Ajay Kandwal And Others ...... ... vs State Of Uttarakhand And Others
2021 Latest Caselaw 1358 UK

      HIGH COURT OF UTTARAKHAND AT NAINITAL

                  Writ Petition (S/S) No. 503 of 2021

Ajay Kandwal and others                                       ...... Petitioners

                                      Vs.

State of Uttarakhand and others                             ..... Respondents


Mr. D.S. Mehta, Advocate for the petitioners.
Mrs. Anjali Bhargawa, Additional Chief Standing Counsel for the State/respondent
nos.1 to 4.
Mr. Pankaj Purohit, Advocate for the respondent no.5.
Mr. Pajkaj Kumar, Advocate holding brief of Mr. Neeraj Garg, Advocate for the
respondent no.6.



                                JUDGMENT

Hon'ble Ravindra Maithani, J. (Oral)

The instant writ petition has been filed seeking the following reliefs:-

"I. To issue any appropriate writ rule or direction in the nature of Certiorarified mandamus quashing the impugned advertisement dated 05.02.2021 (contained as Annexure No.1 to the writ petition); as unreasonable arbitrary, unconstitutional and unjust and to struck down and quash the same along with its effect and operation also after calling the entire record from the respondent or to mold the relief appropriately keeping in view of the facts and circumstances of the case highlighted in the body of the petition.

II. To issue appropriate order or direction by directing the respondent, first to consider the case of the petitioners for regular appointment on the basis of keeping in view the fact highlighted in the body of the petition. And also issue a writ of mandamus by restraining the

respondent not to fill up those vacancies which are against which the petitioners have been working by giving them preference, weightage relaxation of age and qualification before making any fresh exercise of recruitment from open market.

III. To issue any writ, rule or direction which this Hon'ble Court may deem fit and proper in the circumstances of the case.

IV. Award to the cost of the petition."

2. It is the case of the petitioners that they are posted in Department of Agriculture in the Government of Uttarakhand, on the post of Accountants and Junior Accounts Clerks through Uttarakhand Purv Sainik Kalyan Nigam Limited (for short, "UPNL"); the engagement of the petitioners through UPNL is sham and farce because most of the departments do not have any license under the Contract Labour (Regulation and Abolition) Act, 1970 (for short, "the Act"); that the matter in respect of real employer and rights of the petitioners has been determined in a Public Interest Litigation by this Court in Writ Petition No.116 of 2018 (PIL), in which, various directions were issued for regularization of the employees sponsored through UPNL but, it is challenged before the Hon'ble Apex Court. It is the case of the petitioners that they had been working with all dedications but, despite that an advertisement has been issued by the Government for regular appointment on the posts on which petitioners are working. The petitioners have not been given any preference, relaxation of age, etc. which is violative of the settled law. Therefore, the petitioners have sought quashing of the impugned advertisement dated 05.02.2021 as well as directions to regular appointments of the petitioners on the posts, on which, they are working be considered by the respondents.

3. Heard learned counsel for the parties and perused the record.

4. Learned counsel for the petitioners would submit that the petitioners have been working in the department since 2010 or 2013, they are fully qualified; in the impugned advertisement, no age relaxation or preference to their experience has been given, whereas, on the earlier occasions, the Government vide Government Orders has accorded such benefits to the experienced persons. The petitioners ought to have been absorbed on the posts on which they are working in view of the length of services they have put in.

5. To a pointed query of the Court, learned counsel for the petitioners would submit that the rules which govern appointment of the posts for recruitment of which, the advertisement has been issued, does not prescribe for giving preference to such experience, which the petitioners are carrying.

6. On behalf of the State, it is submitted that in fact, the last date for submission of application form has already expired.

7. On behalf of the respondent no.5, learned counsel would submit that provisions of the Act are not applicable in the instant case. Respondent no.5 is a recruiting agency.

8. It is the case of public employment, no one has a preferential right in such employments unless the rules provide for it; the rules framed under the statute must withstood the test of its constitutionality, particularly under Article 14 and 16 of the Constitution of India.

9. It is the case of the petitioners that they were deployed to work with the respective Government departments though an outsourcing agency, which is UPNL. It is also admitted to the petitioners that they are paid the wages through UPNL. It means, the petitioners have no employer-employee relationship with the State department. The main basis of the claim of the petitioners is the length of service, which they are already put in, as well as, their eligibility for appointment on the post. The petitioners have not been appointed by way of a public advertisement and after undertaking as selection

process. They are deployed to work by UPNL. They cannot stop regular recruitment. In the case of Secretary, State of Karnataka and others vs. Umadevi (3) and others, (2006)4 SCC 1. The Hon'ble Supreme Court in para 43 observed as under:-

"43. 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. 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, regularisation, 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 may be 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."

10. The petitioners are not regular employees. They are not appointed under the rules. They are temporarily engaged on deployment by an outsource agency, therefore, in view of the law laid down in the case of Umadevi (supra), the petitioners cannot stop regular appointment. Length of service also does not give them any right for regularization. Therefore, the Court is of the view that there is no merit in the petition and it deserves to be dismissed.

11. The petition is dismissed in limine.

(Ravindra Maithani, J.) 07.04.2021 Sanjay