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Gujarat High Court · body

2016 DIGILAW 881 (GUJ)

Darji Chirag Umeshkumar v. State of Gujarat

2016-04-25

J.B.PARDIWALA

body2016
JUDGMENT : J.B. Pardiwala, J. 1. Since the issues raised, in both the captioned writ applications, are more or less the same, those were heard analogously and are being disposed of by this common judgment and order. 2. The Special Civil Application No. 17973 of 2015 is treated as the lead matter. 3. By this writ application under Article 226 of the Constitution of India, the writ applicants serving as the Accountants, Data-Entry-Operators, Peon-cum-Drivers and Computer Analysts on contractual basis have prayed for the following reliefs: "26(A) Your Lordships may be pleased to issue a writ of certiorari or any other appropriate writ, order or direction, declaring the engagement, by the respondent authorities, of the petitioners on fixed monthly pay on contrary basis as opposed to the mandate of the Directive principles contained in Articles 38, 39, 41, 42, 43 and 47 of the Constitution, as also violative of Articles 14, 16 and 21 of the Constitution; (B) Your Lordships may be pleased to issue a writ of mandamus commanding the respondent authorities to absorb the petitioners in the regular establishment on regular pay scale/pay band; (C) Your Lordships may be pleased to issue a writ of certiorari or any other appropriate writ to quash and set aside the impugned Government Resolution dated 10.8.2007 to the extent and in so far as they required the petitioners to undergo the recruitment drill on expiry of their contractual appointment of 11 months, every year; (D) Your Lordships may be pleased to declare the impugned Government Resolution dated 10.8.2007 as bad in law, arbitrary and discriminatory and, thus, violative of Articles 14 and 16 of the Constitution to the extent and in so far as they required the petitioners to undergo the recruitment process for the posts of Accountant; (E) Your Lordships may be pleased to issue a writ of certiorari or any other appropriate writ, order or direction declaring the failure on the part of the respondent authorities in ensuring that the petitioners are paid the minimum wages prevalent in the State as violative of their fundamental right under Articles 21 and 23 of the Constitution; (F) Your Lordships may be pleased to issue a writ of mandamus commanding the respondent authorities to fix the pay of the petitioners at Rs. 9400 with effect from 1.10.2011, as provided in Government Resolution dated 6.10.2011 and pay the arrears with interest at the rate of 12% per annum; (G) Your Lordships may be pleased to issue a writ of mandamus commanding the respondent authorities to fix the pay of the petitioners at Rs. 13,500 with effect from 1.10.2014, as provided in Government Resolution dated 20.10.2014 and pay the arrears with interest at the rate of 12% per annum; (H) Pending admission and final hearing of the present petition, Your Lordships may be pleased to direct the respondent authorities to fix the pay of the petitioners at Rs. 9400 with effect from 1.10.2011, as provided in Government Resolution dated 6.10.2011 and pay the arrears with interest at the rate of 12% per annum; (I) Pending admission and final hearing of the present petition, Your Lordships may be pleased to direct the respondent authorities to fix the pay of the petitioners at Rs. 13,500 with effect from 1.10.2014, as provided in Government Resolution dated 20.10.2014 and pay the arrears with interest at the rate of 12% per annum; (J) Pending final hearing of the present petition, Your Lordships may be pleased to restrain the respondent authorities from terminating the services of the petitioners or from taking any coercive action against them; and (K) Your Lordships be pleased to pass any other and/or further order, as deemed fit in the interest of justice." 4. On behalf of the respondent No. 2, a detailed affidavit-in-reply has been filed inter alia stating as under: "6. I say and submit that before answering the present petition on merits, the deponent herein would first of all like to highlight and give details about the Gujarat Forestry Development Project Phase-2 under which the present petitioners were granted appointment on the different posts, including that of Accountants, Data-Entry-Operators, Computer Analysts, and Peon-cum-Drivers. 7. I say and submit that in the year 2007-2008, Gujarat Forestry Development Project, Phase-2 was established by the State of Gujarat, Forest Department. The financial aid for the said project was given by the Japan Bank for International Cooperation (JBIC) which provided financial and towards the cost of project to the tune of 83.74%. 8. 7. I say and submit that in the year 2007-2008, Gujarat Forestry Development Project, Phase-2 was established by the State of Gujarat, Forest Department. The financial aid for the said project was given by the Japan Bank for International Cooperation (JBIC) which provided financial and towards the cost of project to the tune of 83.74%. 8. I say and submit that the prime project with which the Gujarat Forestry Development Project, Phase-2 (hereinafter referred as "The Project") was established was to restore the degraded forests and improve the livelihood of the local people and to empower, the local people who are dependent upon forest by promoting suitable forest management, including plantation jointly by the people i.e. community in form of Joint Forest Management (JFM) as well as thereby for improving environment and alleviating poverty of the tribal people. 9. I say and submit that the project was established for a specific period of eight years starting from the year 2007-2008 to year 2014-2015. The project activities were to be extended in all 16 Tribal and 03 Non Tribal districts, 13 territorial forest divisions, 01-Wildlife Division, 10 Social Forestry divisions of the Gujarat State, Forest areas is Rajkot. Forest Division for Grass Lands and Kutch as well as Marine National Park (MNP), Jamnagar for mangroves. 10. I say and submit that total cost of this project is around 20,923/- Million Japanese Yen i.e. Rs. 830.28 Crore in terms of Indian currency. Out of total project cost, the Japan Bank for International Cooperation (JBCI) had agreed to finance upto 83.74% of the project cost i.e. Rupees 695.27 Crore. So far as share of the State Government is concerned, the same is 16.26% i.e. Rupees 135 Crore. I say and submit that for the purpose of implementation of the project, the Japan Bank for International Cooperation (JBIC) and Gujarat Forestry Development Department had entered into Minutes of Discussion (MOD) on November 16th, 2006, which was signed by the authorities from the Bank, Principal Secretary for Gujarat Forest Department, Principal Chief Conservator of Forests for Ministry of Environment and Forests, Deputy Director Division: 3, Sector Strategy Development Department Japan, Inspector General of Forests, Social Development Expert, Japan. A copy of the Minutes of Discussion (MOD) is annexed hereto and marked as Annexure R-1. A copy of the Minutes of Discussion (MOD) is annexed hereto and marked as Annexure R-1. 11 I say and submit that scope and the nature of activities to be conducted in the project were as follows:- a) Forest Development Management. b) Social Forestry Development Management. c) Wildlife Conservation and Development. d) Community/Tribal Development. e) Support Activities including. f) Preparatory Works. g) Strengthening of Gujarat Forest Department (GFD) h) Capacity building of people's Organization. i) Forest Survey and Research. j) Communication and Orientation. k) Monitoring and Evaluation. l) Phase out Works. m) Consultancy services. The attachment annexed along with Minutes of Discussion would also reflect the scope ambit of work to be carried out under the project. 12. I say and submit that the authorities were required to appoint requisite staff for implementation and effective operation of project. I say and submit that under the Minutes of Discussion (MOD) at page No. 35 of the MOD, the provisions for institutional arrangement of Gujarat Forest Department (GFD) was provided which gave details with respect to the staffing pattern to be followed for the implementation of the project. The expected number and designation of the additional posts for the implementation were to be given are as follows : Office Designation Number of post Project Management Unit (PMU) Addl. Principal Chief Conservator of Forests 1 Chief Conservator of Forests 2 Conservator of Forests 4 Deputy Conservator of Forests 4 Ministerial 5 Division Office Assistant Conservator of Forests 25 Range Forest Officer equivalent 25 Forester 25 Surveyor 25 Ministerial 100 Van Chetna Kendra (VCK) Forester 12 Range Office Forester of equivalent 210 Accountants (Ministerial) 210 A copy of the organizational chart for implementation of the project is also attached herewith and marked as Annexure R-2 for the kind perusal of this Hon'ble Court. 13. I say and submit that the Forest and Environment Department, State of Gujarat had issued Government Resolution dated 10.08.2007 for giving administrative approval with respect to appointments to be given under the Project. A copy of the Government Resolution dated 10.08.2007 is annexed hereto and marked as Annexure R-3. 14. I say and submit that the chart appended to the said Government Resolution would provide details with respect to arrangement to be made for appointments on various posts under the project for the effective administration. I say and submit that these appointments were to be made on contractual basis. 14. I say and submit that the chart appended to the said Government Resolution would provide details with respect to arrangement to be made for appointments on various posts under the project for the effective administration. I say and submit that these appointments were to be made on contractual basis. I say and submit that the Forest Department, State Government had accordingly issued an advertisement in the local newspaper on 03.02.2008 for filling-up the post of Accountants and Data Entry Operators in the 13 districts on the contractual basis for a period of Eleven Months. The concerned candidates who were fulfilling the qualifications, prescribed under the advertisement, were called for the interview and after the same, they were granted appointments to the post of Data-Entry-Operators as well as Accountants. Copies of the advertisement issued in the newspaper is annexed hereto and marked as Annexure R-4. I say and submit that for the appointments for the year 2014-15, written examination was taken by the authorities, after which viva-voce was also taken. The selected candidates were granted appointments. Copies of the appointment orders in one case each of the Data Entry Operator as well as Accountant is annexed hereto and marked as Annexure-R-5 (colly). 15. I say and submit that appointment letter which was allotted to one such candidate's show causes, the terms and conditions on which such appointment were given. The conditions under the appointment order clearly stipulates that the appointment is for the period of eleven months and was on contract. Therefore, there was no doubt with respect to the nature of appointment of the petitioners. 16. I say and submit that the appointment for the posts of Accountants and Data Entry Operators was made mainly for the purpose of effective implementation of the project. Therefore, it cannot be permissible for the petitioners to claim the benefit for regularization when the appointment was for specific purpose under a project. The appointments which are made are purely contractual in nature and the same shall in any case, come to an end upon expiry of term of contract. Therefore, there cannot be any question of granting benefits of regularization to the present petitioners who were appointed only under this specific project. The appointments which are made are purely contractual in nature and the same shall in any case, come to an end upon expiry of term of contract. Therefore, there cannot be any question of granting benefits of regularization to the present petitioners who were appointed only under this specific project. I further say and submit that the conditions of service stipulated in the appointment order itself clearly provides that the concerned appointee shall not be granted any right with respect to absorption in any departments of the State Government. The petitioners have accepted the appointment with open eyes adhering to all the terms and conditions. 17. I say and submit that the life of the project was initially up to the year 2014-2015. Since, there were savings in form of Saving Utilization Plans (SUP) to the tune of Rs. 179.50 Crores, the project was extended by the authority which required them to continue in project till the year 2016-2017. Hence, in any case, the project was to come to an end in the year 2014-2015. It is only on account of Saving Utilization Plan (SUP), the authority was required to extend the period of the project till 2016-2017. 18. I say and submit that so far as the aspect with respect to payment of the minimum wages to the petitioners is concerned, the posts under which the petitioners are serving is first of all not a post sanctioned by the State Government or by Central Government and therefore, the provisions of Minimum wages Act would not apply in the case of the present petitioners. However, the State Government is conscious of the fact that the authorities are required to give salaries as per minimum wages applicable under the Act. Therefore, the authority at the time of initial appointment granted fixed pay for various posts as follows: Sr. No. Designation / Post Fixed Salary 1 Computer Analyst Rs. 6000/- 2 Accountant Rs. 5000/- 3 Data Entry Operator Rs. 4000/- 4 Peon-cum-Driver Rs. 4000/- I say and submit that subsequently these wages were increased by the State Government by way of Government Resolution dated 19.07.2013, wherein fixed pay was improved and granted for different posts as follows: Sr. No. Designation / Post Fixed Salary 1 Computer Analyst Rs. 8000/- 2 Accountant Rs. 7000/- 3 Data Entry Operator Rs. 6000/- 4 Peon-cum-Driver Rs. 4000/- I say and submit that subsequently these wages were increased by the State Government by way of Government Resolution dated 19.07.2013, wherein fixed pay was improved and granted for different posts as follows: Sr. No. Designation / Post Fixed Salary 1 Computer Analyst Rs. 8000/- 2 Accountant Rs. 7000/- 3 Data Entry Operator Rs. 6000/- 4 Peon-cum-Driver Rs. 6000/- Therefore, the authorities are already praying much above the minimum wages applicable even otherwise. Annexed herewith and marked herewith at Annexure-R-6 is a copy of chart showing comparison with respect to the minimum daily wages rates applicable to the labours time to time, from the year 2008 till 2015 in different categories i.e. skilled, semi skilled and unskilled labours. A bare perusal to the same would also reflect that the petitioners were paid much more than the minimum wages, to be paid to the semi skilled and unskilled labours baring few exceptional instances. 19. I say and submit that the petitioners have placed reliance upon the order dated 26.08.2010 passed by the Hon'ble Court in Special Civil Application No. 2492 of 2009 as well as the Government Resolution dated 29.04.2010 issued by the State Government revising the fixed wages payable to its employees by taking into consideration the pay revision of regular employees. I say and submit that the Government Resolution dated 29.04.2010 would not be applicable in the case of the petitioners as petitioners cannot be first of all be termed to the employees of the State Government and therefore they cannot seek parity in terms of pay and service conditions at par with the Government employees. Secondly, the Government Resolution dated 24.04.2010 was passed by the Finance Department qua those employees who were appointed by direct recruitment on fixed pay under Class: III and Class: IV categories. The petitioners as reiterated are not employees of State Government and therefore cannot claim any such benefits. 20. I say and submit that the petitioners cannot claim any benefits so far as regularization of their appointment is concerned. First of all, appointments are made on account of project which as a definite life span upto the year 2016-2017. Moreover, the appointments are not made against any regular sanctioned post. 20. I say and submit that the petitioners cannot claim any benefits so far as regularization of their appointment is concerned. First of all, appointments are made on account of project which as a definite life span upto the year 2016-2017. Moreover, the appointments are not made against any regular sanctioned post. Therefore, as and when the project would come to an end, the services of the petitioners would automatically come to an end as the same are made only for the effective implementation of the project. Therefore, the petitioners being fully aware about the nature of their contractual appointment have accepted appointment, therefore, cannot have any legitimate expectation with respect to such appointments." 5. Having heard the learned counsel appearing for the parties and having considered the materials on record, it appears that the petitioners have been appointed on contractual basis for the project called the Gujarat Forestry Development Project Phase - II. This project started in the year 2007, and as submitted by the learned Additional Advocate General, it is likely to come to an end in the year 2017. 6. The principal argument of the learned counsel appearing for the writ applicants is that as the writ applicants have been continued in service, although on contractual basis past couple of years, they should be regularized in service. 7. The second argument of the learned counsel appearing for the writ applicants is that even if the writ applicants are not regularized in service, at least, all of a sudden, the services of the writ applicants should not be terminated, and upon the expiry of the period of every 11 months, they should not be directed to undergo a fresh recruitment. 8. The learned counsel appearing for the writ applicants submitted that the writ applicants are not paid the minimum wages. 9. It is difficult for this Court to issue a writ of regularization in service having regard to the nature of employment and the terms and conditions. In this regard, reliance has been placed on a decision of the Supreme Court in the case of Surendra Prasad Tewari v. Uttar Pradesh Rajya Krishi Utpadan Mandi Parishad [ (2006) 7 SCC 684 ]. In the said decision, the Supreme Court observed in paras 17 to 39 as under: "17. In this regard, reliance has been placed on a decision of the Supreme Court in the case of Surendra Prasad Tewari v. Uttar Pradesh Rajya Krishi Utpadan Mandi Parishad [ (2006) 7 SCC 684 ]. In the said decision, the Supreme Court observed in paras 17 to 39 as under: "17. On careful analysis of the appointment orders, it is revealed that the appellant's contractual appointment was for a fixed term for carrying out the work of a specified project. The appellant was engaged from time to time to work on different projects and the last contract was dated 14.10.1991 and thereafter, the appellant was not appointed. The appellant's appointment was purely a fixed term appointment. By no stretch of imagination it could be said that the appointment of the appellant was made while following the procedure as laid down under Articles 14 and 16 of the Constitution. A three-Judge Bench of this Court in Delhi Development Horticulture Employees' Union v. Delhi Administration, Delhi and Others reported in (1992) 4 SCC 99 , observed as under: "The above figures show that if the resources used for the Jawahar Rozgar Yojna were in their entirety to be used for providing full employment throughout the year, they would have given employment only to a small percentage of the population in need of income, the remaining vast majority being left with no income whatsoever. No fault could, therefore, be found with the limited object of the scheme given the limited resources at the disposal of the State. Those employed under the scheme, therefore, could not ask for more than what the scheme intended to give them. To get an employment under such scheme and to claim on the basis of the said employment, a right to regularization, is to frustrate the scheme itself. No court can be a party to such exercise. It is wrong to approach the problems of those employed under such schemes with a view to providing them with full employment and guaranteeing equal pay for equal work. These concepts, in the context of such schemes are both unwarranted and misplaced. They will do more harm than good by depriving the many of the little income that they may get to keep them from starvation. They would benefit a few at the cost of the many starving poor for whom the schemes are meant. These concepts, in the context of such schemes are both unwarranted and misplaced. They will do more harm than good by depriving the many of the little income that they may get to keep them from starvation. They would benefit a few at the cost of the many starving poor for whom the schemes are meant. That would also force the State to wind up the existing schemes and forbid them from introducing the new ones, for want of resources. This is not to say that the problems of the unemployed deserve no consideration or sympathy. This is only to emphasise that even among the unemployed a distinction exists between those who live below and above the poverty line, those in need of partial and those in need of full employment, the educated and uneducated, the rural and urban unemployed etc." 18. In State of Himachal Pradesh, through the Secretary, Agriculture to the Govt. of Himachal Pradesh v. Nodha Ram and Others reported in 1998 SCC (Lands) 478 : AIR 1997 SC 1445 , in regard to the status of the temporary project employees employed in the Government project, the Court held as under: "It is seen that when the project is completed and closed due to non-availability of funds, the employees have to go along with its closure. The High Court was not right in giving the direction to regularize them or to continue them in other places. No vested right is created in temporary employment. Directions cannot be given to regularize their services in the absence of any existing vacancies nor can directions be given to the State to create posts in a non-existent establishment. The Court would adopt pragmatic approach in giving directions. The directions would amount to creating of posts and continuing them despite non-availability of the work. We are of the considered view that the directions issued by the High Court are absolutely illegal warranting our interference. The order of the High Court is, therefore, set aside." 19. The ratio of this case squarely applies to the facts of this appeal. 20. In Karnataka State Private College Stop-Gap Lecturers Association etc. v. State of Karnataka and Others reported in (1992) 2 SCC 29 , the Court held as under: ".. The order of the High Court is, therefore, set aside." 19. The ratio of this case squarely applies to the facts of this appeal. 20. In Karnataka State Private College Stop-Gap Lecturers Association etc. v. State of Karnataka and Others reported in (1992) 2 SCC 29 , the Court held as under: ".. A temporary or ad hoc employee may not have a claim to become permanent without facing selection or being absorbed in accordance with rules but no discrimination can be made for same job on basis of method of recruitment. Such injustice is abhorrent to the constitutional scheme." 21. The controversy involved in this case is no longer res integra. 22. A Constitution Bench of this Court in the case of Secretary, State of Karnataka and Others v. Umadevi (3) and Others, reported in (2006) 4 SCC 1 has comprehensively dealt with the issues involved in this case. The Constitution Bench has observed as follows: "2. Public employment in a sovereign socialist secular democratic republic, has to be as set down by the Constitution and the laws made thereunder. Our constitutional scheme envisages employment by the Government and its instrumentalities on the basis of a procedure established in that behalf. Equality of opportunity is the hallmark, and the Constitution has provided also for affirmative action to ensure that unequals are not treated as equals. Thus, any public employment has to be in terms of the constitutional scheme. 4. But, sometimes this process is not adhered to and the Constitutional scheme of public employment is bypassed. The Union, the States, their departments and instrumentalities have resorted to irregular appointments, especially in the lower rungs of the service, without reference to the duty to ensure a proper appointment procedure through the Public Service Commissions or otherwise as per the rules adopted and to permit these irregular appointees or those appointed on contract or on daily wages, to continue year after year, thus, keeping out those who are qualified to apply for the post concerned and depriving them of an opportunity to compete for the post. It has also led to persons who get employed, without the following of a regular procedure or even through the backdoor or on daily wages, approaching the courts, seeking directions to make them permanent in their posts and to prevent regular recruitment to the posts concerned. 6. It has also led to persons who get employed, without the following of a regular procedure or even through the backdoor or on daily wages, approaching the courts, seeking directions to make them permanent in their posts and to prevent regular recruitment to the posts concerned. 6. The power of a State as an employer is more limited than that of a private employer inasmuch as it is subjected to constitutional limitations and cannot be exercised arbitrarily (See: Basu's Shorter Constitution of India). Article 309 of the Constitution gives the Government the power to frame rules for the purpose of laying down the conditions of service and recruitment of persons to be appointed to public services and posts in connection with the affairs of the Union or any of the States. That article contemplates the drawing up of a procedure and rules to regulate the recruitment and regulate the service conditions of appointees appointed to public posts. It is well acknowledged that because of this, the entire process of recruitment for services is controlled by detailed procedures which specify the necessary qualifications, the mode of appointment, etc. If rules have been made under Article309 of the Constitution, then the Government can make appointments only in accordance with the rules. The State is meant to be a model employer. The Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959 was enacted to ensure equal opportunity for employment seekers. Though this Act may not oblige an employer to employ only those persons who have been sponsored by employment exchanges, it places an obligation on the employer to notify the vacancies that may arise in the various departments and for filling up of those vacancies, based on a procedure. Normally, statutory rules are framed under the authority of law governing employment. It is recognized that no government order, notification or circular can be substituted for the statutory rules framed under the authority of law. This is because, following any other course could be disastrous inasmuch as it will deprive the security of tenure and the right of equality conferred on civil servants under the constitutional scheme. It may even amount to negating the accepted service jurisprudence. Therefore, when statutory rules are framed under Article 309 of the Constitution which are exhaustive, the only fair means to adopt is to make appointments based on the rules so framed." 23. It may even amount to negating the accepted service jurisprudence. Therefore, when statutory rules are framed under Article 309 of the Constitution which are exhaustive, the only fair means to adopt is to make appointments based on the rules so framed." 23. In the above case, this Court, in para 11, further observed as under: "11. In addition to the equality clause represented by Article 14 of the Constitution, Article 16 has specifically provided for equality of opportunity in matters of public employment. Buttressing these fundamental rights, Article309 provides that subject to the provisions of the Constitution, Acts of the legislature may regulate the recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or of a State. In view of the interpretation placed on Article 12 of the Constitution by this Court, obviously, these principles also govern the instrumentalities that come within the purview of Article 12 of the Constitution. With a view to make the procedure for selection fair, the Constitution by Article 315 has also created a Public Service Commission for the Union and Public Service Commissions for the States. Article 320 deals with the functions of the Public Service Commissions and mandates consultation with the Commission on all matters relating to methods of recruitment to civil services and for civil posts and other related matters. As a part of the affirmative action recognized by Article 16 of the Constitution, Article 335provides for special consideration in the matter of claims of the members of the Scheduled Castes and Scheduled Tribes for employment. 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. The Constitution does not envisage any employment outside this constitutional scheme and without following the requirements set down therein." 24. This Court, in the aforesaid case, also discussed the case of Indra Sawhney and Others v. Union of India and Others reported in 1992 Supp (3) SCC 217. It is observed in this case as under: "644. The Constitution does not envisage any employment outside this constitutional scheme and without following the requirements set down therein." 24. This Court, in the aforesaid case, also discussed the case of Indra Sawhney and Others v. Union of India and Others reported in 1992 Supp (3) SCC 217. It is observed in this case as under: "644. The significance attached by the Founding Fathers to the right to equality is evident not only from the fact that they employed both the expressions 'equality before the law' and 'equal protection of the laws' in Article 14 but proceeded further to state the same rule in positive and affirmative terms in Articles 15 to 18. 645. Inasmuch as public employment always gave a certain status and power it has always been the repository of State power besides the means of livelihood, special care was taken to declare equality of opportunity in the matter of public employment by Article 16. Clause (1), expressly declares that in the matter of public employment or appointment to any office under the State, citizens of this country shall have equal opportunity while clause (2) declares that no citizen shall be discriminated in the said matter on the grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them. At the same time, care was taken to declare in clause (4) that nothing in the said Article shall prevent the State from making any provision for reservation of appointments or posts in favour of any backward class of citizens which in the opinion of the State, is not adequately represented in the services under the State." 25. These binding decisions are clear imperatives that adherence to Articles 14 and 16 of the Constitution is a must in the process of public employment. 26. The Constitution Bench in Umadevi's case (supra) has observed that adherence to the rule of equality in public employment is a basic feature of our Constitution. It was observed as under: "43. These binding decisions are clear imperatives that adherence to Articles 14 and 16 of the Constitution is a must in the process of public employment. 26. The Constitution Bench in Umadevi's case (supra) has observed that adherence to the rule of equality in public employment is a basic feature of our Constitution. It was observed as under: "43. Thus, it is clear that adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution, a court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution. Therefore, consistent with the scheme for public employment, this Court while laying down the law, has necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee. 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. The High Courts acting under Article226 of the Constitution, 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. The High Courts acting under Article226 of the Constitution, 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 the 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." 27. In the instant case, the appellant has continued in service for 14 years because of the interim order granted by the High Court on 15.9.1992. In the aforesaid case, the Constitution Bench has observed that merely because an employee had continued under cover of an order of the court, which the court described as "litigious employment", he would not be entitled to any right to be absorbed or made permanent in the service. In the instant case, the appellant submitted that he has been continued in service for 14 years and is entitled for regularization. This aspect of the matter has also been specifically dealt with by the said Constitution Bench in para 45 of the judgment and it was observed as under: "45. While directing that appointments, temporary or casual, be regularized or made permanent, the courts are swayed by the fact that the person concerned 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. 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 open eyes. 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..." 28. An argument was made before the Constitution Bench that the State action in not regularizing the employees was not fair within the framework of the rule of law. The Court observed that if the appointments, which have not been made according to the constitutional scheme, are regularized, that would amount to perpetuate an illegality in the matter of public employment and that would be a negation of the constitutional scheme adopted by the people of this country. 29. Admittedly, the appellant has not been appointed in terms of the relevant rules or in adherence to Articles 14 and 16 of the Constitution. 30. In Umadevi's case (supra), this Court has also dealt with another aspect of the matter and observed as under: "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 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 cases concerned, in consultation with the Public Service Commission." 31. 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 cases concerned, in consultation with the Public Service Commission." 31. The ratio of the aforementioned judgment is that the courts cannot encourage appointments which are made outside the constitutional scheme and it is improper for the courts to give any direction for regularization of the person who has not been appointed by following the procedure laid down under Articles 14, 16 and 309 of the Constitution. 32. Recently, this Court again reiterated the same principle in the case of Haryana State Agricultural Marketing Board v. Subhash Chand and Another, reported in (2006) 2 SCC 794 . In this case also, the employees were appointed on contract basis. The Court held as under: "It is the contention of the appellant that the respondent was appointed during the 'wheat season' or 'paddy season'. It is also not in dispute that the appellant is a statutory body constituted under the Punjab and Haryana Agriculture Produce Marketing Board Act. In terms of the provisions of the said Act, indisputably, regulations are framed by the Board laying down the terms and conditions of services of the employees working in the Market Committees. A bare perusal of the offer of appointment clearly goes to show that the appointments were made on contract basis. It was not a case where a workman was continuously appointed with artificial gap of 1 day only. Indisputably, the respondent had been re-employed after termination of his services on contract basis after a considerable period(s)." 33. In a recent judgment in National Fertilizers Ltd. and Others v. Somvir Singh reported in (2006) 5 SCC 493 , this Court had an occasion to examine the matter after pronouncement of the aforementioned judgment by the Constitution Bench. The Court in this case has laid down that it is now trite law that "State" within the meaning of Article 12 of the Constitution is bound to comply with the constitutional requirements as adumbrated in Articles 14 and 16 thereof. When the Recruitment Rules are made, the employer would be bound to comply with the same. Any appointment in violation of such Rules would render them as nullities. When the Recruitment Rules are made, the employer would be bound to comply with the same. Any appointment in violation of such Rules would render them as nullities. It is also well settled that no recruitment should be permitted to be made through back door. In National Fertilizers Ltd. (supra), this Court referred to the decision in Union Public Service Commission v. Girish Jayanti Lal Vaghela and Others, reported in (2006) 2 SCC 482 , wherein the Court had observed as under: "The appointment to any post under the State can only be made after a proper advertisement has been made inviting applications from eligible candidates and holding of selection by a body of experts or a specially constituted committee whose members are fair and impartial through a written examination or interview or some other rational criteria for judging the inter se merit of candidates who have applied in response to the advertisement made. A regular appointment to a post under the State or Union cannot be made without issuing advertisement in the prescribed manner which may in some cases include inviting applications from the employment exchange where eligible candidates get their names registered. Any regular appointment made on a post under the State or Union without issuing advertisement inviting applications from eligible candidates and without holding a proper selection where all eligible candidates get a fair chance to compete would violate the guarantee enshrined under Article 16 of the Constitution." 34. In Banarsidas and Others v. State of U.P. and Others [ AIR 1956 SC 520 ], a Constitution Bench of this Court had an occasion to deal with the scope of Article 16 of the Constitution. The Court laid down that Article 16 of the Constitution is an instance of the application of the general rule of equality laid down in Article 14 with special reference to the opportunity for appointment and employment under the Government. 35. We are able to discern the same ratio from the judgment of another Constitution Bench of this Court in General Manager, Southern Railway and Another v. Rangachari [AIR 1962 SC 36]. 36. Equal opportunity is the basic feature of our Constitution. Public employment is repository of the State power. Certain status and powers emanate from public employment. 37. 35. We are able to discern the same ratio from the judgment of another Constitution Bench of this Court in General Manager, Southern Railway and Another v. Rangachari [AIR 1962 SC 36]. 36. Equal opportunity is the basic feature of our Constitution. Public employment is repository of the State power. Certain status and powers emanate from public employment. 37. H.M. Seervai, in his celebrated book "Constitutional Law of India" has mentioned that in fact the principle of recruitment by open competition was first applied in India and then applied in England. 38. Our constitutional scheme clearly envisages equality of opportunity in public employment. The Founding Fathers of the Constitution intended that no one should be denied opportunity of being considered for public employment on the ground of sex, caste, place of birth, residence and religion. This part of the constitutional scheme clearly reflects strong desire and constitutional philosophy to implement the principle of equality in the true sense in the matter of public employment. 39. In view of the clear and unambiguous constitutional scheme, the courts cannot countenance appointments to public office which have been made against the constitutional scheme. In the backdrop of constitutional philosophy, it would be improper for the courts to give directions for regularization of services of the person who is working either as daily-wager, ad hoc employee, probationer, temporary or contractual employee, not appointed following the procedure laid down under Articles14, 16 and 309 of the Constitution. In our constitutional scheme, there is no room for back door entry in the matter of public employment." 10. In the case of Delhi Development Horticulture Employees Union v. Delhi Administration [ 1992 (4) SCC 99 ] relied upon by the learned Additional Advocate General, the Supreme Court observed in paras 13, 14 and 15 as under: "13. There is no doubt that broadly interpreted and as a necessary logical corollary, right to life would include the right to livelihood and, therefore, right to work. It is for this reason that this Court in Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180 , while considering the consequences of eviction of the pavement dwellers had pointed out that in that case the eviction not merely resulted in deprivation of shelter but also deprivation of livelihood inasmuch as the pavement dwellers were employed in the vicinity of their dwellings. The Court had therefore, emphasised that the problem of eviction of the pavement dwellers had to be viewed also in that context. This was, however, in the context of Article 21 which seeks to protect persons against the deprivation of their life except according to procedure established by law. This country has so far not found it feasible to incorporate the right to livelihood as a fundamental right in the Constitution. This is because the country has so far not attained the capacity to guarantee it, and not because it considers it any the less fundamental to life. Advisedly, therefore, it has been placed in the Chapter on Directive Principles Article 41 of which enjoins upon, the State to make effective provision for securing the same "within the limits of its economic capacity and development". Thus even while giving the direction to the State to ensure the right to work, the Constitution makers thought it prudent not to do so without qualifying it. 14. Viewed in the context of the facts of the present case it is apparent that the schemes under which the petitioners were given employment have been evolved to provide income for those who are below the poverty line and particularly during the periods when they are without any source of livelihood and, therefore, without any income whatsoever. The schemes were further meant for the rural poor, for the object of the schemes was to start tackling the problem of poverty from that end. The object was not to provide the right to work as such even to the rural poor - much less to the unemployed in general. As has been pointed out by the Union of India in their additional affidavit, in 1987-88, 33 per cent of the total rural population was below the poverty line. This meant about 35 million families. To eliminate poverty and to generate full employment 2500-3000 million mandays of work in a year was necessary. As against that, the Jawahar Rozgar Yojna could provide only 870 million mandays of employment on intermittent basis in neighbourhood projects. Within the available resources of Rs. 2600 crores, in all 3.10 million people Alone could be provided with permanent employment, if they were to be provided work for 273 days in a year on minimum wages. As against that, the Jawahar Rozgar Yojna could provide only 870 million mandays of employment on intermittent basis in neighbourhood projects. Within the available resources of Rs. 2600 crores, in all 3.10 million people Alone could be provided with permanent employment, if they were to be provided work for 273 days in a year on minimum wages. However, under the scheme meant for providing work for only 80-90 days work could be provided to 9.30 million people. The above figures show that if the resources used for the Jawahar Rozgar Yojna were in their entirety to be used for providing full employment throughout the year, they would have given employment only to a small percentage of the population in need of income, the remaining vast majority being left with no income whatsoever. No fault could, therefore, be found with the limited object of the scheme given the limited resources at the disposal of the State. Those employed under the scheme, therefore, could not ask for more than what the scheme intended to give them. To get an employment under such scheme and to claim on the basis of the said employment, a right to regularisation is to frustrate the scheme itself. No Court can be a party to such exercise. It is wrong to approach the problems of those employed under such schemes with a view to providing them with full employment and guaranteeing equal pay for equal work. These concepts, in the context of such schemes are both unwarranted and misplaced. They will do more harm than good by depriving the many of the little income that they may get to keep them from starvation. They would benefit a few at the cost of the many starving poor for whom the schemes are meant. That would also force the State to wind up the existing schemes and forbid them from introducing the new ones, for want of resources. This is not to say that the problems of the un-employed deserve no consideration or sympathy. This is only to emphasise that even among the unemployed a distinction exists between those who live below and above the poverty line, those in need of partial and those in need of full employment, the educated and uneducated, the rural and urban unemployed etc. 15. This is only to emphasise that even among the unemployed a distinction exists between those who live below and above the poverty line, those in need of partial and those in need of full employment, the educated and uneducated, the rural and urban unemployed etc. 15. Apart from the fact that the petitioners cannot be directed to be regularised for the reasons given above, we may take note of the pernicious consequences to which the direction for regularisation of workmen on the only ground that they have put in work for, 240 or more days, has been leading. Although there is Employment Exchange Act which requires recruitment on the basis of registration in the Employment Exchange, it has become a common practice to ignore the Employment Exchange and the persons registered in the Employment Exchanges, and to employ and get employed directly those who are either not registered with the Employment Exchange or who though registered are lower in the long waiting list in the Employment Register. The Courts can take judicial notice of the fact that such employment is sought and given directly for various illegal consideration including money. The employment is given first for temporary periods with technical breaks to circumvent the relevant rules, and is continued for 240 or more days with a view to give the benefit of regularisation knowing the judicial trend that those who have completed 240 or more days are directed to be automatically regularised. A good deal of illegal employment market has developed resulting in a new source of corruption and frustration of those who are waiting at the Employment Exchanges for years. Not all those who gain such back-door entry in the employment are in need of the particular jobs. Though already employed elsewhere, they join the jobs for better and secured prospects. That is why most of the cases which come to the courts are of employment in Government Departments, Public Undertakings or Agencies. Ultimately it is the people who bear the heavy burden of the surplus labour. Though already employed elsewhere, they join the jobs for better and secured prospects. That is why most of the cases which come to the courts are of employment in Government Departments, Public Undertakings or Agencies. Ultimately it is the people who bear the heavy burden of the surplus labour. The other equally injurious effect of indiscriminate regularisation has been that many of the agencies have stopped undertaking casual or temporary works though they are urgent and essential for fear that if those who are employed on such works are required to continued for 240 or more days have to the absorbed as regular employees although the works are time-bound and there is no need of the workmen beyond the completion of the works undertaken. The public interests are thus jeopardised on both counts." 11. The learned counsel appearing for the writ applicants have relied upon the judgment and order rendered by this Court dated 15th February, 2016 in the Special Civil Application No. 14475 of 2015 and Special Civil Application No. 1595 of 2015 decided on 5th November, 2015. 12. The learned counsel appearing for the writ applicants have also relied upon the following judgments: (1) Mohd. Abdul Kadir and Ors. v. Director General of Police [ 2009 (6) SCC 611 ] paras 16 to 18; (2) Ajay Ghatole and Ors. v. State of Maharashtra [ 2014 (6) Mh.L.J. 458 ] paras 28 and 30; (3) Rajendra Kamble v. Government of Maharashtra [2012 (4) Mh. L.J. 505] paras 13 and 15; (4) Pradeep Navinbhai Patel v. State of Gujarat [ 2014 (2) GLH 501 ] paras 27, 32, 33; (5) Pratikgiri Rameshgiri Goswamy v. State of Gujarat paras 8(20), 8 (27), 8(32), 9(7), 10; (6) Secretary, State of Karnataka and others v. Umadevi and others [ (2006) 4 SCC 1 ] paras 45 to 49. 13. I expect the authority to at least ensure the following: (1) The payment of minimum wages in accordance with the Government Resolutions issued from time to time and two decisions of this Court referred to above; (2) Since the writ applicants have continued to work in the said project past couple of years, they may be continued at least till the project is on. At this stage, Mr. Sharma, the learned Assistant Government Pleader appearing for State respondent pointed out that at times, the requirement may not be there. At this stage, Mr. Sharma, the learned Assistant Government Pleader appearing for State respondent pointed out that at times, the requirement may not be there. In such circumstances, at least, an opportunity be given to the writ applicants before they are abruptly terminated from service. (3) If the writ applicants have fulfilling the eligibility criteria, otherwise, then there is no point in asking them to undergo the recruitment upon expiry of every months. 14. With the above, both these writ applications are disposed of. Direct service is permitted. The interim relief earlier granted stands vacated forthwith.