HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 34 Case :- WRIT - A No. - 3826 of 2004 Petitioner :- [ENTITY] Respondent :- State of U.P. and Others Counsel for Petitioner :- [ENTITY], [ENTITY], [ENTITY] Counsel for Respondent :- C.S.C., [ENTITY] Hon'ble [ENTITY],J.
1. Heard Sri [ENTITY], Advocate, holding brief of Sri [ENTITY], learned counsel for petitioner and learned Standing Counsel for respondents.
2. By means of this writ petition, petitioner has sought a mandamus commanding respondents to consider him for regularization.
3. It is said that petitioner was asked to work on daily wage basis as Computer Typist in Allahabad University (hereinafter referred to as "University") wherein he has worked for following periods:
03.10.1998 to 30.11.1998 57 days In the Admission Committee of LL.B. Ist Year under Chairmanship of Dr. [ENTITY] 03.03.1999 to 30.04.1999 57 days In the Admission Committee for admission in LL.B. Ist Year under the Chairmanship of Dr. [ENTITY] 01.07.1999 to 04.09.1999 66 days As Clerk in the Admission Committee of B.A. 1st year admission under the Chairmanship of Dr. [ENTITY] 05.09.1999 to 21.10.1999 46 days Entrance Test for admission to LL.B. 1st Year under the Directorship of Dr. [ENTITY] 22.10.1999 to 29.02.2000 131 days Under the Chairmanship of Dr. [ENTITY] for admission to LL.B. 1st Year (2 Sessions).
15.07.2000 to 10.02.2001 210 days Under the Chairmanship of Dr. [ENTITY] for admission to B.A. 1st year course.
22.05.2001 to 21.06.2001 31 days Under the Directorship of Dr. [ENTITY] for admission to LL.B. 1st year for 2001-02 Session 12.07.2001 to 20.08.2001 40 days Under the Chairmanship of Dr. [ENTITY] for admission to BA-I
4. Thereafter, by order dated 24.07.2001 it is said that petitioner was appointed as Computer Operator in the Session 2001-02. The post of Computer Operator is a sanctioned post in University. Petitioner continued to work upto 31.12.2003 and with effect from 01.01.2004 he was ceased to work.
5. In the Rejoinder Affidavit, it is stated that recommendation has already been made by Committee constituted for regularization of daily wagers working in University and the aforesaid recommendation has been made part of Notice dated 02/04.02.2004 issued by Registrar but no further action has been taken.
6. However, learned counsel for petitioner could not show any provision under which petitioner can claim regularization. Admittedly, initially petitioner was engaged for certain period on daily wage basis and thereafter in Session 2001-02 to work as Computer Operator but after the said session, no letter of appointment was issued to petitioner. In these facts and circumstances, I do not find that any case of regularization is made out and that too in absence of any statutory provision.
7. The Apex Court in [PRECEDENT] has clearly held that in absence of any legal right under the statute for claiming regularization, a person who is not appointed in public service complying with the requirement of [SECTION] of the [ACT], cannot have a right either to hold the post or to continue in service or to claim regularization. The Apex Court in [PRECEDENT] (supra), therefore, very categorically cautioned the High Courts as under :
"The High Courts acting under [SECTION] of the [ACT], should not ordinarily issue directions for absorption, regularization or permanent continuance unless the recruitment itself was made regularly and in terms of the [ACT]al Scheme."
8. The above question in the light of decision in [PRECEDENT] (supra) has been considered in a catena of decisions and following [PRECEDENT] (supra), Court has held that regularisation is not a source of recruitment and if initial appointment was made without complying with the requirement of [SECTION] of the [ACT], regularisation is not permissible particularly in absence of any statutory provision. I do not propose to give the exhaustive list of all such cases, but it would be appropriate to place on record as to how the matter, of late, has been treated by the Apex Court in the light of the law laid down by the [ACT] Bench in [PRECEDENT] (supra).
9. Following [PRECEDENT] (supra), in [PRECEDENT], it was held:
"Equal opportunity is the basic feature of our [ACT]. Our constitutional scheme clearly envisages equality of opportunity in public employment. This part of the constitutional scheme clearly reflects strong desire and constitutional philosophy to implement the principle of equality in the true sense in the matter of public employment.
In view of the clear and unambiguous constitutional scheme, the courts cannot countenance appointments to public office which have been made against the constitutional scheme. In the backdrop of constitutional philosophy, it would be improper for the courts to give directions for regularization of services of the person who is working either as daily-wager, ad employee, probationer, temporary or contractual employee, not appointed following the procedure laid down under [SECTION], [SECTION] and [SECTION] of the [ACT]."
10. Elaborating the procedure of regular appointment, in [PRECEDENT], the Court observed that regular appointment to a post under the State or Union cannot be made without issuing advertisement in the prescribed manner, which would include inviting of applications from the employment exchange where eligible candidates get their names registered. Any regular appointment made on a post under the State or Union without issuing advertisement inviting applications from eligible candidates and without holding a proper selection where all eligible candidates get a fair chance to compete would violate the guarantee enshrined under [SECTION] of the [ACT].
11. Deprecating the practice of the State to make appointment in ad hoc manner without caring to the recruitment in accordance with rules, the Apex Court in [PRECEDENT] said that the State Government should not allow to depart from the normal rule and indulge in temporary employment in permanent posts. Court is bound to insist upon the State to make regular and proper recruitments. The Court is also bound not to encourage or shut its eyes to the persistence transgression of the rules of regular recruitment. Any direction to the State to consider the persons for regularisation even though they have not been recruited in accordance with rules would only encourage the State to flout its rules and to confer undue benefits on a selected few at the cost of many waiting to complete. Adherence to the rule of equality in public employment is a basic feature of our [ACT] and since the rule of law is the core of our [ACT], a Court of law and even a Court of equity would certainly be disabled to pass an order upholding violation of [SECTION] or directing the State to overlook the need of compliance of [SECTION] of [ACT] and thereby give certain advantage to a person who is beneficiary of such violation. Considering the scheme of public employment in the context of fundamental rights and in particular the right of equal opportunity of employment, this Court would insist upon appointment to be made in terms of the relevant rules and after a proper competition amongst qualified persons instead of conferring a right on non selected appointees who have come from a channel not recognised in law. Such appointees cannot be conferred a valid entry being in breach of [SECTION] and [SECTION] of the [ACT]. In [PRECEDENT] (supra), the Apex Court also said:
"If it is a contractual appointment, the appointment comes to an end at the end of the contract, if it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued. Similarly, a temporary employee could not claim to be made permanent on the expiry of his term of appointment. It has also to be clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, 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. It is not open to the court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad hoc employees who by the very nature of their appointment, do not acquire any right. The High Courts acting under [SECTION] of the [ACT], should not ordinarily issue directions for absorption, regularisation, or permanent continuance unless the recruitment itself was made regularly and in terms of the constitutional scheme. Merely because an employee had continued under cover of an order of the court, which we have described as "litigious employment" in the earlier part of the judgment, he would not be entitled to any right to be absorbed or made permanent in the service."
12. The same view has been reiterated in [PRECEDENT].
13. In [PRECEDENT], the Apex Court held that any regular appointment made on a post under the State or Union without issuing advertisement, inviting applications from eligible candidates and without holding a proper selection where all eligible persons get a fair chance to complete is in violation of guarantee enshrined under [SECTION] of the [ACT]. Ad hoc/ temporary/ daily wage employees are not entitled to claim regularisation in service as a matter of right. If an illegality or irregularity has been committed in favour of any individual or a group of individuals or a wrong order has been passed by a judicial forum, others cannot invoke the jurisdiction of the higher of superior Court for repeating or multiplying the same irregularity or illegality or for passing wrong order.
14. In [PRECEDENT], the Court observed that it is no doubt true that the respondents under certain circumstances had been appointed directly as casual mates and they continued as such and further by virtue of their continuance they acquired temporary status but that by itself does not entitle them to be regularised as mates since that would be contrary to the rules in force. The Court further held that the respondents did not acquire a right for regularisation as mates from the mere fact of their continuance as casual mates for a considerable period.
15. In [PRECEDENT] Apex Court following the decision in [PRECEDENT] (supra) held as under:
"The High Courts, in exercising power under [SECTION] of the [ACT] 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 [SECTION] and [SECTION] 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."
[SECTION]. In [PRECEDENT], Court referring to its decision in [PRECEDENT] (supra), in para 12 of the judgment, said :
"12. It has been held in a recent decision of this Court in [PRECEDENT] following the [ACT] Bench decision of this Court in [PRECEDENT] that the High Court in exercise of its power under [SECTION] cannot regularize an employee."
17. In [PRECEDENT], referring to [PRECEDENT] (supra) Court said :
"A [ACT] Bench of this Court has clearly stated the principle 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. It would also not be proper to stay the regular recruitment process for the concerned posts."
18. In [PRECEDENT] referring to [ACT] Bench judgment in [PRECEDENT] (supra) said :
" the [ACT] Bench, after survey of all the decisions in the field relating to recruitment process and the claim for regularization, in paragraph 43, has held that consistent with the scheme for public employment, it is the duty of the court to necessarily hold that unless the appointment is in terms of the relevant rules, the same would not confer any right on the appointee. The Bench further proceeded to state that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, 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."
19. In [PRECEDENT], referring to [PRECEDENT] (supra) Court said that 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 [SECTION] and [SECTION] of the [ACT].
20. In [PRECEDENT] referring to [PRECEDENT] (supra), Court said :
"Law pertaining to regularisation has now been authoritatively determined by a [ACT] Bench judgment of this Court in [PRECEDENT]. On the application of law laid down in that case, it is clear that the question of regularisation of daily wager appointed contrary to law does not arise. This ration of the judgment could not be disputed by the learned Counsel for the Appellant as well."
21. In view of above authorities and binding precedent of Supreme Court, the relief of regularization sought for by petitioner cannot be granted.
22. The writ petition lacks merits. Dismissed.
23. Interim order, if any, stands vacated.
Order Date :- 09.12.2019 PS