g aldmg idiw g a5 Ev. m 2o. Qmo\Noom m.w. WET “a? $5 g ‘_. Qmwdgga. M.AE ma I 9%. “Ednawgwiwzg gliwg 35 xx N £wE. “3A § W43 Eg 31 a»? E5 i? Ewahdd Ewg g4? amid N8 m~u§£E§_ §§mw§AAww£§§§§mwT WK HIGH COURT OF CHHATTISGARH : BILASPUR WRIT PETlTlOMS INO.6730/2009 PETITIONER Ashok Versus State of C (Writ Petition under Article 226/227of the Constitution of lndia) in [e Bench: Ho S n Present :- Shri S. K. Kushwaha, counsél for RE Shri N. Naha Roy, Panel Lawyer for the State‘ (Passed on this 1 8 day of November, 2009) ORAL ORDER The petitioners, by this petition, seek d respondent authorities to regularize services been working on daily wages on the post of respectively as is evident from Annexure PM fo respondent No.2-Municipai Councii, Chirmiri, Di (2) The case of the petitioners are that since they have been working for a long period with the respondent No.2-Municipai Councit,‘ Chirmiri, District Korea, they deserve to be regularized by the employer. (3) I have heard learned counsel appearing for the parties, perused the pleadings and the documents appended thereto. Kalsha and another hhattisgarh and another the petitioners. irection from this Court to the of the petitioners who have “Safai Karmchari“ and “Mali” r the last about 9 years in the strict Korea. Qlll" lt is evident that the petitioners have not filed the copy of the appointment order. lndisputably, there was no proper selection by inviting the applications from the eligible candidates by issuing the advertisement. The appointmen (4) The Supreme Court in Secretary, State Umadevi (3) and others1, observed as under: "43.....lf it is a contractual appointment, the appointment comes to an end at contract, if it were an engagement or appointment on daily wages or casual basis, the same would a come temporary to an end employee when it could is discontinued. not claim to Similarly, be made ‘ (2006) 4 soc 1 t of the petitioners itself were illegal and not in accordance with the constitutional scheme of appointment. of Karnataka and others Vs. the end of the “1’ /‘7 permanent on the expiry 5f his term of appointment. lt has atso 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 r made peranent, erely on the strength of such continuance, if the original ppointment was not made by ollowing a clue process of selection as envisaged by the relevant les. It is not open to the court to prevent regular recruitment at he instance of temporary employees whose period of employment has come to an end or of ad hoc employees who by the very nature of their appointment, do not acquire any right..... 45. While directing that appointments, temporary or casual, be regularized or made permanent, the courts are swayed by the ft that the person concerned has worked fr some time and in some cases for a considerable length o time. It is not as if the person who accepts an engagement either temporary or casual in nature, is not aware of the nature o his employment. He accepts the emplyment with open eyes. lt may be true that he is not in a position to bargain — not at arm’s iength -— since he might have been searching or some employment so as to eke out his livelihood and accepts whatever he gts. But on that ground alone, it would not be appropriate to jettiso the constitutional scheme of appointment and to take the View that a person who has temporarily r casually got employed should be directed to be continued permanently. By doig so, it will be creating another mode of public appointment which is not permissible. lf 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 suc casual or temporary employmen 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 brings, at least some succour to them. After all, innumerable citizns f our vast country are in search of employment and one is not compeiled to accept a casual or temporary employment if one is not inclined to go in for such an employment. lt is in that context that one has to proceed on the basis that te employment was accpted fully knowing the nature of it nd the consequences flowing from it. ln other Words, even while \‘% o m m a f ru t ac o f f o f e n o n h t e o h e a M 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 ciaim 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 enabie the giving up of the procedure estabiished, for making reguiar appointments to avaiiable 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 hrst 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 opportunit enshrined in Article 14 of the Constitution. 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. V 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...” \‘A Slll" :A (5) The observations made in Umadevi (supra) were quoted with approval in Official Liquidator vs.‘Dayanand and Othersz. Their Lordships further explained about the rights of the temporary employees and regularization. Para 70 reads as under: 2 (2008) 10 soc 1 y {a . “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 Alticle 162 of the Constitution for regutarisation of the appointments made in vioiation of the mandatory statutory provisions." (6) if the appointment of the petitioners itself were iiiegai, 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 India and others3 observed as under: “34. it 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 illegal, it is non est in the eye of law, which renders the appointment to be a nullity." (7) The Supreme Court in Municipal C Dubey“ observed as under : “11. The question which, thus, arises for consideration. would be: ls there any distinction between “irregular appointment" and “iliegal appointment”? The distinction between the two terms is apparent. ln 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 lndia, the recruitment would be an itlegal one; whereas there may be cases where, although, substantial compliance with the constitutional scheme as also the rules has been made, the appointment may be irregular in the sense that some provisions of the rules might not have been strictly adhered to.“ (8) Applying the wen-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, as the petitioners were appointed on daity wages basis and, as such, no relief as prayed for to reguiarize the petitioners can be granted. (9) \x_k‘ Sd/- Satish K. Agnihotri Judge M“ ?{(2oo7) 4 scc 54} t { (2007) 1 soc 373} b / (IIIV m orpn., Jabatpur Vs. 0m Prakash ln view of foregoing, the petition is liabte to be and is hereby dismissed. .