IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CWP No.: 1134 of 2001. Reserved on: 30.7.2008 Date of Decision: 4th August, 2008 H.P.State Electricity Board …Petitioner. Versus. Veena Devi. …Respondent. Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr. Justice V.K.Ahuja, Judge. Whether approved for Reporting? No. For the petitioner.: Mr. Baldev Singh, Advocate. For the Respondent.: Mr. B.C.Negi, vice Counsel. Per Deepak Gupta, J. This writ petition has been filed by the H.P.State Electricity Board (HPSEB) and is directed against the order of the learned H.P.State Administrative Tribunal, passed in O.A. No. 414 of 1998 whereby the HPSEB has been directed to regularize the services of the respondent retrospectively from the date she completes 10 years continuous service on contract basis with all consequential benefits including pay and interest. The undisputed facts are that the respondent has been working in the Board since the year 1988. On 16.11.1988 the petitioner was appointed on contract basis at a fixed salary of Rs.450/- per month. She was required to do the work of typing. The papers, carbons, type-writer and all 2 other facilities for doing the work were to be provided by the Board. Thereafter, her wages were increased from time to time and she worked on contract basis till the year 1993. Thereafter, admittedly payment was made to her on work order basis, i.e. on the basis of the number of pages typed by her. She continued to work on this basis. In the year 1998 she filed an original application before the learned Tribunal praying that she had been working on contract basis/work order basis for more than 10 years and therefore, in accordance with the various pronouncements of the apex Court her services were required to be regularized. The learned Tribunal following the judgements of the apex Court in U.P.Income Tax Department Contingent Paid Staff Welfare Association vs. Union of India, AIR 1988 SC 517, Delhi Municipal Karmchari Ekata Union (Registered) vs. P.L.Singh, AIR 1988 SC 519, Bhartiya Dak Tar Mazdoor Manch vs. Union of India, AIR 1997 SC 2342, and Arun Kumar Route others vs. Stae Bihar, AIR 1988 SC 1477, held that the services of the petitioner were required to be regularized on completion of 10 years service and granted her the reliefs aforesaid. Aggrieved by the order of the learned Tribunal, the Board is before us. We have heard Shri Baldev Singh, learned counsel for HPSEB and Shri B.C.Negi, learned counsel for the respondent-employee. 3 As far as the order of the learned Tribunal is concerned, the same was in accordance with the pronouncements of the apex Court as on the date when the order was delivered. However, there has been a sea- change in the law thereafter. The apex Court in Secretary, State of Karnataka and others vs. Umadevi (3) and others, (2006) volume 4 SCC page 1 has clearly held that when the initial appointment is not in accordance with the rules the Court should not order the regularization of such employees. The relevant observations of the apex Court are contained in paras 14, 43, 44 and 45, which read as follows:- “14. During the course of the arguments, various orders of courts either interim or final were brought to our notice. The purport of those orders more or less was the issue of directions for continuation or absorption without referring to the legal position obtaining. Learned counsel for the State of Karnataka submitted that chaos has been created by such orders without reference to legal principles and it is time that this Court settled the law once for all so that in case the court finds that such orders should not be made, the courts, especially, the High Courts would be precluded from issuing such directions or passing such orders. The submission of learned counsel for the respondents based on the various orders passed by the High Court or by the Government pursuant to the directions of Court also highlights the need for settling the law by this Court. The bypassing of the constitutional scheme cannot be perpetuated by the passing of orders without dealing with and deciding the validity of such orders on the touchstone of constitutionality. While approaching the questions falling for our decision, it is necessary to bear this in mind and to bring about certainty in the matter of public employment. The argument on behalf of some of the respondents is that this Court having once directed regularization in the Dharwad case (supra), all those appointed temporarily at any point of time would be entitled to be regularized since otherwise it would be discrimination between those similarly situated and in that view, all appointments made on daily wages, temporarily or contractually, must be directed to be regularized. Acceptance of this argument would mean that appointments made otherwise than by a regular process of selection would become the order of the day completely jettisoning the constitutional scheme of appointment. This argument also highlights the need for this Court to formally lay down the law on the question and ensure certainty in dealings 4 relating to public employment. The very divergence in approach in this Court, the so-called equitable approach made in some, as against those decisions which have insisted on the rules being followed, also justifies a firm decision by this Court one way or the other. It is necessary to put an end to uncertainty and clarify the legal position emerging from the constitutional scheme, leaving the High Courts to follow necessarily, the law thus laid down. 43. Thus, it is clear that adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution, a Court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution. Therefore, consistent with the scheme for public employment, this Court while laying down the law, has necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee. If it is a contractual appointment, the appointment comes to an end at the end of the contract, if it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued. Similarly, a temporary employee could not claim to be made permanent on the expiry of his term of appointment. It has also to be clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules. It is not open to the court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad hoc employees who by the very nature of their appointment, do not acquire any right. High Courts acting under Article 226 of the Constitution of India, should not ordinarily issue directions for absorption, regularization, or permanent continuance unless the recruitment itself was made regularly and in terms of the constitutional scheme. Merely because, an employee had continued under cover of an order of Court, which we have described as 'litigious employment' in the earlier part of the judgment, he would not be entitled to any right to be absorbed or made permanent in the service. In fact, in such cases, the High Court may not be justified in issuing interim directions, since, after all, if ultimately the employee approaching it is found entitled to relief, it may be possible for it to mould the relief in such a manner that ultimately no prejudice will be caused to him, whereas an interim direction to continue his employment would hold up the regular procedure for selection or impose on the State the burden of paying an employee who is really not required. The courts must be careful in ensuring that they do not interfere unduly with the economic arrangement of its affairs by the State or its instrumentalities or lend themselves the instruments to facilitate the bypassing of the constitutional and statutory mandates. 5 44. The concept of 'equal pay for equal work' is different from the concept of conferring permanency on those who have been appointed on ad hoc basis, temporary basis, or based on no process of selection as envisaged by the Rules. This Court has in various decisions applied the principle of equal pay for equal work and has laid down the parameters for the application of that principle. The decisions are rested on the concept of equality enshrined in our Constitution in the light of the directive principles in that behalf. But the acceptance of that principle cannot lead to a position where the court could direct that appointments made without following the due procedure established by law, be deemed permanent or issue directions to treat them as permanent. Doing so, would be negation of the principle of equality of opportunity. The power to make an order as is necessary for doing complete justice in any cause or matter pending before this Court, would not normally be used for giving the go-by to the procedure established by law in the matter of public employment. Take the situation arising in the cases before us from the State of Karnataka. Therein, after the Dharwad decision, the Government had issued repeated directions and mandatory orders that no temporary or ad hoc employment or engagement be given. Some of the authorities and departments had ignored those directions or defied those directions and had continued to give employment, specifically interdicted by the orders issued by the executive. Some of the appointing officers have even been punished for their defiance. It would not be just or proper to pass an order in exercise of jurisdiction under Article 226 or 32 of the Constitution or in exercise of power under Article 142 of the Constitution of India permitting those persons engaged, to be absorbed or to be made permanent, based on their appointments or engagements. Complete justice would be justice according to law and though it would be open to this Court to mould the relief, this Court would not grant a relief which would amount to perpetuating an illegality. 45. While directing that appointments, temporary or casual, be regularized or made permanent, courts are swayed by the fact that the concerned person 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 eyes open. It may be true that he is not in a position to bargain -- not at arms 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, 6 contractually or casually, would not be getting even that employment when securing of such employment brings at least some succor 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 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 (sic) 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 of India.” Keeping in view the law laid down by the apex Court, it is apparent that neither the learned Tribunal nor this Court has any jurisdiction to direct the petitioner-Board to regularize the services of an employee that too an employee who was not initially engaged in accordance with the Recruitment and Promotion Rules. Therefore, we have no other option but to set aside the order of the learned Tribunal dated 29th June, 2001 and the original application filed by the respondent be deemed to be dismissed. However, before parting with this case, we must observe that the Board has been following the policy of regularizing the employees who have completed 10 years service either in view of the scheme approved in Mool Raj Upadhyaya Vs. State of H.P. and others 1994 Supp (2) SCC 316 7 case or in the light of the subsequent schemes of regularization framed by the State and made applicable to the Board. Though, we have held that we cannot grant any direction for regularization of the respondent, we do feel that the case of the petitioner is very hard one deserving sympathetic treatment from her employer. Undisputedly, she has worked with the Board for more than 20 years. From the material placed on record it is apparent that she is working as a typist and over these 20 years she must have become an accomplished typist. All other employees of the Board who have worked for so long have been regularized. Even if the petitioner had been a daily waged employee her services would have been regularized. The only thing coming in the way of the petitioner is that she is working on contract basis. We, therefore, direct that the matter be placed before the Board of Directors of the HPSEB who on their own should consider the case of the respondent for regularization of her services, as a special case, with the sympathy it deserves. The Board may even consider relaxing the Recruitment and Promotion Rules keeping in view the long service rendered by the respondent. With these observations, the writ petition is disposed of. ( Deepak Gupta ), J. 4th August, 2008. ( V.K.Ahuja ). J. ™ 8