Rohtas Kumar vs Delhi Transport Corporation ...
2006 Latest Caselaw 1356 Del

JUDGMENT

Shiv Narayan Dhingra, J.

1. By this writ petition, the petitioner has made a prayer to the following effect:

(a) to regularize the services of the Petitioner and to bring him in regular monthly rate of pay scale w.e.f. 4.11.1992, the date from which Suresh Kumar has been brought on monthly rate of pay or from any other date which this Honourable Court may deem fit and proper.

(b) To confirm the services of the workman.

2. The petitioner has stated that he was working as a Retainer Crew Driver on daily wages w.e.f. 1.6.1989. His services were dispensed with by the respondent on 20.2.1990. He was again appointed on 21.7.1990 and successfully completed more than six months of continuous service. His services were terminated on 25.1.1993. He then raised an industrial dispute and an award was passed in his favor on 16.2.2002 against which DTC approached High Court. The petitioner was reinstated on duty on 21.8.2002 and the award was enforced. While the petitioner was being kept on daily wages, a similarly placed driver Suresh Kumar, who was also reinstated in the year 2000 was regularized. The petitioner was filed this writ petition with a prayer that directions should be given for his regularization.

3. In the counter affidavit, the respondent has not disputed the facts but has stated that circumstances of regularization of Suresh Kumar were different. The petitioner shall be regularized at his turn in accordance with rules. The writ petition was not maintainable.

4. In Secretary, State of Karnataka and Ors. v. Umadevi and Ors. 2006 SCC(L&S) 753 Supreme Court held:

... 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 employee 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, regularization 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 maybe 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. (para43)

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-not 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 of 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 our 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. (para 45)

... 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 requirement 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. (para 48)

5. The petitioner in this case is a daily wager. He knew it very well that his employment was temporary and could come to an end anytime. He was being given work when some regular employee was absent or on long leave. He was terminated and got back into the employment due to litigation, again as a daily wager. By present writ petition, he wants to be regularized. I consider that his regularization has to be in accordance with the rules of the respondent corporation. Merely because someone else has been regularized, who was also terminated and reinstated in the year 2000, the petitioner does not get a right for regularization. This Court cannot order regularization dehors the rules

6. The writ petition has no force. Same is hereby dismissed. No orders as to cost.