(Oral) Supplementary rejoinder affidavit filed by the learned counsel for the petitioner is taken on record.
Heard learned counsel for the petitioner and learned Standing Counsel appearing on behalf of the State-respondents.
By means of the present petitioner, the petitioner has prayed for quashing the order dated 01.03.2001 passed by the respondent No. 3, Zila Udyan Adhikari, Government Nursery Polytechnic, Jaunpur and also the order dated 10.2.2001 passed by the respondent no.5 whereby the representation of the petitioner for re-engagement as daily wager/Mali has been rejected. He further prayed for mandamus to direct the respondent no.5 In-charge. Government Nursery Polytechnic, Jaunpur to allow the petitioner to join his services and pay him salary as usual and also to regularise the services of the petitioner as Class IV employee (Mali) in view of the law laid down by the Hon'ble Supreme Court in the case of State of Haryana vs. Dayal Singh.
This writ petition was filed by the petitioner in March 2001 and no interim order was granted by this Court directing the respondents to allow the petitioner to continue in service. At the time of initial filing of the writ petition, the petitioner stated that he was daily wager (Mali) and had worked right from 1994 to October 2000 for nearly six years continuously but had been disengaged for no reason since October 2000 whereas the respondent No. 3 had permitted similarly situated daily wagers (Mali), namely, Ramesh Singh and Santosh Kahar to work continuously. It was submitted by the petitioner that Ramesh Singh and Santosh Kahar, arrayed as respondent Nos. 6 and 7 to the writ petition, had been engaged only in the year 1995 and 1996 and, therefore, they were juniors to the petitioner and they could not have continued whereas the petitioner's services were ended. The petitioner had already made a representation on 21.12.2000 to the respondents, therefore, this Court directed as an interim measure that representation be considered in accordance with law. The representation of the petitioner was considered by the respondent No. 3 and rejected by order dated 01.03.2001. The petitioner amended the writ petition on 05.04.2005 challenging the order dated 01.03.2001 also and the order dated 10.02.2001.
In the counter affidavit filed on 8.1.2002, the respondents have stated that the petitioner has not worked as daily wager from October, 1994 to 27.10.1997. In the counter affidavit and supplementary counter affidavit filed by the respondents on 28.05.2005 and 17.11.2018 respectively, the respondents have stated that the statement made in the writ petition is incorrect that he worked up to 2000. It has been stated that no seniority list is prepared for daily wagers as daily wagers are engaged on the basis of exigency of work. As and when work was available, the petitioner as well as other employees were engaged. Insofar as certificate of work having been issued to the petitioner by the In-charge of the Nursery is concerned, it has been submitted in the counter affidavit that the In-charge of the Nursery was not authorised to issue work certificate. It was also stated that the Rajkiya Prakshetra, Parmanandpur was closed down for some time and, therefore, daily wagers, who were being given work in the said Rajkiya Prakshetra, Parmanandpur were disengaged.
Under the regularization Rules of 2016, any person, who has been engaged on daily wages on a Group C or Group D post (outside the purview of the U.P. Public Service Commission) on or before the cut off date 31.12.2001 or has continued to do so till the issuance of the said Regularization Rules can be considered for regularization. Since the petitioner has not worked since March 2000, his case for regularization has not been considered under the said Rules of 2016.
It has been argued by the learned counsel for the petitioner on the basis of averments made in the rejoinder affidavit and supplementary rejoinder affidavits filed by him that daily wage muster roll or Dainik Shramik Chitha is maintained in each Rajkiya Prakshetra. In support of his submission, the petitioner has filed Dainik Shramik Chitha is w.e.f. 1994 to September 2001 as Annexure SA1 in the supplementary affidavit on specific inquiry. The learned counsel for the petitioner states that this Daink Shramik Chitha has been filed only to show that the petitioner was working along with others since 1994 and it cannot be said that no records are maintained by the respondents for daily wage employees. However, from a perusal of the Dainik Chitha that has been filed, it is apparent that it is only up to June 1997 and not up to 2001 as stated by the learned counsel for the petitioner.
It is submitted by the learned counsel for the petitioner that in Regularization Rules 2001 as well as Regularization Rules 2016, reference has been made to regularization under Rule 4 and Rule 6 respectively of daily wage employees who continued to remain working in order of seniority. Hence, the submission of the respondent that no seniority was maintained and no record was maintained regarding daily wagers are apparently false. It has been further submitted that the petitioner has been discriminated as his junior Ramesh Singh and Santosh Kahar having been allowed to continue while he was disengaged for no reason. Because of the continuance of his juniors after his disengagement, they were considered and are regularized under 2001 and 2016 Rules Insofar as the engagement of daily wagers are concerned, the Hon'ble Supreme Court in Secretary, State of Karnataka vs Uma Devi and others, 2006 (4) SCC 1 has observed in paragraph 47 to 53 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. 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 Article 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 comparision 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 n 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 or a post, since, a regular appointment could be made only by making appointments consistent with the requirement of Article 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 argument 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 has 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, 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 21of 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 ways amounts to forced labour, cannot be accepted. After all, the employees accepted the 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 cannot also be accepted at this juncture. 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 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 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 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 sicne 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.
53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa, R.N. Nanjundappa and B.N. Nagarajan and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made an 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 servies of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases abovereferred 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."
In pursuance of the exception carved out in paragraph 53 by the Hon'ble Supreme Court, the regularization Rules of 2016 have been framed, but it is only for those employees who continued to be engaged on daily wage/ consolidated wage/ work charge/ contractual basis and is unavailable to employees who were not found working at the time of notification of said Regularization Rules.
This court, therefore, cannot at this point of time issue any mandamus to the respondents to regularize the petitioner. However, the learned counsel for the petitioner has submitted that a direction may be issued to the respondents at least to consider the case of the petitioner for engagement if there is work available.
It is a reasonable request made by the learned counsel for the petitioner.
Therefore, writ petition is disposed of with a direction to the petitioner to approach the respondent No. 3 and the respondent No. 3 may consider his case sympathetically and direct for his engagement as daily wager as and when work is available in the Prakshetra for daily wage Maalis.
Order Date :- 28.11.2018 sushma