Soma Kumar vs Union of India through Secretary

The petitioners are seeking issuance of writ of mandamus commanding the respondents not to terminate the services of the petitioners and to

regularize their services.

The petitioners have averred in the petitions that they were engaged as Daily Wagers on 28th August, 1995 to work as Data

Operators/Computer Operators with the assurance extended by the Respondent No.3 that their services will be regularized against permanent

vacancies. The Respondent No.3 has now declared that they shall be ousted as their services are no more required. Feeling aggrieved of that

threat, the petitioners have filed the petitions praying that Respondent No. 3 is bent upon to terminate the services of the petitioners without

assigning any reason, which shall be against the law and the principles of natural justice and that the proper course is to regularize the services of

the petitioners as they have remained engaged continuously for over one and half year.

The Respondents have filed the objections stating therein that the work of maintenance of G.P.Fund Accounts pertaining to the employees of

State Government was being done by the respondents. It was taken over by the State Government with effect from 1.4.1986 and the answering

respondents were required to transfer the balances as on 31 st March, 1986 to J&K State Funds Organization. This job could not be done

because of the ongoing militancy and various other reasons, therefore, the target was fixed to complete the balance work by the respondents till

June, 1994. Because of the Head Office at Srinagar, the desired target could not be achieved and a part of the work, in order to achieve the

target, was shifted to Jammu in Feb. 1995. Additionally, another step was taken by the respondents to computerize the work, for which the

services of some typists were hired on Daily Wages including the petitioners. Therefore, with the completion of the work in August/September,

1996, the answering respondents had no alternative but to disengage the services of the petitioners as no work is left to be done by them. Regular

staff available with the respondents is sufficient enough to complete the residual work. The petitioners were employed on daily wage basis and

were being paid the wages from the Contingent Grant available with the respondents and also were being paid for the period they have worked.

The engagement of the petitioners as Daily Wagers does not give them any cause for seeking their regularisation under any provision of law.

I have heard the learned counsel for the parties and perused the record.

During the course of the arguments, Mr. Kohli, learned Sr. Counsel for the petitioners has produced two lists of the Staff, which were earlier

engaged on Daily Wages and subsequently regularised by the respondents. Mr. Salathia, learned counsel for the respondents has neither owned

nor disowned the statement. The contention of the learned counsel for the petitioners is that since the earlier staff engaged, which is shown in these

two lists, being engaged on Daily Wages stood regularized against regular vacancies, therefore, the petitioners seeking parity, should also be

regularized following the same practice. The argument of learned counsel for the petitioners though appealing is not sustainable in law. The

respondents might have regularized the services of the Daily Wagers, but in order to seek parity, Mr. Kohli has not made out as to in exercise of

what provision of law or the authority, the respondents have regularized the services of the said Daily Wagers. The petitioners seeking parity are

under obligation, before they set up their right to claim such relief, to show that the action of the respondents to regularize the services of the said

Daily Wagers was protected under the provisions of any law and the respondents have exercised the power vested in them by law. Any action of

any authority, which is not protected or covered under law or is issued as a favor or in violation of the rules, cannot be said to be a valid action

though it may remain sustainable till challenged. If the action of the respondents turns out as invalid, the petitioners cannot seek parity as the

concept of parity in terms of discrimination is a positive and not negative concept. Mr. Kohli could not make out and prove discrimination in terms

of Article 14 of the Constitution of India. 6 The respondents in their objective have stated that the posts available with them are required to be

filled up by the duly selected candidates through regular selection by Staff Selection Commission, New Delhi for which there is a set procedure

adopted by the Commission and the respondents have no authority to consider the petitioners under any law for regularizing their services. Mr.

Salathia, learned counsel for the respondents has cited in support of his contention, AIR 1997 SC 352, which is not relevant in the present case.

He has also cited AIR 1996 SC 1565, wherein it is held that:

'It is seen that the project in which the respondents were engaged had come to an end and that, therefore, they have necessarily been terminated

for want of work. The court cannot give any directions to reengage them in any other work or appoint them against existing vacancies. Otherwise,

the judicial process would become other mode of recruitment dehors the rules.

The petitioners, merely because they have been engaged as Daily Wagers, have no right to seek regularization against the vacant posts with the

Respondents. The employment cannot be distributed by the authorities by engaging daily wagers and thereafter appointing them on substantive

basis which shall be against the rules and procedure for selection and recruitment. The employment is a public property and all the eligible

candidates have a right of consideration. The petitioners can also seek consideration along with others, when the posts are advertised by the

selection authority. No case for grant of relief to the petitioners is made out. The petitions are accordingly dismissed along with connected interim

applications. Interim direction, if any, shall stand vacated.