# Shankarsan Dash v. Union of India

- **Citation:** (2009) 1 ILRA 179
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2009-01-09
- **Case number:** Civil Misc. Writ Petition No.17529 of 2004
- **Bench:** Shashi Kant Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shankarsan-dash-v-union-of-india-41340
- **Pages:** 7

## Headnote

Constitution
of
India,
Article
226Regularisation of Daily wages-working
for few hours in a day for filling water in
pots
w.e.f.
1983
to
1990-engaged
without
following
procedure
of
recruitment Rules-no substantive right
to claim regularisation merely on long
period of working

Held: Para 14

There is nothing on record to show that
the appointment/engagement of the
petitioner was on a vacant sanctioned
post or was in terms of relevant rules. If
it were an engagement or appointment
on daily wages or casual basis the same
would come to an end when it was
discontinued.
Merely
because
a
temporary employee or a casual wage
worker is continued for a long time, 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.
Case law discussed:
JT 2006(4) 420; 2008(10) SCC 1

## Text

1 All] Rafi Abbas V. State of U.P. and others

179
7. Further Rule 21(2) also shows
that it only lays down life of the select list
which provides that after filling the
vacancies
by
due
notification
as
advertised or varied the select list would
lapse.

8. Now coming to the second
submission we find that the reduction of
vacancies if is decided not in any arbitrary
manner but for cogent and valid reasons
the same is not illegal. In the case of
Shankarsan Dash Vs. Union of India,
1991(3) SCC 47 the Hon'ble Apex Court
said:

"7. It is not correct to say that if a
number of vacancies are notified for
appointment and adequate number of
candidates are found fit, the successful
candidates acquire an indefeasible right
to be appointed which cannot be
legitimately
denied.
Ordinarily
the
notification
merely
amounts
to
an
invitation to qualified candidates to apply
for recruitment and on their selection they
do not acquire any right to the post.
Unless the relevant recruitment rules so
indicate, the State is under no legal duty
to fill up all or any of the vacancies.
However, it does not mean that the State
has the licence of acting in an arbitrary
manner. The decision not to fill up the
vacancies has to be taken bona fide for
appropriate reasons. And if the vacancies
or any of them are filled up, the State is
bound to respect the comparative merit of
the candidates, as reflected at the
recruitment test, and no discrimination
can be permitted. This correct position
has been consistently followed by this
Court, and we do not find any discordant
note in the decisions in State of Haryana
v. Subhash C7hander Marwaha and
Others, [1974] 1 SCR 165; Miss Neelima
Shangla v. State of Haryana and Others,
[1986] 4 SCC 268 and Jitendra Kumar
and Others v. State of Punjab and Others,
[1985] 1 SCR 899."

9. The aforesaid judgement clearly
shows that even a selected candidate has
no indefeasible right to get appointment.

10. In this case it is not disputed that
the number of vacancies have been
reduced on account of appointments made
pursuant to the directions of the Apex
Court in the case of Sanjay Singh (supra)
which is admittedly a valid reason for
revising
the
number
of
vacancies
determined under Rule 15 of 2001 Rules.

11. Now coming to the last
submission that Rule 16(1) only confers
right of consideration which has already
given to the petitioner since it is not his
case that in the recruitment process he has
not been considered or participated.

12. For the reasons given above, we
do not find any merit in this writ petition
and it is accordingly dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.01.2009

BEFORE
THE HON'BLE SHASHI KANT GUPTA, J.

Civil Misc. Writ Petition No.17529 of 2004

Rafi Abbas

...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri. V.M. Zaidi
Sri. Vivek Prakash Mishra
180 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

Counsel for the Respondents:
Sri C.B. Yadav
Sri. S.K. Garg

Constitution
of
India,
Article
226Regularisation of Daily wages-working
for few hours in a day for filling water in
pots
w.e.f.
1983
to
1990-engaged
without
following
procedure
of
recruitment Rules-no substantive right
to claim regularisation merely on long
period of working

Held: Para 14

There is nothing on record to show that
the appointment/engagement of the
petitioner was on a vacant sanctioned
post or was in terms of relevant rules. If
it were an engagement or appointment
on daily wages or casual basis the same
would come to an end when it was
discontinued.
Merely
because
a
temporary employee or a casual wage
worker is continued for a long time, 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.
Case law discussed:
JT 2006(4) 420; 2008(10) SCC 1

(Delivered by Hon'ble Shashi Kant Gupta, J.)

1. This writ petition has been filed
by the petitioner for the following relief:

"to issue a writ of mandamus
directing the respondents to accommodate
the petitioner on the post of Class IV
employee existing in the department in
pursance of the order passed by this
Hon'ble Court. "

2. The brief facts emerging from the
writ petition are as follows:-

3. The petitioner was engaged as
waterman on daily wages in the Sub
Registrar
Office,
Dhampur,
District
Bijnor on 1.1.1983 and since then he was
discharging his duties as waterman in the
said office. The petitioner from time to
time had also worked against the leave
vacancy of Class, IV employee occurred
in the department. The respondent no.1
issued a Circular dated 12.08.1998
whereby all concerned authorities were
directed not to engage any outsider as
waterman or for any other purpose,
however, if any such person was already
working he should be immediately.
discontinued. In pursuant to the said
order, respondent no. 4 discontinued the
engagement of the petitioner as waterman
in Sub Registrar Office, Dhampur, hence
the petitioner filed a Writ Petition
No.35179 of 1998 and this Hon'ble Court
passed the following order:-

"Heard the parties counsel and I
have gone through the record.

It has been admitted by the learned
counsel for the petitioners that the
petitioner no. 1 has been working as
Water-man in the establishment of the
respondents fr4om January 1983 while
the petitioner no.2 had been working from
September, 1990. It is not disputed that
the petitioners are not Government
servants and they are not on regular
establishment of Sub Registrar. They are
casual workers appointed on fixed wages.
Their services have been terminated on
the ground that no such appointment be
made in future from outside and those
who are already working may be ceased
to work. It has been submitted by the the
learned counsel for the petitioner that the
post of Water man still exists in the
department and it is, therefore, directed
1 All] Rafi Abbas V. State of U.P. and others

181
that in case such post exists in the
Department, the petitioner shall be
accommodated in the view of the fact that
they have served for a long time in the
department.

With these observation, petition is
disposed of finally"

4. It is further pleaded in the writ
petition that despite the order passed by
this Court the authority concerned did not
accommodate the petitioner. Hence this
writ petition.

5. In para 5 of the counter affidavit it
has been stated that the petitioner was
only engaged on casual basis as a
waterman on fixed wages and it was
further pleaded that petitioner did not
work continuously but was engaged on
casual basis from time to time as and
when necessity arose. It was further
pleaded that petitioner never worked or
treated as daily wager on the post of Class
IV employee and in the year 1998 when
the necessity of engaging him ceased, he
was discontinued. It was further pleaded
in para 4 of the counter affidavit that there
is no post of waterman existing as such
the order dated 10.4.2002 can not be
implemented. The supplementary counter
affidavit was also filed by the respondents
and in para 3 & 4 it was stated as
follows:-

"3- The petitioner has made a prayer
for
directing
the
respondents
to
accommodate the petitioner on class IV
posts of the department. It is submitted
that the petitioner was actually a part
time casual worker and engaged for few
hours in a day for filling water pot. This
engagement was never made against any
substantive vacancy of the department
and never made adopting the selection
procedure in any of the provisions of the
existing service rules.
4- The petitioner's prayer made in
the writ petition are not admitted as
separate provisions have been provided
for appointment on the Class IV posts of
the department and the petitioner can
apply in case of vacancy if eligible and he
fulfills the criteria."

6. In reply to para 3 & 4 of the
supplementary
counter
affidavit,
petitioner filed supplementary rejoinder
affidavit and in para 4 & 5 it was stated as
follows:-

"4- That in reply to averments made
in para-3 of the affidavit it is submitted
that
the
petitioner
had
worked
continuously as an Class IV employee in
the department since 1983 till 1998. It is
further submitted that the respondents are
still adopting the pick and choose policy
for regularizing the services of the
workers who were engaged in the same
capacity as of the petitioner. Therefore,
the averments made to the contrary in the
para under reply are not correct and they
are denied.
5-That in reply to the averments
made in para-4 of the affidavit, it is
submitted that the petitioner as stated
above, has continuously worked for last
15 years. Therefore, in view of the said
fact he is eligible for being appointed and
to get regularized his services as class IV
employee in the department."

7. It was submitted by the counsel
for the petitioner that despite the order
dated 10.4.2002 passed by this Court in
Writ
Petition
No.35179
of
1998,
respondents deliberately and knowingly
on
account
of
some
extraneous
182 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

consideration have failed to accommodate
the petitioner. It was further submitted
that respondent no.2 has accommodated
other persons who were working as
waterman in the department on the basis
of the direction given by this court,
therefore, the action of the respondents in
not accommodating the petitioner as Class
IV employee in the department is wholly
illegal and void. It was further submitted
that the petitioner is fully eligible for
being appointed as Class IV employee in
any of the department of the respondents.

8. On the other hand learned
Standing counsel has submitted that
petitioner has got no right to hold the
post, he was neither appointed as a regular
employee nor was appointed on daily
wages. It was further submitted that he
was simply engaged on casual basis as
waterman as when the need arose. It was
further submitted that the petitioner did
not work continuously from 1983 to 1998
and has got no legal enforceable right to
claim the appointment. It was further
categorically stated that there does not
exist any post of waterman as such the
order dated 10.4.2002 passed by this
Court in Writ Petition No.35179 of 1998
cannot be implemented. It was further
submitted that certain orders annexed
alongwith the writ petition has got no
bearing on the case in hand.

9. Heard the learned counsel for the
petitioner and learned Standing counsel
appearing on behalf of the respondents
and perused the record of the case.

10. In para 3 of the supplementary
counter affidavit it was stated that the
petitioner was actually a part time casual
worker and engaged for a few hours in a
day for filling a water pot. It was further
pleaded that this engagement was neither
made against any substantive vacancy of
the department nor made by following a
due process of selection as envisaged by
relevant Rules. In para 4 of the
supplementary counter affidavit it was
further stated that separate provisions
have been provided for appointment on
the Class IV posts of the department and
the petitioner can apply in the case of
vacancy if he fulfills the criteria. In para 3
of the counter affidavit it has been further
stated that there exist no post of waterman
in the department as such the order that
10.04.2002 passed by this Court in the
previous Writ Petition No. 35179 of 1998
cannot be implemented.

11. The Apex Court in "Secretary,
State of Karnataka and others Vs.
Umadevi and others JT 2006(4) 420" has
observed as follows:-

"...........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 of the
contract, if it were an engagement or
appointment on daily basis, the same
would come to an end when it is
discontinued. Similarly, a temporary
employee could not be made permanent
on the expiry of his term of appointment.
It has 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
1 All] Rafi Abbas V. State of U.P. and others

183
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 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,
regularisation or permanent continuance
unless the recruitment itself was made
regularly
and
in
terms
of
the
constitutional scheme.
................ 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 instrument to
facilitate
the
by
passing
of
the
constitutional and statutory mandates."

................
While
directing
that
appointments, temporary or casual, be
regularised or made permanent, Courts
are swayed by the facts that the
concerned person has worked for some
time and in some cases for 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 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 constitution scheme of the
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 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.
................. 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 Shiverndra
Bahadur V. The Governing Body of
Nalanda College [(1962) Supp.2 SCR
144]. That case arose out of a refusal to
promote the writ petitioner therin as the
Principal of a college. This Court held
that in order that 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."

12. The Apex Court further in
Official Liquidator Vs. Dayanand and
184 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

others 2008(10) SCC 1 has observed as
follows:

" The creation and abolition of
posts,
formation
and
structuring/
restructuring of cadres, prescribing the
source and mode of recruitment and
qualifications and criteria of selection,
etc. are matters which fall within the
exclusive
domain
of
the
employer.
Although the decision of the employer to
create or abolish posts or cadres or to
prescribe
the
source
or
mode
of
recruitment
and
laying
down
qualification, etc is not immune from
judicial review, the Court will always be
extremely
cautious
and
circumspect
tinkering with the exercise of discretion
by the employer.
..........the Court cannot sit in appeal
over the judgement of the employer and
ordain that a particular post or number of
posts be created or filled by a particular
mode of recruitment. The power of
judicial review can be exercised in such
matters only if it is shown that the action
of the employer is contrary to any
constitutional or statutory provisions or is
patently arbitrary or vitiated by mala
fides."

13. The Apex Court further in case
of State of Harayana and others Vs.
Navneet Verma has inter alia in para 17 of
the judgment has held

" that the power to create or abolish
a post rest with the Government; whether
a particular post is necessary is a matter
depending upon the exigencies of the
situation and administrative necessity;
creation and abolition of the post is a
Government policy and every sovereign
Government has this power in the interest
and necessity of internal administration;
creation, continuance and abolition of
posts are all decided by the Government
in the interest of administration and
general public; the court would be the
least competent in the face of scanty of
material
to
decide
whether
the
Government acted honestly creating a
post or refusing to create a post or its
decision suffers from mala fides, legal or
factual; as long as the decision to abolish
the post is taken in good faith in the
absence of material, interference by the
court is not warranted"

14. There is nothing on record to
show that the appointment/engagement of
the petitioner was on a vacant sanctioned
post or was in terms of relevant rules. If it
were an engagement or appointment on
daily wages or casual basis the same
would come to an end when it was
discontinued. Merely because a temporary
employee or a casual wage worker is
continued for a long time, 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.

15. There is nothing on record to
establish that the petitioner worked
continuously from 1983 upto 1998 as
waterman
in
establishment.
The
engagement of the petitioner appears to be
through
back
door
entry
without
following any process of law. Therefore,
his disengagement in the year 1998 was
fully
justified.
Moreover
the
respondents in para 3 of the counter
affidavit have categorically stated that
there exists no post of waterman in the
department as such the order dated
10.4.2002 passed in the previous Writ
1 All] B.H.U., Varanasi & another V. Presiding Officer, Labour Court and another

185
Petition No.35179 of 1998 cannot be
implemented.

16. In view of the above, the
respondents cannot be compelled to create
any supernumerory post. However, if,
according to the petitioner, the earlier
order passed by this Court on 10.4.2002
was not implemented deliberately without
any cogent reasons, then he could have
taken the contempt proceedings against
the authorities concerned in accordance
with law but instead of doing so, he
preferred to execute the earlier order
dated 10.4.2002 passed by this Court,
through the present writ petition.

17. The petitioner has also annexed
a few orders passed by this Court in
different writ petitions without pleading
the facts and circumstances of those cases
in the present writ petition as such, said
orders in the absence of any pleadings
cannot be taken into consideration.

18. In view of the discussion made
hereinabove,
this
writ
petition
is
accordingly dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.01.2009

BEFORE
THE HON'BLE SUNIL AMBWANI, J.

Civil Misc. Writ Petition No. 30802 of 1999

Banaras Hindu University, Varanasi and
another

 ...Petitioners
Versus
Presiding Officer Labour Court, U.P.,
Varanasi and another
...Respondents

Counsel for the Petitioners:
Sri V.K.Upadhya
Sri Pankaj Naqvi
Sri Dinesh Kacker
Sri V.B. Singh

Counsel for the Respondents:
Sri Manish Goyal
Sri Rajarshi Gupta
Sri J.K. Chakraborty
Sri J.P. Pandey

Constitution of India-Art. 226-Industrial
Dispute-reference
made
by
State
Government-workman the employees of
B.H.U.-fully
controlled
owned
and
financed by central Govt.-without least
concern of State Government-held-State
Government not empowered to refer the
dispute.

Held: Para 27

The
finding
of
the
Labour
Court
completely overlook the admitted facts
that the entire grant is received by the
University from the Central Government
and that the Executive Council which
control
with
the
finances
and
administrative under the supervision of
the Visitor of the University and the Vice
Chancellor is the full time salaried officer
of the University and executive head
appointed by the Visitor. The Banaras
Hindu University has not only a central
character but is a University which is
controlled and managed by the Central
Government. The State Government as
such did not have the authority to make
a reference nor any such authority was
delegated
to
it
by
the
Central
Government under Section 39 of the U.P.
Industrial Disputes Act. The reference
under
Section
4k
by
the
State
Government as such was not competent
and thus the proceedings in pursuance of
the reference are liable to be set aside.
Case law discussed:
(2007) 2 SCC 428, (2006) 6 SCC 516, 2008(7)
ADJ 122, (2006) 13 SCC 727, (1969) 1 SCC
769, (1975) 4 SCC 679, (1997) 9 SCC 377,
2002 (93) FLR 606, 1989 UPLBEC 149,
1995(70) FLR 20