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2014 DIGILAW 223 (JK)

Bilal Ahmad Dar v. State

2014-06-02

JANAK RAJ KOTWAL

body2014
JUDGMENT : Janak Raj Kotwal, J. 1. This is a writ petition. Heard. I have perused the record. 2. Petitioners claim that respondent-Department of Fisheries has engaged them as casual labourers against clear vacancies time to time from the year 1999 onwards. In support, they have produced the copies of engagement orders, most of them having been issued by the Commissioner Fisheries, J & K Government, one by Joint Director Fisheries, Kashmir Division and one by Chief Project Officer, Trout Fish Farming Project, Kokernag. Their claim further is that the Director, Fisheries, J & K Government/respondent No. 2 vide his communication No. DF/CJ/Adm/2011/4392, dated 20.09.2011 followed by communication No. DOF/Adm/13/638, dated 15.05.2013 has certified that their engagement as casual labourers have been made by the competent authority, they are working in the department for the last more than seven years and has recommended their regularization against Class IV posts available in the department saying that their engagement as casual labourers was necessitated because of manifold increase in departmental activities with the introduction of new departmental programmes across the State, besides for creating employment avenues for the unemployed educated youth and as there had been no corresponding creation of staff especially at the gross root level. 3. Petitioners feel aggrieved by issue of vacancy notification No. 01-Fisheries of 2013, dated 24.07.2013 by the Director Fisheries/respondent No. 2, whereby Class IV posts (District Cadre) in the department have been advertised for direct recruitment. Their grievance is that since the petitioners have been recommended for regularization against Class IV posts lying vacant in the department the direct recruitment to these posts is violative of the basic principle of service protection to the petitioners. Their grievance is that since the petitioners have been recommended for regularization against Class IV posts lying vacant in the department the direct recruitment to these posts is violative of the basic principle of service protection to the petitioners. Petitioners have, therefore, filed this writ petition for issue of: "(i) writ of certiorari, the impugned notification bearing No. 01-Fisheries of 2013, dated 24.07.2013 be quashed and set aside as the said notification is a cloud upon the right of avenues of regularization to the petitioners; (ii) writ of mandamus, commanding the official respondents to regularize the services of the petitioners in pursuance of various communications issued by the official respondents and for implementation of recommendation of Central Six Pay Commission; (iii) writ of mandamus, commanding the respondents to allow the petitioners to continue on the positions/posts occupied by them in the respondent department; (iv) writ of mandamus, commanding the official respondents to allow the petitioners to discharge their duties without any hurdles whatsoever which may be created by the respondents in pursuance of the impugned notification or in alternative the respondents be directed that the present status of the petitioners shall not be disturbed; and (v) writ of mandamus, commanding the respondents to release the legally earned wages of the petitioners which has been withheld by the respondents for the last so many years." 4. Respondents have opposed the writ petition by filing their reply supported by sworn affidavit of Mr. Mohd. Afzal, Secretary to Government, Forest Department. While not clearly denying engagement of the petitioners as casual labourers in the department, it is contended that Government, while issuing Notification SRO 64 of 1994, dated 24.03.1994, called as the Jammu and Kashmir Daily Rated Workers'/Work Charged Employees (regularization) Rules, 1994 (for short SRO 64), providing for regularization of daily rated workers/work charged employees, has vide its Rule 7 imposed restriction on engagement of daily rated workers/work charged employees with effect from the date of the said SRO. It is further contended that vide Government Order No. 239-F of 2005, dated 29.11.2005, issued in terms of proviso to Rule 7 of SRO 64, departments, namely, Agriculture Production Department, PWD (R & B) Department, PHE (Irrigation & FC) Department and Power Development Department were authorized to engage casual/seasonal labourers from time to time on minimum need basis on master rolls. The Fisheries Department, however, does not figure amongst the departments so authorized. The Fisheries Department, however, does not figure amongst the departments so authorized. It is, thus, pleaded that the engagement of petitioners is in clear violation of SRO 64. The writ petition is also opposed on the ground that under J & K Fisheries Non-Gazetted Service Recruitment Rules, all the Class IV posts are required to be filled up by direct recruitment. The petitioners, though may apply for their recruitment against these posts in response to the vacancy notification, cannot claim regularization against these posts. 5. Before taking up the rival contentions and submissions, I may first give a brief resume as regards the nature of engagement of the petitioners, which, on the basis of the pleadings and record on the file, can be taken as undisputed ground of both the sides. Besides, I may also refer to various orders/circulars, which are relevant. 6. Petitioners say that they have been engaged as "casual labourers against the clear vacancies from the year 1999 onwards." They further say that their engagement has been extended from time to time and presently they are working as casual labourers. In support, they have produced copies of engagement orders of all of them. These orders have been issued during the period commencing January, 1999 and ending November, 2004. Engagement order of petitioner No. 1 is dated 31.01.1999 and that of petitioner No. 19 is stated 22.1.2004. Petitioners engagement and continuance as casual labourers in the respondent-department gets confirmation from communication No. DF/CJ/Adm/2011/4392, dated 20.09.2011 and communication No. DOF/Adm/13/638, dated 15.05.2013 (supra) addressed by Director Fisheries/respondent No. 2 to the administrative department, whereby the Director, while confirming that petitioners have been working in the department for the last more than seven years, has recommended their regularization against Class IV posts in the department. 7. Petitioners' say to the extent that they have been engaged against clear vacancies, however, is without any basis because all the engagement orders would show that they have been engaged/re-engaged as casual labourers without indicating that such engagements were against clear vacancies existing in the department. 8. Respondents in their reply have denied neither the engagement nor continuance of the petitioners as casual labourers in the department. It is thus taken as undisputed ground of both the sides that the petitioners have been engaged as casual labourers in the respondent-department during the period commencing 30.01.1999 and ending on 22.11.2004. 8. Respondents in their reply have denied neither the engagement nor continuance of the petitioners as casual labourers in the department. It is thus taken as undisputed ground of both the sides that the petitioners have been engaged as casual labourers in the respondent-department during the period commencing 30.01.1999 and ending on 22.11.2004. They continued so as at the time of filing of this writ petition and it is not the respondents' case that they have ever been disengaged. 9. Issue relating to regularization/making permanent the ad hoc/temporary employees, member of the work-charged establishments, daily wagers, casual labourers and those engaged temporarily in temporary schemes has quite often engaged the consideration of the High Courts and the Supreme Court. The three-Judge Bench decision of the Supreme Court in State of Haryana and others v. Piara Singh and others, AIR 1992 SC 2130 , is well known and had been the basis of regularization of a number of persons so engaged/appointed. 10. In Piara Singh, the Supreme Court, while emphasizing the general principle of regular recruitment through the prescribed agency, also recognized that exigency of administration may sometimes call for ad hoc or temporary appointments to be made. The Supreme Court, besides making observations as regards the course to be adopted when such appointments are made on ad hoc or temporary basis, made following observations as regards the work-charged employees and casual labourers in para 25 of the reporting, which reads: "25. ..... So far as the work-charged employees and casual labour are concerned, the effort must be to regularize them as far as possible and as early as possible subject to their fulfilling the qualifications, if any, prescribed for the post and subject also to availability of work. If a casual labourer is continued for a fairly long spell - say two or three years - a presumption may arise that there is regular need for his services. In such a situation, it becomes obligatory for the concerned authority to examine the feasibility of his regularization. While doing so, the authorities ought to adopt a positive approach coupled with empathy for the person. As has been repeatedly stressed by this court, security of tenure is necessary for an employee to give his best to the job. In such a situation, it becomes obligatory for the concerned authority to examine the feasibility of his regularization. While doing so, the authorities ought to adopt a positive approach coupled with empathy for the person. As has been repeatedly stressed by this court, security of tenure is necessary for an employee to give his best to the job. In this behalf, we do commend the orders of the Government of Haryana (contained in its letter dated 6-4-90 referred to hereinbefore) both in relation to work-charged employees as well as casual labour." 11. Pursuant to and consequent upon the judgment in Piara Singh's case, Government of Jammu and Kashmir, firstly, issued Government Order No. 26-F of 1994, dated 31.01.1994 and after that framed rules called as The Jammu and Kashmir Daily Rated Workers/Work-Charged Employees (Regularization) Rules, 1994 vide SRO 64 of 1994, dated 24.03.1994. SRO 64, besides providing for a scheme for regularization of Daily Rated Workers and Work-Charged Employees having been engaged up to 31.03.1994, vide Rule 7, however, imposed restriction on engagement of Daily Rated Workers/Work-Charged Employees in all the Government Departments from the date of its commencement, that is, 01.04.1994. Not only that, Government also withdrew delegation of power to make such engagements, if any. Rule 7 of SRO 64, reads: "7. Restriction on engagement of Daily Rated Worker/Work Charged Employees:-(1) With effect from the commencement of these Rules, no field/subordinate officer shall have the power of engagement of a Daily Rated Worker or Work Charged Employee in the Department and the existing delegation, if any, in this regard is withdrawn; Provided that the Competent Authority may engage casual labour or seasonal labour in any of the Departments to be specified by notification from time to time by the Government and such Labour shall be on the Muster Roll for payment of wages and no engagement or appointment order shall be issued. (2) After the commencement of these rules the work charged posts shall be created only by the Administrative Departments in consultation with the Finance and Planning Department." Similar restriction earlier was imposed and powers withdrawn under Government Order No. 26-F of 1993, dated 31.1.1993 as well after the date of that order. 12. (2) After the commencement of these rules the work charged posts shall be created only by the Administrative Departments in consultation with the Finance and Planning Department." Similar restriction earlier was imposed and powers withdrawn under Government Order No. 26-F of 1993, dated 31.1.1993 as well after the date of that order. 12. It appears, the engagement of Daily Rated Workers continued even after imposition of the ban under SRO 64 and Government Order No. 26-F. The Government, therefore, issued Government Order No. 144-GAD of 2001, dated 02.02.2001, whereby ordering that all the Daily Rated Workers who have been appointed after imposition of the ban, that is, after 31.01.1994 and are still performing their duties shall be paid their waged up to 31st January, 2001 and thereafter their services shall be disengaged/discharged. 13. What is thus clear is that the State Government vide Government Order No. 26-F of 1994, dated 31.01.1994 read with SRO 64 of 1994, dated 24.03.1994, has imposed complete ban on engagement of Daily Rated Workers/Work-Charged Employees in all State Government Departments with effect from 01.02.1994 though under proviso to Rule 7 of SRO 64, provision has been made for engaging casual labour or seasonal labour in any department to be specified by a notification from time to time by the Government on Muster Roll. The Government, however, vide Government Order No. 144-GAD of 2001, dated 02.02.2001 ordered for payment of wages up to 31.01.2001 to all the daily rated workers, who had been engaged even after imposition of ban, that is, after 31.01.94, simultaneously disengaging/discharging them. 14. It is not the petitioners' case that the Department of Fisheries had ever been notified by the Government and authorized to engage casual labour or seasonal labour in terms of proviso to Rule 7 of SRO 64. In this context, it is stated in the reply filed on behalf of the respondents that vide Government Order No. 239-F of 2005, dated 29.11.2005 issued in terms of proviso to Rule 7 of SRO 64, four departments, namely, Agriculture Production Department, PWD (R & B) Department, PHE (Irrigation & FC) Department and Power Development Department, were authorized to engage casual/seasonal labour from time to time, whereas the Fisheries Department does not figure amongst the departments so authorized. This contention of the respondents is not rebutted and, the objections having been supported with an affidavit sworn in by the Secretary of Government, Forest Department (J & K), is accepted. 15. It is thus taken as admitted and indisputable that all the petitioners lave been engaged in the Fisheries Department as casual labourers after and in spite of the ban against such engagements imposed under Government Order No. 26-F of 1994, dated 31.01.1994 and SRO 64 of 1994, without the Department having been authorized under proviso to Rule 7 of the SRO 64, to make such engagements. They have been allowed to continue' and some of them appointed even after Government Order No. 144-GAD of 2001, dated 02.02.2001. 16. The primary question, thus, arising for determination is, whether is petitioners, who have been engaged as casual labourers in spite of ban against such engagements, are entitled to consideration for their regularization/making permanent in the respondent-department against the available vacancies of Class IV employees or otherwise? Supplementary question would be, whether on the strength of their engagement do the petitioners have a right to stall and even seek quashing of the process for recruitment against the Class IV vacancies in the Department commenced vide vacancy notification No. 1 (supra)? Yet another question would be, do the petitioners have a right to seek a direction against the respondents to continue with their services as casual labourers. 17. Before adverting to the adjudication upon the above questions, may be in place to refer, though at the cast of repetition, to the two Communications (supra) of the Director Fisheries-respondent No. 2, in bit more detail as they form the main plank of petitioners' claim in this writ petition. 18. The first communication relied upon by the petitioners is No. DF/CJ/Adm/2011/4392, dated 20.09.2011 addressed by the Director to the Commissioner-Secretary of the Administrative Department. In this communication, the Director, while informing that record pertaining to daily wagers/casual labourers engaged in the Directorate of Fisheries had gutted in fire to the Directorate in the TRC Complex, Srinagar, has certified the engagement of casual labourers, indisputably including the petitioners, having been made by "Competent Authority" and that they have been working in the department for the last more than seven years. The Director also made a request for their regularization in the following terms: "It is, therefore, requested that the matter may kindly be considered sympathetically and necessary orders issued for their regularization. This will enable the department to utilize their services in various Projects/Districts as the department is facing acute shortage of staff especially at the grass root level for manning/watch and ward of Department assets and carrying out various other developmental activities." The second communication is No. DOF/Adm/13/638, dated 15.05.2013. The substance of this communication reads:- "Kindly refer this office letter No's under reference regarding the subject cited above where under the list of the 58 (fifty eight) incumbents who have been continuously working in the Department for the last more than 14 years on daily rated basis was submitted for consideration please. Their engagements have been made for maintenance of Departmental Assets and assistance to the field staff in conservation of natural water resources, and other fisheries allied activities. The engagement was necessitated in view of the fact that during the last two decades, the Departmental activities increased manifold with introduction new Developmental programme across the State besides the propagation of fish culture in the Private Sector which has given boost to fish production in the State besides creating employment avenues for educated unemployed youth. The endeavor of the Department has been appreciated by the Planning Commission Govt. of India. The Department has raised huge infrastructure in the shape of Hatcheries, Fish Farms, Trout Rearing Units, Lodges. Inspection huts which require continuous monitoring and maintenance, besides it is essential to maintain the hygiene of the infrastructure for betterment of the live stock. Despite remarkable progress in the Fisheries Sector, there has no corresponding creation of staff especially at gross root level for undertaking these activities which necessitated the engagement of these incumbents on daily rated basis and it is worth to mention here that these persons have been rendering exemplary services to the Department and have gained lot of expertise in maintaining the units besides getting proficiency in fish husbandry and rearing. These incumbents have proved valuable hands to the Department. It is, as such, requested that their case may kindly be considered sympathetically and recommended for regularization in the Department against Class IV posts available in the Department. These incumbents have proved valuable hands to the Department. It is, as such, requested that their case may kindly be considered sympathetically and recommended for regularization in the Department against Class IV posts available in the Department. In view of their sufficient knowledge and technical know how in various aspects of fish farming, breeding, husbandry and overall maintenance. They have been rendering exemplary source to the Department during this period as already submitted hereinabove." 19. In the wake of these two communications of the Director/respondent No. 2, it becomes indisputable that the petitioners have been engaged as casual labourers because the department required their services for maintaining various activities of the department but these engagements were made contrary to the ban and without authorization under SRO 64, without obtaining special permission before their engagement or confirmation of the action after the engagement though respondent No. 2 had made a request for their regularization to the Administrative Department. Besides, these petitioners are in place as casual labourers from last 10 to 14 years so it can be presumed that there is a regular need and requirement of their services in the department. 20. Having regard to the long duration continuance of the petitioners in the department and the regular need and requirement of their services, it would have become obligatory for the Government/concerned Authority to examine the feasibility of their regularization and a direction in this behalf could have been issued as per the principle envisaged by the Supreme Court in Piara Singh (supra). But the position has changed with the Constitution Bench Judgment of the Supreme Court in famous Umadevi's case-Secretary, State of Karnataka & Ors. v. Umadevi & Ors., AIR 2006 SC 1806 and it can be said that such obligation no longer exists. 21. In Umadevi (supra), the Supreme Court has examined the issue arising from conflicting judgments relating to the right, if any, of the persons appointed/engaged by the State or by its instrumentalities on a temporary basis or on daily wages or casually, to approach the High Court for the issue of a writ of mandamus directing that they be regularized/made permanent in appropriate posts, the work of which they were otherwise doing. 22. 22. Their Lordships at the outset, while referring to the equality clause represented by Article 14 of the Constitution, the equality of opportunity in the matters of public employment represented by Article 16 and the Constitutional requirement as regards recruitment and conditions of services of persons serving the Union or a State as envisaged under Article 309 (Section 124 of the Constitution of Jammu and Kashmir), have emphasized in para 10 of the reporting that "the States have made Acts, Rules or Regulations for implementing the above Constitutional Guarantees and any recruitment to the service in the State or in the Union is governed by such Acts, Rules and Regulations." Contextually, Supreme Court held that "the Constitution does not envisage any employment outside this Constitutional Scheme and without following the requirement set down therein." Nonetheless, in para 11 of the reporting, the Supreme Court recognized the inherent right of the Union or of a State Government to make ad hoc, temporary or casual appointments outside the Constitutional Scheme. Para 11 of the reporting reads: "11. 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. 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." 23. The Supreme Court also referred to the claims based upon equity arising out of long duration continuance of temporary/casual employment of a person about which it had been observed in Piara Singh (supra) that in such a situation a presumption may arise that there is regular need for their services and it will become obligatory for the concerned authority to examine the feasibility of his regularization. In this regard, the Constitution Bench in para 12 of the reporting has observed: "12. What is sought to be pitted against this approach, is the so called equity arising out of giving of temporary employment or engagement on daily wages and the continuance of such persons in the engaged work for a certain length of time. Such considerations can have only a limited role to play, when every qualified citizen has a right to apply for appointment, the adoption of the concept of rule of law and the scheme of the Constitution for appointment to posts. It cannot also be forgotten that it is not the role of courts to ignore, encourage or approve appointments made or engagements given outside the constitutional scheme. In effect, orders based on such sentiments or approach would result in perpetuating illegalities and in the jettisoning of the scheme of public employment adopted by us while adopting the Constitution. The approving of such acts also results in depriving many of their opportunity to compete for public employment. We have, therefore, to consider the question objectively and based on the constitutional and statutory provisions. The approving of such acts also results in depriving many of their opportunity to compete for public employment. We have, therefore, to consider the question objectively and based on the constitutional and statutory provisions. In this context, we have also to bear in mind the exposition of law by a Constitution Bench in State of Punjab v. Jagdip Singh & Ors. ( 1964 (4) SCR 964 ). It was held therein, "In our opinion, where a Government servant has no right to a post or to a particular status, though an authority under the Government acting beyond its competence had purported to give that person a status which it was not entitled to give, he will not in law be deemed to have been validly appointed to the post or given the particular status." 24. Having observed and emphasized as above, the Supreme Court in Umadevi, after examining various judgments in the matter including that in Piara Singh (supra), has laid down principles relating to the legal status of the persons appointed/engaged by the State or by its instrumentalities on a temporary basis or on daily wages or casually and their right to approach the High Court for the issue of a writ of mandamus directing that they may be regularized or made permanent in appropriate posts or allowed to continue on the positions held by them, as in the case on hand. Following passages from the judgment are apposite and I quote them: "34. ....... 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." "36. While directing that appointments, temporary or casual, be regularized or made permanent, courts are swayed by the fact that the concerned person has worked for some time 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 eke 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 succor 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 in 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. 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 some time 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 fail when tested on the touchstone of constitutionality and equality of opportunity enshrined in Article 14 of the Constitution of India." 38. 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 recognized by the relevant rules or procedure, he is aware of the consequences of the appointment being temporary, casual or contractual in 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 by following a proper procedure for selection and in concerned cases, 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. 39. 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. 39. 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." 41. 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." 41. 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 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 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. 42. 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. 42. 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. 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. 43. 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. 43. 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." Having held and observed as above, the Supreme Court in Umadevi has 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." 25. The above extraction from the judgment in Umadevi on its plain reading is sufficient to settle and close the matter as definite and decisive answers to all the questions formulated in para (16) above are discernible from the judgment. Petitioners have been engaged as casual labourers simpliciter and the department is availing benefit of their services from the last so many years. But the fact remains that they have neither been engaged against some regular posts in the department nor appointed in terms of relevant rules and by following due process of selection. Not only that, their engagement is contrary to the ban against such engagements imposed by the Government under Government Order No. 26-F and SRO 64 and without any special authorization in that behalf. Not only that, their engagement is contrary to the ban against such engagements imposed by the Government under Government Order No. 26-F and SRO 64 and without any special authorization in that behalf. Their engagement as casual labourers does not confer any right on them nor can they claim consideration to their regularization or making them permanent in the department, much less against permanent posts, which are to be filled up in a prescribed recruitment process to fulfill the Constitutional requirement of the public employment. Even though the Director Fisheries/respondent No. 2 has recommended regularization of the petitioners against the available vacancies in the department but such recommendation is contrary to the Constitutional scheme of recruitment and cannot confer any right on the petitioners to seek regularization in a process falling outside the said scheme. 26. The matter, nonetheless, calls for further consideration for another reason. When in the course of hearing learned Government Advocate placed heavy and strong reliance on Umadevi's case, learned counsel for the petitioners, while not referring to any law/rule in support of petitioners' claim, had submitted that case of the petitioners is governed by a Division Bench judgment of this Court in State of Jammu and Kashmir v. Estate Department, 2011 SLJ 591: 2011 (2) JKJ 314 [HC] and a judgment of co-ordinate Bench in Kuldeep Raj and Ors. v. State of J & K, 2012 (1) SLJ 81 : 2011 (2) JKJ 482 [HC]. Learned counsel also relied upon a Division Bench Judgment of this Court in Ashok Kumar v. State of J & K and Ors., 2003 (2) SLJ 475 : 2003 (4) JKJ 93 [HC]. Submission of Mr. Aftab Ahmed, learned counsel for the petitioners, was that directions similar to those issued by this Court in Estate Department's case and Kuldeep Raj's case (supra) can be issued in the instant case also as petitioners are similarly placed as the petitioners of those two cases were. Per contra, submission of Mr. Shuja-Ul-Haq, learned Government Advocate, however, was that the judgments sought to be relied upon by learned petitioners' counsel are contrary to the principles laid down in Umadevi's case inasmuch as no direction can be issued to regularize a casual labourer having been engaged in spite of the ban against such engagement imposed by the Government. 27. Shuja-Ul-Haq, learned Government Advocate, however, was that the judgments sought to be relied upon by learned petitioners' counsel are contrary to the principles laid down in Umadevi's case inasmuch as no direction can be issued to regularize a casual labourer having been engaged in spite of the ban against such engagement imposed by the Government. 27. It is seen that the DB Judgment in Ashok Kumar's case (supra) has been rendered in the year 2002 in backdrop of the judgment in Piara Singh (supra) and various orders/notifications issued by the State Government pursuant thereto. Learned DB, while tabulating the conclusions in the judgment, has as regards casual employees and seasonal employees directed that the State Government would consider their claims individually or frame a scheme in this regard as such employees are protected by the observation made by the Supreme Court in Piara Singh's case. The observation made and direction issued by the learned DB, as it pertains to era prior to Umadevi's case, has no application to the case on hand because the protection, whatsoever, available under Piara Singh is no longer available after Umadevi's case. 28. Estate Department's case (supra) pertains to casual/seasonal labourers (writ petitioners) of Estate Department. Learned Writ Court in that case has directed the State to formulate a Scheme in order to regularize the services of these employees with further direction of completing the exercise within six months. Learned DB in the LPA filed by the State reiterated the direction stating that "Government shall accord consideration to formulation of Scheme to the advantage of respondents (writ petitioners)". The petitioners of that case indeed were engaged after imposition of ban against such engagements under Order 26-F read with SRO 64 and re-emphasized vide Government Order No. 144-GAD of 2001, dated 02.02.2001 and it is not disputed that Estate Department is not the one which had been notified and authorized to engage casual labourers/seasonal labourers under proviso to Rule 7 of SRO 64. In that their engagement was on the same footing as that of petitioners of this case and a question can be raised whether, following the said judgment, a similar direction should be issued in this case also, notwithstanding the principle laid down in Umadevi's case. There, however, is a distinction, rendering it not obligatory to issue a similar direction in this case too. 29. There, however, is a distinction, rendering it not obligatory to issue a similar direction in this case too. 29. The writ petitioners in Estate Department's case had been engaged as casual/seasonal labourers to maintain watch and ward to the estate of the Estates Department scattered in various parts of Srinagar, though after 31.1.1994 in violation of ban against such engagements. However, after issuance of Government Order No. 144-GAD of 2001, (supra) and in backdrop of the said order, Director Estates Department vide his communication No. Est/Acctts/415/95, dated 05.05.2003 addressed to Principal Secretary to the Government, General Administration Department had sought permission for continuation of 313 casual labourers (including petitioners of that case) in relaxation of the ban. In response thereto, Government vide Government Order No. 81-Est. of 2003, dated 23.04.2003 had accorded sanction for continuation of the said 313 casual labourers. The said Govt. Order reads as under:- "Government of Jammu and Kashmir, Estates Department Sub: Continuation of 313 casual labourers of Estates Department in relaxation of ban imposed vide Government Order No. 144-GAD of 2001, dated 02.02.2001 and release of funds by Finance Department. Ref: Cabinet Decision No. 59/5, dated 04.04.2003. Government Order No. 81-Est of 2003, Dated 23.02.2003 Sanction is accorded to the continuation of 313 casual labourers (as per Annexures-A & B) of Estates Department in relaxation of ban imposed vide Government Order No. 144-GAD of 2001, dated 02.02.2001 and release of funds by the Finance Department for payment of their wages with effect from 9/2001. By order of the Government of Jammu and Kashmir. Sd/- Prpl. Secy. GAD." 30. The distinction, thus, lies in the validation by the State Government of the engagement of the writ petitioners of that case among others even though they had been engaged after imposition of ban and such validation can be construed as post facto authorization in terms of proviso to Rule 7 of SRO 64. This, however, is not the position in the case on hand. Here, even though the Director Fisheries had recommended regularization of the writ petitioners but neither prior nor post engagement authorization/permission for their engagement was ever sought or obtained nor the Director had stated as to how they could have been regularized. The DB judgment of this Court in Estate Department's case, therefore, is distinguishable in its application to the case on hand and cannot be applied to. 31. The DB judgment of this Court in Estate Department's case, therefore, is distinguishable in its application to the case on hand and cannot be applied to. 31. In Kuldeep Raj's case (supra), the four petitioners of that case claimed to have been engaged as Class IV employee on daily wage basis in the respondent/Government Department vide different engagement orders issued in the year 1995. Their grievance before the Writ Court was that their services are not being regularized even though they are entitled for such regularization. Claim was objected by the respondents stating that they have been engaged after 31.01.1994 and were thus not entitled for being brought on regular temporary establishment. Learned Single Judge in that case has issued writ of mandamus directing respondents to "consider the claim of the petitioners for being brought on regular temporary establishment or their absorption on Class IV posts" with a further direction to take decision in this regard within a period of three months from the date copy of the order is served upon them and further to allow the petitioners to continue till decision is taken and to pay them their wages regularly. In granting the writ, learned Writ Court in that case took the view incorporated in paras 6 & 7 of the reporting, which read: "6 Petitioners are undisputedly working from the year 1995. It is also admitted that respondents are taking work from the petitioners. Petitioners whose rights are governed by provisions of Constitution more particularly, Articles 14 and 21 thereof cannot be denied consideration for being brought on regular temporary establishment. 7. Our State is a welfare State and is creature of Constitution. Article 14 of the Constitution of India provides for equality before the law and equal protection of laws and Article 21 of the Constitution of India provides that no person shall be deprived of his life and personal liberty except in accordance with the procedure established by law. Petitioners fate cannot be kept in such a state where no guarantee is available to them of their future status. No State Government by Rule of law can be said to have power to take work from its citizens without affording them the guarantee of protection to their tenures. Petitioners fate cannot be kept in such a state where no guarantee is available to them of their future status. No State Government by Rule of law can be said to have power to take work from its citizens without affording them the guarantee of protection to their tenures. The State Government is duty bound to take a policy decision to accord consideration for regularizing the services of the petitioners and the persons who belong to the said class. It is a duty which is enjoinder upon the State and its authorities by the constitution to which it owes its existence." 32. Given the similarity of fact situation of Kuldeep Raj's case and the case on hand, that is, casual/daily wage basis engagements in both the cases having been made after imposition of ban against such engagements, petitioners have a point in seeking parity and issue of directions similar to those issued by this Court in Kuldeep Raj's case. But the question would be, is it obligatory to follow the judgment of the learned Single Judge of this Court in Kuldeep Raj, notwithstanding the principles laid by the Supreme Court in Umadevi? 33. It is seen respectfully that the view taken by the learned Single Judge and the directions issued in Kuldeep Raj (supra) are not in conformity with the principles laid down by the Supreme Court in Umadevi. It is well settled in Umadevi that based upon the principles of equality envisaged under Article 14 of the Constitution and the equality of opportunities in the matters of public employment envisaged under Article 16 of the Constitution and the Constitutional requirement as regards recruitment and conditions of service of persons serving the Union or State envisaged under Article 309 (Section 124 of the Constitution of Jammu and Kashmir), appointments to the Government service are to be made in accordance with a prescribed procedure within the Constitutional Scheme. Though Government has a right to make appointments/engagements of daily rated workers or casual labourers outside the Constitutional scheme but such appointment/engagement will not confer any right on the persons so appointed/engaged to be regularized or brought on the permanent service of the Government by sidestepping the Constitutional Scheme. It has been clearly laid down by the Supreme Court in Umadevi that courts should not issue directions for regularization/absorptions of the persons so engaged in Government Service. 34. It has been clearly laid down by the Supreme Court in Umadevi that courts should not issue directions for regularization/absorptions of the persons so engaged in Government Service. 34. With great respect to the judgment in Kuldeep Raj's case, it appears the said judgment has been rendered and the directions issued by the learned Single Judge without reference to the Constitution Bench Judgment in Umadevi. Question, as to whether such directions could have been issued seems neither canvassed nor discussed on the touchstone of the judgment in Umadevi. The judgment by the learned Single Judge can be said to have been rendered sub-silentio and per incuriam. It is a well recognized rule that a judgment (precedent) sub-silentio or per incuriam is not binding and cannot be followed. In Sandeep Kumar Bafna v. State of Maharashtra, 2014 AIR SCW 2115, Supreme Court in para 15 of the reporting has held: "15. It cannot be over-emphasised that the discipline demanded by a precedent or the disqualification or diminution of a decision on the application of the per incuriam rule is of great importance, since without it, certainty of law, consistency of rulings and comity of Courts would become a costly casualty. A decision or judgment can be per incuriam any provision in a statute, rule or regulation, which was not brought to the notice of the Court. A decision or judgment can also be per incuriam if it is not possible to reconcile its ratio with that of a previously pronounced judgment of a Co-equal or Larger Bench; or if the decision of a High Court is not in consonance with the views of this Court. It must immediately be clarified that the per incuriam rule is strictly and correctly applicable to the ratio decidendi and not to obiter dicta. It is often encountered in High Courts that two or more mutually irreconcilable decisions of the Supreme Court are cited at the Bar. We think that the inviolable recourse is to apply the earliest view as the succeeding ones would fall in the category of per incuriam." 35. It is often encountered in High Courts that two or more mutually irreconcilable decisions of the Supreme Court are cited at the Bar. We think that the inviolable recourse is to apply the earliest view as the succeeding ones would fall in the category of per incuriam." 35. Issuing directions similar to those issued by the learned Single Judge in Kuldeep Raj (supra) by directing respondents to regularize or make permanent the petitioners against the posts of Class IV employees available in the department and to quash the vacancy notification for direct recruitment to the said posts would mean directing the Government not to follow and to sidestep the Scheme of public employment, which envisages appointment to Government Services by following prescribed procedure of recruitment and to legalize a class of service outside the Constitutional Scheme of public employment. It will also mean depriving a number of eligible candidates of their fundamental right of equality and equal opportunity to apply for said posts and take part in the selection process. Issuing directions would be violative of the principles laid by the Supreme Court in Umadevi's case (supra). 36. For aforementioned, I feel inclined lot to issue a writ or directions to the respondents similar to those issued by this court in Kuldeep Raj's case (supra). I may, however, add here that refusal to issue of the writ by this Court would not mean blocking the accord of consideration by the Government to the recommendation made by the Director/respondent No. 2. This will also not come in the way of respondent-department continuing with the services of the petitioners as casual labourers because Government is within its right to engage and continue with the services of such persons as long as requirement of the Government continues. In that case, however, obligation would be cast on the Government/department to pay wages to them as long as their services are availed. 37. Viewed thus, this writ petition to the extent of relief Nos. (i) & (ii) (para 3 supra) is dismissed as without any merit. As regards relief Nos. (iii), (iv) & (v), the writ petition is allowed providing that respondents shall continue with the services of the petitioners in their capacity as casual labourers as long as their services are required and in that case their legally earned wages shall be paid regularly. Disposed of.