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CASE NO.: Appeal (civil)  5074 of 2006

PETITIONER: Chief Commissioner of Income Tax,Bhopal & Ors.                                               

RESPONDENT: M/s. Leena Jain & Ors.                                   

DATE OF JUDGMENT: 20/11/2006

BENCH: ARIJIT PASAYAT & LOKESHWAR SINGH PANTA

JUDGMENT: J U D G M E N T  (Arising out of SLP (C) No. 23504 of 2004)

ARIJIT PASAYAT, J.

Leave granted.

Challenge in this appeal is to the order passed by a  Division Bench of the Madhya Pradesh High Court at Jabalpur  in Writ Petition No. 1974 of 1998.  Appellants had challenged  the composite order dated 13.11.1997 passed in OA No. 691 of  1995 and O.A. No.89 of 1996 passed by the Central  Administrative Tribunal, Jabalpur Bench, at Jabalpur (in  short the ’CAT’).  The respondents moved the CAT under  Section 19 of the Administrative Tribunals’ Act, 1985 (in short  the ’Act’) seeking regularization of their services.

       Stand of the respondents before the CAT was that they  have been performing their 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.  Since they have been  working since a long period they sought for regularization  placing reliance on the factum of long rendition of service.  

       In response, 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 by the CAT, the stand of the present  appellants was turned down and direction was given for  considering the cases of appointment on regular basis.

       A writ petition was filed before the High Court, which was  dismissed by the impugned order.      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 Secretary, State of Karnataka and Others  v.  Uma  Devi and Others [2006 (4) SCC 1].  Learned counsel for the  respondents on the other hand submitted that since the CAT  had relied on an earlier judgment, High Court rightly did not  find any distinguishable feature, and the appeal, therefore,  deserves to be dismissed.

The question of regularization on the ground of long  rendition of service was the subject matter in Uma Devi’s case

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(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  an 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 eyes open. 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 Page 1946 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 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 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

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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.

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.

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 issue to compel the  authorities to do something, it must be shown

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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."

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.

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