Research › Search › Judgment

Rajasthan High Court · body

2011 DIGILAW 976 (RAJ)

Udai Pal v. State of Rajasthan

2011-05-10

GOPAL KRISHAN VYAS

body2011
Hon'ble VYAS, J.—Both the above writ petitions involve common controversy of law, therefore, these writ petitions are decided by this common order. For the sake of convenience, facts of S.B. Civil Writ Petition No. 12074/2010, Udai Pal vs. State of Rajasthan & Others are taken into consideration. 2. In the writ petition, the petitioner has made the following prayer: "(i) by an appropriate writ, order or direction, the respondents may be directed to grant semi-permanent status to the petitioner on the post of Store Munshi on completion of two years satisfactory service i.e. 1.5.1989 with all consequential benefits including arrears of salary and accordingly order granting petitioner semi permanent status be quashed and set-aside or modified by substituting Helper by Store Munshi with all consequential benefit flowing there from in the alternative, from the date the same has been given to the persons juniors to the petitioner with all consequential benefits; (ii) By an appropriate writ, order or direction, the respondents may be directed to grant permanent status to the petitioner on the post of Store Munshi on completion of ten years satisfactory service with all consequential benefits including arrears of salary; (iii) By an appropriate writ, order or direction, the decision of the State Government denying the arrears of salary on grant of semi permanent status as Store Munshi be ordered to be placed on record and be declared illegal and be quashed; (iv) Any other appropriate order or direction, which this Hon'ble Court considers just and proper in the facts and circumstances of this case, may kindly be passed in favour of the petitioner." 3. Main contention of the petitioner is that although he was appointed on the post of Beldar and was granted semi-permanent status on the said post vide Annex. 1 dated 12.10.1995 but he is entitled to be absorbed on the post of Store Munshi. Learned counsel for the petitioner further prayed that screening committee was constituted for the purpose of granting semi-permanent status on the post of Store Munshi, in which, name of the petitioner is also appearing. Case of the petitioner was considered by the screening committee constituted by the Department vide Annex. 4 dated 23.6.2007 and, in the proceedings, petitioner's case was also appearing at S.No. 202. Therefore, the petitioner is entitled for absorption on the post of Store Munshi, so also, for granting semi-permanent status on the post of Store Munshi. Case of the petitioner was considered by the screening committee constituted by the Department vide Annex. 4 dated 23.6.2007 and, in the proceedings, petitioner's case was also appearing at S.No. 202. Therefore, the petitioner is entitled for absorption on the post of Store Munshi, so also, for granting semi-permanent status on the post of Store Munshi. 4. Learned counsel for the petitioner invited my attention towards the following judgments: (1) Judgement dated 19.4.1988 passed in D.B. Civil Writ Petition No. 1319/1987, Kamal Kumar vs. State of Rajasthan & Others. (2) Judgment dated 9.8.2004 passed in S.B. Civil Writ Petition No. 798/1993, Kewal Krishan vs. State of Rajasthan & Others. (3) Judgment dated 21.9.2005 passed in S.B. Civil Writ Petition No. 2833/2005, Rajendra Kumar & Others vs. State of Rajasthan & Others. (4) Judgment dated 17.11.2006 passed in S.B. Civil Writ Petition No. 1126/2005, Rameshwar Lal vs. State of Rajasthan & Others. (5) AIR 1980 Delhi 1. (6) AIR 2002 SC 2940 . (7) AIR 1990 SC 261 . 5. The main contention of the petitioner is that once his case has been considered for absorption on the post of Store Munshi by the Committee then the respondents cannot withhold his claim for absorption on the post of Store Munshi. In my opinion, the argument of the petitioner is totally contrary to the rules. No person can claim absorption on the higher post than the post upon which he was appointed. Only on the basis of consideration the petitioner cannot claim as a matter of right to be absorbed on the post of Store Munshi. 6. Further, it is worthwhile to observe that admittedly the order for granting semi-permanent status on the post of Beldar was passed on 12.10.1995 and, this writ petition has been filed in the year 2010 for seeking semi-permanent status on the post of Store Munshi with effect from the date of initial appointment which is not permissible because order Annex. 1 remained in force for 15 years whereby the petitioner was given semi-permanent status on the post of Beldar and petitioner's case is also upon the fact that earlier he was appointed Beldar but he has been performing duties of Store Munshi, therefore, he is entitled to be absorbed on the post of Store Munshi. 7. 1 remained in force for 15 years whereby the petitioner was given semi-permanent status on the post of Beldar and petitioner's case is also upon the fact that earlier he was appointed Beldar but he has been performing duties of Store Munshi, therefore, he is entitled to be absorbed on the post of Store Munshi. 7. In none of the judgments cited by learned counsel for the petitioner it is held by the co-ordinate Bench of this Court or Division Bench that even if incumbent was granted semi-permanent status on lower post he is entitled to be absorbed on higher post after 15 years, therefore, the judgments cited by learned counsel for the petitioner are not applicable in this case because as per prayer of the petitioner the petitioner is claiming right of absorption on the post of Store Munshi solely on the ground that he is performing duties on the post of Store Munshi. In my opinion, when the petitioner was appointed on the post of Beldar and, admittedly, granted semi permanent status on the post of Beldar, then, after 15 years petitioner cannot be permitted to claim grant of semi-permanent status on higher post. The claim of the petitioner is contrary to the verdict given by the Hon'ble Supreme Court in the case of Secretary, State of Karnataka vs. Umadevi & Others, reported in (2006) 4 SCC 1 . 8. In the case of Umadevi (supra), Hon'ble Supreme Court deprecated the practice of regularization of those employees who were not appointed while following procedure laid down in the rules. In para 43, 12 and 54 of the said judgment, it is held as under: "43. Thus, it is clear that adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution, a Court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution. Therefore, consistent with the scheme for public employment, this Court while laying down the law, has necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee. Therefore, consistent with the scheme for public employment, this Court while laying down the law, has necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee. If it is a contractual appointment, the appointment comes to an end at the end of the contract, if it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued. Similarly, a temporary employee could not claim to be made permanent on the expiry of his term of appointment. It has also to be clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules. It is not open to the court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad hoc employees who by the very nature of their appointment, do not acquire any right. High Courts acting under Article 226 of the Constitution of India, should not ordinarily issue directions for absorption, regularization, or permanent continuance unless the recruitment itself was made regularly and in terms of the constitutional scheme. Merely because, an employee had continued under cover of an order of Court, which we have described as `litigious employment' in the earlier part of the judgment, he would not be entitled to any right to be absorbed or made permanent in the service. In fact, in such cases, the High Court may not be justified in issuing interim directions, since, after all, if ultimately the employee approaching it is found entitled to relief, it may be possible for it to mould the relief in such a manner that ultimately no prejudice will be caused to him, whereas an interim direction to continue his employment would hold up the regular procedure for selection or impose on the State the burden of paying an employee who is really not required. The courts must be careful in ensuring that they do not interfere unduly with the economic arrangement of its affairs by the State or its instrumentalities or lend themselves the instruments to facilitate the bypassing of the constitutional and statutory mandates. 12. In spite of this scheme, there may be occasions when the sovereign State or its instrumentalities will have to employ persons, in posts which are temporary, on daily wages, as additional hands or taking them in without following the required procedure, to discharge the duties in respect of the posts that are sanctioned and that are required to be filled in terms of the relevant procedure established by the Constitution or for work in temporary posts or projects that are not needed permanently. This right of the Union or of the State Government cannot but be recognized and there is nothing in the Constitution which prohibits such engaging of persons temporarily or on daily wages, to meet the needs of the situation. But the fact that such engagements are resorted to, cannot be used to defeat the very scheme of public employment. Nor can a court say that the Union or the State Governments do not have the right to engage persons in various capacities for a duration or until the work in a particular project is completed. Once this right of the Government is recognized and the mandate of the constitutional requirement for public employment is respected, there cannot be much difficulty in coming to the conclusion that it is ordinarily not proper for courts whether acting under Article 226 of the Constitution or under Article 32 of the Constitution, to direct absorption in permanent employment of those who have been engaged without following a due process of selection as envisaged by the constitutional scheme. 54. It is also clarified that those decisions which run counter to the principle settled in this decision, or in which directions running counter to what we have held herein, will stand denuded of their status as precedents." 9. 54. It is also clarified that those decisions which run counter to the principle settled in this decision, or in which directions running counter to what we have held herein, will stand denuded of their status as precedents." 9. While following the above adjudication made by the Constitutional Bench of the Hon'ble Supreme Court, I am of the opinion that even if the respondent Public Health Engineering Department proceeded to consider the case of those employees for regularizing their service on the post of Store Munshi who were appointed on lower post of Beldar and Helper but this practice of the respondent department is totally in contravention of the judgment of the Supreme Court in Umadevi's case (supra). 10. In this view of the matter, the claim of the petitioner for granting semi-permanent status and permanent status on higher post other than the lower post upon which he was appointed after 15 years cannot be termed legal in view of the aforesaid judgment. In my opinion, the State action should be fair and in accordance with law. Although learned counsel for the petitioner made submission to follow the judgments cited by him to substantiate his claim on the ground that those judgments referred to by him are binding upon this Court; but, in my opinion, the law laid down by the Supreme Court is having binding force on subordinate Courts under Article 141 of the Constitution of India. 11. In the case of Umadevi (supra), Hon'ble Supreme Court has laid down parameters for regularization of the services of employees and held that no back-door entry can be permitted on any of the posts and further held that if appointment is made contrary to rules, then, employee cannot claim regularization on the ground that he is continuing on the post for last many years. Hon'ble Supreme Court categorically held that no person can claim regularization contrary to the rules and, in this case, the petitioner was admittedly appointed on the post of Beldar and after due consideration he was granted semi-permanent status on the post of Beldar in the year 1995. The claim of the petitioner is based upon the ground that although he was appointed on the post of Beldar but he is performing duties of Store Munshi, therefore, he is entitled for semi-permanent status on the post of Store Munshi. The claim of the petitioner is based upon the ground that although he was appointed on the post of Beldar but he is performing duties of Store Munshi, therefore, he is entitled for semi-permanent status on the post of Store Munshi. Such type of claim is totally contrary to the proposition laid down by apex Court in Umadevi's case and if any person is regularized by the respondent Department contrary to parameters laid down by the Supreme Court while giving complete good-bye to the judgment of the Supreme Court rendered in Umadevi's case (supra), then, obviously the respondents are flouting parameters laid down by the Supreme Court and petitioner cannot be permitted to claim semi-permanent status on the post of Store Munshi solely on the ground that he is performing duties of Store Munshi which is higher post than the post upon which he was appointed. In this view of the matter, there is no force in these writ petitions. 12. Hence, both these writ petitions are hereby dismissed.