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Ram Pravesh vs C.M.O. Ghazipur And Another

High Court Of Judicature at Allahabad|28 February, 2011


1. The petitioner claim to have been engaged on part-time basis on a fixed pay of Rs. 100/- per month in the year 1985. It is contended that since petitioner has been working for the last more than two decades, he should be considered for grant of regular pay scale applicable to Class-IV employees and also to pay other allowances etc. accordingly.
3. Learned counsel for the petitioner could not point out that a part-time employee can also claim regular pay scale having never been appointed in accordance with procedure prescribed in Rules. Recently the Apex Court in State of Rajasthan and others Vs. Daya Lal & others, 2011(2) SCC 429 has culled out certain principles from the decisions of Secretary, State of Karnataka v. Uma Devi 2006 (4) SCC 1 and its follow up and held as under:
"We may at the outset refer to the following well settled principles relating to regularization and parity in pay, relevant in the context of these appeals:
(i) The High Courts, in exercising power under Article 226 of the Constitution will not issue directions for regularization, absorption or permanent continuance, unless the employees claiming regularization had been appointed in pursuance of a regular recruitment in accordance with relevant rules in an open competitive process, against sanctioned vacant posts. The equality clause contained in Articles 14 and 16 should be scrupulously followed and Courts should not issue a direction for regularization of services of an employee which would be violative of constitutional scheme. While something that is irregular for want of compliance with one of the elements in the process of selection which does not go to the root of the process, can be regularized, back door entries, appointments contrary to the constitutional scheme and/or appointment of ineligible candidates cannot be regularized.
(ii) Mere continuation of service by an temporary or ad hoc or daily-wage employee, under cover of some interim orders of the court, would not confer upon him any right to be absorbed into service, as such service would be "litigious employment". Even temporary, ad hoc or daily- wage service for a long number of years, let alone service for one or two years, will not entitle such employee to claim regularization, if he is not working against a sanctioned post. Sympathy and sentiment cannot be grounds for passing any order of regularization in the absence of a legal right.
(iii) Even where a scheme is formulated for regularization with a cut off date (that is a scheme providing that persons who had put in a specified number of years of service and continuing in employment as on the cut off date), it is not possible to others who were appointed subsequent to the cut off date, to claim or contend that the scheme should be applied to them by extending the cut off date or seek a direction for framing of fresh schemes providing for successive cut off dates.
(iv)Part-time employees are not entitled to seek regularization as they are not working against any sanctioned posts. There cannot be a direction for absorption, regularization or permanent continuance of part time temporary employees.
(v) Part time temporary employees in government-run institutions cannot claim parity in salary with regular employees of the government on the principle of equal pay for equal work. Nor can employees in private employment, even if serving full time, seek parity in salary with government employees. The right to claim a particular salary against the State must arise under a contract or under a statute.
[See: Secretary, State of Karnataka v. Uma Devi 2006 (4) SCC 1, M. Raja v. CEERI Educational Society, Pilani 2006 (12) SCC 636, S.C. Chandra v. State of Jharkhand 2007 (8) SCC 279, Kurukshetra Central Co-operative Bank Ltd v. Mehar Chand 2007 (15) SCC 680, and Official Liquidator v. Dayanand 2008 10 SCC 1]"
4. The exposition of law is very clear that a person, if not appointed/absorbed after following the procedure prescribed in Rules, which gives equal opportunity of employment to all eligible persons and thereby complying with Article 16 of Constitution, in absence of any statutory provision entitling such person to claim regularization, validity whereof though is doubtful, since the Apex Court has said that Article 16 constitute basic feature of Constitution and nothing can be validate which may violate Article 16, can be directed to be regularized or absorbed irrespective of length of time one has continued to work. Any other view will give a licence to some of the mischievous authorities and resourceful individuals to defeat the scheme of Constitution under Article 16 as also the process of recruitment under the Rules and thereby enter the service and grasp it for all times to come through back door. The earlier sympathy, which used to generate merely on the fact that somebody has worked for a long time has been overruled by concept that rule of law should not be allowed to be breached since only those who have some extra resources can dare to violate the law and, therefore, any consideration in their favour shall confer upon them a premium of their act of committing breach of law. This is the message handed down to us by Constitution Bench in Uma Devi (supra) and has been followed and reiterated in all the subsequent authorities.
5. Since learned counsel for the petitioner could not show any legal or otherwise right vested to petitioner, in my view, he is not entitled for any relief as sought in writ petition.
6. Dismissed. No costs.
Order Date :- 28.2.2011 AK
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Ram Pravesh vs C.M.O. Ghazipur And Another


High Court Of Judicature at Allahabad

28 February, 2011
  • Sudhir Agarwal