Rajesh Kumar and others vs Union of India and others

This Special Appeal has been filed against the judgment and order dated 11.5.2005 of a learned Judge of this Court in Writ Petition No. 12537 of2002.

The petitioners/appellants were engaged as Compilers in the census operations carried out by the Census Department between 1.6.1991 and 31.12.1992 but they were discharged, vide retrenchment orders issued by the Census Department. The petition had been filed for a direction to the respondents to appoint/absorb the petitioners on the existing vacancies in the office of the respondents. The learned Judge after noticing that the State had not framed any Rules or issued any Government Order for absorption of such employees, came to the conclusion that in such situation no relief could be granted to the petitioners in view of the decision of the Supreme Court in Union of India and Ors. v. D.K. Saxena and Ors., (1995) 3 SCC 401.

We have heard Sri B.P. Singh, learned Counsel for the appellants and Sri Jitendra Nath Shukla for Respondent No. 1 and the learned Standing Counsel for the remaining respondents.

It is not in dispute that the petitioners/appellants had been working on contract basis as Compilers in the Regional Tabulation Office at Azamgarh under the Director of Census Operations w.e.f. 1.6.1991 to 31.12.1992 and were drawing Rs. 900/ as consolidate salary and that their services had been terminated w.e.f 31.12.1991 on account of winding up of Regional Tabulation Office. The claim of the petitioners/appellants is that they should be appointed/absorbed on the existing vacancies in some other office of the respondents. The issue was considered by the Supreme Court in Union of India v. B. K. Saxena (supra) in which similarly situated employees engaged in U.P. in 199091 census, had made a prayer for absorption in the available vacancies in the State Government Departments. The Supreme Court observed that such employees who had been engaged on a contract basis for a limited and fixed duration and on a fixed pay cannot be directed to be absorbed in any other department of the Government but suitable rules could be made and conditions laid down for appointment in regular vacancies which may arise in the Directorate of Census Operations by relaxing age bar, if any, for such appointments. The relevant portion of the judgment is quoted below :

"...........Here also the respondents had been temporarily employed to handle work which was of a limited duration. It was not possible, therefore, to direct the framing of any scheme for their being regularized in the Census Department since there was not enough work of a permanent nature to keep these extra employees busy throughout. We also do not see how these employees, who had been engaged on a contract basis for a limited and fixed duration and on a fixed pay, could be directed to be absorbed in any other department of the Government.

..............Suitable rules may be made and conditions laid down in this connection by the appellants. The appellants and/or that Staff Selection Commission may also consider giving weight age to the previous service rendered by such employees in the Census Department and their past service record in the Census Department for the purpose of their selection to the regular posts. It is directed accordingly."

In State of M.P. and another v. Dharam Bir, (1998) 6 SCC 165, the Hon''ble Supreme Court has observed :

"Whether a person holds a particular post in a substantive capacity or is only temporary or ad hoc is a question which directly relates to his status. It all depends upon the terms of appointment. It is not open to any Government employee to claim automatic alteration of status unless that result is specifically envisaged by some provision in the statutory rules. Unless, therefore, there is provision in the statutory rules for alteration of status in a particular situation it is not open to any Government employee to claim a status different than that which was conferred upon him at the initial or any subsequent stage of service."

In M.D., U.P. Land Development Corporation and another v. A mar Singh and others, (2003) 5 SCC 388, Hon''ble Supreme Court after noticing a large number of its earlier decisions held that once employees are appointed for the purpose of Scheme, they do not acquire any vested right to continue after the project is over.

In State of Himachal Pradesh through the Secretary, Agriculture to the Govt. of Himachal Pradesh v. Nodha Ram and others, AIR 1997 SC 1445, Hon''ble Supreme Court observed :

"It is seen that when the project is completed and closed due to no availability of funds, the employees have to go along with its closure. The High Court was not right in giving the direction to regularise them or to continue them on other places. No vested right is created in temporary employment. Directions cannot be given to regularise their services in the absence of any existing vacancies nor can directions be given to the State to create posts in a nonexistent establishment. The Court would adopt pragmatic approach in giving directions. The directions would amount to creating of posts and continuing them despite nonavailability of the work. We are of the considered view that the directions issued by the High Court are absolutely illegal warranting our interference. The order of the High Court is, therefore, set aside."

The Hon''ble Supreme Court in Surendra Kumar Sharma v. Vikas Adhikari and another, (2003) 5 SCC 12, after noticing its earlier decision in Delhi Development Horticulture Employee''s Union v. Delhi Administration, Delhi, AIR 1992 SC 789, observed :

"...........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 backdoor entry in the employment are in deed 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 may 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 have to be absorbed as regular employees although the works are timebound and there is no need of the workmen beyond the completion of the works undertaken. The public interests are thus jeopardized on both counts."

Yet again recently in Ramakrishna Kamal and others v. State of Karnataka and others, JT 2003 (2) SC 88, Hon''ble Supreme Court rejected a similar plea for Regularization of services stating :

"..........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 stated pursuant to resolutions passed by Zilla Parishads in view of the Government Orders and that their cases 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 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 time in a long queue seeking employment........."

The aforesaid view was reiterated by the Supreme Court in the case of A. Umarani v. Registrar, Cooperative Societies, 2004 AIR SCW 4462, and Executive Engineer, ZP Engineering Division and another v. Digambara Rao, 2004 AIR SCW 5546.

In view of the proposition of law contained in the aforesaid decisions it cannot be doubted that the retrenched employees do not have unfettered right to claim the absorption/appointments on existing vacancies, but such right is dependent upon the Rules framed in this regard or the Government Orders issued from time to time. In the present case, the learned Judge has recorded a categorical finding that there were neither any Rules nor Government Orders on the basis of which the petitioners/appellants could claim such a right and even the learned Counsel for the appellants did not produce before us such Rules or Government Orders.

Learned Counsel for the appellant, however, invited our attention to various communications wherein certain quarries had been made by the State Government in respect of such employees whose services had been retrenched but these documents do not show that any decision had been taken by the Government to absorb such retrenchment employees or that any Government Order was issued for directing absorption of these employees.

Learned Counsel for the appellant placed before us the decision of the Supreme Court in the case of Government of Tamilnadu and another v. (I. Mohammed Ameenudeen and others, JT 1999 (9) SC 173, in support of his contention that the petitioners/appellants should be absorbed. A perusal of the aforesaid order indicates that only a direction had been issued to the State Government of Tamil Nadu to frame a scheme and the matter was directed to be listed after eight weeks. So far as the present case is concerned, the matter has to be examined in the light of the decision of the Supreme Court in the case of D.K. Saxena, (supra).

We are, therefore, of the considered opinion that in the absence of such Rules/Government Orders, no relief can be granted to the petitioners/appellants.

Learned Counsel for the appellants then contended that the respondents had practices discrimination as in some cases appointment orders had been issued. From the records we find that the appellants have annexed an appointment order but a perusal of the same shows that it had been made on the basis of interim directions issued by this Court and the subsequent contempt notices. The learned Counsel for the appellants has not produced before us any material to show that the petitioners therein were identically situated as the petitioners/appellants to in the present case, but even otherwise it is for the petitioners/appellants to establish their own claim for absorption on the basis that they are retrenched employees and they cannot drew parity with those employees who have been appointed on the basis of interim order issued by this Court. We have already found that such a relief cannot be granted to the petitioners/appellants and, therefore, this contention cannot also be accepted.

We are, therefore, unable to interfere with the judgment and order of the learned Judge.

The Special Appeal is accordingly dismissed.