Mukesh Kumar Bhatt And Others ... vs State Of Uttarakhand And Others
2021 Latest Caselaw 1484 UK

      HIGH COURT OF UTTARAKHAND AT NAINITAL

                 Writ Petition (S/S) No. 491 of 2021

Mukesh Kumar Bhatt and others                         ........... Petitioners

                                   Vs.

State of Uttarakhand and others                    ........... Respondents


Mr. Anil Kumar Joshi, Advocate for the petitioners.
Mr. Pooran Singh Bisht and Mrs. Anjali Bhargawa, Additional Chief Standing
Counsel for the State/respondent nos.1 to 4.




                               JUDGMENT

Hon'ble Ravindra Maithani, J. (Oral)

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

"(i) Issue a writ order or direction in the nature of certiorari to quash the impugned advertisement No.30/USSSC/2021 dated 5.2.2021 issued by Uttarakhand Subordinate Service Selection Commission (contained as Annexure No.3 to this writ petition) as far as it relates to the post of Assistant accountant in food and civil supply department.

(ii) Issue a writ order or direction in the nature of mandamus commanding the respondents not to fill up 8 posts of Assistant Accountant in Food and Civil Supply Department of Uttarakhand till the final adjudication of the SLP bearing No.2388/2019.

(iii) Issue any other or further writ, order or direction which this Hon'ble Court may deem fit and proper in the circumstances of the case.

(iv) To award the cost of the petition in favour of the petitioners."

2. It is the case of the petitioners that they were engaged in the Agriculture, Food and Civil Supply Department of the State of Uttarakhand on outsource basis. They were deployed by Uttarakhand Purv Sainik Kalyan Nigam Limited (for short, "UPNL"). The petitioners have been working since long on the posts on which they were engaged. But now, the State of Uttarakhand had advertised the posts, on which the petitioners are working, for regular employment. It is also the case of the petitioners that, in a Writ Petition (PIL) No.116 of 2018, Kundan Singh vs. State of Uttarakhand and others (for short, "the writ petition"), this Court on 12.11.2018, issued various directions to the respondents to regularize the employees sponsored through UPNL. But, the State Government instead of complying with the directions preferred Special Leave Petition No.2388 of 2019, before the Supreme Court, by which the order of the Court passed in the writ petition dated 12.10.2018, was stayed.

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 for the last many years with the State Government Department; they have not been regularized. The directions given in the Writ Petition on 12.11.2018, have been stayed by the Hon'ble Supreme Court. It is argued that it does not at all diminishes the order, which was put to challenge. The effect of stay is only to keep the order impugned in abeyance. Therefore, it is argued that, in case, now the posts are filled up by the direct recruitment, it will adversely effects the rights of the petitioners.

5. On behalf of the State, learned counsel would submit that he has nothing to say.

6. 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.

7. 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. 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."

(emphasis supplied)

8. 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.

9. The petition is dismissed in limine.

(Ravindra Maithani, J.) 12.04.2021 Sanjay