Ashok Kalsha and Another vs State of C.G. and Another

Satish K. Agnihotri, J.—The Petitioners, by this petition, seek direction from this Court to the Respondent authorities to regularize services of the Petitioners who have been working on daily wages on the post of "Safai Karmchari" and "Mali" respectively as is evident from Annexure P/1 for the last about 9 years in the Respondent No. 2-Municipal Council, Chirmiri, District Korea.

The case of the Petitioners are that since they have been working for a long period with the Respondent No. 2-Municipal Council, Chirmiri, District Korsa, they deserve to be regularized by the employer.

I have heard learned Counsel appearing for the parties, perused the pleadings and the documents appended thereto. It is evident that the Petitioners have not filed the copy of the appointment order. Indisputably, there was no proper selection by inviting the applications from the eligible candidates by issuing the advertisement. The appointment of the Petitioners itself were illegal and not in accordance with the constitutional scheme of appointment.

The Supreme Court in Secretary, State of Karnataka and Others Vs. Umadevi and Others, , observed as under:

43....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....

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. He accepts the employment with open eyes. It may be true that he is not in a position to bargain - not at arm''s 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 brings at least some succour 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. 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 (sic) one that would enable the jettisorting 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.

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 recognised 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. 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.

48....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....

The observations made in Secretary, State of Karnataka and Others Vs. Umadevi and Others, were quoted with approval in Official Liquidator Vs. Dayanand and Others, . Their Lordships further explained about the rights of the temporary employees and regularization. Para 70 reads as under:

The shift in the Court''s approach became more prominent in A. Umarani v. Coop. Societies, decided by a three-Judge Bench, wherein it was held that the State cannot invoke Article 162 of the Constitution for regularisation of the appointments made in violation of the mandatory statutory provisions.

If the appointment of the Petitioners itself were illegal, the subsequent grant of regular pay scale and regularization does not change the status of this employee. The Supreme Court in Ashok Kumar Sonkar Vs. Union of India (UOI) and Others, observed as under:

It is not a case where appointment was irregular. If an appointment is irregular, the same can be regularized. The court may not take serious note of an irregularity within the meaning of the provisions of the Act. But if an appointment is illegal, it is non est in the eye of law, which renders the appointment to be a nullity.

The Supreme Court in Municipal Corporation, Jabalpur Vs. Om Prakash Dubey, observed as under:

The question which, thus, arises for consideration, would be: Is there any distinction between "irregular appointment" and "illegal appointment"? The distinction between the two terms is apparent. In the event the appointment is made in total disregard of the constitutional scheme as also the recruitment rules framed by the employer, which is State within the meaning of Article 12 of the Constitution of India, the recruitment would be an illegal one; whereas there may be cases where, although, substantial compliance with the constitutional scheme as also the rules has been made, the appointment may be irregular in the sense that some provisions of the rules might not have been strictly adhered to.

Applying the well-settled principles of the law as laid down by the Supreme Court to the facts of the present case, the Petitioners are not entitled to any relief, as the Petitioners were appointed on daily wages basis and, as such, no relief as prayed for to regularize the Petitioners can be granted.

In view of foregoing, the petition is liable to be and is hereby dismissed.