# Masan Ali and others v. Union of India and others

- **Citation:** (2007) 3 ILRA 1062
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2007-11-16
- **Case number:** Civil Misc. Writ Petition No.4271 of 2007
- **Bench:** V.K. Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/masan-ali-and-others-v-union-of-india-and-others-41021
- **Pages:** 22

## Headnote

Constitution
of
India,
Art.
226Cancellation of
regularization Orderpetitioner working as part time sweeperregularised on policy decision-takes after
discussion between management and
employees union-petitioner regularized
and getting benefit, of regular salary
prior to 10.4.06 the date of judgement of
Apex Court in Uma Devi case-helddecision can not be applied mechanically
without
considering
the
facts
of
individual
case-cancellation
of
Regularisation order-illegal.
3 All] Masan Ali and others V. Union of India and others
1063
Held: Para 11 & 24

In the present case undisputed position
is that on the date of delivery of
judgment on 10.04.2006, petitioners
continued to function as full time casual
labourers
(sweepers)
and
till
then
benefit
of
regularization
as
regular
majdoor had not been extended, and the
said exercise has been undertaken only
after the said judgment of Hon'ble Apex
Court had come and thereafter based on
same regularization accorded has been
cancelled.

There is one more aspect of the matter
for consideration. Petitioners have been
non-suited
on
the
ground
that
regularization was not permissible after
10.04.2006. On the recommendation of
the
Committee
as
contained
in
Annexure- SRA-1 to the Supplementary
rejoinder affidavit, in all six incumbents
have been regularised. It is true that
said
incumbents
who
have
been
regularised were working for the long
period, but as far as petitioners are
concerned, their claim was covered
under the policy decision, and they had
been
extended
the
benefit
of
regularisation,
then
mechanically
by
applying the judgment of Uma Devi's
case, it was wholly inappropriate to
cancel the regularization of petitioners,
which cannot be subscribed, as each
case has to be decided on its facts,
looking to the peculiar characteristic and
the
dominant
factors
of
the
aforementioned
case,
which
in
the
present case has been ignored by the
authorities that there was agreement
between Federation and BSNL and as per
policy decision petitioners had been
absorbed on regular basis.

## Text

_Characters 0–39,756 of 74,026. This is a partial read: ask again with offset=39756 for what follows._

1062 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
am of the opinion that the petitioners can
not
be
denied
consideration
for
appointment on the post of Assistant
Boring Technician in the Minor Irrigation
Department after having qualified the
written test and having appeared in the
interview on the ground that they do not
posses the diploma in the trade "Tool
Maker" ignoring the diploma in "Tool and
Die maker". The respondents are also
estopped under law from ignoring their
candidature at such a belated stage after
they have accepted the applications of the
petitioners to take the written examination
followed by interview.

7. Learned Standing counsel has
submitted that the petitioners have not
arrayed the selected candidates as the
respondents who are 387 in number and
as such they can not be granted the relief
as
claimed
by
them.
The
above
submission is bereft of merit in as much
as the petitioners are not challenging the
selection of the selected candidates.
Admittedly, 401 posts were advertised
and only 387 have been filled up.
Therefore, undisputedly 14 posts are still
vacant and probably have been kept
reserved by the inferior orders of Court.
Therefore, the petitioners can easily be
considered and if found successful in the
ultimate analysis may be accommodated
on the said remaining vacant posts
without disturbing any of the selected
candidates.

8. In view of the above, respondents
are directed to consider the candidature of
the petitioners for the post of Assistant
Boring Technician in pursuance to the
advertisement dated 8.6.2003 and not to
ignore their candidature only on the
ground that they possess diploma in the
trade of "Tool and Die maker" and not the
diploma in "Tool maker" prescribed in the
rules. The respondents shall complete the
process of selection as expeditiously as
possible preferably within a period of two
months from the date of production of the
certified copy of this order.

9. The writ petition succeeds and is
allowed
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.11.2007

BEFORE
THE HON'BLE V.K. SHUKLA, J.

Civil Misc. Writ Petition No.4271 of 2007
Connected with
Civil Misc. Writ Petition No.8643 of 2007
AND
Civil Misc. Writ Petition No.8307 of 2007

Masan Ali and others
 ...Petitioners
Versus
Union of India and others ...Respondents

Counsel for the Petitioners:
Sri R.C. Pathak
Sri Girish Kumar

Counsel for the Respondents:
Sri Subodh Kumar
S.S.C.

Constitution
of
India,
Art.
226Cancellation of
regularization Orderpetitioner working as part time sweeperregularised on policy decision-takes after
discussion between management and
employees union-petitioner regularized
and getting benefit, of regular salary
prior to 10.4.06 the date of judgement of
Apex Court in Uma Devi case-helddecision can not be applied mechanically
without
considering
the
facts
of
individual
case-cancellation
of
Regularisation order-illegal.
3 All] Masan Ali and others V. Union of India and others
1063
Held: Para 11 & 24

In the present case undisputed position
is that on the date of delivery of
judgment on 10.04.2006, petitioners
continued to function as full time casual
labourers
(sweepers)
and
till
then
benefit
of
regularization
as
regular
majdoor had not been extended, and the
said exercise has been undertaken only
after the said judgment of Hon'ble Apex
Court had come and thereafter based on
same regularization accorded has been
cancelled.

There is one more aspect of the matter
for consideration. Petitioners have been
non-suited
on
the
ground
that
regularization was not permissible after
10.04.2006. On the recommendation of
the
Committee
as
contained
in
Annexure- SRA-1 to the Supplementary
rejoinder affidavit, in all six incumbents
have been regularised. It is true that
said
incumbents
who
have
been
regularised were working for the long
period, but as far as petitioners are
concerned, their claim was covered
under the policy decision, and they had
been
extended
the
benefit
of
regularisation,
then
mechanically
by
applying the judgment of Uma Devi's
case, it was wholly inappropriate to
cancel the regularization of petitioners,
which cannot be subscribed, as each
case has to be decided on its facts,
looking to the peculiar characteristic and
the
dominant
factors
of
the
aforementioned
case,
which
in
the
present case has been ignored by the
authorities that there was agreement
between Federation and BSNL and as per
policy decision petitioners had been
absorbed on regular basis.

(Delivered by Hon'ble V. K. Shukla, J.)

1. In this bunch of writ petitions,
petitioners are assailing the validity of
decision taken by respondents cancelling
the order by means of which petitioners,
who were full time sweepers, working
under
G.M.T.D.
Mirzapur,
were
regularized as regular majdoors, have
been reverted to their original cadre of
full time sweeper/casual labourer and
further action of directing recovery of the
amount which has been paid in excess to
each one of petitioners.

2. Brief background of the case is
that each one of petitioners had been
performing and discharging duties as part
time casual labourers/sweepers. Policy
decision was taken by Department of
Telecom
on
29.09.2000,
mentioning
therein that Employees Unions were
demanding regularization of all the casual
labourers and this issue was under
consideration for quite sometime and in
this background, decision had been taken
to regularize the services of casual
labourers working in the Department,
including those, who had been granted
temporary
status
with
effect
from
01.10.2000. Relevant extract of said
scheme dated 29.09.2000, giving the
order of regularisation and scheme to be
adhered to is being quoted below:

"(1) All casual labourers, who have been
granted temporary status up to the
issuance of orders No.269-4/93-STN-II
dated 12.2.99, circulated vide letter
No.269-13/99-STN-II dated 12.2.99 and
further letter No.269-13/93-STN-II dated
9.6.2000.
(2) All full time casual labourers as
indicated in Annexure.
(3) All part time casual labourers who
were working for four or more hours per
day and converted into full time casual
labourers vide letter No.269-13/93-STNII dated 16.9.99.
(4) All part time casual labourers who
were working for less than four hours per
1064 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
day and converted into full time casual
labourers vide letter No.269-13/93-STNII dated 25.8.2000.
(5) All Ayas and Supervisors converted
into full time casual labourers as per order
No.269-10/97-STN-II dated 29.9.2000.
The number of casual labourers to be
regularised in categories (2) to (5) above
is given in the Annexure-enclosed. The
figures given in the Annexure are based
on information received from the Circles.
The casual labourers indicated from
clause (i) to (iv) of communication dated
29.09.2000 were to be adjusted against
available vacancies of regular majdoors.
However, Chief General Managers are
also authorised to create posts of Regular
Majdoors as per prescribed norms, and to
that extent, the prescribed ceiling for the
Circle will stand enhanced.
As per this order, letter No.26913/99-STN-II dated 12.2.99 vide which
temporary status was granted to casual
labourers eligible on 1.8.98, no casual
labourers were to be engaged after this
date and all the casual labourers are to be
disengaged forthwith. Therefore, there
should be no casual labourers after
01.08.1998. Other than those indicated in
serial Nos. (2) to (5) above. However, if
there is still any case of casual labourers
left out due to any reasons, that may be
referred to the Head Quarters separately."

3. In the year 2000 merger took
place, Bharat Sanchar Nigam Limited, a
Government of India Enterprises came
into existence, and as per the averments
mentioned
in
paragraph
3
of
the
supplementary counter affidavit, Bharat
Sanchar Nigam Ltd. adopted directives
contained in letter dated 29.09.2000. In
respect of absorption of Group "C" and
"D" staff working in B.S.N.L., Employees
Federation had been pressing upon for
absorption of casual labourers, as such
preliminary meeting had been held with
three Federations and Bharat Sanchar
Nigam
Limited
on
09.11.2000,
empowered the Management to negotiate
with the Unions. pursuant to which
meeting was held with three Federations
on 02.01.2001 and following proposals
were approved:

"1.
IMPLEMENTATION
OF
STANDING
ORDERS
OF
THE
INDUSTRIAL EMPLOYMENT ACT,
1946
BSNL service rules are to be finalized
after discussion with the recognized union
formed by the optees of BSNL, and the
Standing
Orders
of
Industrial
Employment Act, 1946.
2. SERVICE RULES
In the meantime it was agreed that
Government will continue to apply
existing rules/regulations. This is in line
as per the provisions of Rule 1313 of
Standing
Orders
of
Industrial
Employment Act, 1946. However, certain
provisinal terms and conditions for
absorption are enclosed as Annexure-I.
3.
ABSORPTION
OF
CASUAL
LABOURS
Orders have been issued by DoT for
regularising Ayas and all casual labourers
including part time casual labourers. Left
out cases, if any will be settled by BSNL
in accordance with order No.269-94/98STN dated 29.9.2000.
4.
OPTION
OF
STAFF
FOR
ABSORPTION IN BSNL
The BSNL will absorb the optees on
as is where is basis. A list of optees will
be
made
available
to
the
three
federations/unions.
5. OPTIONS OF STAFF FACING
DISCIPLINARY CASES
3 All] Masan Ali and others V. Union of India and others
1065
It was agreed that the employees
with on-going disciplinary cases can also
opt for absorption in BSNL but their
absorption will be subject to the outcome
of the vigilance case. Their pending cases
will be expedited on a fast track mode by
DOT authorities.
6. PROMOTIONAL AVENUES
After
absorption
there
will
be
negotiations with the newly formed
recognised union regarding promotional
avenues. Pending adoption of Standing
Orders on promotional policy, the present
OTBP/BCRACP
(whichever
is
applicable) etc. will continue to be
followed by BSNL
7. CHANGE OVER TO DA PAY
SCALES
The pay scales and fitment formula
will also be adopted through Standing
Orders
after
negotiation
with
the
recognised union in respect of nonexecutives. After detailed discussions, it
was mutually agreed that pending fitment
in the IDA Pay scales, the Group C & D
optees will continue in the Central
Government
(CDA)
pay
scales.
In
addition to this, they will also be paid an
adhoc amount of Rs.1000/- per month
w.e.f. 1.10.2000 which will be adjusted
from their IDA emoluments, perks and
benefits on fixation of the same in the
revised
IDA
scales.
The
revised
negotiated IDA pay scales will be
applicable form the date of absorption i.e.
1.10.2000.
8. TIME FRAME FOR VARIOUS
POST ABSORPTITION ACVITIES
It was agreed that options will be
called in January, 2001 providing about
one month time to employees to give their
options and the entire activity is expected
to be completed by the end of 28th Feb.
2001. A list of optees of BSNL will be
exhibited to rectify inaccuracies, if any.
The existing system of informal
meetings with applicant Unions, as on
30.9.2000 and formal meetings with the
three Federations shall continue.
9. The
employees
who
opt
for
permanent absorption in BSNL would be
governed by the provisions of rule 37-A
of CCS Pension Rules, notification for
which was issued by the Department of
Pension Welfare on 30.09.2000. for the
purpose of reckoning emoluments for
calculation of pension and pensionary
benefits, the emoluments as defined in
CCS Pensions rules, on PSU in the IDA
pay scales shall be treated as emoluments.
10. DoT has already clarified that the
word "formula" mentioned in clause 8 of
the Rule 37-A means payment of pension
as per Government Rules in force in force
at that time. It has also been clarified by
the
DoT
that
BSNL
will
not
dismiss/remove an absorbed employee
without
prior
review
by
the
Administrative Ministry/Department.
11. The Group C & D employees who
appear for any provisional examination
whether direct or departmental and
qualify in such examinations/outsiders
coming
through
direct
recruitment
process, would rank junior to all the other
employees in the promotional cadre, who
had already been qualified in earlier
examinations even though they get
absorbed in BSNL subsequently.
The above modalities have been
worked out in consultation with the
following
three
federations
for
termination of the deemed deputation
status in BSNL and the parties have put
their signatures in token of their consent
and agreement on this date 02.01.2001."

4. Thereafter, on 14.05.2001, from
the office of the Chief General Manager
Telecom, Bharat Sanchar Nigam Limited,
1066 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
Lucknow, communication was issued,
mentioning therein that for conversion of
part time casual labourers working for not
less than four hours duty into full time
casual labourers, exercise be undertaken
with the condition specifically provided
for and same is one time relaxation, and
was
effective
w.e.f.
25.08.2000.
Thereafter
on
21.06.2002,
Deputy
General Manager, B.S.N.L., U.P. (East)
Circle, Lucknow, addressed letter in
accordance with instructions contained in
DOT New Delhi dated 14.08.1998,
25.08.2000, approved by CGMT U.P.
(East) Circle Lucknow for conversion of
part time casual labourers into full time
casual labourers (performing duty four
hours or more and less than four hours per
day), as per enclosed Annexure I and II,
on the following terms and conditions:

"1. The sanction of part time casual
labourers by the competent authority
and their continuously service till
date
with
minimum
240
days
working in the preceding 12 months
as on 25.8.2000.
2. The Head of SSAs should personally
verify the payment records of these
approved part time casual labourers
and obtain a certificate of the
payment made from his IFA and
therefore verify their eligibility as
per the rule on the subject before
ordering the conversion of the part
time to full time casual labourers. It
may further ensure that the payment
of the part time casual labourers has
been
made
directly
by
the
department and not by any other
agency like contractor etc.
3. The part time casual labourers should
be engaged as full time casual
labourers
only
where
there
is
shortage of Gr. D staff (i.e. Existence
of vacant Gr. D posts accounting for
all SM and existing full time casual
labourers) and no post should be
created for the purpose. In the event
there is no shortage in Gr. D posts as
full time casual labourers, the part
time casual labourers will not be
converted into full time labourers.
4. Payment to the above full time casual
labourers may be made as provided
of under Rule 331 P & T FHB Vol. I
under circumstances should they are
paid through MUSTER ROLL.
5. In case of any violation to the above
instructions/departmental
instructions on the subject, the Head
of
SSAs
will
be
personally
responsible. It may also be ensured
that no part time casual labourers
have been engaged after the cut of
date given by the DOT New Delhi.
The Head of SSAs must get satisfied
himself personally in each case
before converting part time casual
labourers into full time causal
labourers and ensure that all the
conditions laid down on the subject
and departmental instructions are
followed.
6. The name of part time casual
labourers, who are found suitable for
conversion into full time are attached
to Annexure I & II. This is based on
the
report
received
from
SSA
concerned."

5. Requisite steps were undertaken
in this direction and thereafter each one of
petitioners, who were working as parttime casual labourers, were converted into
full time casual labourers and requisite
letter in this respect was issued by
General
Manager,
Telecom
District
Mirzapur on 10.10.2002. Decision was
taken on 23.01.2006 that all those part
3 All] Masan Ali and others V. Union of India and others
1067
time casual labourers, who had been
converted into full time casual labourers,
qua them proceedings be undertaken for
extending the benefit of regularization
against Group 'D' vacancies. Requisite
direction was issued in this behalf by
General Manager, East Circle, Lucknow
along
with
communication
dated
23.01.2006 sent by the office of the Chief
General
Manager,
Telecom,
U.P.
Lucknow.
List
was
also
appended
therewith. In the said letter it was
categorically mentioned that directives
were issued for undertaking requisite
exercise and for verification of records.
As against sanctioned strength of 116
regular majdoors, only 64 had been
functioning as on 31.03.2006, as such
there
was
shortage
of
52
regular
majdoors.
Thereafter
letter
dated
17.05.2006 was sent by the office of the
General Manager, Telecom, U.P. Circle,
Lucknow, asking therein to forward the
list
after
extending
the
benefit of
regularization.
Thereafter,
requisite
exercise was undertaken pursuant to said
letter
and
on
20.07.2006,
General
Manager, Telecom District Mirzapur
issued letter of regularisation qua each
one of petitioners converting them from
casual labourers to regular majdoors.
Pursuant to said order requisite fixation of
pay was done, and petitioners were paid
their
salary
accordingly.
Thereafter,
impugned order has been passed qua each
one of the petitioners.

6. Claim of petitioners has been
rejected as per respondents solely on the
ground that by no stretch of imagination,
after pronouncement of judgment of
Hon'ble Apex Court in the case of
Secretary, State of Karnataka v. Uma
Devi, 2006 (4) SCC 1, regularisation
could have been made, and in this
background, it has been contended that
action taken is strictly inconsonance with
the said verdict, as the benefit of
regularisation has been extended in
ignorance of the directives of Hon'ble
Apex Court, as such claim of petitioners
is unsustainable.

7. In the present case pleadings inter
se parties have been exchanged in the
shape of counter affidavit, supplementary
counter affidavit on one hand and
rejoinder affidavit and supplementary
rejoinder affidavit, on the other hand.
Thereafter with the consent of the parties,
present writ petition has been taken up for
final hearing and disposal.

8. Sri R.C. Pathak, learned counsel,
appearing along with Sri Girish Kumar
Gupta,
representing
the
petitioners,
contended with vehemence that in the
present case benefit of regularization has
been extended as per the terms and
conditions of agreement in between
Unions and B.S.N.L., and thereafter said
benefit
has
been
revoked
without
providing any opportunity of hearing, as
such impugned order in question is liable
to be quashed, and further as there was no
fraud or misrepresentation on the part of
petitioners, as such recovery directed is
vitiated in law.

9. Sri Subodh Kumar, learned
counsel
representing
Bharat
Sanchar
Nigam
Limited,
contended
with
vehemence that benefit of regularization
has been admittedly extended after the
judgment in case of Secretary, State of
Karnataka v. Uma Devi, 2006 (4) SCC
page 1, decided on 10.04.2006, wherein
Hon'ble Apex Court has clearly ruled that
no further regularization can be extended
in violation of constitutional provisions,
1068 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
as such writ petition on admitted position
is liable to be dismissed.

10. After respective arguments have
been advanced, factual position, qua
which there is no dispute, is that as far as
petitioners
are
concerned,
their
engagement
as
part
time
casual
labourers/sweepers
had
been
made
without
following
any
process
of
selection, and each one of petitioners had
been performing and discharging duties as
part time casual labourers, and thereafter
as per agreement entered into between
labourers' union and the Management,
categorical decision was taken that part
time casual labourers who were working
for not less than four hours per day, their
claim be considered. Petitioners who were
working as part time casual labourers,
their claim was considered and they were
converted into full time casual labourers
on
10.10.2002.
Agreement
dated
29.09.2000 categorically provided that
casual labourers indicated from clause (i)
to
(iv)
of
communication
dated
29.09.2000 were to be adjusted against
available vacancies of regular majdoors.
In the said letter itself there was a
categorical
mention
that
no
casual
labourers were to be engaged after that
day and all the casual labourers were to be
disengaged forthwith, and there should be
no casual labourers after 01.08.1998.
Petitioners who were part time casual
labourers and were accorded status of full
time casual labourers were intending to
get adjusted against the regular vacancy
of regular majdoors. Policy decision had
been taken on 23.01.2006 for undertaking
exercise of extending the benefit of
regularization. Before such exercise could
be undertaken and concluded, Hon'ble
Apex Court in the case of Secretary, State
of Karnataka v. Uma Devi, 2006 (4) SCC
1, came out with the judgment, wherein
regularisation
has
not
at
all
been
approved, and it has been categorically
mentioned that regularisation, if same has
already been made, then the same would
not be reopened based on the said
judgment, but there should be no further
by passing of constitutional requirements
and regularising and making permanent,
those
not
duly
appointed
as
per
constitutional scheme. Paragraphs 39, 43,
44, 45, 46, 47, 48, 49, 52, 53 and 54 being
relevant being are quoted below:

"39.There have been decisions which
have taken the cue from the Dharwad
(supra) case and given directions for
regularization,
absorption
or
making
permanent,
employees
engaged
or
appointed without following the due
process or the rules for appointment. The
philosophy behind this approach is seen
set out in the recent decision in The
Workmen of Bhurkunda Colliery of M/s.
Central
Coalfields
Ltd.
v.
The
Management of Bhurkunda Colliery of
M/s. Central Coalfields Ltd. (JT 2006 (2)
SC 1), though the legality or validity of
such
an
approach
has
not
been
independently examined. But on a survey
of authorities, the predominant view is
seen to be that such appointments did not
confer any right on the appointees and
that
the
Court
cannot
direct
their
absorption
or
regularization
or
reengagement or making them permanent.
43. Thus, it is clear that adherence to
the rule of equality in public employment
is a basic feature of our Constitution and
since the rule of law is the core of our
Constitution, a Court would certainly be
disabled from passing an order upholding
a violation of Article 14 or in ordering the
overlooking of the need to comply with
the requirements of Article 14 read with
3 All] Masan Ali and others V. Union of India and others
1069
Article 16 of the Constitution. Therefore,
consistent with the scheme for public
employment, this Court while laying
down the law, has necessarily to hold that
unless the appointment is in terms of the
relevant
rules
and
after
a
proper
competition among qualified persons, the
same would not confer any right on the
appointee.
If
it
is
a
contractual
appointment, the appointment comes to an
end at the end of the contract, if it were an
engagement or appointment on daily
wages or casual basis, the same would
come to an end when it is discontinued.
Similarly, a temporary employee could
not claim to be made permanent on the
expiry of his term of appointment. It has
also to be clarified that merely because a
temporary employee or a casual wage
worker is continued for a time beyond the
term of his appointment, he would not be
entitled to be absorbed in regular service
or made permanent, merely on the
strength of such continuance, if the
original appointment was not made by
following a due process of selection as
envisaged by the relevant rules. It is not
open to the court to prevent regular
recruitment at the instance of temporary
employees whose period of employment
has come to an end or of ad hoc
employees who by the very nature of their
appointment, do not acquire any right.
High Courts acting under Article 226 of
the Constitution of India, should not
ordinarily issue directions for absorption,
regularization, or permanent continuance
unless the recruitment itself was made
regularly
and
in
terms
of
the
constitutional scheme. Merely because, an
employee had continued under cover of
an order of Court, which we have
described as 'litigious employment' in the
earlier part of the judgment, he would not
be entitled to any right to be absorbed or
made permanent in the service. In fact, in
such cases, the High Court may not be
justified in issuing interim directions,
since, after all, if ultimately the employee
approaching it is found entitled to relief, it
may be possible for it to mould the relief
in such a manner that ultimately no
prejudice will be caused to him, whereas
an interim direction to continue his
employment would hold up the regular
procedure for selection or impose on the
State the burden of paying an employee
who is really not required. The courts
must be careful in ensuring that they do
not interfere unduly with the economic
arrangement of its affairs by the State or
its instrumentalities or lend themselves
the instruments to facilitate the bypassing
of
the
constitutional
and
statutory
mandates.
44. The concept of 'equal pay for
equal work' is different from the concept
of conferring permanency on those who
have been appointed on ad hoc basis,
temporary basis, or based on no process
of selection as envisaged by the Rules.
This Court has in various decisions
applied the principle of equal pay for
equal work and has laid down the
parameters for the application of that
principle. The decisions are rested on the
concept of equality enshrined in our
Constitution in the light of the directive
principles
in
that
behalf.
But
the
acceptance of that principle cannot lead to
a position where the court could direct
that appointments made without following
the due procedure established by law, be
deemed permanent or issue directions to
treat them as permanent. Doing so, would
be negation of the principle of equality of
opportunity. The power to make an order
as is necessary for doing complete justice
in any cause or matter pending before this
Court, would not normally be used for
1070 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
giving the go-by to the procedure
established by law in the matter of public
employment. Take the situation arising in
the cases before us from the State of
Karnataka. Therein, after the Dharwad
decision, the Government had issued
repeated directions and mandatory orders
that no temporary or ad hoc employment
or engagement be given. Some of the
authorities and departments had ignored
those directions or defied those directions
and had continued to give employment,
specifically interdicted by the orders
issued by the executive. Some of the
appointing officers have even been
punished for their defiance. It would not
be just or proper to pass an order in
exercise of jurisdiction under Article 226
or 32 of the Constitution or in exercise of
power
under
Article
142
of
the
Constitution of India permitting those
persons engaged, to be absorbed or to be
made
permanent,
based
on
their
appointments or engagements. Complete
justice would be justice according to law
and though it would be open to this Court
to mould the relief, this Court would not
grant a relief which would amount to
perpetuating an illegality.
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 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 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. 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 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
3 All] Masan Ali and others V. Union of India and others
1071
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 of India.
46. Learned Senior Counsel for some
of the respondents argued that on the
basis of the doctrine of legitimate
expectation, the employees, especially of
the
Commercial
Taxes
Department,
should be directed to be regularized since
the decisions in Dharwad (supra), Piara
Singh
(supra),
Jacob,
and
Gujarat
Agricultural University and the like, have
given rise to an expectation in them that
their services would also be regularized.
The doctrine can be invoked if the
decisions of the Administrative Authority
affect the person by depriving him of
some benefit or advantage which either (i)
he had in the past been permitted by the
decision-maker to enjoy and which he can
legitimately expect to be permitted to
continue to do until there have been
communicated to him some rational
grounds for withdrawing it on which he
has been given an opportunity to
comment;
or
(ii)
he
has
received
assurance from the decision-maker that
they will not be withdrawn without giving
him first an opportunity of advancing
reasons for contending that they should
not be withdrawn {See Lord Diplock in
Council of Civil Service Unions v.
Minister for the Civil Service (1985
Appeal Cases 374), National Buildings
Construction Corpn. v. S. Raghunathan,
(1998 (7) SCC 66) and Dr. Chanchal
Goyal v. State of Rajasthan (2003 (3)
SCC 485). There is no case that any
assurance was given by the Government
or
the concerned department while
making the appointment on daily wages
that the status conferred on him will not
be withdrawn until some rational reason
comes into existence for withdrawing it.
The very engagement was against the
constitutional
scheme.
Though,
the
Commissioner of the Commercial Taxes
Department
sought
to
get
the
appointments made permanent, there is no
case that at the time of appointment any
promise was held out. No such promise
could also have been held out in view of
the circulars and directives issued by the
Government after the Dharwad decision.
Though, there is a case that the State had
made regularizations in the past of
similarly situated employees, the fact
remains that such regularizations were
done only pursuant to judicial directions,
either of the Administrative Tribunal or of
the High Court and in some case by this
Court. Moreover, the invocation of the
doctrine of legitimate expectation cannot
enable the employees to claim that they
must be made permanent or they must be
regularized in the service though they had
not been selected in terms of the rules for
appointment. The fact that in certain cases
the court had directed regularization of
the employees involved in those cases
cannot be made use of to found a claim
based on legitimate expectation. The
argument if accepted would also run
counter to the constitutional mandate. The
argument in that behalf has therefore to be
rejected.
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
1072 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
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.
48. It was then contended that the
rights of the employees thus appointed,
under Articles 14 and 16 of the
Constitution, are violated. It is stated that
the State has treated the employees
unfairly by employing them on less than
minimum wages and extracting work
from them for a pretty long period in
comparison with those directly recruited
who are getting more wages or salaries
for doing similar work. The employees
before us were engaged on daily wages in
the concerned department on a wage that
was made known to them. There is no
case that the wage agreed upon was not
being paid. Those who are working on
daily wages formed a class by themselves,
they
cannot
claim
that
they
are
discriminated as against those who have
been regularly recruited on the basis of
the relevant rules. No right can be
founded on an employment on daily
wages to claim that such employee should
be treated on a par with a regularly
recruited candidate, and made permanent
in employment, even assuming that the
principle could be invoked for claiming
equal wages for equal work. There is no
fundamental right in those who have been
employed on daily wages or temporarily
or on contractual basis, to claim that they
have a right to be absorbed in service. As
has been held by this Court, they cannot
be said to be holders of a post, since, a
regular appointment could be made only
by making appointments consistent with
the requirements of Articles 14 and 16 of
the Constitution. The right to be treated
equally
with
the
other
employees
employed on daily wages, cannot be
extended to a claim for equal treatment
with those who were regularly employed.
That would be treating unequals as
equals. It cannot also be relied on to claim
a right to be absorbed in service even
though they have never been selected in
terms of the relevant recruitment rules.
The arguments based on Articles 14 and
16 of the Constitution are therefore
overruled.
49. It is contended that the State
action in not regularizing the employees
was not fair within the framework of the
rule of law. The rule of law compels the
State to make appointments as envisaged
by the Constitution and in the manner we
have indicated earlier. In most of these
cases, no doubt, the employees had
worked for some length of time but this
has also been brought about by the
pendency of proceedings in Tribunals and
courts initiated at the instance of the
employees.
Moreover,
accepting
an
argument of this nature would mean that
the State would be permitted to perpetuate
an illegality in the matter of public
employment and that would be a negation
of the constitutional scheme adopted by
us, the people of India. It is therefore not
possible to accept the argument that there
3 All] Masan Ali and others V. Union of India and others
1073
must be a direction to make permanent all
the persons employed on daily wages.
When the court is approached for relief by
way of a writ, the court has necessarily to
ask itself whether the person before it had
any legal right to be enforced. Considered
in the light of the very clear constitutional
scheme, it cannot be said that the
employees have been able to establish a
legal right to be made permanent even
though they have never been appointed in
terms of the relevant rules or in adherence
of Articles 14 and 16 of the Constitution.
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 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. 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.
53. One aspect needs to be clarified.
There may be cases where irregular
appointments (not illegal appointments)
as explained in S.V. Narayanappa (supra),
R. N. Nanjundappa (supra), and B. N.
Nagrajan (supra), and referred to in
paragraph 15 above, of duly qualified
persons in duly sanctioned vacant posts
might have been made and the employees
have continued to work for ten years or
more but without the intervention of
orders of courts or of tribunals. The
question of regularization of the services
of such employees may have to be
considered on merits in the light of the
principles settled by this Court in the
cases above referred to and in the light of
this judgment.