;f^^ r° nf^jjf^il ^ S.B. (Service Matter) IN THE HON'BLE HIGH COURT OF CHHATTISGARH AT BILASPUR (CHHATTISGARH) WRIT PETITIONfSl N0. I i7^ /2010. PETITIONERS: ^ ^ ^ ^;-^y .p^v^y>" ^/'^>>^' ^' ^^ RespQndents 1. Prakash Mahilane, son of Raineshwar Mahilane, aged about 33 years, working as Peon, Govt. Prematric Girls Hostel, Hardi, Tahsil Sarangarh, District Raigarh, Chhattisgarh. / 2. Rohit Izardar, son of Bundela, Singh, aged about 30 years, working as Peon, Govt. Prematric Girls Hostel, Hardi, Tahsil Sarangarh, District Raigarh, Chhattisgarh. Versus 1. State of Chhattisgarh, through Secretary, Department of Tribal Welfare, D.K.S.Bhawan, Mantralaya, Raipur, Chhattisgarh. . 2. Commissioner, Tribal Welfare Department, Raipur, Chhattisgarh. 3. Assistant Commissioner, Tribal Welfare Department, Raigarh, Chhattisgarh. , 4. Collector/Tribal Welfare Department, Raigarh, District Bilaspur, Chhattisgarh. WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA /\^^ HIGH COURT OF CHHATTISGARJ1ATBILASPUR (Hon. Mr. Justice Pritinker Diwaker) Writ Petition (S) No. 7174 of2010 PETITIONER VERSUS RESPONDENTS Devlal Ajay State of Chhattisgarh and others. Writ Petition (S) No. 7175 of 2010 PETITIONERS Prakash Mahilane and another VERSUS RESPONDENTS State of Chhattisgarh and others. Writ Petition (S) No. 7176 of 2010 PETITIONERS Pappu Ajay and another VERSUS RESPONDENTS State of Chhattisgarh and others. Writ Petition (S) No. 7177 of2010 PETITIONERS Khem Singh Marawi and another VERSUS RESPONDENTS State of Chhattisgarh and others. Writ Petition (S) No. 7178 of 2010 PETITIONER Harilal Bharti VERSUS RESPONDENTS State of Chhattisgarh and others. Writ Petition (S) No. 7182 of 2010 PETITIONER Rajendra Kumar Ajay and another VERSUS RESPONDENTS State of Chhattisgarh and others. Writ Petition (S) No. 7183 of 2010 PETITIONER Devnarayan Ajgalle VERSUS RESPONDENTS Stateof Chhattisgarh and others. Writ Petition (S) No. 7199 of 2010 PETITIONERS Anand Badhaiya and another VERSUS RESPONDENTS State of Chhattisgarh and others. Writ Petition (S) No. 7200 of 2010 PETITIONERS Kamal Prasad Ajay and another VERSUS RESPONDENTS State of Chhattisgarh and others. Shri C. Jayant K. Rao and Shri Harish khuntiya counsel for the petitioners. Shri Sumesh Bajaj, G.A. for the respondents. Shri Hetram Chauhan, Assistant Commissioner, Tribal Development, Raigarhis also present. ORDER (fo.12.2010) Since the dispute involved in all the aforementioned writ petitions is of identical character, they are disposed of by this common order. 2. The petitioners who were appointed on daily wages in the year 2007 have approached this Court contending that since February, 2010, they have not been permitted to work and the respondents are taking steps to fill-up their posts by making fresh appointment. Grievance of the ^^i^ <^^.r..^?, •'K ^-'•'^ -3- petitioners is that they are entitled to participate in the selection process and therefore a direction is sought to be issued to the Government Authorities by way of writ of mandamus to comply their own orders in this respect. It has been argued by the counsel for the petitioners that though the petitioners were illegally appointed on daily wages in the year 2007 and this fact is evident from the Muster Roll (Annexure P-1), as they have put in two years of service, they are entitled to continue on the said post pari:icularly when direction to this effect has already been given by the authorities concerned. Counsel for the petitioners submits that on 10.03.2010 vide Annexure P-3, applications were invited for various posts of Class-IV cadre and mode of selection has also been provided in the document (Annexure P-2). He submits that though the applications are invited, the petitioners have not been permitted to fill in their application forms. He further submits that vide Annexures P-4 to P-1 1 it is clear that various directions have been issued for considering the case of the petitioners and similarly placed persons but in fact the respondents are not considering the same for their appointments on dailywages. He submits thateven the respondents are not permitting the petitioners to participate in the selection process. According to the counsel for the petitioners, they are entitled for their appointment as daily wagers on the basis of the judgment of the Apex Court in the matter of Satya Prakash and others v. State of Bihar and others reported in (2004) 4 SCC 179. It is argued that in almost an identical case i.e. W.P.S. No. 886/2010 (N. Ramu and another v. State of Chhattisgarh and others, order dated 4.5.2010) this Court has permitted some of the petitioners to participate in the selection process and an order was also passed to the effect that even if any selection is made on regular basis, the appointment shall not be given to those persons. 3. Counsel appearing for the State submits that the petitioners have absolutely no right whatsoever to continue as daily wage employees as stated by them. He submits that the decision was taken by the State Government for making appointment against Class-IV posts on the Collector rate by inviting applications and making proper selection but it appears that by going on strike the petitioners had put undue pressure ^q- upon the authority and underthe compelling circumstances the Authorities have passed certain orders. On instructions he further submits that after issuance of the advertisement, in stead of filling in requisite forms, the petitioners have chosen to go on strike and have not filled in their forms. It has been informed that as the petitioners have not filled in the requisite forms, their candidature cannot be considered for any appointment if made on the basis of the advertisement. He further submits that the arm-twisting method has been adopted by the petitioners to secure the further appointment on daily wages and such persons are not entitled for any relief including the fresh appointment against any post. He submits that from the documents it appears that only on account of pressure of the petitioners the authorities have stayed the entire selection process and directed for considering the case of the petitioners also. He submits that on account of the entire system being paralyzed by the petitioners and similarly situated persons though the Government is in need of the employees urgently, it appears that the Government was constrained to adopt via-media by considering the case of the petitioners for fresh appointment. The State counsel has referred to the letter dated 25.5.2010 (Annexure P-7) issued by the commissioner, Tribal Welfare Department, Raipur clearly indicating that considering the strike ofthe employees certain information was sought but it was not given and it is expected from the Assistant Commissioners of all the divisions to provide the said information. He submits that merely having worked for a period of two years on daily wages and that too on the basis of illegai appointment, the petitioners have not acquired any right and the petitions filed by them are liable to be dismissed at this threshold. State counsel further informed ,this Court that on an earlier occasion when on account of the pressure of the petitioners, regular selection could not take place pursuant to the advertisement dated 10.3.2010, one Dilip Kumar Chouhan had filed W.P. No. 3703/2010 before this Court. However, this Court had dismissed the same on the ground that advertisement dated 10.3.2010 has been-temporarily kept in abeyance on 25.5.2010. Learned State counsel has further invited the attention of this Court to the following paragraphs ofthe order dated 3.8.2010 passed by this Court: -y- 5. "In this petition, these very orders are under challenge. A perusal of order dated 25.5.2010 shows that for the time being, the process ofselection has been kept abeyance, as certain information are being collected. It would be too early for this Court to come to conclusion with regard to the decision which may ultimately be taken by the respondent authorities, only on the basis of keeping the process of selection under suspension. 6. The law with regard to a claim for regularization in the case of daily wage appointment/illegal appointment has been settled by the Supreme Court in the case of Secretarv. State of Karnataka and others Vs. Umadevi (3) & others.(2006)4SCC1. 7. It appears that taking into consideration the situation that the new Session has started, some interim arrangement has been made vide orderdated 2.7.2010. However, all these arrangements are subject to the regular selections to be made. The process of selection was initiated, but has been kept under suspension. The interim arrangements of continuing the daily wage appointment should not be continued for long period and the respondents are obliged under the law to make regular recruitment strictly in accordance with the recruitments rules, at the earliest. 8. In case, the respondents proceed to act in a manner to regularize the daily wage employees against the law laid down by the Supreme Court in the case of Umadevi (supra) or cancel the process of selection only on that ground or continue daily wage appointment, petitioner would be at liberty to take recourse to appropriate remedy underthelaw. 9. With the aforesaid observations, the petition is finally disposed off." The aforesaid order of this Court was later assailed by the petitioner by way ofWrit Appeal No. 271/2010 and the following order was passed by the Division Bench of this Court: "6. On due consideration of the submissions of learned counsel for the parties, we do not find any good ground warranting interference in thisintra Court appeal. 7. The writ appeal, therefore, is liable to be dismissed and is hereby dismissed summarily." 4. Thus according to the Statecounsel, the petitioners have absolutely no right whatsoever to seek continuance of their appointment and even to appear in the examination pursuant to the advertisement dated 10.3.2010. State counsel further informed that a decision was taken by the respondents to give two additional marks per year to the experienced persons which later have been increased to five marks per academic year but despite that the petitioners have not filled in their forms. -6- 5 . Heard counsel for the parties and perused the material available on record. 6. It is not disputed that the initial appointment of the petitioners was an illegal one and they were appointed sometime in the year 2007 on daily wages. Merely working for two years, the petitioners do not acquire any right to get further appointment in future. Moreover, from the documents, it is apparent that on 10.7.2009 an effort was made by the State Government to make appointment against class IV posts on the Collector rate and for this a comprehensive procedure has also been provided as to on what basis the selection would be made. To frustrate this selection, it appears that some persons like the petitioners who are working on daily wages went on strike and under their pressure the Government hasstayed the complete selection process and adopted a via media for considering the case of the petitioners also. From annexure P-2 it is apparent that some additional marks have been provided to those persons who are already working on daily wages. There is no document on record to show that at any point of time the Government has taken a decision that the petitioners will not be permitted to participate in the selection process. If the petitioners have not filled in the forms and chosen to go on strike, they cannot be permitted to participatein the selection process. Petitioners have absolutely no legal right to continue on the post against which they were appointed temporarily though for less than two years. Moreover by adopting an arm twisting method and by going on strike the petitioners cannot claim any sympathy either by the Court or by the Government. Judgment of the Supreme Court referred to above is thus of no help to them because the facts of that case and that of the present one are altogether different. Likewise, interim order passed by this Court (Annexure P-13) in W.P. (S) 886/2010 was passed in an altogether different case and in the said case the names of the petitionerswere initially called from the employment exchange and later at the time of regular selection their names were struck down from the employment exchange. Thus the petitioners cannot take any advantage of that interim passed by this Court. In the case in hand as pointed out above, fresh selection was initiated by the Government but that has been stalled by the petitioners by going on strike and by putting undue pressure. Thus the , .>-:':f1^ y,.'; '•"^' '^. '::"y^ ^- petitions filed by the petitioners have no substance and accordingly they are liable to be dismissed atthe motion stage itself. 7. It is expected from the Government to complete the selection process as early as possible and make fair selection Without being influenced by any act of the petitioners or such similarly placed persons. Sd/- Pritinker Diwaker Judge