Gujarat High Court
Shardaben N Patel & 2 vs State Of Gujarat & on 15 September, 2014
Author: Jayant Patel
Bench: Jayant Patel, C.L. Soni
C/LPA/923/2014 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS PATENT APPEAL NO. 923 of 2014
In SPECIAL CIVIL APPLICATION NO. 8799 of 2013
With
LETTERS PATENT APPEAL NO. 924 of 2014
In
SPECIAL CIVIL APPLICATION NO. 8800 of 2013
With
LETTERS PATENT APPEAL NO. 1006 of 2014
In
SPECIAL CIVIL APPLICATION NO. 8800 of 2013
With
LETTERS PATENT APPEAL NO. 1015 of 2014
In
SPECIAL CIVIL APPLICATION NO. 8799 of 2013
With
CIVIL APPLICATION NO. 9470 of 2014
With
CIVIL APPLICATION NO. 9471 of 2014
With
CIVIL APPLICATION NO. 10052 of 2014
With
CIVIL APPLICATION NO. 9862 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE JAYANT PATEL Sd/-
and
HONOURABLE MR.JUSTICE C.L. SONI Sd/-
================================================================
1 Whether Reporters of Local Papers may be allowed to see No
the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
Page 1 of 25
C/LPA/923/2014 CAV JUDGMENT
4 Whether this case involves a substantial question of law as No
to the interpretation of the Constitution of India, 1950 or any
order made thereunder ?
5 Whether it is to be circulated to the civil judge ? No
================================================================
SHARDABEN N PATEL & 2....Appellant(s)
Versus
STATE OF GUJARAT & 11....Respondent(s)
================================================================
Appearance:
MS. NIMISHA SHARMA, ADVOCATE for the Appellant(s) No. 1 - 3
MR HS MUNSHAW, ADVOCATE for the Respondent(s) No. 2
================================================================
CORAM: HONOURABLE MR.JUSTICE JAYANT PATEL
and
HONOURABLE MR.JUSTICE C.L. SONI
Date : 15/09/2014
CAV JUDGMENT
(PER : HONOURABLE MR.JUSTICE C.L. SONI)
1. First three appeals were heard on 2.9.2014 and reserved for order. Thereafter, the fourth appeal was heard on 8.9.2014 and reserved for order with the above said first three appeals as in all the appeals, the issue raised is as regards regularization of the services of the Female Health Workers.
2. Letters Patent Appeal No.923 of 2014 and 1015 of 2014 are against the judgment rendered by the learned Single Judge in Special Civil Application No. 8799 of 2013. Letters Patent Appeal No.924 of 2014 and 1006 of 2014 are against the judgment rendered by the Page 2 of 25 C/LPA/923/2014 CAV JUDGMENT learned Single Judge in Special Civil Application No. 8800 of 2013.
3. Special Civil Application No. 8799 of 2013 was preferred for the following prayers made in para 8(A),(B) and (C):
"8(A) be pleased to allow this petition.
(B) be pleased to issue a writ of mandamus or any other appropriate writ, order or direction by directing the respondents herein to consider the case of the petitioner in light of the directions issued by the Hon'ble Supreme Court in case of Secretary, State of Karnataka and Ors. Vs. Umadevi and others 2006(4) SCC 1 paragraph no.53 and regularize their services and/or further be pleased to restrain the respondents from terminating the services of the petitioners till the petitioners services are regularized or till the regularly selected candidates are available.
(C) Pending admission, hearing and final disposal of this petition, be restrained to restrain the respondents from terminating the services of the petitioners till the petitioners services are regularized or till the regularly selected candidates are available."
Special Civil Application No. 8800 of 2013 was preferred for the following prayers made in para 19(A), (C), (D) and (G):
"19(A) YOUR LORDSHIPS, may be pleased to issue a writ in the nature of Mandamus or any other appropriate writ/s, order/s, and/or direction/s to quash and set aside the impugned order dated 06.03.2012 (Annexure-A) and further stay implementaton/execution/operation and enforcement of the order.
(C) YOUR LORDSHIPS, may be pleased to permanently restrain the respondents from terminating the petitioners services as female health workers.
(D) Pending admission and final hearing of the present petition, YOUR LORDSHIPS may be pleased to stay the impugned order dated 06.03.2013 (Annexure - A) and direct the respondents not to relieve/replace the services of the petitioners and not to put an end to the services of the petitioners and continue the services of the petitioners on the Page 3 of 25 C/LPA/923/2014 CAV JUDGMENT same terms and conditions without any break.
(G) YOUR LORDSHIPS, may be pleased to direct the respondent authorities to absorb and regularize the services of the petitioners as female health workers from the date on which they have joined the services with the respondent authority (i.e. from the date of initial appointment) at their respective centres."
4. The case of the petitioners in Special Civil Application No. 8799 of 2013 is that they were selected for training for the post of Female Health Worker and completed training of one and half year successfully. The Government vide communication dated 5.12.1994 sanctioned 67 posts of Female Health Worker for Ahmedabad District out of total 825 posts throughout the State. The Government then issued direction to the Panchayat Service Selection Board to take examination of the petitioners and identically situated trainees for regular appointment. However, the examination was not taken but due to shortage of Female Health Workers, the Government decided to permit ad-hoc appointments. The petitioners were then issued call letters for interview and were appointed on the basis of such interview in the month of January, 1996 as Female Health Workers on ad-hoc basis for a period of six months but thereafter continued from time to time and as on the date of filing of the petition, completed the continuous service of 17 years without any break. In the year 2010, the Government had issued advertisement for filing the posts of Female Health Worker and, therefore, the petitioners and other employees had preferred different petitions. Learned Single Judge of this Court dismissed such petitions against which the Letters Patent Appeals were preferred and the same were also dismissed by Page 4 of 25 C/LPA/923/2014 CAV JUDGMENT the Division Bench on 27.7.2010 on the basis of the earlier decision rendered in similar matters being Letters Patent Appeal No. 85 of 2010 and allied matters. It is the further case of the petitioners that even after the above said judgment, the petitioners were continued in service. They applied for regularization pursuant to advertisement issued in the year 2011 which was rejected by cyclostyled order dated 18.5.2012. It is also their case that earlier when the petitions were decided, the decision in the case of Secretary, State of Karnataka and Ors. Vs. Umadevi and others 2006(4) SCC 1 was not considered and as per this decision, services of the petitioners are required to be regularized.
5. In so far as the petitioners of Special Civil Application No. 8800 of 2013 - appellants in Letters Patent Appeal No. 924 of 2014 and 1006 of 2014 are concerned, it is their case that right from January, 1996, their ad-hoc appointments as Female Health Workers have been continued. However, the respondents have now come out with advertisement for replacing them by new candidates on contract basis. As per the new policy of the State Government, such new appointments shall be on fixed salary basis not exceeding Rs.4500.00 per month. They have averred that they have acquired experience by serving for more than 17 years and need to be absorbed and regularized. They have challenged order dated 6.3.2012 passed against them to put an end to their service and sought direction not to terminate their services and to absorb and Page 5 of 25 C/LPA/923/2014 CAV JUDGMENT regularize their services as Female Health Workers from the date when they joined the services with the respondents.
6. Learned Single Judge decided both the petitions by common judgment. Learned Single Judge came to the conclusion that the plea of regularization by second round of litigation was barred by the principles of constructive res-judicata and also came to the conclusion that the petitioners were aware that their appointments were without following the prescribed procedure with clear stipulations in their appointment orders that they were appointed on ad-hoc basis and since the Division Bench of this Court had categorically held that the direction to regularize their services could not be granted, the petitions deserved dismissal. Accordingly the petitions were dismissed.
7. We have heard the learned advocates for the parties. Learned Senior Advocate Mr. Shalin N. Mehta appearing with learned advocate Ms. Nimisha Sharma for the petitioners submitted that all the appellants having completed about 17 years of continuous service as Female Health Worker are entitled to urge for regularization of their services as per the directions issued by the Hon'ble Supreme Court in the case of Umadevi (supra). Mr. Mehta submitted that the principle of res-judicata has no place to stand in the facts of the case as, irrespective of the appellants approaching the Court for regularization of their services in terms of the decision in the case of Umadevi Page 6 of 25 C/LPA/923/2014 CAV JUDGMENT (supra), it was obligatory on the part of the State to undertake an exercise for regularization of the services of the employees who have put in more than ten years continuous service. Mr. Mehta submitted that in the case of State of Karnataka and others versus M.L.Kesari and others reported in (2010) 9 SCC 247, Hon'ble Supreme Court has made above aspects very clear by observing that those employees who were not considered in terms of para 53 of Umadevi's case were required to be considered within six months and no employee was required to approach the Court. Mr. Mehta submitted that when such was the declaration of law, and since the decision in the case of Umadevi was not brought to the notice of the Division Bench at the relevant time, there is no question of applying the principles of res-judicata to the case of the appellants. Mr. Mehta submitted that in fact, the judgment rendered by the learned Single Judge and by the Hon'ble Division Bench in earlier round of litigation in respect of some of the appellants could be said to be per incurium as the same was in ignorance of the decision in Umadevi's case.
8. Mr. Mehta submitted that the appellants were not illegally recruited but had successfully passed the training for Female Health Worker and the interview for the said post and were then appointed as Female Health Worker. Mr. Mehta submitted that though initial appointment was for short period and termed as ad-hoc, however, such could not be said tobe in any way illegal appointment. Mr. Mehta submitted that it was only on account of the State's decision to Page 7 of 25 C/LPA/923/2014 CAV JUDGMENT employ the petitioners on ad-hoc basis though they were duly selected, the appointments of the petitioners were branded as ad-hoc appointments, otherwise, for all purposes, the appointments were legally made. Mr. Mehta submitted that the directions issued in the case of Umadevi (supra) is exactly for such employees who were irregularly appointed and completed more than 10 years of continuous service. Mr. Mehta submitted that considering the decision in the case of Umadevi (supra) which was explained in M.L. Kesari (supra), the view taken in the earlier round of litigation by the Division Bench of this Court will not come in the way of the appellants for regularization of their services especially when after the decision of the Division Bench of this Court, the appellants have been continued in service. Mr. Mehta submitted that the orders of termination passed against the appellants are contrary to law and, therefore, required to be quashed and set aside and the respondents are required to be restrained from employing any new hands in place of the appellants and the services of the appellants are required to be regularized. Mr. Mehta thus urged to allow these appeals.
9. As against the above arguments, learned Advocate Mr. H.S. Munshaw appearing for the concerned District Panchayat/s submitted that the appellants got appointments with clear knowledge that they were being appointed as ad-hoc employees. Mr. Munshaw submitted that when they accepted such appointments for very short duration, as ad-hoc employees, continuing them on such basis in Page 8 of 25 C/LPA/923/2014 CAV JUDGMENT absence of availability of regularly selected candidate would not confer any right upon them to claim regularization of their services.
Mr. Munshaw submitted that the appellants are also not entitled to come with fresh petitions for the same relief of regularization having once failed before the division Bench of this Court. Mr. Munshaw submitted that when Division Bench of this court decided the cases of the appellants, the judgment in the case of Umadevi (supra) was already available, however, it was not pressed into service and, therefore, it could be said that the appellants had waived their right to get their cases considered in terms of the decision in the case of Umadevi (supra). Mr. Munshaw submitted that in such view of the matter, the learned Single Judge committed no error in holding that the second round of litigation initiated by the appellants is barred by the principles of res-judicata. Mr. Munshaw thus, urged not to entertain the appeals.
10. Having heard the learned advocates for the parties, it appears that the Government granted sanction to make ad-hoc appointments of female health workers till the regularly selected candidates were made available. The petitioners were therefore issued the appointment orders by the District Health Officer without process of regular selection by the service selection board. Such appointments were purely ad-hoc and continued thereafter.
11. It is not in dispute that in the year 2010, when the government Page 9 of 25 C/LPA/923/2014 CAV JUDGMENT issued advertisement for filling up the posts of female health workers, petitioners of Special Civil Application No. 8799 of 2013 had remained unsuccessful before this Court in above referred the writ petitions and then the Letters Patent Appeals. Following is the order passed in their appeals.
"Heard the learned counsel for the appellant.
In similar set of facts and circumstances, this Court has already taken a view that those who were selected on ad-hoc basis, were required to face selection. The appellants have not faced selection, their earlier selection being ad-hoc and no procedure having been followed according to the Rules, the relief for regularization cannot be granted. In that view of the matter, the law laid down by this Court, vide order dated 20.7.2010, in the case of Surekhaben Chamarbhai Patel and others Vs. State of Gujarat and others in Letters Patent Appeal No.85 of 2010 and other allied matters, squarely covers the present case. In that view of the matter, no force, the appeals are dismissed.
In view of the dismissal of the appeals, no order is required to be passed on the Civil Applications and the same are disposed of accordingly."
12. It appears that before the appeals filed by the petitioners were dismissed, the Division Bench of this Court had examined the cases of many such similarly situated female health workers as regards their prayer for regularization and dismissed the Letters Patent Appeal No. 85 of 2010 and other allied matters by order dated 20.7.2010 wherein the Division Bench made following observations in paragraph 15:
"15. As an upshot of the aforesaid discussion it emerges that appointments of the appellants-
petitioners have been made without following the Page 10 of 25 C/LPA/923/2014 CAV JUDGMENT prescribed procedure and such irregular appointments cannot be directed to regularized. The Act of regularizing such irregularly made appointments would amount to multiplying the irregularity. As noted above, such irregular appointment and the practice of subsequently regularizing such irregular appointments, deprive several hundred of other qualified and eligible persons and thereby violate the mandate of Article 14 of the Constitution of India. Hence, the relief prayed for cannot be granted.
The appellants-petitioners have failed to make out any case against impugned order. We do not see any error or infirmity in the impugned orders whereby the petitions have been rejected. The appeals, therefore, fail and deserve to be rejected. Hence, they are accordingly rejected. No costs."
13. Since the petitioners of Special Civil Application No.8799 of 2013 were similarly situated, their appeals were also dismissed as stated above relying on the decision in Letters Patent Appeal No.85 of 2010 and allied matters.
14. There is no dispute that the petitioners of Special Civil Application No. 8800 of 2013 stand similarly situated to the petitioners of special civil application no.8799 of 2013 and, therefore, decision of the Division Bench in the above referred Letters Patent Appeal (No.85 of 2010) would apply to their case also.
15. In view of such undisputed facts, the learned Single Judge held that the principles of constructive res-judicata would apply to the case of the petitioners.
16. The learned Senior Counsel Mr. Shalin Mehta however Page 11 of 25 C/LPA/923/2014 CAV JUDGMENT submitted that since the decision in the case of Umadevi (supra) was not brought to the notice of the Division Bench, there is no question of applying the principles of constructive res-judicata. Mr. Mehta also submitted that even the principles of per incurium would apply in the facts of the case as the Division Bench rendered decision contrary to the law laid down in the case of Umadevi (supra), and the same would not prevent the petitioners to agitate their grievance on the same facts and to pray for the same relief on the basis of the decision in the case of Umadevi (supra).
17. It is required to be noted that the Division Bench having refused to entertain the prayers for regularization, the decision on such issue has become final on the facts present before it. Therefore, it is not correct to say that the principles analogous to res-judicata cannot have any application. If the petitioners wanted the benefit of the decision in the case of Umadevi (supra), same could have been pressed into service when the decision was rendered by the Division Bench in the earlier round. When such decision was not brought to the notice of the Division Bench by the petitioners, they cannot now urge to maintain their petition contending that the decision rendered by the division bench of this court was per incurium. In fact, what was held by the Division Bench was in the facts of the case having found that the appointments of the petitioners were without following prescribed procedure, they could not be regularized as the same would deprive several hundreds of other qualified and eligible candidates which would for them violate the mandate of Article 14 of Page 12 of 25 C/LPA/923/2014 CAV JUDGMENT the Constitution of India. If the petitioners had any grievance against such decision of the Division Bench, the remedy available to the petitioners was to approach the higher forum. As regards other petitioners, since they stand on the same footing, the decision rendered by the Division Bench should apply to them with all force. In their case, the principles of constructive res-judicata may not apply strictly but the fact remains that they would not stand to gain because they have now come to the Court when the issues are already concluded earlier by this Court. We are therefore of the view that learned Single Judge has committed no error in holding that in view of decision of Division Bench referred above, the petitioners do not deserve any relief.
18. In the case of Umadevi (supra), the Hon'ble Supreme Court has held and observed in paragraph 43,44,45,46,47,48,49,50,51 and 52 as under:
"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 Page 13 of 25 C/LPA/923/2014 CAV JUDGMENT 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 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 the Dharwad decision, 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 Page 14 of 25 C/LPA/923/2014 CAV JUDGMENT 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 may be 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 Page 15 of 25 C/LPA/923/2014 CAV JUDGMENT 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 Corpn. v. S. Raghunathan, (1998 (7) SCC 66) and Dr. Chanchal Goyal v. State of Rajasthan (2003 (3) SCC
485).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 Page 16 of 25 C/LPA/923/2014 CAV JUDGMENT 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 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 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 Page 17 of 25 C/LPA/923/2014 CAV JUDGMENT 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 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.
51. The argument that the right to life protected by Article 21 of the Constitution of India 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 Page 18 of 25 C/LPA/923/2014 CAV JUDGMENT 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 back door. The obligation cast on the State under Article 39(a) of the Constitution of India 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 recognize 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 recognized by the relevant legislation in the context of the relevant provisions of the Constitution. In the name of individualizing 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 Dr. Rai Shivendra Bahadur v. The Governing Body of the Nalanda College [(1962) Supp 2 SCR 144]. 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. "
19. After the above discussion and the view expressed, the Hon'ble Supreme Court then observed in paragraph 53 as under:
"53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa (supra), R. N. Nanjundappa (supra), and B. N. Nagrajan (supra), and referred to in paragraph 15 above, of duly qualified persons in duly Page 19 of 25 C/LPA/923/2014 CAV JUDGMENT 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 courts or of tribunals. The question of regularization 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 above referred 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 regularize 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 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 regularization, if any already made, but not sub judice, need not be reopened based on this judgment, but there should be no further by-passing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme."
20. Relying on the observations made in paragraph 53, it is urged that the petitioners have become entitled to regularization of their services having put in more than 10 years of service.
21. What is further contended on behalf of the petitioners is that the directives contained in paragraph 53 in Umadevi's case (supra) are to be followed by the State Authority on its own without forcing any employee to approach the Court as observed in later decision in the case of M.L. Kesari (supra).
22. In M.L. Kesari (supra), Hon'ble Supreme Court has observed in para 5 to 11 of the said decision as under:
"5. The decision in State of Karnataka v. Umadevi was rendered on 10.4.2006 In that case, a Page 20 of 25 C/LPA/923/2014 CAV JUDGMENT Constitution Bench of this Court held that appointments made without following the due process or the rules relating to appointment did not confer any right on the appointees and courts cannot direct their absorption, regularization or re-engagement nor make their service permanent, and the High Court in exercise of jurisdiction under Article 226 of the Constitution should not ordinarily issue directions for absorption, regularization, or permanent continuance unless the recruitment had been done in a regular manner, in terms of the constitutional scheme; and that 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, nor lend themselves to be instruments to facilitate the bypassing of the constitutional and statutory mandates.
6. This Court further held that a temporary, contractual, casual or a daily-wage employee does not have a legal right to be made permanent unless he had been appointed in terms of the relevant rules or in adherence of Articles 14 and 16 of the Constitution. This Court, however, made one exception to the above position and the same is extracted below (SCC p.42, para 53) "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] : (AIR 1972 SC 1767) and B.N. Nagarajan [1979 (4) SCC 507] : (AIR 1979 SC 1676) 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 regularization 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 above-referred 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 regularize 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 Page 21 of 25 C/LPA/923/2014 CAV JUDGMENT 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....."
(emphasis supplied)
7. It is evident from the above that there is an exception to the general principles against 'regularization' enunciated in Umadevi, if the following conditions are fulfilled :
(i) The employee concerned should have worked for 10 years or more in duly sanctioned post without the benefit or protection of the interim order of any court or tribunal. In other words, the State Government or its instrumentality should have employed the employee and continued him in service voluntarily and continuously for more than ten years.
(ii) The appointment of such employee should not be illegal, even if irregular. Where the appointments are not made or continued against sanctioned posts or where the persons appointed do not possess the prescribed minimum qualifications, the appointments will be considered to be illegal. But where the person employed possessed the prescribed qualifications and was working against sanctioned posts, but had been selected without undergoing the process of open competitive selection, such appointments are considered to be irregular.
8. Umadevi casts a duty upon the concerned Government or instrumentality, to take steps to regularize the services of those irregularly appointed employees who had served for more than ten years without the benefit or protection of any interim orders of courts or tribunals, as a one-time measure. Umadevi, directed that such one-time measure must be set in motion within six months from the date of its decision (rendered on 10.4.2006).
9. The term 'one-time measure' has to be understood in its proper perspective. This would normally mean that after the decision in Umadevi (AIR 2006 SC 1806 : 2006 AIR SCW 1991), each department or each instrumentality should undertake a one-time exercise and prepare a list of all casual, daily-wage or ad hoc employees who have been working for more than ten years without the intervention of courts and tribunals and subject them to a process verification as to whether they are working against vacant posts and possess the requisite qualification for the post Page 22 of 25 C/LPA/923/2014 CAV JUDGMENT and if so, regularize their services.
10. At the end of six months from the date of decision in Umadevi, cases of several daily-wage/ad hoc/casual employees were still pending before Courts. Consequently, several departments and instrumentalities did not commence the one-time regularization process. On the other hand, some Government departments or instrumentalities undertook the one-time exercise excluding several employees from consideration either on the ground that their cases were pending in courts or due to sheer oversight. In such circumstances, the employees who were entitled to be considered in terms of Para 53 of the decision in Umadevi, will not lose their right to be considered for regularization, merely because the one-time exercise was completed without considering their cases, or because the six months' period mentioned in para 53 of Umadevi has expired. The one- time exercise should consider all daily-wage/ad hoc/those employees who had put in 10 years of continuous service as on 10.4.2006 without availing the protection of any interim orders of courts or tribunals. If any employer had held the one-time exercise in terms of para 53 of Umadevi, but did not consider the cases of some employees who were entitled to the benefit of para 53 of Umadevi, the employer concerned should consider their cases also, as a continuation of the one-time exercise. The one time exercise will be concluded only when all the employees who are entitled to be considered in terms of Para 53 of Umadevi, are so considered.
11. The object behind the said direction in para 53 of Umadevi is two-fold. First is to ensure that those who have put in more than ten years of continuous service without the protection of any interim orders of courts or tribunals, before the date of decision in Umadevi 2006, are considered for regularization in view of their long service. Second is to ensure that the departments/instrumentalities do not perpetuate the practice of employing persons on daily-wage/ ad hoc/casual for long periods and then periodically regularize them on the ground that they have served for more than ten years, thereby defeating the constitutional or statutory provisions relating to recruitment and appointment. The true effect of the direction is that all persons who have worked for more than ten years as on 10.4.2006 (the date of decision in Umadevi) without the protection of any interim order of any court or tribunal, in vacant Page 23 of 25 C/LPA/923/2014 CAV JUDGMENT posts, possessing the requisite qualification, are entitled to be considered for regularization. The fact that the employer has not undertaken such exercise of regularization within six months of the decision in Umadevi or that such exercise was undertaken only in regard to a limited few, will not disentitle such employees, the right to be considered for regularization in terms of the above directions in Umadevi as a one-time measure."
23. There is no dispute about the fact that the recruitment to the post of Female Health Worker was to be made only through the Service Selection Board. As stated in the affidavit in reply filed with the petition, since the process for such recruitment was to take some time, the Government through Panchayat Housing and Rural Development Department issued instruction dated 10.11.1995 to all the District Development Officers to fill up the posts of Female Health Workers on temporary, ad-hoc and time bound basis with condition that the service of such appointee would be liable to be terminated at any point of time. It is further stated in the affidavit that when there was advertisement to fill in the post on regular basis, the appellants failed to grab opportunity for regular appointment as they did not apply in response to the advertisement inspite of relaxation qua upper age limit was granted. The appellants thus continued in service with the same status as ad-hoc employees. As stated above, the Division Bench having found that the appointments of the appellants were not through prescribed procedure i.e. not through selection process by the service selection board, they did not acquire any right to be regularized. In such view of the matter, it will be now not open to this Court to delve upon the same issue again.
Page 24 of 25 C/LPA/923/2014 CAV JUDGMENT24. Learned Single Judge after considering the decision in the case of Direct Recruit Class II Engg. Officers' Assn. v. State of Maharashtra, (1990) 2 SCC 715 and in the case of M.Nagabhushana v. State of Karnataka and others, (2011) 3 SCC 408, has rightly held that it is not now open to go into the same facts and decide the issue again on the principle of res judicata.
25. We are therefore of the view that once the Division Bench has taken particular view on the same facts and for the same relief, it is not open to us to go into such facts and take a different view.
26. All appeals are dismissed. We, however, make it clear that this judgment shall not come in the way of the State Government if the State Government wants to consider the cases of the appellants in light of decision in the case of Umadevi (supra).
27. In view of the order passed in the appeals, above said civil applications would not survive. Civil Applications are, therefore, disposed of as not surviving.
Sd/-
(JAYANT PATEL, J.) Sd/-
(C.L.SONI, J.) anvyas Page 25 of 25