Single Judge Writ Bench dismissed a petition seeking mandamus for continuation of employment as a Billing Supervisor. The Court held that contractual employees engaged via service providers have no subsisting right to regular appointment, citing Uma Devi.
no order as to cost
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Court No. - 40 Case :- WRIT - A No. - 27966 of 2018 Petitioner :- Arun Kumar Shukla Respondent :- Up Power Corporation Ltd. And 3 Others
Counsel for Petitioner :- Kamlesh Tiwari Counsel for Respondent :- Manoj Kumar Srivastava,Abhishek Srivastava
Hon'ble Mrs. Sangeeta Chandra,J.
Heard the learned counsel for the petitioner and Shri Manoj kumar Srivastava, learned counsel appearing on behalf of respondents no. 2 to 4.
The petitioner has prayed for a mandamus to be issued to allow the petitioner to work as Billing Supervisor in 132/33/11 KV Sub Station Electricity Distribution Division, Shahganj, Jaunpur and pay him month to month wages as paid earlier, till regular appointment is made in pursuance of Regulations of 1955.
It has been submitted by the learned counsel for the petitioner that the petitioner was engaged as Executive Engineer in Electricity Distribution Division, Shahganj, Jaunpur on contract basis in the year 2010. He continued to work as Samvida Karmchari at 132 KV Sub Station, Electricity Distribution Division, Shahganj, Jaunpur up to August, 2018. His contract was with Singh Traders Bhagwati Colony, Jaunpur who were Government Contractor and General Order Supplier.
Later on the Corporation advertised for engaging another Contractor and now N. Soft Company (P) Ltd., Banglore has been given contract for supply of labour. Since he has working for the past eight years, he cannot be dis-engaged by the Corporation.
Having heard learned counsel for the parties and having gone through the submissions made in the writ petition, it is evident that the petitioner was a contractual employee
engaged by the Service Provider which was initially Singh Traders Bhagwati Colony, Jaunpur, thereafter he was engaged by another Service Provider namely Seema Traders and the Experience Certificate was given by the wife of the proprietor of Singh Traders to him. Later on he was engaged by the Vibhu Info-tech Enterprises (P) Ltd.
It is apparent that the petitioner has been retained by several Service Providers that have been engaged from time to time by the Corporation for supply of labour. The petitioner was not appointed on ad hoc basis by the Corporation.
Counsel for the petitioner has placed reliance upon an interim order passed by a Coordinate Bench of this Court in Writ Petition No. 25086 (SS) of 2018.
I have gone through the interim order passed by this Court.
As per the law settled by the Hon'ble Supreme Court in the case of Vishnu Traders vs. State of Haryana & Others reported in 1995 Supp.(1) SCC, 461, an interim order of a Coordinate Bench of the same Court should be respected. However, there is no such law which says that if the Court is finally deciding the matter, it should nevertheless respect the interim order.
Further, this Court finds that while passing the impugned order the Court has relied upon a judgment of the Hon'ble Supreme Court in the case of State of Haryana vs. Piara Singh reported in 1992 Lab. I.C., 2168, to observe that an ad hoc employee cannot be replaced by another ad hoc employee.
This Court also finds that the petitioner's grievance is with regard to contractual appointment and its continuance. It is settled law as declared by the Hon'ble Supreme Court in its Constitution Bench judgment in Secretary, State of Karnataka & Others
vs. Uma Devi reported in (2006) 4 SCC 1, that such contractual engagement are made without following the mandate of Article 14 and 16 of the Constitution of India and all such persons who came in from the back door may also be disengaged and may go through the back door. Even otherwise the petitioner is not an ad hoc employee directly engaged by the Corporation. He is only a contractual employee engaged by the Service Provider. For a writ of mandamus to be issued the Court must be considered that a there is no subsisting legal right in favour of the applicant and a statutory duty is cast upon the respondent authority to respect such a right. In the case of Secretary, State of Karnataka vs. Uma Devi (Supra) the Hon'ble Supreme Court has observed that State of Haryana vs. Piara Singh (Supra) is not good law and all such judgments that have been rendered by the Benches of lesser coram are also no longer good law which direct continuance or regularization of daily wage/muster roll/contractual employees.
Shri Satyam Singh who appears for the State of U.P. has pointed out that this Court in Writ-A No. 21211 of 2018 (Mohd. Azam And 32 Others vs. Union of India & Others) has dismissed a similar claim on 08.10.2018.
This Court finds that the petitioner in the present petition has also no legal right and no mandamus as prayed for can be issued to the respondents to allow him to work as Billing Supervisor as aforesaid.
The writ petition is dismissed . No order as to cost.
Order Date :- 3.1.2019 VR
2 issues framed by the court
Whether a mandamus can be issued to a State Corporation to allow a contractual employee retained by successive service providers to continue working.
Whether substantial service by contractual employees engaged by third-party service providers confers a right for regular appointment under Article 14 and 16 of the Constitution.
Colour shows how this judgement treated each authority
Vishnu Traders vs. State of Haryana & OthersDistinguished¶13
Vishnu Traders vs. State of Haryana & Others 1995 Supp.(1) SCC, 461 · Who else cites this
State of Haryana vs. Piara SinghDistinguished¶14
State of Haryana vs. Piara Singh 1992 Lab. I.C., 2168
Secretary, State of Karnataka & Others vs. Uma DeviFollowed¶15
Secretary, State of Karnataka & Others vs. Uma Devi (2006) 4 SCC 1 · Who else cites this
Mohd. Azam And 32 Others vs. Union of India & OthersReferred¶17
Writ-A No. 21211 of 2018 (Mohd. Azam And 32 Others vs. Union of India & Others)
Arun Kumar Shukla
Up Power Corporation Ltd.
Sangeeta Chandra
As recorded by the court registry
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