SCA/4926/1987 of NARESHKUMAR CHHAGANBHAI NAYAK Vs . on 1 December 1997

1. Whether Reporters of Local papers may be allowed to see the judgment? allowed to see the judgment?

2. To be referred to the Reporter or not?

3. Whether their Lordships wish to see the fair copy of the judgment? fair copy of the judgment?

4. Whether this case involves a substantial question of law as to the interpretation of the Constitution of India,1950 or any order made thereunder? question of law as to the interpretation of the Constitution of India,1950 or any order made thereunder?

5. Whether it is to be circulated to the Civil Judge? Civil Judge?

-------------------------------------------------------------- NARESHKUMAR CHHAGANBHAI NAYAK

Versus

STATE OF GUJARAT

-------------------------------------------------------------- Appearance: MR HD VASAVADA for Petitioners Mr. D. A.Bambania for Respondent No. 1, 2, 3

-------------------------------------------------------------- CORAM : MR.JUSTICE S.K.KESHOTE

Date of decision 1-12-1997

C.A.V. JUDGEMENT

The petitioners,in all sixteen in number, have challenged in this petition the alleged action of the respondents in giving artificial break in their service and also in not offering them salaries equivalent and at par with the State employees who are performing same duties as the petitioners. The petitioners were given appointment from time to time as peon/ peon cum drivers for fixed term on daily wages. Though complete details of appointments of the petitioners were not given by the petitioners in this special civil application, from the orders which are produced by them it certainly comes out that they have been given appointment for 29 days on daily wages. In para 9 of this special civil application the petitioners' case is that some of them were appointed right from 1981, and some of the petitioners have worked with the respondent State for more than 5 to 7 years.

All these are incomplete and vague statements.

2. The counsel for the petitioners raised following contentions in this special civil application. First, as the petitioners are working on daily wages they have acquired right of regularisation in service. Next contention is made that the respondents have made hostile discrimina..R

this plea has been given in para 5 of the special civil application. The petitioners gave out reference to the case of four or five persons whose appointments were said to be regularised. Further contention is raised that the petitioners are working for 8 hours, but they have been paid only dailywages and they claim for parity on the basis of the principles of equal pay for equal work. Last contention has been raised that posts are vacant and as such the respondents may be directed to regularise their services. In support of his contention the learned counsel for the petitioners placed reliance on the decisions in the case of:

1. Dharwad Dist. P.W.D. Literate Daily Wage Employees Association vs. State of Karnataka, rep.R

2. H,C.Puttaswamy vs. Hon'ble Chief Justice of Karnataka, reported in AIR 1991 SC 295; and

3. unreported decision of the Supreme Court in Civil Appeal No.4058-64/88 dated 15th November,

Conclusion

3. On the other hand the learned counsel forrespondents contended that the petitioners have no casewhatsoever in their favour. The petitioners were givenfixed term appointment on daily wages as and when work wasavailable. They were not working continuously. Theirappointments were made without following any procedure orrules. All appointments were temporary, adhoc and for fixedterm and as such no right, much less right of regulation,has accrued to the petitioners. It has further beencontended that appointment to class IV posts other thansecretariat service is regulated under the Rules framedunder Article 309 of the Constitution of India, and theseappointments were de hors the said rules.

4. It has next been contended that there is no questionof any discrimination as alleged by the petitioner. Thepersons whose names have been referred in this special civilapplication and particularly in para 5 thereof were givenregular appointment after following necessary procedure forrecruitment. Their names were called from employmentexchange and after completing necessary formalities theywere given appointment. Further contention has been raisedthat as the petitioners were given appointment only on dailywages and on fixed terms, the same would come to an end byafflux of time. The petitioners being daily wagers have noright whatsoever and they cannot claim any parity in thepay-scale with the employees who have been given regularappointment. Lastly, it is contended that even if the postsare available then too they have not acquired any right ofregularisation. The petitioners' services come to an end byafflux of time.Now they are working as daily wagers as thisCourt protected them by way of grant of interim relief.

5. I have given my thoughtful consideration to thesubmissions made by the learned counsel for the parties. This writ petition has come up for admission beforethis Court on 22nd September,1987 when this Court passed thefollowing order:

"Rule. Notice as to interim relief returnable on 28-9-1987.Direct service permitted. Ad interim relief in terms ofpara 17(c) up to 30-9-1987."

Later on the interim relief granted by this court wasmodified in terms that it will be open to the respondents toterminate the services of the petitioners on any lawfulground and in lawful manner. Subject to the aforesaidclarification ad interim relief granted earlier was orderedto be continued. The respondents wanted to terminate the services of the petitioners in lawful manner and at thatpoint of time the petitioners approached this court byfiling civil application No.122/89; and this court hasprotected the petitioners. So it is correct to say that thepetitioners are continuing in service only under the interimrelief granted by this court.

6. Learned counsel for the petitioners is unable toshow to court that the appointments were given to thepetitioners under the Rules framed under Article 309 of theConstitution of India. Not only this, he is unable to showthat these appointments of the petitioners were madeinconsonance with the provisions of Articles 14 and 16 ofthe Constitution. The counsel for the petitioner admitsthat the petitioners were on fixed term appointment on dailywages. Further grievance is that it was illegal andarbitrary on the part of the respondents to give break inthe service of the petitioners. So it is not in disputethat the petitioners were given appointments on dailywagesand for fixed term. Division Bench of this Court(Coram: B.N.Kirpal, CJ (as he then was) and H.L.Gokhale,J)in the case of Bhanmati Tapubhai Muliya vs. Stat ofGujarat, reported in 1995 (2) GLH 228, held thatappointments which have been given for fixed term comes toan end by afflux of time. In such appointments, theauthority is not required to make any order of termination.No notice is required to be given to the appointee. In thecase of Madhya Pradesh Hasta Shilpa Vikas Nigam Ltd., vs.Devendra Kumar Jain , reported in JT 1995(1) SC 198, theSupreme Court held that a temporary Government Servant doesnot become permanent unless he acquires that capacity byforce of any rule or is declared as permanent servant. Theappointments of the petitioners were de hors the recruitmentrules. rules. Learned counsel for the petitioners failedto produce on record of this special civil application anyrule framed under Article 309 of the Constitution or anyother resolution of the Government which provides forregularisation of such category of employees. Appointmentsto class IV posts are to be made in accordance with therules framed under Article 309 of the Constitution of Indiaor under the Resolutions framed by the Government inexercise of the constitutional powers under Article 162 ofthe Constitution. Merely because these are class IV poststhe petitioners cannot justify their entry in service. Anyappointment made de hors rules or without following theprovisions of Articles 14 and 16 where there are nostatutory rules or regulations framed are illegal andunconstitutional. In our country it is unfortunate thatthere is wholesome unemployment and I find sufficient meritin the contention of the learned counsel for the petitionersthat the citizens are ready to accept any term of

appointment, but at the same time this court cannot beoblivious of the fact that the framers of the Constitutionof the country enacted therein Articles 14 and 16. Whatthese Articles 14 and 16 postulate is that in the publicemployment all eligible persons should get equal opportunityof right of consideration for employment. While consideringthe case of daily wagers for their regularisation in servicethis court has to look into the fact that many persons whoare not having their godfathers or some helping hand in thedepartment concerned have been deprived of their opportunityof consideration for appointment. Those persons who havemeans and persons to support in the Department could getback door entry in employment. These persons will allowthem to continue to work for number of years and then theywill come up before this Court with the prayer forregularisation. Any appointment which is de hors the rulesor constitutional provisions will not confer any rightwhatsoever to the holder of the post. Any benefit given tosuch person by the court and more so, sitting under Article226 of the Constitution of India, will perpetuate theillegality. Despite catena of authorities of the SupremeCourt and this Court the departments are makingindiscriminately temporary appointments, and thoseappointments are being made de hors the rules and theConstitutional provisions. It is true that in many of thecases their Lordships of Supreme Court have given directionfor regularisation of the services of those classes ofpersons who were initially appointed on temporary basis oron daily wages and worked for years together. If we go bythe subsequent change of law which is now brought by theSupreme Court as reflected in the recent decisions, thisclass of persons cannot be given any protection whatsoever.Continuation of the petitioners howsoever long it may be onthe basis of fixed term appointment with some break will notentitled them for any benefit whatsoever including scale ofpay which is given to the employees who have been regularlyappointed on the posts.

7. In the case of State of Himachal Pradesh vs.Nodharam, JT 1996(1) SC 220, the Hon'ble Supreme Court, inthe facts and circumstances of the case where therespondents therein were engaged on daily wages held thatwhen the project is completed and closed, due to nonavailability of funds the employees would go along withclosure. The High Court was not right in giving directingto regularise them or to continue them in other places. Novested right is created in temporary employment. Directioncannot be given to regularise their services in absence ofany existing vacancy nor can direction be given to the Stateto create posts in nonexistent establishment. The court would take pragmatic approach not to give such direction.In the present case also I do not find anything on recordthat permanents posts are available in the Department.Moreover, even if it is taken that posts are available,still the petitioners will not get right of regularisationon the basis of their continuation in the Department onfixed term appointment which was made de hors rules andconstitutional provisions.

8. Reference may have to be made to another decision of the Supreme Court in the case of State of Himachal Pradeshvs. Sureshkumar Varma, reportedin 1996 (VII) SCC 562. Inthat case their Lordships of the Supreme Court repelling thecontention of the counsel for the respondents therein thatthere were vacancies and therefore the respondents areentitled to be continued ins service held that the vacanciesrequired to be filled in accordance with the rules and bycandidates who are otherwise eligible and entitled to applyfor when recruitment is made and seek consideration fortheir claim on merits.

9. In the result this special civil application failsand the same is dismissed. However, it is made clear thatas and when the respondents undertake to make selection tothe category of Class IV employees or driver, then in casethe petitioners apply for the posts, their candidature maynot be rejected only on the ground of age eligibility,subject to the condition that the petitioners or theconcerned petitioner was within age limit when he was givenfirst fixed term appointment on daily wage basis. Ruledischarged. Interim relief granted earlier stands vacated.No order as to costs.

���......

csm