Goru Ram vs State of Rajasthan and Others

Veerender Singh Siradhana, J.�The petitioner, in the instant writ application, has approached this Court with the prayer under the relief clause, which reads thus:--

"(a) by an appropriate writ, order or direction the respondents may be directed to regularize the services of the petitioner in regular pay scale of Class IV servant and be further pleased to direct respondents to pay the petitioner the same salary and allowances as per paid to regular and permanent employees with effect from the date when he came to be appointed on daily wages basis with consequential benefits in service like pay, increment, seniority, promotion, fixation, bonus ect.

(b) by an appropriate writ, order or direction pending disposal of the writ petition the respondents be directed not ti take any bad action against the petitioner and for abad action for not taking respondents be restrained.

(c) any other appropriate writ order or direction deemed just and proper in the interest of justice may also kindly be issued in favour of the petitioner. The costs of this writ petition may kindly be awarded to the petitioner."

Shorn off unnecessarily details, the indispensable skeletal materials facts necessary for adjudication on the controversy raised in the writ application needs to be first noticed. It is pleaded case of the petitioner that he was appointed as Class-IV Employee by the respondent number 2 with effect from 6th August, 1990, on daily wages basis @ Rs.20/- (Rupees : Twenty Only) per day and continued as such until termination of services with effect from 24th October, 1991, by a verbal order. The petitioner successfully challenged the verbal termination order by raising an industrial dispute, which culminated into an award dated 19th April, 2000, by the Labour Court Number 2, Jaipur (Rajasthan). The respondent number 2 aggrieved of the award dated 19th April, 2000, unsuccessfully challenged the same before this Court in S.B. Civil Writ Petition Number 3721 of 2000, which was dismissed vide order dated 18th August, 2000. The intra-court appeal against the order dated 18th August, 2000, was also dismissed vide order dated 10th July, 2001. Consequently, the petitioner was reinstated in terms of the award dated 19th April, 2000. According to the petitioner, the action of the respondents in continuing him on daily wages basis is violative of the mandate of Article 14, 16, 21, 41 and 42 of the Constitution. Further, the practice of temporary/casual or ad-hoc appointment has been deprecated by the Hon''ble Apex Court of the land. The petitioner having served for more than 15 years deserves to be regularized on the post of Class-IV Employee with all consequential benefits.

In response to the notice of the writ application, the respondents have filed their counter affidavit raising preliminary objection as to the very maintainability of the writ application for the reason that the petitioner was not appointed in accordance with the relevant statutory recruitment rules. Further, mere continuance of the petitioner on daily wages basis does not confer any right in his favour for regularization, without undergoing the regular mode of selection in accordance with the procedure laid down by the statutory recruitment rules. Referring to the opinion of the Hon''ble Supreme Court in the case of Secretary, State of Karnataka and Others Vs. Umadevi and Others, ; it is pleaded that justice is to be dispensed with according to law. By-passing the constitutional scheme and the scheme of regular appointment as contemplated under the statutory recruitment rules, cannot be lost sight of. The persons who secured employment without undergoing the regular procedure or even through the back-door or on daily wages basis, did not acquire any legally enforceable right.

I have carefully considered the pleadings of the parties and perused the materials available on record.

It is not disputed that the petitioner was engaged on daily wages basis in the year 1990 and his services were terminated by verbal order in the year 1991. The termination of the service was successfully challenged by the petitioner by raising an industrial dispute. The writ application as well as intra-court appeal preferred by the respondent - Management were dismissed by this Court. The petitioner was consequently reinstated in terms of award dated 19th April, 2000.

It is an admitted fact that the petitioner has not undergone any regular process of appointment under the constitutional scheme and statutory recruitment rules. The Hon''ble Supreme Court while dealing with somewhat similar controversy in the case of Umadevi (3) (supra), observed that when a person approached to the Court for relief by way of a writ, the moot question for determination is whether the person before it had any legal right to be enforced? Temporary, contractual, casual or daily wage employees, have no right for regularization. At this juncture, the text of para 45 of the judgment in the case of Umadevi (3) (supra) would be relevant, which reads thus:--

"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. 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."

The Hon''ble Supreme Court in the case of Umadevi (3) (supra), further observed that the claim of the persons approaching the Court for regularization has to be considered in the light of the constitutional scheme and on the touchstone of Article 14 and 16 of the Constitution. No doubt, the Hon''ble Supreme Court also considered the issue of irregular appointments (not illegal appointments) and the employees who had continued for more than ten years or more, but without intervention of the orders of the Courts or of the Tribunal; in those cases the employer was advised to take steps to regularize as a one time measure, the services of such irregularly appointed persons.

In the instant case at hand, it is an admitted fact that the petitioner was engaged in the year 1990 and his services were terminated in the year 1991. The action of the respondents in terminating his service was successfully challenged by raising an industrial dispute and ultimately, leading to his reinstatement. Thus, it is apparent on the face of record that continuance of the petitioner in their employment/engagement was on account of institution of the order of the Court''s and/or Tribunal.

The Hon''ble Apex Court of the land has also examined the aspect of Article 21 of the Constitution as well as obligation passed for State under Article 39(a) of the Constitution, holding thus:--

"51. 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. 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.

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 Rai Shivendra Bahadur Vs. The Governing Body of the Nalanda College, . 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."

Keeping in view the admitted fact that the petitioner was engaged on daily wages basis and has been reinstated consequent upon being successful while assailing the termination of his services before the Courts of law; is not entitled to the relief prayed for.

For the reasons and discussions herein above and in view of the claim for regularization of the services of the petitioner, without undergoing the process of regular appointment in accordance with the constitutional scheme and procedure contemplated under the statutory recruitment rules; cannot be sustained.

In the result, the writ petition is devoid of any substance and lacks in merit and therefore, deserves to be dismissed.

Ordered accordingly.

However, in the facts and circumstances of the case, there shall be no order as to costs.