c--ri^^7 IN THE HON'BLE HIGH COURT OF CHHATTISGARH AT BILASPUR W.P.tSl N0 . \\^ /2011 (S.B.) PETITIONERS z°^%; <^^y o^ ,.•;>•< / y ^ ^ ^ ^'ry/' ,^y ..••"' ^•^'...••-" «^/- RESPONDENTS /'.^. Surendra Singh S/o Shri Rambahor Singh, aged about 50 years, R/o village Rajpur, Post-Rajpur, Distt.-Sarguja (C.G.). ^2. Anil Kumar Choubey S/o Shri //^Ar^t MAcfet4^ged about A •> 46 years, R/o <?iUage Rajpur, Post-Rajpur, Distt.-Sarguja (C.G.). VERSUS : 1. State of Chhattisgarh, Through- the Secretary, Public Works Department, Mantralaya, D.K.S. Bhawan, Raipur (C.G.). The Head Engineer , Public Works Department, Raipur, Distt.-Raipur (C.G.). 3. The Chief Engineer Public Works Department, Bilaspur, Distt.- Bilaspur (C.G.). 4. The Superintending Engineer Publ.ie Works Department, Ambikapur Division, Distt. Sarguja (C.G.). •r> -s-< ^ j(v»,;1 ^^-^^'y^- f (z) y 5. The Executive Engineer, Public Works Department, Division no.l, Arabikapur Distt. Sarguja (C.G.). WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA iirif:' •tiB-'!iFHB^^^.^'iSitSI^:3EEe»:'.:wt:!Wi%BS»:?.-3 ^ :^^^^;^^^P^^^^^-Y...:L- ^.h.',~'-'^., ^;7T^4""-^.^-^^;^--'--:';^- i-'4fe . .<•. '•^\' '% •;i "CT ^ A^ HIGHCOURT OF CHHATTISGARH AT BILASPUR WRIT PETITION (S) No. 1 146 of2011 PETITIONERS : Surendra Singh & Another. VERSUS RESPONDENTS : State ofChhattisgarh & Others. WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA SB: Hon'ble Shri Satish K. Aenihotri, J. Present: Shri D.R.Sharma, Senior Advocate with Shri B.D.Badgaiyan, Advocate for the petitioner. Shri Sushil Dubey, Govemment Advocate for the State/ respondents. ORDERrORAL) (Passed on 01st day ofMarch, 2011) 1. By this petition, the petitioners seek a direction to the respondents to take the petitioners in service or in altemative, direct the respondents to consider and decide their representations filed on 08.12.2010 (Annexure P/4). 2. The facts, in nutshell, as projected by the petitioners are that the petitioners were appointed in the year 1992. In the year 2002, the petitioners were removed from service without any reason. Vide the memo dated 03.05.2006, issued by the respondent No. 2 to the respondent No. 5, it was directed to remove the daily wagers only after proper scrutiny. Despits that, the petitioners have not been taken back into service, though they have filed number of representation to the respondent authorities. Ultimately, the petitioners filed a writ petition being W.P.(S) No. 6500/2010 which was dismissed as withdrawn with liberty to pursue their representations, on 15.11.2010. After withdrawal of the representation, the petitioners again filed a representation on 08.12.2010 but the same has not been decided till date. Pursuant to 9 /' ^~~ I ^ .&. ^•-?r':'7?'^. ^ ^ •V.S-1- •j, Y <<%p< ^7 the circular dated 05.03.2008 (Annexure P/5) number ofsimilarly situated employees were regularized but the petitioners have been deprived ofthe benefrt ofthe said circular. Shri Sharma, leamed senior counsel appearing with Shri B.D.Badgaiyan, counsel for the petitioner submits that the action of the respondent authorities by not regularizing the petitioners is arbitrary, discriminatory and illegal. The petitioners were wrongly removed from service. Even the respondent aufhorities have not decided their representations till date. On the other hand, Shri Dubey, leamed Govemment AdvQcate appearing for the State/respondents submits fhat since fhe initial appointment of the petitioners was itself not in accordance with law, thus, in the light of a catena of decisions passed by the Supreme Court as well as this Court, the petitioners are not entitled for regularization or continuation in service. Heard leamed counsel appearing for the parties, perused the pleadings and documents appended thereto. There is no dispute that the appointment of the petitioners was on daily wages basis, and not in accordance with the constitutional scheme of employment. Thus, the appointment of the petitioners cannot be held as legal appointment. The petitioners have neither pleaded nor proved that their appointment was made in accordance with the constitutional scheme of employment in an open competition. Thus, the appointment of the petitioners cannot be held as legal. "'a, •- ^ 7. In State of Rajasthan & Others v. Daya Lal & Others , the Supreme Court having considered all the questions with regard to regularization of employees not appointed in an open competitive process and dehors the constitutional scheme of employment, relying on its various earlier decisions, held as under: "12. We may at the outset refer to the following well settled principles relating to regularization and parity in pay, relevant in the context of these appeals: (i) High Courts, in exercising power under Article 226 of the Constitution 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 mles in an open competitive process, against sanctioned vacant posts. The equality clause contained in Articles 14 and 16 should be scmpulously followed and courts should not issue a direction for regularization of services of an employee which would be violative of constitutional scheme. While something that is irregular for want of compliaace with one of the elements in the process ofselection which does not go to the root of the process can be regularized, back door entries, appointments conta-ary to the constitutional scheme and/or appointment of ineligible candidates cannot be regularized. (ii) Mere continuation of service by an temporary or ad hoc or daily-wage employee, under cover of some interim orders of the court, would not confer upon him any right to be absorbed mto service, as such service would be 'litigious employment'. Even temporary, ad hoc or daily-wage service for a long number of years, let alone service for one or two years, will not entitle such employee to claim regularization, if he is not working against a sanctioned post. Sympathy and sentiment cannot be grounds for passing any order ofregularization in the absence ofa legal right. (iii) Even where a scheme is formulated for regularization with a cut off date (that is a scheme providing that persons who had put in a specified number of years of service and continuing in employment as on the cut off date), it is not possible to ofhers who were appointed subsequent '(2011) 2 SCC 429 to the cut off date, to claim or contend that the scheme should be applied to them by extending the cut off date or seek a direction for framing of fresh schemes providing for successive cut off dates. (iv) Part-time employees are not entitled to seek regularization as they are not working against any sanctioned posts. There cannot be a direction for absoqition, regularization or permanent continuance ofpart time temporary employees. (v) Part time temporary employees in govemment run institutions caunot claim parity in salary with regular employees of the govemment on the principle of equal pay for equal work. Nor can employees in private employment, even if serving full time, seek parity in salary with govemment employees. The right to claim a particular salary against the State must arise under a contract or under a statute. [See : Secretary, State of Karnataka vs. Uma Devi(3)2, M.Raja v. CEERI Educational Society , S.C.Chandra v. State ofJharkhanc^, Kurukshetra Central Co-operative Bank Ltd vs. Mehar Chancf, aud Qfficial Liquidator v. Dayananc^]. In view ofthe above and applying the well settled principles oflaw to the facts ofthe case on hand, no writ in favour ofthe petitioners directing the respondents to reinstate/continue the petitioners in service, can be issued. Accordingly, the writ petition dismissed. ^^ Amit (2006) 4 SCC 1 3 (2006) 12 SCC 636 "^2007) 8 SCC 279 5 (2007) 15 SCC 680 li(2008)10SCCl £ ii a-!i, ^