HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved Court no. 39 Civil Misc. Writ Petition No. 40393 of 2011 Prem Kumar Rai........................................................Petitioner Vs State of U.P. and others........................................Respondents _______ Hon'ble Rajes Kumar, J.
Heard learned counsel for the petitioner and the learned Standing Counsel.
The brief facts of the case are that the petitioner was appointed on 22nd January, 1992 on the post of Typist with the Kaimur Survey Agency, District Sonbhadra, on daily wage basis. The appointment letter is Annexure-1 to the writ petition.
It appears that the petitioner has been asked to work with the Record Officer, Kaimur Survey Agency, Sonbhadra. The petitioner joined the post of Typist on 22nd January, 1992. The services of the petitioner was dispensed with on 31.7.1992 and since then, the petitioner is out of employment.
By means of the present petition, the petitioner is seeking a writ of mandamus to absorb the petitioner in an alternative Government Department of the State of U.P. as has been done with regard to other employees of Kaimur Survey Agency, Sonbhadra.
The contention of the petitioner is that the similarly situated persons, who were working with the Kaimur Survey Agency, Sonbhadra have been absorbed in the Revenue Department in view of the Government Order dated 19th November, 1994, which is Annexure-4 to the writ petition and the further direction has been issued for the absorption of other persons whenever vacancy would be created. Some of the employees filed writ petitions in this Court and in view of the directions of this Court, they have been absorbed in the Revenue Department.
Learned Standing Counsel submitted that the petitioner's appointment was only as a daily wager. His services have been dispensed with on 31.7.1992 and since then he is not in employment.
I have considered rival submissions.
The petitioner was appointed as a Daily Wager, which is apparent from his appointment letter dated 22nd January, 1992. The petitioner's services had been dispensed with on 31.7.1992 and since then he is not working. His services have never been regularised. Since services of the petitioner have never been regularised in the Department where he was appointed, he cannot claim absorption in any other Department.
In the case of Secretary, State of Karnataka vs. Uma Devi, reported in (2006) (4) SCC-1, while considering the right of regularisation of the daily wager, adhoc/temporary appointed persons, the Constitution Bench of the Apex Court has held as follows:-
"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 cases concerned, 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.
48. It was then contended that the rights of the employees thus appointed, under Articles 14 and 6 of the Constitution, are violated. It is stated that State has treated the employees unfairly by employing them on less than minimum wages and extracting work from them for a pretty long period in comparison with those directly recruited who are getting more wages or salaries for doing similar work. The employees before us were engaged on daily wages in the department concerned on a wage that was made known to them. There is no case that that the wage agreed upon was not being paid. Those who are working on daily wages formed a class by themselves, they cannot claim that they are discriminated as against those who have been regularly recruited on the basis of the relevant rules. No right can be founded on an employment on daily wages to claim that such employee should be treated on a par with a regularly recruited candidate, and made permanent in employment, even assuming that the principle could be invoked for claiming equal wages for equal work. There is no fundamental right in those have been employed on daily wages or temporary or on contractual basis, to claim that they have a right to be absorbed in service. As has been held by this Court, they cannot be said to be holders of a post, since, a regular appointment could be made only by making appointments consistent with the requirements of Articles 14 and 16 of the Constitution. The right to be treated equally with the other employees employed on daily wages, cannot be extended to a claim for equal treatment with those who were regularly employed. That would be treating unequals as equals. It cannot also be relied on to claim a right to be absorbed in service even though they have never been selected in terms of the relevant recruitment rules. The arguments based on Articles 14 and 16 of the Constitution are therefore overruled.
In the case of State of Bihar v. Upendra Narayan Singh and others, reported in 2009 (4) SC 577, the Apex Court held that if an illegality or irregularity has been committed in favour of any individual or a group of persons or a wrong order has been passed by a judicial forum, others cannot invoke the jurisdiction of the higher or superior Court for repeating or multiplying the same irregularity or illegality or for passing wrong order- Chandigarh Administration and another v. Jagjit Singh and another [(1995) 1 SCC 745], Secretary, Jaipur Development Authority, Jaipur v. Daulat Mal Jain and others [(1997) 1 SCC 35], Union of India [Railway Board] and others v. J.V. Subhaiah and others [(1996) 2 SCC 258], Gursharan Singh v. New Delhi Municipal Committee [(1996) 2 SCC 459], State of Haryana v. Ram Kumar Mann [(1997) 1 SCC 35], Faridabad CT Scan Centre v. D.G. Health Services and others [(1997) 7 SCC 752], Style (Dress Land) v. Union Territory, Chandigarh and another [(1999) 7 SCC 89] and State of Bihar and others v. Kameshwar Prasad Singh and another [(2000) 9 SCC 94], Union of India and another v. International Trading Co. and another [(2003) 5 SCC 437] and Directorate of Film Festivals and others v. Gaurav Ashwin Jain and others [(2007) 4 SCC 737].
In view of the above, the petitioner is not entitled for absorption.
With the aforesaid observations, the writ petition stands dismissed.
24.8.2011 bgs/-