Uttarakhand High Court
Mukesh Kumar Bhatt & Others ... vs State Of Uttarakhand & Others on 25 April, 2025
Author: Manoj Kumar Tiwari
Bench: Manoj Kumar Tiwari
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
HON'BLE MR. MANOJ KUMAR TIWARI, J.
HON'BLE MR. ASHISH NAITHANI, J
SPECIAL APPEAL No.183 of 2021
Mukesh Kumar Bhatt & others ...Appellants
Versus
State of Uttarakhand & others ...Respondents
Counsel for the appellant : None present.
Counsel for State Mr. K.N. Joshi, learned DAG
JUDGMENT :
(PER HON'BLE MR. MANOJ KUMAR TIWARI. J)
This intra court appeal is filed by the writ
petitioners challenging the judgment dated 12.04.2021,
passed by learned Single Judge in WPSS No.491 of
2021. The operative portion of the impugned judgment
is reproduced below:
"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."
2. Learned counsel for the appellants contend
that after having served on contract in Food and Civil
Supply Department of Uttarakhand, for considerable
period of time, appellants have earned a right for
regularization of their services, which cannot be denied
by making regular appointment through Uttarakhand
Subordinate Service Selection Commission (in short
"Commission").
3. It is contended that pursuant to the requisition
sent by State Government, Commission had issued
advertisement dated 05.02.2021 inviting applications for
appointment on the post of Assistant Accountant, which
was challenged by appellants in the writ petition on the
ground that petitioners are serving against the
vacancies, which were advertised, therefore, the right
earned by appellants after rendering long services
cannot be defeated by holding selection for regular
appointment.
4. Learned State Counsel per contra submits that
appellants are not employee of Food and Civil Supply
Department, and they were engaged through an
outsourcing agency, namely, UPNL, and wages are also
paid to them by UPNL out of the funds provided by Food
and Civil Supply Department, Uttarakhand for this
purpose. Thus, he submits that there is no employer-
employee relationship between appellants and the State
Government, therefore, right of regularization is not
available to the appellants in the Department.
5. Learned State Counsel further submits that a
person engaged as daily wager, adhoc or contract
employee dehors the Rules, has no right to challenge the
process of selection initiated by the employer for making
regular appointment against available vacancies, even
though such person is serving against such vacancy. He
submits that casual employees are engaged to meet the
exigencies of work without holding any selection and
they do not have the same rights as regular employee in
terms of job security. He further submits that Hon'ble
Apex Court has repeatedly held that vacant posts under
the State must be filled by regular selection as per the
Rules, and practice of making casual appointments
without following the Rules has been deprecated. He
submits that learned Single Judge has rightly relied upon
the law declared by Constitution Bench of Hon'ble Apex
Court in the case of "Secretary State of Karnataka &
others Vs Umadevi and others" reported in 2006 (4) SCC
1.
6. Learned State Counsel has relied upon another
judgment rendered in the case of "State of Uttar
Pradesh & another Vs. Ram Adhar" reported in 2008
(12) SCC 136. Paragraph 5 of the said judgment is
reproduced below:-
"5. It may be mentioned that there is no
principle of law that a person appointed in a
temporary capacity has a right to continue till
a regular selection. Rather, the legal position is
just the reverse, that is, that a temporary
employee has no right to the post vide State of
U.P. v. Kaushal Kishore Shukla [(1991) 1 SCC
691 : 1991 SCC (L&S) 587 : (1991) 16 ATC
498] . Hence, he has no right to continue even
for a day as of right, far from having a right to
continue till a regular appointment."
7. We find substance in the submission made by
learned State Counsel. A daily wager or a casual
employee engaged in a State Department to meet the
exigencies of work cannot question the process of
selection, for regular appointment, when initiated by the
employer. In fact the employer is under a statutory duty
to make appointment to a public post strictly as per
applicable Recruitment Rules, which are statutory in
nature. The post of Assistant Accountant in Food and
Civil Supply Department is required to be filled by
selection through Commission, therefore, an employee
engaged on contract, to discharge duties as Assistant
Accountant, cannot question the process of regular
selection initiated by the Commission pursuant to the
request made by employer.
8. Hon'ble Apex Court in the case of "Union of
India Vs. Kartick Chandra Mondal and another" reported
in 2010 (2) SCC 422 had an occasion to consider a
similar issue. Relevant discussion is made in paragraphs
21 to 25 of the said judgment, which are reproduced
below:-
"21. The next issue that we are now required to
consider is whether the aforesaid respondents could
have been directed to be so absorbed. Similar issues
regarding absorption or regularisation of casual
labour are raised time and again in various branches
and offices of the Government and this Court has had
the opportunity to deal with such issues in the past in
several cases. We attempt to refer to two decisions of
this Court which are considered to be the latest
decisions and landmark decisions and which are
binding on us.
22. We may refer to the Constitutional Bench
decision of this Court in State of
Karnataka v. Umadevi (3) [(2006) 4 SCC 1 : 2006
SCC (L&S) 753] . The relevant portion of the said
judgment viz. paras 43 and 45, are as follows: (SCC
pp. 36 & 37-38)
"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. ...
***
45. While directing that appointments,
temporary or casual, be regularised 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. ... It is in that
context that one has to proceed on the basis
that the employment was accepted fully
knowing the nature of it and the
consequences flowing from it. In other words,
even while accepting the employment, the
person concerned knows the nature of his
employment. It is not an appointment to a
post in the real sense of the term. The claim
acquired by him in the post in which he is
temporarily employed or the interest in that
post cannot be considered to be of such a
magnitude as to enable the giving up of the
procedure established, for making regular
appointments to available posts in the
services of the State. The argument that since
one has been working for some time in the
post, it will not be just to discontinue him,
even though he was aware of the nature of
the employment when he first took it up, is
not (sic) one that would enable the jettisoning
of the procedure established by law for public
employment and would have to fail when
tested on the touchstone of constitutionality
and equality of opportunity enshrined in
Article 14 of the Constitution."
23. Subsequent to the aforesaid decision, the issue
again arose for consideration before a three-Judge
Bench of this Court in Official
Liquidator v. Dayanand [(2008) 10 SCC 1 : (2009) 1
SCC (L&S) 943] wherein this Court in paras 68 and
116 observed as follows: (SCC pp. 44 & 67)
"68. The abovenoted judgments and orders
encouraged the political set-up and
bureaucracy to violate the soul of Articles 14
and 16 as also the provisions contained in the
Employment Exchanges (Compulsory
Notification of Vacancies) Act, 1959 with
impunity and the spoils system which
prevailed in the United States of America in
the sixteenth and seventeenth centuries got a
firm foothold in this country. Thousands of
persons were employed/engaged throughout
the length and breadth of the country by
backdoor methods. Those who could pull
strings in the power corridors at the higher
and lower levels managed to get the cake of
public employment by trampling over the
rights of other eligible and more meritorious
persons registered with the employment
exchanges. A huge illegal employment market
developed in different parts of the country
and rampant corruption afflicted the whole
system. ...
***
116. In our opinion, any direction by the
Court for absorption of all company-paid staff
would be detrimental to public interest in
more than one ways. Firstly, it will compel the
Government to abandon the policy decision of
reducing the direct recruitment to various
services. Secondly, this will be virtual
abrogation of the statutory rules which
envisage appointment to different cadres by
direct recruitment."
24. In our considered opinion, the ratio of both the
aforesaid decisions are clearly applicable to the facts
and circumstances of the present case. In our
considered opinion, there is misplaced sympathy
shown in the case of the respondents who have
worked with the appellants only for two years i.e.
from 1981 to 1983.
25. Even assuming that the similarly placed persons
were ordered to be absorbed, the same if done
erroneously cannot become the foundation for
perpetuating further illegality. If an appointment is
made illegally or irregularly, the same cannot be the
basis of further appointment. An erroneous decision
cannot be permitted to perpetuate further error to
the detriment of the general welfare of the public or a
considerable section. This has been the consistent
approach of this Court. However, we intend to refer
to a latest decision of this Court on this point in State
of Bihar v. Upendra Narayan Singh [(2009) 5 SCC 65
: (2009) 1 SCC (L&S) 1019] , the relevant portion of
which is extracted hereinbelow: (SCC p. 102, para
67)
"67. By now it is settled that the guarantee
of equality before law enshrined in Article 14 is
a positive concept and it cannot be enforced by
a citizen or court in a negative manner. If an
illegality or irregularity has been committed in
favour of any individual or a group of
individuals or a wrong order has been passed
by a judicial forum, others cannot invoke the
jurisdiction of the higher or superior court for
repeating or multiplying the same irregularity
or illegality or for passing wrong order...."
9. In view of the aforesaid legal position, learned
Single Judge was justified in denying the relief to the
appellants. Thus, there is no scope for interference. The
special appeal fails and is dismissed.
MANOJ KUMAR TIWARI. J.
ASHISH NAITHANI, J.
Dt:25th April, 2025
NR/
