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2006 DIGILAW 2495 (ALL)

CHANDRAMA PANDEY v. STATE OF UTTAR PRADESH

2006-10-06

ASHOK BHUSHAN

body2006
JUDGMENT Hon’ble Ashok Bhushan, J.—Heard Sri B. R. Singh, learned Counsel for the petitioner and Sri G.C. Upadhyaya learned Standing Counsel for the respondents. Counter and rejoinder affidavits have been exchanged and with the consent of the parties the writ petition is being finally decided. 2. By this writ petition the petitioner has prayed for a writ of mandamus commanding the respondents to pay his regular pay scale as Safaiwala (Farras) and to absorb him into permanent service. By an amendment another relief praying for writ of certiorari quashing the order dated 19.10.2000 passed by the Assistant Inspector General (Registrar Office) Ballia has been added. 3. Brief facts necessary for deciding the writ petition are: The petitioner was engaged on payment of Rs. 75/- per month as Farras in the Sub Registrar’s Office, Barria district Ballia. A Government order dated 12.8.1998 was issued by the State Government. The Government order provided that in none of the offices of Sub Registrar waterman or for other purposes no outsider be engaged and if any such engagements have been made they may be immediately terminated. The petitioner’s case is that after the said Government order dated 12.8.1998 petitioner was not allowed to continue. Petitioner filed a writ petition in this Court being writ petition No. 21709 of 1999 praying for salary and regularisation. This Court disposed of the writ petition on 25.5.1999 directing the petitioner to make representation to the authorities concerned who was directed to decide the same within two months. Petitioner submitted an application along with order of this High Court. The petitioner again filed second writ petition No. 37566 of 1999 stating that his representation has not yet been disposed of. This Court again vide its order dated 2.9.1999 directed the representation of the petitioner to be disposed of by the Assistant Inspector General (Registrar Office) Ballia. The Assistant Inspector General (Registrar Office) Ballia vide his order dated 19.10.2000 refused to regularise the petitioner in service. The Assistant Inspector General recorded finding that the engagement as Farras was part time engagement and no such substantive post has been created by the department. The work of Farras is not for whole day hence they are given small amount. It was held that the petitioner is not entitled for regularisation. The order further stated that the emolument of the petitioner upto July, 1998 has been paid on 7.11.1998. The work of Farras is not for whole day hence they are given small amount. It was held that the petitioner is not entitled for regularisation. The order further stated that the emolument of the petitioner upto July, 1998 has been paid on 7.11.1998. The application of the petitioner thus was rejected. The said order has been prayed to be quashed. 4. Learned Counsel for the petitioner submits that the petitioner having working as Farras for such a long period he is entitled to be regularised in service. He further stated that even if there is no post of Farras/waterman the petitioner can be permitted to be absorbed on any other Class IV post. Learned Counsel for the petitioner has also relied on the interim order dated 17.4.1999 passed by the Lucknow Bench of this Court in writ petition No. 1634 (S/S) of 1999 which interim order directed the respondent to permit those petitioners to work as watermen. 5. A counter affidavit has been filed by the respondents. It has been stated in the counter affidavit that by the Government order dated 12.8.1998 the part-time watermen/Farras have been directed to be discontinued hence there is no question of continuance of the petitioner. It is further stated that payment of part time staff who does only menial work, is made from the contingency Head on the satisfactory work report by the Sub Registrars. No work was taken from the petitioner whole day. The claim of the petitioner has been considered and decided by order dated 19.10.2000. There is no substantive post of watermen or Farras in the Department. A rejoinder affidavit has been filed by the petitioner in which it has been stated that the petitioner has been allowed to continue as waterman in pursuance of the interim order passed by this Court in this writ petition. Reliance has been placed on a judgement of the learned Single Judge dated 6.7.1994 passed in writ petition No. 20756 of 1994 (S/S), Ramdhani v. State of U.P. and others and it has further been stated that Ramdhani has also been regularised in service. Another order passed by this Court on 22.2.2005 in writ petition No. 51483 of 2000, Deep Narain v. State of U.P. and others, has also been relied which writ petition was disposed of directing the respondent to consider the claim of the petitioner for regularisation on Class IV post. 6. Another order passed by this Court on 22.2.2005 in writ petition No. 51483 of 2000, Deep Narain v. State of U.P. and others, has also been relied which writ petition was disposed of directing the respondent to consider the claim of the petitioner for regularisation on Class IV post. 6. Learned standing Counsel, refuting the submissions of Counsel for the petitioner, contended that petitioner having not been appointed against any post, is not entitled to claim regularisation. He submits that petitioner was appointed on part-time basis on fixed amount which was paid from contingency fund. He does not have any right to claim even continuance in the above capacity. He further contended that no error has been committed by authorities in discontinuing the petitioner’s casual engagement in view of the Government order dated 12th August, 1998. Learned Standing Counsel has also relied on a judgement of the apex Court in Secretary, State of Karnataka and others v. Uma Devi and others, 2006 (4) SCC 1 : 2006 (42) AIC 935 (S.C.) for the proposition that the persons who are engaged in ad hoc/casual capacity are not entitled to be regularised. 7. I have considered the submissions of Counsel for the parties and perused the record. 8. From the materials brought on the record it is clear that the engagement of the petitioner in the office of the Sub Registrar to work as Farras was only part- time engagement on a fixed amount which was not even on ad hoc engagement against a sanctioned post. The petitioner continued to function in that capacity till 12.8.1998 and was paid from contingency fund. The petitioner having not been engaged against any post in accordance with the rules for filling up Class IV post in the department, the claim of regularisation has rightly been refused. A Constitution Bench of apex Court has recently examined the claim of regularisation in public employment. The apex Court held that ad hoc/casual engagement which is not in accordance with the rules, will not entitle the person to be regularised. The apex Court has also laid down that no direction by the Court can be given for regularisation. Following was laid down in paragraph 36 : “36. The apex Court held that ad hoc/casual engagement which is not in accordance with the rules, will not entitle the person to be regularised. The apex Court has also laid down that no direction by the Court can be given for regularisation. Following was laid down in paragraph 36 : “36. While directing that appointments, temporary or casual, be regularised or made permanent, Courts are swayed by the fact that the concerned person has worked for sometime 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 nature of his employment. He accepts the employment with eyes open. It may be true that he is not in a position to bargain—not at arms length—since he might have been searching for some employment so as to take out his livelihood and accepts whatever he gets. But on that ground alone, it would not be appropriate to jettison the 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 compelled to accept a casual or temporary employment if one is not inclined to go in for such an employment. It is 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 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 sometime 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 fall when tested on the touchstone of constitutionality and equality of opportunity enshrined in Article 14 of the Constitution of India.” 9. In view of the law laid down by the apex Court in above constitution Bench judgement no error has been committed by the respondent in rejecting the claim of regularisation of the petitioner. The judgement of the learned Single Judge relied by the Counsel for the petitioner of this Court as referred above does not help the petitioner in view of the Constitution Bench judgement of the apex Court in Secretary, State of Karnataka and others v. Uma Devi and others (supra). The apex Court in the above Constitution Bench judgement held that the High Court cannot issue any direction for such regularisation contrary to the statutory rules for recruitment. The petitioner has not been able to show that he is entitled to be regularised under any statutory rules. 10. Now coming to the further continuance of the petitioner as Farras, although the learned Counsel for the petitioner has submitted that now posts have been created by the State Government of waterman/Farras but there are no material on record to record any such finding. 10. Now coming to the further continuance of the petitioner as Farras, although the learned Counsel for the petitioner has submitted that now posts have been created by the State Government of waterman/Farras but there are no material on record to record any such finding. In view of the fact that the petitioner has been continuing on consolidated wages for a long period, only this much can be provided that as and when any recruitment is held against any vacant post of waterman or Farras in the office of Sub Registrar, Barria, the petitioner be also permitted to participate and petitioner shall be allowed relaxation in age and also given some weightage for his working experience. It is further observed that in the event the waterman and Farras are permitted to be engaged from contingency fund according to relevant statutory scheme or the Government orders as applicable today, the petitioner shall not be denied consideration by the competent authorities. 11. In view of the foregoing discussions the prayer of the petitioner for quashing the order dated 19.10.2000 is refused. The petitioner is not entitled for any regularisation and continuance in service. However, the consideration of the petitioner’s claim be made as per observations made above. 12. With the above observations the writ petition is disposed of. Order Accordingly. ———