^r^ HIGH COURT OF CHHATTISQARH : BSLASPUR Wnt^etittpn (S) , 5232 of 2097 Lat Dhruw, S/G Dv/arika Prasad Dhruw, aged about 30 yoars, resident of Old Bus Stand, Janjgir, Tahsii Janjgir, District Janjgir-Champa (CG). Versus 2 The State of Chhattisgarh, through the Principa! Sscrstsr^, Gsners! Administration Department, Mantraiaya, DKS Bhawan, Raipur (CG). The Secrstarv, Rs^ nue Dspartment, Chhattisgarh, DKS BuiSding, Raipur (CG). The Coilector/Distrtet Elecilon Officer, Janjgir, District Janjgir- 4 Joinf Coliectos-, Office of Coiiector, Janjgir-Champa, District Janjgir- nQWrit Petttion under Articie 226 ofthe Constitution of India) SB: Hon'WeMr. Satish K. Agnihotri, J. Ms Renu Kochar, counse'; for the petitioner. Ms Smita Ghai, Panel Lawyer for the State. ORAL ORDER (Passed on this Stn day of May, 2008) Chaiienge in this petition is to the order dated 29-6-2007 (Annexure - P/1) whereby the services of the petitioner on ad hoc basis granted for a period of one year by order dated 28-4-2006, has been discontinued. 2) The indisputabie facts, in nutsheH, as projectsd by the petitioner, are that. oursuant to the order dated 16-7-2TO3 issued bv the Law and Legislative Affairs (Election) Department, Government of Chhattisgarh, the petitioner was appointed on the post of Assistant Grade - Ul by order dated 5-9-2CXS3 (Annexure - P/2) on temporary basis for a term ending on 31-12-2003. Thereafter, vlde order dated 22-9-2003 (Annexure - P/3) the ser»'ice of the petitioner on temporary basis was allowed fo continue. On 21-2-2005 (Annexure - P/4) theservlce of the petitioner was again exiended up to 30-8-2005. On 1-12-2005 (Annexure - P/5) his service was further extended up to 31-3-Z)06. Subsequently, by ^.''a order dated 28-4-2006 (Annexure - P/7) the period was iastly extended for a period of one y^r, which came to an end on 27-4-2007. 3) Ms Kochar, tearned counsei appearing for the petitioner, v/ould submit that the petitioner was granted 50% Deamess ASIowancs by order dated 1S-4-2C07 (Annexure - P/8). On 29-6-2007 (Annexure P/1) the service of the petitioner came to an end on the bssis of the letter dated 16-1-2007 (Annexure - P/11). Leamed counsel wouid further submit that the authorities have misunderstood the contsrrts of the letter dated 16-1-2007 and, as such, the impugned order is bad and ttie same deserves to be quashed with a direction to absorb the servtee of the petitioner on the post of Assistant Grade - III. Learned counsei would next submit that in other districts similarly situafed employees have been permitted to continue on ad hoc basis. 4) Per contra, Ms Ghai, iearned Panel Lawyer appearing for the State, would submit that the appointment <rf the petitioner was purely on temporary and ad hoc basis. The appointment crf the petitioner is nrt in accordance with the constitutionai scheme of empioymant. The petitioner was not appointed through a proper seiection process. as envisaged in the constitutional scheme of employment and, as such, he has not.acquired any right to the post and does not deserve to continue further. 5) I have heard learned counsel appearing for the parties, perused the pieadings and the documents apDended thereto. 6) Admittedly the petitioner was never appointed in accordanoe wifii the constitutional scheme of employment, as the appointment of the petitioner was not through proper selection process. The contention of the learned counsel for the petitioner that in other districts other ad hoc employees are continuing and, as such, the petitioner is also entitied to continuation as ad hoc employee is not sustainabte in the eye of iaw, as if the iliegal appointments are allowed by the employer to continue that cannot be basis to direct the respondents to continue the oetitioner also on ad hoc basis till regular incumbent is appointed. As far as the second contention of the learned counset for the petitioner that the order dated 15-1-2007 has not been understood properly is concemed, the said cireular cleariy provides for continuation of the temporary empioyees in the Revenue Department. There is no iegal sanction to pass such order when it is the settled principie of iaw that an illegal appotntment cannot be ailowed to be contlnued on the basis of any circuiar. 7) The Supreme Court in Secretary, State of Karnataka and others Vs. Umadevi (3) and others , observed as under: "43.....!f it is a contractual appoinhnent, the appolntment comes to an end at ths snd of the contract, if it were an engagement or appointment on daiiy wages or casuai basis, the same wouid come to an end when it is discontinued. Similariy, a temporary employee couid not claim to be made permansnt on the expiry of his term of appoirrtment. it has also to be clarified that mereiy because a temporary empioyee or a casual wage worksr is continued for a time beyond the term of his appointment, he would not be entitied to be absorbed in regular servtee or made psrmanent, merely on the strength of such continuance, if the origina! appointment was not made by foltowing a due process of seiection as envisaged by the relevant rules. it is not open to tte eourt to prevent regular recruitment at the instance pf temporary employees whose period of empioyment has come to an end or of ad hoc empioyees who by the very nature of their appointment, do not acquire any right..... 45. Whiie directing that appointments, temporary or casual, be regularised or rnade permanent, the courts are swayed by the fact that the (»rson concerned has worked for soms time and in some cases for a considerabte lengtti of time. It is ncrt as if the person who accepte an engagement ather temporary or casual in nature, is not aware of the nature of hte employment. He accepte the empioymenf with open eyes. It may be true that he is not in a position to bargain - not at arm's iength - since he might have been searching for some emptoyment so as to eke out his livelihood and accepts whatever he gets. But on that ground atone, it wouid not be appropriats to jetBson ths constitutionai scheme of appointment and to take the view that a person who has temporariiy or casualiy got empioyed shouid be directed to bs continued permanentiy. By doing so, it wiil be creaiing another mode of pub!ic appointment which is not permissibie. If the court were to void a contractuai emoiovment of ttiis nature on the ground that the parties were not having equal bargaining power, that too wouid not enabte the court to grant any retief So ftat employee. A total embargo on such casuai or temporary empioyment is not possible, given the exigencies of administratlon and if smposed, 'A'ouid oniy inean that some peopie who at ieast get empioyment temporariiy, contractuaily or casuaiiy, wouid not be getting even that employmsnt brings at ieast some succour to ftem. After aii, innumerable oitizens of our vast country are in search of emptoymsnt and one is not compelied to accept a casual or (2006) 4 SCC 1 €7 temporary emptoyment if one is not inclined to go in for sueh an empioyment. !t is in ttiat context that one has to proceed on ttie basis thai ihe empioyment was accepted fuliy knowing the nature of it and the consequences flowing from it. In other words, even while accepting the employment, the psrson concsmsd knows the natars of his empioyment. It Is not an appointment to a post in the rea! sense of the term. The claim acquired by him in the post in which he is temporarily empioyed or the interest in that post cannot be considered to be of such a magnltude as to anabie ths gh/ing up of the procedure estabiished, for mata'ng reguiar appointments to avaiiabie posis in the services of the State. The argument that since one has been v/orking for some Ume in the post, ft wii! not be just to discontinue him, even though he was aware of the nature of the empioyment when he first took it up, ss not (sfc) one that wouid enabie the jettisoning of the procedure established by law for pubiic employment and wouid have to fail when tested on the touehstone of constitutionaisty and equalsfy of opportunity enshrined in Article 14 of the Constitution. 47. Whena person enters a temporary employment or gsts engagsment as a contractuai or casual worker and the engagement is not based on a proper se!ect<Qn as recogniseci by She relevant ru'es or procedure, he is aware trf the consequences of the appointment being temporary, casual or contractual in nature. Such a psrson cannot invoke the theory of legitimate expectation for bwng confirmed in the post when an appoirtment to the post couid be made only by foiiowing a proper procedure for seiection and in cases concerned, in consutetion with the Pubiic Service Conamission. Therefore, the theory of iegitimate expectation cannot be successfuily advanced by temporary, contractuai or casuat empioyees. It cannot aiso 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 Stats cannot constitutionaSly make such a promise. !t is aiso obvious ihat the theory cannot be invoked to seek a positive relief of being made permanent in thepost. 48....There is no fundamentai right in those who have been smployed on daiiy v/agss or temporariiy or on contraclual basis, to ciaim that they have a rightto be absorbed in service...." 8) The observations made in Umadevi (supra) were quoted with approval in Official Liquidator vs. Dayanand and Ofters . Their Lordships further expiained about ttie rights of the temporary employees and reguiarization. Para 70 reads as under: 2(2008)10SCC1 ^ "70. The shift in the Court's approach became more promineRt 'IR A. Umarani v. Coop. Socfoffss, decided by a three-Judge Bench, wherein it was heid that the State cannot invoke Articie 162 of the Constitution for regularisation of the appointments made in violatton of the mandatory statutory provisions." 9) tf the appointment of the petitloner itself was illegal, the subsequent grant of regular pay scale and regularization does not change the status of the empioyee. The Supreme Court in Ashok Kumar Sonkar Vs. Union of !ndia and others observed as under: "34. It is not a case where appointment was irreguiar. If an appointment is irregular, ths same can bs regularized. The court may not take serious note of an irreguiarity within the meaning of the provisions of the Act. But if an appointment is illegai, ft is non est in the eye of law, which renders the appointment to be a nullity." The Supreme Court in Municipal sh Dubey4 observed as under : Coron., Jabaipur Vs. Om "11. The question which, thus, arises for consideration, would be: Is there any distinction befr/i/een "irreguiar appointmenf and "illegal appointmenf? The distinction between the two terms is apparent. In the event the appointment is made in totai disregard of the constitutional scheme as also the recruitment rules framed by the empioyer, which is State within the meaning of Article 12 of the Constitution of India, the recruitment would be an illega! one; whereas there may be cases where, although, substantial compliance witti the constitutionai scheme as also ttie ruies has been made, the appointment may be irregular in the sense that some provisions of the rules might not have been strictiy adhered to." 111 ADDivina the well settled DrinciDles of the (aw as taid down by ttie Hon'bie Supreme Court to the farts of Ihe present case and for the reasons stated hereinabove, the peUtioner is not entitled to any relief, as the petitioner was appointed on ad hoc basis, the question of regularisation does not arise. 12) In viewof the foregoing, the petition accordingty dismisseu. No order asto coste. is liabie to be and is GOWTi Sd/- Satish K. Agnihotri Judge 3'{ (2007) 4 SCC 54} 4{'(200711 SCC373^