Court’s order whether the case is or not approved for reporting v. Chairman, Uttaranchal Public Service Tribunal

It was further contended that Section 86 of the Act only provides the territorial extent of the laws and Section 87 of the Act deals with the powers of the State to adapt the laws within two years from the date of the creation of the State. It was further contended that the State had not adapted service rules framed by the Tribunal within two years, as such, the rules are not applicable in the Tribunal. It was further contended that the power to constitute laws could only be made available to the Tribunal when there was any rule in existence. Learned counsel for the respondents refuted the contention and contended that perusal of Section 86, 87 and 88 of the Act clearly shows that the laws applicable in the erstwhile State of U.P. are applicable in the State of Uttaranchal even without adaptation. It is not disputed that the U.P. Public Services Tribunal Act had been adapted by the State of Uttaranchal.

It is also evident from the notification by which the State Government issued the notification u/s 3 of the said Act. It also gives the picture that the said Act has been made applicable to the State of Uttaranchal. It is also evident from the petition itself that the petitioner had specifically pleaded in the petition that the State Government sanctioned 48 posts for the Tribunal to make the Tribunal functional. Thus, this fact leads to take an inference that the said Act was adopted and made applicable to the State of Uttaranchal. The word used in Section 86, 87 and 88 of the Act is the word ‘law’. The Parliament has not used the Enactment or the Act. The work ‘law’ had a wide meaning. Law, as per the constitution includes any notification and order. The U.P. Reorganisation Act had been enacted under Article 3 of the Constitution, as such, the word ‘law’ had a wider connotation in this regard.

The word ‘law has been defined u/s 2 (f) of the U.P. Reorganization Act, 2000 as under :- “’law’ includes ordinance, regulation, order, bye-law, rule, scheme, notification or appointed day, the force of law in the whole or in any part of the existing State of Uttar Pradesh;” immediately before instrument having, enactment, Thus the word ‘law’ used in the aforesaid Section had a wide implication in this regard. It cannot be successfully argued by the learned counsel for the petitioner that certain parts of the Act are only applicable to the State of U.P. and certain parts are only applicable to the State of Uttaranchal. Learned counsel for the petitioner tried to point out that the appointments made in the erstwhile State of U.P. were at Lucknow hence the service rules framed under the Act would not be applicable in Uttaranchal. If it would have been the correct position, Section 3 of the said Act would not have been applicable to the State of Uttaranchal because it only provides that this reference would be made to the Tribunal which is situated at Lucknow.

The Act had already been adopted by the State of Uttaranchal, thus the notification and orders issued thereunder will be deemed to have been adopted by the State of Uttaranchal. There is no need to adopt the rules made thereunder afresh. Section 86, 87 and 88 of the Act clearly covers such cases where no adaptation has been made of the U.P. laws even after two years in the State of Uttaranchal. I do not find any merit in the arguments raised by the learned counsel for the petitioner.

It was further contended that the said termination order is liable to be quashed on this ground alone. The learned Standing Counsel refuted the contention and contended that the petitioner had got no right upon the post as the appointment has been made only on the ad hoc basis. It is well settled principle of law that if an ad hoc appointment is made, the continuance of the said person on the said post did not confer any right to the petitioner to remain on the same post. It is not, as if, the person who accepts an engagement either temporary or casual in nature, is not aware of the nature of his employment. He accepts the employment with open eyes. It may be true 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. If any illegality had been committed in the past, it is beyond comprehension as to how such illegality can be allowed to perpetuate.

No equality can be claimed in illegality is now well settled. Even in this behalf Article 14 of the Constitution would not be applicable. The past practice is not always the best practice. The Apex Court has held at para 75 in State of U.P. Vs. Neeraj Awasthi and others, (2006) 1 SCC p/667 as under :-

The fact that all appointments have been made without following the procedure, or services of some persons appointed have been regularised in the past, in our opinion, cannot be said to be a normal mode which must receive the seal of the court. Past practice is not always the best practice. If illegality has been committed in the past, it is beyond comprehension as to how such illegality can be allowed to perpetuate. The State and the board were bound to take steps in accordance with law. Even in this behalf Article 14 of the constitution will have no application. Article 14 has a positive concept. No equality can be claimed in illegality is now well settled.

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 succor to them. After all, innumerable citizens of our vast country are in search of employment and one is not compelled to accept a casual or temporary 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 employment, 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 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 (sic) 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 constitutionality and equality of opportunity enshrined in Article 14 of the Constitution.

Minister of Civil Service, National Buildings Construction Corpn. v. S. Raghunathan and Chanchal Goyal (Dr.) v. State of Rajasthan.] There is no case that any assurance was given by the government or the department concerned while making the appointment on daily wages that the status conferred on him will not be withdrawn until some rational reason comes into existence for withdrawing it. The very engagement was against the constitutional scheme. Though, the Commissioner of the Commercial Taxes Department sought to get the appointments made permanent, there is no case that at the time of appointment any promise was held out. No such promise could also have been held out in view of the circulars and directives issued by the government after Dharwad decision. Though, there is a case that the State had made regularizations in the past of similarly situated employees, the fact remains that such regularizations were done only pursuant to judicial directions, either of the Administrative Tribunal or of the High Court and in some cases by this Court.

Moreover, the invocation of the doctrine of legitimate expectation cannot enable the employees to claim that they must be made permanent or they must be regularized in the service though they had not been selected in terms of the rules for appointment. The fact that in certain cases the court had directed regularization of the employees involved in those cases cannot be made use of to found a claim legitimate expectation. The argument based on accepted would also run counter to the constitutional mandate. The argument in that behalf has therefore to be rejected.