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2011 DIGILAW 290 (JHR)

Dina Nath Mondal v. State of Jharkhand

2011-03-31

J.C.S.RAWAT

body2011
Order This Writ Petition has been filed for seeking following relief: "For issuance of a writ in the nature of mandamus and/or any appropriate Writ and/or Writs directing tile Respondent authorities to make appointment of the petitioners against vacant post of 4th Grade employees in the district of Sahibganj on the basis of Advertisement No OC-06-1 0.1.2002 and Advertisement No OC-02-4-2005 issued by the Labour, Employment and Training Department, District Employment Offices, Sahibganj, Government of Jharkhand in accordance with Law, for which all the seven petitioners made application in response to said advertisements." 2. In substance, it is admitted case of the parties that the petitioners had worked as casual labourers. According to the respondents they have not discharged their work regularly and their services were taken whenever they were required to work. But according to' the petitioners, they have worked regularly under the respondents. A panel of selected candidates was prepared and the names of the petitioners found place in that panel which was later on cancelled. The parties moved to the Patna High Court for inclusion of the names in panel of 1993-94 for the appointment of the 4th Grade post and the petition was dismissed with a direction to examine the petitioners' claim. Thereafter, a fresh notification in the year 1998 was issued inviting for appointment on the 4th Grade post and •the petitioners applied for the same. Thereafter, in the year 2002 again a fresh notification was issued for appointment on the vacant post of Class-IV employees for which again the petitioners applied. The respondents instead of preparing the select list, they again advertised a fresh advertisement for the same post in the year 2005. It is further alleged that a number of posts are vacant in the District Pakur for Class-IV employees. 3. The respondents have disputed that the examinations were conducted in the year 1987 and 1994 and the candidates were not found suitable, as such, they had not been appointed and it is also alleged that the process which was taken in the year 2005 that is under process. 4. I have heard the learned counsel for the parties and perused the record. 4. I have heard the learned counsel for the parties and perused the record. The perusal of the petition, the petitioners' claim is based on two grounds, firstly, they had worked as a casual labourers for more than 20 years and as such their services should be regularized and they should be appointed as Class-IV employees and secondly they have taken a plea that the posts of Class-IV employees are vacant in the district and they have applied for the same post and they should have appointed on the said Class'-IV post, whereas the question regularizing the services of the petitioners or to appoint them for Class-IV post on the basis that they had worked more than 20 years in the department is not sustainable because it is admitted case of the petitioners that they had continuously worked as casual labourers in the Department though it is/ has been disputed by the respondents. 5. It is settled position of law that daily wagers or casual labourers have no legal right under the statute or the Rule to get it enforced since the Apex Court in Secretary, State of Karnataka vs. Uma Devi has held in Para-52 provides as under: "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.) vs. Governing Body of the Nalanda College reported in 1962 Supp (2) SCR 144. 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 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 that they have an enforceable legal right to be permanently absorbed or that the State has a legal duty to make them permanent." 6. In Para-54, the Hon'ble Apex Court had held that those decisions which run counter to the principal settled in this decision, or in which directions running counter to what the Hon'ble Apex Court has held therein shall stand denuded of their status as precedent. In view of this settled position of law that the daily wager or the casual labourer has no enforceable right, so he (they 7) cannot maintain the claim •before the Court to regularize them in accordance with law. At the same time, the State has no legal duty to appoint and absorb them permanently. In view of the above, the first contention of the petitioners is not sustainable. 7. The second claim is concerned that vacancies are still vacant and the petitioners are applicants in the said examination and the vacancies had not been filled up by the respondents. On the said ground, the petitioners have no legal right to claim the appointment on the said post merely because the vacancies are notified. The State is not obliged to fill up those vacancies unless there is some provision to the contrary in the applicable Rules. However, the decision not to fill up those posts should be taken on bona fide and should not be arbitrary and the vacancies are proposed to be filled, the State is obliged to fill them in accordance with merit from the list of the selected candidates. The petitioner could not demonstrate that the post has not been filled due to malafide. Whether to fill up or not to fill up a post, is a policy decision, and unless it is infected with the vice of arbitrariness, there is no scope for interference in judicial review. The right of the petitioners has not accrued to, the vacancies which has been claimed. Whether to fill up or not to fill up a post, is a policy decision, and unless it is infected with the vice of arbitrariness, there is no scope for interference in judicial review. The right of the petitioners has not accrued to, the vacancies which has been claimed. The Hon'ble Apex Court in Food Corporation of India vs. Bhanu Lodh reported in (2005) 3 SCC 618 , in Para-14 has held as under: "14. Merely because vacancies are notified, the State is not obliged to fill up all the vacancies unless there is some provision to the contrary in the applicable rules. However, there is no doubt that the decision not to fill up the vacancies, has to be taken bona fide and must pass the test of reasonableness so as not to fail on the touchstone of Article 14 of the Constitution. Again, if the vacancies are proposed to be filled, then the State is obliged to fill them in accordance with merit from the list of the selected candidates. Whether to fill up or not to fill up a post, is a policy decision, and unless it is infected with the vice of arbitrariness, there is no scope for interference in judicial review." 8. The Hon'ble Apex Court has also considered this aspect in Shankarsan Dash vs. Union of India reported in (1991)3 SCC 47 in which the Constitution Bench has held that the notification to fill up certain vacancies amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. In view of the above, the petitioners had not acquired any right to the post merely by applying pursuant to the advertisement. As such, the petitioners have no right and the argument of the petitioners' counsel is not sustainable. 9. In view of the above discussion, this petition is liable to be dismissed. Accordingly, this petition is dismissed. No order as to cost. .