Rafi Abbas vs State of U.P. and Others

Shashi Kant Gupta, J.—This writ petition has been filed by the Petitioner for the following relief:

to issue a writ of mandamus directing the Respondents to accommodate the Petitioner on the post of Class IV employee existing in the department in pursance of the order passed by this Hon''ble Court.

The brief facts emerging from the writ petition are as follows:

The Petitioner was engaged as waterman on daily wages in the Sub Registrar Office, Dhampur, District Bijnor on 1.1.1983 and since then he was discharging his duties as waterman in the said office. The Petitioner from time to time had also worked against the leave vacancy of Class, IV employee occurred in the department. The Respondent No. l issued a Circular dated 12.08.1998 whereby all concerned authorities were directed not to engage any outsider as waterman or for any other purpose, however, if any such person was already working he should be immediately, discontinued. In pursuant to the said order, Respondent No. 4 discontinued the engagement of the Petitioner as waterman in Sub Registrar Office, Dhampur, hence the Petitioner filed a Writ Petition No. 35179 of 1998 and this Hon''ble Court passed the following order:

Heard the parties counsel and I have gone through the record.

It has been admitted by the learned Counsel for the Petitioners that the Petitioner No. 1 has been working as Water-man in the establishment of the Respondents fr4om January 1983 while the Petitioner No. 2 had been working from September, 1990. It is not disputed that the Petitioners are not Government servants and they are not on regular establishment of Sub Registrar. They are casual workers appointed on fixed wages. Their services have been terminated on the ground that no such appointment be made in future from outside and those who are already working may be ceased to work. It has been submitted by the the learned Counsel for the Petitioner that the post of Water man still exists in the department and it is, therefore, directed that in case such post exists in the Department, the Petitioner shall be accommodated in the view of the fact that they have served for a long time in the department.

With these observation, petition is disposed of finally

It is further pleaded in the writ petition that despite the order passed by this Court the authority concerned did not accommodate the Petitioner. Hence this writ petition.

In para 5 of the counter affidavit it has been stated that the Petitioner was only engaged on casual basis as a waterman on fixed wages and it was further pleaded that Petitioner did not work continuously but was engaged on casual basis from time to time as and when necessity arose. It was further pleaded that Petitioner never worked or treated as daily wager on the post of Class IV employee and in the year 1998 when the necessity of engaging him ceased, he was discontinued. It was further pleaded in para 4 of the counter affidavit that there is no post of waterman existing as such the order dated 10.4.2002 can not be implemented. The supplementary counter affidavit was also filed by the Respondents and in para 3 & 4 it was stated as follows:

3- The Petitioner has made a prayer for directing the Respondents to accommodate the Petitioner on class IV posts of the department. It is submitted that the Petitioner was actually a part time casual worker and engaged for few hours in a day for filling water pot. This engagement was never made against any substantive vacancy of the department and never made adopting the selection procedure in any of the provisions of the existing service rules.

4- The Petitioner''s prayer made in the writ petition are not admitted as separate provisions have been provided for appointment on the Class IV posts of the department and the Petitioner can apply in case of vacancy if eligible and he fulfills the criteria.

In reply to para 3 & 4 of the supplementary counter affidavit, Petitioner filed supplementary rejoinder affidavit and in para 4 & 5 it was stated as follows:

4- That in reply to averments made in para-3 of the affidavit it is submitted that the Petitioner had worked continuously as an Class IV employee in the department since 1983 till 1998. It is further submitted that the Respondents are still adopting the pick and choose policy for regularizing the services of the workers who were engaged in the same capacity as of the Petitioner. Therefore, the averments made to the contrary in the para under reply are not correct and they are denied.

5-That in reply to the averments made in para-4 of the affidavit, it is submitted that the Petitioner as stated above, has continuously worked for last 15 years. Therefore, in view of the said fact he is eligible for being appointed and to get regularized his services as class IV employee in the department.

It was submitted by the counsel for the Petitioner that despite the order dated 10.4.2002 passed by this Court in Writ Petition No. 35179 of 1998, Respondents deliberately and knowingly on account of some extraneous consideration have failed to accommodate the Petitioner. It was further submitted that Respondent No. 2 has accommodated other persons who were working as waterman in the department on the basis of the direction given by this Court, therefore, the action of the Respondents in not accommodating the Petitioner as Class IV employee in the department is wholly illegal and void. It was further submitted that the Petitioner is fully eligible for being appointed as Class IV employee in any of the department of the Respondents.

On the other hand learned Standing counsel has submitted that Petitioner has got no right to hold the post, he was neither appointed as a regular employee nor was appointed on daily wages. It was further submitted that he was simply engaged on casual basis as waterman as when the need arose. It was further submitted that the Petitioner did not work continuously from 1983 to 1998 and has got no legal enforceable right to claim the appointment. It was further categorically stated that there does not exist any post of waterman as such the order dated 10.4.2002 passed by this Court in Writ Petition No. 35179 of 1998 cannot be implemented. It was further submitted that certain orders annexed alongwith the writ petition has got no bearing on the case in hand.

Heard the learned Counsel for the Petitioner and learned Standing counsel appearing on behalf of the Respondents and perused the record of the case.

In para 3 of the supplementary counter affidavit it was stated that the Petitioner was actually a part time casual worker and engaged for a few hours in a day for filling a water pot. It was further pleaded that this engagement was neither made against any substantive vacancy of the department nor made by following a due process of selection as envisaged by relevant Rules. In para 4 of the supplementary counter affidavit it was further stated that separate provisions have been provided for appointment on the Class IV posts of the department and the Petitioner can apply in the case of vacancy if he fulfills the criteria. In para 3 of the counter affidavit it has been further stated that there exist no post of waterman in the department as such the order that 10.04.2002 passed by this Court in the previous Writ Petition No. 35179 of 1998 cannot be implemented.

The Apex Court in "Secretary, State of Karnataka and Ors. v. Umadevi and Ors. JT 2006(4) 420 " has observed as follows:

�Therefore, consistent with the scheme for public employment, this Court while laying down the law, has necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee. If it is a contractual appointment, the appointment comes to an end of the contract, if it were an engagement or appointment on daily basis, the same would come to an end when it is discontinued. Similarly, a temporary employee could not be made permanent on the expiry of his term of appointment. It has 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 very nature of their appointment, do not acquire any right. High Courts acting under Article 226 of the Constitution of India, Should not ordinarily issue directions for absorption, regularisation or permanent continuance unless the recruitment itself was made regularly and in terms of the constitutional scheme.

�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 or lend themselves the instrument to facilitate the by passing of the constitutional and statutory mandates. "

�While directing that appointments, temporary or casual, be regularised or made permanent, Courts are swayed by the facts that the concerned person has worked for some time and in some cases for 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 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 constitution scheme of the 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 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.

�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 Dr. Rai Shiverndra Bahadur v. The Governing Body of Nalanda College (1962) Supp.2 SCR 144. That case arose out of a refusal to promote the writ Petitioner therin as the Principal of a college. This Court held that in order that 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.

The Apex Court further in Official Liquidator Vs. Dayanand and Others, has observed as follows:

The creation and abolition of posts, formation and structuring/ restructuring of cadres, prescribing the source and mode of recruitment and qualifications and criteria of selection, etc. are matters which fall within the exclusive domain of the employer. Although the decision of the employer to create or abolish posts or cadres or to prescribe the source or mode of recruitment and laying down qualification, etc is not immune from judicial review, the Court will always be extremely cautious and circumspect tinkering with the exercise of discretion by the employer.

�the Court cannot sit in appeal over the judgment of the employer and ordain that a particular post or number of posts be created or filled by a particular mode of recruitment. The power of judicial review can be exercised in such matters only if it is shown that the action of the employer is contrary to any constitutional or statutory provisions or is patently arbitrary or vitiated by mala fides.

The Apex Court further in case of State of Harayana and Ors. v. Navneet Verma has inter alia in para 17 of the judgment has held " that the power to create or abolish a post rest with the Government; whether a particular post is necessary is a matter depending upon the exigencies of the situation and administrative necessity; creation and abolition of the post is a Government policy and every sovereign Government has this power in the interest and necessity of internal administration; creation, continuance and abolition of posts are all decided by the Government in the interest of administration and general public; the court would be the least competent in the face of scanty of material to decide whether the Government acted honestly creating a post or refusing to create a post or its decision suffers from mala fides, legal or factual; as long as the decision to abolish the post is taken in good faith in the absence of material, interference by the court is not warranted"

There is nothing on record to show that the appointment/engagement of the Petitioner was on a vacant sanctioned post or was in terms of relevant rules. If it were an engagement or appointment on daily wages or casual basis the same would come to an end when it was discontinued. Merely because a temporary employee or a casual wage worker is continued for a long time, 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.

There is nothing on record to establish that the Petitioner worked continuously from 1983 upto 1998 as waterman in establishment. The engagement of the Petitioner appears to be through back door entry without following any process of law. Therefore, his disengagement in the year 1998 was fully justified. Moreover the Respondents in para 3 of the counter affidavit have categorically stated that there exists no post of waterman in the department as such the order dated 10.4.2002 passed in the previous Writ Petition No. 35179 of 1998 cannot be implemented.

In view of the above, the Respondents cannot be compelled to create any supernumerory post. However, if, according to the Petitioner, the earlier order passed by this Court on 10.4.2002 was not implemented deliberately without any cogent reasons, then he could have taken the contempt proceedings against the authorities concerned in accordance with law but instead of doing so, he preferred to execute the earlier order dated 10.4.2002 passed by this Court, through the present writ petition.

The Petitioner has also annexed a few orders passed by this Court in different writ petitions without pleading the facts and circumstances of those cases in the present writ petition as such, said orders in the absence of any pleadings cannot be taken into consideration.

In view of the discussion made hereinabove, this writ petition is accordingly dismissed.