HON'BLE SRI ANIL R. DAVE, THE CHIEF JUSTICE and HON'BLE SRI JUSTICE C.V. NAGARJUNA REDDY WRIT APPEAL No. 483 OF 2001 AND WRIT PETITION No. 10878 OF 2001 Dated: 06-08-2009 WRIT APPEAL No. 483 OF 2001 Between: The Registrar, Jawaharlal Nehru Technological University, Masab Tank, Hyderabad and another ... APPELLANTS AND Ch. Vijayalakshmi ... RESPONDENTS WRIT PETITION No. 10878 OF 2001 Between: Ch. Vijayalakshmi ... PETITIONER AND The Government of Andhra Pradesh, rep., by its Secretary, Technical Education Department, Secretariat, Hyderabad and another ... RESPONDENTS HON'BLE SRI ANIL R. DAVE, THE CHIEF JUSTICE and HON'BLE SRI JUSTICE C.V. NAGARJUNA REDDY WRIT APPEAL No. 483 OF 2001 AND WRIT PETITION No. 10878 OF 2001 COMMON JUDGMENT: (Per Sri Anil R. Dave, CJ) The appellant – employer aggrieved by an order dated 01-02-2001 passed in Writ Petition No. 16850 of 1997 has filed Writ Appeal No. 483 of 2001, whereas being aggrieved by an order dated 23-05-2001, whereby service of the employee was terminated, the employee has filed Writ Petition No. 10878 of 2001. 2. Since the aforestated writ petition and the writ appeal pertain to termination and regularisation of services of the petitioner, the petition as well as the appeal have been taken up for hearing together. 3. For the sake of convenience, the parites to the litigation have been referred to as they have been arrayed in the petition. The facts giving rise to the present litigation, in a nutshell, are as under: The petitioner was engaged as a daily wage Clerk–cum–Typist on 25-05-1989. The said appointment was not a regular appointment and it is an admitted fact that without following any procedure for recruitment, the petitioner had been appointed as a daily wager, possibly for the reason that the employer was over burdened with some work. Writ Petition No. 7496 of 1991 was filed by the petitioner at an earlier point of time praying for regularisation of her service, but the said petition had been disposed of by an order dated 26-10-1992, in view of some direction given in Writ Petition No. 1380 of 1990 which had been filed by certain similarly situated employees. On 05-06-1993, the petitioner was discontinued from service as her services were not required by the respondents. The case of the petitioner, as a daily wager, in pursuance of order dated 26-10- 1992 passed in Writ Petition No. 7496 of 1991 had been considered for being given regular appointment. Unfortunately, the petitioner was not selected and the persons who were found to be better than the petitioner had been given regular appointment. Thus, though the case of the petitioner had been considered for regular appointment, on merits, she being not suitable, could not be appointed to the post of Junior Assistant. Once again on 03-11-1993 for administrative reasons and possibly, because the respondents had more work, her services had been availed as a daily wage Clerk-cum-Typist and thereafter she was continued till her services were required. It is pertinent to note that when the petitioner was employed as a daily wager, from time to time, she was shifted from one department to other, looking to the requirement of different departments under different schemes. It appears that upon completion of the work, her services were not availed by the respondents. So in real sense, the petitioner was engaged as and when her services were required and she was relieved when her services were not required by the respondents. The petitioner thereafter filed Writ Petition No. 16850 of 1997 praying that she be not given artificial break and her services be regularised as Junior Assistant-cum-Typist in the respondent – University. After hearing the concerned advocates, the learned single Judge, by virtue of the impugned order, allowed the petition by directing the respondents to regularise the services of the petitioner within eight weeks, in view of G.O.Ms.No. 212, dated 22-04-1994, subject to fulfilment of other conditions, provided in the aforestated government order. It was also directed that her proposal for regular appointment should be forwarded by the respondent – University to the Government and within eight weeks from the date of receipt of such a proposal, the Government was directed to pass appropriate orders by publication of post so that the services of the petitioner can be regularised. It was also directed that the provisions with regard to reservations should also be followed by fixing inter se seniority of the petitioner along with others. The aforestated order passed in Writ Petition No. 16850 of 1997 had been challenged by the respondent – employer by filing Writ Appeal No. 483 of 2001. The said appeal was allowed whereby the direction given in Writ Petition No. 16850 of 1997 had been quashed and set aside. Being aggrieved by the order passed in Writ Appeal No. 483 of 2001, the petitioner had approached the Hon'ble Supreme Court. The Hon'ble Supreme Court was pleased to quash and set aside the order passed in Writ Appeal No. 483 of 2001 and this Court was directed to hear the appeal afresh. In the circumstances, this appeal has been notified for hearing before this Court. So far as Writ Petition No. 10878 of 2001 is concerned, the petitioner has filed the said petition challenging the order dated 23-05- 2001, whereby her services had been terminated and it has been prayed that the respondents be directed to reinstate her in service with a retrospective effect i.e., with effect from 23-05-2001. 4. As observed hereinabove, as the aforestated writ petition and the writ appeal both pertain to termination and regularisation of services of the petitioner, the petition as well as the appeal have been taken up for hearing together. 5. The learned advocate appearing for the respondents – appellants has submitted that the impugned order passed by the learned single Judge is bad in law and deserves to be quashed and set aside for the simple reason that it is not for this Court to pass any order with regard to regularisation of service of any daily wager, especially, when the daily wager or the concerned employee has been appointed without following any procedure prescribed in law. More over, he has submitted that if a person has been appointed as a daily wager, he or she has no right to be regularised in service. 6. It has been further submitted by the learned advocate appearing for the respondents – appellants that it is always for the employer to decide as to how many employees he would require. According to him, normally this Court should not decide strength of the cadre or requirement of an employer. So as to substantiate the aforestated submissions, he has relied upon the judgment delivered by the Hon'ble Supreme Court in the case of Secretary, State of Karnataka vs. Uma Devi (3)[1]. He has also submitted that even in case of Official Liquidator vs. Dayanand[2], the Hon'ble Supreme Court has reiterated the view expressed in the case of Uma Devi (1 supra). He has relied upon the said judgments so as to substantiate his case to the effect that the learned single Judge ought not to have given any direction with regard to regularisation of the services of the petitioner, who was initially, admittedly, appointed as a daily wager. 7. On the other hand, the learned advocate appearing for the petitioner has tried to support the order passed by the learned single Judge. It has been submitted by him that the petitioner had worked under the respondents – employers for several years and having crossed the age at which a person cannot get a fresh appointment, if the services of the petitioner are not regularised, the petitioner would be rendered jobless. It has been further submitted by the learned advocate appearing for the petitioner that in pursuance of order dated 26-10-1992 passed in Writ Petition No. 7496 of 1991, which was disposed of on the basis of the judgment delivered by this Court in the case of G. Prasad vs. Govt. of A.P[3], the petitioner has a vested right to get regular appointment in the cadre of Junior Assistant-cum-Typist. It has been submitted by him that similarly situated persons who had completed three years service had been directed to be appointed on regular basis in pursuance of the aforestated direction given by this Court and, therefore, services of the petitioner ought to have been regularised and she should not have been removed from service. 8. We have heard the learned advocates at length and have also considered the judgments referred to by the learned advocates. 9. It is not in dispute that the initial appointment of the petitioner was as a daily wager. She was never given any appointment against any sanctioned post. As stated hereinabove, the petitioner's services were availed by the respondent – employer as and when there was additional work for the employer under different schemes. Upon perusal of the record, it appears that the petitioner had worked in different departments under different schemes from time to time. Whenever her services were not required, she was not engaged. Thus, she was performing her duties as a daily wager. 10. It is pertinent to note that at one point of time, in pursuance of the directions given by this Court in Writ Petition No. 7496 of 1991, the case of the petitioner along with other similarly situated persons was considered for appointment to 124 posts created by the Government in pursuance of the direction given in G.Prasad’s case (3 supra). Unfortunately, the petitioner was not selected at the relevant time. Those who were found to be suitable and better than the petitioner were given appointments to the aforestated 124 new posts created by the Government. It is the case of the respondents that the petitioner was not found up to the mark and there were several other candidates better than the petitioner and, therefore, she could not be given regular appointment at the time when new posts were specially created for absorption of daily wagers in pursuance of the directions given by this Court in the case of G. Prasad (3 supra). 11. It is also pertinent to note that at the time when the petitioner was not selected or appointed under the regular posts, she did not challenge her non-selection by filing any petition or otherwise. Thus, the petitioner accepted the fact that she was not fit to be regularly selected against the 124 sanctioned posts of Junior Assistant-cum- Typist. 12. The law with regard to regularisation has undergone a substantial change after the judgment was delivered by a Constitutional Bench of the Supreme Court in V. Uma Devi's case (1 supra). The Hon'ble Supreme Court has observed in the said judgment that 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 or she 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. It is also pertinent to note that the Hon'ble Supreme Court, in para 45 of the said judgment clarified that those earlier decisions of the Hon'ble Supreme Court which run counter to the principle settled in the said decision or directions which run counter to the law laid down in the said judgment, would stand denuded of their status as precedents. After the aforestated judgment was delivered by the Hon'ble Supreme Court, in the case of Official Liquidator (2 supra), the Hon'ble Supreme Court has reiterated the view expressed in the case of Uma Devi (1 supra). The Hon'ble Supreme Court in the case of Official Liquidator (2 supra) has once again observed that normally, appointment to public posts should be made by regular recruitment through prescribed agency and the Hon'ble Supreme Court had also commented upon the illegal and backdoor appointments made by the Executive even after the judgment was delivered in the case of Uma Devi (1supra). 13. In view of the law laid down by the Hon'ble Supreme Court in the case of Uma Devi (1 supra), in our opinion, the petitioner cannot have any right at this juncture to get regular appointment. It is also pertinent to note that the services of the petitioner had been terminated on 23-05-2001 and this Court had passed an interim order, whereby implementation and execution of the order passed by the learned single Judge has been stayed in this appeal on 09-04-2001. Being aggrieved by the said termination, which had taken place on 23-05- 2001, the petitioner has filed Writ Petition No. 10878 of 2001. That writ petition had been admitted on 15-04-2002, but this Court had refused to grant any relief in favour of the petitioner and, therefore, the petitioner was not reinstated into service and, therefore, even today she is not in service. 14. Looking to the above facts and the law laid down by the Hon'ble Supreme Court, in our opinion, the direction with regard to giving regular appointment to the petitioner would not be proper. Any direction at this stage even for regular appointment of the petitioner would run counter to the judgment delivered in the case of Uma Devi (1 supra). 15. In the circumstances, we allow the writ appeal and quash and set aside the order passed by the learned single Judge in Writ Petition No.16850 of 1997, as the same is against the principles laid down in the case of Uma Devi (1 supra). 16. As observed hereinabove, the petitioner has no right to be continued in service and, therefore, no order can be passed with regard to reinstatement of the petitioner or regularisation of her services, as prayed for in Writ Petition No. 10878 of 2001 and, therefore, the said petition is also rejected with no order as to costs. ANIL R. DAVE, CJ C.V. NAGARJUNA REDDY, J 6th August, 2009. ks [1] (2006) 4 SCC 1 [2] (2008) 10 SCC 1 [3] 1992 (1) ALT 134