M "'lr-C'''' -•<"' pc> ^ .^. .-^*.. HK3KCCTJRTOF CHHATTISGARH: BILASPUR PETITIONER RESPONDENTS WRIT PETITION (Sl N0. 3343 OF 2008 Smt. Hamida Begum, W/o Shri Noor Mohammed Qureshi, aged 45 yeare, working as Peon (now termlnated), at Municipal Councit, Mahasamund, R/o Ward No.10, Badhai Para, Maha^imund, District Mahasamund (CG), Versus 1. State of Chhattisgarh, through its Secretary, Departmenf of Urban AdminisfraUon, Mantralaya, D.K.S. Bhawan.Raipur. 2. The ft4unici[»l Council, Mahasamund, through ite Preskterit^ Mtain Road, Mahasamund, DlsfriGt Mahasamund (CG). 3. The Chief Municipal OfRcer, Municipal Council, Mahasamund, District Mahasamund (CG), OWrit Petition under Article 226/227 ofthe Constifcttion of India) Single Bench •.Hon'bleShri Satish K. Agnihotri.J. Present:• Shrt RX. Kesharwanl, counsel for the petltloner. Ms.Smita Ghai, Panel Lawyerforthe State. ShriSudeep Agrawal,couns!elforthere?Ri?ndent5No.2&3. ORALOROeR (Passedon this^S-tlaybfMarch, 2009) With the consent of learned counsel appearing for ttie parties, the petition is heard finally. 2) By this petition, the petittoner challenges Vhe tegalily and validity of Uie order dated 20-5-2008 (Annexure - P/1)passed by the Chief Municipal Officer, Municipal Coundl, Mahasamund, whereby the service of the peUtioner from the post of daily wager has been disengaged w.e.f. 15-5-2008. The petitioner ftjrther seeks adirection to the respondents to reinstate her in service with back wages and all oUierconsequential benefits. 3) Learned counsel appearing for ttie petitioner conteiided that the petitioner has been appointed as Peon on daily wages basfe in the Municipal Council, Mahasamund on 1-7-1980. The petitioner has completed 28 years of service withQirt any break or any default. The nature E^ ^?:;. Bfe ^^: B' ^- of duties performed by the petitioner is similar to that of the regylar employees. However, without serving any showcause notice or without affording any opportunity of hearing fte impugned order has been passed, which is not sustainabte in the eye of law. In support of his contention, learned counsel placed reliance upon the decisions of Supreme Court in Ashwani Kumar and Others vs. Stateof Haryana andOthers1 and Hari Ram Maurya vs. Union of India and Othars2. 4) I have heard learned counsel appearing for the parties, pensed the pteadings and the documente appended thereto. 5) The Supreme Court in Secretary, State of Kamataka and others Vs. Umadevi (3) and others , observed in paras 45 and 47 as under: "45. White directing that appointmente, temporary or casual, be regularised or made permanent, the courts are swayed by the fact that the person concemed has worked for some Ume and In some cases for a considerable length oftime. It is not as ifthe pereon who accepts an engagement e'rther temporary or casual in nature, is nctaware of the nahire of his employment. He accepts tfie employment wlth open eyes. It may be true Uiat he is not iiv a position to bargain - not at arm's length - since he might have been searchlng for some employment so as to eke out his livelihood and accepte whatovsr he gets. But on ttiat groundalone, it would not be appropriate to jeffison the consUfartronal scheme of appointment and to take the view that a person who has temporarily or casually got employad should be directad to be conUnued permanently. By doing so, n will be creating another mode of public appointment which is not permissible. If the court were to void a contractual employmentofthis nature on the ground that the parties were not having equal bargalnlng power, Wat too would not enable the court to grant any relief to that employee. A total embargo on such casuat or temporary employment is not possible, glven the exigencies of administration and if imposed, would only mean that some people who at least get ereployment temporarily, contractually orcasually, would not be getting even that employment brings at teast some succourtothem. Afterall, innumergble citizens of our vast countryare insearch of employment and one is not compelted to .--^. * (2005)123cc 428 2 (2006) 9 SCC 167 3(20Q6)4SCC1 ^ ^. accept a casual or temporary employment if one is not inclined to 90 ih for such an employment. It is In that context that one has to proceed on the basis that the employment was accepted ftitly knowing the nature of It and the consequences flowng from it. In other words, even while accepUng the emptoyment, the person concemed knows the nature of hls emptoyment. It is not an appointmentto a post In the real sense of tfie term. The ctaim 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 gh/ing up ofthe procedure estabHshed, for making regular appointments to available posts in the services ofthe State. The argumentthat since one has been working for some Cme 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 (src) one that would enable the jettisoning of the procedure establlshed by law for pubtic employment and woutd hava to fcil whsn tested on the touchstone of constltutlonality and equality of opportunity enshrined in Artcle 14 of the Constitution. "47. When a person entere a temporary employment or gets engagsment as a contractual or casual worker and the engagementis notbased onaproperselecUon as rec^nised by^ the relevant ryles or procedure.heisawarepftheconsequencesQf tHe appojntment beihg 'iemporary, c^ual or contractual in nature. Such a persoricannot invoke the theory of legitimate expectation for being confirmed in the post When an appoinhnent to ttie post could be made only by following a proper procedure for selection and In cases concemed, In consultaUon wlth the Public Service Commission. Therefore, the theory of legitimate expectafion cannot be successfully advanced by temporary; contracfaial or casual employees. Itcannot also be held that the State has held out any promise whileengagingthesepersonseitherto continue them vrfier®Biey are or to make them permanent. The State cannot consfltuBonally make such a promis6,' tt is atso obvious that the theory cannot be Invoked to seeka posith/e relief of being made permanent in the post." 6) The observations made in Umadevi (supra) were quoted with approval in Official Liquidator vs. Dayanand and Ofters4. Their 4 (2008) 10 SCC 1 B!5aSH .;,:'^ Sf •••-••. ^.1 Lordships fijrther expfained about fte righte of the daily wagers and regularization. Para 70 reads as under: 70. The shift in tfte Court's approach became more prominent in A. Umarani v. Coojo. Soctetfes, decided by a three-Judge Bench, wherein it was hetd that the State eannot Invoke ArUcle 162 of the Constltutlon Tor regutarisation of the appointments made in violation of the mandatory statutory provisions." 7) The Supreme Court in Municipal Corpn., Jabalpur Vs. Om Prakash Dubey observed as under: "11. The question which, thus, arises for consideraCon, would be: Is Uiere any distinction befcween "irregular appointmenr and "itlegat appointment"? The distincSon between the (wo terms Is apparent. tn the eventthe appotntment is made in totat djsregard of the constitutional scheme as also the recruitment rules framed by the emptoyer, which is State wtthin the meaning of Articte 12 of the Constitutioh of tndia, the recruitment woutd be an lllegat one;whereas ttiere may be cases where, although, substanlial comptiance with the constituh'onat scheme as also the rutes has been made, the appointment may be irregular in the sense that some provisions of the rules might nothave been strtctly adhered to." 8) The impugned order dated 20-5-2008 whereby the petitioner was disengaged from service was not stigmatic, as his conduct with the other workers was not conducive. Even otherwise, once 'rt has been held thatthe appointmentofthe petitioner in the lightofjudgment in Umadevi (supra) is illegat and void ab imtto, the petitioner cannot continue in seririce. Engagement of daily wager is on day-to-day basis not for a particutar tenure or on permanent basis. Thus, reliance of Ihe petitioner on Uie judgmente of Ashwani Kumar (supra) and Hari Ram Maurya (supra) is not applicable, as the facte were entirely difierent and in case of Hari Ram Maurya(supra) the charge was ofbribery.whfchwasofserious nature. '9) . Applying the well setUed principles ofthe taw as laid down by Bie Supreme Court to the facte of the present case, the petitioner is not enCUed to any relief. 10) In view of fte foregoing, the petition is liabte to be and is accordingly dismissed. 11) ConsequenUy, all the pending applications stand disposed of. .^^ ^^z" {(2007)13cc 373} :j:.- • aa