IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL Court’s order whether the case is or not approved for reporting (Chapter VIII Rule 32(2) (b) Description of the case. W.P. No. 1579 (S/S) of 2001 (Old No. 20103/1999) Date of decision :- 11-9-2006 A.F.R. (Approved for Reporting) Not approved for reporting Date :- 11-9-2006 Initials of Judge Note :- Bench Reader will attach this at the top of the first page of the judgment when it is put up before the Judge for signature. HIGH COURT OF UTTARANCHAL, AT NAINITAL Civil Misc. Writ Petition No. 1579 (S/S) of 2001 (Old No. 20103/1999) Atol Singh S/o Sri Raupal Singh R/o Rawain Range, P.O. – Barkot, District – Uttarkashi …Petitioner Versus The State of Uttaranchal and 4 others. … Respondents Mr. P.C. Jhingan, learned counsel for the petitioner Mr. N.P. Sah, learned Standing Counsel for the respondents/State Per Hon’ble J.C.S. Rawat, J. 1. By means of this Writ Petition, moved under Article 226 of the Constitution of India, the petitioner has sought the following reliefs :- “i) To issue a writ or direction in the nature of Mandamus commanding the respondents to regularize the service of the petitioner with effect from the date of his initial appointment on the post held by him in the forest department. ii) To issue a writ order or direction in the nature of mandamus commanding the respondents to pay appears of difference of pay to the petitioner from the date of his initial appointment on the post held by him in the forest department. iii) To issue any other suitable writ, order or direction which this Hon’ble Court may deem fit and proper in the circumstances of the case; and iv) To award the cost of the writ petition to the petitioner.” 2. The petitioner had been working as a daily wager since 01.04.1993. It is alleged that the petitioner had been working continuously as daily wager since the date of his appointment. The nature of the duties of the petitioner is similar as that of regular appointed employees of his category in the forest department of Government. There is no difference either in the nature of duties or in the quantum of work rather the petitioner being daily wage employee has to work more efficiently and sincerely than the regularly appointed employees for the reason that a slight slackness on his part may result in termination of his services. The petitioner had not been regularized inspite of the repeated requests and he had not been paid the equal pay for the equal work. When the petitioner was deprived for the equal pay and regularization, this writ petition had been filed before this court. 3. Heard Sri P.C. Jhingan, learned counsel for the petitioners, Sri N.P. Sah, learned Standing Counsel for the respondents/ State and perused the record. 4. Learned counsel for the petitioner relied upon the judgments of Dharwad District P.W.D. Daily Wages Employees Association and others Vs. State of Karnataka and others, Surinder Singh Vs. Engineer-in- Chief, C.P.W.D. 1986 SCC (L&S), Nehru Yuvak Kendra’s case [1986 (L&S) 1987], Kishori Mohan Lal Vs. Union of India (AIR 1962, SCC 1139, Randhir Singh Vs. Union of India, 1982 (1) SCC 618 and R.D. Gupta Vs. Lieutenant Governor Delhi Administration, 1987 SCC (L&S) p/470. 5. It is not disputed that the petitioner is work charge employee and he is a daily wage. The petitioner had nowhere alleged that his services has been regularized by any order passed by the Government. The concept of equal pay for the equal work is different from the concept of conferring permanency of those who have been appointed on daily wages basis. The court had in various decisions applied the principle of equal pay for equal work and laid down the parameters on 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 for the purposes of the salary. By doing so, would be negation of the principle of equality of opportunity. The persons who are skilled, working as a daily wagers, cannot claim parity with their counterparts who are working permanently in the department. When ad hoc appointments or engagement of daily wager are made, the appointees know the nature of their employment and they accept the employment with eyes open. It may be true that they are not in a position to bargain. Since they might have been searching for some employment so as to eke out their livelihood and accepts whatever they get. It would not be just and proper to treat the employees working on daily or ad hoc basis at par with those who are permanent employees of the department. It has been held in Secretary, State of Karnataka & others Vs. Umadevi & Others, reported in 2006 AIR SCW p/1991 that if any persons had been appointed on the daily wages, casual wages or on ad hoc appointment, they cannot claim to be permanent on the expiry of their is term of appointment. The Hon’ble Apex Court have also clarified that merely because of a temporary employees or a casual wage worker or ad hoc employees had been continuously working for long time, he cannot be absorbed in the regular service and he cannot claim to be regularized . It has been held in the case of Umadevi (Supra) at para 39 and 41 as follows: “39. It was then contended that the rights of the employees thus appointed, under Article 14 and 16 of the Constitution, are violated. It is stated that the State has treated the employees unfairly by employing them on less than minimum wages and extracting work from them for a pretty long period in comparison with those directly recruited who are getting more wages or salaries for doing similar work. The employees before us were engaged on daily wages in the department concerned on a wages that was made known to them. There is no case that the wage agreed upon was not being paid. Those who are working on daily wages formed a class by themselves, they cannot claim that discriminated as against those who have been regularly recruited on the basis of the relevant rules. No right can be founded on an employment on daily wages to claim that such employee should be treated on a par with a regularly recruited candidate, and made permanent in employment, even assuming that the principle could be invoked for claiming equal wages for equal work. There is no fundamental right in those who have been employed on daily wages or temporarily or on contractual basis, to claim that they have a right to be absorbed in service. As has been held by his Court, they cannot be said to be holders of a post, since, a regular appointment could be made only be making appointments consistent with the requirements of Articles 14 and 16 of the Constitution. The right to be treated equally with the other employees employed on daily wages, cannot be extended to a claim for equal treatment with those who were regularly employed. That would be treating unequals as equals. It cannot also be relied on the claim a right to be absorbed in service even though they have never been selected inn terms of the relevant recruitment rules. The arguments based on Articles 14 and 16 of the Constitution are therefore overruled.” 40. ………………………………………………. 41. It is argued that in a country like India where there is so much poverty and unemployment and there is no equality of bargaining power, the action of the State in not making the employees permanent, would be violative of Article 21 of the Constitution. But the very argument indicates that there are so many waiting for employment and an equal opportunity for competing for employment and it is in that context that the Constitution as one of its basic features, has included Articles 14, 16 and 309 so as to ensure that public employment is given only in a fair and equitable manner by giving all those who are qualified, an opportunity to seek employment. In the guise of upholding rights under Article 21 of the Constitution, a set of persons cannot be preferred over a vast majority of people waiting for an opportunity to compete for State employment. The acceptance of the argument on behalf of the respondents would really negate the rights of the others conferred by Article 21 of the Constitution, assuming that we are in a position to hold that the right to employment is also a right coming within the purview of Article 21 of the Constitution. The argument that Article 23 of the Constitution is breached because the employment on daily wages amounts to forced labour, cannot be accepted. After all, the employees accepted the employment at their own volition and with eyes open as to the nature of their employment. The Governments also revised the minimum wages payable from time to time in the light of all relevant circumstances. It also appears to us that importing of these theories to defeat the basic requirement of public employment would defeat the constitutional scheme and the constitutional goal of equality.” 6. Thus it is apparent from the record that the petitioner is working as work charge employee and he is not the regular employees of the department and he is working on the daily wages. Thus the employees who are working on daily wages formed a class by themselves, they cannot claim that they are discriminated as against those who have been regularly recruited on the basis of the relevant rules. As such, no right can be founded on an employment on daily wages to claim that such employee should be treated on a par with a regularly recruited persons and made permanent in the employment even assuming that the principle could be invoked for claiming equal wages for equal work. The right to be treated equally with the other employees employed on daily wages, cannot be extended to a claim for equal treatment with those who were regularly employed. That would be treating unequals as equals. The government was justified in issuing the order to fix an amount as a wages to the work charge employees. It has been noticed that the government had time to time revised the wages of the daily wagers keeping in mind the inflation prevalent in the society. When any person is appointed as daily wager or ad hoc employee, he knows the nature of his appointment and the wages he would get after his engagement. He accepts the employment knowing the consequence of the employment. He also knows that he had been appointed by the appointing authority without any process being undertaken for selection and he had deprived a number of persons who were aspirant of the employment. He very well knows that he had got the employment with the sympathy of the appointing authority. Thus, he would be ready to face the consequences of the employment which he had received in relaxation of the authorities and behind the back of constitutional scheme. Thus such, employees whose induction in the service is itself against the constitutional scheme, create a class itself and they cannot claim parity with the duly appointed employees under the constitutional scheme. Thus the arguments based on the Article 14 and 16 of the Constitution as advanced by the learned counsel for the petitioners are thereof overruled. 7. Perusal of the record reveals that it is not disputed that the petitioner was appointed on the daily wages basis. As such, the temporary or daily wager employee cannot claim that he should be absorbed in the regular service or made permanent merely on the strength of his continuance in service. The said appointment was made as on a daily wages basis without following due process of selection as emphasized under the relevant rules. It is not open to the court by putting temporary or daily wages employees into service to prevent the regular persons by way of recruitment at the instance of daily wagers whose period of employment has come to an end. The daily wager by very nature of their appointment do no acquire any right to remain in the service or to have a right of any hearing before being dispensed with his services. The Hon’ble Apex court has held in para 34 and 36 in Secretary, State of Karnataka & others Vs. Umadevi & Others reported in 2006 AIR SCW 1991 as under: “34. ……………… 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 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, regularisation, 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 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 mandates. 35. …………………………... 36. While directing that appointments, temporary or casual, be regularised or made permanent, the courts are swayed by the fact that the person concerned 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 open eyes. It may be true that he is not in a position to bargain—not at arm’s 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 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.” 8. It has been held in para 45 in Umadevi (Supra) as under:- “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. The ratio laid down in the cases cited by the learned counsel for the petitioner, is not applicable now in this petition. In view of the foregoing discussion, this writ petition devoids of merit is liable to be dismissed and is dismissed accordingly. The parties shall bear their own costs. 10. All applications pending in this case are stand disposed of in terms of the judgment. (J.C.S.Rawat, J.) 11th September, 2006 Shiv