Punjab-Haryana High Court
Mahender Singh And Ors. vs State Of Haryana And Ors. on 25 April, 2006
Equivalent citations: (2006)143PLR491
Author: M.M.S. Bedi
Bench: M.M.S. Bedi
JUDGMENT M.M. Kumar, J.
1. The prayer made in this writ petition is for quashing order dated 2-9-2003 (Annexure P-5) whereby the claim of the petitioner for regularisation has been rejected. A further direction has been sought to the respondents to regularise the services of the petitioner as a labourer w.e.f. 1.2.1996 by following the policy instructions dated 18.3.1996 (Annexure P-6).
2. The petitioner has pleaded that he has been appointed as a labourer on daily wage basis in 1982. Pursuant to the directions issued on 4.11.1992 by this Court in C.W.P. No. 1 131 of 1989 the claim of the petitioner has been considered by the respondents and his claim for regularisation of his services have been rejected by a detailed order dated 2.9.2003 (Annexure P-5) which reads as under:
Government of Haryana has formulated two policies for regularisation of services of daily paid labourers/workers vide letters dated 27.5.1993 and dated 18.3.1996. As per the orders given by the Hon'ble High Court in C.W.P. No. 1131 of 1989 on dated 4.11.199.2 the record of Sh. Mahender Singh s/o Sh. Duli Chand r/o village & P.O. Mattanhail, Tehsil and Distt. Jhajjar was looked into in accordance of these policies of the Haryana Govt. and the applicant was not found eligible for regularisation and such speaking orders were issued by this office order No. 31/RSFP dated 29.10.2002.
Sh. Mahender Singh s/o Duli Chand had filed a C.O.C.P. No. 1082 in C.W.P. No. 1131 of 1989 in Hon'ble Punjab and Haryana High Court, Chandigarh. Deciding this C.O.C.P. On. dated 3.2.2003 the Hon'ble High Court ordered to reconsider the case of the petitioner in light of the judgment by this Hon'ble Court in the case of Tek Chand and Ors. v. State of Haryana.
In case of Shri Tek Chand and Ors. v. State of Haryana, the Hon'ble Punjab and Haryana High Court, Chandigarh while deciding various writ petitions regarding regularisation policies of 1993 & 1996 of Haryana Govt. had taken decision regarding presence of the daily wager on dated January 31, 1996 and absence of more than one month.
Sh. Mahender Singh s/o Sh. Duli Chand had started working in this division w.e.f. 10/88 and this labourer has not worked during 2/89, 4/89 to 5/89, 7/89, 10/89, 12/90, 3/91 to 4/91, 6191, 12/91, 4192 after that, this labour was also not present on work on 31.3.93. So Sh. Mahender Singh s/o Sh. Duli Chand does not fulfill all the conditions of regularisation as per instruction dated 27.5.1973 of the Govt. of Haryana and the decision taken by the Hon'ble High Court in the case of Sh. Tek Chand and Ors. v. State of Haryana.
Sh. Mahender Singh s/o Sh. Duli Chand has worked for 12 days only during 9/93 and has not worked at all during 10/93. This Labourer was also not present on work on 31.1.96 and has not worked w.e.f. 13.9.93 to 31.10.93 (49 days). So this labourer does not fulfill all the conditions of regularisation as per instructions dated 18.3.96 of the Govt. of Haryana and the decision taken by the Hon'ble High Court in the case of Shri Tek Chand and Ors. v. State of Haryana.
3. The respondents have given a categorical finding that the petitioner had worked only for 12 days during September, 1993 and has not worked at ail in October, 1993. He has also been shown to be absent on 31.1.1990 and has not worked w.e.f. 13.9.1993 to 31 10.1993.
4. The respondents have taken a stand that the petitioner is not entitled for regularisation of his services w.e.f. 1.2.1996 on account of break of more than 30 days in the years 1991, 1992 and 1993, as mentioned in paragraph 13 of the reply on merits. It has also been asserted that the action of the respondents in refusing to regularise the services of the petitioner does not suffer from any legal infirmity which might have infringed his right under Article 14 and 16(1) of the Constitution. The impugned order (Annexure P-5) passed by the respondents is claimed to be a speaking order, which has been passed in accordance with the instructions.
5. We have heard learned Counsel for the parties and are of the view that order dated 02.09.2003 (Annexure P-5) rejecting the claim of the petitioner for regularisation deserves to be upheld. Apart from the view taken by the respondents rejecting the claim of the petitioner on account of long breaks and non fulfillment of the conditions of policy instructions, a more fundamental issue which has fallen for consideration of the Constitutional Bench of the Hon'ble Supreme Court in the case of Secretary, State of Karnataka and Ors. v. Umadevi and Ors. 2006(4) S.C. 420 has been cited before us. It has now been laid down that no writ of mandamus could be issued to the State or instrumentalities of the State requiring them to regularise the services of an employee unless it is shown that his appointment to the service was consistent with the provisions of Article 14 and 16(1) of the Constitution. In other words it is required to be shown by the petitioner that there was an advertisement issued for filling up the posts and competing claims of all the persons available in the market were taken into consideration while selecting the petitioner (Para 14 and 15 of judgment). If there is any irregularity which might have cropped up in the aforementioned process, one time concession has been grained to the Union of India/State Governments or instrumentalities of the States to frame a policy in respect of those employees who have continued with them regularly for a period of 10 years (para 44). However, the Hon'ble Supreme Court has categorically held that the procedure for appointment has to be consistent with Article 14 and 16(1) of the Constitution and the same is held to be the basic structure of the consideration. In other words any appointment made by back door entry cannot be held to confer any right on an employee, who from the day one is aware about the nature of his appointment and the consequences which may flow from such appointment.
6. In the present case nothing has been shown that the appointment of the petitioner was made consistent with the requirement of Articles 14 and 16(1) of the Constitution after issuing advertisement and considering the competing claims of the persons, who might have been eligible to be considered. Therefore, in view of the fundamental issue decided by the Hon'ble Supreme Court, we are unable to issue any mandamus directing the respondents to consider the case of the petitioner for regularisation because no legal right has come to be vested in the petitioner. It is well settled that in order to succeed in obtaining a writ in the nature of mandamus a legal right has to be in existence and only then the respondents can be asked to perform their legal duties. The aforementioned decision has been reiterated by the Constitution Bench judgment in the case of Uma Devi (supra) by placing reliance on an earlier.
7. Constitution Bench Judgment in the case of Dr. Rai Shivendra Bahadur v. The Governing Body of the Nalanda College (1962) Supp. 2 S.C.R. 144. In view of the above, the writ petition fails and is dismissed.