c=1E'-. o£- N7 IN SHB HXSI C€»RT @F SUBICKSaSE KE. SKBfSS'QS. WRIS PSTXTIOM N®.'^^''^'QP 1999 BESraSEN P»aaed Kumar Sahu S/n @.B»8alw» aged aboufe 33 years»j Warlsl.ag as S®nlSkllled tabour lt> tee Maaieipal eouaell Ralgarh^ eesident of BaregapaB'a»^ Ralgarh (MP). PETITICH'iSR n IS K& i;^ *;f;1'i- Bli ^ii^ Riffi KS^; f» BI'i K80 2» f^^ State of Madl^a E^adesh, •thiE'ough 'teKs Sesiis'baEy BepaiFteaasn'fe af TOtoaa NtailBlsfeafeiye and Sevelfflpiawt ^ VaU»Mt Htnwan^ BHGPAEi . 2he Btse.s^wci. Ule'baa A'dntBis'teafclve aad DeveXopmeat» BHQE> . Mantel.pal ©ouaeMRalsrarh fehsoagli'-l'tss :®it*<"HantetpEd©ftlesB,, RAiaftSH'( ). •. 'B^ ^3); BS®@®S:BS8 WRI®':i»B"CI®IE®»'W®Bafta'l*X®>BS-226/229 QP 9SS eoHSTZ'RraiQH @s SNBIS 51 AF^ HIGH COURT OF CHHATTISGARH : BILASPUR WRIT PETITION N0.5223/1999 PETITIQMER Pramod Kumar Sahu Versus RESPONDENTS State of M.P. & others (Writ Petition under Article 226/227 ofthe Constitution of India) Sinale Bench: Hon'ble Shri Satish K. Aanihotri, J. Present:- Shri Rajendra Tnpathi, counsel for the petitioner. Shri A. V. Shridhar, Panel Lawyer for the State. ORALORDER (Passed on this 13 day of November, 2009) The petitioner, by this petition, challenges the legality and validity of the order dated 06-07-1999 (Annexure P/1) passed by the Director, Urban Administration and Development whereby all the Deputy Directors of the Urban Administration and Development were directed to remove all the daily paid employees on or before 31-07-1999. The petitioner also seeks a direction from this Court to the respondent authorities to regularize his service in the respondent-Municipal Corporation, Raigarh. (2) According to tearned counsel for the petitjoner, the petitioner is working in the Municipai Council, Raigarh (P.W.D. Section) as a daily wager since 1988. The name of the petitioner found place at S.No.6 of the gradation list. By order dated 19-02-1996, Jhepetitioner was granted payment of scale as applicable to the semi skilled labours. In spite of various cireular issued by the Government and repeated request made by the petitioner, his services have not been regularized. However.all of asudden by order dated 06-07-1999, the State Govt. directed all the coricerned authorities of Urban Administration and Development to remove all the daily wagers on or before 31-07-1999. On the basis of the said order, the petitioner has been removed from the service without affording an opportunity ofheanng and without following the principles of natural of justice. Hence the impugned action taken by the respondent authorities is illegal, arbitrary and against the provision of Article-14of the Constitution of India. Leamed counsel prays that theimpugned order (Annexure-P/1) may be quashed andthe respondent authorities may be directed to regularize the services of the petitioner. 7^' (3) I have heard learned counsel appearing for the parties, perused the pleadings and the documents appended thereto. It is evident that the petitioner has not filed the copy of the appointment order. Indisputably, there was no proper selection process by inviting the applications from the eligible candidates by issuing the advertisement. The appointment of the petitioner itself was illegal and not in accordance with the constitutional scheme of appointment. (4) The Supreme Court in Secretary, State of Karnataka and others Vs. Umadevi (3) and others , observed as under: "43.....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 mereiy 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..... 45. While directing that appointments, temporary or casual, be regularized or made permanent, the courts are swayed by the fact that the person concemed has worked for some time and in some cases for a considerable length of time. It is not as if.the person who accepts an engagement either temporary or casual in nature, is not aware of the nature of his employment. He accepts the employment with open eyes. It may be true that he is not in a position to bargain - not at arm's length - since he might have been searching for some employment so as to eke out • his livelihood and accepts whatever he gets. But on that ground alone, it would not be appropriate to jettison the constitutional scheme of appointment and to take the view that a person (2006) 4 SCC 1 ryl 1 1 I':7 1 ^:. •^ who has temporarily or casually got employed should be directed to be continued permanently. By doing so, it will be creating another mode of public appointment which is not permissible. If the cciurt were to void a contractual employment of this nature on the ground that the parties were not having equal bargaining power, that too would not enable the court to grant any relief to that empioyee. A total embargo on such casual or temporary employment is not possible, given the exigencies of administration and if imposed, would only mean that some people who at least get employment temporarily, contractuaHy or casually, would not be getting even that employment brings at least some succour to them, After all, innumerable citizens of our vast country are in seareh pf employment and one is not compelled to accept a casual or temporary employment if one is not inclined to go in for such an employment. It is in that context that one has to proceed on the basis that the employment was accepted fully knowing the nature of it and the consequences fiowing from it. In other words, even while accepting the employment, the person concerned knows the nature of his employment. 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 employed or the interest in that post cannot be considered to be of such a magnitude as to enable the giving up of the procedure established, for making regular appointments to available posts in the services of the State. The argument that since one has been working for some time in the. post, it will not be just to discontinue him, even though he was aware of the nature of the employment when he first took it up, is not (sic) one that woutd enable the jettisoning of the procedure established by law for public employment and would have to fail when tested on the touchstone of constitutionality and equality of opportunity enshrined in Article 14 of theConstitution. , 47. When a person enters a temporary employment or gets engagement as a contractua! or casual worker and the engagement is not based on a proper selection as recognised by the relevant rules or procedure, he is aware of the consequences of the appointment being temporary, casual or contractual in nature. Such a person cannot invoke the theory of legitimate expectation for being confirmed in the post when an appointment to the post could be made only by following a proper procedure for selection and in cases concerned, in consultation with the Public auss v , . Sf -<< Service Commission. Therefore, the theory of legitimate expectation cannot be successfully advanced by temporary, contractual or casual emptoyees. It cannot also 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 State cannot constitutionally make such a promise. It is also obvious that the theory cannot be invoked to seek a positive relief of being made permanent in the post. 48....There is no fundamental rightin those who have been emptoyed on daily wages or temporarily or on contractual basis, to claim that they have a rightto be absorbed in service...." (5) The observations made in Umadevi (supra) were quoted with approval in Official Liquidator vs. Dayanand and Others . Their Lordships further explained about the rights of the temporary employees and regularization. Para 70 reads as under: "70. The shift in the Court's approach became more prominent in A. Umarani v. Coop. Socfefes, decided by a three-Judge Bench, wherein it was held thatthe State cannot invoke Article 162 of the Constitution for regularisation of the appointments made in violation of the mandatory statutory provisions." (6) If the appointment of the petitioner itself was itlegal, the subsequent grant of regular pay scale and regularization does not change the status of the employee. The Supreme Court in Ashok Kumar Sonkar Vs. Union of India and others observed as under: "34. It is not a case where appointment was irregular. If an appointment is irregular, the same can be regularized. The court may not take serious note of an irregularity within the meaning of the provisions of the Act. But if an appointment is illegal, it is non est in the eye of law, which renders the appointment to be a nullity." (7) The Supreme Court in Municipal Corpn., Jabalpur Vs. Om Prakash Dubey observed as under: "11. The question which, thus, arises for consideration, would be: Is there any distinction between "irreguiar appointmenf' and "illegal ' appointment"? The distinction between the two terms is apparent. In the event the appointment is made in X- f5 2(2008)10SCC1 3 {(2007)480054} {(2007) I SCC373} /'.^'^ '^ ^ %^J V\ !?t \\<;js.^.i-1 \£T .*«y' total disregard of the constitutional scheme as also the recmitment rules framed by the employer, which is State within the meaning of Article 12 of the Constitution of India, the recruitment would be an illegal one; whereas there may be cases where, although, substantial comptiance with the constitutional scheme as also the rules has been made, the appointment may be irregular in the sense that some provisions of the rules might not have been strictly adhered to." (8) Applying the well settled principles of the law as laid down by the Supreme Court to the facts of the present case, the petitioner is not entitled to any relief, as the petitioner was appointed on daily wages basis and, as such, no relief as prayed for to allow the petitioner to work can be granted. (9) In view offoregoing, the petition is liable to be and is hereby dismissed. SdA Satish K. Agnihotri Judge T- ^