Anil Kumar Pachauri vs State Of U.P. And Others
2011 Latest Caselaw 5957 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 2
 

 
Case :- WRIT - A No. - 46085 of 1993
 

 
Petitioner :- Anil Kumar Pachauri
 
Respondent :- State Of U.P. And Others
 
Petitioner Counsel :- H.S.Nigam,A.K.Malviya,S.S. Nigam
 
Respondent Counsel :- S.C.,Atul Mehra,Ranjeet Saxena
 
Hon'ble Sudhir Agarwal,J. 

1. Since the order dated 01.11.2011 has been recalled vide order of date, on the request of learned counsel for the parties the Court proceed to decide the matter finally.

2. The only relief sought in the writ petition is that the petitioner be directed to consider for regularization on the post of Draftsman. It is not in dispute that the petitioner was engaged from time to time for a fixed tenure on a daily wage basis and after September, 1993 his engagement was not extended. The term of fixed term employee automatically comes to an end by efflux of time and in such a case, even a termination order is not required. The Apex Court in the case of Director, Institute of Management Development, U.P. Vs. Pushpa Srivastava, AIR 1992 SC 2070 has held that appointment made for a fixed term comes to an end by efflux of time after expiry of the period of appointment. There is no question of termination of service after expiry of the aforesaid period since the incumbent has no right to continue in the absence of an order of appointment after such period.

3. Learned counsel for the petitioner however submitted that the person similarly situated to the petitioner were considered for regularization and in this regard he relied on Government Order dated 29.10.1989 and 27.2.1990, copies of the same have been filed as Annexures S.A.2 and 3 to the supplementary affidavit. A perusal of the Government Order dated 29th October, 1989 shows that it talks of only for regular payment if a person has continuously worked for three years and has completed 240 days in each year. It also talks of a proposal for creation of additional regular appointment but does not talk of any regularization without following the procedure prescribed in statute. Similarly, Government Order dated 27.2.1990 only talks of creation of temporary post to be utilized for the purpose of regularization on daily wage basis and as such by itself does not provide for regularization. Admittedly, petitioner was initially recruited without following the procedure prescribed in statute. He also relied on a decision of this Court in Jai Prakash & Ors. Vs. State of U.P. & Ors. in Writ Petition No.19947 of 1995.

4. In my view, the said judgment has no application. Therein this Court found that the petitioner were terminated only on the ground of filing writ petition, as is evident from the following:

"I find that all the objections are too technical in nature. Where the services of employees are terminated only on the ground of filing of the writ petition, the petitioners have a right to claim order to be set aside."

5. Moreover, decision was rendered in 2004 but later on in respect of regularization of employees who were not engaged after following the procedure prescribed under Article 16 came to be considered by a Constitution Bench in Secretary, State of Karnataka Vs. Uma Devi 2006(4) SCC 1 and the Court held as under:-

"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 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."

(Para-43)

"While directing that appointments, temporary or casual, be regularized or made permanent, the courts are swayed by the fact that the person concerned 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-nor at arm's 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 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 or 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 succour to them. After all, innumerable citizens of out 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 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 do discontinue him, even though he was aware of the nature of the employment when he first took it up, is not (sic) 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.

(Para-45)

6. Learned counsel for the petitioner however submitted that some other persons have been regularized who are also similarly situated therefore the petitioner is entitled for regularization. However he could not show any provision under which he can be considered for regularization. If some persons, not eligible for regularisation have been regularised, that itself would not give any benefit to the petitioner since it is well settled legal position that two wrongs will not make one right. The Apex Court in the case of State of Bihar and others Vs. Kameshwar Prasad Singh and another, AIR 2000 SC 2306; Union of India and another Vs. International Trading Co. and another, AIR 2003 SC 3983; Lalit Mohan Pandey Vs. Pooran Singh and others, AIR 2004 SC 2303; M/s Anand Buttons Ltd. etc. Vs. State of Haryana and others, AIR 2005 SC 565; and Kastha Niwarak G. S. S. Maryadit, Indore Vs. President, Indore Development Authority, AIR 2006 SC 1142 has held that Article 14 has no application in such cases.

7. Admittedly, U. P. Regularization of Daily Wages Appointments on Group 'D' Posts Rules, 2001 are not applicable to the petitioner. No other statutory provision has been shown.

8. The writ petition therefore lacks merit.

9. Dismissed.

Order Date :- 21.11.2011

KA

Case :- WRIT - A No. - 46085 of 1993

Petitioner :- Anil Kumar Pachauri

Respondent :- State Of U.P. And Others

Petitioner Counsel :- H.S.Nigam,A.K.Malviya,S.S. Nigam

Respondent Counsel :- S.C.,Atul Mehra,Ranjeet Saxena

Hon'ble Sudhir Agarwal,J.

This is an application for recall of my order dated 01.11.2010 as the case was called in the revised list and when no one appeared the Court decided the matter after perusing the record.

Sri A.K.Malviya, learned counsel appearing for the petitioner stated that due to non marking of the case by his clerk he could not appear before the Court.

The cause shown for non appearance is sufficient. The application is allowed. The order dated 1.11.2010 is hereby recalled and the writ petition is restored to its original number.

Order Date :- 21.11.2011

KA