Rafikunnisa (Ku.) vs Nagar Palika Parishad Kharsia and Another

S.K. Agnihotri, J.—By this petition, the petitioner seeks a direction to the respondent-authorities to regularize the services of the petitioner as Assistant Teacher in the school of respondent No.1 from 1-12-1986.

Learned counsel appearing for the petitioner submits that the petitioner was working in the respondent department as Assistant Teacher on daily wages basis since 1986, but till date her services have not been regularized in spite of the fact that the petitioner has already spent her major portion of youth in the services of the respondents. The petitioner belongs to General category. The persons belonging to Scheduled Caste and Scheduled Tribe categories have been regularized by the respondent authorities on the post of Assistant Teacher, who were much junior to the petitioner. The respondent authorities have also issued instructions for regularization of the employees working on daily wages basis, even then also, the case of the petitioner has not been considered. Thus, this petition.

I have heard learned counsel appearing for the petitioner, perused the pleadings and documents appended thereto.

It is evident that the petitioner was not appointed in accordance with the constitutional scheme of employment, as there was no advertisement Inviting applications from similarly situated candidates and no selection process was undertaken before appointment. The appointment of the petitioner was purely on temporary basis.

Be that as it may, a temporary employee/daily wager cannot claim regularization, continuance or reinstatement in service on the basis of appointment, which was temporary and not in accordance with law and de hors the constitutional scheme of employment. (See Secretary, State of Karnataka and Others Vs. Umadevi and Others, ; Indian Drugs and Pharmaceuticals Ltd. Vs. Workman, Indian Drugs and Pharmaceuticals Ltd., ; Official Liquidator Vs. Dayanand and Others, and State of Punjab and Another Vs. Surjit Singh and Others, .

The contention of the petitioner that the authorities directed to regularize the services of the employees working on temporary basis is concerned, the same is noticed to be rejected, as in Umadevi (supra), the Supreme Court observed as under :

Thus, it is clear that adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution, a court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution. 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.

The above ratio laid down by the Supreme Court has been reiterated by this Court in Ashwani Kumar Verma & Others v. State of Chhattigarh & Another, WP (S) No. 1743 of 2009, decided on 28.4.2009 and Somendra Pratap Singh v. The State of M.P. & others, W.P. (S) No. 134.7 of 2005, decided on 26.2.2008. Against the order passed in Somendra Pratap Singh (supra), the petitioner therein preferred a writ appeal being W.A. (PR) No. 2077/2008, which was dismissed by the Division Bench of this Court by order dated 29.04.2008 affirming the order passed by the Single Bench. Thereagainst, the matter was taken upto the Supreme Court by filling SLP being S.L.P.(C) No. 27190/2008 (Somendra Pratap Singh v. State of Chhattisgarh & Others), which was also dismissed by the Supreme Court affirming the view taken by this Court, vide its order dated 23.03.2009.

This Court in Sanjay Patil v. State of Chhattisgarh & Another, WP (S) No. 5845 of 2009 decided on 9.10.2009 while dealing with similar issue observed that "if the State Government has regularized some of the daily wagers, not appointed in accordance with the constitutional scheme of employment, this Court cannot issue a positive direction to legalise the illegal appointment on the ground that certain illegal appointments have been legalized/regularized by the employer.

In this context, the Supreme Court in Ashok Kumar Sonkar Vs. Union of India (UOI) and Others, observed as under:

It is not a case where appointment was irregular. If an appointment is irregular, the same can be regularised. The Court may not take serious note of an irregularity within the meaning of the provisions of the Act. But if an appointment is illegal, it is non est in the eye of law which renders the appointment to be a nullity.

Further, in State of Punjab and Another Vs. Surjit Singh and Others, the Supreme Court reaffirmed the above ratio in the following terms :

We would, however, before parting make an observation that the submission of the learned counsel that only because some juniors have got the benefit, the same by itself cannot be a ground for extending the same benefit to the respondents herein. It is now well known that the equality clause contained in Article 14 should be invoked only where the parties are similarly situated and where orders passed in their favour are legal and not illegal. It has a positive concept.

For the reasons stated hereinabove and applying the well settled principles of law to the facts of the present case wherein the petitioner was appointed purely on daily wages basis, thus, she is not entitled to any relief.

In the result, the writ petition is dismissed. No order as to costs.