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Uttarakhand High Court · body

2013 DIGILAW 736 (UTT)

GIRISH CHANDRA v. STATE OF UTTARAKHAND

2013-11-21

ALOK SINGH

body2013
JUDGMENT Hon’ble Alok Singh, J (Oral). The petitioners, 18 in numbers, have invoked writ jurisdiction of this Court seeking relief of Mandamus commanding the respondents to consider the case of the petitioners for regularization on the post of Junior Clerk cum Data Entry Operator, now re-designated as Junior Assistant; in alternative, to issue a writ of Mandamus commanding the respondents to sanction supernumerary posts of Computer Operator for absorption of the petitioners in concerned offices of Public Works Department. 2. State of Uttarakhand was created by bifurcation of State of Uttar Pradesh on 9.11.2000. Chief Engineer, Public Works Department, Camp Dehradun, issued one order dated 22.3.2001, Annexure No. 1 to the writ petition, which reads as under : Now, computers are being made available in every office of Public Works Department in the State of Uttarakhand, in some of the circles and divisions, computers have already been reached and in some of the offices, orders for supply of computers have already been issued. Therefore, to work on computer, either available staff may be got trained or alternatively meanwhile on contract basis of Rs. 3000 – 4000 per month, Computer Operators may be engaged for 2-3 months. 3. The case of the petitioners is that pursuant to the letter issued by Chief Engineer dated 22.3.2001, as referred hereinbefore, petitioners were appointed on contract on the fixed remuneration of Rs. 3000 – 4000 per month to act as Computer Operators; function and duties of Computer Operator include function and duties of Junior Clerk cum Data Entry Operator as well; all the petitioners are working as Computer Operators prior to 1.11.2001, therefore, services of the petitioners should be regularized as per the Regularisation Rules framed by the State of Uttarakhand and notified on 21.11.2011 pursuant to the Constitution Bench Judgment of Hon’ble Apex Court in State of Karnataka v. Uma Devi reported in (2006) 4 SCC 1 . 4. On the other hand, State has pleaded that there was absolutely no sanctioned post for the Computer Operator or Data Entry Operator; order issued by the Chief Engineer dated 22.3.2001 contemplates that for the purpose of working on computer, existing staff first of all be trained and meanwhile for computer operation, work can be given on contract on the monthly remuneration of Rs. 3000 – 4000 per month and period of contract should be 2 -3 months only; State Government vide Government Order dated 1.5.2003 directed that no appointment can be made on ad hoc/contract/fixed salary/daily wages basis, therefore, extension given to the petitioners time to time after 1.5.2003 was in violation of Government Order dated 1.5.2003; as on day, there is absolutely no sanctioned post either for Computer Operator or for Data Entry Operator although in the year 2001, 465 posts were sanctioned for Junior Clerk cum Data Entry Operators that too after petitioners were appointed purely on contract; further contended that even otherwise petitioners were given contract to work as Computer Operators and if they were asked to discharge the additional duties of Data Entry Operator, it does not mean that they were appointed on contract basis on the post of Junior Clerk cum Data Entry Operator, therefore, there is no question of regularizing the services of the petitioners on the post of Junior Clerk cum Data Entry Operator; further contended that now post of Junior Clerk cum Data Entry Operator has already been re-designated as Junior Assistant. 5. I have heard Mr. C.D. Bahuguna, learned Senior Counsel appearing for the petitioners assisted by Mr. Anup Kumar Verma and Mr. Subhash Upadhyay, learned Standing Counsel for the State, and have carefully perused the record and relevant provisions. 6. None of the petitioners could produce on record their initial appointment letter. Mr. C.D. Bahuguna, learned Senior Counsel vehemently argued that pursuant to the order issued by the Chief Engineer on 22.3.2001, Annexure No. 1 to the writ petition, the petitioners were initially given contract for three months, which was extended time to time. Although, Mr. Bahuguna vehemently argued that notification was affixed on the notice boards of the office of Executive Engineers and Superintending Engineers inviting applications for contractual appointment on the post of Computer Operator, however, copy of such notification inviting application is not placed on record. But, it is not denied by the State that the petitioners are still working on contract basis. 7. Hon’ble Apex Court in the case of Uma Devi (supra), in paragraph nos. 12, 15, 50, 51, 52 and 53 has held as under : “12. But, it is not denied by the State that the petitioners are still working on contract basis. 7. Hon’ble Apex Court in the case of Uma Devi (supra), in paragraph nos. 12, 15, 50, 51, 52 and 53 has held as under : “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. 15. Even at the threshold, it is necessary to keep in mind the distinction between regularization and conferment of permanence in service jurisprudence. In State of Mysore v. S.V. Narayanappa [1967] 1 SCR 128, this Court stated that it was a mis-conception to consider that regularization meant permanence. In R.N. Nanjundappa v. T. Thimmiah and Anr. (1972) 1 SCC 409 , this Court dealt with an argument that regularization would mean conferring the quality of permanence on the appointment. In State of Mysore v. S.V. Narayanappa [1967] 1 SCR 128, this Court stated that it was a mis-conception to consider that regularization meant permanence. In R.N. Nanjundappa v. T. Thimmiah and Anr. (1972) 1 SCC 409 , this Court dealt with an argument that regularization would mean conferring the quality of permanence on the appointment. This Court stated:- Counsel on behalf of the respondent contended that regularization would mean conferring the quality of permanence on the appointment, whereas counsel on behalf of the State contended that regularization did not mean permanence but that it was a case of regularization of the rules under Article 309. Both the contentions are fallacious. If the appointment itself is in infraction of the rules or if it is in violation of the provisions of the Constitution, illegality cannot be regularized. Ratification or regularization is possible of an act which is within the power and province of the authority, but there has been some non-compliance with procedure or manner which does not go to the root of the appointment. Regularization cannot be said to be a mode of recruitment. To accede to such a proposition would be to introduce a new head of appointment in defiance of rules or it may have the effect of setting at naught the rules. 50. It is argued that in a country like India where there is so much poverty and unemployment and there is no equality of bargaining power, the action of the State in not making the employees permanent, would be violative of Article 21 of the Constitution. But the very argument indicates that there are so many waiting for employment and an equal opportunity for competing for employment and it is in that context that the Constitution as one of its basic features, has included Articles 14, 16 and 309 so as to ensure that public of the Constitution is breached because the employment on daily wages amounts to forced labour, cannot be accepted. After all, the employees accepted the employment at their own volition and with eyes open as to the nature of their employment. The Governments also revised the minimum wages payable from time to time in the light of all relevant circumstances. It also appears to us that importing of these theories to defeat the basic requirement of public employment would defeat the constitutional scheme and the constitutional goal of equality. The Governments also revised the minimum wages payable from time to time in the light of all relevant circumstances. It also appears to us that importing of these theories to defeat the basic requirement of public employment would defeat the constitutional scheme and the constitutional goal of equality. employment is given only in a fair and equitable manner by giving all those who are qualified, an opportunity to seek employment. In the guise of upholding rights under Article 21 of the Constitution of India, a set of persons cannot be preferred over a vast majority of people waiting for an opportunity to compete for State employment. The acceptance of the argument on behalf of the respondents would really negate the rights of the others conferred by Article 21 of the Constitution, assuming that we are in a position to hold that the right to employment is also a right coming within the purview of Article 21 of the Constitution. The argument that Article 23 51. The argument that the right to life protected by Article 21 of the Constitution of India would include the right to employment cannot also be accepted at this juncture. The law is dynamic and our Constitution is a living document. May be at some future point of time, the right to employment can also be brought in under the concept of right to life or even included as a fundamental right. The new statute is perhaps a beginning. As things now stand, the acceptance of such a plea at the instance of the employees before us would lead to the consequence of depriving a large number of other aspirants of an opportunity to compete for the post or employment. Their right to employment, if it is a part of right to life, would stand denuded by the preferring of those who have got in casually or those who have come through the back door. The obligation cast on the State under Article 39(a) of the Constitution of India is to ensure that all citizens equally have the right to adequate means of livelihood. The obligation cast on the State under Article 39(a) of the Constitution of India is to ensure that all citizens equally have the right to adequate means of livelihood. It will be more consistent with that policy if the courts recognize that an appointment to a post in government service or in the service of its instrumentalities, can only be by way of a proper selection in the manner recognized by the relevant legislation in the context of the relevant provisions of the Constitution. In the name of individualizing justice, it is also not possible to shut our eyes to the constitutional scheme and the right of the numerous as against the few who are before the court. The Directive Principles of State Policy have also to be reconciled with the rights available to the citizen under Part III of the Constitution and the obligation of the State to one and all and not to a particular group of citizens. We, therefore, overrule the argument based on Article 21 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 (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 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. 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 State of Mysore Vs. S.V. Narayanappa (1967) 1 SCR 128 , R.N. Nanjundappa Vs. T. Thimmiah (1972) 1 SCC 409 and B.N. Nagarajan Vs. State of Karnataka (1979) 4 SCC 507 , 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. We also clarify that regularization, if any already made, but not subjudice, need not be reopened 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. 8. As per the dictum of the Hon’ble Apex Court, all the public appointments should be made strictly as per the constitutional scheme so that all eligible may apply and compete for public employment. However, if emergent situation arises or short term project is undertaken, State or its instrumentalities may employ persons on daily wages for short period. 8. As per the dictum of the Hon’ble Apex Court, all the public appointments should be made strictly as per the constitutional scheme so that all eligible may apply and compete for public employment. However, if emergent situation arises or short term project is undertaken, State or its instrumentalities may employ persons on daily wages for short period. Further, if initial appointment is not per se illegal and is only irregular, as a one time measure, State and its instrumentalities by framing Rules and Regulations may regularize the services of such employees, who have worked continuously for more than ten years. 9. State of Uttarakhand pursuant to the dictum of the Hon’ble Apex Court in the case of Uma Devi (supra) framed and notified Rules for regularization in the year 2011, Annexure No. 67 to the writ petition. 10. As per Rule 4 (1) of 2011 Rules, only those temporary employees may be regularized, who have completed 10 years’ of service on 1.11.2011, in other words, who were initially appointed on or before 1.11.2001. 11. In view of the above, I have absolutely no hesitation to hold that the employees, who were engaged after 1.11.2001 shall not be covered under the Regularization Rules, 2011 and only those will be covered under the Rules, who were appointed on or before 1.11.2001. 12. As per Rule 4 (2), services of those employees can be regularized, who were initially appointed against the vacant sanctioned post and were having requisite eligibility, qualification and age, which are prescribed for the post concerned. Sub Rule (3) of Rule 4 further provides that regularization can be made if vacant and sanctioned posts are available. 13. Let me now examine as to whether petitioners can seek regularization of their services pursuant to the Rules of 2011. 14. Order issued by the Chief Engineer dated 22.3.2001, Annexure No. 1 to the writ petition, clearly stipulates that existing staff should be got trained for computer working and meanwhile as a temporary measure, contract may be given only for 2 – 3 months. It means, on 22.3.2001 or on the dates when petitioners were given contract to work as Computer Operators, there was no sanctioned post for Computer Operator or Junior Clerk cum Data Entry Operator. Moreover, posts for Junior Clerk cum Data Entry Operation were sanctioned only on 11.7.2001 i.e. after petitioners were given contractual appointment. It means, on 22.3.2001 or on the dates when petitioners were given contract to work as Computer Operators, there was no sanctioned post for Computer Operator or Junior Clerk cum Data Entry Operator. Moreover, posts for Junior Clerk cum Data Entry Operation were sanctioned only on 11.7.2001 i.e. after petitioners were given contractual appointment. Therefore, I have no hesitation to hold that petitioners were not appointed on contractual basis on any vacant and sanctioned post. Therefore, sine qua non for regularization, as per Rule 4 (2) of Rules 2011, is missing in the present case. 15. Mr. C.D. Bahuguna, learned Senior Advocate submitted that in various departments of the State of Uttarakhand thousand of employees were regularized, although at the time of their initial appointment, no vacant sanctioned post was available. In various departments posts were created to accommodate temporary employees. Further contends that since petitioners were allowed to work even after posts were sanctioned on 11.7.2001, therefore, petitioners must be absorbed/regularized against the sanctioned posts. 16. Mr. C.D. Bahuguna, leaned Senior Counsel while placing reliance on the judgment of Hon’ble Apex Court in the case of Nihal Singh & others v. State of Punjab & others reported in 2013 (5) Supreme Today 718 argued that even if posts are not available, as stated by the State in the counter affidavit, although as per the informations received by the petitioners, still 131 posts are available, this Court may issue Mandamus for the creation of the posts so that petitioners may be accommodated. 17. As per paragraph 53 of Uma Devi case (supra) only those can be considered for the regularization whose initial appointment was not per se illegal but was only irregular. As observed hereinbefore, there is nothing to show that applications were invited either through employment exchange or by publication or notification from all eligible to work on contract basis as Computer Operator. Therefore, initial appointment of the petitioners seems to be back door entry. 18. Moreover, if posts of Junior Clerk cum Data Entry Operator were sanctioned on 11.7.2001 after the initial contractual appointment of the petitioners, as to why selection process was not initiated for the regular appointment speaks in volume about the functioning of the Government. 19. Therefore, initial appointment of the petitioners seems to be back door entry. 18. Moreover, if posts of Junior Clerk cum Data Entry Operator were sanctioned on 11.7.2001 after the initial contractual appointment of the petitioners, as to why selection process was not initiated for the regular appointment speaks in volume about the functioning of the Government. 19. In my considered opinion, State or instrumentality of the State must act fairly and must provide equal opportunity of work to all eligible and cannot permit daily wagers or contract appointees to work for indefinite period giving them chance to knock the door of the Courts for their regularization or to hold Dharna Pradarshan for their regularization. 20. I have carefully perused the judgment passed by the Hon’ble Apex Court in the case of Nihal Singh (supra). In the case of Nihal Singh (supra), Special Police Officers were appointed under Section 17 of Punjab Police Act while petitioners were given no appointment under any law or against the vacant sanctioned post but were given contract only for 2 – 3 months, since computer system was new in the Department so that meanwhile existing staff may be got trained for computer work. Therefore, in my humble opinion, ratio of Nihal Singh case (supra) cannot be pressed in service in the present case. 21. Hon’ble Apex Court in the case of Union of India v. Deoki Nandan Aggarwal reported in AIR 1992 SC 96 has observed as under :- “It is not the duty of the Court either to enlarge the scope of the legislation or the intention of the legislature when the language of the provision is plain and unambiguous. The Court cannot rewrite, recast or reframe the legislation for the very good reason that it has no power to legislate. The power to legislate has not been conferred on the Courts. The Court cannot add words to a statute or read words into it which are not there. Assuming there is a defect or an omission in the words used by the legislature the Court could not go to its aid to correct or make up the deficiency. Court shall decide what the law is and not what it should be. The Court of course adopts a construction which will carry out the obvious intention of the legislature but could not legislate itself. Court shall decide what the law is and not what it should be. The Court of course adopts a construction which will carry out the obvious intention of the legislature but could not legislate itself. But to invoke judicial activism to set at naught legislative judgment is subversive of the constitutional harmony and comity of instrumentalities.” 22. As per the dictum of Hon’ble Apex Court in the case of Deoki Nandan Aggarwal (supra), this Court neither can add nor can omit any word in the Regularisation Rules, 2011. As per the Rules, only those can be considered for regularization, who were appointed temporarily or as daily wager or on the contract basis against the vacant sanctioned post. Since, petitioners were not appointed on vacant sanctioned post, therefore, there is no question of regularization of the services of the petitioners or to issue mandamus to create posts to absorb the petitioners. 23. Consequently, writ petition fails and is hereby dismissed. However, before parting with the judgment, this Court would like to observe that State Government must initiate the recruitment process to fill up all the sanctioned posts in all the Departments in accordance with law so that the practice of appointment on contract, daily wages or temporary basis should be discontinued and all eligible may apply, compete and get public appointment.