Dhirendra Kumar and Others vs State of U.P. and Others

Sudhir Agarwal, J.—Heard Sri S. K. Tiwari for the Petitioner and learned standing counsel for the Respondents.

Counter affidavit and rejoinder affidavit have already been exchanged and therefore with the consent of the learned Counsel for the parties this writ petition has been heard and finally decided under the rules of the Court.

The case of the Petitioners is that they were employed as Belder/Chowkidar and Mate for construction and maintenance of National Highway in Public Works Department of U.P. in the year 1990-1992. They are working without any break and performing the same job and responsibilities as that of regular employee. The office of the Executive Engineer, P.W.D. Lucknow, issued an order on 30.4.1996 that such daily wage employees who were engaged after 1990 shall be discontinued, pursuant whereto, the Petitioners were seized to work w.e.f. 1.5.1996 where against they represented vide representation dated 10.5.1996 (Annexure-2 to the writ petition) to the Chief Engineer, Lucknow but no action has been taken by him. It is further stated that job security is the constitutional philosophy and the Petitioners are entitled for continuance in service, regularization and regular pay and other emoluments as payable to regular employees.

The Respondents in the counter affidavit have contested the writ petition stating that as per the exigency of the work the Petitioners were engaged as Beldar, Chowkidar and Mate for maintenance and construction of National Highway Nos. 25 and 28 and the date of engagement have been stated in para 3 of the counter affidavit. The Petitioners were engaged for execution of work purely on temporary muster roll as per the requirement of work and no appointment letter was ever issued to the Petitioners. They were also neither appointed against any substantive post nor after following the procedure prescribed for regular appointment. It is also stated that as and when the work and funds were available, the Petitioners were engaged and when there was no work or fund, the Petitioners'' services were not required and they were dispensed with. The engagement of the Petitioners was not in a regular establishment. The National Highway maintenance and construction work is governed by the Ministry of Surface Transport, New Delhi and the Provincial P.W.D. Division look after only the construction and maintenance as per sanction of the Government of India and funds made available by the Ministry of Surface Transport, New Delhi. It is also stated that now no new construction work is available and some workers are required only for the maintenance of National Highway against which already regular employees as per the sanctioned strength are available. The engagement of the Petitioners being on daily wage temporary and casual basis, therefore, neither their disengagement violates any statutory provision nor it is in violation of Articles 14, 16, 21 and 39 of the Constitution nor the principle of natural justice are attracted in the present case. It is stated that none of the Petitioners was entitled for continuance in service and regularization. Their claim for salary at par with regular employees is totally misconceived.

Heard learned Counsel for the parties and perused the record.

It is not disputed that the engagement of the Petitioners was purely casual, temporary and on daily wage basis. Petitioners were neither appointed against any sanctioned post nor any procedure for recruitment was followed nor even any written order of appointment was ever issued. Considering the right of such daily wager to continue in service a the Division Bench of this Court in Special Appeal No. 750 of 1999 Harish Chandra Uniyal v. State of U.P. and others decided on 2.1.2006 has held as under:

his appointment being purely short term arrangement, did not confer any right upon him either to continue in service or to claim any kind of regularization. Such an employee has no right to hold the post unless the recruitment and appointment is made in accordance with the statutory rules. It is not the case of the Appellant that he was appointed at any point of time in accordance with the rules.

Considering the right of regularization of such persons engaged with such precarious nature of tenure the Apex Court in State of U.P. Vs. Neeraj Awasthi and Others, held as under:

(a) Ad hod employees, not being employees within the meaning of the provisions of the Act and the Regulations, a legal relationship between the employer and the employee would not come into being. As no legal relationship of employer and employee comes into being. Evidently, such persons do not derive any status. They a fortiori derive no legal right to continue in service, subject, of course, to the compliance of the provisions of any other Act or the rules conferring certain benefits to them.

(b) In the matter of termination, the principles of natural justice would be attracted only when the termination is by way of punitive measure or a stigma is attached and not otherwise.

(c) If the employees are workmen within the purview of U.P. Industrial Disputes Act, they are protected thereunder, and may claim the benefit under the said Act raising dispute as provided thereunder.

(d) Regularization contrary to the rules is not permissible. No temporary or permanent status can be granted to an employee by way of regularization.

(e) Regularization cannot be a mode of appointment.

The appointments having been made without following the procedure and if services of some persons have been regularized in past, it cannot be a reason to seek regularization by claiming a similar order from the Court. Past practice is not always the best practice. If illegality has been committed in the past, it is beyond comprehension as to how such illegality can be allowed to perpetrate, Article 14 would have no application in such case.

Admittedly the appointment of the Petitioner was not against any post. Engagement or appointment in the absence of post and the claim of regularization based on such appointment/engagement is inconsistent with the known principle of service jurisprudence. Neither any length of service nor any other consideration would attract any indulgence of this Court directing regularization of such persons.

In Ramakrishna Kamat and Others Vs. State of Karnataka and Others, the Apex Court in para 7 observed as under:

it is not in dispute that the Appellants were appointed on payment of honorarium of Rs. 200-300 per month by School Betterment Committees and in some cases by the presidents of Mandal Panchayats; the appointment orders do not indicate that they were made either by Zila Parishad or officers of the State Government against any sanctioned post. We repeatedly asked the learned Counsel for the Appellants on what basis or foundation in law the Appellants made their claim for regularization and under what rules their recruitment was made so as to govern their service conditions. They were not in a position to answer except saying that the Appellants have been working for quite some time in various schools started pursuant to resolutions passed by Zila Parishads in view of the gGcases need to be considered sympathetically. It is clear from the order of the learned single Judge and looking to the very directions given, a very sympathetic view was taken. We do not find it either just or proper to show any further sympathy in the given facts and circumstances of the case. While being sympathetic to the persons who come before the Court, the Courts cannot at the same time be unsympathetic to the large number of eligible persons waiting for a long time in a long queue seeking employment. The learned single Judge in this view, rightly so in our opinion, held that, "in such situation it is difficult to accept the plea of the Petitioners that they were appointed against regular post and appointment orders would clearly indicate that the appointment of the teachers was purely temporary and on honorarium basis subject to its approval by the State Government and Petitioners have not produced any document to show that their appointment has been approved by the State Government. Hence, Petitioners are not entitled to regularization. Since Petitioners have worked continuously as teachers, the services rendered by them are entitled to be considered at the time of regular appointment.

In Ashwani Kumar and others Vs. State of Bihar and others, etc. etc., it was observed:

It is common knowledge that existence of a post is a condition precedent for appointment whether it is created by statutory rules or under the executive instructions. There cannot be an appointment or employment without pre existing post. Therefore, we hold that a post is a service or employment under the State and the post may be created before appointment or simultaneously with it. Though, therefore, employment is not a post, the holder must be appointed to a post. A casual labourer who discharges transitory or casual duties for emergent work, therefore, does not hold a post though he may be under the administrative control of the State during the period of his working. We hold that a person appointed though on casual basis to discharge the duties of the existing post or vacancies, needs to be appointed to the post or vacancy according to rules and, if so, he and he alone is a holder of the post.

In Mahendra L. Jain and Others Vs. Indore Development Authority and Others, , the Apex Court held as under:

The question, therefore, which arises for consideration is as to whether they could lay a valid claim for regularization of their services. The answer thereto must be rendered in the negative. Regularization cannot be claimed as a matter of night. An illegal appointment cannot be legalized by taking recourse to regularization. What can be regularized is an irregularity and not an illegality. The constitutional scheme which the country has adopted does not contemplate any back-door appointment. A State before offering public service to a person must comply with the constitutional requirements of Articles 14 and 16 of the Constitution. All actions of the State must conform to the constitutional requirements. A daily-wager in the absence of a statutory provision in this behalf would not be entitled to regularization.

Deprecating the practice of claim for regular appointment merely on the ground of long continuous service, the Apex Court in the case of Dr. Arundhati Ajit Pargaonkar Vs. State of Maharashtra and others, held as under:

Nor the claim of the Appellant, that she having worked as Lecturer without break for 9 years'' on the date the advertisement was issued, she should be deemed to have been regularized appears to be well founded. Eligibility and continuous working for howsoever long period should not be permitted to over-reach the law. Requirement of rules of selection ...cannot be substituted by humane considerations. Law must take its course.

In Binod Kumar Gupta v. Ram Ashray Mahoto and Ors. (2005) SCC 209, the Apex Court refusing to permit continuance in service after 15 years observed as under:

If we allow the Appellants to continue in service merely because they have been working in the posts for the last 15 years we would be guilty of condoning a gross irregularity in their initial appointment.

In the case of Surendra Kumar Sharma v. Vikas Adhikari, 2003 (1) SCC 12, the Apex Court noticing its earlier judgment in Delhi Development Horticulture Employees'' Union held as under:

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. The other equally injurious effect of indiscriminate regularization 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 be continued for 240 or more days they have to be 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 jeopardized on both counts.

A three-Judge Bench of the Apex Court in A. Umarani Vs. Registrar, Cooperative Societies and Others, after a review of the entire earlier case law, in paras 39, 40 and 41 observed as under:

Regularization, in our considered opinion, is not and cannot be the mode of recruitment by any "State" within the meaning of Article 12 of the Constitution of India or any body or authority governed by a statutory Act or the Rules framed hereunder. It is also now well settled that an appointment made in violation of the mandatory provisions of the statute and in particular, ignoring the minimum educational qualification and other essential qualification would be wholly illegal. Such illegality cannot be cured by taking recourse to regularization.

It is equally well settled that those who come by back door should go through that door.

Regularization furthermore cannot give permanence to an employee whose services are ad hoc in nature.

A Division Bench of this Court also, following large number of the Apex Court judgments, in the case of Special Appeal No. 702 of 2005 The District Judge and The Hon''ble High Court of Judicature Vs. Sri Anurag Kumar, Deepak Nigam, Narendra Kumar Khare and Sri Tarun Pratap Yadav, held as under:

Appointments made in contravention of the statutory provisions remain inexecutable.

In my view the legal position as emerges from various decisions of the Apex Court and this Court involving the similar issue some of which has been discussed above is that if a person enters in temporary employment or gets engagement on contractual basis or as casual worker without undergoing any process of selection in accordance with the rules or procedure, he must be aware of the consequences of such appointment and its precarious nature. He cannot invoke either the theory of legitimate expectations or a misconstrued constitutional philosophy for absorption in service since it is permissible only by following procedure prescribed under the rules. It also cannot be said that merely by such engagement, the State has held out any promise while engaging such persons either to continue them where they are or to make them permanent. The State in fact cannot consciously make such representation or promise. Those who are working on daily wage form a class by themselves and they cannot claim that they are discriminated as against those who have undergone regular recruitment as per the relevant rules. No right can be founded on employment on daily wage to claim parity with regular employees. There is no fundamental right in the persons employed on daily basis or temporary, contractual basis to claim absorption in service since they are not holder of a post and a regular appointment can be made only consistent with the requirement of Articles 14 and 16 of the Constitution. A person who accepts engagement either temporary or casual cannot be said to be unaware of the nature of his employment. He accepts the employment with eyes open. Such kind of arrangement/appointment is made to cope up with the occasional requirement or in the given situation where regular appointment may not immediately be made or may take time. These appointment and engagement provides some succor to unemployed persons who while searching for regular employment may get relief by engaging themselves in such employment. If this kind of employment is burdened to become a permanent employment with the State, it would create another mode of recruitment defeating the constitutional provision of equal right of consideration for getting employment under the State. In my view such a course is neither desirable nor permissible. Any other view would amount to permit the State to perpetrate an illegality in the matter of public employment, which would be fortiori negation of constitutional scheme enshrined under our Constitution.

It is argued that the poverty and unemployment in the country and lack of bargaining power need sympathetic approach towards unemployed persons who have worked under the State for sometime with the expectations of absorption. At the first flush this argument appears too attractive but has to be rejected outright. This submission simultaneously on the other hand admits a long waiting queue on account of prevailing unemployment of those having no or lesser resources for getting such engagement and waiting for their turn for consideration for public employment alongwith others. Employment must be given in a equitable manner by considering all those who are qualified, eligible and desire to be considered. In the guise of accepting such contention the entire set of a persons who are in queue of unemployment would be denied entirely the right of consideration whatsoever. The number of persons looking opportunity would obviously be more than those who are seeking sympathetic consideration for absorption. Upholding right of the absorption or regularization would negate the right of consideration to majority of such persons. Therefore, in my view the Court has to consider the entire issue with an eye to impart justice to all and not to consider the case of only those who have approached it after getting engagement in violation of the statutory provisions. The Court would not shut its eyes to the constitutional scheme and the right of million unemployed persons as against the few who are before the Court.

Coming to the next question regarding pay and other emoluments at par with regular employee, this Court is of the view that the Petitioners are not entitled for such directions.

A daily wager like Petitioners cannot seek writ of mandamus for payment of minimum of pay scale payable to regular employees. In State of Haryana and Others Vs. Jasmer Singh and Others, the Apex Court has held as under:

The Respondents, therefore, in the present appeals who are employed on daily wages cannot be treated as on a par with persons in regular service of the State Haryana holding similar posts. Daily-rated workers are not required to possess the qualifications prescribed for regular workers, nor do they have to fulfil the requirement relating to age at the time of recruitment. They are not selected in the matter in which regular employees are selected. In other words the recruitments for selection are not as rigorous. There are also other provisions relating to regular service such as the liability of a member of the service to be transferred, and his being subject to the disciplinary jurisdiction of the authorities as prescribed, which the daily-rated workmen are not subjected to. They cannot, therefore, be equated with regular workmen for the purposes for their wages. Nor can they claim the minimum of the regular pay-scale of the regularly employed.

Recently, the Apex Court in the case of State of Haryana and Others Vs. Charanjit Singh and Others, etc. etc., after referring to a large number of its earlier judgments, it was held:

Having considered the authorities and the submissions we are of the view that the authorities in the cases of Jasmer Singh, Tilak Raj, Orissa University of Agriculture & Technology and Tarun K. Roy lay down the correct law. Undoubtedly, the doctrine of "equal pay for equal work" is not an abstract doctrine and is capable of being enforced in a court of law. But equal pay must be for equal work of equal value. The principle of "equal pay for equal work" has no mechanical application in every case. Article 14 permits reasonable classification based on qualities or characteristics of persons recruited and grouped together, as against those who were left out. Of course, the qualifies or characteristics must have a reasonable relation to the object sought to be achieved. In service matters, merit or experience can be a proper basis for classification for the purposes of pay in order to promote efficiency in administration. A higher pay scale to avoid stagnation or resultant frustration for lack of promotional avenues is also an acceptable reason for pay differentiation. The very fact that the person has not gone through the process of recruitment may itself, in certain cases, make a difference. If the educational qualifications are different, then also the doctrine may have no application. Even though persons may do the same work, their quality of work may differ. Where persons are selected by a Selection Committee on the basis of merit with due regard to seniority a higher pay scale granted to such persons who are evaluated by competent authority cannot be challenged. A classification based on difference in educational qualifications justifies a difference in pay scales. A mere nomenclature designating a person as say a carpenter or a craftsman is not enough to come to the conclusion that he is doing the same work as another carpenter or craftsman in regular service. The quality of work which is produced may be different and even the nature of work assigned may be different. It is not just a comparison of physical activity. The application of the principle of "equal pay for equal work" requires consideration of various dimensions of a given job. The accuracy required and the dexterity that the job may entail may differ from job to job. It cannot be judged by the mere volume of work. There may be qualitative difference as regards reliability and responsibility. Functions may be the same but the responsibilities made a difference. Thus normally the applicability of this principle must be left to be evaluated and determined by an expert body. These are not matters where a writ court can lightly interfere. Normally a party claiming equal pay for equal work should be required to raise a dispute in this regards.

In view of the aforesaid law, in my view, the Petitioners cannot claim salary and emoluments at par with the regular employees working in the U.P. P.W.D. department. The learned Counsel for the Petitioner however, placed reliance upon a judgment of this Court in Writ Petition No. 7279 of 1989 Satya Prakash and Ors. v. Chief Engineer., P. W. D. and othersin support of his claim of salary and other emoluments at part with the regular employees. In my view the said reliance is misplaced inasmuch as in the aforesaid matter pursuant to an industrial dispute raised by the workmen, an award was given in their favour after factual investigation by the labour court and pursuant thereto the workmen in the said case were paid salary as admissible to the regular employees. In the present case, however, it is admitted case of the Petitioner that they were not appointed in the same manner as regular appointees and there are several other factors distinguishing the Petitioner with the regular employees namely lack of regular process of recruitment, qualifications comparison of merit etc. Therefore, the aforesaid judgment lends no support to the Petitioners.

In the result, the writ petition fails and is accordingly dismissed. However, it is provided that in case there is any vacancy and Respondents need to engage any person, steps shall be taken by the Respondents to fill in such vacancy in accordance with law and in case the Petitioners also apply and fulfil the eligibility and other conditions, they may also be considered, and mere dismissal of this writ petition will not be treated to be a disqualification for their consideration.