Commissioner of Income Tax, Bhopal & Ors Vs. M/S. Leena Jain & Ors 
Insc 822 (20 November 2006)
Pasayat & Lokeshwar Singh Panta
out of SLP (C) No. 23504 of 2004) ARIJIT PASAYAT, J.
in this appeal is to the order passed by a Division Bench of the Madhya Pradesh
High Court at Jabalpur in Writ Petition No. 1974 of 1998.
Appellants had challenged the composite order dated 13.11.1997 passed in OA No.
691 of 1995 and O.A. No.89 of 1996 passed by the Central Administrative
Tribunal, Jabalpur Bench, at Jabalpur (in short the 'CAT'). The respondents
moved the CAT under Section 19 of the Administrative Tribunals' Act, 1985 (in
short the 'Act') seeking regularization of their services.
of the respondents before the CAT was that they have been performing their
duties as Data Entry Operators on contract basis and were being paid at a rate
of Rs.10 per hour up to the maximum of Rs.50 per day. Since they have been
working since a long period they sought for regularization placing reliance on
the factum of long rendition of service.
response, present appellants contended that the respondents were not
departmental employees and their grievances cannot be agitated before the CAT.
Placing reliance on some other decisions by the CAT, the stand of the present
appellants was turned down and direction was given for considering the cases of
appointment on regular basis.
petition was filed before the High Court, which was dismissed by the impugned
support of the appeal learned counsel for the appellants submitted that the
decision of the High Court is contrary to law as laid down by the Constitution
Bench of this Court in Secretary, State of Karnataka and Others v. Uma Devi and
Others [2006 (4) SCC 1]. Learned counsel for the respondents on the other hand
submitted that since the CAT had relied on an earlier judgment, High Court
rightly did not find any distinguishable feature, and the appeal, therefore,
deserves to be dismissed.
question of regularization on the ground of long rendition of service was the
subject matter in Uma Devi's case (supra). The said issue has been elaborately
dealt with in the judgment. It was inter alia held as follows:
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 an 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.
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 eyes
open. 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 Page 1946 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 a 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.
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 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.
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.
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.
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 issue
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.
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."
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 case afresh in the light
of the said decision.
appeal is allowed to the aforesaid extent with no orders as to costs.