CASE NO.:

Appeal (civil)  4327 of 2003

 

PETITIONER:

Rajasthan Krishi Vishva Vidhyalaya, Bikaner

 

RESPONDENT:

Devi Singh

 

DATE OF JUDGMENT: 14/02/2008

 

BENCH:

Dr. ARIJIT PASAYAT & P. SATHASIVAM

 

JUDGMENT:

J U D G M E N T

 

CIVIL APPEAL NO. 4327 OF 2003

(With Civil Appeal No. 712/2004,

C.A. No. 1053/2006, C.A. No. 4309/2006,

C.A. No. 4310/2006, C.A. No. 4311/2006,

C.A. No.  4312/2006, C.A. No.  4313/2006)

C.A. No.  4314/2006)

 

Dr. ARIJIT PASAYAT, J.

 

1.         Challenge in these appeals is to the orders passed by a

Division Bench of the Rajasthan High Court, Jodhpur

directing consideration of the case of respondent in each case

under the Rajasthan (Regulation of Appointments to Public

Service and Rationalisation of Staff) Act, 1999 (in short the

'Act').

 

2.         Background facts in a nutshell are as follows:

 

.           Respondents were appointed on daily wage basis. Their

services were terminated as there was no further work in the

research centre where they were appointed and/or on the

basis that there was no work available and there was no

approved list. The State of Rajasthan passed the Act in the

year 1999.

 

3.         Respondent in each case filed a writ petition praying for a

direction to the present appellant to give benefit of

regularization on the post of Class IV employees and to give

regular scale of pay with effect from the date from which

persons junior to him were given benefit of regularization and

regular pay scale. Prayer was also made to declare Sections 7,

9, 11 and 19 of the Act to be ultra vires to the Constitution of

India, 1950 (in short the 'Constitution'). 

 

4.         The High Court placing reliance on an earlier judgment

in Bhawani Singh and Ors. v. State and Ors. (2002 (3) Western

Law cases 728) declared Sections 9, 11 and 19 as ultra vires

and directed the appellant to consider the case of the writ

petitioner in each case for regularization in the light of

aforesaid judgment and if found eligible to consider his case

for regularization with effect from the date on which any other

person junior to him had been granted the same benefits. 

 

5.         Stand of the appellant is that since none of the

respondents was in employment of the University from 1992 to

1995, the question of extending the benefit of regularization

from the date when his junior, if any, was regularized does not

arise. Respondents' stand was that each was entitled to

regularization because of long rendition of service. The

question relating to regularization of service on the ground of

long rendition of service was the subject matter in a decision

by a Constitution Bench of this Court in Secretary, State of

Karnataka and Ors. v. Umadevi (3) and Ors. (2006 (4) SCC 1).

 

6.         The said issue has been elaborately dealt with in the

judgment. It was inter alia held as follows:

 

 

"33. It is not necessary to notice all the

decisions of this Court on this aspect. By and

large what emerges is that regular recruitment

should be insisted upon, only in a contingency

and ad hoc appointment can be made   in a

permanent vacancy, but the same should soon

be followed by a regular recruitment and that

appointments to non available posts should

not be taken note of for regularization. The

cases directing regularization have mainly

proceeded on the basis that having permitted

the employee to work for some period, he

should be absorbed, without really laying

down any law to that effect, after discussing

the constitutional scheme for public

employment.

 

            xxx      xxx                  xxx

 

45.       While directing that appointments,

temporary or casual, be regularized or made

permanent, courts are swayed by the fact that

the concerned person 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 arms 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. If

the court were to void  contractual

employment of this nature on the ground that

the parties were not having equal bargaining

power, that too would not enable the court to

grant any relief to that employee. A total

embargo on such casual or temporary

employment is not possible. Given the

exigencies of administration, and if imposed,

would only mean that some people who at

least get employment temporarily,

contractually or casually, would not be getting

even that employment, moreover when

securing of such employment brings at least

some succor to them. After all, innumerable

citizens of our vast country are in search of

employment and one is not compelled to

accept a casual or temporary employment if

one is not inclined to go in for such an

employment. 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 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.

x x x

 

47.       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 recognized by the relevant rules or

Procedure, he is aware of the consequences of

the appointment being temporary, casual or

contractual in nature. Such a person cannot

invoke the theory of legitimate expectation for

being confirmed in the post when an

appointment to the post could be made only by

following a proper procedure for selection and

in concerned cases, in consultation with the

Public Service Commission. Therefore, the

theory of legitimate expectation cannot be

successfully advanced by temporary,

contractual or casual employees. It cannot also

be held that the State has held out any

promise while engaging these persons either to

continue them where they are or to make them

permanent. The State cannot constitutionally

make such a promise. It is also obvious that

the theory cannot be invoked to seek a positive

relief of being made permanent in the post.

xxx

52. 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

favour of such persons. At this juncture, it will

be proper to refer to the decision of the

Constitution Bench of this Court in Dr. Rai

Shivendra Bahadur v. The 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 be issued 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 favour 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."  (See Chief Commissioner of

Income Tax & Ors. v. Smt. Susheela Prasad

and Ors. (2007 (8) Supreme 635)."

 

 

 

7.         In view of what has been stated in Uma Devi's case

(supra), we deem it proper to remit the matter to the High

Court to consider the cases afresh in the light of the said

decision.

           

8.         The appeals are allowed to the aforesaid extent with no

order as to costs.