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2012 DIGILAW 1937 (ALL)

VINAY SHANKER TRIVEDI v. MUKHYA NAGAR ADHIKARI

2012-08-28

PANKAJ NAQVI

body2012
JUDGMENT Hon’ble Pankaj Naqvi, J.—Heard Sri Rastrapati Khare, learned counsel for the petitioner and Sri Vivek Verma, learned standing counsel for the Nagar Nigam, Kanpur Nagar. 2. By means of the present writ petition, the petitioner had sought direction in the nature of mandamus commanding the respondents to pay-salary to the petitioners in a regular pay-scale Rs. 3050/ - 3250/-, as is being paid to the other drivers and also a writ of mandamus commanding the respondents to regularize the petitioner Nos. 1 to 3 on the post of driver and petitioner No. 4 on the post of hydraulic mechanic. 3. The petitioner Nos. 1 to 3 were appointed as drivers and petitioner No. 4 as hydraulic mechanic in Nagar Nigam, Kanpur Nagar on daily wages on 11.4.1999. They are still working as daily wagers. 4. Petitioners staked a claim for their regularization of services on the ground that as they had rendered services for a considerable period since 1994, therefore, in view of the Government orders, their services were liable to be regularized. It is further contended that there are available permanent vacancies of driver and hydraulic mechanic but the respondents are not offering the said posts to the petitioners and on the contrary have made illegal appointments of 12 drivers. 5. The counter-affidavit is to the effect that there are no clear vacancies of drivers and hydraulic mechanics and that the State Government has already freezed the vacancies. It is further alleged that the appointments of 12 persons/drivers, as alleged in the writ petition, was made under a scheme called Institutional Community Development Project (Indo-Dutch) and that the engagement of the said 12 persons/drivers, is also co-terminus with the life of the scheme and that the said 12 drivers were not appointed against any permanent/substantive vacancies. These averments have not been denied in the rejoinder-affidavit. 6. It is urged by Sri Rastrapati Khare, learned counsel for the petitioner, that in view of the Government orders, issued by the State Government, the services of the petitioner, who have completed more than 3 years of service or have rendered 240 days of service in a calender year, were liable to be regularized. 7. 6. It is urged by Sri Rastrapati Khare, learned counsel for the petitioner, that in view of the Government orders, issued by the State Government, the services of the petitioner, who have completed more than 3 years of service or have rendered 240 days of service in a calender year, were liable to be regularized. 7. Per contra, Sri Vivek Verma, learned counsel for Nagar Nigam, states that a daily wager cannot stake a claim for regularization merely on the length of service as a daily wager and in this connection he has placed reliance on paragraphs 47, 48, 49, 52 and 53 of the judgment of Apex Court in Secretary, State of Karnataka v. Uma Devi (3) and others, 2006 (4) SCC 1 . 8. The issue is no longer res integra in view of the decision of Apex Court in Uma Devi (supra), that no absorption or regularization of a daily wager, is permissible de hors constitutional scheme of public employment. The following relevant paragraphs of the judgment of Apex Court in Uma Devi’s case (supra) quoted hereinbelow : 47. When a person enters a temporary employment or gets engagement as a contractual or casual worker and the engagement is not based on a proper selection as recognised by the relevant rules or procedure, he is aware of the consequences of the appointment being temporary, casual or contractual nature. Such a person cannot invoke the theory of legitimate expectation for being confirmed in the post when an appointment to the post could be made only be following a proper procedure for selection and in cases concerned, in consultation with the Public Service Commission. Therefore, the theory of legitimate expectation cannot be successfully advanced by temporary, contractual or casual employees. It cannot also be held that the State has held out any promise while engaging these persons either to continue them where they are or to make them permanent. The State cannot constitutionally make such a promise. It is also obvious that the theory cannot be invoked to seek a positive relief of being made permanent in the post. 48. It was then contended that the rights of the employees thus appointed, under Articles 14 and 16 of the Constitution, are violated. The State cannot constitutionally make such a promise. It is also obvious that the theory cannot be invoked to seek a positive relief of being made permanent in the post. 48. It was then contended that the rights of the employees thus appointed, under Articles 14 and 16 of the Constitution, are violated. It is stated that the State has treated the employees unfairly by employing them on less than minimum wages and extracting work from them for a pretty long period in comparison with those directly recruited who are getting more wages or salaries for doing similar work. The employees before us were engaged on daily wages in the concerned department on a wage that was made known to them. There is no case that the wage agreed upon was not being paid. Those who are working on daily wages formed a class by themselves, they cannot claim that they are discriminated as against those who have been regularly recruited on the basis of the relevant rules. No right can be founded on an employment on daily wages to claim that such employee should be treated on a par with a regularly recruited candidate, and made permanent in employment, even assuming that the principle could be invoked for claiming equal wages for equal work. There is no fundamental right in those who have been employed on daily wages or temporarily or on contractual basis, to claim that they have a right to be absorbed in service. As has been held by this Court, they cannot be said to be holders of a post, since, a regular appointment could be made only by making appointments consistent with the requirements of Articles 14 and 16 of the Constitution. The right to be treated equally with the other employees employed on daily wages, cannot be extended to a claim for equal treatment with those who were regularly employed. That would be treating unequals as equals. It cannot also be relied on to claim a right to be absorbed in service even though they have never been selected in terms of the relevant recruitment rules. The arguments based on Articles 14 and 16 of the Constitution are therefore overruled. 49. It is contended that the State action in not regularizing the employees was not fair within the framework of the rule of law. The arguments based on Articles 14 and 16 of the Constitution are therefore overruled. 49. It is contended that the State action in not regularizing the employees was not fair within the framework of the rule of law. The rule of law compels the State to make appointments as envisaged by the Constitution and in the manner we have indicated earlier. In most of these cases, no doubt, the employees had worked for some length of time but this has also been brought about by the pendency of proceedings in Tribunals and Courts initiated at the instance of the employees. Moreover, accepting an argument of this nature would mean that the State would be permitted to perpetuate an illegality in the matter of public employment and that would be a negation of the constitutional scheme adopted by us, the people of India. It is therefore not possible to accept the argument that there must be a direction to make permanent all the persons employed on daily wages. When the Court is approached for relief by way of a writ, the Court has necessarily to ask itself whether the person before it had any legal right to be enforced. Considered in the light of the very clear constitutional scheme, it cannot be said that the employees have been able to establish a legal right to be made permanent even though they have never been appointed in terms of the relevant rules or in adherence of Articles 14 and 16 of the Constitution. 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 Dr. Rai Shivendra Bahadur v. The Governing Body of the Nalanda College MANU/SC/0098/1961 : (1962) I LLJ 247 SC. That case arose out of a refusal to promote the writ petitioner therein as the Principal of a college. At this juncture, it will be proper to refer to the decision of the Constitution Bench of this Court in Dr. Rai Shivendra Bahadur v. The Governing Body of the Nalanda College MANU/SC/0098/1961 : (1962) I LLJ 247 SC. 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 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. 53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa (supra), R.N. Nanjundappa (supra), and B.N. Nagarajan (supra), and referred to in paragraph 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of Courts or of tribunals. The question of regularization of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularize as a one time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of Courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. The process must be set in motion within six months from this date. We also clarify that regularization, if any already made, but not subjudice, need not be re-opened based on this judgment, but there should be no further by-passing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme. 9. The petitioners are daily wagers, alleged to have been working since 1999. No statutory provision consistent with the constitutional scheme for regularization has either been filed or brought to the notice of the Court, which enables the petitioner to claim regularization. Once this position is conceded, there is no enforceable right of the petitioner to claim regularization and accordingly the relief for regularization cannot be granted to the petitioner. The petitioners also cannot claim a regular pay-scale as the same pre-supposes a regular appointment, consistent with the constitutional scheme. The petitioners are not regular appointees as they have not faced any due selection process, hence they are not entitled for a regular pay-scale. There is no force in the petition. 10. The petition is dismissed. Interim order, if any, stands vacated. No order as to costs. ——————