H— - / 3") GANG?) g IN THE HIGH CGJRT GF JUDICATURE OF cmTl$GARH-> H33 BILA$PUR w.P.No. I 26,? “1.200% / pmmxmmr : Stub. Buihiyarin Bai ‘ ‘t§/O Law Chh%e Lal Age§ abaut 55 years, R/0.. Tikara?ara Raipu'c (C .G.) VERSUSv @spmwm‘sh 1) State o£ Chhattisga‘r T‘mough, Secretary Departmeni: of High Educatisn D.’K.S.= Bhawan. Raipur (C‘ G.) Directar, Higher Educatisn Department, Raipur (C .G.) Principal, Gavin D.B. Post Graiuate Girls College, Raipur (C.G.) Commissioner, Higher mma-bian Department Raipux (C.G.:) /’ mm; pml’rION UNDER ARTVICLEA 226%. 2.‘2_tz’-_‘ GE THE» cowscr‘rrmxcw OE ’Im'lA . 5%. h / Single Bench: Hon’ble shti Satish K. Agnihoui, J. ‘ W. P. No. 1857 of 2004 Petitioner : Smt. Budhiyarin Bai Versus ’ Respondents : State of Chhattisgarh 8:. another . Shri Y. C. Shauna, Advocate with Shri S. S. Mishra, Advocate for the petitioner. Sbri Arun Sao, Govt. Advocate for the Iespondeuts. ORDER ( 30*“ Novembet, 2006) / 1. The petitioner was appointed as Hostel Servant (hostel fund) on 1.5.1984. Themafter the services of the petitioner we1e regularized and she was pmmoted on the Vacant Ipost of Hostel Servant (contingency fund) w.e.f. 1.6. 1989 in the pay scale of Rs. 725- 10—735- 855- 15-900 vide order dated 27.5.1989 (Annexure A/ 1). The services of the petitioner was terminated vide order dated 26.2.2000 (Annexure A/4) pursuant to the direction issued by the ./ Commissioner, Higher Education vide letter dated 3.2.2000, issued in compliance of the order dated 29.1.2000 passed by the General Administration Department. 2. The petitioner by this petition seeks quashing of the order dated 26.2.2000 and consequential henetits. 3. I have heard learned counsel appearingior‘the parties and perused the record. 4. A perusal of the minutes of the meeting of the Committee dated 26.2.2000 reveals that the appointment of the petitioner was not made in accordance. with lewv and it was dehors the consn‘tutional // scheme. The appointment ofa’the petitioner was not through the< advertisement or by inviting any application thmugh any other means from all eligible candidatzs. ‘It is well settled principle of law that the daily wagers, temporary or ad hoe employees have no right to the post seeking regularization and grant of mgular pay scale, if their appointments were dehors the constitutional scheme or the rules made under the proviso to Article 309 of the Constitution of India. In the case of Secretary, state of Karnataka anti others Vs. Umadevi (3) and othersl, the Supreme Court has laid down clear enunciation of law which was followed later on in various decisions by the Supreme Court. Some am Accounts 0mmr (AM A.P.SRTC and others vs. P. Chandra Sekham Rao and othersz, Surlndcr Prasad Tlwarl vs. U.P. Rajya Krishi Utpadan Mandi Parlshad and othersé, Nagar Mahapalika [now Municipal Comm) vs. state of U. . and others‘ and (LP. State Road Transport Cotpor ation vs. Man Singh5. In the case of Secretary, state of Karnataka and others (Supra), the Supreme Court observed as under :- “45. W'hile directing that appointments, temporary or casual, be regulan'sed or made permanent, the courts are swayed by the fact that the person concerned has worked for some time and in some wees for a considemble length of time. I! is not as if the person who accepts an engagement either temporary orpasual in nature, is not aware of the nature of his employment He aooepts the employment with open eyes. It may be true that he isowt in a position to bargain — not at arm’s length — sinoe fae‘amight have been searching for some employment so as to eke out his livelihood 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 ryg/Q that a person who has femporcm'ly or casually got empi‘oyed slwuid be directed to be continued permanently, By deing so, it will be creating another mode of public appoimment which is not permissible ” “4 7. When a person enters a temporary employment or gets engagement as a oontractual 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 alrmot invoke the theory of legitinrmte 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 " With Iegatd to regularization of the post, the appointment was not made in accordance with law. The appointment of the petitioner is a back door appointment, which does not have any legal sanction. The Supreme Court in the case of State of M.P. and others Vs. Yogesh Chandra Dubey and others‘ obselved in para 9, as under: - “9‘ It is neither in doubt nor in dispute that the respondents were not appointed in terms of the statutory rules. Their services were taken by the ogicers only to meet the exigencies of situation No post was sanctioned Vacancies were not notified It is now trite that a State within the meaning of Article 12 of the Constitution of Indid while offering public employment, must comply with the constitutional as also statutory requirements. Appointments to the posts must be made in terms of the existing rules. Regulan‘zation is not a mode of appointment. If any I 1b _ I 1b _ I " remuitmeht‘is' made by way bf regbdan‘zafiarg the same ‘ would mean a back door appointment, which does not have any legal sandion 9. In the present case on hand, admittedly, the appointment of thc petitioner was not in accordance with law, Which was Iegularized order dated 27,5. 1989 She was subsequently, by (Annexure A/ 1). granted payment of daily wagers from contingency fund and the same was treated as regularizah'on/promotion on the basis of the recommendation of the selection committee. Since, the initial appointment of the petitioner was not in accordance With law and would back door subsequently, Iegularization/promotion mean a appointment, without having any legal sanction, therefore, the regularizationlpromotion is not a mode of Iecmitment. As a result and for foregoing reasons, the writ petition is dismissed. No order as to costs. u ‘1 Sd/— 1i Satish K. Agnihotri 1 (2006) 4 soc 1 Judge 2 V (200$) 7 SCC 488 3 (2006) 7 SCC 684 4 2006 AIR SCW 2497 5 2006 AIR SON 5159 6 (2006) a sec 67