Petitioners £1 AFa< \, HIGH COURT OF CHHATTISGARH : BILASPUR Writ Petition No. 31 04 of 2005 Atul Kumar PateL aged about 31 yeam, SIG Shri Jailal Patel, “m Raigarh", R!o Bajrangpara, Raigafh, Tahsi! & District Raigarh {CG}. Shakshi Gopal Surahi, aged about 28 years, Sfo Shri Nanhuram Surahi, “iTi Raigai'h", Rio viiiage Bhauradadar, Post Chhotekhaira, Tahsii Sarangarh, District Raigarh (CG). Umashankar Chaddhari, aged about 2? years, Sic Shri Kanhaiya Lai Chaudhari. “iTi Raigarh", R/o Chhatamura, Raigarh, Tahsi! & District Raigarh (CG). Sanjay Kumar Patel, aged about 24 years, S/o Shri Setram Patei‘ “iTl Raigarh", R/o Pandripani, Raigarh. Tahsii 8: District Raigarh (CG). Leela Ram Verman, aged about 25 years, Sia Shri Kali Ram Verma, “iTi Raigarh“, R/o Viilage Chisda, Block & Tahsil Jaijalpur, District Janjgir-C'nampa (CG). Bajrang Gadewal, aged about 30 years, Sfo Shri Lateram Gadewal, “lTi Raigarh”, R/o village Bhaisda, Pest Akaltara, Tahsil & District Janjgir—Champa (CG). Sangita Dongare, aged about 28 years, S/o Late Shankar Rao Dongare, “Woman lTl Raigarh". R/o Housing Board Colony, Raigarh, Tahsil & District Raigarh (CG). Vinod Kumar Divya, aged about 25 years, Slo Shri 8ukhlal Divya, “l‘l'l Patt‘nalgaon”, R/o village Taulipali, Post Phaguram, Tahsil Malkharoda, District Janjgir- Champa (CG). Juwel Kumar Lakra, aged about 29 years, Sfo Shri Amit Say Lakra, “lTl Patthalgaon”, R/o village Chidrapara, Raigarh Road, Tahsil Patihaigaon, District Jas‘npur (CG). 1 , , é ‘ Manoj Kumar Yadav, aged about 25 yeam, Slo Shri Janakdev Yadav, “iTl Ghargoda (Raigarh)", Rio Beirdadar, Malipara, Raigarh, Tahsil & District Raigarh (CG). i0 11 Chain Singh Patel, aged about 24 years. son of Shri Jagatram Patei, “lTi Sakti". Rio village Tayang, Post Jaimura, Tah. Kharsia, Distt. Raigarh. 32 Mahesh Kumar Pradhan, aged about 28 years, san of Shri Saheb Ram Pradhan, lTl Sariya (Raigarh), Ric village Sariya, Tah. Sarangarh, Distt. Raigarh. 13 Santosh Shukla, aged about 30 yeais, son of $hri Hajari Lai Shukla, lTi Sariya (Raigarh), Rio Baikunthpur, Raigem, Tah. and. District Raigarh (CG). Versus State of Chhattisgarh, through the Secretary, Depaitment of Higher & Technical Education. Mantralay, DKS Bhawan, Ralpur (CG). The Secretarv Man Powei' and Planning, lllAantralay, DKS Bhawan, Raipur (CG). Director. Employment and Twining, Mahila Polytechnic Campus, Bairan Bazar, Raipur. Joint Ditector (Training), Industrial Training Institute, Koni, Bilaspur (CG). (Writ Petition under Article 2261227 of the Constitution of lndia) SB: Hon’hle Mr. Satish K. Agnihotri, J. Respondents Present : Shri Roop Naik, counsel for the petitioners. Ms. Smita Ghai, Panel Lawyer for the State. ORAL ORDE (Passed on this 4 day of May, 2098) By this petition. the petitioners seek the following reliefs : “7.1 The respondents be directed to follow the prescribed rules of appointment i.e. Chhattisgarh Industrial Training (Non- Gazette) Service Recruitment Ruies, 1988 and they be directed to recruit empioyees under the said rules. V40 ?.2 The petitioners having been wci'ked for 5 years cr more may be considemd on preference in the recruitment ruies. 7.3 Any other relief, whieh the Hon’bie Court deem m and proper looking t0 the facts and circumstances, may aiso be passed. 7.4 Cost of the petition mav aiso be awarded r0 the petitioners.“ 2) The petitioners have not filed any documents indicating the date of their appointment, however, learned counsel for the petitioners placed reliance on an order (Annexure —- P12) where it is provided that the contract appointment shall be for a period till 31" July, 2005 on consolidated payment of Rs.4,500l- per month. 3) According to the teamed counsel appearing for the petitioners, the petitioners were appointed in the month of August, 2004 for a period till 31-7-2005. The term of appointment is mentioned at Annexure —- PI2 without specifying any date The appointment of the petitioners was up to 31 -7-2005. The petitioners were not entitled to any increments and any allowances. It is further clearly stated in clause 2 that the petitioners could not claim appointment on regular basis on the basis of this contract appointment. ln para 5.5 of the petition there is an raverment that the respondent authorities have issued an advertisement dated 1-6-2005. The advertisement for recruitment was published in a local newspaper, which was later on canceiled. No document in support of this averment has been filed. 4) Be that as it may, the petition is devoid of any document, vague, sketchy and does not disclose any cause of action. Even if the petitioners were appointed in thermonth of August, 2004 on contract basis till 31 4-2005 on consolidated pay, the petitioners have no right to continue on the post. The prayer of the petitioners that the respondent authorities be directed to grant regular appointment to them in accordance with the provisions of the Chhattisgarh Industrial Training (Non-Gazette) Service Recruitment Rules, 1988. The said prayer cannot be granted at this stage, as the petitioners have not made any application pursuant to any notification. So far as the appointment of the teachers is concerned, this is for the Government and no direction can be issued to the Government to fiil up the vacancies at the earliest. No doubt if the appointments are made by the State Government the same may be made oniy in accordance with the law and not otherwise, as such no direction is necessary to the State Government. 5) A ‘I ’\¥ - (2:306) 4 sec 1 \ \Q (7f, “43....Jf it is a contractual appointment, the appointment comes to an end at the and of the contract, if it were an engagement or appointment on daiiy wages or casual basis, the same would come to an end when it is discontinued. Similariy, a tempomry 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 wouid not be entitled to be absorbed in regular service or made permanent merely on theistrength of such continuance, if the origina! appointment was not made by foitowing a due process ofseiection 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 hoo employees who by the very nature of their appointment, do not acquire any right ..... 45. While directing that appointments, temporary or casual, be regutartsed 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 casua! 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 empioyment so as to eke out his livetihood and accepts whatever he gets. But on that ground atone, it would not be appropriate to jettison the constitutional scheme of appointment and to take the View that a person who has temporarily or casuaily 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 temporariiy,contractually or casually, would not be getting even that employment brings at least some succour 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 The Supreme Court in Secretary,. State of Karnataka and others Vs. Umadevi (3) and others‘, observed as under : \ Ir r, temporai'y 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 emphyment was accepted funy knowing the nature of it and the consequences flowing from it. ln other words, even while accepting the employment, the person concerned knows the nature of his employment. lt is not an appointment to a post in the reai sense of the term. The claim acquired by him in the post in which he is temporariiy 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 reguiar 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 theugh he was aware of the nature of the employment when he hrst took it up, is not (sic) one that wouid enabie the jettisoning of the procedure estabiisheo' by iaw for pubiic employment and would have to fail when tested on the touchstone of constitutionality and equality of opportunity enshrined in Articie 14 of the Constitution. 47. When a person enters a temporary empioyment or gets engagement as a contractual or casual worker and the engagement is not based on a proper selection as recognised by the reievant ruies or procedure. he is aware of the consequences of the appointment being temporary, casual or contractual in nature. Such a person cannot invoke the theory of legitimate expectation for being confirmed in the post when an appointment to the post couid be made only by foiiowing a proper procedure for selection and in cases concerned, in consultation with the Public Service Commission. Therefore, the theory of legitimate expectation cannot be successfuliy advanced by temporary, contractual or casual empioyees. it cannot aiso be held that the State has held out any promise while engaging these persons either to continue them where they are or to make them permanent. The State cannot constitutionally make such a promise. It is aiso obvious that the theory cannot be invoked to seek a positive relief of being made permanent in the post. 48....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. ..," 5) The, observations made in Umadevi (supra) were quoted with approvai in Official Liquidator vs. Dayanand and Others? Their Lordships further explained about the rights of the temporary empioyees and regularization. Para 70 reads as under : \\ 2 (2008) 10 soc 1 “70. The shift in the Court‘s. approach became more prominent in A. Umarani v. Coop. Societies, decided by a three-Judge Bench, wherein it was held that the State cannot invoke Article 162 of the Constitution for reguiarisation of the appointmente made in vioiaiion of the mandatory statutory provisions.” 7) if the appointment of the petitioner itsetf was iiiegal, the subsequent grant of regular pay scale and regularization does not change the status of the employee, The Supreme Court in Ashok Kumar Sonkar Vs. Union of lndia and others3 observed as under : “34. lt is not a case where appointment was irregular. If an appointment is irregular, the same can be regularized. The court may not take serious note of an irregularity within the meaning of the provisions of the Act. But if an appointment is illegai, it is non est in the eye of law, which renders the appointment to be a nullity." 8) The Supreme Court in Municipal Corpn., Jabaipur Vs. Om Prakash Dubey" observed as under: “1 1. The question which, thus arises for consideration, would be: is there any distinction between "irregular appointment" and “iilegai appointment”? The distinction between the two terms is apparent. In the event the appointment is made in total disregard of the constitutional scheme as also the recruitment rules framed by, the employer, which is State within the meaning of Article 12 of the Constitution of india, the recruitment would be an iliegal one; whereas there may be cases where, although, substantial compliance with the constitutionat scheme as aiso the ruies has been made, the appointment may be irregular in the sense that some provisions of the ruies might not have been strictly adhered to." 9) Applying the well settled principles of the law as taid down by the Hon’ble Supreme Court to the facts of the present case and for the reasons stated hereinabove, the petitioners are not entitled to any relief, as the petitioners were appointed on contract basis, the question of regularisation does not arise. 10) in view of the foregoing, the petition is tiable to be and is accordingly dismissed. Sd/— Satish K. Agnihotri‘, Judge Gowri 3 4 { (2007) 4 soc 54} { (2007) 1 scc 373}