27 of 77 justice in any cause or matter pending before this Court, would not normally be used for giving the go- by to the procedure established by law in the matter of public employment. Take the situation arising in the cases before us from the State of Karnataka. Therein, after Dharwad decision, (1990) 2 SCC 396 = (1990) 1 SCR 544 the Government had issued repeated directions and mandatory orders that no temporary or ad hoc employment or engagement be given. Some of the authorities and departments had ignored those directions or defied those directions and had continued to give employment, specifically interdicted by the orders issued by the executive. Some of the appointing officers have even been punished for their defiance. It would not be just or proper to pass an order in exercise of jurisdiction under Article 226 or 32 of the Constitution or in exercise of power under Article 142 of the Constitution permitting those persons engaged, to be absorbed or to be made permanent, based on their appointments or engagements. Complete justice would be justice according to law and though it would be open to this Court to mould the relief, this Court would not grant a relief which would amount to perpetuating an illegality. 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 some cases for a considerable length of time. It is not as if the person who accepts an engagement either temporary or casual in nature, is not aware of the the nature of his employment. He accepts employment with open eyes. It may be true that he is not in a position to bargain4 not at arm9s length4 W.P.(C) No.4078 of 2013 Page 28 of 77 to jettison 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, the it would not be appropriate constitutional 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 which is not permissible. If the court were to void a contractual 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 employee. A total embargo on such casual or temporary employment is not possible, given the exigencies of administration and if imposed, would only mean that some people who at least get employment temporarily, contractually or casually, would not be getting even that employment when securing of such employment brings at least some succour to them. After all, innumerable citizens of our vast country are in search of employment and one is not temporary to accept a casual or compelled employment if one is not inclined to go in for such an employment. It is in that context that one has 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 person concerned knows the nature of his employment. It is not an appointment to a post in the real sense of the term. The claim acquired by him in the post in which he is temporarily employed or the interest in that post cannot be considered to be of such a magnitude as to enable the giving up of the procedure established, for making regular appointments to Page 29 of 77 the employment, W.P.(C) No.4078 of 2013 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 when he first took it up, is not one that would enable the jettisoning of the procedure established by law for public employment and would have to fail when tested on the touchstone of opportunity constitutionality and enshrined in Article 14 of the Constitution. equality of *** 47. When a person enters a temporary employment or gets engagement as a contractual or casual worker and the engagement is not based on a proper 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 expectation 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 cases concerned, in consultation with the Public Service Commission. Therefore, theory of cannot be successfully legitimate expectation advanced by temporary, contractual or casual 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 make such a promise. It is also obvious that the theory cannot be invoked to seek a positive relief of being made permanent in the post. the 48. It was then contended that the rights of the employees thus appointed, under Articles 14 and 16 Page 30 of 77 W.P.(C) No.4078 of 2013 that treated they cannot claim of the Constitution, are violated. It is stated that the State has the employees unfairly by employing them on less than minimum wages and extracting work from them for a pretty long period in comparison with those directly recruited who are getting more wages or salaries for doing similar work. The employees before us were engaged on daily wages in the department concerned on a wage that was made known to them. There is no case that the wage agreed upon was not being paid. Those who are working on daily wages formed a class by they are themselves, discriminated as against those who have been regularly recruited on the basis of the relevant rules. No right can be founded on an employment on daily wages to claim that such employee should be treated on a par with a regularly recruited candidate, and made permanent in employment, even assuming that the principle could be invoked for claiming equal wages for equal work. There is no fundamental right in those who have been employed on daily wages or temporarily or on contractual basis, to claim that they have a right to be absorbed in service. As has been held by this Court, they cannot be said to be holders of a post, since, a regular appointment could be made only by making appointments consistent with the requirements of Articles 14 and 16 of the Constitution. The right to be treated equally with the other employees employed on daily wages, cannot be extended to a claim for equal treatment with those who were regularly employed. That would be treating unequals as equals. It cannot also be relied on to claim a right to be absorbed in service even though they have never been selected in terms of the relevant recruitment W.P.(C) No.4078 of 2013 Page 31 of 77 rules. The arguments based on Articles 14 and 16 of the Constitution are therefore overruled. *** 52. Normally, what is sought for by such temporary employees when they approach the court, is the issue of a writ of mandamus directing the employer, the State or its instrumentalities, to absorb them in permanent service or to allow them to continue. In this context, the question arises whether a mandamus could be issued in favour of such persons. At this juncture, it will be proper to refer to the decision of the Constitution Bench of this Court in Rai Shivendra Bahadur (Dr.) Vrs. Governing Body of the Nalanda College, AIR 1962 SC 1210. That case arose out of a refusal to promote the writ petitioner therein as the Principal of a college. This Court held that in order that a mandamus may issue to compel the authorities to do something, it must be shown that the statute imposes a legal duty on the authority and the aggrieved party had a legal right under the statute or rule to enforce it. This classical position continues and a mandamus could not be issued in favour of the employees directing the Government to make them permanent since the employees cannot show they have an enforceable legal right to be permanently absorbed or that the State has a legal duty to make them permanent. that