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CASE NO.: Appeal (civil)  2224 of 2008

PETITIONER: State of Himachal Pradesh & Anr

RESPONDENT: Ravinder Singh

DATE OF JUDGMENT: 28/03/2008

BENCH: Dr. ARIJIT PASAYAT & P. SATHASIVAM

JUDGMENT: J U D G M E N T REPORTABLE

CIVIL  APPEAL NO 2224 OF 2008 (Arising out of SLP (C) No. 3347/2006)

Dr. ARIJIT PASAYAT, J.

1.      Leave granted.

2.      Challenge in this appeal is to the judgment of a learned  Single Judge of the Himachal Pradesh High Court   by which  two Writ Petitions filed by the respondent were disposed of.   The controversy lies within a very narrow compass. 3.      The present dispute relates to Civil Writ Petition No.354  of 2000. Before dealing with the rival contentions the factual  background needs to be noted.

Respondent was appointed on 3.9.1980 as a daily-rated  worker in the Horticulture Department of the State.  In the  Writ Petition the prayer was for regularization as a clerk on  completion of ten years of service on daily wages basis.  It is to  be noted that the union of the employees had moved the  Labour Court for regularization of all daily wagers. The same  was adjudicated by the Industrial Disputes Tribunal.  A  reference was made to the Labour Court and the State filed its  response questioning maintainability of the reference.  Initially  the Labour Court had decided in favour of the workers but on  a Writ Petition being filed, the High Court held in favour of the  State holding that the claim for regularization was not  maintainable.  It was noted that no appointment order was  issued and the case of the respondent was not sponsored by  the employment exchange.  It was also noted that the claim for  equal work for equal pay was not maintainable as daily-rated  persons were not required to   perform duties at par with those  in regular service and they did not also fulfil the procedure at  the time of recruitment.  Two Writ Petitions were filed; in one  the challenge was to the order of the Industrial Disputes  Tribunal while the Writ Petition to which this Appeal relates to  the Award by the Labour Court.  It is to be noted that the  Labour Court had observed that the employer had regularized  the respondent as a Chowkidar with effect from 5.7.1997  which was refused by him.  Thereafter the engagement as  daily wager was terminated.  This order was challenged before  the Industrial Disputes Tribunal, under Section 33 which was  dismissed.  However, as noted above the High Court has

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remanded the matter to the Tribunal.

4.      The High Court in the impugned order held that the  approach of the Labour Court was wrong as it has introduced  concepts which are unnecessary.  It was noted by the High  Court that there was no dispute that the respondent was  employed as a clerk.

5.      Learned counsel for the respondents submitted that the  question whether the appointment was as a clerk has been  concluded by an earlier order of the High Court which has  become final and, therefore, the present appeal is  misconceived.

6.      The High Court had rightly observed that the Labour  Court embarked upon an uncalled enquiry upon the status of  daily-wage workers vis.a.vis regular workers, therefore, the  direction was given that the respondent was entitled to be  regularized as clerk under the scheme of the Government with  effect from 11th July, 1995.

7.      It is to be noted that the High Court proceeded on  erroneous premises.  It has observed that there was no  dispute that respondent was employed as daily wage worker as  clerk with effect from 3rd September, 1980.  The High Court  itself has observed that the stand of the State was specific that  the respondent was engaged as daily-paid labourer for  carrying out horticulture operations such as spraying of  plants, cleaning the floors etc. and therefore, the question of  discharging the duties of clerk/supervision does not arise.  It  was also to be noted that the Labour Court had rightly  dismissed the claim of the respondent by holding that he and  others, being daily wagers, cannot be treated at par with the  regular employees. It also noted that the conditions for  regularizations under the policy of the Government have not  been noticed. The parameters of regularization have been  examined by this Court in Secretary, State of Karnataka &  Ors. v. Uma Devi & Ors. (2006(4) SCC 1). Paras 22, 27, 36, 39,  42 and 43 of the decision read as follows:

"22. With respect, it appears to us that the  question whether the jettisoning of the  constitutional scheme of appointment can be  approved, was not considered or decided. The  distinction emphasised in R.N. Nanjundappa v. T.  Thimmiah (1972 (1) SCC 409) was also not kept  in mind. The Court appears to have been dealing  with a scheme for "equal pay for equal work" and  in the process, without an actual discussion of  the question, had approved a scheme put forward  by the State, prepared obviously at the direction  of the Court, to order permanent absorption of  such daily-rated workers. With respect to the  learned judges, the decision cannot be said to lay  down any law, that all those engaged on daily  wages, casually, temporarily, or when no  sanctioned post or vacancy existed and without  following the rules of selection, should be  absorbed or made permanent though not at a  stretch, but gradually. If that were the ratio, with  respect, we have to disagree with it.

27. We shall now refer to the other decisions. In  State of Punjab v. Surinder Kumar (AIR 1992 SC  1593) a three-Judge Bench of this Court held

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that the High Courts had no power, like the  power available to the Supreme Court under  Article 142 of the Constitution, and merely  because the Supreme Court granted certain  reliefs in exercise of its power under Article 142  of the Constitution, similar orders could not be  issued by the High Courts. The Bench pointed  out that a decision is available as a precedent  only if it decides a question of law. The temporary  employees would not be entitled to rely in a writ  petition they filed before the High Court upon an  order of the Supreme Court which directs a  temporary employee to be regularised in his  service without assigning reasons and ask the  High Court to pass an order of a similar nature.  This Court noticed that the jurisdiction of the  High Court while dealing with a writ petition was  circumscribed by the limitations discussed and  declared by judicial decisions and the High Court  cannot transgress the limits on the basis of the  whims or subjective sense of justice varying from  judge to judge. Though the High Court is entitled  to exercise its judicial discretion in deciding writ  petitions or civil revision applications coming  before it, the discretion had to be confined in  declining to entertain petitions and refusing to  grant reliefs asked for by the petitioners on  adequate considerations and it did not permit the  High Court to grant relief on such a consideration  alone. This Court set aside the directions given  by the High Court for regularisation of persons  appointed temporarily to the post of lecturers.  The Court also emphasised that specific terms on  which appointments were made should be  normally enforced. Of course, this decision is  more on the absence of power in the High Court  to pass orders against the constitutional scheme  of appointment.

36. This Court also quoted with approval (at SCC  p. 131, para 69) the observations of this Court in  Teri Oat Estates (P) Ltd. v. U.T., Chandigarh  (2004(2) SCC 130) to the effect: (SCC p.        144,  para 36) "36. We have no doubt in our mind  that sympathy or sentiment by itself  cannot be a ground for passing an  order in relation whereto the  appellants miserably fail to establish  a legal right. It is further trite that  despite an extraordinary  constitutional jurisdiction contained  in Article 142 of the Constitution, this  Court ordinarily would not pass an  order which would be in  contravention of a statutory  provision."

This decision kept in mind the distinction  between "regularisation" and "permanency"  and laid down that regularisation is not and  cannot be the mode of recruitment by any  State. It also held that regularisation cannot  give permanence to an employee whose  services are ad hoc in nature.

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39. There have been decisions which have  taken the cue from Dharwad case1 and given  directions for regularisation, absorption or  making permanent, employees engaged or  appointed without following the due process or  the rules for appointment. The philosophy  behind this approach is seen set out in the  recent decision in Workmen v. Bhurkunda  Colliery of Central Coalfields Ltd. (1983 (4) SCC  582)   though the legality or validity of such an  approach has not been independently  examined. But on a survey of authorities, the  predominant view is seen to be that such  appointments did not confer any right on the  appointees and that the Court cannot direct  their absorption or regularisation or re- engagement or making them permanent.

42. While answering an objection to the locus  standi of the writ petitioners in challenging the  repeated issue of an ordinance by the  Governor of Bihar, the exalted position of rule  of law in the scheme of things was  emphasised, Bhagwati, C.J., speaking on  behalf of the Constitution Bench in D.C.  Wadhwa (Dr.) v. State of Bihar (1987 (1) SCC  378) stated: (SCC p.    384, para 3)

"The rule of law constitutes the core  of our Constitution and it is the  essence of the rule of law that the  exercise of the power by the State  whether it be the legislature or the  executive or any other authority  should be within the constitutional  limitations and if any practice is  adopted by the executive which is in  flagrant and systematic violation of  its constitutional limitations,  Petitioner 1 as a member of the  public would have sufficient interest  to challenge such practice by filing a  writ petition and it would be the  constitutional duty of this Court to  entertain the writ petition and  adjudicate upon the validity of such  practice."

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

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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  employment would hold up the regular  procedure for selection or impose on the State  the burden of paying an employee who is really  not required. The courts must be careful in  ensuring that they do not interfere unduly with  the economic arrangement of its affairs by the  State or its instrumentalities or lend  themselves the instruments to facilitate the  bypassing of the constitutional and statutory  mandates."

8.      In addition it has to be noted that the Labour Court had  observed that the name of the respondent claimant was not  sponsored by the employment exchange; there was no  appointment order; the requirements relating to procedure to  be followed at the time of recruitment were also not fulfilled.   There was a mere back- door entry.  It was further noted that  they were not selected in the manner as applicable to regular  employees who are liable to be transferred and are subject to  disciplinary proceedings to which daily-rated workers are not  subjected to.

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9.      In the background of what has been stated above the  directions given for regularization in the post of clerk being  indefensible are set aside. However, undisputedly the  appellants had regularized the services of the respondent as a  Chowkidar in July, 1997 which the respondent had refused.  If  the respondent is so advised, he may accept the order in that  regard by submitting the requisite documents within six weeks  from today. If not so done, the respondent shall not be entitled  to any relief in terms of the High Court’s impugned order  which as noted above we have set aside.    10.     The appeal is allowed to the aforesaid extent, but without  any order as to costs.