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CASE NO.: Appeal (civil)  5422 of 2007

PETITIONER: Chief Commissioner of Income Tax & Ors

RESPONDENT: Smt. Susheela Prasad and Ors

DATE OF JUDGMENT: 27/11/2007

BENCH: Dr. ARIJIT PASAYAT & LOKESHWAR SINGH PANTA

JUDGMENT: J U D G M E N T

CIVIL APPEAL NO.   5422 OF 2007 (Arising out of SLP (C) No. 8968 of 2006)

Dr. ARIJIT PASAYAT, J.  

1.      Leave granted.

2.      Challenge in this appeal is to the order passed by a  Division Bench of the High Court of Madhya Pradesh at  Jabalpur in Writ Petition No.13440 of 2004. The appellants  had challenged the composite order dated 13.11.1997 passed  in OA No.691/1995 and OA No.89/1996 by the Central  Administrative Tribunal, Jabalpur Bench, Jabalpur (in short  ’CAT’). The respondents had moved CAT under Section 19 of  the Administrative Tribunals Act. 1985 (in short ‘the Act’)  seeking regularization of their services.  

3.      The stand of the respondents before the CAT was that  they have been  on duties as Data Entry Operators on contract  basis and were being paid at a rate of Rs.10 per hour up to the  maximum of Rs.50/- per day. They have sought for  regularization placing reliance on the factum of long rendition  of service.

4.      In response, the present appellants contended that the  respondents were not departmental employees and their  grievances cannot be agitated before the CAT.   Placing reliance  on some other decisions rendered by the CAT, the stand of the  present appellants was turned down and direction was given  for considering their cases  for appointment on regular basis.

5.      A writ petition was filed before the High Court, by the  appellants which was dismissed by the impugned order.

6.      In support of the appeal, learned counsel for the  appellants submitted that the decision of the High Court is  contrary to law as laid down by the Constitution Bench of this  Court in Secretarv. State of Karnataka and Others v. Uma  Devi and Others (2006 (4) SCC l).

7.      Learned counsel for the respondents on the other hand  submitted that since the CAT had relied on an earlier  judgment and High Court rightly did not find any  distinguishable feature, the appeal, therefore, deserves to be

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dismissed.

8.      The question of regularization on the ground of long  rendition of service was the subject matter in Uma Devi’s case  (supra). 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 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

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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 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

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or that the State has a legal duty to make them  permanent."

9.      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 case afresh in the light of the said  decision.

10.     In the connected case decided by the High Court in O,A.  No.89/1996 which related to Writ Petition No.1474 of 1998,  this Court had dealt with the matter in Chief Commissioner of  Income Tax, Bhopal and Ors. Vs. Lama Jain and Ors. (2006  (11) SCC 350), where a similar direction, as contained above,  was given.

11.     The appeal is allowed to the aforesaid extent with no  orders as to costs.