Dhan Raj and Others vs State of U.P. and Others

Sunil Hali, J.—The Petitioners have sought regularisation of their services by invoking provisions of U.P. Regularisation of Group-D Employees Appointment on Daily Wages Rules, 2001 (in short ''Regularisation Rules of 2001''). The Petitioners were appointed on the post of Mali (Group-D employees) in Horticulture Department. The service profile of the Petitioners are given below:

Sl. No.

Name

Year

1.

DhanRaj

1979

2.

BhikariLal

1979

3.

RamaNand

1986

4.

Muneem

1992

5.

Gyan Singh

1992

6.

Ram Nihar

1992

7.

SheoBaran

1985

The Petitioners were working continuously on the post of Mali ever since they were initially appointed except for some intermittent breaks in their services for shorter period of time. Having worked continuously for a long time they are claiming regularisation of their services under aforementioned Regularisation Rules of 2001. The requirement of the aforementioned Rules is that the person should be appointed on or before the year 1991 which date now has been extended up to year 1998. Despite the Rules being in place, the Respondents have not regularised their services till date.

On the other hand, the stand of the Respondents is that the Petitioners are not eligible to be regularised under the aforesaid Regularisation Rules as they are working as casual workers and not on daily wages basis. It is further contended that the Petitioners are not working against the substantive vacancies which clearly debar them from consideration under the Regularisation Rules of 2001. Their engagement was dependent upon the availability of the work and termination at the completion of the said work.

I have heard the learned Counsel for the parties.

No direction can be issued for regularisation of the services of an employee unless his recruitment has been done in a regular manner in terms of the scheme and No. such direction can be issued which would interfere in affairs of the State or its instrumentalities. The Court has time and again held that a temporary, contractual, casual or a daily-wage employee does not have a legal right to be made permanent unless he had been appointed in terms of the relevant rules or in adherence of Articles 14 and 16 of the Constitution of India. However, a direction can be issued in cases where employee continued for a considerable long time uninterruptedly against a sanctioned vacant post. This aspect has been clearly dealt with by a Constitutional Bench of the Apex Court in the case of Secretary, State of Karnataka and Others Vs. Umadevi and Others, . In that case, a Constitution Bench of the Apex Court held that appointments made without following the due process or the rules relating to appointment did not confer any right on the appointees and courts cannot direct their absorption, regularization or re- engagement nor make their service permanent. The High Court in exercise of jurisdiction under Article 226 of the Constitution should not ordinarily issue directions for absorption, regularization, or permanent continuance unless the recruitment had been done in a regular manner, in terms of the constitutional scheme; and that 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, nor lend themselves to be instruments to facilitate the bypassing of the constitutional and statutory mandates. The Court further held that a temporary, contractual, casual or a daily-wage employee does not have a legal right to be made permanent unless he had been appointed in terms of the relevant rules or in adherence of Articles 14 and 16 of the Constitution. The Apex Court however made one exception to the above position in paragraph 53 of the said judgment and the same is extracted below:

One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in State of Mysore and Another Vs. S.V. Narayanappa, and B.N. Nagarajan and Others Vs. State of Karnataka and Others, and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the courts or of tribunals. The question of regularization of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases abovereferred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularize as a one-time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date

Applying principles mentioned in the aforementioned judgment in the present case, it is to be seen that the Petitioners are working as Mali for more-than 15 years in Horticulture Department, even though it is contended that they have intermittent breaks in their services but after every break they have been engaged on the said post. It is not the case of the Respondents that these posts of Mali are not in existence. The Petitioners are continuously working on the said post for more than 15 years and these posts are available in the department. The other aspect of the matter is that the Petitioners are working as casual employee and as such, they are not eligible and entitled to be regularised under the Rules of 2001.

The expression ''daily wager'' and ''casual employee'' connotes different meanings. The daily wager is engaged against a post which is available while a casual employee is engaged on need basis. The distinction between the two is the requirement of job which determine the status of the employee. If an employee is continuously working on a post, it cannot be said that he is a casual employee. It is not the nomenclature which determines the status of an employee but continuous of an employee on a post for such a long period of time. Once it is found on fact that a person though eligible and qualified employee is working on the said post for a long period of time, cannot be said to be casual. He has to be equated with daily wage employees. Consequently he should be regularised on the said post provided he satisfied the other requirements of the Rules of 2001. The Petitioners were appointed in the year 1991 which is the cut-off date under the Rules and as such, they are eligible and entitled to be regularised on the said post.

Reliance has been placed on the judgment of the Apex Court in Colliery reported in 2006 (2) JT SC 1 and Secretary, State of Karnataka and Ors. v. Umadevi and Ors. 2006 (4) JT SC 420 and Workmen of Bhurkunda Collieryt of M/s Central Coal Field (Ltd.) v. The Management of Bhurkunda.

In the judgment of Apex Court in Workmen of Bhurkunda Colliery of M/s Central Coal Field (Ltd.) (Supra), the Apex Court has held that:

if an employee is working as daily wager for a considerable period of time more than 10 years then there will be a presumption that work is there, as such, they are entitled to be considered for regularisation. In that case also the Petitioner No. 1 was working from 1973, Petitioner No. 2 was working from 1979 and Petitioner No. 3 was working from 1980 and the Respondents in spite of the direction issued by this Court with a specific provision not to take into consideration the fact that the Petitioners are not come under the Regularisation Rules of 2001 and as their appointments are as agriculture labour, therefore, they are entitled to claim the regularisation.

Applying the aforesaid principle it would be seen that the Petitioners are working for more than 15 years which is clearly depicted from their service profile, which is mentioned above. The Petitioners cannot be treated as casual employees but they have to be equated with daily wages employees. On the principle that they have worked for considerable time of more than 15 years there is presumption that work is there and they are entitled for regularisation of their services.

In view of the discussion made above, I therefore, allow this writ petition directing the Respondents to consider the claim of the Petitioners for regularisation of their services within a period of two month from the date a certified copy of this order is produced before them.