Madras High Court
K.Ari Krishnan vs The Union Of India on 25 August, 2023
W.P.No.25614 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 25.08.2023
CORAM :
THE HON'BLE MR. JUSTICE D.KRISHNAKUMAR
AND
THE HON'BLE MR.JUSTICE P.B.BALAJI
W.P.No.25614 of 2019
1. K.Ari Krishnan
2. S.Sivanesan
3. V.Baskaran .. Petitioners
v.
1. The Union of India
rep.by the Special Director General
Southern Region
CPWD, Rajaji Bhavan
Chennai 600 090
2. The Chief Engineer
CPWD, Rajaji Bhavan
Besant Nagar
Chennai 600 090
3. The Superintending Engineer
PCD/CPWD
Pondicherry-6
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W.P.No.25614 of 2019
4. The Central Administrative Tribunal
Chennai Bench
represented by its Registrar
City Civil Court Campus
High Court, Madras .. Respondents
Writ Petition filed under Article 226 of the Constitution of India,
praying for issuance of a Writ of Certiorarified Mandamus, calling for the
records of the 1st respondent in its No.57(2)CAT/DDG(HQ)/2016/91 dated
03.02.2016 as confirmed by the Central Administrative Tribunal, Chennai
Bench viz., the 4th respondent herein in MA.No.45/2019 in OA.1222/2016
dated 04.02.2019 and quash the same and consequently direct the
respondents to regularise the petitioners on an regular basis in any Group D
vacancies, in the light of the Notification dated 31.07.2002 prohibiting
engagement of contract employees.
For Petitioners :: Mr.V.Vijay Shankar
For Respondents :: Mr.A.Kumaraguru
Senior Panel Counsel for R1 to R3
R4-Tribunal
ORDER
(Order of the Court was made by D.KRISHNAKUMAR,J.)
W.M.P.No.25136 of 2019 seeking to permit the petitioners to file a
single writ petition is allowed as full Court fee has been paid.
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W.P.No.25614 of 2019
2. It is the claim of the petitioners that they are working in the office
of the third respondent continuously without any break for more than 15
years for doing the works of plumbing, carpentry, beldar etc., although
engaged initially on hand receipt basis by the department, through a
registered contractor on casual or contract basis. When the Department did
not take steps to regularise their services in the regular sanctioned
vacancies, they made representations seeking for their absorption against
such posts. But the first respondent, by order dated 3.2.2016, rejected their
request stating that they were only engaged on contract basis and had also
crossed the upper age limit. Challenging the said order, they filed the
O.A.No.1222 of 2016 before the Central Administrative Tribunal, Chennai
Bench seeking appropriate direction to the respondents to appoint them in
the regular Group D vacancies. A detailed counter affidavit was also filed
by the respondents 1 to 3. However, when the matter was posted for hearing
on 27.11.2018, the O.A., was dismissed for default. Therefore, the
petitioners filed M.A.No.45 of 2019 before the Central Administrative
Tribunal to set aside the dismissal order and to restore the O.A., to file. But
the said application was also dismissed by the order dated 04.02.2019.
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W.P.No.25614 of 2019
Aggrieved thereby, the present writ petition has been filed.
3. The learned counsel appearing for the petitioners strenuously
argued before this Court that when the petitioners have been working
continuously for more than 15 years as casual labourers on daily wage basis
with the respondent Department either engaged directly or through a
registered contractor, they are entitled to seek for regularisation of their
services. He further submitted that the Central Administrative Tribunal has
not passed orders on merits and when an application was filed by the
petitioners for restoration of the O.A., the Central Administrative Tribunal,
recording the submission made by the learned counsel appearing for the
respondent Department that the petitioners were already disengaged and the
prayer has become infructuous, dismissed the O.A., for default. According
to the petitioners, since the O.A., has not been disposed of on merits, the
order passed by the Central Administrative Tribunal is liable to be set aside.
4. The learned Senior Panel Counsel appearing for the respondents 1
to 3, stoutly opposing the prayer made on behalf of the petitioners,
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W.P.No.25614 of 2019
submitted that when the petitioners were not at all appointed by the
respondent Department and they have been engaged only as casual
labourers under a registered contractor on hand receipt basis or work order
basis for plumbing, carpentry or beldar jobs, the petitioners have no legal
right to seek for regularisation of their services in the regular vacancies.
Hence, he submitted that when the petitioners have no locus standi to
maintain the writ petition, the order passed by the Central Administrative
Tribunal requires no interference.
5. We have carefully considered the rival contentions. The issue
raised in this writ petition is no longer res integra, as the Constitution Bench
of the Hon'ble Supreme Court way back in the year 2006, in the case of
Secretary, State of Karnataka v. Uma Devi and others (2006) 4 SCC 1, has
succinctly held that 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
procedures and he is aware of the consequences of appointment being
temporary, casual or contractual in nature, such persons cannot invoke the
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W.P.No.25614 of 2019
theory of legitimate expectation for being confirmed in the post. In the said
judgment, the Hon'ble Supreme Court has observed as follows:-
“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 said judgment was also relied upon by the Hon'ble Supreme Court in
the subsequent decisions in State of Rajasthan v. Daya Lal and others, AIR
2011 SC 1193 and in Secretary to Government, School Education
Department, Chennai v. R.Govindaswamy and others, (2014) 4 SCC 769 by
emphatically holding that the High Courts, in exercising power under
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W.P.No.25614 of 2019
Article 226 of the Constitution of India, will not issue directions for
regularization, absorption or permanent continuance. Unless the employees
claiming regularization had been appointed in pursuance of a regular
recruitment in accordance with relevant rules in an open competitive
process against sanctioned vacant posts, the equality clause contained in
Articles 14 and 16 should be scrupulously followed and Courts should not
issue a direction for regularization of services of an employee which would
be violative of the Constitutional scheme.
6. Following the aforesaid decisions, this Court also in various
judgments had held that the persons engaged on contract or casual or daily
rate basis have no vested right to seek for regularisation of their services. In
fact, following the aforesaid decisions of the Hon'ble Supreme Court, a
Division Bench of this Court to which one of us (DKKJ) was a member, in
W.A.Nos.69 to 72 & 74 of 2019 dated 16.06.2023 (Secretary to
Government for Women and Child Welfare Department v. S.Anbu and
others), has held that the persons engaged on casual or daily rate basis are
not entitled to seek for regularisation of their services.
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W.P.No.25614 of 2019
7. In the light of the above dictum, coming back to the facts of the
present case, it is the admitted case of both sides that the petitioners were
not appointed by the respondent Department either in the sanctioned posts
or by following the procedures established in law in the matter of public
employment. Further, the petitioners have not placed any material before
this Court to show that they have been appointed by the respondent
Department in any sanctioned vacancies through an offer of appointment.
In such circumstances, accepting the contention of the respondent
Department that the petitioners were already disengaged by the registered
contractor, we hold that the petitioners are not entitled to seek for
regularisation of their services in the regular sanctioned vacancies and on
this score, the writ petition is liable to be dismissed.
8. However, considering the plight of the petitioners that they were
engaged by the registered contractor on casual or daily rate basis and they
have been performing their jobs as skilled labourers, liberty is granted to the
petitioners to approach the authority concerned seeking for employment and
it is wholly for the respondents 1 to 3 to consider the same in accordance
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W.P.No.25614 of 2019
with law, as this Court has not expressed any opinion in this regard in view
of the settled legal principles. With this observation, the writ petition stands
dismissed. Consequently, W.M.P.Nos.25138, 25139 of 2019 and 21767 of
2020 are also dismissed. There shall be no order as to costs.
(D.K.K.,J.) (P.B.B,J.)
Index : yes/no 25.08.2023
Neutral citation : yes/no
ss
To
1. The Special Director General
Southern Region
CPWD, Rajaji Bhavan
Chennai 600 090
2. The Chief Engineer
CPWD, Rajaji Bhavan
Besant Nagar
Chennai 600 090
3. The Superintending Engineer
PCD/CPWD
Pondicherry-6
4. The Registrar
Central Administrative Tribunal
Chennai Bench
Chennai 600 104
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W.P.No.25614 of 2019
D.KRISHNAKUMAR,J.
AND
P.B.BALAJI,J.
ss
W.P.No.25614 of 2019
25.08.2023
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