Andhra HC (Pre-Telangana)
B. Babu And Others vs Vice-Chancellor, A.P. Agricultural ... on 12 February, 2001
Equivalent citations: 2001(3)ALD374, 2001(3)ALT554
Author: Satya Brata Sinha
Bench: Satya Bhata Sinha
ORDER Satya Brata Sinha, CJ.
1. This writ appeal is directed against the order dated 20-6-2000 passed by the learned single Judge of this Court in Rev. WP MP No.30521 of 1999, whereby and whereunder, the learned single Judge refused to review his judgment dated 4-8-1999, passed in WP No.6167 of 1998.
2. In the writ petition, the petitioners inter alia prayed for issuance of a writ, order or direction one in the nature of writ of mandamus declaring the action on the part of respondents in not considering their cases for appointment as NMRs in the Engineering Division of the University taking into consideration their services of several years, as illegal, and in violation of the principles of natural justice and the Constitution of India.
3. Having regard to the fact that the petitioners had been engaged as casual labourers in the year 1992, and continued as such till 1995, the learned single Judge came to the conclusion that they had no legal right to enforce by way of writ petition for they were not on the rolls of the respondents.
4. The learned Counsel appearing on behalf of the appellants, inter alia placing reliance on the decision of the Apex Court in Secretary, Haryana State Electricity Board v. Suresh and others, 1999 (3) Scale 315, submitted that the learned single Judge committed a serious error in not taking into consideration the totality of the facts, and further having regard to the length of service put in by the appellants, the learned single Judge ought to have directed regularisation of their services. He further contended that the name of one Kum. Vijaya Lakshmi, who was appointed as NMR much later to the appellants in the year 1993, was shown in the integrated seniority list prepared on 19-5-1997, and the exclusion of the names of the appellants from the seniority list, so as to deny them regularisation, is arbitrary and illegal.
5. It is now well settled principle in view of the decision of the Apex Court in Ashwani Kumar v. State of Bihar, , that regularisation cannot be a mode of service. A Division Bench of the Calcutta High Court in Tarak Chowdhury v. Sate of West Bengal 2000 (2) SLR 445, noticed several decisions of the Apex Court and held:
"It has not been disputed that the petitioner was appointed on ad hoc basis. At the time of his appointment, recruitment rules framed in terms of the proviso appended to Article 309 of the Constitution of India had not been followed. The State while granting appointment to a person is not only bound to follow the recruitment rules made in terms of the proviso appended to Article 309 of the Constitution of India but is also bound to give effect to the provisions of Articles 14 and 16 of the Constitution of India. No right, far less any enforceable right flows from such illegal appointments. The recruitment rules, inter alia, provide for grant of equal opportunity to be considered for appointment to all eligible candidates. A person who is appointed through backdoor cannot claim permanence only because he had been working for some time. Reference in this connection may be made to the case of Dr. Arundhati Ajit Pargaonkar v. State of Maharashtra and others and several decisions of the apex Court following the same. It is further well known in view of several decision of the Apex Court that only an irregular appointment can be regularised and not an illegal appointment. It is further well settled that regularisation cannot be a mode of recruitment (See R.N. Nanjundappa v. T. Thimmiah and B.W. Nagarajan v. State of Karnataka which decisions have been considered by the apex Court in V. Sreenivasa Reddy and others v. Government of Andhra Pradesh and others . It is now also well settled in view of the recent decisions of the apex Court in State of M.P. and others v. Dharam Bir , that the status of a person cannot be changed with the passage of time. A person who was appointed on temporary or ad hoc basis, thus cannot claim the status of a permanent servant only because he had worked for some time. The said decision along with other decisions had been considered by this Court in a large number of cases. Reference in this connection, however, may be made to Biman Ch. Kartnakar v. State of West Bengal reported in 1999 (2) CHN 289 and West Bengal Essential Commodities Supply Corporation limited v. Md. Sarif reported in 2000 (1) CHN 210 = [2000 (2) SLR 229 (Cal.)]. The aforementioned circular letter dated 3rd August, 1979 is not a statute. Even a policy decision cannot be adopted in derogation of statutory rules. Even the said purported memorandum dated 3rd August, 1979 is not an executive instruction within the meaning of Article 162 of the Constitution of India."
6. Therefore, the question as to whether a person is entitled to be regularized or not depends upon his status. Mere continuation in service for a long period of time, will by itself not change the status in the absence of any statutory rule providing therefor.
7. The decision of the Apex Court in Suresh (supra) whereupon the learned Counsel placed strong reliance, is misconceived and not at all applicable to the facts of the present case, inasmuch as in Suresh's case (supra), the concerned workmen were contract labourers and an industrial dispute was raised, whereunder a finding of fact has been recorded by the Labour Court to the effect that the appointment of the contractor was merely a smoke and a screen of the principal employer. The apex Court, lifting the veil of contract held that since there exits relationship of employer and employee between the employer and the contract labourers, the contract labourers were entitled to be continued in service, despite the termination of contract. The other observations made by the apex Court therein were per incurium, and more particularly having regard to the decision of the apex Court in Madhyamik Siksha Parishad, U.P. v. Anil Kumar Mishra, , wherein it was held:
We are unable to uphold the order of the High Court. There were no sanctioned posts in existence to which they could be said to have been appointed. The assignment was an ad hoc one which anticipatedly spent itself out. It is difficult to envisage for them, the status of workmen on the analogy of the provisions of Industrial Disputes Act, 1947, importing the incidents of completion of 240 days' work. The legal consequences that flow from work for that duration under the Industrial Disputes Act, 1947 are entirely different from what, by way of implication, is attributed to the present situation by way of analogy. The completion of 240 days work does not, under that law import the right to regularisation. It merely imposes certain obligations on the employer at the time of termination of the service. It is not appropriate to import and apply that analogy, in an extended or enlarged form here."
8. In the above view of the matter, and in view of the fact that the appellants have unsuccessfully questioned the original order passed by the learned single Judge by way of review, it is too late in the day for the appellants to say that there exists an error apparent on the face of the order passed by the learned single Judge.
9. The writ appeal has no merit, and it is accordingly dismissed. No costs.