Chief
Commissioner of Income Tax & Ors Vs. Smt. Susheela Prasad and Ors [2007] Insc
1180 (27 November 2007)
Dr.
Arijit Pasayat & Lokeshwar Singh Panta
CIVIL
APPEAL NO. 5422 OF 2007 (Arising out of SLP (C) No. 8968 of 2006) Dr. ARIJIT
PASAYAT, J.
1.
Leave granted.
2.
Challenge in this appeal is to the order passed by a Division Bench of the High
Court of Madhya Pradesh at Jabalpur in
Writ Petition No.13440 of 2004. The appellants had challenged the composite
order dated 13.11.1997 passed in OA No.691/1995 and OA No.89/1996 by the
Central Administrative Tribunal, Jabalpur Bench, Jabalpur (in short 'CAT'). The
respondents had moved CAT under Section 19 of the Administrative Tribunals Act.
1985 (in short `the Act') seeking regularization of their services.
3. The
stand of the respondents before the CAT was that they have been on 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. They have sought for
regularization placing reliance on the factum of long rendition of service.
4. In
response, the 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 rendered by the CAT, the stand of the
present appellants was turned down and direction was given for considering
their cases for appointment on regular basis.
5. A
writ petition was filed before the High Court, by the appellants which was
dismissed by the impugned order.
6. In
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 Secretarv. State of Karnataka and Others v. Uma Devi and Others (2006 (4) SCC l).
7.
Learned counsel for the respondents on the other hand submitted that since the
CAT had relied on an earlier judgment and High Court rightly did not find any
distinguishable feature, the appeal, therefore, deserves to be dismissed.
8. The
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:
"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."
9. 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.
10. In
the connected case decided by the High Court in O,A. No.89/1996 which related
to Writ Petition No.1474 of 1998, this Court had dealt with the matter in Chief
Commissioner of (11) SCC 350), where a similar direction, as contained above,
was given.
11.
The appeal is allowed to the aforesaid extent with no orders as to costs.
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