1. Heard learned counsel for the petitioners and perused the record.
2. The petitioners were admittedly daily wage contract basis employees and engaged in U.P. Pichhara Verg Vitta Evam Vikas Nigam Ltd. As per the own admission of petitioners they were engaged since 1994 and onwards.
3. Despite repeated query, learned counsel for the petitioner, could not show any provision under which they are seeking regularization. My attention is drawn to an order dated 25/27.07.2006 passed by Managing Director by which petitioners have been given salary in the pay scale of Rs. 750-940/- but counsel for petitioner could not dispute that by aforesaid order only salary in pay scale has been provided to petitioners but there is no order for regularisation passed by authorities concerned so far and that is why petitioners pressing this writ petition so far as relief of regularisation is concerned.
4. In order to hold an office or appointment in State, or where the funds are being released from State Exchequer for payment of salary to the appointees, it goes without saying that State has to make appointments following the process of open recruitment, giving equal opportunity of consideration to all concerned. In other words, an appointment has to be made in such a case by State or its authority following procedure, which is consistent with Article 16(1) of the Constitution. It includes advertisement of vacancies i.e. notifying to the Employment Exchange, advertisement in newspaper and/or other means.
5. In State of Orissa and Anr Vs. Mamata Mohanty, 2011 (3) SCC 436, the Court said:
"....some appropriate method consistent with the requirements of Article 16 should be followed. In other words there must be a notice published in the appropriate manner calling for applications and all those who apply in response thereto should be considered fairly. Even if the names of candidates are requisitioned from Employment Exchange, in addition thereto it is mandatory on the part of the employer to invite applications from all eligible candidates from the open market by advertising the vacancies in newspapers having wide circulation or by announcement in Radio and Television ...."
6. The Court further said that no person can be appointed even on temporary or ad hoc basis without inviting applications from all eligible candidates. In that case, appointments were made after notifying vacancies to Employment Exchange and putting a note on the notice board. The Court condemned it and said:
"If any appointment is made by merely inviting names from the Employment Exchange or putting a note on the Notice Board etc. that will not meet the requirement of Articles 14 and 16 of the Constitution. Such a course violates the mandates of Articles 14 and 16 of the Constitution of India as it deprives the candidates who are eligible for the post, from being considered."
7. The Court went on to observe that a person appointed illegally or not employed after following procedure consistent with Articles 14 and 16, shall not be entitled for salary. The Court said:
"A person employed in violation of these provisions is not entitled to any relief including salary. For a valid and legal appointment mandatory compliance of the said Constitutional requirement is to be fulfilled. The equality clause enshrined in Article 16 requires that every such appointment be made by an open advertisement as to enable all eligible persons to compete on merit."
8. It is interesting to notice that in State of Orissa and Anr Vs. Mamata Mohanty (supra), the Court also observed that if a person has continued to work, that by itself will not confer any right upon him since principle of holding over or concept of adverse possession is not applicable in service jurisprudence. Relying on its earlier decision in Dr. M.S. Patil Vs. Gulbarga University and Ors., AIR 2010 SC 3783, the Court said:
"The concept of adverse possession of lien on post or holding over are not applicable in service jurisprudence. Therefore, continuation of a person wrongly appointed on post does not create any right in his favour."
9. In order to claim regularization, it has to be kept in mind as to what is the concept of regularization. In other words, what are the necessary constituents or indicias, which must exist so as to entitle a person to claim regularization in employment having not been appointed in accordance with law.
10. The appointments in public services are made in various ways. The purest form of appointment is one which is made following the procedure laid down in statute consistent with Article 16 of the Constitution of India. When a vacancy on a civil/public post is available, it is made known to every one, eligible and willing, to apply therefor, so as to be considered thereagainst. It conforms the fundamental right of equal opportunity of employment to all qualified and willing persons for such employment. When this opportunity is given and appointment is made after following procedure prescribed in statute, the appointment is absolutely just, valid and called the purest form of appointment.
11. Then comes an appointment, where vacancies are advertised, consideration for employment is afforded to all qualified and willing but in the process of selection and appointment there is some procedural defect which may not affect the very appointment at its root. Such an appointment at the best can be an irregular appointment which would confer a right upon the appointee to continue and hold the post subject to subsequent rectification or validation by competent authority, expressly or impliedly.
12. Then comes an appointment, fortuitous in nature, made in certain exigencies. For example, a short term, stop gap, officiating, daily wage etc. appointments, which normally is opted when requirement and tenure is precarious and by the time, procedure is followed, very purpose would stand frustrated. Such appointments are made normally by pick and choose method, i.e., whosoever come and apply, whether after getting knowledge on his own or otherwise, is given opportunity to serve for the limited purpose and tenure, which is called, sudden requirement and exigency of situation. Such appointments do not confer any right upon the appointee, either to hold post for a long time or to get the post in substantive manner. Above exception has been pleaded and allowed though it deprives right of equal opportunity of consideration to all eligible and willing persons by advertising the vacancy etc. only for the reason that requirement is sudden, tenure precarious and delay shall cause greater public loss. Otherwise, such appointments, in other words, comes in the category of illegal when tested on the anvil of Article 14 and 16 of the Constitution. One can say that applying doctrine of reasonable classification and considering fortuitous nature of requirement and process followed for its achievement, per se it may not be termed as illegal so long as that requirement is there but in case it is extended so as to confer a benefit more than such requirement, it will cross the dotted line of validity and will entered in the realm of illegality. Such appointments have been held void ab initio and not entitled to confer any right upon appointee so as to claim a substantive right on the post in his holding, in whatever capacity, whether daily wager, officiating, ad hoc etc.
13. The maxim 'dura lex, sed lex', which means "law is hard but it is the law", in my view, aptly applies in the cases where incumbents have come to an office not following procedure consistent with constitutional requirement of Article 16(1) but otherwise and thereafter claim equitable and other consideration for sustaining their entry and occupancy of the office for all times to come. In Raghunath Rai Bareja and another Vs. Punjab National Bank and others, 2007(2) SCC 230 it is said:
"When there is a conflict between law and equity, it is the law which has to prevail . . . . . Equity can only supplement the law, but it cannot supplant or override it."
14. It has been followed in State of Uttaranchal and Anr. Vs. Rajendra Singh Kandwal 2011(5) AWC 5075 (SC).
15. The Constitution Bench in Secretary, State of Karnataka Vs. Uma Devi 2006 (4) SCC 1 has held that illegal appointments cannot be asked to be regularized as that would amount to violating the fundamental right of equal opportunity of employment to those who have been denied such opportunity. The Constitution Bench decision has overruled dozens of earlier decisions taking a view otherwise so as to show sympathy in favour of those who got or managed their appointments illegally, i.e., without complying the requirement of equal opportunity of employment to all others, came to the office on account of their individual resources and managing continuance for quite some time or long time, and then claim a substantive right on the basis of long tenure, they have managed to continue. In other words, the incumbent comes to the office by virtue of a pick and choose method, usurps office by back door or whatever other term one may use, despite obviously it being short of compliance of requirement of Article 16(1) of the Constitution, but having maintained such benefit to continue for quite some time which normally has the support of appointing authorities also, the beneficiary comes to claim a sense of sympathy on the basis of such long continued usurpation of office. In other words, a violator of law claims a substantive right for having violated law continuously for quite a long time with regard to a public office.
16. In the matter of appointment there is no principle of adverse possession but a plea somewhat similar thereto many a times is raised that since one has continued to work for quite long time, now he should be allowed to stay in the office for rest of tenure otherwise his family would suffer. A situation is created where sympathy is sought not in favour of victims, i.e., those who were denied right of equal opportunity of employment but in favour of those who have violated law, contravened it, breached it with impunity, and, have continued to do so for quite some time, and now, boldly and blatantly claim a kind of right to retain such benefit of breach of law, for all times to come, and, for that purpose, various pleas in the name of equity, sympathy, compassion etc. are raised and pleaded. Many a times, find favour in the Courts of Law. Fortunately, the Constitution Bench, after having a retrospect of all earlier authorities, has taken a clear stand against such kind of favour shown to those who have come in public office, by denying right of equal opportunity to others. The Court in unequivocal terms has observed that any favour shown to such violators would be a misplaced sympathy.
17. Regularisation Rules, if any, is an attempt to give a cover to such illegal appointments and, therefore, may have to be tested on the anvil of constitutional validity under Article 14 and 16(1) of the Constitution. However in the present case, no such Rule exists. It exists, every requirement entitling a persons to be considered for regularization must be held to be mandatory and any deviation therefrom will either disentitle the claimant from such benefit or any attempt by executive otherwise would render such action of even executive authority, ultra vires.
18. After Uma Devi (supra) there is a chain of authorities wherein the above view has been followed and some of the authorities which tried to take a different view, subsequently, even have been overruled and clarified. Some of the recent authorities, in this regard, just to recapitulate and remind the exposition of law with regard to regularization may be referred to hereat.
19. Commenting upon one time scheme of regularization, in State of Rajasthan and others Vs. Daya Lal & others, 2011(2) SCC 429, the Court in para 12 of the judgment said:
"12. The decision relied upon by the High Court namely the decision in Anshkalin Samaj Kalyan Sangh of the High Court no doubt directed the state government to frame a scheme for regularization of part-time cooks and chowkidars. It is clear from the said decision, that such scheme was intended to be an one-time measure. Further said decision was rendered by the High Court prior to Uma Devi, relying upon the decision of this Court in Daily Rated Casual Labour v. Union of India 1988 (1) SCC 122, Bhagwati Prasad v. Delhi State Mineral Development Corporation 1990 (1) SCC 361 and Dharwad District PWD Literate Dalit Wage Employees Association v. State of Karnataka 1990 (2) SCC 396. These directions were considered, explained and in fact, overruled by the Constitution Bench in Uma Devi. The decision in Anshkalin Samay Kalyan Singh is no longer good law. At all events, even if there was an one time scheme for regularisation of those who were in service prior to 1.5.1995, there cannot obviously be successive directions for scheme after scheme for regularization of irregular or part-time appointments. Therefore the said decision is of no assistance."
20. In Union of India and others Vs. Vartak Labour Union, 2011(4) SCC 200 in para 16 of the judgment the Court said:
"16. We are of the opinion that the Respondent Union's claim for regularization of its members merely because they have been working for BRO for a considerable period of time cannot be granted in light of several decisions of this Court, wherein it has been consistently held that casual employment terminates when the same is discontinued, and merely because a temporary or casual worker has been engaged beyond the period of his employment, he would not be entitled to be absorbed in regular service or made permanent, if the original appointment was not in terms of the process envisaged by the relevant rules. (See: Secretary, State of Karnataka and Ors. v. Umadevi (3) and Ors. (2006) 4 SCC 1; Official Liquidator v. Dayanand and Ors. (2008) 10 SCC 1; State of Karnataka and Ors. v. Ganapathi Chaya Nayak and Ors. (2010) 3 SCC 115; Union of India and Anr. v. Kartick Chandra Mondal and Anr.; Satya Prakash and Ors. v. State of Bihar and Ors. (2010) 4 SCC 179 and Rameshwar Dayal v. Indian Railway Construction Company Limited and Ors. 2010) 11 SCC 733." (emphasis added)
21. In Brij Mohan Lal Vs. Union of India and others, 2012(6) SCC 502, dealing with Fast Track Courts, the Court referred to the Constitution Bench decision in Uma Devi (supra) and said that therein the principle has been laid down that in matters of public employment, absorption, regularization or permanent continuance of temporary, contractual or casual daily wage or ad hoc employees appointed and continued for long in such public employment would be de hors the constitutional scheme of public employment and would be improper.
22. In University of Rajasthan and another Vs. Prem Lata Agarwal, 2013(3) SCC 705 after referring to the dictum in Uma Devi (supra), the court observed that 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 relevant rules/procedure, he is aware of the consequences of appointment being temporary, casual or contractual in nature. Such a person cannot invoke the theory of legitimate expectation for being confirmed on a post when an appointment on the post could be made only by following proper procedure.
23. Recently in Amarendra Kumar Mohapatra and Ors. vs. State of Orissa and Ors., 2014(2) SCALE 589; Nand Kumar Vs. State of Bihar & Ors., 2014 (3) AWC 2378 (SC); Secretary to Government, School Education Department, Chennai & Ors. Vs. Thiru R. Govindaswamy and Ors. (2014) 4 SCC 769 and Director, Printing and Stationary Department, U.P. Government Press & Ors. Vs. Moti Lal and Ors., (2014)2UPLBEC1193, the Court reiterated and followed Constitution Bench decision in Secretary, State of Karnataka and Ors. Vs. Umadevi (3) and Ors., 2006 (4) SCC 1;
24. In Nand Kumar Vs. State of Bihar (supra), referring to Uma Devi (supra), the Court said that the daily wagers are not appointees in the strict sense of the term 'appointment'. They do not hold a post. They cannot therefore claim any benefit of regularization. The Court observed:
"Appointment on daily wage basis is not an appointment to a post according to the rules. Usually, the projects in which the daily wagers were engaged, having come to an end, their appointment is necessarily terminated for want of work. Therefore, the status and rights of daily wagers of a Government concern are not equivalent to that of a Government servant and his claim to permanency has to be adjudged differently." (emphasis added)
25. In the present case, it is not argued by learned counsel for the petitioners that petitioners are entitled to be considered for regularization under some statutory provision or there is any scheme enforceable in law, formulated by respondents which entitled petitioners to claim regularization.
26. In view of the above discussion, claim set up by petitioners for regularization must fail.
27. Learned counsel for the petitioners then contended that some persons junior to petitioners have been regularized but he could not dispute this fact that there is no provision exist under which petitioners can claim regularisation and that being so, if some persons regularized illegally that by itself is not entitled petitioners to claim parity with such alleged illegal regularisation. It is well settled that two wrongs will not make one right. (See State of Bihar and others Vs. Kameshwar Prasad Singh and another, AIR 2000 SC 2306; Union of India and another Vs. International Trading Co. and another, AIR 2003 SC 3983; Lalit Mohan Pandey Vs. Pooran Singh and others, AIR 2004 SC 2303; M/s Anand Buttons Ltd. etc. Vs. State of Haryana and others, AIR 2005 SC 565; and Kastha Niwarak G. S. S. Maryadit, Indore Vs. President, Indore Development Authority, AIR 2006 SC 1142).
28. Recently a Division Bench of this Court (of which I was also a member) in Special Appeal No.375 of 2005 Shiv Raj Singh Yadav Vs. State Of U.P. And Others, 2011 (10) ADJ 699, has considered this aspect in detail and in paragraph no.22 it held as under:
"22. Once it is established that the petitioner had no legal right of regularisation, merely because some irregularities and illegalities have been observed by the respondents in some other cases with respect to regularisation, that would not confer any right upon the petitioner to claim parity. The right of equality under Article 14 and 16 of the Constitution is a positive concept and not a negative one. (See Post Master General, Kolkata and others Vs. Tutu Das, 2007(5) SCC 317; Punjab National Bank by Chairman and Anr. Vs. Astamija Dash, AIR 2008 SC 3182; Punjab State Electricity Board and others Vs. Gurmail Singh, 2008(7) SCC 245; M/s. Laxmi Rattan Cotton Mills Ltd. Vs. State of U.P. and others, 2009(1) SCC 565; Panchi Devi Vs. State of Rajasthan and others, 2009(2) SCC 589; State of Bihar Vs. Upendra Narayan Singh, 2009(5) SCC 65; State of Uttaranchal Vs. Alok Sharma and others, JT 2009(6) SC 463; State of Punjab and another Vs. Surjit Singh and others, 2009(11) SCALE 149; State of Madhya Pradesh and others Vs. Ramesh Chandra Bajpai, 2009(11) SCALE 619; Shanti Sports Club and another Vs. Union of India and others, 2009(11) SCALE 731; Ghulam Rasool Lone Vs. State of J & K and others, JT 2009(13) SC 422."
29. In view of above, the writ petition lacks merit. Dismissed. Interim order, if any, stands vacated.
Order Date :- 14.08.2014 AK