DHARAM SINGH Vs. STATE OF U P

JUDGEMENT

(1.) THIS petition seeks the quashing of the order dated 11th November, 1999 passed by the Under Secretary, Government of Uttar Pradesh by which the request of the U.P. Higher Education Services Commission for creating certain additional posts in Group C and Group D has been rejected. The petitioners who claim to be engaged on daily wage basis have also sought a direction upon the respondents to create/sanction 14 posts of Class III and Class IV and to regularize their services and to pay them regular salary in the pay-scale of Rs. 2550-3200 and 3050-4590/- as the case may be. Petitioner Nos. 1 to 5 claim to be working as Class IV employees on daily wage basis in the U.P. Higher Education Services Commission (hereinafter referred to as the 'Commission') while petitioner No. 6 claims to be working as a Driver, a Class III post, on daily wage basis in the Commission. It is stated that the Commission in its meeting held on 24th October, 1999 proposed to create fourteen posts of Class III and Class IV employees and made a request to the State Government for creating the said posts and for regularizing the services of the petitioners. By the order dated 11th November, 1999 the State Government rejected the request of the Commission for creating the posts on account of financial constraints. It is this order that has been impugned in the present petition. On 24th April, 2002 this Court had directed that the Commission may send fresh recommendations to the State Government for sanction of appropriate posts of Group C and Group D and the State Government may take a fresh decision. Pursuant to the directions issued by this Court the State Government examined the matter but the request of the Commission for creating additional posts was rejected. The petitioners have not sought the quashing of this order of the State Government. Learned counsel for the petitioners submitted that the petitioners have been working on daily wage basis from 1989 and 1992 and, therefore, even in the absence of any service Rules providing for regularization of their service, they should be regularised in view of the decision of this Court in Writ Petition No. 53742 of 2002. In the alternative, so far as petitioner No. 6 is concerned, learned counsel for the petitioners submitted that if the Commission has not framed the Rules, then the said petitioner should be regularized under the provisions of Rule 4 of the U.P. Regularization of Daily Wages Appointment on Group C Posts (Outside the Purview of the Public Service Commission) 1998, (hereinafter referred to as the '1998 Rules'). It is not in dispute that the Commission has not framed any Rules for regularization of daily wage employees belonging to Group C and Group D posts. The 1998 Rules are not applicable to the petitioners but even assuming that the said Rules apply, then too the petitioners cannot take the benefit of the Rules because there is no vacancy. THIS is what was also observed by this Court in Writ Petition No. 53742 of 2002. The claim of the petitioners for regularisation cannot be considered as the petitioners have not placed any Regulation or Rule providing for regularisation and nor is there any vacancy against which they can be regularised. There can be no regularisation in the absence of any scheme for regularisation as held by this Court in State of U.P. and Anr. Vs. Rajendra Prasad and Anr., 2004 (1) UPLBEC 60. The Supreme Court in A.Umarani Vs. Registrar, Co-operative Socities and Ors., reported in 2004 AIR SCW 4462 clearly held that regularisation cannot be a mode of recruitment and further it cannot give permanence to an employee whose services are ad-hoc in nature. The aforesaid decision was followed by the Supreme Court in Executive Engineer, ZP Eng. Division and Anr. Vs. Digambar Rao and Ors., 2004 AIR SCW 5546. A Constitution Bench of the Supreme Court of five Hon'ble Judges in the case of Secretary, State of Karnataka and Ors., Vs. Umadevi and Ors., JT 2006 (4) 420 examined at length the issue about regularisation of services of daily wage/ad hoc employees and observed:- "..............It is time, that Courts desist from issuing orders preventing regular selection or recruitment at the instance of such persons and from issuing directions for continuance of those who have not secured regular appointments as per procedure established. The passing of orders for continuance, tends to defeat the very Constitutional scheme of public employment. It has to be emphasized that this is not the role envisaged for High Courts in the scheme of things and their wide powers under Article 226 of the Constitution of India are not intended to be used for the purpose of perpetuating illegalities, irregularities or improprieties or for scuttling the whole scheme of public employment. ................... ..............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. .............. ..................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." In such circumstance, it is not possible to grant any relief to the petitioners for regularisation of their services. The writ petition is, accordingly, dismissed.