Modia Ramjibhai Somaji, Hawaldar and Others vs State of Gujarat and Others

Rajesh H. Shukla, J.—The present petitions are filed for the prayer, inter alia, that the respondents may be directed to appoint the petitioners on the post of Hawaldar, which is of seasonal nature, as the petitioners served on the post for last 25 years or more.

Learned advocate Mr. Rao for the petitioners in Special Civil Application No. 4517/1998 referred to the averments in the petition and submitted that it is only on the basis of the circulars/instructions, which is produced with the affidavit of respondent Nos. 3 and 4, the District Health Officer and the District Development Officer, Sabarkantha respectively, the petitioners have not been given seasonal work. Therefore, learned advocate Mr. Rao submitted that the Government policy cannot be contrary to the provisions of law. He submitted that the petitioners have been working for a long period and provisions of Industrial Disputes Act particularly Section 25H, 25G, 25F and 25S would be attracted. For that purpose, learned advocate has referred to the provisions of Section 25S of the Industrial Disputes Act and has also referred to the definition of Section 2.

The petitioners have worked on seasonal basis. The seniority has been maintained as stated in the affidavit filed by the respondent Nos. 3 and 4 and, therefore, when the need arises for the work, they ought to have been taken up according to the seniority. Learned advocate submitted that even if there is no work, the principle of ''last come first go'' would be applicable. It was submitted that they have not been appointed or taken on the basis of seniority pursuant to the instructions given by the Government by the aforesaid two circulars dated 8th May, 1997 and 23rd May, 1997. Therefore, the same is arbitrary and illegal.

Learned advocate Ms. Vinayak appearing for the respondent Nos. 3 and 4 submitted that the affidavit in reply has been filed and as stated in the affidavit in reply pursuant to the instructions given by the Government they have not taken the field workers as per the seniority list.

Learned AGP Ms. Bhatt referring to the affidavit in reply submitted that as stated in the affidavit the petitioners were only the seasonal workers and they would be given the work only in season depending upon the workload. However, they cannot claim any appointment as they have no post in the gamete of selection procedure. It was submitted that the petitioners are not the members of service and they do not acquire any right either for regular or on long term appointment. Therefore, it was submitted that the question of seniority would not apply in the present case. Therefore, learned AGP Ms. Bhatt submitted that as the petitioners did not held any post on regular or adhoc basis and they were working as seasonal workers for limited period, each appointment would be a fresh appointment every time and it will be open for the respondents to fix the terms and conditions or alter the terms and conditions as a policy. Therefore, the petitioners have not acquired any right to claim any appointment every time in the season, which would deny the similar rights to others. It was open to the petitioners to seek appointment elsewhere and, therefore, it does not confer any right. Moreover, there is submission with regard to industrial disputes, however, such disputes can be raised before the appropriate forum which would decide on the basis of evidence and materials. Therefore, this Court may not entertain the present petition under Article 226 of the Constitution of India.

In view of the rival submissions, it is required to be appreciated whether the present petition can be entertained or not.

Before appreciating the submission, it is required to be mentioned that the undisputed facts are that the petitioners were working pursuant to the scheme of the Government with regard to the Malaria Eradication Programme and they were given appointment during the season for sprinkling pesticides and every year when the occasion or need arises they would be called for a limited period during the season. Therefore, the submissions made by learned advocate Mr. Rao referring to the provisions of Industrial Disputes Act are required to be appreciated first. As stated in the petition also, admittedly the petitioners have raised industrial dispute raising demands for the benefit under the Industrial Disputes Act, including permanent employment and when the conciliation proceedings failed, it has been registered as Reference No. 68/1995, which is stated to be pending before the Industrial Tribunal. On inquiry by the Court, learned advocate Mr. Rao has not been able to give clarification on this aspect. Therefore, when the remedy under the Industrial Disputes Act has been persued and is pending, this Court cannot entertain the petition under Article 226 of the Constitution of India particularly when, according to the say of the learned advocate for the petitioner, the provisions of the Industrial Disputes Act are attracted, which would again require detailed evidence whether they fall or cover by the definition of Section 25S or whether Section 25H would be applicable. Moreover, even for that benefit one has to complete minimum number of days i.e. 240 days and the petitioners admittedly are working as seasonal workers. Therefore, it would again be a question of appreciation of evidence and material as to whether the petitioners have completed the minimum number of days of work. This aspect cannot be decided in absence of any material evidence in the present petition.

The another facet of submission that they have not been given the appointment according to the seniority pursuant to the circulars issued by the Government (Health and Family Welfare Department) dated 8th May, 1997 and 23rd May, 1997, is required to be appreciated. Though the affidavits have been filed by the respondent Nos. 3 and 4 with regard to the seniority prepared for the field workers, admittedly they have also stated in the affidavit that they have engaged the petitioners as field workers under the scheme of the Government for Malaria Eradication Programme and as a Panchayat they are required to implement the scheme of the Government and as a part thereof they may engage workers on seasonal basis. In the affidavits, on the contrary, it is stated that there are more field workers and in order to see that all are given employment, it has been decided not to give any appointment as per the seniority. Therefore, it has rightly been contended that the persons like the present petitioners who are working only on seasonal basis for the implementation of the scheme like Malaria Eradication Programme and their work is confined during the season for sprinkling pesticides cannot claim appointment as a matter of right dehors any selection procedure. In fact, there is no continuation of work or post for such workers and they are engaged only for implementation of the scheme during the season by the Health and Family Welfare Department as a social measure. Therefore, when there is no work after the season is over, there is no question of continuation of appointment. Therefore, it has rightly been contended that when the appointment of the petitioners is not on regular basis or according to the regular procedure, there is no question of maintaining any seniority even for a seasonal work every time. It is also reflected in the affidavit filed by the respondent Nos. 3 and 4 that more persons are available for such seasonal work and they are required to give opportunity to others. Every time the same persons cannot be given appointment even during the season as field workers. It reflects the state-of-affairs that due to poverty and unemployment in our country more and more people are making their efforts with the hope to get some work and the Government with its limited resources and while managing the affairs including such programmes like Malaria Eradication Programme, etc. try to give employment on seasonal basis. Therefore, the persons like the present petitioners who have been given such benefit cannot claim employment as a matter of right every year. The seasonal workers, as the very nomenclature suggests, are supposed to work during the season when need arises and there is no permanency. The words ''seasonal workers� suggest that it has no permanent requirement.

It is well settled by catena of judicial pronouncement, including the constitution bench''s judgment of the Hon''ble Apex Court in case of Secretary, State of Karnataka and Others Vs. Umadevi and Others, , wherein the Hon''ble Apex Court has clearly observed, inter alia;

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, perpetuate illegalities and to take the view that a person who has temporarily or casually got employed should be directed to be continued permanently.

Further it has been observed;

The High Courts acting under Article 226 should not, therefore, ordinarily issue directions for absorption, regularisation, 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 the court, under �litigious employment� he would not be entitled to any right to be absorbed or made permanent in the service.

It is also observed;

Obviously, the State is also controlled by economic considerations and financial implications of any public employment. The viability of the department or the instrumentality or of the project is also of equal concern for the State. The State works out the scheme taking into consideration the financial implications and the economic aspects. The courts cannot impose on the State a financial burden of this nature by insisting on regularisation or permanence in employment, when those employed temporarily are not needed permanently or regularly.

The aspects of poverty & unemployment and Article 21 have also been discussed to address the issue and after having considered all these aspects, the Hon''ble Apex Court has further observed;

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.

Further, it has been observed;

The argument that the right to life protected by Article 21 of the Constitution would include the right to employment cannot also be accepted at this juncture. The law is dynamic and our Constitution if 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 backdoor. The obligation cast on the State under Article 39(a) of the Constitution 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 recognise 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 recognised by the relevant legislation in the context of the relevant provisions of the Constitution. In the name of individualising 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.

Therefore, it cannot be said that the action of the respondents is arbitrary, illegal and/or violative of any right, much less fundamental right of the petitioners, as sought to be canvassed.

Learned advocate has not been able to impress upon the Court as to under which provision of law the petitioners claim permanency or a right to be appointed. Therefore, there is no merit in the present petitions. The petitions deserve to be rejected.

Accordingly, the present petitions stand rejected. Rule issued in each petition is discharged. No order as to cost.