IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 27/03/2003
CORAM
THE HON'BLE MR.JUSTICE P.D. DINAKARAN
Writ Petition No.6543 of 1997
S. Srinivasan .. Petitioner
-Vs-
1. The Additional Director
Export Inspection Agency-Chennai
213, Royapettah High Road
Royapettah, Chennai 600 014.
2. The Director (I and Q/C)
Export Inspection Council
(Ministry of Commerce, Govt. Of India
Pragati Towers, 11th Floor
26, Rajendra Place
New Delhi 110 008. .. Respondents
Petition under Article 226 of the Constitution of India praying for a
writ of Mandamus as stated therein.
For Petitioner : Mr.V. Manohar
For Respondents : Mr.K. Veeraraghavan, ACGSC
:O R D E R
The petitioner is admittedly appointed temporarily as casual labourer
in the second respondent Council, which is purely an autonomous body.
Contending that the service of the petitioner as casual labourer has to be
regularised under the Casual Labourers (grant of temporary status and
regularisation of service) Scheme evolved by the Ministry of Law, Finance and
Personnel Administration , the petitioner seeks a writ of Mandamus to direct
the respondents to regularise his service from March 1991 and to pay the
wages, allowances and attendant benefits on par with the regular permanent
employees doing identical work.
2. The learned counsel for the petitioner contends that the rights of
the petitioner conferred under Articles 14, 16, 21 and 23(1) of the
Constitution of India would be violated, if the service of the petitioner is
not regularised. In this regard, he relies upon the decision of this Court
dated 4.4.1997 in W.P.No.16080 of 1994, wherein E. Padmanabhan, J, following
the order of a Division Bench of this Court in W.A.No.1003 of 1990, directed
the respondents to regularise the service of the petitioners therein.
3. Opposing the above contentions and placing reliance on the
averments stated in the counter affidavit filed on behalf of the respondents,
learned Additional Central Government Standing counsel appearing for the
respondents submits that the Casual Labourers (grant of temporary status and
regularisation of service) Scheme is not applicable to the respondents, as the
respondents are purely an autonomous body and that the respondents having
identified the surplus manpower, formulated Voluntary Retirement Schemes,
pursuant to which almost 800 employees retired voluntarily from the respondent
organisation. In any event, the petitioner, being a temporary casual
labourer, is not entitled to seek a writ of Mandamus as prayed for, as a
matter of right.
4. I have given careful consideration to the submissions of both
sides.
5. It is true that E. Padmanabhan, J, in an identical case, by order
dated 4.4.1997 in W.P.No.16080 of 1994, directed the respondents to regularise
the service of the petitioner therein, of course, following the order of a
Division Bench of this Court in W.A.No.1003 of 199 0. But, it is trite law
that it may not be proper for this Court to direct the employer to regularise
the service of the temporary employees, particularly when the scheme under
which temporary employees were appointed come to an end, activities of the
employer is brought down and surplus manpower are identified by the employer,
the voluntary retirement scheme is formulated, vide STATE OF H.P. v. ASHWANI
KUMAR reported in AIR 1997 SC 352, HAFIQ AHMED & ANR. v. STATE OF RAJASTHAN
& ORS. reported in 1999 (9) Supreme 221, and RAMAKRISHNA KAMAT & ORS. v.
STATE OF KARNATAKA & ORS. reported in JT 2003 (2) SC 88. In the instant
case, the respondents have taken a clear stand that they could not accommodate
the petitioner in a regular post and they have identified the surplus manpower
in their organisation and also formulated a voluntary retirement scheme to
facilitate the permanent employees to avail such scheme.
6. That apart, the law as to the rights of the temporary employees
seeking regularisation is now well settled by the Apex Court in STATE OF H.P.
v. ASHWANI KUMAR reported in AIR 1997 SC 352, that the High Court was not
right in giving direction to regularise the temporary employees who were
engaged only for the project, which was completed and closed due to the
non-availability of funds, and that the direction of the High Court to
regularise such temporary employees by creating posts and continuing them in
spite of non availability of funds and work is absolutely illegal.
7. Again, in HAFIQ AHMED & ANR. v. STATE OF RAJASTHAN & ORS.
reported in 1999 (9) Supreme 221, the Apex Court has held that when the posts
are created temporarily for fulfilling the needs of a particular project of
scheme limited in its duration come to an end on account of the need for the
project itself having come to an end either because the project was fulfilled
or had to be abandoned wholly or partially for want of funds, the employer
cannot by a w rit of Mandamus be directed to continue employing such employees
as have been dislodged because such a direction would amount to requisition
for creation of posts though not required by the employer and funding such
posts though the employer did not have the funds available for the purpose.
8. The Apex Court, in a recent decision RAMAKRISHNA KAMAT & ORS. v.
STATE OF KARNATAKA & ORS. reported in JT 2003 (2) SC 88, reiterating the
views taken in STATE OF H.P. v. ASHWANI KUMAR reported in AIR 199 7 SC 352,
and HAFIQ AHMED & ANR. v. STATE OF RAJASTHAN & ORS. reported in 1999 (9)
Supreme 221, held that it may not be proper to regularise the service of the
temporary appointees.
9. Applying the ratio laid down by the Apex Court in the case of
temporary employees, I am satisfied that the petitioner is not entitled to
seek a writ of Mandamus to direct the respondents to regularise his service,
as a matter of right, and therefore, the relief sought for by the petitioner
cannot be granted, as such an exercise of power by this Court under Article
226 of the Constitution of India, is, time and again, deprecated by the Apex
Court.
For all these reasons, the writ petition fails and the same is
dismissed. No costs.
Index : Yes Internet : Yes To 1. The Additional Director Export Inspection Agency-Chennai 213, Royapettah High Road Royapettah, Chennai 600 014. 2. The Director (I and Q/C) Export Inspection Council (Ministry of Commerce, Govt. Of India Pragati Towers, 11th Floor 26, Rajendra Place New Delhi 110 008.