Allahabad High Court
Salil Kumar Khare vs District Leprosy Society Mahoba And ... on 17 October, 2019
Equivalent citations: AIRONLINE 2019 ALL 2618
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 34 Case :- WRIT - A No. - 12999 of 2004 Petitioner :- Salil Kumar Khare Respondent :- District Leprosy Society Mahoba And Others Counsel for Petitioner :- J.H. Khan,Hari Shanker Singh,Tarun Kumar Tripathi,W.H. Khan Counsel for Respondent :- C.S.C.,R.R.K.Mishra Hon'ble Sudhir Agarwal,J.
1. Heard Sri Hari Shankar Singh, learned counsel for petitioner and learned Standing Counsel for State-respondents.
2. Petitioner was engaged on contract basis as Para Medical Worker/Non-Medical Assistant under National Lerposy Eradication Programme and State Level Leprosy Societies. This writ petition has been filed seeking a mandamus commanding respondents to regularize services of petitioner on aforesaid post.
3. Despite repeated query, learned counsel for petitioner could not show any statutory provision whereunder petitioner is entitled to be considered for regularization on the post of Para Medical Worker/Non-Medical Assistant on which he has been working since 1993. It is also evident from record that after expiry of period of his contractual engagement on said post, the same was extended from time to time, but his engagement was not continuous.
4. The question whether regularisation can be allowed simply because a person has worked for some time has been considered in a catena of decisions by various Courts. A Constitution Bench in Secretary, State of Karnataka Vs. Uma Devi (2006) 4 SCC 1 has held that regularisation is not a source of recruitment and if initial appointment was made without complying with the requirement of Article 16 (1) of Constitution, regularisation is not permissible particularly in absence of any statutory provision. I do not propose to give exhaustive list of all such cases, but it would be appropriate to place on record as to how the matter, of late, has been treated by the Apex Court in the light of the law laid down by Constitution Bench in Uma Devi (supra). Deprecating practice of State making appointment in ad hoc manner without caring to the recruitment in accordance with rules, the Court in State of Karnataka & others Vs. G.V. Chandrashekhar JT 2009 (4) SC 367 said that State Government should not allow to depart from normal rule and indulge in temporary employment in permanent posts. Court is bound to insist upon the State to make regular and proper recruitment. The Court is also bound not to encourage or shut its eyes to the persistence transgression of the rules of regular recruitment. Any direction to the State to consider the persons for regularisation even though they have not been recruited in accordance with rules would only encourage the State to flout its rules and to confer undue benefits on a selected few at the cost of many waiting to compete. 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 of law and even a Court of equity would certainly be disabled to pass an order upholding violation of Article 14 or directing the State to overlook the need of compliance of Article 14 read with 16 of Constitution of India and thereby give certain advantage to a person who is beneficiary of such violation. Considering the scheme of public employment in the context of fundamental rights and in particular the right of equal opportunity of employment, this Court would insist upon appointment to be made in terms of relevant rules and after a proper competition amongst qualified persons instead of conferring a right on non selected appointees who have come from a channel not recognised in law. Such appointees cannot be conferred a valid entry being in breach of Articles 14 and 16 of the Constitution. In G.V. Chandrashekhar (supra), the Apex Court also said :
"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."
5. The same view has been reiterated in Man Singh Vs. Commissioner, Garhwal Mandal, Pauri & others JT 2009 (3) SC 289.
6. In State of Bihar Vs. Upendra Narayan Singh & others (2009) 5 SCC 65, Court held 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 regularisation 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.
7. In Pinaki Chatterjee & others Vs. Union of India & others 2009 (5) SCC 193, Court observed that it is no doubt true that respondents under certain circumstances had been appointed directly as casual Mates and they continued as such and further by virtue of their continuance, they acquired temporary status but that by itself does not entitle them to be regularised as Mates since that would be contrary to the rules in force. The Court further held that the respondents did not acquire a right for regularisation as Mates from the mere fact of their continuance as casual mates for a considerable period.
8. State of Uttaranchal Vs. Alok Sharma & others JT 2009 (6) SC 463, Harminder Kaur & others Vs. Union of India & others 2009 (7) SCALE 204, State of Madhya Pradesh & another Vs. Mohd. Abrahim 2009 (7) SCALE 609, State of Rajasthan & others Vs. Jagdish Narain Chaturvedi 2009 (8) SCALE 28, General Manager, Uttaranchal Jal Sansthan Vs. Laxmi Devi & others (2009) 7 SCC 205, State of Punjab & others Vs. Surjit Singh & others JT 2009 (10) SC 424, State of Rajasthan and others Vs. Daya Lal & others 2011(2) SCC 429 and State of Bihar Vs. Chandreshwar Pathak (2014) 13 SCC 232 are some other authorities where Apex Court has reiterated the same view.
9. In view of the above discussion, I find that neither the petitioner is entitled for regularisation nor the relief as sought in the present writ petition can be allowed to the petitioner.
10. The writ petition is devoid of merit and it is dismissed accordingly.
11. Interim order, if any, stands vacated.
Order Date :- 17.10.2019 Manish Himwan