CW - 1289/1995-Gyan Prakash Vyas Vs. Nehru Yuva Kendra Sangthan & Ors. Judgment dt.10.9.08 1/6 S.B. CIVIL WRIT PETITION NO.1289/1995 Gyan Prakash Vyas Vs. Nehru Yuva Kendra Sangthan & Ors. Date of order : 10th September, 2008 PRESENT HON'BLE DR. JUSTICE VINEET KOTHARI Mr. C.S. Bissa for the petitioner. Mr. M.R. Singhvi for the respondents. --------- 1. Heard learned counsels. 2. By this writ petition the petitioner has claimed relief of directing the respondents to consider the petitioner's case for regularization on the post of Account Clerk in the respondent department Nehru Yuva Kendra Sangthan, a society registered under the Societies Registration Act which is governed by the Ministry of Youth Affairs and Sports, Government of India under Society of Human Resources Development and Department of Youth Affairs Sports. 3. The learned counsel for the petitioner Mr. C.S. Bissa submits that the petitioner was appointed as class IV Grade D employee but was assigned the work of Account Clerk by an order dated 3.11.1989 Annex.1 and thereafter he was continued to work as such and even in the provisional seniority list issued by the respondent vide Annex.5 produced with the rejoinder his date of posting at the present post in column No.5 is shown to be 3.11.1989. CW - 1289/1995-Gyan Prakash Vyas Vs. Nehru Yuva Kendra Sangthan & Ors. Judgment dt.10.9.08 2/6 He, therefore, submits that his regularization after convening of DPC w.e.f. 3rd April, 2003 vide Annex.5 is not correct and he should be given the said work with effect from the date he was appointed on the said post or was assigned the said work w.e.f. 3.11.1989. 4. On the side opposite, learned counsel Mr. M.R. Singhvi relying upon the decision of the Hon'ble Supreme Court in the case of Secretary, State of Karnataka & Ors. Vs. Umadevi (3) and Ors. - (2006) 4 SCC 1, submitted that merely because an employee had continued under the cover of an order of the Court, under “litigious employment” or had been continued beyond the terms of appointment by the State of its instrumentalities, he would not be entitled to any right to be absorbed or made permanent in service, 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. He drew the contention of the Court towards para 43 of the judgment which is reproduced hereunder:- “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 CW - 1289/1995-Gyan Prakash Vyas Vs. Nehru Yuva Kendra Sangthan & Ors. Judgment dt.10.9.08 3/6 scheme for public employment, this Cort 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. The High Courts acting under Article 226 of the Constitution, 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 CW - 1289/1995-Gyan Prakash Vyas Vs. Nehru Yuva Kendra Sangthan & Ors. Judgment dt.10.9.08 4/6 the 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 mandate.” 5. He submitted that the assignment of work as Accounts Clerk to the petitioner was done by an authority i.e. Youth Coordinator, Nehru Huva Kendra Sangthan, Jalore, who was a close relative of the petitioner himself being brother-in-law (gainer) vide Annex.1 dated 3.11.1989 but the said order was by an incompetent authority and the said temporary assignment of working as Account Clerk could not be deemed to be regular appointment order after holding due selection process for the same nor said appointment order was against any sanctioned post of Accounts Clerk existing at that CW - 1289/1995-Gyan Prakash Vyas Vs. Nehru Yuva Kendra Sangthan & Ors. Judgment dt.10.9.08 5/6 point of time and, therefore, merely because the petitioner continued to work as Accounts Clerk he cannot be regularized on that post. Such regularization has been done after holding proper Departmental Promotion Committee on 31st March, 2003 and vide Annex.5 the petitioner has been appointed / promoted as Accounts Clerk-cum- Typist in the pay scale of 4000-100-6000 with effect from the date he take over the charge. He, therefore, submits that the writ petition cannot succeed and in view of the aforesaid Supreme Court decision, this writ petition deserves to fail. 6. Having heard learned counsels, this Court is of the opinion that in view of the aforesaid Supreme Court decision, the petitioner is not entitled to any relief in the present writ petition. Not only this, the initial order Annex.1 dated 3.11.1989 appears to have been passed by an authority who was not competent in this regard, besides being his close relative, however, since there are no allegations of malafide in this regard, without going into that question also, the said appointment/ assignment of work as Accounts Clerk under Anenx.1 cannot be taken in law to be a regular appointment of the petitioner against a sanctioned post of Accounts Clerk w.e.f. 31.11.1989. Such appointment / promotion from the original post of class IV Group D held by the petitioner has now only been done under Annex.5 dated 3.4.2003 after holding regular Departmental Promotion Committee. The Hon'ble Supreme Court in no uncertain terms deprecated the practice of using the powers under Article 226 CW - 1289/1995-Gyan Prakash Vyas Vs. Nehru Yuva Kendra Sangthan & Ors. Judgment dt.10.9.08 6/6 of the Constitution of India and has laid down that High Court should not ordinarily issue directions for absorption, regularization or permanent continuance unless such recruitment was made regularly and in terms of constitutional scheme. 7. In view of this, this writ petition is found to be devoid of merit. The same is accordingly dismissed. No costs. [ DR. VINEET KOTHARI ], J. item No.s/2 babulal/-