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1992 Supreme(MP) 358
IN THE HIGH COURT OF MADHYA PRADESH
R. C. Lahoti and Shacheendra Dwivedi, , JJ.
Suresh Chandra & Ors.
Vs.
State of M. P. & Ors.
M. P. No. 467 of 1989 (G.)
Decided On: 30.06.1992
For Appellant/Petitioner/Plaintiff:Mr. H. N. Upadhyay, Advocate
For Respondents/Defendant: G. A. and Mr. R D Jain and Mr. Madhukar Rao, Amicus Curae
The State Government cannot in exercise of its executive fiat open a channel for entry in public services by issuing instructions or rules providing for regularisation of the ad-hoc/contingency paid/ contractual or other irregularly appointed employees when there are rules or legislation covering the field.
Headnote:
WRIT - REGULARISATION OF SERVICES - DAILY WAGE EMPLOYEES - CIRCULAR ISSUED BY STATE GOVERNMENT - APPLICABILITY - REGULARISATION OF SERVICES - CONDITIONS - EQUAL PAY FOR EQUAL WORK - DOCTRINE - APPLICABILITY.
Fact of the Case:
10 daily wage employees filed a writ petition seeking a mandamus restraining the respondents from terminating their services and commanding them to regularize their services so as to absorb them in the regular service of the respondents, also to make payment of wages at the same rate which the regular employees in the department are being paid. The petitioners relied on two circular orders of G. A. D. (Karmik Prashashanik Sudhar Evam Prasikshan Vibhag) issued respectively on 15-5-1987 and 13-1-1989. The respondents submitted that the petitioners were not daily wage employees and they were under a misapprehension as to facts when they claimed to be so. They were 'piece-workers' engaged only for specified work at specified rates, payable pro-rate with the work done and not as daily-wage employees. The State Government had introduced a scheme for identifying Harijan localities and Harijan families inhibiting in such localities, for surveying their social and financial conditions so as to create work-schemes. Volunteers were to be engaged for performing such survey-cum-investigation work at the rates prescribed pro-rate with the work done, vide Schedule-I of the Scheme. Schedule-I of the scheme prescribes for payment at different rates varying from 15P. per page to Rs. 2/- per 5 pages of the different types of schedules (proformas) filled up, from Rs 2/- to Rs. 2.50 per page for typing work done and the different rates, minimum Rs. 3/- and not exceeding Rs. 30/-and 35/-, for the interviews taken by such workers. The respondents also filed a statement Annex. R/2 showing the work-days for which each of the petitioners had worked and was entitled for payment (rather paid) between August, 1988 to February, 1989. The Directorate vide order dated 8-3-89 (Annex. R/3) informed all the Deputy Directors that it was not possible to carry on any further the survey work under the scheme. The respondents submit that the petitioners were not 'appointed in any service' and hence there was no question of terminating their services On the contrary, they were engaged as piece-workers under a definite scheme of the Government which having been brought to an end, it was not possible to continue the petitioners with the employment which was given to them.
Finding of the Court:
The Court held that the petitioners were not entitled to any relief in exercise of its writ jurisdiction. The Court observed that the circulars issued by the State Government were issued in haste and did not lay down any well defined policies preceded by a really deep policy-making thought. The Court further observed that the circulars had far from giving relief to their subjects have proved to be a source of litigation. The Court also observed that the circulars were prima facie violative of Arts. 14 and 16 of Constitution.
Issues: 1. Whether a person can seek employment under departmental circulars amounting to execution instructions in spite of the appointment to the post being governed by statutory rules framed either under a statute or under Art. 309 of the Constitution of India. 2. Whether the appointments made in breach of the provisions contained in the Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959 can be protected and permitted to be regularised under the Executive instructions ? 3. Whether the Court is competent to grant regularisation without regard to the fact whether any vacancy exists in the department or not ? 4. What is the nature of the writ to be issued in such cases ?
Ratio Decidendi: 1. The State Government cannot in exercise of its executive fiat open a channel for entry in public services by issuing instructions or rules providing for regularisation of the ad-hoc/contingency paid/ contractual or other irregularly appointed employees when there are rules or legislation covering the field; and even if there be such executive instructions/rules issued, they cannot enable any claim in law or equity being successfully canvassed in a Court of law in face of the Rules under Art. 309 holding the field. 2. While making recruitment to the services, it is mandatory to notify the vacancies to the Employment Exchanges but it is not necessary that the appointments must be made out of the names forwarded by the employment exchange (see-- Vijay Kumar v. Director V. S. 1986 2 MPWN 249 unless there be a rule or instruction to the contrary, binding on the Government Department, making it mendatory to do so. 3. To be entitled to an appointment, there must be a post available. 4. Wherever it has been found that the employee/petitioner had stood regularised or absorbed in service, the status of the employee having been recognised and declared by the Court, impugned action to the contrary has been struck down (see J. C. Yadav v. State of Haryana (1990) 2 SCC 189, and Ramswaroop v. State of Haryana (1979) 1 SCC 168.
Final Decision: Both the petitions were dismissed, though without any order as to costs.
R.C. Lahoti, J.
1. This order shall govern the disposal of M. P. No. 2022/90 also. Let us notice the relevant: facts in the two cases Facts in M. P. No. 467/89 :
2. A few workers, 10 in number, claiming to be daily rated employees, pray for a writ of mandamus not only restraining the respondents from terminating their services but also commanding them to regularise their services so as to absorb them in the regular service of the respondents, also to make payment of wages at the same rate which the regular employees in the department are being paid.
3. The averments made in the petition are not perfectly in accord with the several documents annexed with the petition and forming part thereof. To curtail the needless controversy and obviate the way for accuracy in statement of facts, they are culled and collected from the documents which are not disputed.
4. On different dates in the month of August, 1988, the petitioners were given appointments by the Regional Deputy Director of Harijan and Backward Classes Welfare, Gwalior and Chambal Division. Though the petitioners claim to be daily rated workers, the contents of the orders of appointment show that they were appointed pursuant to the order dated 9-8-1988 issued by the Directorate of Harijan Development. The petitioners were appointed for performing the specified job, at the prescribed rates, on the post of Investigators The nature of the appointment was purely temporary, liable to be terminated at any time without any previous notice. It appears that the petitioners continued to work until the month of January, 1989. On 20-3-1989, they made a demand vide Annex. P/12 complaining that salary for the month of February 1989 was not paid to them resulting in financial hardship. The Deputy Director informed the Joint Director of the grievance raised by the petitioners, seeking later's directions because the scheme of 'Filling Proforma-II' for which the petitioners were engaged had been discontinued. The petitioners made a further representation on 1-4-1989, simultaneously serving a notice for demand of justice through their advocate.
5. The petitioners have placed reliance on two circulars orders of G. A. D. (Karmik Prashashanik Sudhar Evam Prasikshan Vibhag) issued respectively on 15-5-1987 and 13-1-1989. The substance of the circular dated 15-5-1987 (Annex. P/14) is that by virtue of Finance Department instruction powers of the departmental heads to make appointment on daily wages were withdrawn except to be exercised with the previsous sanction of the State Government: the restriction being not applicable to the appointments made before 1-5-1985, that appointment made on daily wages even after 1-5-1985 should not be liable to be terminated and the period for which the appointment was made would be immaterial and that any daily wage employee terminated should be taken back in employment.
6. Vide Circular dated 13-1-1989, (Annex. P/15), which is to be read in continuation of the earlier circular dt 15-5-1987, it was directed that the instructions contained in the circular dated 15-5-1987 (Annex. P/14) would not apply to such daily wage employees as were not performing their job or as to which there were serious complaints.
7. The petitioners have contended that they were covered by the circulars Annexures P/14 and P/15 and hence not only their services could not be dispensed with (which danger they apprehended), they also deserved to be regularised and also to be paid not at the rate of Rs. 30/- per day but at the same rate at which the regular Investigators employed in the department were being paid salary in the grade of Rs. 1290-2040.
8. On 16-9-1989, return was filed in behalf of the respondents. It is stated therein that the petitioners were not daily wage employees and they were under a misapprehension as to facts when they claimed to be so. They were 'piece-workers' engaged only for specified work at specified rates, payable pro-rate with the work done and not as daily-wage e
