Full Judgment Text
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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.