Central Administrative Tribunal - Jabalpur
Gaya Prasad vs Union Of India on 11 October, 2013
RESERVED
CENTRAL ADMINISTRATIVE TRIBUNAL, JABALPUR BENCH,
JABALPUR
ORIGINAL APPLICATION NO.117 OF 2012
ORIGINAL APPLICATION NO.123 OF 2012
ORIGINAL APPLICATION NO.228 OF 2012
ORIGINAL APPLICATION NO.322 OF 2012
ORIGINAL APPLICATION NO.327 OF 2012
ORIGINAL APPLICATION NO.430 OF 2012
Jabalpur, this Friday, the 11th day of October, 2013
HONBLE MR. JUSTICE DHIRENDRA MISHRA, JUDICIAL MEMBER
HONBLE MR.G.P.SINGHAL, ADMINISTRATIVE MEMBER
(1) ORIGINAL APPLICATION NO. 117 OF 2012
1.Gaya Prasad, son of Shri Mishrilal Siroliya, aged about 38 years, Resident of Nadi Paar Taal Murar, Gwalior-474002 (M.P.)
2.Smt Munni Devi, Daughter of Late Siya Ram, aged about 42 years, Resident of Krishnapuri, infront of Kharati Hospital, Murar, Gwalior-474001 (M.P.)
3.Dharam Dev Prasad, Son of Late Vikrama Prasad, aged about 40 years, resident of New Shivaji Nagar, Near Kallu Oil Mill, Thatipur, Gwalior-474011 (M.P.)
4.Nagendra Thakur, Son of Shri Ram Chandra Thakur, aged about 38 years, resident of Pinto Park, Jaderua, Gwalior-474004 (M.P.)
5.Sheshnath Choudhary, son of Shri Sarjoo Ram, aged about 36 years, Resident of Harnampura Bajaria, Thatipur,Gwalior-474011 (M.P.)
6.Prem Narin Verma, son of Khemraj Verma, aged about 39 years, Resident of Aayakar Colony, Cantt. Guna-473001 (M.P.)
7. Ravi Verma, son of Shri Shanker Lal Verma, aged about 38 years, Resident of Near Raja Gas, godam Road, in front of Kali Mata, Janakpuri, Gol Pahadiya, Lashkar, Gwalior-474001 (M.P.)
8. Ram Kishna Sen, son of Shri Gyasi Ram Sen, aged about 38 years,
Resident of Shiv colony, By-pass road, Shivpuri-473551 (M.P.)
9.Mahendra Singh Kushwaha, son of Shri Amar Singh Kushwaha, Aged about 31 years, resident of Near Urwai Gate, Near Sanjay Chakki, Koteshwar Road, Lashkar Gwalior-474006 (M.P.)
10. Mohan Rana, son of Shri Narayan Das Rana, aged about 29 years,
Resident of 101, Kranti Nagar, Loko ke pass, Tansen Road, Gwalior-474004 (M.P.)
11.Mahipal Singh, son of Shri Maniram Singh, aged about 41 years, Resident of Gol Pahadia, infront of Bijili Office, Gwalior-474011 (M.P.)
12.Dinesh Ku. Choudhary, Son of late Shri Shiv Prasad, aged about 34 years, R/o 108, Badi Madar Tekri, Shankar Chowk, Ward-Thakkargram, Jabalpur-482003 (M.P.) -Applicants
(By Advocate Shri A.P.Shrivastava)
V e r s u s
1.Union of India, through Secretary, Department of Revenue, Ministry of Finance, North Block, New Delhi 110001
2.Central Board of Direct Taxes through its Chairman, North Block, New Delhi 110 001
3.Chief Commissioner of Income Tax, Aykar Bhawan, Hoshangabad Road, opposite Maida Mill, Bhopal M.P.462011
4.Commissioner of Income Tax (Coord & System), Central Board of Direct Taxes, North Block, New Delhi-110001
5.Commissioner of Income Tax, Aayakar Bhavan, City Centre, Gwalior-474011 (M.P.)
6.Commissioner of Income Tax-I, Central Revenue Building, Napier Town, Jabalpur-482001
7. Zonal Accounts Officer, Central Board of Direct Taxes, 82, M.P.
Nagar, Zone-II, Bhopal-462011 (M.P.) - Respondents
(By Advocate Shri S.A.Dharmadhikari)
(2) ORIGINAL APPLICATION NO. 123 OF 2012
1. Harish Chand, son of Shri Moolchand, Aged about 28 years, Resident of 73 Satakshi Garden, Rohtas Nagar Phase-II, Khajuri, Kala, Bhel, Bhopal-462021(M.P.)
2. Rajesh Goud Son of Shri Prem Singh Goud, aged about 31 years, Resident of S/II Nishan Tower, Durgesh Vihar, J.K.Road, Bhopal-462023 (M.P.)
3.Prema Bai, W/o Late Shri Ram Pyare, Aged about 42 years, Resident of 837 Rajiv Nagar, Kotra Sultanabad, Bhopal-462003(M.P.)
4. Santosh Rajak, son of Late Shri R.L.Rajak, Aged about 30 years, Resident of 407/A, Durgesh Vihar, J.K.Road, Bhopal-462022 (M.P.)
5.Vishnu Prasad Bhagel, Son of Shri Ramesh Chand Baghel, Aged about 31 years, Resident of 81/81, Behind I Type 172, Jain Mandir, Bhopal-462021 (M.P.)
6.Makhan Lal Yadav, Son of Shri Brij Lal Yadav, aged about 31 years, resident of 68, Chahwani Shahpura, Bhopal-462021 (M.P.)
7.Ramratan Goud, son of Shri Baijnath Goud, aged about 40 years, Resident of Jhugi No.777, Near Hanuman Mandir Bheem Nagar, Bhopal-462021 (M.P.)
8.Gajendra Vishwakarma, son of Shri Hari Kisan Vishwakarma, Aged about 24 years, Resident of Type III, Income Tax colony, Kotra, Bhopal-462003 (M.P.)
9.Harish Sharma, son of Shri Umesh Sharma, aged about 27 years, Resident of LIG 36, Saraswati Nagar, Jawahar Chowk, Bhopal-462003 (M.P.)
10.Basu Dev Bhattarai, Son of Sri R.K.Bhattarai, aged about 29 years, Resident of VI-3 Income Tax Colony, Bharat Nagar, Shahpura, Bhopal-462003 (M.P.)
11.Sushil Tyagi, Son of Shri J.P.Tyagi, aged about 27 years, Resident of LIG 41, Saraswati Nagar, Bhopal-462003 (M.P.)
12.Mukesh Mehra, Son of Shri Babul Lal Mehra, Aged about 31 years, Resident of MIG/E-7, Arera Colony, Bhopal-462014 (M.P.)
13. Anwar Khan, Son of Late Sri Asif Khan, aged about 24 years, Resident of 78 Sajida Nagar, Karbala Road, Bhopal -462021 (M.P.)
14.Suresh Oswal, Son of Sri Gopal Das Oswal, Aged about 31 years,
Resident of 242,C Sector, Baba Nagar, Shahpura, Bhopal-462021(M.P.)
15.Gayaneshwar Gajbhiye, Son of Shri Laxman Gajbhiye, aged about 44 years, Resident of 333, Priyadarshani Nagar, Near New Narmada Bhawan, Bhopal-462023 (M.P.)
16.Ravi Kumar, Son of Shri Anadi Prasad, Aged about 30 years, Resident of set No.292, Gali No. 1, Labour Colony B-Sector Indrapuri, Bhopal-462021 (M.P.)
17.Pramod Nirmal, son of Shri Kamta Prasad Nirmal, Aged about 27 years, resident of BX-56 Raj Harsh Colony, Akbarpura Kolar Road, Bhopal-462021 (M.P.)
18.Rakesh Goud, Son of Shri Prem Singh Goud, Aged about 26 years, resident of S/II, Nishan Tower, Durgesh Vihar, J.K. Road, Bhopal-462023 (M.P.)
19.Govind Das, Son of Ram Swooroop Bhumaniya, Aged about 27 years, resident of 203 Sanjay Nagar, Vinobha Nagar, Shahjahanabad, Bhopal-462021 (M.P.)
20.Maya Bhandari, W/o Late Shri Nandlal Bhandari, Aged about 33 years, resident of 148 Eshwar Nagar, Bharat Nagar, Bhopal-462021 (M.P.)
21.Dharmendra Uiyke, son of Shri Kanihya Ram Uiyke, aged about 32 years, Resident of C-24 S/2 Shree Jee Apartment, Shastri Nagar, Bhopal-462003 (M.P.)
22.Khalid Mohammad, Son of Shri Bashir Mohammad, Resident of 39 PGBT College Barsiya Road, Bhopal-462021 (M.P.)
23.Shikha Sharma, Son of Shri V.I.Sharma, Aged about 49 years, Resident of Fine Avenue Phase-III, 9, Gehukheda Nayapura, Kolar Bhopal-462021 (M.P.)
24.Seema Bai W/o Late Shri Devi Singh, Aged about 33 years Resident of 53 village Bijapur Tehsil Hapoor Bhopal-462021 (M.P.)
25.Chayya Nikhade W/o Late Shri Arun Nikhade, Aged about 36 years Resident of 356,Ambedkar Nagar South TT Nagar Bhopal-462003 (M.P.)
26. Mohd. Aujar Khan Son of Shri Yonuis Khan Aged about 27 years Resident of B-74 Prem Pura Bhadbhada Road Bhopal 462003 (M.P.)
27.Sadik Ali Son of Late Syed Ali Resident of 122 Kilol Park Dhobhi Ghat Bhopal 462021 (M.P.)
28.Arvind Maina Son of Shri P.N.Maina Aged about 33 years Resident of J Sector LIG 826 Near U.S Public School Ayodhya Nagar Bypass Road Bhopal 462021 (M.P.)
29.Lal Mani Pokharel Son of late Shri Khim Lal Pokharel Aged about 32 years Resident of 252 Durga Nagar Bhopal 462021 (M.P.)
30.Parasram Uiyke Son of late Shri Shyam Lal Uiyke Aged about 35 years, Resident of 1976 Bhadbhada Prempura Van Vihar Road, Bhopal - 462021 (M.P.)
31.Shankar Son of Shri Prem Lal, Aged about 28 years, Resident of 189, Sanjay Nagar, Ram Nagar Colony, Pahadiya Shajanabad, Bhopal - 462003 (M.P.)
32. Sudhir Karare Son of Shri Banshi Lal Karare Aged about 40 years Resident of 1, Sharma Colony Shajanabad Bhopal 462003 (M.P.)
33.Mahesh Sharan Son of Shri Madhav Singh Aged about 25 years Resident of 55/17 South TT Nagar Bhopal 462 003 (M.P.)
34.Ramprasad Son of Late Shri Shyam Lal Aged about 39 Years Resident of Jain Colony Ward No.18 Shahdol -484001 (M.P.)
35.Shiv Shakti Shrivastava, Son of Shri K.L. Shrivastava, Aged about 32 years, Resident of Ward No.4 School Near Railway Crossing Purani Basti, Shahdol-484001 (M.P.)
36.Vinod Kumar Saroj, Son of Shri Kamal Kumar Saroj, Aged about 32 years, Resident of Income Tax Colony, Pili Kothi, Behind Consumer Forum Building Rewa -486001 (M.P.)
37. Nitesh Parajpati, Son of Shri Om Prakash Prajapati, Aged about 28 years, Resident of 1956, Vijay Nagar, Chapper Rampur, Jabalpur -482008 (M.P.) - Applicants
(By Advocate Shri A.P. Shrivastava)
V e r s u s
1.Union of India, through Secretary, Department of Revenue, Ministry of Finance, North Block, New Delhi 110001
2.Central Board of Direct Taxes through its Chairman, North Block, New Delhi 110 001
3.Chief Commissioner of Income Tax, Aayakar Bhawan, Hoshangabad Road, Opposite Maida Mill, Bhopal (M.P.)-462 011
4.Commissioner of Income Tax (Coord & System), Central Board of Direct Taxes, North Block, New Delhi-110001
5.Commissioner of Income Tax, Aayakar Bhawan, Hoshangabad Road Opposite Maida Mill Bhopal (M.P.) -462 011
6.Commissioner of Income Tax, Aayakar Bhavan Station Road, Napier Town, Jabalpur-482002 (M.P.)
7.Commissioner of Income Tax (Appeal) Aayakar Bhawan, Hoshangabad Road Opposite Maida Mill Bhopal (M.P.) 462 011
8.Commissioner of Income Tax (Appeal) Aayakar Bhawan Aayakar Bhavan Station Road Napier Town Jabalpur (M.P.)
9.Director General Income Tax (Inv) Aayakar Bhawan, Hoshangabad Road Opposite Maida Mill Bhopal (M.P.) 462 011
10.Zonal Accounts Officer Central Board of Direct Taxes 82, MP Nagar, Zone-II Bhopal 462011 (M.P.)
11.Income Tax Officer Aayakar Bhawan Rewa 486001 (M.P.)
12.Income Tax Officer, Aayakar Bhawan, Shahdol 484001 (M.P.)
- Respondents
(By Advocate Shri S.A.Dharmadhikari)
(3) ORIGINAL APPLICATION NO. 228 OF 2012
1.Gaya Prasad, son of Shri Mishrilal Siroliya aged about 38 years resident of Nadi Paaar Taal Murar, Gwalior 474002 (M.P.)
2.Ram Kishan Sen Son of Shri Gyasi Ram Sen aged about 38 years resident of Shiv Colony By-pass Road Shivpuri 473551 (M.P.)
3.Mahendra Singh Kushwaha son of Shri Amar Singh Kushwaha aged about 31 years resident of Near Urwai Gate Near Sanjay Chakki, Koteshwar Road Laskhar Gwalior 474003 (M.P.)
4.Mohan Rana Son of Shri Narayan Das Rana aged about 29 years resident of 101, Kranti Nagar Loko Ke paas, Tansen Road Gwalior - 474004 (M.P.)
5. Mahipal Singh son of Shri Maniram Singh aged about 41 years resident of Gol Pahadia, Infront of Bijili Office Gwalior - 474 011 (M.P.) -Applicants
(By Advocate Shri A.P. Shrivastava)
V e r s u s
1.Union of India, through Secretary, Department of Revenue, Ministry of Finance, North Block, New Delhi 110001
2.Central Board of Direct Taxes through its Chairman, North Block, New Delhi 110 001
3.Chief Commissioner of Income Tax Aayakar Bhawan,Hoshangabad Road,
Opposite Maida Mill Bhopal M.P.462011
4.Commissioner of Income Tax, Aayakar Bhavan City Centre Gwalior 474 011 (M.P.) - Respondents
(By Advocate Shri S.K. Mishra)
(4) ORIGINAL APPLICATION NO. 322 OF 2012
1.Ram Mani Patel son of Shri Ayodhya Prasad Patel aged about 38 years resident of Jhoogi No.532 Rahul Nagar Pampapur, Near MACT College Road Bhopal 462016 (M.P.)
2.Dharam Singh Son of Late Pannalal aged about 24 years resident of Gram Devel Khedi, Barsiya Road Post Islam Nagar Bhopal 462038 (M.P.)
3. Hirday Shankar Pandey son of Shri Sheshnath Pandey aged about 34 years resident of C/o Dharam Singh Gram Devel Khedi, Barsiya Road Post Islam Nagar Bhopal 462038 (M.P.)
4.Ravi Prajapati son of Shri Narbada Prasad Prajapati aged about 26 years resident of Gram Bairagarh Kala Bhopal 462030 (M.P.)
5.Om Prakash Rajak son of Shri Pooni Lal Rajak resident of Jhhogi No.26, Rahul Nagar Tilanga Road, Shahpura Bhopal 462039 (M.P.)
6.Vijay Batham son of Late Ramesh Batham resident of H-80, Gali No.1 H. No.4 Bijasen Nagar Kotra Sultanabad Bhopal 462003 (M.P.) - Applicants
(By Advocate Shri A.P. Shrivastava)
V e r s u s
1.Union of India, through Secretary, Department of Revenue, Ministry of Finance, North Block, New Delhi 110001
2.Central Board of Direct Taxes through its Chairman, North Block, New Delhi 110 001
3.Chief Commissioner of Income Tax, Aayakar Bhawan, Hoshangabad Road, Opposite Maida Mill, Bhopal (M.P.)-462 011
4.Director General Income Tax (Inv) Aayakar Bhawan, Hoshangabad Road Opposite Maida Mill Bhopal (M.P.) 462 011 - Respondents
(By Advocate Shri A.P. Khare)
(5) ORIGINAL APPLICATION NO. 327 OF 2012
Shyam Sondhiya Son of late Baccho Lal Sondhiya, Aged about 32 years, Resident of 3/3, Satpula Fatehgarh Line, Jabalpur 482003 (M.P.)
-Applicants
(By Advocate Shri A.P.Shrivastava)
V e r s u s
1.Union of India, through Secretary, Department of Revenue, Ministry of Finance, North Block, New Delhi 110001
2.Central Board of Direct Taxes through its Chairman, North Block, New Delhi 110 001
3.Chief Commissioner of Income Tax, Aayakar Bhawan, Hoshangabad Road, Opposite Maida Mill, Bhopal M.P.462011
4.Commissioner of Income Tax (Coord & System), Central Board of Direct Taxes, North Block, New Delhi-110001
5.Commissioner of Income Tax, Aayakar Bhavan, Station Road Napier Town Jabalpur 482002 (M.P.)
6.Zonal Accounts Officer, Central Board of Direct Taxes, 82, M.P. Nagar, Zone-II, Bhopal-462011 (M.P.) - Respondents
(By Advocate Shri S.A.Dharmadhikari)
(6) ORIGINAL APPLICATION NO. 430 OF 2012
Ram Niwas Patel son of Shri Ayodhya Prasad Patel aged about 27 years resident of Jhoogi No.532 Rahul Nagar Pampapur, Near MACT College Road Bhopal-462016 (M.P.) - Applicant
(By Advocate Shri A.P. Shrivastava)
V e r s u s
1.Union of India, through Secretary, Department of Revenue, Ministry of Finance, North Block, New Delhi 110001
2. Central Board of Direct Taxes through its Chairman, North Block, New Delhi 110 001
3.Chief Commissioner of Income Tax, Aayakar Bhawan, Hoshangabad Road, Opposite Maida Mill, Bhopal (M.P.)-462 011
4.Director General Income Tax (Inv) Aayakar Bhawan, Hoshangabad Road Opposite Maida Mill Bhopal (M.P.) 462 011 - Respondents
(By Advocate Shri A.P.Khare)
(Date of reserving the order 29.08.2013)
COMMON ORDER
By Dhirendra Mishra, JM.-
Since the question of law and issues involved in these Original Applications (for brevity OAs) are similar, all the matters were heard together and the same are being disposed of by this common order.
2. For the purposes of this order reference is being made to the facts and documents pleaded in OA No.117/2012, unless not specifically referred to any other Original Application.
3. Through these Original Applications the applicants, who were engaged for casual nature of work by the respondents from different dates as mentioned in their respective Original Applications are praying for directions to the respondents to examine the possibility of formulating a new policy for regularizing their services against large number of posts, which were lying vacant by further directing the respondents to revive the posts, which have been surrendered and abolished with an object to deny the valid claim of the applicants. The applicants have impugned demi-official letter dated 04.07.2011 (Annexure A-1) issued by the Central Board of Direct Taxes, addressed to all Cadre Controlling Chief Commissioners of Income Tax (for brevity CCIT)and Director General of Income Tax on the subject of appointment of casual workers in the department, as also the order dated 25.07.2011 (Annexure A-12), whereby the Principal Chief Control of Accounts in reference to aforementioned CBDTs DO dated 4.7.2011 addressed to all Cadre Controlling CCITs and DGIT, has observed that as per provisions of GFR 178 the field offices should outsource the services like data entry/typing/cleaning/security on contract, without employing contingent workers individually for the purpose, and that the GFR 178 also does not permit outsource of individual persons, and, accordingly the authority concerned have been directed to follow GFR 178 and CBDT DO dated 04.07.2011.
4. On examination of the pleadings in these OAs and the documents annexed therewith we find that number of applicants have joint together and prayed for the reliefs as detailed above. However, no appointment order of the individual applicants have been filed to demonstrate the nature, terms and conditions of their appointment, except that the applicants have given the details of their educational qualification, date of appointment, the work for which they were engaged and the place, without any supporting documents.
5. The respondents in their counter reply have categorically stated that the applicants have not submitted their individual details i.e. the advertisement of post against which they have been appointed; whether their names have been sponsored by the employment exchange; the appointment letters through which they were appointed, against duly sanctioned vacant post, etc., and in the absence of such details they are not in a position to effectively reply the averments in the OAs. Despite specific objection to that effect, the applicants have not furnished the above details.
6. The respondents in their counter reply have also brought to our notice that similarly placed employees had filed Original Application No. 746 of 2011 (Laxmi Prasad Dubey & 56 others Vs. Union of India and others) challenging the very impugned demi official letter of the CBDT dated 4.7.2011, and also for similar direction to the respondents to examine the possibility of regularising the services or granting temporary status and the said OA was dismissed by this Tribunal vide order dated 26.09.2012, and the Writ Petition No.22083/2012 against the above order has been further dismissed by the Honble High Court of Madhya Pradesh at Jabalpur on 11.02.2013.
7. Heard learned counsel for the parties and perused the pleadings of the respective parties and the documents annexed therewith.
8. Also perused the order dated 26.09.2012 passed in the matters of Laxmi Prasad Dubey (supra) as also the order of the Honble High Court in Writ Petition No.22083/2012 filed by said Laxmi Prasad Dubey & others against our aforesaid order dated 26.09.2012.
9. We find that aforementioned OA No.746/2011 was also filed for quashing of demi official letter dated 4.7.2011 addressed by the CBDT and consequential order dated 25.07.2011 passed in pursuance of the above demi official letter dated 4.7.2011. The applicants therein had also prayed for directing the respondents to examine the possibility of regularising their services or for granting them temporary status. The Original Application No.746/2011 was dismissed by this Tribunal on 26.9.2012 with an observation that the impugned decision is a policy decision which is in consonance with GFR 178 and same is not open to challenge and that too at the instance of the applicants only on the ground that aforesaid decision is likely to be enforced retrospectively which may affect their employment and they may be removed from service. The said decision of this Tribunal was further affirmed by the Honble High Court of Madhya Pradesh at Jabalpur and the Writ Petition against the above order was dismissed on 11.02.2013 with the following observations:
The petitioners despite opportunities have not filed their appointment orders. The respondents have stated that no appointment orders have been issued to the petitioners. The nature of relationship of the petitioners with the respondents, particularly regarding terms and conditions of their service, is therefore not clear. Apparently, the petitioners have no right to stop the respondents from outsourcing their certain services in the interest of economy and efficiency. The respondents submit that there is no bar for the contractor if he decides to appoint the petitioners for carrying out the services outsourced. For these reasons we find no illegality in the impugned order and merit in the present petition.
10. The issue of regularisation has already been considered at length by this Tribunal in OA No.1091 of 2010 (Sushil Kumar Karare Vs. Union of India and others) and other connected matters, at the instance of the daily rated casual labourers of the same department in which the present applicants are working. Relevant paragraphs of the said decision read thus:
(13) The issue of absorption/regularisation of temporarily engaged casual/ daily rated employees has been extensively dealt with by the Constitution Bench of Honble Supreme Court in the matters of Uma Devi (supra). The relevant paragraphs of the above judgment for the purposes of the issue involved in this Original Application are reproduced as under:
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 Dharwad decision(1990)2 SCC 396 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 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 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 regularised or made permanent, the courts are swayed by the fact that the person concerned 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 open eyes. It may be true that he is not in a position to bargainnot at arm's lengthsince 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 succour 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 (sic) 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.
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 regularised since the decisions in Dharwad, (1990) 2 SCC 396 Piara Singh, (1992) 4 SCC 118 Jacob (1991) 1 SCC 28 and Gujarat Agricultural University (2001) 3 SCC 574 and the like, have given rise to an expectation in them that their services would also be regularised. 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 for Civil Services Union v. Minister of Civil Service 1985 AC 374, National Buildings Construction Corpn. v. S. Raghunathan (1998) 7 SCC 66 and Chanchal Goyal (Dr.) v. State of Rajasthan (2003) 3 SCC 485] There is no case that any assurance was given by the Government or the department concerned 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 Dharwad decision (supra). Though, there is a case that the State had made regularisations in the past of similarly situated employees, the fact remains that such regularisations were done only pursuant to judicial directions, either of the Administrative Tribunal or of the High Court and in some cases 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 regularised 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 regularisation 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 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 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.
(14) However, in paragraph 53 of the judgment it has been clarified that the cases where irregular appointments (not illegal appointments) as explained in State of Mysore and another Vs. S.V.Narayanappa AIR 1967 SC 1071 and R.N.Nanjundappa Vs. T.Thimmiah & another (1972) 1 SCC 409 and B.N.Nagarajan & others Vs. State of Karnataka and others (1979) 4 SCC 507, of duly qualified persons against duly sanctioned post have been made, and such employees have worked for 10 years or more, without intervention of the orders of the court or of the Tribunals, the Union of India, the State Government and their instrumentalities have been directed to take steps to regularise, as a one time measures, the services of such irregularly appointed persons. Para 53 of the said order reads thus:
53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa , AIR 1967 SC 1071 R.N. Nanjundappa (1972) 1 SCC 409 and B.N. Nagarajan (1979)4 SCC 507,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 regularisation 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 regularise 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 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 regularisation, if any already made, but not sub judice, need not be reopened based on this judgment, but there should be no further bypassing of the constitutional requirement and regularising or making permanent, those not duly appointed as per the constitutional scheme.
(15) In paragraph 54 in Uma Devis case (supra), the Honble Supreme Court has already clarified that all those decisions, which run counter to the principle settled in Uma Devis case, or in which directions running counter to what has been held in the decision, shall stand denuded of their status as precedents.
(16) In the matters of Uma Devi (supra) the Honble Supreme Court has strongly disapproved absorption, regularisation or permanent continuance of temporary, contractual, casual daily-wage or ad hoc employees appointed/ recruited and continued for long in public employment dehors the constitutional scheme of public employment. It has been observed that the Supreme Court and High Courts should not issue such directions unless the recruitment itself was made regularly and in terms of constitutional scheme, as a wide power under the Constitution to the superior courts are not to be indented to be used for issuance of such directions, certain to defeat the concept of social justice, equal opportunity for all and the constitutional scheme of public employment. Merely because an employee had continued under cover of a order of the court under litigious employment or had been continued beyond the term of his appointment by the State or its instrumentalities, he would not be entitled to any right to be absorbed or made permanent in service, 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. However, an exception has been carved out in para 53 of the judgment and the Union and the Sate Governments and their instrumentalities have been directed to set in motion the process for regular recruitment in cases where temporary or daily-wagers were employed against vacant sanctioned posts, and in cases of irregular appointments (not illegal appointments) of duly qualified persons against duly sanctioned vacant posts, who had continued to work for ten years or more, without the intervention of the orders of the courts or tribunals were to be considered for regularisation, within six months of the date of judgment as a one time measure.
(17) Thus from the above it is evident that it was the duty of the employee as also of the department, who was responsible to appoint and continue the said employee as a contractual/casual/daily wager/ad hoc/temporary employee for a long period, to establish by producing relevant documents that such appointment was against the vacant posts, and that the employee was possessing the necessary qualification, for the post against which he was recruited under the rules, and fulfills other eligibility criteria such as age, caste, etc., that the engagement was as per constitutional scheme by inviting applications through wide publications or his name was duly sponsored by the employment exchange.
11. From pleadings of the respective parties and the documents annexed along with these OAs, we find that no appointment orders have been placed by the applicants, despite specific objection by the respondents in their counter reply. Therefore, in our considered opinion the issues involved in these Original Applications have already been considered and decided in OA No.746/2011 (supra), which has been upheld by the Honble High Court, as well as in OA No.1091/2010 (supra).
12. Accordingly we do not find any merit in these Original Applications. The same deserve to be and are accordingly dismissed, however, without any order as to costs.
(G.P.Singhal) (Dhirendra Mishra) Administrative Member Judicial Member rkv 17 Sub:- casual labourers regularisation OAs Nos. 117, 123, 228, 322, 327 & 430/2012 Page 17 of 17