Dr. Anant Ram Dwivedi vs State Of U.P. Thru ...
2017 Latest Caselaw 1815 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Reserved									AFR
 
(1)Case :- SERVICE BENCH No. - 6862 of 2016
 

 
Petitioner :- Dr. Anant Ram Dwivedi
 
Respondent :- State Of U.P. Thru Prin.Secy.Medical Edu.Civil Sectt.& Ors.
 
Counsel for Petitioner :- Dr. Ramsurat Pande
 
Counsel for Respondent :- C.S.C.
 
AND
 
(2)Case :- SERVICE SINGLE No. - 6136 of 2007
 

 
Petitioner :- Dr. Anant Ram Dwivedi
 
Respondent :- State Of U.P. Thru Prin. Secy. Medical Education & 2 Ors.
 
Counsel for Petitioner :- R.S. Pandey
 
Counsel for Respondent :- C.Sc.
 

 

 
Hon'ble Shri Narayan Shukla,J.

Hon'ble Sheo Kumar Singh-I,J.

(Delivered by Sheo Kumar Singh-I, J.)

1. Heard Dr. Ramsurat Pande, learned counsel for the petitioner as well as learned Standing Counsel for the respondent.

2. By means of present writ petition filed under Article 226 of the Constitution of India, the petitioner has filed the first petition with following relief:-

i. a writ, order or direction in the nature of mandamus commanding the opposite parties to release the post retirement benefits such as pension, gratuity, group insurance, leave encashment and other dues which are admissible to the petitioner within such period as this Hon'ble Court may deem just and proper in the circumstances of the case.

3. The second petition has been filed with following reliefs:-

i. a writ, order or direction in the nature of mandamus commanding the opposite parties No. 1 and 2 to treat the petitioner in continuous service ignoring artificial break made by the opposite parties.

ii. a writ, order or direction in the nature of mandamus commanding the opposite parties No.1 and 2 to relate back the date of regularization of the petitioner from initial date of appointment.

iii. A writ, order or direction in the nature of mandamus commanding the opposite parties No. 1 and 2 to give all service benefits such as seniority, annual increments, time scale promotion after interval of 8 years and 14 years service, treating the petitioner in continuous service with effect from 04.03.1986.

4. Brief facts giving rise to the petitions are that the petitioner was initially appointed on the post of Demostrator Pathology on fixed tenure for three years in Ayurvedic College, Atarra, District Banda on 04.03.1986 and term was further extended with effect from 20.03.1989 to 17.05.1989.

5. On 28.07.1990 the period was further extended from 28.07.1990 till further orders issued by the Directorate of Ayurvedic Services or till regularly selected Demostrator joins.

6. Learned counsel for the petitioner has submitted that in pursuance of the regularization Rules 2001, his matter was not considered for regular appointment and similarly situated persons have been considered for regularization.

7. It has further been submitted that in spite of break in service or contractual engagement for service, the services of the petitioner may be treated as regular employee with effect from initial appointment in the year 1986 and be treated as a regular and be given all other benefits and retial dues with seniority, annual increment and time bound promotion.

8. Learned counsel for the respondent has submitted that the petitioner was engaged on contractual basis for a fixed term/temporary basis on 18.03.1986 in Government Ayurvedic College, Atarra, District Banda and annual increments were granted in accordance with service Rules. The services of the petitioner was regularized on 07.06.2007 and in this way the total service of the petitioner comes as 7 years and 2 months and he is not entitled for benefit of pension as provided in the pension Rules.

9. It has further been submitted by the learned counsel for the respondent that the leave encahsment amount of Rs. 2,92,029,00/- has been paid on 07.10.2015 after retirement of the petitioner and for payment of G.I.S., concerned authority has been directed to pay in accordance with Rules.

10. The perusal of order issued from the department shows that the engagement of the petitioner was a contractual and time bound engagement which was extended from time to time and in the order dated 30.03.1989, it has been specifically mentioned that the services will stand terminated automatically after 17.05.1989. It has been reported that the services of the petitioner was not regular and was terminated twice during his tenure of service but from 1988-89 the matter was not raised before the Court and after a long time and after retirement this petition has been filed with a relief for payment of retiral dues.

11. The main question which has been raised before this Court is as to whether by filing a writ petition under Article 226 of the Constitution of India, the nature of contractual appointment can be converted to the regular appointment or the services of the employee can be regularized by mans of Court's order or as to whether the person who is not entitled for payment of pensionary benefits as per Government Orders and Rules, governing the matter, can he be paid pensionary benefits against the Rules.

12. It is admitted fact that the petitioner retired in the year 2014, it is also admitted facts that the petitioner was initially appointment on a fixed term for three years on ad hoc/temporary basis and without following the procedure of appointment. The tenure of the petitioner's services was extended from time to time with some break in the service and after a service of 7 years and 2 months he retired.

13. Learned counsel for the respondent has submitted that before proceeding to the relief clause as prayed by the petitioner it is necessary to examine the Rules relating to ad hoc appointments and appointments against substantive vacancies. A distinction has been made in (i) appointment according to the procedure established by the law against the sanctioned vacancies.

(ii) appointments dehors law.

14. It is settled proposition of Law that an appointments made in violation of the mandatory provisions of the statute would be wholly illegal. Such illegality cannot be cured by taking recourse to regularization.

15. The Supreme Court in R.N. Nanjundappa Vs. T. Thimmaiah & Anr. (1992) 2 SCR 799 held as under:-

" If the appointment itself is in infraction of the rules or if it is in violation of the provisions of the Constitution illegality cannot be regularized. Ratification or regularization is possible of an act which is within the power and province of the authority but there has been some non-compliance with procedure or manner which does not go to the root of the appointment. Regularization cannot be said to be a mode of recruitment. To accede to such a proposition would be to introduce a new head of appointment in defiance of rules or it may have the effect of setting at naught the rules."

16. In Jawaharlal Nehru Technological University Vs. T. Sumalatha (Smt.) & Ors., (2003) 10 SCC 405, the Supreme Court rejected a similar contention stating:

"The learned counsel therefore contends that there is every justification for absorbing the concerned respondents on regular basis in recognition of their long satisfactory service. The learned counsel further contends that the adhoc arrangement to employ them on consolidated pay should not go on forever. The contention of the learned counsel cannot be sustained for more than one reason and we find no valid grounds to grant the relief of regularization. There is nothing on record to show that the concerned employees were appointed after following due procedure for selection. Apparently, they were picked and chosen by the University authorities to cater to the exigencies of work in the Nodal Centre"

17. In Director, Institute of Management Development, U.P. Vs. Pushpa Srivastava reported in (1993) ILLJ190 SC it was held as under:-

"when the appointment was purely ad hoc and on a contractual basis for a limited period, therefore, by expiry of the period, the right to remain in the post comes to an end."

18. In Madhyamik Shiksha Parishad, U.P. Vs. Anil Kumar Mishra and Ors reported in (1994) II LLJ 977 SC it was held as under:-

"that an ad hoc appointees/temporary employees engaged on ad hoc basis and paid on piece rate basis for certain clerical work and discontinued on completion of their task, were not entitled to reinstatement or regularization of their services even if their working period ranged from year to years."

24. In State of Himachal Pradesh Vs. Suresh Kumar Verma (1996 (1) SCR 972), a three Judge Bench of this Court held that a person appointed on daily wage basis was not an appointee to a post according to Rules. On his termination, on the project employing him coming to an end, the Court could not issue a direction to re-engage him in any other work or appoint him against existing vacancies. This Court said: "It is settled law that having made rules of recruitment to various services under the State or to a class of posts under the State, the State is bound to follow the same and to have the selection of the candidates made as per recruitment rules and appointments shall be made accordingly. From the date of discharging the duties attached to the post the incumbent becomes a member of the services. Appointment on daily wage basis is not an appointment to a post according to the Rules."

19. 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.

20. It is argued that in a country like India where there is so much poverty and unemployment and there is no equality of bargaining power, the action of the State in not making the employees permanent, would be violative of Article 21 of the Constitution. But the very argument indicates that there are so many waiting for employment and an equal opportunity for competing for employment and it is in that context that the Constitution as one of its basic features, has included Articles 14, 16 and 309 so as to ensure that public employment is given only in a fair and equitable manner by giving all those who are qualified, an opportunity to seek employment. In the guise of upholding rights under Article 21 of the Constitution of India, a set of persons cannot be preferred over a vast majority of people waiting for an opportunity to compete for State employment. The acceptance of the argument on behalf of the petitioner would really negate the rights of the others conferred by Article 21 of the Constitution, assuming that we are in a position to hold that the right to employment is also a right coming within the purview of Article 21 of the Constitution. The argument that Article 23 of the Constitution is breached because the employment on daily wages amounts to forced labour, cannot be accepted. After all, the employees accepted the employment at their own volition and with eyes open as to the nature of their employment. The Governments also revised the minimum wages payable from time to time in the light of all relevant circumstances. It also appears to us that importing of these theories to defeat the basic requirement of public employment would defeat the constitutional scheme and the constitutional goal of equality.

21. 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 in Dr. Rai Shivendra Bahadur Vs. 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. The Court held that in order that a mandamus may issue to compel the authorities to do something, it must be shown 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.

22. The principles to be adopted in the matter of public appointments have been formulated by the Court in M.P. State Coop. Bank Ltd., Bhopal v. Nanuram Yadav & Ors., (2007) 8 SCC 264 as under:

"(1) The appointments made without following the appropriate procedure under the rules/government circulars and without advertisement or inviting applications from the open market would amount to breach of Articles 14 and 16 of the Constitution of India.

(2) Regularisation cannot be a mode of appointment.

(3) An appointment made in violation of the mandatory provisions of the statute and in particular, ignoring the minimum educational qualification and other essential qualification would be wholly illegal. Such illegality cannot be cured by taking recourse to regularisation.

(4) Those who come by back-door should go through that door.

(5) No regularisation is permissible in exercise of the statutory power conferred under Article 162 of the Constitution of India if the appointments have been made in contravention of the statutory rules.

(6) The court should not exercise its jurisdiction on misplaced sympathy.

(7) If the mischief played is so widespread and all pervasive, affecting the result, so as to make it difficult to pick out the persons who have been unlawfully benefited or wrongfully deprived of their selection, it will neither be possible nor necessary to issue individual show-cause notice to each selectee. The only way out would be to cancel the whole selection.

(8) When the entire selection is stinking, conceived in fraud and delivered in deceit, individual innocence has no place and the entire selection has to be set aside."

23. A similar view has been reiterated by the Constitution Bench in Secretary, State of Karnataka & Ors. v. Umadevi & Ors., AIR 2006 SC 1806, observing that any appointment made in violation of the Statutory Rules as also in violation of Articles 14 and 16 of the Constitution would be a nullity. "Adherence to Articles 14 and 16 of the Constitution is a must in the process of public employment". The Court further rejected the prayer that ad hoc appointees working for long be considered for regularisation as such a course only encourages the State to flout its own rules and would confer undue benefits on some at the cost of many waiting to compete.

24. In State of Orissa & Anr. v. Mamata Mohanty, (2011) 3 SCC 436, the Court dealt with the constitutional principle of providing equality of opportunity to all which mandatorily requires that vacancy must be notified in advance meaning thereby that information of the recruitment must be disseminated in a reasonable manner in public domain ensuring maximum participation of all eligible candidates; thereby the right of equal opportunity is effectuated. The Court held as under:-

"Therefore, it is a settled legal proposition that no person can be appointed even on a temporary or ad hoc basis without inviting applications from all eligible candidates. If any appointment is made by merely inviting names from the employment exchange or putting a note on the noticeboard, etc. that will not meet the requirement of Articles 14 and 16 of the Constitution. Such a course violates the mandates of Articles 14 and 16 of the Constitution of India as it deprives the candidates who are eligible for the post, from being considered. A person employed in violation of these provisions is not entitled to any relief including salary. For a valid and legal appointment mandatory compliance with the said constitutional requirement is to be fulfilled. The equality clause enshrined in Article 16 requires that every such appointment be made by an open advertisement as to enable all eligible persons to compete on merit."

25. Where any such appointments are made, they can be challenged in the court of law. The quo warranto proceeding affords a judicial remedy by which any person, who holds an independent substantive public office or franchise or liberty, is called upon to show by what right he holds the said office, franchise or liberty, so that his title to it may be duly determined, and in case the finding is that the holder of the office has no title, he would be ousted from that office by judicial order. In other words, the procedure of quo warranto gives the Judiciary a weapon to control the Executive from making appointment to public office against law and to protect a citizen from being deprived of public office to which he has a right. These proceedings also tend to protect the public from usurpers of public office who might be allowed to continue either with the connivance of the Executive or by reason of its apathy. It will, thus, be seen that before a person can effectively claim a writ of quo warranto, he has to satisfy the Court that the office in question is a public office and is held by a usurper without legal authority, and that inevitably would lead to an enquiry as to whether the appointment of the alleged usurper has been made in accordance with law or not. For issuance of writ of quo warranto, the Court has to satisfy that the appointment is contrary to the statutory rules and the person holding the post has no right to hold it. (Vide: The University of Mysore & Anr. v. C.D. Govinda Rao & Anr., AIR 1965 SC 491; Shri Kumar Padma Prasad v. Union of India & Ors., AIR 1992 SC 1213; B.R. Kapur v. State of Tamil Nadu & Anr., AIR 2001 SC 3435; The Mor Modern Co-operative Transport Society Ltd. v. Financial Commissioner and Secretary to Govt., Haryana & Anr., AIR 2002 SC 2513; Arun Singh v. State of Bihar & Ors., AIR 2006 SC 1413; Hari Bansh Lal v. Sahodar Prasad Mahto & Ors., AIR 2010 SC 3515; and Central Electricity Supply Utility of Odisha v. Dhobei Sahoo & Ors., (2014) 1 SCC 161).

26. Another important requirement of public appointment is that of transparency. Therefore, the advertisement must specify the number of posts available for selection and recruitment. The qualifications and other eligibility criteria for such posts should be explicitly provided and the schedule of recruitment process should be published with certainty and clarity. The advertisement should also specify the rules under which the selection is to be made and in absence of the rules, the procedure under which the selection is likely to be undertaken. This is necessary to prevent arbitrariness and to avoid change of criteria of selection after the selection process is commenced, thereby unjustly benefiting someone at the cost of others.

27. Thus, the aforesaid decisions are an authority on prescribing the limitations while making appointment against public posts in terms of Articles 14 and 16 of the Constitution. What has been deprecated by Court time and again is "backdoor appointments or appointment de hors the rules".

28. In State of U.P. & Ors. v. U.P. State Law Officers Association & Ors., AIR 1994 SC 1654, the Court while dealing with the back-door entries in public appointment observed as under:

"The method of appointment is indeed not calculated to ensure that the meritorious alone will always be appointed or that the appointments made will not be on the considerations other than merit. In the absence of guidelines, the appointment may be made purely on personal or political consideration and be arbitrary. This being so those who come to be appointed by such arbitrary procedure can hardly complain if the termination of their appointment is equally arbitrary. Those who come by the back-door have to go by the same door....From the inception some engagements and contracts may be the product of the operation of the spoils system. There need be no legal anxiety to save them."

29. For the purpose of grant of pension, the service conditions are laid down under U.P. Retirement Benefit Rules 1961 [Rule 3 (8) read with Article 368 of the Civil Service Regulations] and for considering service for eligibility for grant of sanction the officer must hold a substantive post that may be either temporary or officiating but the services were regularized later on without any break. In the case of Regional Provident Fund Commissioner Andhra Pradesh v. Sri T.S. Hariharan reported in 1971 (2) SCC 68, it was held that in light of Para 10 of the Rules service means regular service in the establishment appointed regularly according to the procedure. Further in Union of India and others v. Rakesh Kumar reported in (2001) 4 SCC 309, it was held as under:-

"....by erroneous interpretation of the rules if pensionary benefits are granted to someone it would not mean that the said mistake should be perpetuated by direction of the Court. It would be unjustifiable to submit that by appropriate writ, the Court should direct something which is contrary to the statutory rules. In such cases, there is no question of application of Article 14 of the Constitution. No person can claim any right on the basis of decision which is de hors the statutory rules nor there can be any estoppel. Further, in such cases there cannot be any consideration on the ground of hardship...."

30. It is argued on behalf of the petitioner that he should also be given all benefits which were given to others.

31. The service conditions are governed by existing rules and the condition of appointment. It was held in Dr. Ashok Kumar Maheshwari v. State of U.P. reported in (1998) 2 SCC 502 that "There can be no parity in illegality and no estopple against the law". Further in the case of Dr. Rajeev Ranjan Misra v. State of U.P. reported in 2008 (1) ESC 595, it was held that "... conditions of service are different from rules of recruitment. Where a rule permits relaxation of provisions pertaining to conditions of service, the same would be applicable to the conditions of service after appointment in accordance with the rules. Rules of Recruitment/procedure for recruitment cannot be relaxed by exercising power under Rule 26, which is meant for relaxation in conditions of service in the case of hardship being faced by an employee by the Government".

32. Service conditions are laid down in Article 474 (B) of Civil Service Regulations regarding sanction of gratuity and pension with condition of minimum period of service and Hon'ble the Apex Court while deciding the case of Union of India v. Devki Nandan Agarwal reported in 1992 Supp. 1 SCC 323 held as under:-

"...The Courts cannot modify or alter the scheme and apply it to others, who are not otherwise entitled to a benefit under the scheme. It is known practice in a pensionary scheme to fix a minimum period for the purpose of pension. What shall be the minimum period for such pension will depend upon a particular service, the age at which a person could enter into such service, the normal period which he is expected to serve before his retirement on superannuation, and various other factors. Prescribing a minimum period of service before retirement on superannuation, for pension is the very scheme itself and not a classification. It is so to say a qualification for eligibility........".

33. In the case of State of Haryana v. Shakuntala Devi reported in 2008 AIR SCW 8180, Hon'ble the Apex Court held as under:-

"When pensionary benefits are claimed, they are claimed only as service benefit that can be derived from statutory provisions made in this regard. If the scheme for pension framed by the Government mentions certain eligibility qualifications, such qualifications cannot be directed by the Hon'ble Courts to be ignored or waived off for the grant of pension to ineligible persons."

34. In the case of State of Haryana v. Haryana Pashu Chikitsa Evam A.H.T.S. Association reported in (2008) 8 SCC 4, Hon'ble the Apex Court held as under:-

"if the Rule Making Authority would have intended to prescribed completion of merely 10 years of continuous service, which may legitimately include seasonal, casual, daily rated and adhoc services also, there would have been no reason to use the expression ''regular' as adjective before the word ''service' used in the Government orders".

35. The creation and abolition of posts, formation and structuring/ restructuring of cadres, prescribing the source and mode of recruitment and qualifications and criteria of selection etc. are matters which fall within the exclusive domain of the employer. Although the decision of the employer to create or abolish posts or cadres or to prescribe the source or mode of recruitment and lay down the qualification etc. is not immune from judicial review, the Court will always be extremely cautious and circumspect in tinkering with the exercise of discretion by the employer. The Court cannot sit in appeal over the judgment of the employer and ordain that a particular post or number of posts be created or filled by a particular mode of recruitment. The power of judicial review can be exercised in such matters only if it is shown that the action of the employer is contrary to any constitutional or statutory provisions or is patently arbitrary or vitiated by malafides.

36. In State of Haryana vs. Navneet Verma [2008 (2) SCC 65], a Division Bench of two-Judges referred to M. Ramanatha Pillai vs. State of Kerala [1973 (2) SCC 650], Kedar Nath Bahi vs. State of Punjab [1974 (3) SCC 21], State of Haryana vs. Des Raj Sangar [1976 (2) SCC 844], Dr. N.C. Singhal vs. Union of India [1980 (3) SCC 29) and Avas Vikas Sanghathan vs. Engineers Association [2006 (4) SCC 132) and culled out the following principles :

"(a) the power to create or abolish a post rests with the Government;

(b) whether a particular post is necessary is a matter depending upon the exigencies of the situation and administrative necessity;

(c) creation and abolition of posts is a matter of government policy and every sovereign government has this power in the interest and necessity of internal administration;

(d) creation, continuance and abolition of posts are all decided by the Government in the interest of administration and general public;

(e) the court would be the least competent in the face of scanty material to decide whether the Government acted honestly in creating a post or refusing to create a post or its decision suffers from mala fides, legal or factual;

(f) as long as the decision to abolish the post is taken in good faith in the absence of material, interference by the court is not warranted."

37. In Secretary, State of Karnataka vs. Uma Devi (supra), the Constitution Bench adverted its attention to financial implications of creation of extra posts and held that the Courts should not pass orders which impose unwarranted burden on the State and its instrumentalities by directing creation of particular number of posts for absorption of employees appointed on ad hoc or temporary basis or as daily wagers.

38. In Divisional Manager, Aravali Golf Club and another vs. Chander Hass and another [(2008) 1 SCC 683] also, a two-Judges Bench considered the issue relating to creation of post and held :-

"15. The court cannot direct the creation of posts. Creation and sanction of posts is a prerogative of the executive or legislative authorities and the court cannot arrogate to itself this purely executive or legislative function, and direct creation of posts in any organisation. This Court has time and again pointed out that the creation of a post is an executive or legislative function and it involves economic factors. Hence the courts cannot take upon themselves the power of creation of a post. Therefore, the directions given by the High Court and the first appellate court to create the posts of tractor driver and regularise the services of the respondents against the said posts cannot be sustained and are hereby set aside."

39. The questions whether in exercise of the power vested in it under Article 226 of the Constitution of India, the High Court can issue a mandamus and compel the State and its instrumentalities/agencies to regularize the services of temporary/ad-hoc/daily wager/casual/contract employees and whether direction can be issued to the public employer to prescribe or give similar pay scales to employees appointed through different modes, with different condition of service and different sources of payment have become subject matter of debate and adjudication in several cases.

40. The menace of illegal and backdoor appointments compelled the Courts to have rethinking and in large number of subsequent judgments the Court declined to entertain the claims of ad-hoc and temporary employees for regularization of services and even reversed the orders passed by the High Courts and Administrative Tribunals - Director, Institute of Management Development, U.P. vs. Pushpa Srivastava [1992 (4) SCC 33], Dr. M.A. Haque and Others vs. Union of India and Others [1993 (2) SCC 213], J & K Public Service Commission vs. Dr. Narinder Mohan [1994 (2) SCC 630], Dr. Arundhati Ajit Pargaonkar vs. State of Maharashtra [1994 Suppl. (3) SCC 380], Union of India vs. Kishan Gopal Vyas [1996 (7) SCC 134], Union of India vs. Moti Lal [1996 (7) SCC 481], Hindustan Shipyard Ltd. vs. Dr. P. Sambasiva Rao [1996 (7) SCC 499], State of H.P. vs. Suresh Kumar Verma [1996 (7) SCC 562], Dr. Surinder Singh Jamwal vs. State of J&K [1996 (9) SCC 619], E. Ramakrishnan vs. State of Kerala [1996 (10) SCC 565], Union of India and Others vs. Bishambar Dutt [1996 (11) SCC 341], Union of India vs. Mahender Singh [1997 (1) SCC 247], P. Ravindran and Others vs. Union Territory of Pondicherry and Others [1997 (1) SCC 350], Ashwani Kumar and Others vs. State of Bihar and Others [1997 (2) SCC 1], Santosh Kumar Verma and Others vs. State of Bihar and Others [1997 (2) SCC 713], State of U.P. and Others vs. Ajay [1997 (4) SCC 88], Patna University vs. Dr. Amita Tiwari [1997 (7) SCC 198] and Madhyamik Shiksha Parishad vs. Anil Kumar Mishra [2005 (5) SCC 122].

41. The shift in the Court's approach became more prominent in A. Umarani vs. Registrar, Cooperative Societies [2004 (7) SCC 112], decided by a three-Judges Bench, wherein it was held that the State cannot invoke Article 162 of the Constitution for regularization of the appointments made in violation of the mandatory statutory provisions. In Secretary, State of Karnataka vs. Uma Devi (supra), the Constitution Bench again considered the question whether the State can frame scheme for regularization of the services of ad-hoc/temporary/daily wager appointed in violation of the doctrine of equality or the one appointed with a clear stipulation that such appointment will not confer any right on the appointee to seek regularization or absorption in the regular cadre and whether the Court can issue mandamus for regularization or absorption of such appointee and answered the same in negative. The Court adverted to the theme of constitutionalism in a system established in rule of law, expanded meaning given to the doctrine of equality in general and equality in the matter of employment in particular, multi-facet problems including the one relating to unwarranted fiscal burden on the public exchequer created on account of the directions given by the Court for regularization of the services of persons appointed on purely temporary or ad hoc basis or engaged on daily wages or as casual labourers, referred to about three dozen judgments including R.N. Nanjundappa vs. T. Thimmiah [1972 (1) SCC 409], Daily Rate Casual Labour vs. Union of India [1988 (1) SCC 122], Bhagwati Prasad vs. Delhi State Mineral Development Corporation [1990 (1) SCC 361], Dharwad District P.W.D. Literate Daily Wage Employees Association and others vs. State of Karnataka and others [1990 (2) SCC 396], State of Haryana vs. Piara Singh [1992 (4) SCC 118] and State of Punjab vs. Surinder Kumar [1992 (1) SCC 489] and held:

"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 recognised 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 16 of the Constitution, are violated. It is stated that the 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 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 who have been employed on daily wages or temporarily 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.

49. It is contended that the State action in not regularising the employees was not fair within the framework of the rule of law. The rule of law compels the State to make appointments as envisaged by the Constitution and in the manner we have indicated earlier. In most of these cases, no doubt, the employees had worked for some length of time but this has also been brought about by the pendency of proceedings in tribunals and courts initiated at the instance of the employees. Moreover, accepting an argument of this nature would mean that the State would be permitted to perpetuate an illegality in the matter of public employment and that would be a negation of the constitutional scheme adopted by us, the people of India. It is therefore not possible to accept the argument that there must be a direction to make permanent all the persons employed on daily wages. When the court is approached for relief by way of a writ, the court has necessarily to ask itself whether the person before it had any legal right to be enforced. Considered in the light of the very clear constitutional scheme, it cannot be said that the employees have been able to establish a legal right to be made permanent even though they have never been appointed in terms of the relevant rules or in adherence of Articles 14 and 16 of the Constitution."

42. In paragraph 25, the Constitution Bench specifically referred to the conclusions recorded in paragraphs 45 to 50 of the judgment in State of Haryana vs. Piara Singh (supra) and observed:

"26. With respect, why should the State be allowed to depart from the normal rule and indulge in temporary employment in permanent posts? This Court, in our view, is bound to insist on the State making regular and proper recruitments and is bound not to encourage or shut its eyes to the persistent transgression of the rules of regular recruitment. The direction to make permanent--the distinction between regularisation and making permanent, was not emphasized here--can only encourage the State, the model employer, to flout its own rules and would confer undue benefits on a few at the cost of many waiting to compete. With respect, the direction made in para 50 (of SCC) of Piara Singh is to some extent inconsistent with the conclusion in para 45 (of SCC) therein. With great respect, it appears to us that the last of the directions clearly runs counter to the constitutional scheme of employment recognised in the earlier part of the decision. Really, it cannot be said that this decision has laid down the law that all ad hoc, temporary or casual employees engaged without following the regular recruitment procedure should be made permanent."

43. In paragraph 54, the Constitution Bench clarified that the earlier decisions which run counter to the principles settled by it will stand denuded of their status as precedents.

44. In Jawaharlal Nehru Technological University vs. T. Sumalatha (Smt.) and others [2003 (10) SCC 405], it was held:-

"7. Can it be said that by virtue of this provision, the State Government assumes the responsibility of absorbing the staff employed in the organizations or establishments with which it has no administrative or financial nexus, merely because an instrumentality of the State is involved in managing it, that too, in a limited sense? The answer could only be in the negative. When the State Government or its instrumentalities have not created the posts on their own and do not bear any part of the financial burden, the question of getting the clearance from the Finance and Planning Department of the Government for the purpose of regularization or absorption does not arise. Viewed from any angle, GO No. 212 would be wholly out of place for those working in the nodal centre which is created and nurtured by the Central Government. It is not within the domain of the State Government or even the University to regulate the staff pattern or the monetary benefits of the staff working therein, without the approval of the Central Government. Therefore, no directions should have been issued to the State Government or to the University to regularize the services of Respondents 1 to 5, if necessary, by creating additional posts."

45. By virtue of Article 141 of the Constitution, the judgment of the Constitution Bench in Secretary, State of Karnataka vs. Uma Devi (supra) is binding on all the courts including this Court till the same is overruled by a larger Bench. The ratio of the Constitution Bench judgment has been followed for declining to entertain the claim of regularization of service made by ad hoc/temporary/ daily wage/casual employees or for reversing the orders of the High Court granting relief to such employees - Indian Drugs and Pharamaceuticals Ltd. vs. Workmen [2007 (1) SCC 408], Gangadhar Pillai vs. Siemens Ltd. [2007 (1) SCC 533], Kendriya Vidyalaya Sangathan vs. L.V. Subramanyeswara [2007 (5) SCC 326], Hindustan Aeronautics Ltd. vs. Dan Bahadur Singh [2007 (6) SCC 207].

46. It has further been submitted by learned State counsel that an important factor in exercise of discretionary relief under Article 226 of the Constitution of India is laches and delay. When a person who is not vigilant of his right and acquiesces into the situation, his writ petition cannot be heard after a lapse of years.

47. The issue of delay in filing the writ petition was considered by the Hon'ble Apex Court in Smt. Sudama Devi Vs. Commissioner & ors., (1983) 2 SCC 1, wherein the Apex Court has observed as under:-

"There is no period of limitation prescribed by any law for filing the writ petition under Article 226 of the Constitution. It is, in fact, doubtful whether any such period of limitation can be prescribed by law. In any event, one thing is clear and beyond doubt that no such period of limitation can be laid down either under the rules made by the High Court or by practice. For every case, it would have to be decided on the facts and circumstances whether the petitioner is guilty of laches and that would have to be done without taking into account any specific period as period of limitation. There may be cases where even short delay may be fatal while there may be cases where even a long delay may not be evidence of laches on the part of the petitioner."

48. Similarly, in State of U.P. Vs. Raj Bahadur Singh & Anr., (1998) 8 SCC 685; the Hon'ble Apex Court held that "there is no time limit for filing the writ petition. All that the Court has to see is whether the laches on the part of the petitioner are such as to disentitle him to the relief claimed by him."

49. In S.K. Mastanee Bee Vs. General Manager, South Central Railways & ors., (2003) 1 SCC 184, the Hon'ble Supreme Court held that entitlement of a particular right guaranteed under hapness condition of a party may be a ground to entertain a petition even at a belated stage. But that was a case where third party's interest had not crystallized.

50. In Northern Indian Glass Industries Vs. Jaswant Singh & ors., (2003) 1 SCC 335, the Hon'ble Apex Court held that the High Court cannot ignore the delay and laches in approaching the writ court and there must be satisfactory explanation by the petitioner as how he could not come to the Court well in time.

51. Similarly in Jagdish Lal v. State of Haryana, (1997) 6 SCC 538, this Court reaffirmed the rule if a person chose to sit over the matter and then woke up after the decision of the court, then such person cannot stand to benefit. In that case it was observed as follows: (SCC p. 542)

"The delay disentitles a party to discretionary relief under Article 226 or Article 32 of the Constitution. The appellants kept sleeping over their rights for long and woke up when they had the impetus from Union of India v. Virpal Singh Chauhan, (195) 6 SCC 684. The appellants' desperate attempt to redo the seniority is not amenable to judicial review at this belated stage."

52. In Union of India v. C.K. Dharagupta, (1997) 3 SCC 395, it was observed as follows:

"9. We, however, clarify that in view of our finding that the judgment of the Tribunal in R.P. Joshi v. Union of India, OA No. 497 of 1986 decided on 17-3-1987, gives relief only to Joshi, the benefit of the said judgment of the Tribunal cannot be extended to any other person. The respondent C.K. Dharagupta (since retired) is seeking benefit of Joshi case. In view of our finding that the benefit of the judgment of the Tribunal dated 17-3- 1987 could only be given to Joshi and nobody else, even Dharagupta is not entitled to any relief."

53. In Govt. of W.B. v. Tarun K. Roy, (1997) 3 SCC 395, their Lordships considered delay as serious factor and have not granted relief. Therein it was observed as follows: (SCC pp. 359-60, para 34)

"34. The respondents furthermore are not even entitled to any relief on the ground of gross delay and laches on their part in filing the writ petition. The first two writ petitions were filed in the year 1976 wherein the respondents herein approached the High Court in 1992. In between 1976 and 1992 not only two writ petitions had been decided, but one way or the other, even the matter had been considered by this Court in State of W.B. v. Debdas Kumar, 1991 Supp (1) SCC 138. The plea of delay, which Mr. Krishnamani states, should be a ground for denying the relief to the other persons similarly situated would operate against the respondents. Furthermore, the other employees not being before this Court although they are ventilating their grievances before appropriate courts of law, no order should be passed which would prejudice their cause. In such a situation, we are not prepared to make any observation only for the purpose of grant of some relief to the respondents to which they are not legally entitled to so as to deprive others therefrom who may be found to be entitled thereto by a court of law."

54. The Court also quoted following passage from the Halsbury's Laws of England (para 911, p.395):

"12......In determining whether there has been such delay as to amount to laches, the chief points to be considered are:

(i) acquiescence on the claimant's part; and

(ii)any change of position that has occurred on the defendant's part.

Acquiescence in this sense does not mean standing by while the violation of a right is in progress, but assent after the violation has been completed and the claimant has become aware of it. It is unjust to give the claimant a remedy where, by his conduct, he has done that which might fairly be regarded as equivalent to a waiver of it; or where by his might fairly be regarded as equivalent to a waiver of it; or where by his conduct and neglect, though not waiving the remedy, he has put the other party in a position in which it would not be reasonable to place him if the remedy were afterwards to be asserted. In such cases lapse of time and delay are most material. Upon these considerations rests the doctrine of laches."

55. The petitioner cannot claim the parity of directly recruited candidate and that too where the appointment was made according to procedure, while initial appointment of the petitioner was not in accordance with due process of law.

56. The petitioner is no more in the cadre of service, at present and retired after superannuation. Thus, the prayer as made in the petition for providing all these service benefits w.e.f. 04.03.1986 with consequential service benefits including promotion and arrear or not tenable according to Rule.

57. On the basis of submission and observations referred above, we are of the view that both the petitions are devoid of any merit and are liable to be dismissed and are hereby dismissed accordingly. The parties shall bear their cost.

Dated :- 4 July, 2017

amit

(Sheo Kumar Singh-I, J.) (Shri Narayan Shukla, J.)