Madras High Court
U.Chinnamariappan vs State Represented By on 19 March, 2018
Author: S.M.Subramaniam
Bench: S.M.Subramaniam
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 19.03.2018
CORAM
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
W.P.(MD)No.8801 of 2010
and
M.P.(MD) Nos.2 and 3 of 2010
1.U.Chinnamariappan
2.V.Eswaran
3.K.Sudalaimani
4.U.Murugan
5.S.Murugan
6.N.Pachaiperumal
7.A.Gnanakani
8.G.Poongodi
9.K.Panchavarnam
10.S.Muthulakshmi
11.M.Saroja
12.K.Valayaka ... Petitioners
Vs.
1.State represented by
Secretary to Government,
Health and Family Welfare Department,
Secretariat, Chennai.
2.The Director of Medical Education,
Kilpauk,
Chennai.
3.The Dean,
Thoothukudi Medical College & Hospital,
Thoothukudi. ... Respondents
PRAYER: Writ Petition is filed under Article 226 of the Constitution of
India, to issue a Writ of Certiorarified Mandamus, calling for the records in
connection with the impugned order made by the 3rd respondent in
e.f.vz.1818/epgp6/2010;, dated 19.06.2010 and quash the same and consequently
direct the respondents to consider the petitioners to grant permanent status
in the post of sanitary workers in 3rd respondent's institution on the basis
of Petitioners representation dated 14.06.2010.
!For Petitioners : Mr.S.Muthal Raj
^For Respondents: Mr.M.Muthu
Additional Government Pleader
:ORDER
The relief sought for in this writ petition is to call for the records in relation to the order of rejection passed by the third respondent dated 19.06.2010 and to consider the petitioners for granting permanent status in the post of sanitary workers in third respondent's institution.
2.The learned counsel for the writ petitioners states that the writ petitioners were working as Sanitary Workers in the third respondent Medical College & Hospital, Thoothukudi. The service certificate issued by the Dean of the Medical College & Hospital, Thoothukudi is enclosed along with the typed set of papers. The service certificates state that the writ petitioners were recruited by outsourcing agent i.e., Mrs.Sudha Labour Welfare Society, 49-B-11, Ponnagaram, Thoothukudi ? 5. Thus, all the writ petitioners were recruited by out sourcing agent namely, Mrs.Sudha Labour Welfare Society. The writ petitioners are working as outsourcing employees from the year 2002 onwards. The claim of the writ petitioners are that after establishment of a Medical College at Thoothukudi, the Head Quarters Hospital also was taken over along with the Hospital.
3.Under these circumstances, the staff working in Government Hospital were not taken over, in spite of the fact that the Government prescribed certain norms at the time of the Constitution of the Medical College at Thoothukudi. The writ petitioners had joined as Sanitary Workers on various dates in the year 2002 and treated as contract outsourcing employees and even after the Constitution of the Medical College, they are working in the Government Head Quarters Hospital and the permanent status in a sanctioned post has not been accorded to these writ petitioners. Thus, the writ petitioners are constrained to move the present writ petition.
4.The learned counsel for the writ petitioners further states that the writ petitioners are continuously working for more than 480 days in a period of 24 calender months. Thus, the authorities ought to have been considered, the case of the writ petitioners for permanent absorption, more so, on the ground that these writ petitioners had already completed more than 10 years of service.
5.The learned Additional Government Pleader appearing on behalf of the respondents made a submission that the writ petitioners were not at all appointed by the appointing authorities of the Medical Department. The writ petitioners were not recruited by the competent authorities in accordance with the recruitment rules in force.
6.It is not disputed that the writ petitioners were initially recruited by outsourcing agency. Thus, as per the Government policy these Hospital workers are engaged through outsourcing agency and therefore, they cannot consider as a Government employees at all. Their service conditions are in no way connected with the Government Department and the writ petitioners were not at all the employees of the ?State?. Thus, their claim for regularization or permanent absorption is not supported with any acceptable legal documents and accordingly, the writ petition deserves to be rejected.
7.Considering the arguments advanced by the learned counsel appearing for the writ petitioners and the learned Additional Government Pleader appearing for the respondents, this Court is of an opinion that the writ petitioners admittedly, were appointed by an outsourcing agent, namely, Mrs.Sudha, Labour Welfare Society, Thoothukudi ? 5. Thus, the initial appointments of the writ petitioners were not made by the competent appointing authorities of the ?State?. The writ petitioners were not appointed in accordance with the recruitment rules in force. The writ petitioners are continuing only as contract labourers and their services should be utilized based on the terms and conditions of the contract. Thus, as far as the State Employment is concerned, the appointments of the writ petitioners cannot be recognized for the purpose of granting regularization or permanent absorption. Regularization or permanent absorption cannot be granted in respect of the appointment made in violation of the recruitment rules in force.
8.All public appointments are to be made only under the Constitutional schemes and by following the recruitment rules in force. Equal opportunity in public employment is the Constitutional mandate. The competent authority has to provide equal opportunity to all the eligible candidates, while undertaking the process of selection to fill up the public post. Thus, there cannot be any deviation in respect of the adherence of the recruitment rules in the process of selection for appointment to the public posts. Thus, the writ petitioners have not established that they were appointed by the competent appointing authorities and in adherence with the rules relating to the recruitment. Accordingly, the writ petitioners cannot claim any right for regularization or permanent absorption, in view of the fact that their appointment are not only illegal, but also they were not appointed by the State authorities at all.
9.The claim of the writ petitioners that they have continuously served for more than 10 years cannot have any relevance in respect of the State Employment. Their services with the outsourcing agent cannot be construed and considered as a Government service. The question of grant of conferment of permanent status would not arise at all, in view of the fact that the writ petitioners were not engaged by the ?State?. Contrarily, they were recruited by the agency and in terms of the contract agency has assured the labourers to serve as Hospital workers in Government Medical College Hospital. Thus, the distinction is to be drawn in respect of the nature of appointment made in the policy of the Government in this regard for the purpose of improving the quality of service in Government Medical College Hospital. The policy of outsource has been adopted by the ?State? for the purpose of improving the quality of service to be provided in Medical College Hospital to the public in general. Improving medical facilities by the ?State? is the constitutional mandate and Article 21 of the Constitution, the grant of decision and adequate medical facilities become a fundamental right of the citizens of our great nation.
10.The ?State? is bound to provide decent medical facilities to all the citizens of our great nation and ensure a healthy life. The life is defined that it is not a mere animal life and it is a decent life. Thus, it is the duty mandatory on the part of the ?State? to ensure the medical facilities and clean environment for all the citizens of our great nation. The ?State? was unable to maintain certain area, securing the administrative complications which arose. Thus, the ?State? had taken a policy decision to outsource Hospital workers employed in Government Hospitals. Thus, cannot find fault with the policy decision taken by the Government and therefore, the employment serving as Hospital workers are recruited through the outsourcing agent and therefore, the same cannot be treated on par with the Government appointments.
11.This Court has to place on record that the private Hospitals are maintained in a clean and perfect manner, when the Government Hospitals possessing highly sophisticated and advanced medical equipment, still, they are unable to utilize in a proper manner and in a clean environment. The reasons being when the employees permanently appointed in such medical Hospitals are not performing their duties and responsibilities to the expectation of the public in general. There are many irregularities found by the public in general, more specifically, in Government Medical College Hospitals.
12.Corruption is a greatest enemy in such Government Hospitals and the poor patients, who are coming up for treatment are being harassed by the Hospital employees. The corruption in medical institutions are to be culled out in all respects. The ?State? should not show any leniency in respect of corrupt activities in medical colleges and the Hospitals. Thus, it is the duty mandatory on the part of the administration of the Hospitals to ensure that the patients coming to the Government Hospitals are treated properly and the equipment, bed and wards are maintained in clean environment. The Government is allotting huge funds for the maintenance and developments of the medical colleges. In spite of that the people are witnessing the medical college Hospitals are not maintained properly to the expectation of the people. Thus, the decision of the Government in outsourcing certain categories for the purpose of better maintenance of these medical college Hospitals cannot be found fault with. Thus, the writ petitioners cannot claim the benefit of regularization or permanent absorption in a Government posts and they were appointed by the private agency and it is cannot be considered as a Government servant at all.
13.The legal principles in relation to the regularization or permanent absorption are now settled by the Constitution Bench of the Hon'ble Supreme Court of India in the case of The Secretary, State of Karnataka and others Vs. Umadevi(3) and others reported in (2006) 4 Supreme Court Cases 1, wherein, at Paragraph 5,10,12,13,14,20 and 43 to 50, it is held as follows:
5. This Court has also on occasions issued directions which could not be said to be consistent with the Constitutional scheme of public employment. Such directions are issued presumably on the basis of equitable considerations or individualization of justice. The question arises, equity to whom? Equity for the handful of people who have approached the Court with a claim, or equity for the teeming millions of this country seeking employment and seeking a fair opportunity for competing for employment? When one side of the coin is considered, the other side of the coin, has also to be considered and the way open to any court of law or justice, is to adhere to the law as laid down by the Constitution and not to make directions, which at times,even if do not run counter to the Constitutional scheme, certainly tend to water down the Constitutional requirements. It is this conflict that is reflected in these cases referred to the Constitution Bench.
10. When these matters came up before a Bench of two Judges, the learned Judges referred the cases to a Bench of three Judges. The order of reference is reported in2003 (9) SCALE 187. This Court noticed that in the matter of regularization of ad hoc employees, there were conflicting decisions by three Judge Benches of this Court and by two Judge Benches and hence the question required to be considered by a larger Bench. When the matters came up before a three Judge Bench, the Bench in turn felt that the matter required consideration by a Constitution Bench in view of the conflict and in the light of the arguments raised by the Additional Solicitor General.
The order of reference is reported in 2003 (10) SCALE 388. It appears to be proper to quotethat order of reference at this stage. It reads:
1 . Apart from the conflicting opinions between the three Judges' Bench decisions in Ashwani Kumar and Ors. v. State of Bihar and Ors.reported in MANU/SC/0379/1997 : (1997)IILLJ856SC ,S tate of Haryana and Ors. v. Piara Singh and Ors. Reported in MANU/SC/0417/1992 :(1993)IILL J937SC and Dharwad Distt. P.W.D. Literate Daily Wage Employees Association and Ors. v. State of Karnataka and Ors.Reported in MANU/SC/0164/1990 : (1990)IILL J318SC , on the one hand and State of Himachal Pradesh v. Suresh Kumar Verma and Anr.
Reported in MANU/SC/0406/1996 : [1996]1SCR972 ,S tate of Punjab v. Surinder Kumar and Ors. Reported in MANU/SC/0306/1992 : [1992]194ITR434(SC), and B.N. Nagarajan and Ors. v. State of Karnataka and Ors. Reported in MANU/SC/0450/1979 : (1979)IILL J209SC on the other, which has been brought out in one of the judgments under appeal of Karnataka High Court in State of Karnataka v. H. Ganesh Rao decided on 1.6.2000, reported in2001 (4) KLJ 466, learned Additional Solicitor General urged that the scheme for regularization is repugnant to Articles 16(4), 309, 320 and 335 of the Constitution of India and, therefore, these cases are required to be heard by a Bench of Five learned Judges (Constitution Bench).
2. On the other hand, Mr. M.C. Bhandare, learned senior counsel, appearing for the employees urged that such a scheme for regularization is consistent with the provision of Articles 14 and 21 of the Constitution.
3.Mr. V. Lakshmi Narayan, learned Counsel, appearing in CC Nos. 109- 498of 2003, has filed the G.O. dated 19.7.2002 and submitted that orders have already been implemented.
4. After having found that there is conflict of opinion between three Judges Bench decisions of this Court, we are of the view that these cases are required to be heard by a Bench of five learned Judges.
5 . Let these matters be placed before Hon'ble the JChief Justice for appropriate orders.
We are, therefore, called upon to resolve this issue here. We have to lay down the law. We have to approach the question as a constitutional court should.
12.In spite of this scheme, there may be occasions when the sovereign State or itsinstrumentalities will have to employ persons, in posts which are temporary, on dailywages, as additional hands or taking them in without following the requiredprocedure, to discharge the duties in respect of the posts that are sanctioned and thatare required to be filled in terms of the relevant procedure established by theConstitution or for work in temporary posts or projects that are not needed permanently. This right of the Union or of the State Government cannot but berecognized and there is nothing in the Constitution which prohibits such engaging of persons temporarily or on daily wages, to meet the needs of the situation. But the fact that such engagements are resorted to, cannot be used to defeat the very scheme of public employment. Nor can a court say that the Union or the State Governments do not have the right to engage persons in various capacities for a duration or until the work in a particular project is completed. Once this right of the Government is recognized and the mandate of the constitutional requirement for public employment is respected, there cannot be much difficulty in coming to the conclusion that it is ordinarily not proper for courts whether acting under Article 226 of the Constitution or under Article 32 of the Constitution, to direct absorption in permanent employment of those who have been engaged without following a due process of selection as envisaged by the constitutional scheme.
13.What is sought to be pitted against this approach, is the so called equity arising out of giving of temporary employment or engagement on daily wages and the continuance of such persons in the engaged work for a certain length of time. Such considerations can have only a limited role to play, when every qualified citizen has aright to apply for appointment, the adoption of the concept of rule of law and the scheme of the Constitution for appointment to posts. It cannot also be forgotten that it is not the role of courts to ignore, encourage or approve appointments made or engagements given outside the constitutional scheme. In effect, orders based on such sentiments or approach would result in perpetuating illegalities and in the jettisoning of the scheme of public employment adopted by us while adopting the Constitution. The approving of such acts also results in depriving many of their opportunity to compete for public employment. We have, therefore, to consider the question objectively and based on the constitutional and statutory provisions. In this context,we have also to bear in mind the exposition of law by a Constitution Bench in Stateof Punjab v. Jagdip Singh and Ors. MANU/SC/0273/1963 : (1966)ILL J749SC . It was held therein, "In our opinion, where a Government servant has no right to a pos tor to a particular status, though an authority under the Government acting beyond its competence had purported to give that person a status which it was not entitled to give, he will not in law be deemed to have been validly appointed to the post or given the particular status."
14.During the course of the arguments, various orders of courts either interim or final were brought to our notice. The purport of those orders more or less was the issue of directions for continuation or absorption without referring to the legal position obtaining. Learned counsel for the State of Karnataka submitted that chaos has been created by such orders without reference to legal principles and it is time that this Court settled the law once for all so that in case the court finds that such orders should not be made, the courts, especially, the High Courts would be precluded from issuing such directions or passing such orders. The submission of learned Counsel for the respondents based on the various orders passed by the High Court or by the Government pursuant to the directions of Court also highlights the need for settling the law by this Court. The bypassing of the constitutional scheme cannot be perpetuated by the passing of orders without dealing with and deciding the validity of such orders on the touchstone of constitutionality. While approaching the questions falling for our decision, it is necessary to bear this in mind and to bring about certainty in the matter of public employment. The argument on behalf of some of the respondents is that this Court having once directed regularization in the Dharwad case (supra), all those appointed temporarily at any point of time would be entitled to be regularized since otherwise it would be discrimination between those similarly situated and in that view, all appointments made on daily wages, temporarily or contractually, must be directed to be regularized. Acceptance of this argument would mean that appointments made otherwise than by a regular process of selection would become the order of the day completely jettisoning the constitutional scheme of appointment. This argument also highlights the need for this Court to formally lay down the law on the question and ensure certainty in dealings relating to public employment. The very divergence in approach in this Court, the socalled equitable approach made in some, as against those decisions which have insisted on the rules being followed, also justifies a firm decision by this Court one way or the other. It is necessary to put an end to uncertainty and clarify the legal position emerging from the constitutional scheme, leaving the High Courts to follow necessarily, the law thus laid down.
20.The Decision in Dharwad Distt. P.W.D. Literate Daily Wage Employees Association and Ors. v. State of Karnataka and Ors. MANU/SC/0164/1990 :(1990)IILL J318SC dealt with a scheme framed by the State of Karnataka, though at the instance of the court. The scheme was essentially relating to the application of the concept of equal pay for equal work but it also provided for making permanent,or what it called regularization, without keeping the distinction in mind, of employees who had been appointed ad hoc, casually, temporarily or on daily wage basis. In other words, employees who had been appointed without following the procedure established by law for such appointments. This Court, at the threshold, stated that it should individualize justice to suit a given situation. With respect, it is not possible to accept the statement, unqualified as it appears to be. This Court is not only the constitutional court, it is also the highest court in the country, the final court of appeal. By virtue of Article 141 of the Constitution of India, what this Court lays down is the law of the land. Its decisions are binding on all the courts. Its main role is to interpret the constitutional and other statutory provisions bearing in mind the fundamental philosophy of the Constitution. We have given unto ourselves a system of governance by rule of law. The role of the Supreme Court is to render justice according to law. As one jurist put it, the Supreme Court is expected to decide questions of law for the country and not to decide individual cases without reference to such principles of law. Consistency is a virtue. Passing orders not consistent with its own decisions on law, is bound to send out confusing signals and usher in judicial chaos. Its role, therefore, is really to interpret the law and decide cases coming before it, according to law. Orders which are inconsistent with the legal conclusions arrived at by the court in the self same judgment not only create confusion but also tend to usher in arbitrariness highlighting the statement, that equity tends to vary with the Chancellor's foot.
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. High Courts acting under Article 226 of the Constitution of India, should not ordinarily issue directions for absorption, regularization, 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 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 forgiving 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 the Dharwad decision, the Government had issue deprecated directions and mandatory orders that no temporary or ad hoc employ mentor 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 of India 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 regularized or made permanent, courts are swayed by the fact that the concerned person 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 eyes open. It maybe true that he is not in a position to bargain -- not at arms 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 succor 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 of India.
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 regularized since the decisions in Dharwad (supra), Piara Singh (supra), Jacob, and Gujarat Agricultural University and the like, have given rise to an expectation in them that their services would also be regularized. 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 of Civil Service Unions v. Minister for the Civil Service 1985 Appeal Cases 374, National Buildings Construction Corporation v.S. Raghunathan MANU/SC/0550/1998 : AIR1998SC2779 and Dr. Chanchal Goyalv. State of Rajasthan MANU/SC/0133/2003 : [2003]2SCR112 . There is no case that any assurance was given by the Government or the concerned department 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 the Dharwad decision. Though, there is a case that the State had made regularizations in the past of similarly situated employees, the fact remains that such regularizations were done only pursuant to judicial directions, either of the Administrative Tribunal or of the High Court and in some case 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 regularized 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 regularization 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 recognized 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 concerned cases, 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 concerned department 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 un- equals 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 regularizing 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, 16and 309 so as to ensue 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 of India, 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.
14.The legal principles laid down by the Constitution Bench has been retreated by the two Hon'ble Judges of the Hon'ble Supreme Court of India, in the case of Secretary to Government, School Education Department, Chennai Vs. R.Govindaswamy and others reported in (2014) 4 Supreme Court Cases 769, para 8 is extracted here under:
8.This Court in State of Rajasthan V.Daya Lal has considered the scope of regularization of irregular or part-time appointments in all possible eventualities and laid down well-settled principles relating to regularization and parity in pay relevant in the context of the issues involved therein. The same are as under:(SCC p.435, para 12)
(i) The High Courts, in exercising power under Article 226 of the Constitution will not issue directions for regularization, absorption or permanent continuance, unless the employees claiming regularization had been appointed in pursuance of a regular recruitment in accordance with relevant rules in an open competitive process, against sanctioned vacant posts. The equality clause contained in Articles 14 and 16 should be scrupulously followed and Courts should not issue a direction for regularization of services of an employee which would be violative of the constitutional scheme. While something that is irregular for want of compliance with one of the elements in the process of selection which does not go to the root of the process, can be regularised, back door entries, appointments contrary to the constitutional scheme and / or appointment of ineligible candidates cannot be regularised.
(ii) Mere continuation of service by a temporary or ad hoc or daily- wage employee, under cover of some interim orders of the Court, would not confer upon him any right to be absorbed into service, as such service would be 'litigious employment'. Even temporary, ad hoc or daily-wage service for a long number of years, let alone service for one or two years, will not entitle such employee to claim regularisation, if he is not working against a sanctioned post. Sympathy and sentiment cannot be grounds for passing any order of regularisation in the absence of a legal right.
(iii) Even where a scheme is formulated for regularisation with a cut- off date (that is a scheme providing that persons who had put in a specified number of years of service and continuing in employment as on the cut-off date), it is not possible to others who were appointed subsequent to the cut- off date, to claim or contend that the scheme should be applied to them by extending the cut-off date or seek a direction for framing of fresh schemes providing for successive cut-off dates.
(iv) Part-time employees are not entitled to seek regularisation as they are not working against any sanctioned posts. There cannot be a direction for absorption, regularisation or permanent continuance of part-time temporary employees.
(v) Part-time temporary employees in government-run institutions cannot claim parity in salary with regular employees of the Government on the principle of equal pay for equal work. Nor can employees in private employment, even if serving full time, seek parity in salary with government employees. The right to claim a particular salary against the State must arise under a contract or under a statute.?
15.In view of the above observations, the relief sought for in this writ petition cannot be granted. Accordingly, the writ petition stands dismissed. However, there shall be no order as to costs. Consequently, the connected miscellaneous petitions are closed.
To
1.The Secretary to Government, Health and Family Welfare Department, Secretariat, Chennai.
2.The Director of Medical Education, Kilpauk, Chennai.
3.The Dean, Thoothukudi Medical College & Hospital, Thoothukudi.
.