,€^\ l"!®^1 ^ 'l^;-'-""" "^ 'w// ^33^3i^ ?ia PETITIONER HIGH COURT OF CHHATTISGARH: BILASPUR WRIT PETITION N0. 3040 OF 2004 Laxmiram, S/o Shri Premdas, aged about 35 years, Ex-Dainik Suraksha Shramik, Tahsil Village Sitapur, Kathanaipara, Dist. Surguja (CG). RESPONDENTS 2. Versus State of Chhattisgarh, Through the Secretary, Department of Forest, DKS Bhawan, Raipur (CG). The Chief Conservator of Forest, Bilaspur 3. The District Forest Officer, South Surguja Forest Division, Ambikapur, Dist. Surguja 4. The Sub Divisional Officer, South Surguja Forest Division, Ambikapur (CG). (Writ petition underArticle 226/227 ofthe Constitution of India) Single Bench: Hon'ble Shri Satish K. Agnihotri, J. Present: Shri Prashant Jaiswal, Sr. Advocate with Shri Ajay Mishra, counsel for the petitioner. Ms. Sunita Jain, Panel Lawyer for the State. ORAL ORDER (Passed on this 7" day ofAugust, 2008) The petitioner seeks quashment of the impugned oral order whereby his services have been discontinued and further a writ of mandamus, directing the respondents to allow the petitioner to continue in service and regularize in parity with other employees. 2) The petitionerwas appointed for 89 days as daily wager on 1-7-1988 and thereafter, he continued to work as daily wager. The services of the petitioner, thereafter, were discontinued in the month of June, 2004. According to learned counsel for the petitioner, by an oral order. 3) Learned senior counsel appearing on behalf of the petitioner submits that the petitioner is gntitled to be regularized in view of the Government instructions, as he was appointed priorto 31-12-1988. Non-regularization of theservices ofthe petitioner is arbitraryand discriminatory. 4) I have heard learned counsel appearing for the respective parties, perused the pleadings and the documents appended thereto. It is evident 4?=--^ 7-< /'• -.fsi' •s:s-'-SSSy. w& that the petitioner was appointed on daily wages de hors the constitutional scheme of employment. There was no public invitation inviting all the similarly situated persons for selection and recruitment thereafter. Thus, the appointment itself is not legal and proper as held by the Hon'ble Supreme Court in a catena of decisions. 5) The Supreme Court in the matter of Secretary, State of Karnataka and others Vs. Umadevi (3) and others , observed in para 47 as under: "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 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 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) The Supreme Court in the matter of R.S. Garg vs. State of U.P. and others observed in para 16 as under: "16. Even the State cannot make rules or issue any exec utive instructions by way of regularization of service. It would be in violation of the Rules made under Article 309 of the Constitution of India and opposed to the constitutional scheme of equality clauses contained in Article 14 and 16." 7) Again the Supreme Court in the matter of Surinder Prasad Tiwari vs. U.P. Rajya KrLshi Utpadan Mandi Parishad and others3, observed in para 35 as under: 1 (2006) 4 SCC 1 2 (2006) 6 SCC 430 (21306) 7 SCC 684 ;i^&ffS^ 1 ^i "yy rflia RTO "35. Equal opportunity is the basic feature of our Constitution. Public employment is repository of the State power. Certain status and powers emanate from public employment." 8) In the matter of Indian Drugs & Pharmaceuticals Ltd. Vs. Workmen, Indian Drugs & Pharmaceuticals 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. In E. Ramakrishnan v. State of Kerala this Court held that there can be no regularisation dehors the rules. The same view was taken in Kishore (Dr.) v. State of Maharashtra, Union of India v. Bishamber Dutt. The direction issued by the Services Tribunal for regularizing the services of persons who had not been appointed on regular basis in accordance with the rules was set aside although the petitioner had been working regularly for a long time. 35. In Surinder Singh Jamwal (Dr.) v. State of J & /< it was held that ad hoc appointment does not give any right for regularization as regularization is governed by the statutory rules." 9) Further, in the matter of State of U.P. and others vs. Desh Raj the Supreme Court observed as under: "7. Whatever may be the import and purport of such regularisation rules, in view of the recent Constitution Bench decision of this Court in Secy., State of Kamataka v. Umadevi (3), it is now well settled that the appointments, if made in violation the constitutional scheme of equality as enshrined under Articles 14 and 16 of the Constitution of India, would be rendered illegal and, thus, void ab initio. No regularisation rules, therefore, could have been made by the State of Uttar Pradesh in derogation of the statutory or constitutional scheme." 10) The circular dated 2-12-2000 (Annexure-P/5) issued by the Government of Chhattisgarh provides for re-employment of the daily wagers who had been removed earlier, if they are required for appointment through proper selection. The petitioner has filed a document at page 17, which does not make it>plear that as to when it was issued and by which office it was issued, because the cireular itself starts from para 4. Thus, 4 (2007) 1 SCC 408 5 (2007) 1 SCC 257 ~^~;' yt) 'itOs ilSShn. ii:;Ei'lg! there cannot be any reliance on the said document. It is not the case of the petitioner that the he has gone through selection and was re-appointed after 2-12-2000 in pursuance of circular dated 2-12-2000 issued by the StateofChhattisgarh. 11) Looking from all angles it cannot be held that the petitioner has acquired any right to the post, as the appointment of the petitioner was not through proper selection and in accordance with law. If the petitioner has no right to appointment he has further no right to reinstatement on the post. Further, the petitioner has sought for quashment of the oral order of removal that cannot be quashed, as the order must be in writing. No evidence is produced to substantiate that any oral order was passed. 12) In view of the foregoing reasons, this petition is dismissed. No order asto costs. 13) Consequently, M.(W.).P.No.2652/2004 for interim relief stands disposed of. Gowri Sd./- Satish K. Agnihotri Judge