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CASE NO.: Appeal (civil)  4327 of 2003

PETITIONER: Rajasthan Krishi Vishva Vidhyalaya, Bikaner

RESPONDENT: Devi Singh

DATE OF JUDGMENT: 14/02/2008

BENCH: Dr. ARIJIT PASAYAT & P. SATHASIVAM

JUDGMENT: J U D G M E N T

CIVIL APPEAL NO. 4327 OF 2003 (With Civil Appeal No. 712/2004, C.A. No. 1053/2006, C.A. No. 4309/2006, C.A. No. 4310/2006, C.A. No. 4311/2006, C.A. No.  4312/2006, C.A. No.  4313/2006) C.A. No.  4314/2006)

Dr. ARIJIT PASAYAT, J.

1.      Challenge in these appeals is to the orders passed by a  Division Bench of the Rajasthan High Court, Jodhpur  directing consideration of the case of respondent in each case  under the Rajasthan (Regulation of Appointments to Public  Service and Rationalisation of Staff) Act, 1999 (in short the  ’Act’).

2.      Background facts in a nutshell are as follows:

.       Respondents were appointed on daily wage basis. Their  services were terminated as there was no further work in the  research centre where they were appointed and/or on the  basis that there was no work available and there was no  approved list. The State of Rajasthan passed the Act in the  year 1999.  

3.      Respondent in each case filed a writ petition praying for a  direction to the present appellant to give benefit of  regularization on the post of Class IV employees and to give  regular scale of pay with effect from the date from which  persons junior to him were given benefit of regularization and  regular pay scale. Prayer was also made to declare Sections 7,  9, 11 and 19 of the Act to be ultra vires to the Constitution of  India, 1950 (in short the ’Constitution’).   

4.      The High Court placing reliance on an earlier judgment  in Bhawani Singh and Ors. v. State and Ors. (2002 (3) Western  Law cases 728) declared Sections 9, 11 and 19 as ultra vires  and directed the appellant to consider the case of the writ  petitioner in each case for regularization in the light of  aforesaid judgment and if found eligible to consider his case  for regularization with effect from the date on which any other  person junior to him had been granted the same benefits.   

5.      Stand of the appellant is that since none of the  respondents was in employment of the University from 1992 to  1995, the question of extending the benefit of regularization  from the date when his junior, if any, was regularized does not

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arise. Respondents’ stand was that each was entitled to  regularization because of long rendition of service. The  question relating to regularization of service on the ground of  long rendition of service was the subject matter in a decision  by a Constitution Bench of this Court in Secretary, State of  Karnataka and Ors. v. Umadevi (3) and Ors. (2006 (4) SCC 1).   6.      The said issue has been elaborately dealt with in the  judgment. It was inter alia held as follows:

"33. It is not necessary to notice all the  decisions of this Court on this aspect. By and  large what emerges is that regular recruitment  should be insisted upon, only in a contingency  and ad hoc appointment can be made   in a  permanent vacancy, but the same should soon  be followed by a regular recruitment and that  appointments to non available posts should  not be taken note of for regularization. The  cases directing regularization have mainly  proceeded on the basis that having permitted  the employee to work for some period, he  should be absorbed, without really laying  down any law to that effect, after discussing  the constitutional scheme for public  employment.

       xxx     xxx             xxx

45.     While directing that appointments,  temporary or casual, be regularized or made  permanent, courts are swayed by the fact that  the concerned person 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 -- not at arms 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  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 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, moreover when  securing of such employment brings at least  some succor to them. After all, innumerable

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citizens of our vast country are in search of  employment and one is not compelled to  accept a casual or temporary 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 fully knowing the nature of it  and the consequences flowing from it. In other  words, even while 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 claim  acquired by 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 enable the giving up of the  procedure established, for making regular  appointments to available 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 first took it up, is not 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  opportunity enshrined in Article 14 of the  Constitution. x x x

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 recognized 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 concerned cases, 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. xxx 52. Normally, what is sought for by such  temporary employees when they approach the  court, is the issue of a writ of mandamus  directing the employer, the State or its  instrumentalities, to absorb them in  permanent service or to allow them to  continue. In this context, the question arises  whether a mandamus could be issued in  favour of such persons. At this juncture, it will

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be proper to refer to the decision of the  Constitution Bench of this Court in Dr. Rai  Shivendra Bahadur v. The Governing Body of  the Nalanda College (1962) Supp. 2 SCR 144.  That case arose out of a refusal to promote the  writ petitioner therein as the Principal of a  college. This Court held that in order that a  mandamus may be issued to compel the  authorities to do something, it must be shown  that the statute imposes a legal duty on the  authority and the aggrieved party had a legal  right under the statute or rule to enforce it.  This classical position continues and a  mandamus could not be issued in favour of  the employees directing the government to  make them permanent since the employees  cannot show that they have an enforceable  legal right to be permanently absorbed or that  the State has a legal duty to make them  permanent."  (See Chief Commissioner of  Income Tax & Ors. v. Smt. Susheela Prasad  and Ors. (2007 (8) Supreme 635)."

7.      In view of what has been stated in Uma Devi’s case  (supra), we deem it proper to remit the matter to the High  Court to consider the cases afresh in the light of the said  decision.          8.      The appeals are allowed to the aforesaid extent with no  order as to costs.