The High Court dismissed a writ petition seeking to regularise an employee as a Driver Engine Static based on casual employment. Relying on Uma Devi, the court held casual hires have no substantive right to a specific post if rules presclude it.
Writ petition dismissed; no reliefs granted to regularise petitioner as Driver Engine Static.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
C.W.P.No. 19657 of 2005
Date of Decision: 1.5.2008
MES No. 372943 Pawan Kumar ...Petitioner
Versus
Union of India and others ... Respondents.
CORAM: HON'BLE MR. JUSTICE M.M. KUMAR
HON'BLE MRS. JUSTICE SABINA
Present: None .
M.M.KUMAR, J.
This petition filed under Article 226 of the Constitution prays for issuance of a writ in the nature of certiorari quashing order dated 7.10.2005 ( annexure P.5) passed by the Central Administrative Tribunal, Chandigarh Bench, Chandigarh and to regularise his services as Driver Engine Static ( DES) from the date of his initial appointment i.e. 19.12.1986 with all consequential benefits
Brief facts of the case are that the petitioner was appointed as DES on 17.11.1986 ( Annexure P.1) on casual basis after qualifying the trade test and he continued to work as such upto 31.1.1987. The post of DES is governed by Military Engineering Services (Industrial Class III and Class IV ) Recruitment Rules, 1971. According to these rules all such employees working on casual basis are to be regularised by taking into
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account their pass in the trade test conducted by the competent authority. In 1971 , there was no such qualification of ITI required for being regularised to the post of DES. However, vide circular dated 17.3.1986, the respondents fixed the qualification of ITI certificate in the trade concerned as a requirement for regularisation. The petitioner who was otherwise eligible under the 1971 rules was denied regularisation as DES on the sole ground that he does not possess the ITI qualification. He was however, regularised in the lower grade as Valve Man instead of DES by order dated 13.4.1987. The petitioner on 10.9.2004 filed OA No. 811 DBN 2004 before the Tribunal with the prayer to extend the benefit of judicial decisions but vide impugned order (Annexure P.10) his application was dismissed as being time barred and the Tribunal found that there was no good ground to reopen the issue that became settled more than 18 years ago.
A perusal of appointment letter dated 17.11.1986 ( Annexure P.1) shows that petitioner was appointed for 89 days only. The petitioner cannot be considered to have any substantive right to the post on which he has been engaged for a specified period. If he has not been regularised on the post on which he was appointed for specified period, no legal infirmity warranting interference with the action of the respondents could be found. In that regard reliance may be placed on the judgement of a Constitution Bench of Hon'ble the Supreme Court in the case of Secretary, State of Karnataka and others v. Uma Devi and others JT 2006(4) SC 420 wherein in para 45, it has been observed by their Lordships as under:
“ While directing that appointments, temporary or casual, be regularized or made permanent, the courts are swayed by the fact that the person concerned has worked for some time and in
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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 position to bargain – not at arm's 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 make 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 courts were to void a contractual employment of this nature on the ground that the parties were not having equal bargaining power, and 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 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.
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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 terms. 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 service 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 (sic) 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.”
When the facts of the instant case are examined in the light of the statement of law given by the Constitution Bench in Uma Devi's case (supra) it becomes evident that the petitioner has worked on casual basis on the post of DES only for a period of about 75 days i.e. From 17.11.1986 to 31.1.1987. He lacked ITI qualification required for the post of DES, which was prescribed vide Circular dated 17.3.1986. The petitioner does not acquire any right to the post of DES nor he became entitled to regularisation on that post. It is also evident that the petitioner was regularised on the post of Valvemen vide order dated 13.4.1987. Even the OA filed by the petitioner in the year 2004 has been found to be time barred and the
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Tribunal has rightly held that a matter which has been settled more than 18 years ago cannot be permitted to be reopened.
For the reasons afore-mentioned this petition fails and the same is
dismissed.
(M.M.Kumar) Judge
1.5.2008 okg
(Sabina) Judge
3 issues framed by the court
Whether a casual employee engaged for a specified short period acquires a substantive right to the post without regularisation.
Whether the petitioner can claim regularisation on the post of Driver Engine Static (DES) when tasked with shorter duration works.
Whether the petitioner can be regularised on post without possessing the mandatory ITI qualification prescribed by circular.
Colour shows how this judgement treated each authority
Secretary, State of Karnataka v. Uma DeviRelied on¶18
Secretary, State of Karnataka and others v. Uma Devi and others JT 2006(4) SC 420 · Who else cites this
2 provisions across 2 enactments
Pawan Kumar
Union of India
M.M. KUMAR
SABINA
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
