* IN THE HIGH COURT OF DELHI AT NEW DELHI 33. + W.P.(C) 1349/2011 VIJAYPAL Petitioner Through: Mr. A.K. Soni, Advocate versus UOI AND ORS Respondents Through: Mr. Ravinder Agarwal, Mr. Nitish Gupta, Advs. for UOI + ^^^.(0)1350/2011 r VIJAYYADAV Petitioner ^ Through: Mr. A.K. Soni,Advocate versus UOI AND ORS Respondents Through: Mr. M.K. Bhardwaj, Ms. Priyanka Bhardwaj, Advs. CORAM: HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE SANJIV KHANNA ORDER w' % 01.03.2011 Heard Mr. A.K. Soni, learned counsel for the petitioners and ^ Mr.RavinderAgarwal and Mr. M.K. Bhardwaj, learned counsel for the respondents. These two writ petitions being inter-connected were heard together and are disposed of by a singular order. Digitally Signed By:AMULYA Certify that the digital file and physical file have been compared and the digital data is as per the physical file and no page is missing. Signature Not Verified Invoking the jurisdiction of this Court under Articles 226 and 227 of the Constitution of India, the petitioners have called in question the legal justifiabilityof the order dated 9"^ November, 2010 whereby the Central Administrative Tribunal, Principal Bench, New Delhi (for short 'the tribunal') in TA No. 82/2010 has expressed the view that the petitioners are not paid from the public fund and, therefore, they were not civil servants to attract the jurisdiction of the tribunal. Ordinarily we would have adverted to the issue of maintainability but the factual score does not so warrant inasmuch as both the petitioners were appointed as casual workers in the year 1994 and their services were terminated in the year 1999. They challenged the order of termination before this Court but the writ petitions were transferred to the tribunal. It is not in dispute that no status was conferred by the respondent or the employer on the petitioners. Thus they remained as casual workers. The initial appointments were not on the basis of any selection. On a perusal of the record, it is manifest that though no order of termination was passed, yet they were not allowed to work. Be that as it may, as we perceive the real grievance is the claim of regularization. The Constitution Bench in Secretary, State ofKarnataka and Others versus Uma Devi and Others, (2006) 4 SCC 1 has opined thus:- "43. Thus, it is clear that adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution, a court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution. Therefore, consistent with the scheme for public employment, this Court while laying down the law, has necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee. If it is a contractual appointment, the appointment comes to an end at the end of the contract, if it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued. Similarly, a temporary employee could not claim to be made permanent on the expiry of his term of appointment. It has also 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 or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules. It is not open to the court to prevent regular recruitment at the 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. The High Courts acting under Article 226 of the Constitution, should not ordinarily issue directions for absorption, regularisation, or permanent continuance unless the recruitment itself was made regularly and in terms of the constitutional scheme. Merely because an employee had continued under cover of an order of the court, which we have described as "litigious employment" in the earlier part of the judgment, he would not be entitled to any right to be absorbed or made permanent in the service. In fact, in such cases, the High Court may not be justified in issuing interim directions, since, after all, if ultimately the employee approaching it is found entitled to relief, it may be possible for it to mould the relief in such a manner that ultimately no prejudice will be caused to him, whereas an interim direction to continue his employmentwouldholdup the regularprocedurefor selection orimpose on the Statethe burdenofpayingan employeewho is really not required.The courts must be carefulin ensuring that they do not interfere unduly with the economic arrangement of its affairs by the State or its instrumentalities or lend themselvesthe instrumentsto facilitatethe bypassingof the constitutionalandstatutorymandates. 44. The conceptof "equal pay for equal work" is different from the conceptof conferringpermanencyon those who have been appointedon ad hoc basis, temporarybasis, or based on no process of selectionas envisagedby the rules. This Court has in variousdecisionsappliedthe principleofequal pay for equal work and has laid down the parameters for the application of that principle. The decisions are rested on the conceptofequalityenshrinedin our Constitutioninthe lightof the directiveprinciplesin that behalf But the acceptanceof that principlecannot lead to a positionwhere the court could direct that appointments made without following the due procedureestablishedby law, be deemed permanentor issue directions to treat them as permanent. Doing so, would be negationofthe principleofequalityofopportunity.The power to make an order as is necessaryfor doing completejusticein any cause or matter pending before this Court, would not normally be used for giving the go-by to the procedure establishedby law in the matterofpublic employment.Take the situationarising in the cases before us from the State of Kamataka. Therein, after Dharwaddecision the Government had issued repeated directionsand mandatoryorders that no temporary or ad hoc employmentor engagementbe given. Some of the authoritiesand departmentshad ignored those directionsor defiedthose directionsand had continuedto give employment,specificallyinterdictedby the orders issued by the executive.Some ofthe appointingofficershave even been punishedfor their defiance.It would not be just or properto pass an orderin exerciseofjurisdictionunderArticle226 or32 ofthe Constitutionor in exerciseofpowerunderArticle142 of the Constitution permitting those persons engaged, to be absorbed or to be made permanent, based on their 1 appointments or engagements. Complete justice would be justice according to law and though it would be open to this Court to mould the relief, this Court would not grant a relief which would amount to perpetuating an illegality. 45. While directing that appointments, temporary or casual, be regularised or made permanent, the courts are swayed by the fact that the person concerned has worked for some time and in some cases for a considerable length of time. It is not as if the person who accepts an engagement either temporary or casual in nature, is not aware of the nature of his employment. He accepts the employment with open eyes. It may be true that he is not in a position to bargain—^notat arm's length—since he might have been searching for some employment so as to eke out his livelihood and accepts whatever he gets. But on that ground alone, it would not be appropriate to jettison the constitutional scheme of appointment and to take the view that a person who has temporarily or casually got employed should be directed to be continued permanently. By doing so, it will be creating another mode of public appointment which is not permissible. If 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 such casual or temporary employment is not possible, given the exigencies of administrationand if imposed,would only mean that some people who at least get employment temporarily, contractually or casually, would not be getting even that employmentwhen securingof such employmentbrings at least some succour to them. After all, innumerable citizens of our vast country are in search of employment and one is not compelled to accept a casual or temporaiy employment if one is not inclined to go in for such an employment. It is in that context that one has to proceed on the basis that the employment was accepted folly knowing the nature of it and the consequences flowing from it. In other words, even while accepting the employment, the person concerned knows the natureof his employment.It is not an appointmentto a post in the real sense of the term. The claim acquiredby him in the post in which he is temporarily employed or the interest in that post cannot be considered to be of such a magnitude as to enablethe givingup ofthe procedureestablished,for making regular appointmentsto availableposts in the services of the State. The argumentthat since one has been workingfor some time in the post, it will not be just to discontinuehim, even thoughhe was awareofthe natureofthe employmentwhen he first took it up, is not one that would enablethe jettisoningof the procedureestablishedby law for public employmentand would have to fail when tested on the touchstone of constitutionalityand equality of opportunity enshrined in Article 14 of the Constitution. 46. XXXX 47. When a person enters a temporaryemploymentor gets engagement as a contractual or casual worker and the engagementis not basedon aproperselectionas recognisedby the relevant rules or procedure, he is aware of the consequencesof the appointmentbeing temporary,casual or contractualin nature. Such a person cannotinvoke the theory oflegitimateexpectationfor beingconfirmedin the post when an appointmentto the post couldbe made only by followinga proper procedure for selection and in cases concerned, in consultationwith the Public Service Commission.Therefore, the theory of legitimate expectationcannot be successfully advanced by temporary, contractualor 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 constitutionallymake sucha promise.It is also obviousthat the theory cannot be invoked to seek a positive reliefof being madepermanentin the post. 48. It was then contendedthat the rights of the employees thus appointed,under Articles 14 and 16 ofthe Constitution, are violated.It is statedthatthe Statehas treatedthe employees unfairlyby employingthem on less than minimumwages and extracting work from them for a pretty long period in comparisonwith those directlyrecruitedwho are gettingmore wagesorsalariesfor doingsimilarwork. The employeesbefore us were engagedon daily wages in the departmentconcerned on a wage that was made knownto them. There is no casethat the wage agreed upon was,not being paid. Those who are working on daily wages formed a class by themselves,they cannot claim that they are discriminatedas against those who have been regularly recruited on the basis of the relevant rules. No right can be foundedon an employmenton daily wages to claim that such employee should be treated on a par with a regularly recruited candidate, and made permanent in employment, even assuming that the principle could be invoked for claiming equal wages for equal work. There is no fundamentalright in those who have been employedon daily wages or temporarilyor on contractualbasis,to claimthat they have a rightto be absorbedin service.As has been held bythis Court, they cannot be said to be holders of a post, since, a regular appointment could be made only by making appointments consistent with the requirements of Articles 14 and 16 of the Constitution.The rightto be treatedequallywith the other employees employed on daily wages, cannot be extended to a claim for equal treatment with those who were regularlyemployed.Thatwouldbe treatingunequalsas equals. It cannot also be relied on to claim a right to be absorbed in service even though they have never been selected in terms of the relevant recruitment rules. The argumentsbased on Articles 14 and 16 of the Constitution are therefore overruled. 49. It is contendedthat the State action in not regularising the employees was not fair within the framework of the rule of law. The rule of law compelsthe State to make appointments as envisaged by the Constitution and in the manner we have indicated earlier. In most of these cases, no doubt, the employees had worked for some length of time but this has also been brought about by the pendency of proceedingsin tribunalsand courts initiatedat the instanceof the employees. Moreover, accepting an argument of this nature would mean that the State would be permittedto perpetuatean illegalityin the matterof publicemploymentand that would be a negation of the constitutionalschemeadoptedbyus, thepeopleof India. It is therefore not possible to accept the argument that there must be a direction to make permanent all the persons employedon daily wages. When the court is approachedfor relief by way of a writ, the court has necessarilyto ask itself whether the person before it had any legal right to be enforced. ?- Consideredin the light of the very clear constitutionalscheme, it cannot be said that the employees have been able to establish a legal right to be made permanent even though they have never been appointed in terms of the relevant rules or in adherence of Articles 14 and 16 of the Constitution." In view of the aforesaid, the issue of a mandamus directing regularizationof the petitionersby the respondentsat this stage does not arise. Thus, we do not find any meritin the petitionsand, therefore,there is no justificationor warrantto enter into the debate whetherthe applications were maintainable before the tribunal or not. In the result, the writ petitions, being devoid of merit, stand dismissed without any order as to costs. MARCH 01, 2011 pk CHIEF JUSTICE SANJIVKHANNA, J