Allahabad High Court
Raju Saini And Ors. 8414 (S/S)2007 vs The State Of U.P.Through The ... on 19 August, 2019
Equivalent citations: AIRONLINE 2019 ALL 1580
Author: Ajai Lamba
Bench: Ajai Lamba, Manish Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 2 Case :- SPECIAL APPEAL DEFECTIVE No. - 453 of 2011 Appellant :- Raju Saini And Ors. 8414 (S/S)2007 Respondent :- The State Of U.P.Through The Agriculture Production Commissi Counsel for Appellant :- Ashok Kumar Balediha Counsel for Respondent :- C.S.C.,I.P.Singh,N.C.Mehrotra Hon'ble Ajai Lamba,J.
Hon'ble Manish Mathur,J.
(C.M. Application No.59420 of 2011).
1. The application seeks condonation of delay in filing the special appeal.
2. Learned counsel for the applicant has not appeared to prosecute the application.
3. For reasons given in the affidavit accompanying the application for condonation of delay, the application is allowed.
4. Delay in filing the special appeal is hereby condoned.
Order Date :- 19.8.2019 Nishant/-
Court No. - 2Case :- SPECIAL APPEAL DEFECTIVE No. - 453 of 2011 Appellant :- Raju Saini And Ors. 8414 (S/S)2007 Respondent :- The State Of U.P.Through The Agriculture Production Commissi Counsel for Appellant :- Ashok Kumar Balediha Counsel for Respondent :- C.S.C.,I.P.Singh,N.C.Mehrotra Hon'ble Ajai Lamba,J.
Hon'ble Manish Mathur,J.
(ORAL)
1. Raju Saini and 9 others have preferred this special appeal/intra-Court appeal directed against order dated 01.03.2011 rendered in Writ Petition No.8414 (SS) of 2007 titled 'Raju Singh vs. Rajya Krishi Utpadan Mandi Parishad and 8 Others'.
Order dated 01.03.2011 was passed in terms of a detailed judgment delivered while dealing with Writ Petition No.1282 (SS) of 1999 titled 'Rakesh Kumar Srivastava and others vs. State of U.P. and others'.
2. Shri Rajeev Ratna Chaudhary, learned counsel for the respondent/State has informed the Court that it was a bunch of more than 60 cases that was decided by virtue of common judgment. Special Appeal against judgment rendered in Writ Petition No.1282 (SS) of 1999 (supra) has already been dismissed while dealing with Special Appeal No.316 of 2011 tilted 'Subhash Chandra and others vs. State of U.P. and others'.
It has also been pointed out that this Court of which one of us (Ajai Lamba, J.) was a member, has dealt with the issue in Special Appeal Defective No.832 of 2012 tilted 'Ram Naresh and Another vs. State of U.P. and Others'. The special appeal was dismissed vide order dated 24.05.2019.
3. We have gone through contents of the impugned order, and judgment rendered in Writ Petition No.1282 (SS) of 1999 (supra). We have also referred to order dated 24.05.2019 rendered in Special Appeal Defective No.832 of 2012 titled 'Ram Naresh and Another vs. State of U.P. and Others'.
From Ram Naresh's case (supra), the following (relevant portion) is required to be noticed:-
?5. We have considered the contention of Shri N.C.Mehrotra.
Indeed impugned order has been passed in terms of decision dated 1.3.2011 rendered in Writ Petition No.1282 (S/S) of 1999 titled 'Rakesh Kumar Srivastava & Others Vs. State of U.P. & Others'. By virtue of judgment dated 1.3.2011 (supra) as many as 68 cases were decided. In context of one of such cases, Special Appeal Defective No.450 of 2011, Vijay Singh vs. State of U.P. and others was filed and has been dismissed vide decision dated 30.4.2019.
Order dated 30.04.2019 is extracted herebelow:-
?1. Sri Vijay Singh has preferred the special appeal against the judgement rendered in Writ Petition No. 5915 (S/S) of 2000, titled, 'Gauri Snkar and 14 Others Vs. State of U.P. and Others'.
Vide impugned judgment dated 1st March, 2011 a bunch of writ petitions, including the one filed by appellant/writ petitioner were dismissed.
2. On going through the record, we find that at the point in time when the writ petition was filed in the year 2000, the petitioner was 30 years of age. The petitioner has been out of job since then. At this juncture, there would be no reason to adjudicate the right of the petitioner to claim regularization.
3. Be that as it may, a bunch of 68 petitions was filed while raising common grounds.
4. We have heard learned counsel for the appellant and learned counsel for the State.
We have gone through the contents of impugned judgment with the help of learned counsels.
5. It appears that the petitioners in the bunch of petitions challenged either orders of termination from service or disengagement or claimed regularization in service on various posts in Mandi Parishad. All the petitioners were engaged on work charge/Muster Roll on consolidated pay in various construction divisions in Rajya Krishi Utpadan Mandi Parishad.
6. It was brought out by the writ petitioners that there are three categories of employees serving in Mandi Prishad viz (i) those working on regular basis against duly sanctioned posts employed in accordance with service regulations in the establishment of the Parishad; (ii) persons engaged on daily wages, fixed pay, contract against sanctioned posts; and (iii) on work charge, Muster Roll and on fixed pay. Some of the persons employed on work charge and Muster Roll were diploma holder Engineers, who were engaged for the duties on the post of Junior Engineer.
7. It appears that on 12th February, 1999, State Government issued a Government Order terminating the services of employees who were appointed against various categories of posts during the period 1.4.1996 to 30.10.1997. Consequent directions were issued by Mandi Prishad for terminating the services of irregularly appointed employees.
8. Aggrieved by such action, large number of petitioners filed writ petitions. Vide judgment and order dated 11.08.2000 writ petitions were allowed by learned Single Judge; and also by Division Bench vide judgment dated 05.09.2000. One of the writ petitions viz. Writ Petition No. 1093 (S/B) of 1999 Ansuman Mishra Vs. State of U.P. was dismissed vide judgment dated 5.9.2000.
Judgment dated 5.9.2000 (Supra) passed by the Division Bench was assailed by the State Government in Hon'ble Supreme Court of India. The Hon'ble Supreme Court of India, vide decision dated 16th December, 2005 allowed the appeal and set aside the judgment of the High Court. Subsequently, a large number of clarification applications were filed in Hon'ble Supreme Court of India by persons who were engaged under contingency limit and who were again disengaged from service after pronouncement of judgment dated 16th December, 2005 (Supra).
9. So far as the claim of the appellant/writ petitioner is concerned, learned counsel for the appellant/writ petitioner has admitted that the writ petitioner was engaged on work charge/muster roll basis, without any selection process. Learned counsel, however, contends that the appellant/writ petitioner is entitled to parity with the other persons who have been allowed to continue in service.
10. In 2006(4) SCC 1 Secretary, State of Karnataka and others versus Umadevi (3) and others, Hon'ble Supreme Court of India has held in the following terms, in paras 43,44,45,46,47,48, 49,50,51,52, 53 and 54 :
"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 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. 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 the bypassing of the constitutional and statutory mandates.
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 that 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 [(1990) 2 SCC 396 : 1990 SCC (L&S) 274 : (1990) 12 ATC 902 : (1990) 1 SCR 544] 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 even 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.
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 void 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 succour 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 the 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 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.
46. Learned Senior Counsel for some of the respondents argued that on the basis of the doctrine of legitimate expectation, the employees, especially of the Commercial Taxes Department, should be directed to be regularised since the decisions in Dharwad [(1990) 2 SCC 396 : 1990 SCC (L&S) 274 : (1990) 12 ATC 902 : (1990) 1 SCR 544] , Piara Singh [(1992) 4 SCC 118 : 1992 SCC (L&S) 825 : (1992) 21 ATC 403 : (1992) 3 SCR 826] , Jacob [Jacob M. Puthuparambil v. Kerala Water Authority, (1991) 1 SCC 28 : 1991 SCC (L&S) 25 :(1991) 15 ATC 697] and Gujarat Agricultural University [Gujarat Agricultural University v. Rathod Labhu Bechar, (2001) 3 SCC 574 : 2001 SCC (L&S) 613] and the like, have given rise to an expectation in them that their services would also be regularised. The doctrine can be invoked if the decisions of the administrative authority affect the person by depriving him of some benefit or advantage which either (i) he had in the past been permitted by the decision-maker to enjoy and which he can legitimately expect to be permitted to continue to do until there have been communicated to him some rational grounds for withdrawing it on which he has been given an opportunity to comment; or (ii) he has received assurance from the decision-maker that they will not be withdrawn without giving him first an opportunity of advancing reasons for contending that they should not be withdrawn. [See Lord Diplock in Council for Civil Services Union v. Minister of Civil Service [1985 AC 374 : (1984) 3 All ER 935 : (1984) 3 WLR 1174 (HL)] , National Buildings Construction Corpn. v. S. Raghunathan [(1998) 7 SCC 66 : 1998 SCC (L&S) 1770] and Chanchal Goyal (Dr.) v. State of Rajasthan [(2003) 3 SCC 485 : 2003 SCC (L&S) 322] .] There is no case that any assurance was given by the Government or the department concerned while making the appointment on daily wages that the status conferred on him will not be withdrawn until some rational reason comes into existence for withdrawing it. The very engagement was against the constitutional scheme. Though, the Commissioner of the Commercial Taxes Department sought to get the appointments made permanent, there is no case that at the time of appointment any promise was held out. No such promise could also have been held out in view of the circulars and directives issued by the Government after Dharwad decision [(1990) 2 SCC 396 : 1990 SCC (L&S) 274 : (1990) 12 ATC 902 : (1990) 1 SCR 544]. Though, there is a case that the State had made regularisations in the past of similarly situated employees, the fact remains that such regularisations were done only pursuant to judicial directions, either of the Administrative Tribunal or of the High Court and in some cases by this Court. Moreover, the invocation of the doctrine of legitimate expectation cannot enable the employees to claim that they must be made permanent or they must be regularised in the service though they had not been selected in terms of the rules for appointment. The fact that in certain cases the court had directed regularisation of the employees involved in those cases cannot be made use of to found a claim based on legitimate expectation. The argument if accepted would also run counter to the constitutional mandate. The argument in that behalf has therefore to be rejected.
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 recognised 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.
48. It was then contended that the rights of the employees thus appointed, under Articles 14 and 16 of the Constitution, are violated. It is stated that the State has treated the employees unfairly by employing them on less than minimum wages and extracting work from them for a pretty long period in comparison with those directly recruited who are getting more wages or salaries for doing similar work. The employees before us were engaged on daily wages in the department concerned on a wage that was made known to them. There is no case that the wage agreed upon was not being paid. Those who are working on daily wages formed a class by themselves, they cannot claim that they are discriminated as against those who have been regularly recruited on the basis of the relevant rules. No right can be founded on an employment on daily wages to claim that such employee should be treated on a par with a regularly recruited candidate, and made permanent in employment, even assuming that the principle could be invoked for claiming equal wages for equal work. There is no fundamental right in those who have been employed on daily wages or temporarily or on contractual basis, to claim that they have a right to be absorbed in service. As has been held by this Court, they cannot be said to be holders of a post, since, a regular appointment could be made only by making appointments consistent with the requirements of Articles 14 and 16 of the Constitution. The right to be treated equally with the other employees employed on daily wages, cannot be extended to a claim for equal treatment with those who were regularly employed. That would be treating unequals as equals. It cannot also be relied on to claim a right to be absorbed in service even though they have never been selected in terms of the relevant recruitment rules. The arguments based on Articles 14 and 16 of the Constitution are therefore overruled.
49. It is contended that the State action in not regularising the employees was not fair within the framework of the rule of law. The rule of law compels the State to make appointments as envisaged by the Constitution and in the manner we have indicated earlier. In most of these cases, no doubt, the employees had worked for some length of time but this has also been brought about by the pendency of proceedings in tribunals and courts initiated at the instance of the employees. Moreover, accepting an argument of this nature would mean that the State would be permitted to perpetuate an illegality in the matter of public employment and that would be a negation of the constitutional scheme adopted by us, the people of India. It is therefore not possible to accept the argument that there must be a direction to make permanent all the persons employed on daily wages. When the court is approached for relief by way of a writ, the court has necessarily to ask itself whether the person before it had any legal right to be enforced. Considered in the light of the very clear constitutional scheme, it cannot be said that the employees have been able to establish a legal right to be made permanent even though they have never been appointed in terms of the relevant rules or in adherence of Articles 14 and 16 of the Constitution.
50. It is argued that in a country like India where there is so much poverty and unemployment and there is no equality of bargaining power, the action of the State in not making the employees permanent, would be violative of Article 21 of the Constitution. But the very argument indicates that there are so many waiting for employment and an equal opportunity for competing for employment and it is in that context that the Constitution as one of its basic features, has included Articles 14, 16 and 309 so as to ensure that public employment is given only in a fair and equitable manner by giving all those who are qualified, an opportunity to seek employment. In the guise of upholding rights under Article 21 of the Constitution, a set of persons cannot be preferred over a vast majority of people waiting for an opportunity to compete for State employment. The acceptance of the argument on behalf of the respondents would really negate the rights of the others conferred by Article 21 of the Constitution, assuming that we are in a position to hold that the right to employment is also a right coming within the purview of Article 21 of the Constitution. The argument that Article 23 of the Constitution is breached because the employment on daily wages amounts to forced labour, cannot be accepted. After all, the employees accepted the employment at their own volition and with eyes open as to the nature of their employment. The Governments also revised the minimum wages payable from time to time in the light of all relevant circumstances. It also appears to us that importing of these theories to defeat the basic requirement of public employment would defeat the constitutional scheme and the constitutional goal of equality.
51. The argument that the right to life protected by Article 21 of the Constitution would include the right to employment cannot also be accepted at this juncture. The law is dynamic and our Constitution is a living document. May be at some future point of time, the right to employment can also be brought in under the concept of right to life or even included as a fundamental right. The new statute is perhaps a beginning. As things now stand, the acceptance of such a plea at the instance of the employees before us would lead to the consequence of depriving a large number of other aspirants of an opportunity to compete for the post or employment. Their right to employment, if it is a part of right to life, would stand denuded by the preferring of those who have got in casually or those who have come through the backdoor. The obligation cast on the State under Article 39(a) of the Constitution is to ensure that all citizens equally have the right to adequate means of livelihood. It will be more consistent with that policy if the courts recognise that an appointment to a post in government service or in the service of its instrumentalities, can only be by way of a proper selection in the manner recognised by the relevant legislation in the context of the relevant provisions of the Constitution. In the name of individualising justice, it is also not possible to shut our eyes to the constitutional scheme and the right of the numerous as against the few who are before the court. The directive principles of State policy have also to be reconciled with the rights available to the citizen under Part III of the Constitution and the obligation of the State to one and all and not to a particular group of citizens. We, therefore, overrule the argument based on Article 21 of the Constitution.
52. Normally, what is sought for by such temporary employees when they approach the court, is the issue of a writ of mandamus directing the employer, the State or its instrumentalities, to absorb them in permanent service or to allow them to continue. In this context, the question arises whether a mandamus could be issued in favour of such persons. At this juncture, it will be proper to refer to the decision of the Constitution Bench of this Court in Rai Shivendra Bahadur (Dr.) v. Governing Body of the Nalanda College [1962 Supp (2) SCR 144 : AIR 1962 SC 1210] . That case arose out of a refusal to promote the writ petitioner therein as the Principal of a college. This Court held that in order that a mandamus may issue to compel the authorities to do something, it must be shown that the statute imposes a legal duty on the authority and the aggrieved party had a legal right under the statute or rule to enforce it. This classical position continues and a mandamus could not be issued in favour of the employees directing the Government to make them permanent since the employees cannot show that they have an enforceable legal right to be permanently absorbed or that the State has a legal duty to make them permanent.
53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa [(1967) 1 SCR 128 : AIR 1967 SC 1071] , R.N. Nanjundappa [(1972) 1 SCC 409 : (1972) 2 SCR 799] and B.N. Nagarajan [(1979) 4 SCC 507 : 1980 SCC (L&S) 4 : (1979) 3 SCR 937] and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the courts or of tribunals. The question of regularisation of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases abovereferred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularise as a one-time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularisation, if any already made, but not sub judice, need not be reopened based on this judgment, but there should be no further bypassing of the constitutional requirement and regularising or making permanent, those not duly appointed as per the constitutional scheme.
54. It is also clarified that those decisions which run counter to the principle settled in this decision, or in which directions running counter to what we have held herein, will stand denuded of their status as precedents."
(Emphasised by us)
11. Considering the fact that the appellant/writ petitioner was not appointed through process of selection, the case of the appellant/writ petitioner would be covered against the appellant by virtue of judgment rendered by Hon'ble Supreme Court of India in Umadevi's case (supra).
12. So far as the claim on the basis of parity is concerned, in the considered opinion of the Court, equality cannot be claimed in illegality. If a wrong has been committed, the same cannot be perpetuated by virtue of orders passed by the writ court.
13. Considering the totality of facts and circumstances of the case, noted above, in peculiar facts and circumstances of this case, we find that no relief can be granted in favour of appellant/writ petitioner.
14. The appeal is dismissed.?
6. In view of decision rendered in Special Appeal Defective No.450 of 2011 titled 'Vijay Singh vs. State of U.P. and others' extracted above; and decision rendered in Special Appeal No. 316 of 2011 titled 'Subhash Chandra and others vs. State of U.P. and others' and other connected appeals, this appeal is dismissed.?
4. The appeal is dismissed in terms of judgments rendered in Special Appeal Defective No.450 of 2011 titled 'Vijay Singh vs. State of U.P. and Others' AND Special Appeal No.316 of 2011 titled ''Subhash Chandra and others vs. State of U.P. and others' and order dated 24.05.2019 (supra), portion of which has been extracted above.
5. Since counsel for the appellant has not appeared, we hereby provide that in case the legal position is otherwise, the appellants would be at liberty to file an application bringing to our notice law otherwise, within 30 days from today.
Order Date :- 19.8.2019 Nishant/-