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2002 DIGILAW 1494 (ALL)

SUSHIL KUMAR GUPTA v. STATE OF U. P.

2002-10-11

RAKESH TIWARI

body2002
RAKESH TIWARI, J. ( 1 ) HEARD the counsel for the parties and perused the record. ( 2 ) THE petitioner was appointed on the post of Work Supervisor in the P. W. D. Office at Banda w. e. f. 26. 10. 1989 as a daily wage employee for a period of three months. He was thereafter engaged from time to time for a specified period of three months in the exigency of work and his services came to an end in October, 1992. ( 3 ) THE petitioner has Diploma in Civil Engineering. He contends that as he had continuously worked for more than 240 days without any break in the service during the period 26. 10. 1989 to 25. 3. 1994, and claimed that he Is entitled for regularisation, he submits that respondents have not engaged him after 25. 3. 1994 which is illegal, arbitrary and without jurisdiction as the respondents have failed to act in accordance with law and the directions given by the State government. In the petition, he has prayed for issuance of a writ, order or direction in the nature of mandamus directing the respondents to appoint him on the post of Work Supervisor in the office of the P. W. D. , district Banda and further for payment of his back wages and salary regularly. ( 4 ) AT the time of admission of the petition, this Court passed the following order on 18. 9. 1995 ; "by means of present writ petition, petitioner has prayed for regularisation of service. Admittedly, today the petitioner is not working as such, the question of granting any interim order of status quo, regarding the services of the petitioner does not arise at this stage. Counter-affidavit is to be filed within three weeks from today. Rejoinder-affidavit, if any, may be filed within another period of one week. List this writ petition after the completion of affidavits before the appropriate court. As the learned standing counsel is not appearing today, petitioners advocate is directed to communicate the aforesaid order/direction to the standing counsel as well as the respondent Nos. 2, 3 and 4. " ( 5 ) FROM the aforesaid order, it is clear that the petitioner is not in service since the date of his termination. As the learned standing counsel is not appearing today, petitioners advocate is directed to communicate the aforesaid order/direction to the standing counsel as well as the respondent Nos. 2, 3 and 4. " ( 5 ) FROM the aforesaid order, it is clear that the petitioner is not in service since the date of his termination. Admittedly, the petitioner was a muster roll employee on daily wages and has filed this petition on the ground that other employees of same category have been permitted to continue in service under the interim orders of this Court and he is entitled to get full salary and other benefits of service as per letter, dated 10. 9. 1993, issued by the Superintending Engineer, p. W. D. , Banda, to the Executive Engineer, P. W. D. , Banda, appended as Annexure-8 to the writ petition. ( 6 ) THE petitioner has also relied upon the judgments of this Court in Writ Petition No. 2605 of 1991, Yogesh Srivastava v. State of U. P. and Anr. and connected with Writ Petition No. 1400 of 1991. Vtrendra Kumar Sonkar v. State of U. P. and Anr. , decided on 18. 6. 1996, Writ Petition no. 4461 (S/s) of 1991 ; Pankaj Kumar Srivastava v. State of U. P. and Ors. , decided on 28. 2. 1997 and Writ Petition No. 1670 of 1991 ; Sahjad and another v. State of U. P. and Ors. along with Writ Petition No. 4736 (S/s) of 1991, decided on 21. 1. 1999. ( 7 ) IN the aforesaid writ petitions, relief had been granted by this Court in the own peculiar facts and circumstances of the cases. ( 8 ) IT is well-settled that a temporary employee has no right to the post particularly when he is engaged for a specified period. The principles on which a writ of mandamus can be issued are now well-settled. The petitioner while applying for such a writ of mandamus must not only show that he has a legal right to compel for the performance of such a statutory duty cast upon the respondents but also has equity in his favour. A writ of mandamus may not be issued only on the basis of any illegality. For issuance of such a writ, illegality has to be coupled with equity In favour of the petitioner, who must establish his legal right also. A writ of mandamus may not be issued only on the basis of any illegality. For issuance of such a writ, illegality has to be coupled with equity In favour of the petitioner, who must establish his legal right also. By mere engagement for certain periods which was extended for some time more, the petitioner does not acquire any indefeasible right to be appointed on the post. Neither any such Indefeasible right has been shown by the petitioner nor he has been able to establish the performance of some statutory duty cast upon the respondents to continue his engagement, ( 9 ) THE words "appointment" and "engagement" have different connotation. The appointment on a post is against a sanctioned and created post whereas engagement is made only to meet the exigencies of work. Thus, the word "appointment" is related to a permanent post whereas the word "engagement" is related to temporary work. ( 10 ) MOREOVER, permitting such types of appointments would be burdening the State exchequer and legalising appointment by backdoor entry. Appointments have to be made after selection of meritorious and qualified candidates after notification of the vacancy under the Compulsory notifications of Vacancies Act. It is well-settled that if law provides a thing to be done in a certain manner, then it has to be done in that manner and not otherwise. This Court cannot permit appointment in service by back door entry. Moreover, much water has flown in the ganges since 1994 since no Interim order was granted in this case, the claim of the petitioner has become stale by efflux of time and he cannot be granted any relief as in other cases. ( 11 ) FOR above reasons, the petition is dismissed. No order as to costs. .