CHANDRA PRAKASH GUPTA v. ADDL. DISTRICT MAGISTRATE
2001-05-18
SUNIL AMBWANI
body2001
DigiLaw.ai
SUNIL AMBWANI, J. ( 1 ) THE petitioner was appointed as a typist on daily wages in the integrated rural development programme w. e. f. 1. 12. 1986 by A. D. M. (Project) vide its order dated 5. 12. 1986. He was continued with breaks in between upto 16. 10. 1989. During the period he worked, he was paid daily wages. On 17. 10. 1989, it is alleged that his services were terminated on oral orders of a. D. M. (Project ). In the present petition, he has challenged termination of his services and is seeking a writ of mandamus directing the respondents to treat the petitioner in service since 17. 10. 1989 as a regular typist and to pay him salary. ( 2 ) THIS Court vide its order dated 23. 11. 1990, after giving opportunity to the respondents to file counter-affidavit, passed orders to the effect that the petitioner shall be allowed to join and continue on the post of typist, on which he was working within a period of one week, and that he shall be paid his salary from month to month. A counter-affidavit was filed on behalf of opposite party, in which it has been stated that petitioner was appointed on daily wages for fixed tenure of limited period. The work for which he was appointed in the integrated rural development programme has ceased as such he could not be appointed further. Replying to the question of discrimination, it has been stated in para 9 that Sheo Chandra is no more in service and Ram chandra Dohre is still in service on the strength of his tenure fixed in his appointment letter, but his services have not been regularised as there is no permanent post of typist under the programme. It appears that petitioner was not paid his salary and as such he filed an application on which an order was passed on 23. 5. 1996 directing the respondents that if petitioner has been allowed to join, he shall be paid his salary or the respondents shall show cause. The matter came up again on 3. 10. 1996 and this Court directed that since no counter-affidavit has been filed on the application for payment of salary, the respondents are directed to pay salary to the petitioner on the post of typist month by month.
The matter came up again on 3. 10. 1996 and this Court directed that since no counter-affidavit has been filed on the application for payment of salary, the respondents are directed to pay salary to the petitioner on the post of typist month by month. It appears thereafter a contempt petition was filed and in compliance with the orders passed in contempt petition, the Chief Development Officer vide its order dated 23. 12. 1995 gave regular appointment to the petitioner w. e. f. 24. 8. 1996. In supplementary counter-affidavit of Ravi Kumar, Project Director, District Rural Development agency, Hamirpur, it has been stated that the order dated 23. 12. 1995 passed by Chief development Officer, Hamirpur, was cancelled by the District Magistrate and it was made clear that petitioner Chandra Prakash Gupta shall continue on work on daily wages. Petitioner filed a listing application on 17. 8. 2000 with which he has annexed an order of District Magistrate, hamirpur, dated 29. 7. 1997 by which in compliance with the order dated 7. 5. 1997 in Contempt petition No. 2093 of 1996, the District Magistrate has given appointment to the petitioner w. e. f. 24. 8. 1996 in the pay-scale of Rs. 950-1,500. This order has been passed on the threat and in compliance of the contempt and cannot be treated to be passed by appointing authority, on his own, after following any procedure of appointment. ( 3 ) HEARD Sri A. A. Khan, learned counsel appearing on behalf of the petitioner and the learned standing counsel for the respondents. It has been stated by counsel for the petitioner, that although petitioner was appointed on daily wages but his services were continued from time to time with artificial breaks and that he has worked more than 240 days in a calendar year. He has further stated that one Ram Chandra Dohre was appointed for a period of one month, who was junior to the petitioner, but was given ad hoc appointment up to the period regular selection is made. Counsel for the petitioner has also relied upon order dated 29. 7. 1997 passed by District magistrate by which the petitioner was given appointment on the post of typist in regular pay-scale and has claimed that by the said order, he has been regularly appointed w. e. f. 28. 4. 1996 whereas he should have been appointed w. e. f. 17. 10.
7. 1997 passed by District magistrate by which the petitioner was given appointment on the post of typist in regular pay-scale and has claimed that by the said order, he has been regularly appointed w. e. f. 28. 4. 1996 whereas he should have been appointed w. e. f. 17. 10. 1989. Petitioner has also relied upon the judgment in State of Haryana v. Piara Singh, AIR 1992 SC 2130 , and has submitted that the employees should not be kept temporary or ad hoc for a long time and that such long appointments presume that there is need for regular service. Lastly it has been submitted that there are two posts of typist lying vacant since long and that petitioner has right to continue on the said post. ( 4 ) LEARNED standing counsel in his reply stated that the appointment for short period on daily wages docs not give any right of appointment. The District Rural Development Agency is not an industry and that in any case if the petitioner claims rights under the Industrial Disputes Act, 1947, as a workman, he must seek his remedy before Labour Court. He further stated that there is no permanent post of typist and there is no vacancy in the rural development agency and that the scheme under which the petitioner was appointed, has ceased and as such it is not possible for respondents to allow him to continue on the said post. ( 5 ) I have considered the submissions of both the parties. It is admitted to the petitioner that he was appointed on daily wages and that he continued to work with breaks in between from 1. 12. 1986 to 16. 10. 1989, on daily wages, and thereafter his services were ceased. He was allowed to join by interim order passed by this Court. This interim order cannot be treated to be an appointment letter, which gives any right to the petitioner to continue in service. The scheme, according to the respondents, has come to an end. The regular appointment claimed by the petitioner vide order dated 23. 12. 1995 was cancelled by the District Magistrate on 24. 8. 1996, on the ground that the Chief Development Officer had no right to give regular appointment to a typist in District Rural Development Agency for which no process of appointment was followed. The order dated 29. 7.
The regular appointment claimed by the petitioner vide order dated 23. 12. 1995 was cancelled by the District Magistrate on 24. 8. 1996, on the ground that the Chief Development Officer had no right to give regular appointment to a typist in District Rural Development Agency for which no process of appointment was followed. The order dated 29. 7. 1997 was passed, under the threat of compliance in Contempt Petition No. 2039 of 1996, which was filed for compliance of the order dated 23. 11. 1990. This order also cannot be treated as an order of appointment after following any process of appointment. ( 6 ) THE question of regularisation of daily wages employees has been subject-matter of judicial scrutiny for a long time. In a developing country various schemes are implemented. These schemes arc supported by limited financial allocation. The employees appointed on daily wages in such schemes are fully aware of its temporary nature, and also the nature and term of their appointment. In Daily Rated Casual Labour Employed under P. and T. Department v. Union of india, 1988 (1) SCC 122 , the Supreme Court considered the rights of the daily rated casual labour and directed for submission of a scheme to extend permanent status of the workmen. State of Haryana and others v. Piara Singh and others, 1992 (4) SCC 118 , was a case of ad hoc/temporary Government employees and consider the validity of the orders of regularisation made by State of Haryana, in which Supreme Court held that eligible and qualified continue in service satisfactorily for a long periods raises presumption of need of regular posts. Later on, there has been a marked changed in law relating to regularisation of daily rated employees. In ghaziabad Development Authority and others v. Vikram Chaudhary, 1995 (5) SCC 210 , it was held that in the absence of availability of posts for regular appointment, regularisation cannot be directed and that the daily rated employees should be given minimum wages under the Statute, if any, or the prevailing wages in the locality. In State of Himachal Pradesh v. Nodha Ram, 1988 scc (LNS) 478, it has been held that where a project is completed, and closed due to nonavailability of funds, the employees have to go along with its closure. No vested right is created in temporary employments.
In State of Himachal Pradesh v. Nodha Ram, 1988 scc (LNS) 478, it has been held that where a project is completed, and closed due to nonavailability of funds, the employees have to go along with its closure. No vested right is created in temporary employments. Directions cannot be given to regularise their services in the absence of any existing vacancies, nor can directions be given to the State to create posts in a non-existing establishment. In this case. Supreme Court found that the directions issued by honble Court for regularisation were illegal warranting interference. ( 7 ) IN the present case, petitioner was not appointed by following any selection process. He was given appointment for a period of one month on daily wages, and it was continued upto 16. 10. 1989 with breaks. The period of his service in compliance with the directions of this Court cannot be treated to be regular service, which entitles him to be considered for regularisation. The project, according to the respondents, in para 5 of their supplementary affidavit has since ceased. There is no post available for regularising the services of the petitioner. So far as the discrimination with the junior employee Ram Chandra Dohre is concerned, it is to be noticed that Dohre was appointed on ad hoc basis and continued in service without any break. In any case, he has also not been regularised. The benefit of a fixed number of days and service cannot be a ground for regularisation. ( 8 ) IT is distressing to note that employment in the scheme have been made without following any procedure. This attempt not only gives rise to litigation but causes dissatisfaction in public. The authorities competent to appoint must follow the recruitment procedure provided under the relevant rules. If the scheme has to be continued for long period, the appointment must be made after advertisement by a process of selection and after following reservation policy. Any backdoor entry in public services must be curbed, and should not be encouraged. The appointments de-hors recruitment rules should not be permitted to continue for long periods. In the aforesaid facts and circumstances, the petitioner has no right to continue, and that his claim for regularisation is not established. The petitioner will be entitled for salary only for the period during which he had actually worked.
The appointments de-hors recruitment rules should not be permitted to continue for long periods. In the aforesaid facts and circumstances, the petitioner has no right to continue, and that his claim for regularisation is not established. The petitioner will be entitled for salary only for the period during which he had actually worked. In case, however, no regular selection is made under the recruitment rules, the appointing authority may consider relaxation of age in future appointment in any scheme for the period the petitioner had actually served. ( 9 ) THE writ petition has no force and is accordingly dismissed. .