Madhya Pradesh High Court
Ajay Sharma vs The State Of Mp on 6 August, 2020
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
THE HIGH COURT OF MADHYA PRADESH
W.P. No. 14528/2019
Ajay Sharma vs. State of MP
Gwalior, Dated :06/08/2020
Shri Prashant Sharma, Counsel for the petitioner
Shri M.P.S. Raghuvanshi, Counsel for the State
Heard finally through Video Conferencing.
This petition under Article 226 of the Constitution of India has
been filed seeking the following relief (s):-
I. That, the respondent may kindly be directed to consider
the case of petition to regularization and they be further directed to not to deny it because of benefit of Viniyamtikaran extended to petitioner.
II. Any other relief, which this Hon'ble Court deems fit in the facts and circumstances of the case may also kindly be granted.
The case of the petitioner is that he was employed in Public Health and Engineering Department on the pot of Pump Driver. He continuously discharged his duties and since, the benefits of regularization or other schemes were not given to him, therefore, he filed a writ petition before this Court, claiming the benefit of Classification which was registered as W.P. No. 5877 of 2016 and was decided by order dated 24-8-2016 in the light of the judgment passed in the case of Kaluram Narwariya Vs. State of M.P. Passed in W.P. No. 2000/2015 on 6-4-2015. It is submitted that since, the petitioner was continuously engaged since 1-8-1988, therefore, he was entitled for regularization. It is submitted that the respondents, instead of extending the benefit of regularization, has extended the benefit of classification, wherein the benefit of increment and other benefits are not extendable to the petitioner, in the light of the judgment passed by the Supreme Court in the case of Ram Naresh Rawat Vs. Ashwini Ray reported in (2017) 3 SCC 436. It is submitted that the respondents have implemented a new scheme in the name of Viniyatikaran and the benefit of the same has been THE HIGH COURT OF MADHYA PRADESH W.P. No. 14528/2019 Ajay Sharma vs. State of MP extended to the petitioner, but there is a vast difference between Regularization and Viniyatikaran, therefore, the petitioner is entitled for regularization.
The State has filed its return and raised a preliminary objection that the initial appointment of the petitioner was through back door. The petitioner was not appointed against any vacant, sanctioned post and therefore, the order of classification was cancelled, which was never challenged by the petitioner. It is further submitted that although the initial appointment of the petitioner was illegal, but he was found entitled for the benefit of Viniyatikaran Scheme and accordingly, the benefit of the same has been extended to the petitioner.
In reply, it is submitted by the Counsel for the petitioner, that his order of classification was never cancelled.
Heard the learned Counsel for the parties.
The Supreme Court in the case of State of Karnataka Vs. Uma Devi reported in (2006) 4 SCC 1 has held as under :
47. When a person enters a temporary employment or gets engagement as a contractual or casual worker and the engagement is not based on a proper selection as recognised by the relevant rules or procedure, he is aware of the consequences of the appointment being temporary, casual or contractual in nature. Such a person cannot invoke the theory of legitimate expectation for being confirmed in the post when an appointment to the post could be made only by following a proper procedure for selection and in cases concerned, in consultation with the Public Service Commission. Therefore, the theory of legitimate expectation cannot be successfully advanced by temporary, contractual or casual employees. It cannot also be held that the State has held out any promise while engaging these persons either to continue them where they are or to make them permanent. The State cannot constitutionally make such a promise. It is also obvious that the theory cannot be invoked to seek a positive relief of being made permanent in the post.
48. It was then contended that the rights of the employees thus appointed, under Articles 14 and 16 of the Constitution, are THE HIGH COURT OF MADHYA PRADESH W.P. No. 14528/2019 Ajay Sharma vs. State of MP violated. It is stated that the State has treated the employees unfairly by employing them on less than minimum wages and extracting work from them for a pretty long period in comparison with those directly recruited who are getting more wages or salaries for doing similar work. The employees before us were engaged on daily wages in the department concerned on a wage that was made known to them. There is no case that the wage agreed upon was not being paid. Those who are working on daily wages formed a class by themselves, they cannot claim that they are discriminated as against those who have been regularly recruited on the basis of the relevant rules. No right can be founded on an employment on daily wages to claim that such employee should be treated on a par with a regularly recruited candidate, and made permanent in employment, even assuming that the principle could be invoked for claiming equal wages for equal work. There is no fundamental right in those who have been employed on daily wages or temporarily or on contractual basis, to claim that they have a right to be absorbed in service. As has been held by this Court, they cannot be said to be holders of a post, since, a regular appointment could be made only by making appointments consistent with the requirements of Articles 14 and 16 of the Constitution. The right to be treated equally with the other employees employed on daily wages, cannot be extended to a claim for equal treatment with those who were regularly employed. That would be treating unequals as equals. It cannot also be relied on to claim a right to be absorbed in service even though they have never been selected in terms of the relevant recruitment rules. The arguments based on Articles 14 and 16 of the Constitution are therefore overruled.
49. It is contended that the State action in not regularising the employees was not fair within the framework of the rule of law.
The rule of law compels the State to make appointments as envisaged by the Constitution and in the manner we have indicated earlier. In most of these cases, no doubt, the employees had worked for some length of time but this has also been brought about by the pendency of proceedings in tribunals and courts initiated at the instance of the employees. Moreover, accepting an argument of this nature would mean that the State would be permitted to perpetuate an illegality in the matter of public employment and that would be a negation of the constitutional scheme adopted by us, the people of India. It is therefore not possible to accept the argument that there must be a direction to make permanent all the persons employed on daily wages. When the court is approached for relief by way of a writ, the court has necessarily to ask itself whether the person before it had any legal right to be enforced. Considered in the light of the very clear constitutional scheme, it cannot be said that the THE HIGH COURT OF MADHYA PRADESH W.P. No. 14528/2019 Ajay Sharma vs. State of MP employees have been able to establish a legal right to be made permanent even though they have never been appointed in terms of the relevant rules or in adherence of Articles 14 and 16 of the Constitution.
50. It is argued that in a country like India where there is so much poverty and unemployment and there is no equality of bargaining power, the action of the State in not making the employees permanent, would be violative of Article 21 of the Constitution. But the very argument indicates that there are so many waiting for employment and an equal opportunity for competing for employment and it is in that context that the Constitution as one of its basic features, has included Articles 14, 16 and 309 so as to ensure that public employment is given only in a fair and equitable manner by giving all those who are qualified, an opportunity to seek employment. In the guise of upholding rights under Article 21 of the Constitution, a set of persons cannot be preferred over a vast majority of people waiting for an opportunity to compete for State employment. The acceptance of the argument on behalf of the respondents would really negate the rights of the others conferred by Article 21 of the Constitution, assuming that we are in a position to hold that the right to employment is also a right coming within the purview of Article 21 of the Constitution. The argument that Article 23 of the Constitution is breached because the employment on daily wages amounts to forced labour, cannot be accepted. After all, the employees accepted the employment at their own volition and with eyes open as to the nature of their employment. The Governments also revised the minimum wages payable from time to time in the light of all relevant circumstances. It also appears to us that importing of these theories to defeat the basic requirement of public employment would defeat the constitutional scheme and the constitutional goal of equality.
51. The argument that the right to life protected by Article 21 of the Constitution would include the right to employment cannot also be accepted at this juncture. The law is dynamic and our Constitution is a living document. May be at some future point of time, the right to employment can also be brought in under the concept of right to life or even included as a fundamental right. The new statute is perhaps a beginning. As things now stand, the acceptance of such a plea at the instance of the employees before us would lead to the consequence of depriving a large number of other aspirants of an opportunity to compete for the post or employment. Their right to employment, if it is a part of right to life, would stand denuded by the preferring of those who have got in casually or those who have come through the backdoor. The obligation cast on the State under Article 39(a) of the THE HIGH COURT OF MADHYA PRADESH W.P. No. 14528/2019 Ajay Sharma vs. State of MP Constitution is to ensure that all citizens equally have the right to adequate means of livelihood. It will be more consistent with that policy if the courts recognise that an appointment to a post in government service or in the service of its instrumentalities, can only be by way of a proper selection in the manner recognised by the relevant legislation in the context of the relevant provisions of the Constitution. In the name of individualising justice, it is also not possible to shut our eyes to the constitutional scheme and the right of the numerous as against the few who are before the court. The directive principles of State policy have also to be reconciled with the rights available to the citizen under Part III of the Constitution and the obligation of the State to one and all and not to a particular group of citizens. We, therefore, overrule the argument based on Article 21 of the Constitution.
52. Normally, what is sought for by such temporary employees when they approach the court, is the issue of a writ of mandamus directing the employer, the State or its instrumentalities, to absorb them in permanent service or to allow them to continue. In this context, the question arises whether a mandamus could be issued in favour of such persons. At this juncture, it will be proper to refer to the decision of the Constitution Bench of this Court in Rai Shivendra Bahadur (Dr.) v. Governing Body of the Nalanda College. 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.
By order dated 26-5-2017 (Annexure P/1) it has been specifically held that there was no post of pump driver and his appointment was illegal and was made by an authority who was not competent to do so. The petitioner has not controverted the findings with regard to illegal appointment of the petitioner. The petitioner has not pleaded and argued that his appointment was not illegal but was irregular.
THE HIGH COURT OF MADHYA PRADESH W.P. No. 14528/2019 Ajay Sharma vs. State of MP Since, the appointment of the petitioner was illegal, which was made by a non-competent authority on a non-existing post, therefore, this Court is of the considered opinion, that the respondents have already adopted a very lenient view by extending the benefit of Viniyatikaran Scheme instead of terminating his services.
As the petitioner has failed to establish his claim, and further the principle of legitimate expectation doesnot apply to the cases of illegal appointment, therefore, this petition is dismissed being devoid of merits.
(G.S. Ahluwalia) Judge MAHENDR Digitally signed by MAHENDRA KUMAR BARIK DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH GWALIOR, ou=HIGH A KUMAR COURT OF MADHYA PRADESH BENCH GWALIOR, postalCode=474011, st=Madhya Pradesh, 2.5.4.20=f592da990684fe30f8e1e29a4a1a BARIK 9e3451ee450d883083a8e4cc8020eee6f7c b, cn=MAHENDRA KUMAR BARIK Date: 2020.08.10 11:03:33 +05'30'