IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP (T) No. 897/2008 Reserved on: 24.6.2011 Decided on: 15.7. 2011 _____________________________________________ Kamal Kant. …Petitioner. Versus State of H.P. and others. …Respondents. _______________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes. For the petitioner : Mr. Dilip Sharma, Advocate. For the Respondent: Mr. Vikas Rathore, Dy. A.G. with Mr. R.P. Singh, Asstt. A.G. for respondents No. 1 and 2. None for respondent No.3. ____________________________________________________ Justice Rajiv Sharma, Judge. Petitioner was appointed on daily wage basis as Assistant Draftsman in Nagar Panchayat, Rohru on 19.1.1990. He was regularized on 2.5.1994 pursuant to interview held in the year 1993. Respondent No.3 was appointed on daily wage basis as Draftsman on 24.2.1992. He was regularized as Assistant Draftsman on 5.6.2000. Thereafter, he was regularized as 1 Whether reporters of the local papers may be allowed to see the judgment? Yes. 2 Draftsman with effect from 5.6.2000 pursuant to his representation dated 15.2.2002. Petitioner came to know about the regularization of respondent No.3 as Draftsman when the seniority list of the Draftsman in Urban Local Bodies was issued on 25.6.2007, as it stood on 30.4.2007. He made a representation against the seniority list on 9.7.2007. Thereafter, petitioner filed original application bearing O.A. No.1783/2007. The same was directed to be treated as representation by the Director, Urban Development. He rejected the same on 4.10.2007 vide Annexure A-7. 2. Mr. Dilip Sharma has strenuously argued that the action of respondent-State of regularizing respondent No.3 initially as Assistant Draftsman on 5.6.2000 and thereafter regularizing him as Draftsman with effect from 5.6.2000 is illegal, arbitrary and thus violative of Articles 14 and 16 of the Constitution of India. According to him, the post of Assistant Draftsman was to be filled up as per the Himachal Pradesh Ministerial/Non-Ministerial State Municipal Services (Recruitment, promotion and other Conditions of Service) Rules, 1997 (hereinafter referred to as the “Rules” for brevity sake), 100% by direct recruitment and essential qualification was matric with two years 3 diploma in Draftsman. He then contended that the post of Draftsman was to be filled up 100% by way of promotion from amongst the Assistant Draftsman with 12 years service. In other words, his submission is that respondent No.3 has been regularized as Draftsman; vide corrigendum 6.3.2002 de hors the Rules. He lastly contended that since his client had completed 12 years of service as Assistant Draftsman, as per Rules, he was to be promoted to the post of Draftsman. 3. Mr. Vikas Rathore, learned Deputy Advocate General has argued that the decision was taken to regularize respondent No.3 as Draftsman since he had put in 8 years of service on 5.6.2000. He then contended that the regularization of respondent No.3 as Draftsman was as per the policy decision of the State Government to regularize the incumbents, who had completed 8 years service. 4. Respondent No.3 was issued notice by this Court and he was duly served. However, neither he appeared in person nor he was represented by any Advcoate. 5. I have heard the learned counsel for the parties and have perused the pleadings carefully. 4 6. Petitioner was regularized as Assistant Draftsman on 2.5.1994. Respondent No.3 was appointed as daily wage Draftsman on 24.2.1992 in Nagar Panchayat, Kotkhai. The Rules have been notified in Himachal Pradesh Rajpatra on 19.9.1998. The post of Draftsman is a promotional post to be filled up 100% from the incumbents, who have completed 12 years of service as Assistant Draftsman. Respondent No.3 has been regularized initially as Assistant Draftsman on 5.6.2000 and thereafter corrigendum was issued on 6.3.2002 whereby he has been regularized as Draftsman retrospectively with effect from 5.6.2000. His name was also included in the seniority list of Draftsman issued on 25.6.2007. It is evident from the Rules, as noticed hereinabove, that as far as the post of Assistant Draftsman is concerned, the same has to be filled up 100% by direct recruitment. The post of Draftsman is to be filled up by 100% by promotion from amongst Assistant Draftsman with 12 years service. The date on which the decision was taken to regularize respondent No.3 as Draftsman, that too, retrospectively, the Rules had come into force. According to these Rules, 12 years service was required for an incumbent as Assistant Draftsman only then he could be 5 considered for the post of Draftsman. The Court is of the considered view that once the Rules had been promulgated, regularization of respondent No.3 was unwarranted. The post of Draftsman was promotional post and the action of respondent-State to regularize respondent No.3, that too, as Draftsman was absolute illegal and arbitrary. The representation of the petitioner has also been rejected without taking into consideration that the daily wager could not be regularized de hors the Rules. The sanctity of the statutory Rules, framed under Article 309 of the Constitution of India, has been set to naught by the executive decision whereby respondent No.3 has been regularized as Draftsman. The Court is of the considered view that once the Recruitment and Promotion Rules are in force, the appointment is to be regulated under the same. Respondent-State has filled up the post of Draftsman, that too, by regularizing respondent No.3, who has only worked for 8 years, though the requirement under the Rules is that the incumbents must complete 12 years of service as Assistant Draftsman before he is promoted to the post of Draftsman. It is settled law by now that regularization is not the methodology of appointment to 6 a post. The appointments are made in consonance with the constitutional scheme, more particularly, under Articles 14 and 16 of the Constitution of India. It is also in grey area whether the respondent No.3 could be regularized as Assistant Draftsman initially after the promulgation of the Rules on 5.6.2000. 7. The present petition is slightly belated in the sense that the petitioner has assailed the regularization of respondent No.3 only in 2008. However, the fact of the matter is that regularization of respondent No.3 was wholly unconstitutional and illegal and the petitioner had occasion to know about his regularization when the seniority list of Draftsman was published on 25.6.2007. He had fundamental right to be considered for promotion to the post of Draftsman in accordance with law. Respondent No.2 has come to a wrong conclusion that the regularization of respondent No.3 was not to be regulated under the Rules, which had already come into force in the year 1998. 8. The Constitutional Bench in Secretary, State of Karnataka and others versus Umadevi (3) and others, (2006) 4 SCC 1 has laid down that the persons appointed on temporary/contractual/casual/ad hoc or daily wage basis have no legal right to regular or 7 permanent public employment. Their Lordships have further held that absorption, regularization or permanent continuance of temporary, contractual, casual, daily wage or ad hoc employees appointed/recruited and continued for long in public employment dehors the constitutional scheme of public employment amounts to another mode of recruitment in public employment which is not permissible. Their Lordships have further held that the persons who get employed, without following a regular procedure or even through the backdoor or on daily wages and have continued to work for ten years or more, they would not be entitled for regular or permanent employment. Their Lordships have held as under: “4. But, sometimes this process is not adhered to and the Constitutional scheme of public employment is bypassed. The Union, the States, their departments and instrumentalities have resorted to irregular appointments, especially in the lower rungs of the service, without reference to the duty to ensure a proper appointment procedure through the Public Service Commission or otherwise as per the rules adopted and to permit these irregular appointees or those appointed on contract or on daily wages, to continue year after year, thus, keeping out those who are qualified to apply for the post concerned and depriving them of an opportunity to compete for the post. It has also led to persons who get employed, without the following of a regular procedure or even through the backdoor or on daily wages, approaching 8 Courts, seeking directions to make them permanent in their posts and to prevent regular recruitment to the concerned posts. Courts have not always kept the legal aspects in mind and have occasionally even stayed the regular process of employment being set in motion and in some cases, even directed that these illegal, irregular or improper entrants be absorbed into service. A class of employment which can only be called 'litigious employment', has risen like a phoenix seriously impairing the constitutional scheme. Such orders are passed apparently in exercise of the wide powers under Article 226 of the Constitution of India. Whether the wide powers under Article 226 of the Constitution is intended to be used for a purpose certain to defeat the concept of social justice and equal opportunity for all, subject to affirmative action in the matter of public employment as recognized by our Constitution, has to be seriously pondered over. It is time, that Courts desist from issuing orders preventing regular selection or recruitment at the instance of such persons and from issuing directions for continuance of those who have not secured regular appointments as per procedure established. The passing of orders for continuance, tends to defeat the very Constitutional scheme of public employment. It has to be emphasized that this is not the role envisaged for High Courts in the scheme of things and their wide powers under Article 226 of the Constitution of India are not intended to be used for the purpose of perpetuating illegalities, irregularities or improprieties or for scuttling the whole scheme of public employment. Its role as the sentinel and as the guardian of equal rights protection should not be forgotten. 33. It is not necessary to notice all the decisions of this Court on this aspect. By and large what emerges is that regular recruitment should be insisted upon, only in a contingency an ad hoc appointment can be made in a permanent vacancy, but the same should 9 soon be followed by a regular recruitment and that appointments to non-available posts should not be taken note of for regularization. The cases directing regularization have mainly proceeded on the basis that having permitted the employee to work for some period, he should be absorbed, without really laying down any law to that effect, after discussing the constitutional scheme for public employment. 39. There have been decisions which have taken the cue from the Dharwad (supra) case and given directions for regularization, absorption or making permanent, employees engaged or appointed without following the due process or the rules for appointment. The philosophy behind this approach is seen set out in the recent decision in The Workmen of Bhurkunda Colliery of M/s Central Coalfields Ltd. Vs. The Management of Bhurkunda Colliery of M/s Central Coalfields Ltd. (JT 2006 (2) SC 1), though the legality or validity of such an approach has not been independently examined. But on a survey of authorities, the predominant view is seen to be that such appointments did not confer any right on the appointees and that the Court cannot direct their absorption or regularization or re-engagement or making them permanent. 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 10 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 11 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. 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, 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 12 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 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. 49. It is contended that the State action in not regularizing the employees was not fair within the framework of the rule of law. The rule of law compels the State to make appointments as envisaged by the Constitution and in the manner we have indicated earlier. In most of these cases, no doubt, the employees had worked for some length of time but this has also been brought about by the pendency of proceedings in Tribunals and courts initiated at the instance of the employees. Moreover, accepting an argument of this nature would mean that the State would be permitted to perpetuate an illegality in the matter of public employment and that would be a negation of the constitutional scheme adopted by us, the people of India. It is therefore not possible to accept the argument that there must be a direction to make permanent all the persons employed on daily wages. When the court is approached for relief by way of a writ, the court has necessarily to ask itself whether the 13 person before it had any legal right to be enforced. Considered in the light of the very clear constitutional scheme, it cannot be said that the employees have been able to establish a legal right to be made permanent even though they have never been appointed in terms of the relevant rules or in adherence of Articles 14 and 16 of the Constitution. 54. It is also clarified that those decisions which run counter to the principle settled in this decision, or in which directions running counter to what we have held herein, will stand denuded of their status as precedents.” 9. Their Lordships have further drawn distinction between expression ‘regularization’ and ‘permanency’ in service jurisprudence. Their Lordships have highlighted that though the Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959 does not oblige an employer to employ only those persons who have been sponsored by employment exchanges, but it places an obligation on the employer to notify the vacancies that may arise. Their Lordships have held as under: “6. The power of a State as an employer is more limited than that of a private employer inasmuch as it is subjected to constitutional limitations and cannot be exercised arbitrarily (See Basu's Shorter Constitution of India). Article 309 of the Constitution gives the Government the power to frame rules for the purpose of laying down the conditions of service and recruitment of persons to be appointed to public services and posts in connection with the affairs of the Union or any of the 14 States. That Article contemplates the drawing up of a procedure and rules to regulate the recruitment and regulate the service conditions of appointees appointed to public posts. It is well acknowledged that because of this, the entire process of recruitment for services is controlled by detailed procedure which specify the necessary qualifications, the mode of appointment etc. If rules have been made under Article 309 of the Constitution, then the Government can make appointments only in accordance with the rules. The State is meant to be a model employer. The Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959 was enacted to ensure equal opportunity for employment seekers. Though this Act may not oblige an employer to employ only those persons who have been sponsored by employment exchanges, it places an obligation on the employer to notify the vacancies that may arise in the various departments and for filling up of those vacancies, based on a procedure. Normally, statutory rules are framed under the authority of law governing employment. It is recognized that no government order, notification or circular can be substituted for the statutory rules framed under the authority of law. This is because, following any other course could be disastrous inasmuch as it will deprive the security of tenure and the right of equality conferred on civil servants under the Constitutional scheme. It may even amount to negating the accepted service jurisprudence. Therefore, when statutory rules are framed under Article 309 of the Constitution which are exhaustive, the only fair means to adopt is to make appointments based on the rules so framed.” 10. Their Lordships of the Hon’ble Supreme Court in Indian Drugs and Pharmaceuticals Limited versus Workmen, Indian Drugs and 15 Pharmaceuticals Limited, (2007) 1 SCC 408 have laid down that the Court cannot direct continuation in service of a non-regular appointee. A casual or temporary employment is not an appointment to the post. The Court cannot create a post where none exists, nor issue directions to absorb or regularize temporary employees. Their Lordships have held as under: “14. The distinction between a temporary employee and a permanent employee is well settled. Whereas a permanent employee has a right to the post, a temporary employee has no right to the post. It is only a permanent employee who has a right to continue in service till the age of superannuation (unless he is dismissed or removed after an inquiry, or his service is terminated due to some other valid reason earlier). As regards a temporary employee, there is no age of superannuation because he has no right to the post at all. Hence, it follows that no direction can be passed in the case of any temporary employee that he should be continued till the age of superannuation. 15. Similarly, no direction can be given that a daily wage employee should be paid salary of a regular employee vide State of Haryana vs. Tilak Raj 2003 (6) SCC 123. 17. Admittedly, the employees in question in Court had not been appointed by following the regular procedure, and instead they had been appointed only due to the pressure and agitation of the union and on compassionate ground. There were not even vacancies on which they could be appointed. As held in A. Umarani vs. Registrar, Cooperative Societies & Ors. 2004(7) SCC 112, such employees cannot be regularized as regularization is not a mode of recruitment. In Umarani's case the Supreme Court observed that the 16 compassionate appointment of a woman whose husband deserted her would be illegal in view of the absence of any scheme providing for such appointment of deserted women. 18. In State of M.P. and others vs. Yogesh Chandra Dubey and others 2006 (8) SCC 67, this Court held that a post must be created and/or sanctioned before filling it up. If an employee is not appointed against a sanctioned post he is not entitled to any scale of pay. In our opinion, the ratio of the aforesaid decision squarely applies to the facts of the present case also. 34. Thus, it is well settled that there is no right vested in any daily wager to seek regularization. Regularization can only be