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2017 DIGILAW 2428 (ALL)

Avinash Chandra v. State of U. P.

2017-10-26

SURYA PRAKASH KESARWANI

body2017
JUDGMENT : SURYA PRAKASH KESARWANI, J. 1. Heard learned counsel for the petitioner and Sri Ajit Singh, learned Additional Advocate General assisted by the learned Additional Chief Standing Counsel for the State-respondents. 2. Undisputedly, the petitioner was engaged on daily wage basis for some time in the year 1988. He filed a Writ Petition No.24941 of 1988 challenging the process of re-engagement of registration clerk on daily wage basis initiated by notice dated 16.11.1988 and to permit the petitioner to continue as registration clerk. Thereafter, he filed a civil Misc. Writ Petition No.30498 of 1991 with the prayer that he should be paid salary equal to the regularly appointed registration clerk. An interim order dated 17.7.1990 was granted in Writ Petition No.24941 of 1988 restraining the respondents from interfering with the functioning of petitioner as registration clerk but it was vacated by order dated 7.12.1994. Consequently, the petitioner was discontinued. By order dated 23.11.2001 the aforesaid writ petition No.24941 of 1988 alongwith writ petition No.30498 of 1991 were decided observing that the petitioner shall be allowed to continue on daily wage basis until regular selections are made and he shall be given opportunity of regularisation after suitably relaxing age as provided in the decision of Hon'ble Supreme Court in Civil Appeal No.750 of 1996 connected with Civil Appeal No.7508 of 1996 and others reported in JT 1996 (5) SC 365, Inspector General of Registration, U.P. and others Vs. Avdesh Kumar and others. 3. The present writ petition has been filed challenging the orders dated 18.3.2014 and 12.9.2013, passed by the respondent no.2 whereby representation of the petitioner has been rejected and he has not been allowed to continue on daily wage basis. 4. In the affidavit the State respondents have taken the stand that the petitioner was considered by the Committee for regularisation under Rule 4(3) of the Regularisation of Daily Wages Appointment of Group 'C' post (outside the purview of U.P. Public Service Commission) Rules, 1998, but he was found to be not eligible/suitable. Consequently, his claim for regularisation was rejected by order dated 24.12.2014. 5. Consequently, his claim for regularisation was rejected by order dated 24.12.2014. 5. The impugned order dated 12.9.2013 is a well considered order passed by the Inspector General Registration, U.P., Lucknow (respondent no.3), whereby the representation of the petitioner for regularisation has been rejected following the law laid down by the Constitution Bench of Hon'ble Supreme Court in the case of Secretary, State of Karnataka and others v. Umadevi and others, JT 2006 (4) SC 420. 6. In the case of Uma Devi (supra) Hon'ble Supreme Court held as under : "34. While answering an objection to the locus standi of the Writ Petitioners in challenging the repeated issue of an ordinance by the Governor of Bihar, the exalted position of rule of law in the scheme of things was emphasized, Chief Justice Bhagwati, speaking on behalf of the Constitution Bench in Dr. D.C. Wadhwa & Ors. Vs. State of Bihar & Ors., ( 1987 (1) S.C.R. 798 ) stated : "The rule of law constitutes the core of our Constitution of India and it is the essence of the rule of law that the exercise of the power by the State whether it be the Legislature or the Executive or any other authority should be within the constitutional limitations and if any practice is adopted by the Executive which is in flagrant and systematic violation of its constitutional limitations, petitioner No. 1 as a member of the public would have sufficient interest to challenge such practice by filing a writ petition and it would be the constitutional duty of this Court to entertain the writ petition and adjudicate upon the validity of such practice." 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 21 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. 35. The concept of 'equal pay for equal work' is different from the concept of conferring permanency on those who have been appointed on ad hoc basis, temporary basis, or based on no process of selection as envisaged by the Rules. This Court has in various decisions applied the principle of equal pay for equal work and has laid down the parameters for the application of that principle. The decisions are rested on the concept of equality enshrined in our Constitution in the light of the directive principles in that behalf. But the acceptance of that principle cannot lead to a position where the court could direct that appointments made without following the due procedure established by law, be deemed permanent or issue directions to treat them as permanent. Doing so, would be negation of the principle of equality of opportunity. The power to make an order as is necessary for doing complete justice in any cause or matter pending before this Court, would not normally be used for giving the go-by to the procedure established by law in the matter of public employment. Take the situation arising in the cases before us from the State of Karnataka. Therein, after the Dharwad decision, the Government had issued repeated directions and mandatory orders that no temporary or ad hoc employment or engagement be given. Some of the authorities and departments had ignored those directions or defied those directions and had continued to give employment, specifically interdicted by the orders issued by the executive. Some of the appointing officers have even been punished for their defiance. It would not be just or proper to pass an order in exercise of jurisdiction under Article 226 or 32 of the Constitution or in exercise of power under Article 142 of the Constitution of India permitting those persons engaged, to be absorbed or to be made permanent, based on their appointments or engagements. Complete justice would be justice according to law and though it would be open to this Court to mould the relief, this Court would not grant a relief which would amount to perpetuating an illegality. 36. Complete justice would be justice according to law and though it would be open to this Court to mould the relief, this Court would not grant a relief which would amount to perpetuating an illegality. 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. 40. It is contended that the State action in not regularizing the employees was not fair within the framework of the rule of law. The arguments based on Articles 14 and 16 of the Constitution are therefore overruled. 40. It is contended that the State action in not regularizing the employees was not fair within the framework of the rule of law. The rule of law compels the State to make appointments as envisaged by the Constitution and in the manner we have indicated earlier. In most of these cases, no doubt, the employees had worked for some length of time but this has also been brought about by the pendency of proceedings in Tribunals and courts initiated at the instance of the employees. Moreover, accepting an argument of this nature would mean that the State would be permitted to perpetuate an illegality in the matter of public employment and that would be a negation of the constitutional scheme adopted by us, the people of India. It is therefore not possible to accept the argument that there must be a direction to make permanent all the persons employed on daily wages. When the court is approached for relief by way of a writ, the court has necessarily to ask itself whether the person before it had any legal right to be enforced. Considered in the light of the very clear constitutional scheme, it cannot be said that the employees have been able to establish a legal right to be made permanent even though they have never been appointed in terms of the relevant rules or in adherence of Articles 14 and 16 of the Constitution. 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. May be at some future point of time, the right to employment can also be brought in under the concept of right to life or even included as a fundamental right. The new statute is perhaps a beginning. As things now stand, the acceptance of such a plea at the instance of the employees before us would lead to the consequence of depriving a large number of other aspirants of an opportunity to compete for the post or employment. Their right to employment, if it is a part of right to life, would stand denuded by the preferring of those who have got in casually or those who have come through the back door. The obligation cast on the State under Article 39(a) of the Constitution of India is to ensure that all citizens equally have the right to adequate means of livelihood. The obligation cast on the State under Article 39(a) of the Constitution of India is to ensure that all citizens equally have the right to adequate means of livelihood. It will be more consistent with that policy if the courts recognize that an appointment to a post in government service or in the service of its instrumentalities, can only be by way of a proper selection in the manner recognized by the relevant legislation in the context of the relevant provisions of the Constitution. In the name of individualizing justice, it is also not possible to shut our eyes to the constitutional scheme and the right of the numerous as against the few who are before the court. The Directive Principles of State Policy have also to be reconciled with the rights available to the citizen under Part III of the Constitution and the obligation of the State to one and all and not to a particular group of citizens. We, therefore, overrule the argument based on Article 21 of the Constitution. 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 Vs. 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. 45. 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. 45. It is also 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." (Emphasis supplied by me) 7. In view of the law laid down by the Constitution Bench of Hon'ble Supreme Court, as afore-quoted, the petitioner has no case at all. The impugned order has been passed in accordance with law. 8. That apart, the question of regularization of similar employees came for consideration before a Division Bench of this Court in Special Appeal No.767 of 2004 (State of U.P. and others v. Raj Kumar Srivastava and others) and other connected appeals which were decided by judgment and order dated 5.10.2017 concluding as under : "From a threadbare discussion of the facts of the cases before us and the legal position in the matter of regularization, we record our conclusion as follows :- (i) None of the daily wagers before us are entitled for consideration for regularization as Registration Clerk in the Stamp and Registration Department, State of U.P., as they do not fulfill the requirement either of the Regularization Rules, 1979 [as per the directions of Khagesh Kumar (supra)] or the Regularization Rules, 1998 (enforced w.e.f. 9.7.1998). (ii) The daily wage Registration Clerks had succeeded in continuing in the Stamp and Registration Department, State of U.P. by misuse of the process of the Court by filing successive writ petitions and special appeals. Their claims were rejected twice and thrice (in most of the cases) and their services were terminated in terms of the Rule 8 of the Rules' 1979, by the Competent Authorities after due consideration. (iii) These daily wagers had succeeded in getting interim orders from the Court and had continued as such but not a single writ petition or special appeal had been decided on merits of their rejection/termination orders. (iii) These daily wagers had succeeded in getting interim orders from the Court and had continued as such but not a single writ petition or special appeal had been decided on merits of their rejection/termination orders. Repeated directions were issued by the Courts to consider their claim without adjudication on merits ignoring the fact that their services were not required in the Registration Department and they could not continue on daily wage after rejection of their claim for regularization as a consequence of Rule 8 of the Rules' 1979. (iv) The direction of the Inspector General of Registration in not holding regular selection for the post of Registration Clerks cannot be said to be in contravention or violation of the directions of the Supreme Court in Khagesh Kumar (supra) as, infact, there was no such positive direction. (v) The learned Single Judge in the judgement and order dated 11.5.2004, could not have taken exception to the decision of the Inspector General of Registration Department/ State of U.P. in not holding regular selection for the post of Registration Clerks as it was exclusively within the domain of the Executive Authority. (vi) The directions of the learned Single Judge dated 11.05.2004, to the respondents to absorb all daily wagers on the post of Registration Clerks by preparation of a seniority list against all existing and future vacancies are simply in contravention of the Statutory Rules. (vii) The judgment and order dated 11.05.2004 passed by the learned Single Judge, under challenge, is a result of misreading and misconstruction of the directions of the Supreme Court in Khagesh Kumar (supra) and cannot be sustained in the eye of law. (viii) The judgement and order dated 27.11.1998 passed by the learned Single Judge is hereby affirmed for the reasoning given herein before. (ix) The entire exercise of regularization undertaken by IG Registration was tainted by the vice of non adherence to the Regularization Rules, 1998 and was per-se illegal. (x) The decision taken by the Cabinet of State Ministers (Mantri Parishad) and the promulgation of the Government Orders dated 8.9.2010 and 13.12.2010, as a result thereof, giving continuance to the daily wagers, who were working on the basis of interim orders of this Court, is in teeth of the pronouncement of the Constitution bench judgement of the Supreme Court in the case of Uma Devi (3). It had even otherwise resulted in overriding the Rules' 1998 framed by the Governor under Article 309 of the Constitution of India, which was not permitted in law. (xi) The daily wage Registration Clerks who were not in employment between two dates i.e. 29.6.1991 and 9.7.1998 in the exigencies of the registration department and were continuing on the strength of the interim orders of the Courts, were not entitled for regularization under the Regularization Rules' 1998. (xii) All the special appeals filed by the State of U.P. and the IG Registration (covered by the 2nd group) are consequently, allowed. The Special appeals and the writ petitions filed by the daily wagers (in the 1st and 3rd group) are, hereby dismissed. Before parting with the judgement, we are constrained to record that the entire exercise of regularization of daily wagers as Registration Clerks in the Stamp and Registration Department, State of U.P., was an effort to extend illegal benefit to the chosen few in order to bring them within the frame work of Regularization Rules 1998. This entire exercise smacks of malafide on the part of the State Government/Inspector General of Registration Department. The public funds have been misused at the hands of the State Authorities. The Principal Secretary, Stamp and Registration, U.P., Lucknow, for the reasons best known to him, did not examine the matter despite directions given by us and acted illegally and recklessly in justifying the regularization of 392 Registration Clerks made in the department. We, therefore, direct the Chief Secretary of the State of U.P. to take up the matter and initiate an enquiry into the illegal exercise of regularization made by the State Officials. The role of the officers of the Registration department including the then IG Registration, U.P. Allahabad shall be inquired and responsibility be fixed upon all those who were sitting at the helm of the affairs and those who were involved in the entire process of regularization. The recovery for misuse of State Exchequer be also initiated against all those guilty, after fixing their responsibility after affording them opportunity to explain. A report may be submitted by the Chief Secretary to the High Court through Registrar General, High Court, Allahabad within a period of four months from the date of receipt of certified copy of this order. The learned Chief Standing Counsel is directed to communicate this decision for necessary compliance. A report may be submitted by the Chief Secretary to the High Court through Registrar General, High Court, Allahabad within a period of four months from the date of receipt of certified copy of this order. The learned Chief Standing Counsel is directed to communicate this decision for necessary compliance. Subject to the above observations and directions, this bunch of Special Appeals and writ petition, is decided finally. No order as to costs." 9. The above discussion clearly reveals that now the law in matters of public employment has been well settled. Unless the appointment is in terms of the relevant rules and after a proper competition amongst qualified persons, the same would not confer any right on the appointee. In case of a contractual appointment, it comes to an end at the end of the contract. If it is an engagement or appointment on daily wage, the same would come to an end when it is discontinued. A temporary employee cannot claim to be made permanent on expiry of the term of appointment. Merely because a temporary employee continued for a period beyond the term of his appointment, he would not be entitled to be absorbed in the regular service or made permanent, merely on the ground of such continuation, if the original appointment was not made following due process or procedure as envisaged by the relevant rules. 10. This Court, while exercising power under Article 226 of the Constitution of India, cannot ordinarily issue direction of absorption, regularisation or permanent continuance unless the recruitment itself is in terms of the rules and the Constitutional Scheme. When a person enters in temporary employment or gets engagement as a contractual, a daily wager or casual worker and the engagement is not based on proper selection as recognised by the relevant rules or procedure, he is aware of the consequences of his appointment. No right can be founded of an employment on daily wager to claim that such employee should be treated at par with the regularly recruited candidate, and be made permanent in employment. 11. No right can be founded of an employment on daily wager to claim that such employee should be treated at par with the regularly recruited candidate, and be made permanent in employment. 11. The relief in the nature of a writ of mandamus prayed by the petitioner to allow him to work on daily wage basis and to consider his case for regularisation, can also not be granted, inasmuch as, the petitioner has completely failed to show that there is any statutory duty cast upon the authority concerned to allow him as prayed and the petitioner being an aggrieved person has a legal right under the Statute to enforce it. 12. Apart from above, the matter of regularisation of daily wager registration clerk has been authoritatively decided by the Division Bench of this Court in the case of Raj Kumar Srivastava and others (supra) and in view thereof the petitioner has no case for grant of the relief as prayed in this writ petition. The relevant conclusion portion of the judgment in the case of Raj Kumar Srivastava and others (supra) has already been reproduced in para-8 above. 13. In view of the above discussions, I do not find any merit in this writ petition. Consequently, the writ petition fails and is hereby dismissed.