I -^^" /^•^ 't^0~ (^ HIGH COURT OF CHHATTISGARH : BILASPUR WRIT PETITION 13) N0.4031 OF 2008 PETmONER RESPONDENTS 2. 3. Shiv Kumar Nagarchi, aged about 32 years, S/o R.K. Nagarchi, R/o Kartala, Tahsil Kartala. District Korba (CG). Versus State of Chhattisgarh, through Secretary, Health Department, D.K.S. Bhawan, Raipur(CG). Director, Directorate. Chhattisgarh Health Ser/ices, Raipur (CG), Chief Medical Officer, Baikunthpur, District Korea (CG). CA/rit Petition under Articte 226 of the Constitution of India) Single Bench : Hon'ble Shri Satish K. Agnihotri, J. Present:- Shri H.V. Sharma, counsel for the petitioner. Ms. Smita Ghai, Panel Lawyer for the State. ORDER (Passed on ttiis 27"' day of March, 2009) With the consent of learned counsel appearing for the parties, the petitjon is heard finally. 2) By this petition. the petitioner seeks a direction to the respondent authorities to grant appointment to the petitioner on the post of Lab Technician and for continuation of his services. 3) Learned counsel appearing for the petitioner contended that the petitioner has been appointed as Lab Technician by order dated 20-11-2002 on contract basis for a limited period. The same was extended from time to time up to 31-3-2006. Thereafter, the respondent authorities declined to extend the same. The petitioner made several representations and requested the authorities concerned for extension of his service, but the same have not been considered till date. According to learned counsel for the petitioner, in other districts the services of simjlariy situated persons have been extended. 4) I have heard learned counsel appearing for the parties. perused the pteadings and the documents appended thereto. 5) The Supreme Court jn Secretary, State of Karnataka and others Vs. Umadevi (3) and others1, observed in paras 45 and 47 as under : "43.....If it is a contractual appojntment, the appointment comes to an end at tho end of the contract, if it were an engagement or appoirrtment on daily wages or casual basis, the same would come to an end when it Is discontinued. Slmilarly, a temporary employee could not claim to be made permanent on the expiry of his term of appointment. It has also to be clarifiect that merely because a temporary emptoyee or a casual wage workor is continued for a time beyond the term of his appointment, he would not be entitted to be absorbed in regular servtee or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of $©lection as envisaged by the rolevant mles. It is not open to the court to prevent regular recruitment at the instance of temporary employees whose poriod of employment has come to an ond or of ad hoc employees who by the very nature of their appointment, do not acquire any right.... 45. While directing that appointments, temporary or casual, be regularised or made permanent, the courts are swayed by the fact that the person concemed has worked for some time and in som© cases for a conslderable length of time. It Is not as If the person who accepts an engagement either temporary or casual in nature, is not aware of the nature of his employment. He accepts the employment with open eyes. It may be tru©that he is not in a position to bargain - not at arm's length - sjnce he might have been searching for some employment so as to eke out his liveiihood and accepts whatever he gets. But on that ground alone, it would not be appropriate to jettison the constitutional scheme of appointment and to take the view that a person who has temporarity or casually got employed should be directed to be continued permanentiy. By doing so, it will be creating another mode of public appointment which is not permissibJo. If the court woro to void a contractuai employment of this nature on the grouncS that tfie parties were not having equal bargaining power. that too would not enable the court to grant any relief to that employee. A total embargo on such casual or temporary employment is not possible, givon the exigencies of adminlstration and If imposed, would only mean that some people who at least get employment temporarily, contractually or casually, would not be getting even that empSoymenf brings at ieast som©succour to them. After all, innumQrablQ citizens of our vast country are In search of employment and one is not compelted to accept a casual or temporary employment if one ss not inclined (2006$ 4 SCC 1 ^ Si3»a^^-"' 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 white 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 th©post in which he is tomporarily omployod or the jnterest in that post cannot be considered to be of such a magnitude as to enable the gjving up of the procedure established, for making regular appointments to available posts jn the services of the State. Th@ argument that sinc©one has boen 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 empioyment vAen 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 fall when tested on the touchstone of constitutionality and equality of opportunity enshrined in Article 14 ofthe Constitution. 47. When a person enters a temporary emptoyment or gete engagement as a contractuai or casual worker and the engagement is not based on a proper selectjon as recognised by the relevant rules or procedure, he is aware of the consequences of the appointment being temporary. casual or contractual in naturo. Such a person cannot invoke the thoory 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 selectton and in cases concerned, in consultation with the Public Service CommissJon. 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 hetd out any promjse white engagingthese persons either to continue them where they are or to make them permanent. The State cannot constjtutionally mako such a promiso. It is also obvious that th© theory cannot be invoked to seek a positive relief of being made permanent in the post. 48....There is no fundamental right in those who have been employed on daily wages or temporarily or on contractual basis. to daim that they have a n'ght to be absorbod in ser/ico...." 6) In Indian Drugs & Pharmaceuticals Ltd. Vs. Workmen, Indian Drugs & Pharmaceuticals Ltd-2, th@ Supreme Court observed as under: "34. Thus, it is well settled that there is no right vested in any daily-wager to seek regularisation. (2007) 1 SCC 408 Regularisation can only be done in accordance with the rules and not dohors tho rules. 35. tn Sunnder Singh Jamwaf (Dr.) v. State ofJ&K\i was held thaf ad hoo appointment does not givo any rightfor regularization as regularization isgoverned by the statutory rules." 7) The observations made in Umadevi (supra) were quoted with approval in Official Liquidator vs. Dayanand and Others3. Their Lordships 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. UmQrQni v- Coop. Socie^es, decided by a three-Judge Bench. wherein it was held that the Stat©cannot invoke Article 162 of the Constitution for regularisation ofthe appolntments made tnviolatlon of the mandatory statutory provisions." 8) If the appointment of the petitioner jteeff was iKegal. 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 others4 observed as under : "34. It is not a case where appointment was irregular. If an appointment is irregular, the same can be regulanzed. The court may not take serious note of an irrogularity within tho moaning of tho provisjons of tho Act. But ff an appointment is iltegal, it is non est in the eye of law, which renders the appointment to be a nullity." 9) The Supreme Court in Munidpal Corpn.. Jabatpur Vs. Om Prakash Dubey3 observed as under : "11. The question which, thus, arises for consideration, would be: Is there any distinction between "irregular appointment" and "jltegal appointmenf? Tho distinction between the two terms is apparent. In the event the appointment is made In total disregard ofthe constjtutional scheme as also the recruitment rules framed by the employer, which is State withln the meaning of Artlcle 12 of the Constitution of India, the recruitment would be an illegal one; whereas there may be cases where, afthough, substantial compliance with the constitutional schemo as also the rul©s has been made, the appointment may be irregular in the sense that some provisions of the rules might not have been strictiy adhered to" 3 (2008) 10 SCC 1 4( (2007)43cc 54} 5 {(2007) 1 SCC 373} L i< Gowri 10) Applying the well settied principles of the law as taid down by the Hon'ble Supreme Court to the facts of the present case, the petitioner js not entitled to any reljef, as once the contract period of a candi'date has come to an end. the question ofcontinuation ofservice does not arise. 11) In view of the foregoing. the petition is liable to be and is accordjngly dismissed. 12) Consequently, all the pending applications stand disposed of. Sd/- Satish K. Agnihotri Judge