A^ HIGH COURT OF CHHATTISGARH : BILASPUR WRIT PETITION N0. 2165 OF 2006 PETITIONER RESPONDENTS 2. Prahlad Kumar Banchhore, S/o Shri Rakhiram Banchhor, aged 35 years, caste Kurmi, R/o Gram Selud, Post Selud, Thana Utai, Tahsil Patan, Distt. Durg (CG). Versus State of Chhattisgarh, through Secretary, Fisheries Department, D.K.S. Bhawan, Raipur (CG). Managing Director, Chhattisgarh Rajya Sahkari Matsya Mahasangh, Maryadit, Riapur (CG). (Writ petition underArticle 226/227 ofthe Constitution of India) Single Bench : Hon'ble Shri Satish K. Agnihotri, J. Present:- Shri R.K. Kesharwani, counsel for the petitioner. Shri Arun Sao, Govt. Advocate for the State. ORAL ORDER (Passed on this 20th day of IVIarch, 2009) With the consent of learned counsel appearing for the parties, the petition is heard finally. 2) By this petition, the petitioner seeks quashing of the order dated 31-3-2006 (Annexure—P/3) passed by the respondent No.2 whereby the petitioner was directed to be removed from service w.e.f. 1-5-2006 and also seeks a direction to the respondent authorities to regularize the services of the petitioner from the year 1998. 3) Learned counsel appearing for the petitioner would contend that the petitioner has been working in the respondent department since a long period on daily wages basis and in the seniority list, the name of the petitioner is at S.No.25. Services of the persons, who were junior to the petitioner, were regularized, but the case of the petitioner has not been considered for regularization. The nature of duties performed by the petitioner is similar to that of the regular employees. The petitioner has submitted representation before the respondent authorities for regularisation of his services, but the same has not been considered and decided till date. However, all of a sudden by order dated 31-3-2006 the respondent authorities directed removal of the services of the petitioner w.e.f. 1-5-2006. 2-- c, 4) I have heard learnedcounsel appearing for the parties, perused the pleadings and the documents appended thereto. 5) The Supreme Court in Secretary, State of Karnataka and others Vs. Umadevi (3) and others , observed in paras 45 and 47 as under: "45. While directing that appointments, temporary or casual, be regularised or made permanent, the courts are swayed by the fact that the person concerned 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 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 court 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 employee. 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, contractually 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 search of 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 flowing 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 real sense of the term. The claim acquired by him in the post in which he is temporarily employed or the interest in that 1 (2006) 4 SCC 1 - -2. 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 (s/c) one that would 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 the Constitution. "47. When a person enters a temporary employment or gets engagement as a contractual or casual worker and the engagement is not based on a proper selection as recognised by the relevant rules or procedure, he is awareofthe 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 Service Commission. Therefore, the theory of legitimate expectation cannot be successfully advanced by temporary, contractual or casual employees. 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." 6) In Indian Drugs & Pharmaceuticals Ltd. Vs. Workmen, Indian Drugs & Phafmaceuticals Ltd. , the Supreme Court observed as under : "34. Thus, it is well settled that there is no right vested in any daily-wager to seek regularisation. Regularisation can only be done in accordance with the rules and not dehors the rules. 35. In SurinderSingh Jamwal (Dr.) v. State ofJ & /< it was held that ad hoc appointment does not give any right for regularization as regularization is governed by the statutory rules." (2007) 1 SCC 408 -^ ^:.. 7) The observations made in Umadevi (supra) & Indian Drugs & Pharmaceuticals Ltd. (supra), with approval, the Supreme Court in Official Liquidator vs. Dayanand and Others , has further explained about the rights of the daily wagers and regularization. Para 70 reads as under: 70. The shift in the Court's approach became more prominent in A. Umarani v. Coop. Societies, decided by a three-Judge Bench, wherein it was held that the State cannot invoke Article 162 of the Constitution for regularisation of the appointments made in violation of the mandatory statutory provisions." 8) If the appointment of the petitioner itself was illegal, 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." 9) The Supreme Court in IVIunicipal Corpn., Jabalpur Vs. Om Prakash Dubey observed as under : "11. The question Which, thus, arises for consideration, would be: Is there any distinction between "irregular appointment" and "illegal appointment"? The distinction between the two terms is apparent. In the event the appointment is made in total disregard of the constitutional scheme as also the recruitment 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 compliance 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." 3(2008)10SCC1 "{ (2007) 4 SCC 54} 5 {(2007) 1 SCC 373} -$ 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. 11) In view of the foregoing, the petition is liable to be and is accordingly dismissed. 12) Consequently, all the pending applications stand disposed of. Gowri Sd/- SatishK.Agnihotri Judge