Ram Saran and Others vs State of U.P. and others

Anil Kumar, J.—Heard Shri Nand Kishore, learned counsel for petitioners and Shri V.S. Tripathi, learned Additional Chief Standing Counsel for opposite parties.

Petitioners were appointed as daily wagers on the post of Mali (Gardeners) in the Forest Department, State of U.P. in the Social Forestry, engaged in the production and sale of various plants, trees and vegetables. The details of the petitioners'' appointment as per record is as under:-

S. No. Name of Employee Father''s Name Post Date of Appointment

2. 3. 4. 5. Ram Tej Chaitu Ram Saran Ram Charan Shivnath Bhagwan Das Badri Ram Pher Mahangu Jawala Prasad Mali Mali Mali Mali Mali 1979 1981 1985 1985

As per submission made by learned counsel for the petitioner there is a trade union of the employees who are working as daily wagers in the Forest Department known as "Van Vibhag Shramik Sangh" (hereinafter referred as sangh) registered and affiliated to Bhartiya Mazdoor Sangh, engaged in welfare activities for the employees of Forest Department.

The Sangh raised a demand for regularization of services of the employees who are working in the Social Forestry Branch of the Forest Department but no heed has been paid by the State Government. So, an industrial dispute came up for consideration before the appropriate authority in the year 1994 where the parties failed to compromise and thus, the State Government made a reference vide notification dated 14.6.1986 to the Industrial Tribunal u/s 4K of the U.P. Industrial Disputes Act. During the pendency of the matter before the Industrial Tribunal, the official respondent issued an advertisement in the month of March, 1987 in the local news paper "Jan Morcha" inviting applications for recruitment on the post of 44 Mali and Chowkidar.

Aggrieved by the said fact, Van Vibhag Shramik Sangh filed a writ petition bearing W.P. No. 2786 of 1987 before this Court, on 30.4.1987 an interim order was passed, re-produced hereinunder:-

In the meantime, it will be open to the opposite parties to make appointment in pursuance of advertisement contained in Annexure-1. They shall however, not terminate the services of the persons mentioned in the list contained in Annexure-5 during pendency of the case before the Industrial Tribunal.

Thereafter on 6.4.1989 (Annexure No. 4), the Industrial Tribunal gave an award published by the State Government on 23.11.1989. However, in the award, Tribunal found that the claim of the Van Vibhag Shramik Sangh is genuine but did not gave any finding for regular appointment of the members of the Sangh working as daily wager employee on regular post.

Thereafter 1.5.1990 the opposite parties by an oral order terminated the services of few members of the Sangh working as daily wagers.

In view of the said development, the Sangh (supra) filed another writ petition bearing W.P.No.5348 (SS) of 1990 "Van Vibhag Shramik Sangh vs. State of U.P. and others" before this Court with the following main reliefs:-

A writ, order or direction in the nature of Mandamus commanding the opposite parties to regularise the services of the employee working in the department and whose names are given in the Annexure No. 1 to the writ petition and for whom the Industrial Tribunal had rendered an award dated 6.4.1989 (published on 23.11.1989) contained in Annexure No. 4 to the writ petition.

A further writ, order or direction in the nature of Certiorari quashing the impugned order of termination or retrenchment of the services of employees whose name are given in the chart filed as Annexure No. 9 to the writ petition with consequential benefits after summoning of records.

On 31.5.1990 in the said matter, an interim order was passed, relevant portion re-produced hereinunder:-

Put up for orders after vacations to enable the learned Standing Counsel to obtain instructions.

Meanwhile if the persons mentioned in Annexure-9, have put in more than two hundred and forty days of continuous and satisfactory service with the opposite parties and there is no order in writing, terminating their services, they shall be allowed to continue in service.

In addition to the abovesaid facts, the present petitioners have also filed a Writ Petition No. 559 (SS) of 1994 "Van Vibhag Shamarik Sangh vs. State of U.P". seeking the same relief as claimed in Writ Petition No. 5348 (SS) of 1990.

Thereafter, on 15.7.2003 (Annexure No. 6), an order was passed in Writ Petition No. 5348 (SS) of 1990 and Writ Petition No. 559 (SS) of 1994, quoted hereinbelow:-

In view of the above, these writ petitions are finally disposed of with the direction to the opposite parties that they shall consider the claim of the petitioners for regularization in the light of the U.P. Regularization judgment of the Apex Court in State of U.P. and Others Vs. Putti Lal, '' at the earliest, preferably within six months from the date a certified copy of this order is produced by the petitioners before them. Till the case of the petitioners for regularization is considered and decided, they shall be paid salary at the minimum of the scale admissible to their counterparts in the department.

Learned counsel for the petitioners submits that inspite of the direction given by this court dated 15.7.2003, no heed has been paid in the matter in question as such the present petitioners filed a contempt petition bearing W.P.No.463 � of 2004 "Ram Bhawan and others vs. Kaushlendra Prasad and others" and after filing the said contempt petition, opposite party no. 4 i.e. Divisional Forest Officer, Faizabad on 20.8.2003 passed the impugned order thereby rejecting the claim of the petitioner for regularization.

Aggrieved by the said fact, the petitioner filed the present writ petition before this Court challenging the order dated 20.8.2003 (Annexure No. 1).

Learned counsel for the petitioner while assailing the impugned order submits that the impugned action on the part of opposite parties thereby orally terminating the services of the petitioners and not considering their case for regularization in view of the U.P. Regularization of Daily Wager Appointment on Group-D post Rules, 2001, the judgment of the Apex Court in '' State of U.P. and Others Vs. Putti Lal, and direction given by this Court by order dated 15.7.2003 is an action which is wholly illegal and arbitrary in nature.

It is further argued by learned counsel for the petitioners that some of the persons who are junior to the petitioner are still working and discharging their duties on the said post, so the action on the part of the respondents thereby neither cancelling the oral termination order of the petitioners nor regularizing their services is against the principle of ''First Come Last Go'' as the petitioners fulfill all requisite qualifications for regularization of their services. In support of his argument, learned counsel for the petitioner has placed reliance on the judgment given by Hon''ble the Apex Court in the case of U.P. Land Development Corporation and Another Vs. Mohd. Khursheed Anwar and Another, .

Shri V.S. Tripathi, learned Additional Chief Standing Counsel on the other hand has opposed the relief as claimed by the petitioner on the basis of the averments made in paragraph nos. 6 and 7 of the counter affidavit filed on behalf of the respondent, re-produced hereinunder:-

Para 6- That the contents of paragraphs 4 to 8 of the writ petition are not admitted as stated. It is further submitted that the petitioners were engaged as daily wages labour as per the requirement of work and in exigencies under a temporary scheme. The petitioners had filed a case before the Deputy Labour Commissioner and the matter was referred by the State Government to the Industrial Tribunal for adjudication.

Para 7- That in reply to paragraphs 9 to 11 of the writ petition it is submitted that the petitioners were initially engaged as daily wages labours in exigencies of work and as per the requirement and had not worked continuously. Atul Asthana, Forest Range Officer in his statement has stated that at present 12 posts of Forest Guards and 42 posts of Malies have to be filled in. It is submitted that as directed by the Hon''ble Supreme Court, to regularize the services of the daily wages employees of Gorup-D category, the State Government vide notification no.15 writ/Ka-2/2001 dated 21.12.2001 has framed the U.P. Regularization of Daily Wages Appointments on Group-D Posts Rules, 2001, which Rule 4 (1) (a) specifically provides that the persons who were engaged on daily wages basis on or before 29.6.1991 and had continued as such on the date of commencement of the said Rules, will be considered for their regularization and shall be given regular appointment on the basis of their eligibility, suitability and seniority only against the existing vacancies. Meaning thereby the case of the daily wages employees could be considered only when their exist any vacancy of temporary or permanent nature on the date of the commencement of the Regularization Rules, 2001. It is further submitted that in compliance of the order dated 15.7.2003 of this Hon''ble court passed in a bunch of 10 writ petitions, leading writ petition being the petitioner''s earlier writ petition no. 5348 of 1990-Van Vibhag Shramik Sangh vs. State of U.P. and others, filed against the Award dated 6.4.1989 given by the Industrial Tribunal, the order dated 20.8.2003 has been passed after considering the applications of the 22 persons seeking their regularization including the petitioner and considering each and every aspects of the matter in the light of the provisions of U.P. Regularization of Daily Wages Appointments on Group-D Posts Rules, 2001 and they could not be found fit and suitable for regularization. The order impugned in the writ petition is a reasoned and speaking order, which is justified and legal, in which there is no illegality or infirmity.

Accordingly, learned Additional Chief Standing Counsel submits that the impugned order dated 20.8.2003 passed by opposite party No. 4 is perfectly valid and the present writ petition filed by the petitioners is liable to be dismissed.

I have heard learned counsel for the parties and gone through the records.

In view of the abovesaid factual backgrounds, the claim of the petitioners for regularisation is to be considered strictly in accordance with the U.P. Regularization of Daily Wages Appointments on Group-D Posts Rules, 2001 (hereinafter referred to as Rules 2001), as per said Rules regularization of an employee working as daily wager is to be considered as per the mandatory conditions mentioned in the Rules 4 (1) (a) and (b) of the Rules 2001, reproduced hereinbelow:-

Regularisation of daily wages appointments on Group ''D'' Posts.-(1) Any person who-

(a)was directly appointed on daily wage basis on a Group ''D'' post in the Government service before June 29, 1991 and is continuing in service as such on the date of commencement of these rules; and

(b)possessed requisite qualification prescribed for regular appointment for that post at the time of such appointment on daily wage basis under the relevant service rules, shall be considered for regular appointment in permanent or temporary vacancy, as may be available in Group ''D'' post, on the date of commencement of these rules on the basis of his record and suitability before any regular appointment is made in such vacancy in accordance with the relevant service rules or orders.

The Rules 2001 or any other Rules relating to the services of a Daily Wager, ad hoc/temporary employee etc. are subject to the doctrine of equality enshrined under Articles 14 and 16 of the Constitution of India, which read as follows:-

The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.

Equality of opportunity in matters of public employment. - (1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.

(2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State.

(3) Nothing in this article shall prevent Parliament from making any law prescribing, in regard to a class or classes of employment or appointment to an office under the Government of, or any local or other authority within, a State or Union territory, any requirement as to residence within that State or Union territory prior to such employment or appointment.

(4) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.

(4A) Nothing in this article shall prevent the State from making any provision for reservation in matters of promotion, with consequential seniority, to any class or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State.

(4B) Nothing in this article shall prevent the State from considering any unfilled vacancies of a year which are reserved for being filled up in that year in accordance with any provision for reservation made under clause (4) or (4A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty per cent reservation on total number of that year.

(5) Nothing in this article shall affect the operation of any law which provides that the incumbent of an office in connection with the affairs of any religious or denominational institution or any member of the governing body thereof shall be a person professing a particular religion or belonging to a particular denomination.

Articles 14 and 16 of the Constitution of India have been considered by the Constitution Bench of the Apex Court in the case of Secretary, State of Karnataka and others vs. Uma Devi and others, reported in (2006) 4 SCC 44 and subsequently in the case of State of Bihar Vs. Upendra Narayan Singh and Others, , in detail, with reference to the appointment of the Daily Wager, ad-hoc and temporary appointment.

The Apex Court in the case of State of Bihar vs. Upendra Narayan Singh and others (Supra) held that the equality clause enshrined in Article 16 of the Constitution mandates that every appointment to a public post or office should be made by way of open advertisement so as to enable all eligible persons to compete for selection on merits. It further held that for ensuring that equality of opportunity in the matters relating to the employment becomes a reality for all, Parliament enacted the Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959 (for short) ''the 1959 Act''). Section 4 of the Act casts a duty on the employer in every establishment in public sector in the State or a part thereof to notify every vacancy to the employment exchange before filling up the same.

It would be relevant to refer some more paragraphs of the decision of the Constitution Bench of the Apex Court in the case of Secretary, State of Karnataka and Others Vs. Umadevi and Others, , which are referred hereinbelow:-

Para 43- 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 the 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. If it is a contractual appointment, the appointment comes to an end at the end of the contract, if it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued. Similarly, a temporary employee could not claim to be made permanent on the expiry of his term of appointment. It has also 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 the very nature of their appointment, do not acquire any right. The High Courts acting under Article 226 of the Constitution, 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. Merely because an employee had continued under cover of an order of the court, which we have described as ''litigious employment'' in the earlier part of the judgment, he would not be entitled to any right to be absorbed or made permanent in the service. In fact, in such cases, the High Court may not be justified in issuing interim directions, since, after all, if ultimately the employee approaching it is found entitled to relief, it may be possible for it to mould the relief in such a manner that ultimately no prejudice will be caused to him, whereas an interim direction to continue his employment would hold up the regular procedure for selection or impose on the State the burden of paying an employee who is really not required. 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 instruments to facilitate bypassing of the constitutional and statutory mandate.

Para 44- The concept of "equal pay for equal work" is different from the concept of conferring permanency on those who have been appointed on ad hoc basis, temporary basis, or based on no process of selection as envisaged by the rules. This Court has in various decisions applied the principle of equal pay for equal work and has laid down the parameters for the application of that principle. The decisions are rested on the concept of equality enshrined in our Constitution in the light of the directive principles in that behalf. But the acceptance of the principle cannot lead to a position where the court could direct that appointments made without following the due procedure established by law, be deemed permanent or issue directions to treat them as permanent. Doing so, would be negation of the principle of equality of opportunity. The power to make an order as is necessary for doing complete justice in any cause or matter pending before this Court, would not normally be used for giving the go-by to the procedure established by law in the matter of public employment. Take the situation arising in the cases before us from the State of Karnataka. Therein, after Dharwad decision the Government had issued repeated directions and mandatory orders that no temporary or ad hoc employment or engagement be given. Some of the authorities and departments had ignored those directions or defied those directions and had continued to give employment, specifically interdicted by the orders issued by the executive. Some of the appointing officers have been punished for their defiance. It would not be just or proper to pass an order in exercise of jurisdiction under Article 226 or 32 of the Constitution or in exercise of power under Article 142 of the Constitution permitting those persons engaged, to be absorbed or to be made permanent, based on their appointments or engagements. Complete justice would be justice according to law and though it would be open to this Court to mould the relief, this Court would not grant a relief which would amount to perpetuating an illegality.

Para 45- While directing that appointments, temporary or casual, be regularised or made permanent, the courts are swayed by the fact that the person concerned 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 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 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 avoid 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 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 (sic) 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.

Para 47- When a person enters a temporary employment or gets engagement as a contractual or casual worker and the engagement is not based on a proper selection as recognized by the relevant rules or procedure, he is aware of the consequences of the appointment being temporary, casual or contractual in nature. Such a person cannot invoke the theory of legitimate expectation for being confirmed in the post when an appointment to the post could be made only by following a proper procedure for selection and in cases concerned, in consultation with the Public Service Commission. Therefore, the theory of legitimate expectation cannot be successfully advanced by temporary, contractual or casual employees. It cannot also be held that the State has held out any promise while engaging these persons either to continue them where they are or to make them permanent. The State cannot constitutionally make such a promise. It is also obvious that the theory cannot be invoked to seek a positive relief of being made permanent in the post.

Hon''ble the Apex court in the case of Secretary, State of Karnataka and Others Vs. Umadevi and Others, , the relevant portion is being reproduced hereinbelow:-

In that case, a Constitution Bench of this Court held that appointments made without following the due process or the rules relating to appointment did not confer any right on the appointees and courts cannot direct their absorption, regularization or re-engagement nor make their services permanent, and the High Court in exercise of jurisdiction under Article 226 of the Constitution should not ordinarily issue directions for absorption, regularization, or permanent continuance unless the recruitment had been done in a regular manner, in terms of the Constitutional scheme; and that 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, nor lend themselves to be instruments to facilitate the bypassing of the constitutional and statutory mandates. This Court further held that a temporary, contractual, casual or a daily wage employee does not have a legal right to be made permanent unless he had been appointed in terms of the relevant rules or in adherence of Articles 14 and 16 of the Constitution.

Recently in the case of Manoj Kumar Sharma Vs. Regional Inspectress of Girls Schools, Agra and Others, wherein paragraphs 25, 26, 27 and 28 it has been held as under:-

This Court finds from the records that no procedure known to law in the matter of appointment of the petitioner on regular basis was adopted. Such appointment has necessarily to be held to be void, being violative of Article 14 of the Constitution of India.

Hon''ble Supreme Court of India has repeatedly held that any appointment made without advertisement of the vacancies, where the incumbent became entitled for the salary from the State exchequer, would be a nullity. The Hon''ble Supreme Court time and again has reiterated that selection on any public post must be held after due publication of advertisement in newspaper so that eligible candidates have an opportunity to participate in the selection.

In Secretary, State of Karnataka and Others Vs. Umadevi and Others, , a Constitution Bench of the Hon''ble Supreme Court came to the conclusion that adherence to the provisions of Articles 14 and 16 of the Constitution of India is a must in the process of public employment and an employee who has been appointed without following the procedure prescribed by law, is not entitled for any relief, whatsoever, including the salary. In Union Public Service Commission Vs. Girish Jayanti Lal Vaghela and Others, , the Hon''ble Supreme Court held that the appointment to any post under the State can only be made after a proper advertisement has been issued inviting applications from eligible candidates and holding of selection by a Body of Experts, and any appointment made without following the procedure, would be in violation of the mandate of Article 16 of the Constitution of India.

Keeping in view the said facts and law as laid down by the Constitution Bench of the Apex Court in the case of State of Karanataka and others vs. Uma Devi and others (supra) and in other cases are being summarised hereinbelow:-

(a)The Union, the State, their authorities and instrumentalities have resorted to irregular appointments, especially in the lower rung of the service, without reference to the duty to ensure a proper appointment procedure through the Public Service Commissions or otherwise as per the rules adopted and to permit these irregular appointees or those appointed on contract or on daily wages, to continue year after year, thus, keeping out those who are qualified to apply for the post concerned and depriving them of an opportunity to compete for the post.

(b)Every citizen of the country has a right to be appointed as a daily wager, on adhoc basis/temporary basis as enshrined under Articles 14 and 16 of the Constitution of India.

(c)Appointments of daily wager, adhoc or temporary employee are subject to Articles 14 and 16 of the Constitution of India.

(d)Appointments of daily wager, adhoc or temporary appointments are to be made after following proper procedure giving equal opportunity to every citizen of the country to apply, namely, through proper channel etc.

(e)Those daily wager, adhoc, temporary appointed persons who have been appointed without following proper procedure have no right of regularisation.

(f)The Court should not issue direction for their regularisation, if their initial appointments are not in accordance to law, merely on the ground that they worked for a long period.

(g)If their initial appointments as daily wager, adhoc/temporary are per se illegal and dehorse the principle of law, their regularisation is also illegal.

(h) All the decisions contrary to the view taken by the Constitution Bench of the Apex Court in the case of Secretary, State of Karanataka and others vs. Uma Devi and others (supra) stood over-ruled and are held not taken to be precedent.

In view of the abovesaid facts and as per the facts admitted by learned counsel for the petitioner that no procedure has been adopted for appointment of the petitioners as daily wagers on the post of Mali in the Social Forestry Department, U.P., rather, the appointment of the petitioners was clearly through the back-door and therefore they cannot claim retention in service as a matter of right nor do they have any claim for regularisation under the existing rules.

The contention raised in the writ petition that there are some other employees who continue to work in the department cannot ensure any benefit to the petitioners inasmuch as any illegality being perpetuated cannot be a ground to entertain the claim of the petitioners and protection of Article 14 of the Constitution of India, further the petitioners were engaged only on daily wage basis and never appointed against any sanctioned posts, thus, they are neither entitled for the relief as claimed by them for cancellation of the order of termination (oral) after summoning the same from the official respondents nor entitled to get the benefit of regularization of their services in view of paragraph 53 of the judgment passed by Hon''ble the Supreme Court in the case of Umadevi (supra), which deals with irregular appointments (not illegal appointments).

Further, Hon''ble the Supreme Court in the case of State of Bihar Vs. Upendra Narayan Singh and Others, has held as under:-

that any regular appointment made on a post under the State or Union without issuing advertisement, inviting applications from eligible candidates and without holding a proper selection where all eligible persons get a fair chance to compete is in violation of guarantee enshrined under Article 226 of the Constitution. Ad hoc/temporary/daily wage employees are not entitled to claim regularization in service as a matter of right. If an illegality or irregularity has been committed in favour of any individual or a group of individuals or a wrong order has been passed by a judicial forum, others cannot invoke the jurisdiction of the higher or superior Court for repeating or multiplying the same irregularity or illegality or for passing wrong order.

For the foregoing reasons, I do not find any illegality or infirmity in the impugned order dated 20.8.2003 passed by opposite party no. 4 under challenged in the writ petition, thus, the writ petition lacks merit and is dismissed.

No order as to costs.