WP/25078/2005 of P.Govinda Raj, Vs The Managing Director, State Bank of Sourashtra, Head Office on 31 December 2015

Conclusion

ORDER:

This writ petition is filed seeking a Writ of Mandamus declaringthe action of the respondents in not considering the case of thepetitioner for absorption pursuant to H.O.Circular No.Per:14/98-99,dated 08.06.1998 issued by the 1[st] respondent as illegal and arbitrary.

Heard the learned counsel appearing for the petitioner and thelearned Counsel appearing for the respondents.

The brief facts of the case are as under:

The petitioner was appointed as Peon-cum-Farash in the StateBank of Sourashtra, Sripuram Colony Branch, Malakpet, Hyderabadon consolidated wages and he worked as such in different spells from03.08.1996 to 29.11.1996 for more than 240 days and as on the date offilling of the writ petition, he was being paid Rs.2,400/- per month. While so, the 1[st] respondent issued notification dated 08.06.1998 forabsorption of temporary subordinate staff employees as permanentstaff who have put in a temporary service of 90/240/270 days or moreafter 01.11.1991. As the petitioner has completed 240 days of work,the 4[th] respondent vide letters dated 21.07.1999, 10.11.1999,30.12.1999, 28.01.2000, 23.12.2000, 12.02.2001, 28.07.2001 and28.12.2001 recommended the case of the petitioner to the 3[rd]respondent for absorption. The 3[rd] respondent directed the 4[th]respondent vide letter dated 18.07.2001 to submit the details of thesanctioned strength and actual subordinate staff, for which the 4[th]respondent sent details. The grievance of the petitioner is that thoughhe is entitled for regular absorption as sub-staff, the respondents didnot consider his case.

The respondents filed detailed counter denying the contentionsof the petitioner. The respondents admitted that the petitioner belongsto B.C-A community, but denied the appointment of the petitioner onconsolidated wages. It is stated that due to exigency of work, thepetitioner might have been engaged on temporary basis, but it will notconfer any right to claim absorption. It is further contended that theState Bank of Sourashtra has been merged into State Bank of Indiaand the State Bank of India after 31.03.1997 has no scheme forabsorption of any employee, except the recruitment under dueprocess. The alleged notification dated 08.06.1998 said to have beenissued by the State Bank of Sourashtra is misconceived. In fact, thesaid instructions speak of only granting a chance for appearing at theinterview for appointment against part time vacancies as likely to ariseup to June, 1999. However, the said instructions could not be pursuedfurther owing to denial of permission for recruitment by the Governmentof India. It is denied that the petitioner has completed 240 days ofwork. It is contended that the petitioner claiming as temporary workercannot maintain this writ petition and he has to approach before theappropriate Forum available under the Industrial Disputes Act.

The admitted case is that the writ petitioner worked for more than100 days in the year 1996 with the State Bank of Sourashtra, SripuramColony Branch as a temporary daily wage Peon-cum-Farash and saidto be still continuing. In the said Branch, the vacancy of Peon-cum-Farash arose since the part-time Peon-cum-Farash by name Saralahas been appointed as full time peon. Another sub-staff by nameOmprakash was relieved for reporting at Visakhapatnam. Therefore, inbetween 03-08-1996 to 29-11-1996, i.e., for about four months, the writpetitioner was appointed by different orders and worked as such for100 days on a weekly wages of Rs.350/-.

On 27-06-1998, the State Bank of Sourashtra has called for theapplications from temporary sub-staff employees who worked for about90/240/270 days or more after 01-01-1991 but before 31-07-1997.

Since satisfied the said requirement, he applied for the said temporaryappointment but he was not appointed. The Branch where he wasworking has certified his services and also recommended to theauthorities concerned to appoint the petitioner as a part-time employeein the branch since there was no one to attend to the duties of Peon-cum-Farash. The original respondents did not consider the applicationof the petitioner and hence he filed the writ petition with a prayer thatthe action of the original respondents in not considering the case of thewrit petitioner for absorption be declared as illegal, arbitrary andconsequently direct that the petitioner be absorbed as a regular sub-staff.

During the year 2008, by notification dated 13-08-2008, the StateBank of Sourashtra was acquired by the State Bank of India by takingover the said bank as per the notification. Therefore, respondentsNo.5 to 8 have been impleaded in the writ petition.

The contention of the respondents/transferee bank is that the writpetitioner is not entitled to the relief since no notification as such wasissued for filling up the posts and merely because the applicationsfrom the candidates eligible to be appointed as part-time Peon-cum-Farash was issued, that will not confer any right upon the writpetitioner to seek his absorption or appointment as a regular part-timePeon-cum-Farash. The other objection is that the question as towhether the writ petitioner has worked for the specified number of daysand whether his engagement as a daily wage Peon-cum-Farash wasregularly made are the questions of fact, which cannot be adjudicatedin the writ petition. The remedy if any of the writ petitioner is to invokethe forums under the Industrial Disputes Act but he cannot seek Writ ofMandamus directing the transferee bank to absorb the writ petitioneras a regular Peon-cum-Farash.

The material that is produced shows that the writ petitioner wasappointed in four spells prior to the cut off date namely 31-07-1997. The writ petitioner produced four of his appointment orders issued by the transferred bank/State Bank of Sourashtra dated 03-08-1996, 01-09-1996, 01-10-1996 and 31-10-1996. Under these four orders, thewrit petitioner was appointed for a period of 22 days from 03-08-1996to 24-08-1996; 29 days from 01-09-1996 to 29-09-1996; 20 days from01-10-1996 to 20-10-1996; and 29 days from 01-11-1996 to 29-11-1996. In all the four appointment orders, the writ petitioner wasinformed that his appointment is purely a temporary one for the numberof days mentioned therein in the vacancy of one Omprakash and willbe discontinued on expiry of the period mentioned therein or return toduty by the said Omprakash, whichever is earlier. The appointmentorders also stipulate that the said temporary appointment will notconfer any right whatsoever to claim absorption in the bank’spermanent establishment in any category. From the above fourappointment orders, it is manifest that the writ petitioner was appointedonly for a specified number of days in a temporary vacancy of oneOmprakash.

It is also placed on record that the Branch in which the writpetitioner was working has recommended the candidature of the writpetitioner and also informed the authorities that there is a pressingneed to appoint a part-time Peon-cum-Farash since Sarala who wasworking as such was promoted as full-time peon and Omprakash hasbeen relieved for reporting at Visakhapatnam.

From the above facts borne out from the record, what is requiredto be seen is as to whether the writ petitioner can claim as of right thathe is entitled to be appointed or absorbed as a part-time Peon-cum-Farash on regular basis.

The contention of the learned Counsel appearing for thepetitioner is that the writ petitioner joined the transferred bank at theage of 20 years as a daily wage Peon-cum-Farash and has beenrendering services satisfactorily till date and therefore since he hassatisfied the requirement of having worked for the specified number ofdays prior to the cut off date namely 31-07-1997, he is entitled to be appointed as a regular employee in the bank.

The contention of the State Bank of India namely the transferrebank is that the writ petitioner having been appointed as daily wageemployee cannot claim himself to be entitled to be absorbed merelybecause he has worked for a specified number of days prior to the cutoff date. The appointments or absorption in the bank services has tobe approved by the Government and since no such approval wasaccorded, the bank could not take up the absorption or appointment ofany sub-staff in the banks. Merely because the petitioner has workedfor interminent spells during 03-08-1996 to 21-11-1996, he cannotseek the direction of absorption in the bank services.

In support of the above contentions, learned Counsel reliedupon the following authorities:- In State of Karnataka v. M.L.Kesari[[1]]the Hon’ble SupremeCourt at paras-5, 6 and 7 held as under:

“5. The decision in State of Karnataka v. Umadeviwas rendered on 10.4.2006 (reported in 2006 (4) SCC 1). Inthat case, a Constitution Bench of this Court held thatappointments made without following the due process or therules relating to appointment did not confer any right on theappointees and courts cannot direct their absorption,regularization or re-engagement nor make their servicepermanent, and the High Court in exercise of jurisdictionunder Article226of the Constitution should not ordinarilyissue directions for absorption, regularization, or permanentcontinuance unless the recruitment had been done in aregular manner, in terms of the constitutional scheme; andthat the courts must be careful in ensuring that they do notinterfere unduly with the economic arrangement of its affairsby the State or its instrumentalities, nor lend themselves tobe instruments to facilitate the bypassing of theconstitutional and statutory mandates.

6. This Court further held that a temporary,contractual, casual or a daily-wage employee does not havea legal right to be made permanent unless he had beenappointed in terms of the relevant rules or in adherence ofArticles14and16of the Constitution. This Court however made one exception to the above position and the same isextracted below:

“53. One aspect needs to be clarified. Theremay be cases where irregular appointments (not illegalappointments) as explained in S.V. Narayanappa:1967 (1) SCR 128; R.N. Nanjundappa: 1972 (1) SCC409 and B.N. Nagarajan: 1979 (4) SCC 507 andreferred to in para 15 above, of duly qualified personsin duly sanctioned vacant posts might have beenmade and the employees have continued to work forten years or more but without the intervention of ordersof the courts or of tribunals. The question ofregularization of the services of such employees mayhave to be considered on merits in the light of theprinciples settled by this Court in the cases abovereferred to and in the light of this judgment. In thatcontext, the Union of India, the State Governments andtheir instrumentalities should take steps to regularizeas a one-time measure, the services of such irregularlyappointed, who have worked for ten years or more induly sanctioned posts but not under cover of orders ofthe courts or of tribunals and should further ensure thatregular recruitments are undertaken to fill those vacantsanctioned posts that require to be filled up, in caseswhere temporary employees or daily wagers are beingnow employed. The process must be set in motionwithin six months from this date....

7. It is evident from the above that there is an exception tothe general principles against `regularization' enunciated inUmadevi, if the following conditions are fulfilled:

(i) The employee concerned should have workedfor 10 years or more in duly sanctioned postwithout the benefit or protection of the interimorder of any court or tribunal. In other words, theState Government or its instrumentality shouldhave employed the employee and continued himin service voluntarily and continuously for morethan ten years.

(ii) The appointment of such employee should notbe illegal, even if irregular. Where theappointments are not made or continued againstsanctioned posts or where the persons appointed do not possess the prescribed minimumqualifications, the appointments will beconsidered to be illegal. But where the personemployed possessed the prescribedqualifications and was working againstsanctioned posts, but had been selected withoutundergoing the process of open competitiveselection, such appointments are considered tobe irregular.

In Union of India v. Vartak Labour Union[[2]]the Hon’ble Supreme Court at paras-13 and 15 held as under:

“13. We are of the opinion that there is force in thecontentions urged on behalf of the Appellants and thesemust prevail. We are convinced that the Division Bench haserroneously construed the Office memo dated 2[nd] February,2001 as an approved scheme for absorption andregularization of the casual workers. It is manifest from abare reading of the said memo that it was merely in thenature of an inter-department communication between theBorder Roads Development Board headquarters and itsofficials.

15. It is trite that inter-departmental communications andnotings in departmental files do not have the sanction oflaw, creating a legally enforceable right. InSethi AutoService Station and Anr. v. Delhi Development Authorityand Ors. (2009) 1 SCC 180, a Division Bench of this Court,in which one of us (D.K. Jain, J.) was a member hasobserved thus:

Needless to add that internal notings are not meant foroutside exposure. Notings in the file culminate into anexecutable order, affecting the rights of the parties,only when it reaches the final decision-makingauthority in the department, gets his approval and thefinal order is communicated to the person concerned.

17. We are of the opinion that the Respondent Union'sclaim for regularization of its members merely because theyhave been working for BRO for a considerable period oftime cannot be granted in light of several decisions of thisCourt, wherein it has been consistently held that casualemployment terminates when the same is discontinued, andmerely because a temporary or casual worker has beenengaged beyond the period of his employment, he wouldnot be entitled to be absorbed in regular service or made permanent, if the original appointment was not in terms ofthe process envisaged by the relevant rules.(See: Secretary, State of Karnataka and Ors. v. Umadevi(3) and Ors.(2006) 4 SCC 1; OfficialLiquidator v. Dayanand and Ors.(2008) 10 SCC 1; Stateo f Karnataka and Ors. v. Ganapathi Chaya Nayak andOrs. (2010) 3 SCC 115;Union of India and Anr. v. KartickChandra Mondal and Anr.; Satya Prakash andOrs. v. State of Bihar and Ors. (2010) 4 SCC 179and Rameshwar Dayal v. Indian Railway ConstructionCompany Limited and Ors. (2010) 11 SCC 733.

In Official Liquidator v. Dayanand and ors.[[3]]While explainingthe dictum laid down in Umadevi(3)’s case, a three-Judge Bench ofthe Hon’ble Supreme Court has observed as under:

“In State of Karnataka v. Umadevi (3) {re[prted om (2006)4 SCC 1}, the Constitution Bench again considered thequestion whether the State can frame scheme forregularisation of the services of ad hoc/temporary/dailywager appointed in violation of the doctrine of equality or theone appointed with a clear stipulation that such appointmentwill not confer any right on the appointee to seekregularisation or absorption in the regular cadre andwhether the Court can issue mandamus for regularisation orabsorption of such appointee and answered the same innegative.”4 SCC 1}, the Constitution Bench again considered thequestion whether the State can frame scheme forregularisation of the services of ad hoc/temporary/dailywager appointed in violation of the doctrine of equality or theone appointed with a clear stipulation that such appointmentwill not confer any right on the appointee to seekregularisation or absorption in the regular cadre andwhether the Court can issue mandamus for regularisation orabsorption of such appointee and answered the same innegative.”

In Nand Kumar v. State of Bihar[[4]]the Hon’ble Supreme Court at paras 20, 25 and 26 held as under:

“20. Therefore, considering the facts of the present case, itappears to us that the Appellants were never appointedthrough a proper procedure. It is not in dispute that they allserved as daily wagers. Therefore, it was within theirknowledge all the consequences of appointment beingtemporary, they cannot have even a right to invoke thetheory of legitimate expectation for being confirmed in thepost. Accordingly, we cannot accept the contention of theAppellants in the matter.appears to us that the Appellants were never appointedthrough a proper procedure. It is not in dispute that they allserved as daily wagers. Therefore, it was within theirknowledge all the consequences of appointment beingtemporary, they cannot have even a right to invoke thetheory of legitimate expectation for being confirmed in thepost. Accordingly, we cannot accept the contention of theAppellants in the matter.

25. We have consciously noted the aforesaid decisionsof this Court. The principle as has been laid downof this Court. The principle as has been laid down in Umadevi (supra) has also been applied in relation to thepersons who were working on daily wages. According to us,the daily wagers are not appointees in the strict sense of theterm 'appointment'. They do not hold a post. The scheme ofalternative appointment framed for regular employeesof abolished organisation cannot, therefore, confer a similarentitlement on the daily wagers of abolished organisation tosuch alternative employment.[See Avas Vikas Sansthan v.Avas Vikas Sansthan Engineers Association 2006 (4) SCC132)]. Their relevance in the context of appointment aroseby reason of the concept of regularisation as a source ofappointment. After Umadevi(supra), their position continuedto be that of daily wagers. Appointment on daily wage basisis not an appointment to a post according to the rules.Usually, the projects in which the daily wagers wereengaged, having come to an end, their appointment isnecessarily terminated for want of work. Therefore, thestatus and rights of daily wagers of a Government concernare not equivalent to that of a Government servant and hisclaim to permanency has to be adjudged differently.

26. In these circumstances, in our considered opinion, theregularisation/absorption is not a matter of course. It woulddepend upon the facts of the case following the rules andRegulations and cannot be de hors the rules for suchregularisation/absorption.”

In ONGC Ltd. v. Petroleum Coal Labour Union[[5]]the Hon’ble Supreme Court at paras-11 and 44 held as under:

“11. The learned single Judge on appreciation of thefacts, circumstances and the legal contentions urged onbehalf of both the parties held that the dispute between theparties regarding non-regularisation of the concernedworkmen falls within the scope of industrial dispute asdefined Under Section 2(k)of the Act. It is further held thatthe concerned workmen are all victims of unfair labourpractice having been employed by the Corporation forseveral years on temporary basis and even though theywere not appointed by following the procedure laid down bythe Corporation for recruitment to such posts, they wereentitled for regularisation and that their appointment cannotbe stated to be illegal. With the above findings, the writ petition was dismissed on merits by the learned singleJudge of the High Court by its judgment and order dated04.01.2011.

44. In light of the above said discussion and legalprinciples laid down by this Court in the cases referred tosupra, we are of the considered view that the procedure ofappointments adopted by the Corporation with respect to theconcerned workmen initially appointed through contractors,subsequently through the Co-operative Society, and thenvide memorandum of appointment issued to each one of theconcerned workmen in the year 1988 and thereafter,continuing them in their services in the posts by theCorporation without following any procedure as contendedby the learned senior Counsel on behalf of the Corporationwhose contention is untenable in law and their appointmentcan be said as irregular appointments but not as illegal asthe same was not objected to by any other Authority of theCorporation at any point of time. But their appointment intheir posts and continuing them in their services is definitelycannot be termed as illegal, at best it can be called irregular.Therefore, the Certified Standing Orders of the Corporationby all means apply to the workmen concerned.”

From the perusal of the authorities cited above, more particularly,the Judgment of the Constituional Bench in Umadevi’s case, I haveno hesitation in holding that the writ petitioner cannot be treated as anemployee appointed on a daily wage or contract basis irregularly so asto direct the authorities to consider his absorption as a regularemployee. No selection process was taken up at the initialappointment of the writ petitioner as a daily wage Peon-cum-Farash forfour spells during August, September, October and November, 1996. Therefore, his appointment cannot be taken as a regular appointmentand he cannot be directed to be absorbed in the bank service.

The other objection of the learned Counsel appearing for theState Bank of India/respondents is that since the question involves afactual aspect as to whether the writ petitioner has worked for specifiednumber of days and whether his initial appointment was made byfollowing due process are the questions of fact which cannot be adjudicated in writ proceedings. The writ petitioner if he has anygrievance has to approach the Industrial Tribunal for ventilating hisgrievances and in support of this contention, learned Counsel hasrelied upon a Division Bench Judgment of our High Court reported in State Bank of India and others v. M.Rajaiah and others[[6]]. So faras the facts are concerned, they are similar and the writ petitioners inthat case was similarly placed as that of the present writ petitioner. Inthe case before the Division Bench, large number of subordinate staffwhich constitute temporary employees/daily wage casualworkers/empanelled workers as messengers, sweepers, water boys,watchman etc., were working in the State Bank of India. As per thesettlement between the management and the workers’ union, suchemployees sought for absorption in the regular vacancies. Therelevant observations of the Division Bench of our High Court werecontained in paras 28, 29 and 32, which read as under:-“The issue involves in this case pertains to thepower of this Court to interfere and find out whether thebank has implemented the settlements entered into withthe Federation and has absorbed all the temporaryemployees/daily wage casual workers/empanelledworkers/subordinate staff.

It is contended by Mr.Salve that the Court, wouldnot embak upon an enquiry with regard to theimplementation or otherwise of the settlements, whichdepends upon the facts to be adduced on the basis oforal and documentary evidence placed before it and noton the basis of affidavits in writ proceedings. When thereis an effective alternative remedy under the provisions ofthe ID Act, and the dispute between the parties is withinthe ambit and scope of the Act and provisions which areintended for investigation and settlements of industrialdisputes between the parties, the writ proceedings are ofthe maintainable.

It has been contended that the writ Court ought notto embark upon an enquiry into the factual matrix of thesituation. The authority of the law Court which is vestedin the power of judicial review, in such matters entertaining writ petition is very restricted and limited andthe law Court ought not to usurp the function of thestatutory functionaries under the Industrial Disputes Act.”

Following the above authoritative pronouncement of the DivisionBench of this Court, it is held that the writ petitioner cannot invoke thewrit jurisdiction of the Court for seeking the direction of his absorptionas a permanent employee of the bank. It is, however, open to him toavail the remedies available to him under the provisions of theIndustrial Disputes Act.

In view of the foregoing discussion, it is held that the writ petitionis not maintainable and the writ petitioner is not entitled to the relief asprayed for and the same is liable to be dismissed.

In the result, the Writ Petition is dismissed. No order as to costs. Miscellaneous petitions, if any, pending in this writ petition shallstand closed.

____________________

M.S.K.JAISWAL, J

31[st] December, 2015Dsr/smr

[1](2010) 9 SCC 247

[2](2011) 4 SCC 200

[3](2008) 10 SCC 1

[4](2014) 5 SCC 300

[5](2015) 6 SCC 494

[6]1998(4) ALD 211 (DB)