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2015 DIGILAW 304 (ALL)

Gopal Prasad v. State of U. P.

2015-02-16

RAKESH TIWARI, VIJAY LAKSHMI

body2015
JUDGMENT Vijay Lakshmi, J. 1. This intra court appeal is directed against the judgment dated 5.12.2014, passed in Civil Misc. Writ Petition No. 36613 of 1998, whereby writ court has dismissed the writ petition. We have heard learned counsel for the appellant, learned standing counsel appearing on behalf of the respondents and have perused the records. 2. The petitioner appellant was appointed on the post of Peon on daily wages in the Office of District Election Officer, Ballia from 21.5.1988 to 15.7.1988. Again he was given a temporary post of Peon in the same office from 2.11.1988 to 15.12.1988. Once again he was given a temporary post of Junior Clerk in the same office from 23.9.1989 to 31.12.1989. On 26.3.1990, the said appointment of the petitioner-appellant was cancelled. The petitioner-appellant moved a representation to the effect that he being a retrenched employee, he be absorbed in the services, which was rejected by the authority concerned vide order dated 27.11.1997 on the ground that there is no provision for recruiting the retrenched employees directly to any post by absorbing them to such post and in absence of any such provision or any Government order, the petitioner-appellant cannot be absorbed on any post in Census Department. The aforesaid order dated 27.11.1997 was challenged by the petitioner-appellant by way of Writ Petition No. 36613 of 1998, which was dismissed by the writ court by the order reproduced below, which has been impugned in this appeal: "Heard learned counsel for the petitioner and learned standing counsel for the respondents. Petitioner herein, was engaged as a temporary peon for short period in the District Census Office, when the exercise for census was undertaken. He was appointed as clerk but the said appointment was cancelled vide order dated 26.3.1990, and he was reverted to the post of Peon on the same terms, on which he was working. His claim for absorption was rejected vide order dated 27.11.1997 on the ground that he was claiming absorption on the post of clerk, whereas there was no such provision. The petitioner has not challenged the order dated 26.3.1990. reverting him to the post of Peon. There is nothing on the record to show that the petitioner has continued to work on the post of peon whether in temporary or in other capacity after 1996. The petitioner has not challenged the order dated 26.3.1990. reverting him to the post of Peon. There is nothing on the record to show that the petitioner has continued to work on the post of peon whether in temporary or in other capacity after 1996. There is already a stipulation in the order dated 27.11.1997 that his case would be considered as per rules, if permissible. I do not find any valid ground for granting any relief to the petitioner. The writ petition is dismissed." 3. The petitioner-appellant being a daily wager and a temporary employee in Census Department has no right to such post or to be absorbed on any post whether Class III or Class IV in view of the landmark judgment Secretary, State of Karnataka and others v. Uma Devi and others, (2006) 4 SCC 1 : 2006 (5) AWC 5325 (SC), decided by seven Judges Bench of Hon'ble Supreme Court, in which the Apex Court, overruling all its previous judgment having contrary view has laid down the law as under: "...a temporary, contractual, casual, ad-hoc or daily-wage employee have no right to regular or permanent public employment. The absorption, regularisation or permanent continuance of temporary, contractual, casual, ad-hoc or daily-wage employees appointed/recruited de hors the constitutional scheme of public employment on issuance of directions by court will amount to create another mode of public appointment which is not permissible." 4. The law laid down in Uma Devi's case (supra) has been reiterated in several other subsequent cases by Hon'ble Apex Court. 5. In State of U.P. v. Rekha Rani, (2011) 11 SCC 441 , it has observed as under: "The respondent is only a temporary employee. High Court in exercise of power under Article 226 of Constitution cannot regularise an employee merely because some others had been regularised does not give any right to respondent. An illegality cannot be perpetuated." 6. The Apex Court recently in School Education Department, Chennai v. R. Govindaswamy, (2014) 4 SCC 769 , has reiterated the law as under: "Temporary, ad-hoc or daily wager employee, if not working against a sanctioned post, are not entitled for regularisation even when they had put in long service because they were not duly appointed. The Apex Court recently in School Education Department, Chennai v. R. Govindaswamy, (2014) 4 SCC 769 , has reiterated the law as under: "Temporary, ad-hoc or daily wager employee, if not working against a sanctioned post, are not entitled for regularisation even when they had put in long service because they were not duly appointed. Sympathy and sentiment cannot be valid grounds for regularisation of service in absence of legal right." Learned counsel for the appellant could not point out any illegality in the aforesaid finding arrived at by the learned writ court. Therefore, this appeal lacks merit and is liable to be dismissed. The appeal is accordingly dismissed.