1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR :: O R D E R :: Babu Lal Vs. State of Rajasthan & others S.B. CIVIL WRIT PETITION NO.7057/2005 Date of Order: 21st January 2008 PRESENT HON'BLE MR. JUSTICE DINESH MAHESHWARI Mr. Vivek Shah, for the petitioner. Mr. Rameshwar Dave, Dy.G.A., for the respondents. … BY THE COURT: In this writ petition filed on 08.12.2005, the petitioner, stating his age at 26 years, himself being a disabled person with 40% disability in his right leg, having been employed as a Cook (Langri) in the Police Mess at Pali, and having been denied regularisation of service; and alleging oral termination of service, has prayed for the following relief:- ''It is, therefore, most respectfully prayed that this writ petition may kindly be allowed with costs and by issuance of an appropriate writ, order or direction the respondents may please be directed to regularise the services of the petitioner. Any other order favorable to the petitioner may kindly also be passed.'' 2 The petitioner has averred that by way of this petition, he endeavours to bring about the ill-treatment meted out to him though he was in service with the Department for about ''14 to 15 years''. According to the petitioner, in his early teens he was employed on temporary basis in Tea Canteen of the Police Department at Pali ‘somewhere prior to the year 1994’ and was paid Rs.300/- per month that was increased to Rs.350/- upon audit objection and further to Rs.375/- per month; that in the year 1999 he was employed as a Cook (Langri) in the Police Mess on a fixed salary of Rs.968/- per month and after some increments he was paid Rs.1200/- per month in the month of September 2005. The petitioner has stated that the Dy. Superintendent of Police, Pali issued one character certificate on 21.08.2002 (Annex.4) to the effect that he had been working in the Canteen and Mess for the past 10 years and carrying a good character. The petitioner has averred that after almost 10 years of service with the Police Department as Canteen Boy and Cook, he came to know that one Cook Shri Ramchandra was retiring and, being fully trained and for being disabled, he moved an application to the Ministry of Home Affairs in the year 2002 that was forwarded to the respondent No.3, Superintendent of Police, Pali who in turn sought information as to whether the petitioner was working in the Tea Canteen 3 and the Mess for the past 10 years as temporary cook or daily wages cook. The petitioner has further averred that the Office of Commissioner for Persons with Disabilities (‘the Commissioner’) under its communication dated 02.09.2003 (Annex.5) requested the respondent No.3 to regularise his services; that the respondent No.2 Inspector General of Police, Jodhpur Range, Jodhpur under his communication dated 18.10.2003 (Annex.6) asked the Superintendent of Police, Barmer to initiate proceedings for appointment of the petitioner on the post of Cook/Langri; and that under the communication dated 17.06.2003 (Annex.7) from the Office of Chief Minister also, the respondent No.3 was asked to initiate necessary action. The petitioner has stated that in spite of such instructions and directions, no action was taken for his appointment on the post of Cook. According to the petitioner, in the month of February, 2004 he came to know about the requirement of Cook in the Police Lines at Pali on regular basis and hence he made a representation to the respondent No.2 on 26.02.2004 to appoint him under disabled quota and the Office of Commissioner again requested the respondent No.2 under a letter dated 19.07.2004 (Annex.9) to consider the case of the petitioner for regularisation as it was not just and proper not to 4 consider his case in spite of his working with the Department for about 15 years; that even the Department of Social Welfare took up the matter with the respondent No.2 for regularising services of the petitioner under the communication dated 26.08.2004 (Annex.10); that the Office of Chief Minister also informed the petitioner under the communication dated 25.10.2004 (Annex.11) that the application for regular appointment on the post of Langri has been forwarded to respondent No.2 for necessary action; and that the Nodal Officer (Disabled Persons) requested the respondent No.3 to take action for appointment of the petitioner under the communication dated 15.12.2004 (Annex.12). The petitioner has pointed out that by the letter dated 20.02.2005 (Annex.13) Social Welfare Department informed him that there were five substantive posts of cook and presently there were no vacancies; and that under the letter dated 26.04.2005 (Annex.14) the respondent No.2 informed him that appointment of disabled persons on the vacant post of Class IV employee was under consideration with the Police Headquarters and he would be informed upon initiation of such proceedings. The petitioner has alleged that before he was considered for regularisation, the respondent-Department 5 without any notice orally terminated his service on 02.10.2005 particularly because he refused to sign on the payment voucher of September 2005 that was prepared in the name of one Mohanlal. The petitioner has also alleged that even in the past, he was forced to sign on the payment vouchers drawn in the name of other persons and has alleged that the Department did not show him on continuous service in order to weaken his legal claim for regularisation; and that such an action amounts to unfair labour practice. The petitioner has further stated that on being terminated from service, he made a representation to the Home Ministry somewhere on 25.11.2005 (Annex.15) and requested for re-appointment as himself and his wife both are disabled persons and are unable to arrange both ends meet; and before that, the Commissioner once again requested the respondents on 19.10.2005 (Annex.16) to consider the case of the petitioner for regularisation of his services as a Cook. Questioning the action of the respondents in terminating his services and their inaction in not giving him appointment on regular basis, the petitioner has taken the grounds, inter alia, that having worked for fairly long period, he has a right to be considered for regular appointment; that the vacancy existed in the year 2002 on retirement of one of the cooks but his case was not considered in spite of repeated 6 correspondence from various authorities to the respondents Nos.2 and 3, and some other persons were employed that amounts to hostile discrimination; that after utilising his services for more than 10 years, the action of terminating services is against the provisions of Article 21 of the Constitution of India; that the respondent-Department was duty bound to consider the case of the petitioner in terms of Rule 6, 17-B and 17-C of the Rajasthan Class IV Services (Recruitment & other Service Conditions) Rules 1963; that the respondent-Department has adopted unfair labour practice in not regularising services of the petitioner and has kept on exploiting him by not making payment as prescribed under the Minimum Wages; that his having been continued on the post of Cook for a long period shows that there was permanent need of the work of Cook and the petitioner fulfilled all the requirements as envisaged under the Rules of 1963; that in spite of the fact that in the month of April 2005 the petitioner was informed by the respondent No.2 that appointments under the disabled quota for Class IV employees was under consideration but until September 2005 nothing further was done in that regard and then his services were terminated arbitrarily; that the respondents entered into wrong practice of getting payment vouchers signed by the petitioner prepared in the name of other persons and refusal to sign such vouchers 7 cannot be the ground for oral termination of services. The petitioner has also submitted that it was incumbent for the respondents to have considered the facts that himself and his wife are disabled persons and by termination of his services, both of them would be deprived of the source of livelihood offending against the scheme of Constitution of India; and, according to the petitioner, there was no hope for further action when the respondents authorities have ignored the directions of various higher authorities including the Office of Chief Minister and nothing was initiated for regularisation of his services. On these submissions and contentions, the petitioner has prayed for the relief of regularisation of services, as noticed at the outset. The respondents in their reply have denied the averments of the petitioner working as part time cook in the canteen for the last 15 years and it has been asserted that the petitioner was initially employed for washing and cleaning in the year 1996 at the rate of Rs.350/- per month and on 26.06.1999, on his application, the petitioner was appointed as a part time cook in the Mess at Police Lines, Pali. While denying that the petitioner has worked regularly, the respondents have alleged that by the communication dated 08.09.2003 the Dy. Superintendent of Police informed that no post of cook was lying vacant at Police Lines, Pali and it has 8 been asserted that for non-availability of post of cook the petitioner could not be given appointment. It has also been suggested that one post of cook was vacant at Government Bangar Hospital, Pali but not at Police Lines. While not denying the correspondence as referred by the petitioner, the respondents have of course denied the averments that services of the petitioner were terminated and it has been alleged that he left voluntarily. With reference to the facts of the case, learned counsel for the petitioner submitted that fundamentally the petitioner seeks consideration of his case for regularisation particularly with reference to the directions and propositions already stated by the authorities concerned. Learned counsel, however, made a fervent appeal for sympathetic consideration for the petitioner and his wife both being disabled and illiterate persons and having no other source of livelihood. Learned Government Counsel opposed with the submissions that the petitioner has no legal right to claim and has referred to the decisions of Hon'ble Supreme Court in the case of Post Master General, Kolkata and others Vs. Tutu Das (Dutta): (2007) 5 SCC 317 and M.P. Housing Board and another Vs. Manoj Shrivastava: (2006) 2 SCC 702. Having given a thoughtful consideration to the matter, this Court is of opinion that no legal right existing in the 9 petitioner, no relief could be granted in the extra-ordinary writ jurisdiction. In the first place, noticeable it is that even the factual statement as made by the petitioner about length of his services does not inspire confidence. The petitioner has filed the writ petition on 08.12.2005 stating his age at 26 years. It has been suggested that the petitioner was working for about 15 years. Taking such averments on their face value would mean accepting that the petitioner was on job from about 11 years of his age. Such a position does not appear plausible nor there is any corroborative material on record in that regard. The respondents have denied such assertion and have pointed out that the petitioner was initially employed in the year 1996 and then was appointed as a part time cook on his application in the year 1999. The petitioner has not put such averments of the respondents into dispute by stating any replication and there appears no reason not to accept the submissions made by the respondents that the petitioner was engaged as a part time cook only in the year 1999. It may be pointed out that the certificate (Annex.4) issued by the Dy. Superintendent of Police on 21.08.2002 states about the petitioner working for 10 years but such certificate cannot be taken as conclusive evidence of the petitioner being in job for 10 years before 21.08.2002. The certificate does not even 10 refer to any record examined by the said authority. It is expected of the authorities concerned to properly examine the record and be discreet in issuance of such certificates. Be that as it may, no rights could be considered available only on the basis of such cursory certificate. Once the facts concerning engagement of the petitioner are taken to the effect that he was working only as a part time cook and that too only from the year 1999; and coupled with this are taken the relevant factors that it is not the case of the petitioner that he was working against a regular post or that he was recruited in terms of the relevant Recruitment Rules, it is difficult to accept his claim for regularisation. In the case of Tutu Das (supra), the Hon'ble Supreme Court has reiterated the principles that no appointments should be made contrary to the statutory provisions governing recruitment or the rules framed in that behalf under a statute or proviso appended to Article 309 of the Constitution of India; and the Hon’ble Court has pointed out that what was considered permissible on a given point of time keeping in view the previous decisions of the Supreme Court then operating, does no longer hold good. The Hon’ble Apex Court has specifically pointed out that no regularisation is permissible in exercise of executive powers conferred under Article 162 of the Constitution of India if the appointment had 11 been made in contravention of the statutory rules. In view of the consistent decisions of the Hon'ble Supreme Court on the point particularly after following the Constitution Bench Decision in the case of Secretary, State of Karnataka Vs. Uma Devi: (2006) 4 SCC 1, this Court is clearly of opinion that the petitioner has no right to claim regularisation on the basis of his having worked as a part time cook; and else, it seems that the respondent No.2 Inspector General of Police, Jodhpur Range, Jodhpur had already stated (vide Annex.14) that filling up of Class IV Employee posts from handicapped quota was under consideration and the petitioner would be informed whenever such proceedings would be undertaken. It is not the case of the petitioner that respondents have made any regular recruitment thereafter and yet have not considered his case. In this view of the matter, while not pronouncing on any other aspect, suffice is to say for the present purpose that the claim for regularisation as made by the petitioner in this petition cannot be countenanced. The other part of the averments as taken in the writ petition, of earlier some person having been employed without consideration of the case of the petitioner, remains bereft of particulars. Yet further submissions, of the petitioner having been asked to sign the vouchers drawn in the name of other 12 persons are also vague and uncertain nor the petitioner has shown having raised any such grievance in the past or having made a proper representation in that regard. The submissions regarding oral termination of services are also not free from doubt and if at all to be considered, would give rise to such disputes of fact that cannot be determined in the writ jurisdiction of this Court. In any case, the petitioner has essentially prayed for the relief of regularisation in this writ petition; and the same, as noticed above, cannot be granted. The petition is, therefore, dismissed. There shall be no order as to costs. (DINESH MAHESHWARI),J. MK