4^ ^ HIGH COURT OF CHHATTISGARH : BILASPUR PETITIONERS WRIT PETITION IS\ N0.1277 OF 2009 1. Batbhadra Dhruv, S/o Shri Jodhi Dhruv, aged about 45 years, R/o village Jonka, Post Latwa, Baloda Bazar, Distt. Raipur (CG). 2. Seeta Ram Yadav. S/o Shri Parsu Ram, aged about 44 years, R/o village Chuhiya, Post Baloda Bazar, Distt. Raipur (CG). 3. Lok Nath Madavi. S/o Shri Baldoo, aged about 48 years, R/o village Baloda Bazar, Distt. Raipur (CG). 4. Dhaneshar Mahilange. S/o Jethu Ram, aged about 50 years, R/o viilage Baloda Bazar, Distt. Raipur (CG). 5. Smt. Deokali Bai, D/o Datari. aged about 44 years, R/o village Baloda Bazar. Distt. Raipur (CG). 6. Ramoo, S/o Fagu Ram Chauhan. aged about 47 years, R/o village Baloda Bazar, Distt. Raipur (CG). 7. Smt. Sakuntala, W/o Karna, aged about 42 years, R/o village Baloda Bazar, Distt. Ratpur (CG). 8. Vansi. S/o Sundar LaS Bharati, aged about 48 years, r/o. village Baloda Bazar, Distt. Raipur (CG). 9. Durga Bharati s/o. Sundar Lal Bharati. aged about 51 years, r/o. Village Baloda Bazar, Distt. Raipur (CG). 10. Manohar S/o. Gauri Sankar, aged about 49 years, r/o. village Baloda Bazar, Distt. Raipur (CG). 11. Smt Ganesiya Bai, W/o. Bal Govind, aged about 44 years, r/o. village - Baloda Bazar, Distt. Raipur (CG). 12. Manish s/o. Haresh, aged about 46 years, r/o. village Baloda Bazar, Distt. Raipur 13. Smt. Chandra Kala W/o. Badri. aged about 4 years, r/o. village Baloda Bazar, Distt. Rajpur (CG). •2-" RESPONDENTS 14. Milak Ram, S/o Nathu Ram Yadav, aged about 49 years, R/o village Kokadi, Post Baloda Bazar, District Raipur (CG). 15. Sant Ram, S/o Harlal Yadav, aged about 48 years, R/o village Kokadi, Post Baloda Bazar, District Raipurq (CG). 16. Salik Ram, S/o Lala Ram Verma, aged about 50 years, R/o village Jonka, Post Latwa, Baloda Bazar, District Raipur (CG). 17. Deo Charan, S/o Sadh Ram, aged about 51 years, R/o village Parsa Bhader, Baloda Bazar, District Raipur (CG). 18. Narsingh, S/o Sonai Yadav, aged about 48 years, R/o village Kokadi, Post Baloda Bazar, District Raipur (CG). Versus 1. State of Chhattisgarh, through Secretary, Urban Administration & Development, D.K.S. Bhavan, Mantralaya, Raipur (CG). 2. Commissioner, Urban Administration & Development, Raipur (CG). 3. Chief Municipality Officer, Municipal Council, Baloda Bazar, District Raipur (Writ petition underArticle 226 ofthe Constitution of India) Single Bench : Hon'ble Shri Satish K. Agnihotri, J. Present:- Shri Sunil Otwani, counset for the petitioners. Shri Arun Sao, Govt. Advocate for the State/respondents No. 1 and 2. ORAL ORDER (Passed on this 4tn day of March, 2009) With the consent of learned counsel appearing for the parties, the matter is heard finally. 2) By this petition, the petitioners seek a direction to the respondents to regularize their services as permanent gangmen from the date they become entitled for regularisation with all consequential benefits. 3) Learned counsel appearing for the petitioners contended that the petitioners have been working as daily wagers in the respondent Department since a long period and the nature of duties performed by them are similar to that of the regular employees. The petitioners have submitted -3 ?^?y^' representation before the respondent/authorities for regularisation of their services, but the same has not been considered and decided till date. Learned counsel appearing for the petitioners submits that the petitioners are daiming regularisation on the basis of parity, as the similarly situated employees have been regularized and the petitioners have been teft out. This amounts to violation of Article 14 of the Constitution of India and the same is discriminatory. In support of his contention, learned counsel placed reliance upon the decision of Supreme Court in U.P. State Electricity Board vs. Pooran Chandra Pandey & Others . 4) I have heard learned counsel appearing for the parties, perused the pleadings and the documents appended thereto. 5) The Supreme Court in Secretary, State of Karnataka and others Vs. Umadevi (3) and others2, observed in para 47 as under: "47. When a person enters a temporary employment or gets engagement as a contractual or casual worker and the engagement is not based on a proper selection as recognised by the relevant rules 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 could be made only by following a proper procedure for selection and in cases concerned, in consultation with the Public Service Commission. Therefore, the theory of legitimate expectation cannot be successfully advanced by temporary, contractual or casual employees. It cannot also 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 also obvious that the theory cannot be invoked to seek a positive relief of being made permanent in the post." 6) In Indian Drugs & Pharmaceuticals Ltd. Vs- Workmen, Indian Drugs & Pharmaceuticals Ltd.3, the Supreme Court observed as under : "34. Thus, it is well settled that there is no right vested in any daily-wager to seek regularisation. Regularisation can only be done in accordance with the rules and not dehors the rules. 35. In Surinder Singh Jamwal (Dr.) v. State ofJ&K'A was held that ad hoc appointment does not give any right for regularization as regularization is governed by the statutory rules." 1 2007 AIR SCW 6904 2 (2006)48cci 3 (2007) 1 SCC 408 -^ 7) Three-Judge Bench of the Supreme Court in Official Liquidator Vs. Dayanand and others4 while considering the decision in U.P. SEB Vs. Pooran Chandra Pandey5 rendered by a two Judge Bench of the Supreme Court observed as under: "76. The facts of U.P. SEB vs. Pooran Chandra Pandey were that the respondents (34 in number) were employed as daily-wage employees by the Cooperative Electricity Supply Society in 1985. The society was taken over by Utter Pradesh Electricity Supply Board in 1997 along with daily-wageemployees. Earlier to this, the Electridty Board had taken a Policy decision on 28-11-1996 to regularize the services of its employees working on daily wages from before 4-5-1990, subject to their passing the examination. The respondents moved the High Court claiming benefit of the policy decision dated 28-11-1996. The learned Single Judge of the High Court held that once the employees of the society became employees of the Electricity Board, there was no valid ground to discriminate them in the matter of regularization of service. The Division Bench approved the order of the Single Bench A two-Judge Bench of this Court dismissed the appeal of the Electricity Board. In para 11 of its judgment, the two-Judge Bench distinguished State of Karnataka Vs. Umadevi (3) by observing that the ratio of that judgment cannot be applied to a case where regularization has been sought for in pursuance of Article 14 of the Constitution. The two-Judge Bench then referred to State of Orissa Vs. Sudhansu Sekhar Misra, Ambica Quarry Works v. State of Gujarat, Bhavnagar University v. Palitana Sugar Mill (P) Itd, Bharat Petroleum Corpn, Ltd. V. N.R. Vairanamani and observed: (Pooran Chandra Pandey case, SCC pp, 98-99, para 16 & 18). "16. We are constrained to refer to the above decisions and principles contained therein because we find that often Umadevi (3) case is being applied by courts mechanically as if it were a Euclid's formula without seeing the facts of a 4 (2008) 10 SCC 1 5 (2007)118cc 92 '\£^r^ particular case. As observed by this court in Bhavnagar University and Bharat Petroleum Corpn. Ltd. a little difference in facts or even one additional fact may make a lot of difference in the precedential value of a decision. Hence, in our opinion, Umadevi (3) case cannot be applied mechanically without seeing the facts of a particular case, as a little difference in facts can make Umadevi (3) case inapplicable to the facts ofthat case. 18. We may further point out that a seven-Judge Bench decision of this Court in Maneka Gandhi v. Union of India has held that reasonableness and non-arbitrariness is part of Article 14 of the Constitution. It follows that the Government must act in a reasonable and non-arbitrary manner otherwise Article 14 of the Constitution would be violated. Maneka Gandhi case is a decision of seven- Judge bench, whereas Umadevi(3) case is a decision of a five-Judge Bench of this Court. It is well settled that a smaller Bench decision cannot override a larger Bench decision of the Court. No doubt, Manake Gandhi case does not specifically deal with the question of regularization of government employees, but the principles of reasonableness in executive action and the law which it has laid down, in our opinion, is ofgeneral application " . 77. We have carefully analysed the judgment of the two-Judge Bench (in Pooran Chandra Pandey case) and are of the considered view that the above reproduced observations were not called for. The only issue which fell for consideration by the two-judge Bench was whether the daily-wage employees of the society, the establishment of which was taken over by the Electricity Board along with the employees, were entitled to be regularized in terms of the policy decision taken by the Board and whether the High Court committed an error by invoking Article 14 of the Constitution for granting relief to the writ petitioners. The question whether the Electricity Board could frame such a policy was neither raised nor considered by the High Court and this Court. The High Couri: simply adverted to the facts of the case and held that once the daily-wage employees of the society became employees of the Electricity Board, they could not be discriminated in the matter of implementation of the policy of regularization. .Therefore, the two-Judge Bench had no occasion to make any adverse comment on the binding character of the Constitution Bench judgment in State of Karnataka v. Umadevi (3)." In para 92, it was made clear that the decision in Pooran Chandra Pandey (supra), may not be binding on the High Courts, Tribunals and other judicial forums. It reads as under: "92. In the light of what has been stated above, we deem it proper to clarify that the comments and observations made by the two-Judge Bench in U.P. SEB v. Pooran Chandra Pandey should be read as obiter and the same should neither be treated as binding by the High Court, tribunals and other judicial foras nor they should be relied upon or made basis for bypassing the principles laid down by the Constitution Bench." 8) Having regard to the facts situation of the case, the reliance placed by learned counsel appearing for the petitioners on the dedsion of the Supreme Court in Pooran Chandra Pandey (supra) is of no help to the petitioners, in vtew of the decision of the Supreme Court in Official Liquidator (supra). 9) Applying the well settled principles of the law as laid down by the Supreme Court to the facts of the present case, the petitioners are not entitled to any relief. 10) In view of the foregoing, the petition is liable to be and is accordingly dismissed. —— Gowri Sd/- Satish K. Agnihotri Judge