IS ^..;!;!t.;s;ste . ^i;';,' ipj ^ ^y^J' /y\ ^' ^pBSSiy^^^ Af COURT OF : WRITPETiTSON N0.6( s Pawan Chandrakar, aged 44 years, S/o Shri J.R. Chandrakar, R/o yillage Borid, Post Rasni, Tehsil Arang, Dlstt. Raipur (CG). State of'Chhattisgarh, through Secretary, Iducation, Mantralaya, D.K.S. Bhawan, Raipur, Distt. Raipur (CG). ioner, Directorate Public :ducatlon, Raipur (CG). 3. District Education Officer, Raipur (CG). (Writ Petition under Article 226 of ths Constltution of India) jle Bench : Hon'ble Shri Satish K. Agnihot", J. rt Chandresh Shrlvastava, counse! for th< .. Smita Ghai, Panei Lawyer for the State. atitioner (Passed on this 20th day of Aprii, 2009) By this petition, the petitioner seeks a direction to the respondent authorities to regularize the services of the petitioner as Principai with al consequential benefits. 2) Learned counsel appearing for the petiSioner contended Shat the petitioner has been appointed as Lecturer in Mahatma Gandhi Higher Secondary Sehooi, Reewa (Lakhauli) at Raipur by order dated 27-6-1986 (Annexure - P/1) passed by the Chairman, Chhattisgarh Vikas Parisad, Ralpur, on temporary basis. According to the petitionsr, after retiresTient of one Shri P.L. Karre, the petitloner v/as directed to take over ths chargs of Principa!. Thereafter, S'ne aforesaid school was taken over by the State w.e.f. 15-12-1988 and several new posts were created. VAF^m^ Learned counsel further contended that tha petitioner is having requisite quaiification and experience on the post of Principal and the petitioner approached the respondent authorities for his regularisation, but tiil date no action has been taken, 3) I have heard tearned counsei -appearing for the parties, perused the pleadings and the documents appended Shereto. —'L' ^) ^ms^ The Supreme Court in Secretary, of Karnataka and < Umadevi (3) and others , observed as under: "43.....If it is a contFactual appolntment, the appointment comes to an end at the end of the confract, If it were an engagement or appointment on daily wages or easual basis, the same wouid eome to an end when IS Is discontlnued. Slmiiarly, a ternporary employee could not ciaim to be made permanent on the expiry of his term of appointment. !t has aiso to be clarified that merely because a4emporary smployee or a casual wage workar is continued for a time beyond the term of his appointment, he would not be entltted to be absorbed in regutar sen/ice or made permanent, merely on the strength of such continuance, if the original appolntment was not made by foilowing a due process of selection as envisaged by the reievant rutes. It is not open to the court to prevent reguiar recruitment at the instance of temporary employees whose period of empioyment has com®to an end or of ad hoc empioyees who by the ve"y nature of their appointmont, do not acquira any right..... 45. Whiie directing that appointments, temporary or casual, be rsgularised or made permanent, the courts are swayed by the fact that She person concerned has worked for some time and in some cases for a conslderable iength of tline. !t is not as if the person who accepts an engagement either temporary or casual in nature, is not aware of the nature of his He accepts the empEoyment with open IS may be true that he is not in a position to bargain - not at arm's Eength - since he might have been searching for some empioyment so as to eke out his liveiihood and accepts whatever he gets. But on that ground alone, it would not be appropriate to jsttison the constitutional scheme of appointmant and to ake 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 publlc appointment whlch is not permissibls. If the court wsre to void a contractual empioyment of thls nature on the ground that ths parties were not having equal bargaining power, that too would not enabie the court to grant any reiief to that employee. A rotai embargo on such casual or temporary employment is not possibia, givan the exlgencles of admlnistratlon and if imposed, would only mean that some people who at teast get employment temporarily, conSractuaily or casuaiiy, wouid not be gettlng even that employment brings at teast some succour to them. After atl, innumarable citlzens of our vast country are in search of employment and one is not compelied to accept a casual or temporary employment if one is not inclined (2006) 4 S;rkr* '< E^WT^ I Hr- 3- .^•^••i.^^^S;?^-^ ^•B^'SSSs^ to go in for such an empioyment. !t is in that context that one has to proceed on the basis that the empioyment was accepted fu!ly kncwing the nature of it and the consequancos flowing from tt. In other .words, even whife accepting the employment, the person concerned knows the nature of his employment. It Is not an appointment to a post in the reai sense of the term. The claim acquired by him in the post in whioh he is temporarily empioyed 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 regular appointments to avallable posts in the servlces of the State. Ths argument that since one has been working for some tlme In the post, it wlil not be just to discontinue him. even though he was aware of the nature of the emptoyment when he first took it up, is not (sto) one that would the jettisonlng of the preoedure astablishad by taw for publio employment and would have to fail when tested on the touchstone of constitutionality and equaiity of opportunlty enshrined in Article 14 of the Constitution. 47. When a person enters a temporary employment or gets engagement as a contractuai or casuai worker and She engagement is not based on a proper selecilon as racognised by the reievant rules or procedure, he Is aware of the consequences of ihe appointment being temporary, casua! or contractuat In nature. Sueh a oerson cannot inyoke the theory of legitlmate expectation for belng confirmed in the post when an appointmsnt to the post eouid be made oniy by foliowing a proper procedure for se!ectlon and In cases concemed, tn consuiSation vyith the Pubiic Service Commission. Therefore, the theorv of iegltimate expectatlon cannot be successfuliy advanead by temporary, contractual or casual employees. !t cannot a!so be heid that the State has heid out any promise while engaging these persons either to continue them where they are or to make em permanent. The State cannot constituttonaily make suc-h a promise. It is also obvious that the theory cannot be invoked to seek a positlve rellef of being made permanent in the post. 48....There is no fundamenta! right in thoss who have ieen 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 approval in Official Liquidator vs. Dayanand and Others . Their Lordships further expiained about the rights of the temporary employees and reaularization. Para 70 reads as under: (2008)105cci •^ ^Ai^i.-,........ ^^;S^?;'^*S :i-:2-:^ ],;"-]l?;:":'iSjSgEJsS ^ffS "?e?'^&~j iMa«i-ss<->t!:Sg"aM? ^•'i'?^^^'^^^'''1''1'^' ^s:!*;;.^-?^^'1'1'1 "70. The shift in the Court's approach became more prominent in .4. Umarani v. Coop. Societies, decided by a three-Judge Bench, whereln It was held that the State cannot invoke Article 182 of tha Constitution for -regularisatlon ofthe appointments made In vlolatlon ofthe mandatory statutory provisions." 6) If the appointment of the petitioner itself was iitegal, the subsequent grant of regular pay scaie and regularization does not change the status of the employee. The Supreme Court in Ashak Kumar Sonkar Vs. Union of india and others observed as under: "34. it is not -a case where appointment was irregular. !f an appointment is irregular, the same can be reguiarieed. The court may not take serious note of an irregularity within the maaninfl of the orovisions of the Act. But if an apposntment Is illegal, it is non est in She eye of law, whlch renders the appointment to be a nullity." 7) The Supreme Court in Municipal Corpn., Jabalpur Vs. Om Prakash Dubey obsen/ed as under : "11. The question which, thus, arises for consideration, would be: Is there any distinction betwee," "irregular appointmenr and "illegai appointment"? The distinction betwsen the two terms is apparent. In the avent the appointment is made In total disregard of the Gonstitutional scheme as also the recruitment mles framed by the empioyer, which is State within the meaning of Article 12 of the Constitution of India, the recruitment would be an iilegal one; whereas there may be cases whsre, aithough, substantiai compliance with the constitutlonai scheme as a!so the rules iLias been made, the appointment may be irreguiar in the sense that some provisions of the ruies might not have been strictly adhered to." 8) Applying the welt settted principles of the law as iaid down by Hon'ble Supreme Court to the facts ofthe present case, the petitioner is not entitled to any rellef, as the pstitioner was appointed on temporary basis, the question of regularisation does not arise. 9) In the case on hand, the petitioner was never appointed as Principai through proper selection process. He w-as initially appointed as in-charge Principai and thereafter, he continued for some tlme in the same capaciSy, Since the petiiioner was never appointed in accordance with law, he cannot claim a right to the post of Principai as wel! as reguiarisation thereon. 10) In view of the foregoing, the petition is iiable to be and is accordingty dismissed. 1112007) 4 SCC 54} L'TO" Sd/- Satish K. Agnihotri Judge