Mr. Sanjay Kumar And Ors. vs Municipal Corp. Of Delhi And Ors.
2006 Latest Caselaw 2243 Del

JUDGMENT

J.M. Malik, J.

1. The facts germane to the case of the petitioners are these. The petitioners are working as Domestic Breeding Checkers/Health Workers with the Health Department of MCD since 1996 on daily wages/contract works in various specialised programmes like Anti-Malaria Operations and others at a consolidated sum and time as specified and declared by the respondent. MCD published a public notice dated 03.01.2006 mentioning that seniority list is being prepared by MCD on the basis of initial date of engagement of Domestic Breeding Checkers/Health Workers from 1977.

2. This Court vide writ petition titled Ashok Kumar and Ors. v. MCD and and Ors. in W.P.(C) No. 476-97 of 2006 issued certain directions for preparation of seniority list. The respondent published seniority list dated 04.05.2006. However, the seniority list does not mention about the post of health workers. There is no sanctioned post for Domestic Breeding Checker but the post of Health Worker is a sanctioned post on which the respondent had been recruiting regular employees. The petitioners have been working at the post of Health Workers since 1996.

3. On 26.07.2006, the MCD required the petitioners to submit affidavits mentioning all the terms and conditions of the agreement. They also threatened the petitioners that they would remove the petitioners from duty, if the petitioners do not follow the said order. The said affidavit mentions that the engagement of the petitioners is as Domestic Breeding Checkers, only. It is alleged that it would jeopardize the petition of the petitioners who have been serving the respondents as Health Workers. Again, it would also affect the petitioners in future employment. Under these circumstances, it has been prayed that the proposed agreement in the form of affidavit be set aside, MCD be directed to treat the petitioners in service as Health Workers and to start process for regularization of the petitioners as per seniority list and to give minimum wages as prevalent in the State of Delhi.

4. I have heard the counsel for the parties. The learned Counsel for the petitioners vehemently argued that the petitioners are working in the MCD for the last more than ten years. He alleged that the petitioners are being forced to file the above said affidavits which would certainly affect their careers, scope of further employment and the question of their seniority. He also pointed out that this Court in so many connected cases had already granted stay orders and has produced the copies of three / four orders in this context.

5. I see no force in the arguments urged by learned Counsel for the petitioner. This is an admitted fact that the petitioners are daily wagers. They have no legal right. In the recent celebrated authority reported in Secretary, State of Karnataka v. Uma Devi , it was held:

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. 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, regularization or permanent continuance unless the recruitment itself was made regularly and in terms of the constitutional scheme.

It was also observed:

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 favor of such persons. At this juncture, it will be proper to refer to the decision of the Constitution Bench of this Court in Rai Shivendra Bahadur (Dr.) v. 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. This 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 favor 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.

It is for the petitioner to sign or not to sign the above said affidavits. There is no compulsion. If they sign the affidavit, they will do it at their own peril. It is true that at the initial stage, I granted stay to these applicants as well as to the other applicants in connected cases. Now, I have heard the stay application on merits, which is being decided after hearing both the parties at length. Consequently, I hereby vacate the stay order.

In view of the above order, the case is fixed for its maintainability on 29.01.2007.