ORDER
M.A. Khan, J. (Vice Chairman)
1. In this third round of litigation, these applicants have claimed the following relief:
(i) To direct the respondents to consider the applicants against the posts advertised by the respondents as having the first pre-emptive right in terms of the order and judgment in Original Application No. 953 of 1991 Suresh and Others as well as subsequent judgments passed by this Hon’ble Tribunal.
2. The background of the case as averred in the OA may be stated as follows. The applicants were working as Daily Rated Casual Labours in the National Zoological Park from different dates starting from 1985. Their services were discontinued in March 2003 on the ground that they had not put in more than 240 days in a calendar year. They approached this Tribunal by filing OA 1724/2000 for conferring temporary status on them and for regularization of their service in Group ‘D’ in its turn. The Tribunal disposed off the OA by order dated 1.6.2001 and directed that whenever the respondents decide to engage causal labour, the applicants would be given preference for such engagement in accordance with rules and instructions on the subject and after re-engagement if it is found by the respondents after going through the records that any causal labourer has completed the requisite number of days of service in a year put in by the applicants as per the Government of India Scheme dated 10.9.1993, they shall consider conferring temporary status also upon such casual labourer (Annexure A-I). The respondents failed to implement the order, so a Contempt Petition No. 432/2001 was filed. The said contempt petition along with three other contempt petitions was dismissed on 29.8.2002. The applicants then filed Civil Writ Petition No. 3851/2003 before the Hon’ble High Court, which was also dismissed on 30.5.2003. The respondents instead of giving preference to the applicants in the matter of engagement as per their letter, continued to engage freshers from the Employment Exchange or otherwise. They did not formulate any policy for conferring temporary status on the applicants and other similarly situated persons. The respondents thereafter issued an advertisement published in the Employment News dated 27.6.2003 inviting applications for the post of Assistant Keeper, Gangman and Zoo Guard. The applicants were eligible for appointment to these posts but their applications were not entertained. The applicants then filed OA 1812/2003 challenging the advertisement and seeking a direction to the respondent to consider the applicants for appointment to the advertised post. The Tribunal decided the OA on 28.11.2003 and directed that in case the selection process for the advertised post has not been finalized, the applications of the applicants would be kept in safe custody and in case the applications are not available with the respondents, they would accept their applications provided they are filed with an affidavit and evidence to support that they had actually filed the applications earlier. The applicants were allowed to submit fresh applications within one week. Further direction was that the benefit of relaxation in their age to the extent of actual service rendered by them as available on record and no other relaxation would be given. The applicants then approached the respondents but they were not called for interview and were not considered along with others. Rather the respondents employed some persons on contract whose names are mentioned in para 4.21 and which action was in contravention of the order of the Tribunal. The respondents have issued a fresh advertisement in the Employment News dated 18-26 September, 2006 inviting applications for the post of Assistant Keeper, Gangman, Cook-cum-Food Distributor and Mahout. The applicants have submitted their individual applications to the respondents but when they contacted the office of the respondents, they were threatened with dire consequences and told that they would not be considered for the post. Hence the OA.
3. The respondents in the counter reply have refuted the allegations of the applicants. It is submitted that in accordance with the existing Recruitment Rules the post was advertised and several hundred applications were received and interview call letters have also been issued to the eligible candidates. The Selection Committee has also been constituted, but in view of the interim stay order, selection is not processed further. It is also submitted that the applicants filed WP (Civil) No. 2264/2004 before the Hon’ble High Court seeking similar relief, which has been dismissed on 13.10.2004. According to the respondents, the applicants have not completed 240 days of service in any span of 365 days to become eligible for temporary status and the question raised unsuccessfully in the present OA had been raised before the Tribunal several times earlier in the OAs as well as in the contempt proceedings. Same question was raised in the Writ Petition also which has already been dismissed. National Zoological Park has been set up with the object to conserve and breed the rare and endangered species of animals. It is spread over 196 acres of land. There are 208 regular employees for day-to-day management. To carry out seasonal, intermittent and emergent nature of work, daily paid labours are engaged strictly on the basis of seniority drawn as per the directions of the Tribunal. As soon as the work is over, they are disengaged. The budgetary allocation in this head is also limited and continued engagement of daily paid labours is restricted to the budgetary allocation. It is submitted that no casual worker was engaged in substitution of the applicants to perform the job which was performed by these applicants in the earlier OA on casual basis. It is also submitted that daily paid labours who had rendered 240 days service had already been given temporary status, namely, S/Shri Suresh Kumar Tripathi, Nek Ram and Joginder. The applicants, who have not rendered 240 days of service in a financial year, could not qualify for consideration for temporary status. The respondents have not violated the rules. The Contempt Petition was also dismissed for the same reason. The post of Assistant Keeper, Gangman and Zoo Guard is to be filled in as per the Recruitment Rules and the Selection Committee comprised of senior/high officers drawn from different fields. Eligible candidates have been called for interview. Other allegations of the applicants were also controverted.
4. In the rejoinder, the applicants have reiterated their own case.
5. At the time of preliminary hearing, the learned Single Bench had directed that the posts, if not already filled up, shall not be filled in for a period of 14 days. Interim order was extended from time to time. By order dated 3.6.2005, however, the interim order was modified to the extent that the appointment made would be subject to the outcome of the OA. The matter thereafter was referred to a Division Bench and has been heard by us.
6. The applicants are seeking a direction to the respondents to consider them for the post of Assistant Keeper, Gangman, Cook-cum-Food Distributor and Mahout in preference over the outsiders by extending the benefit of the order of the Tribunal passed in OA 953/1991 entitled Suresh and Others. Their contention is that they were working as Daily Rated Causal Labourer when the Scheme for conferring the temporary status and their regularization came into effect in 1993 pursuant to the order of the Hon’ble Supreme Court.
7. The case of the applicants is that they had worked for over 240 days in a year and had become eligible for grant of temporary status and further regualrisation of their service as per the Scheme. This question was raised by these applicants in the earlier two OAs as well as in the Contempt Petition. The respondents in all their earlier OAs and Contempt proceedings had maintained that the applicants were not eligible for conferment of temporary status or regularization on Group ‘D’ posts because they did not fulfil the condition of 240 days work within a span of 365 days. These applicants have failed to produce any evidence or material before the Tribunal in the previous OAs and the contempt proceeding that they had worked for 240 days within a calendar year and had become eligible for the granting of the benefit of the Scheme and the orders of the Hon’ble Supreme Court and this Tribunal on similar question. In the previous OA No. 1812/2003 the applicants had challenged an advertisement issued by the respondents inviting applications for appointment to the post of Assistant Keeper, Gangman and Zoo Guard and the said OA was disposed off with a direction that the applicants may also be considered after giving the age relaxation to the extent mentioned in the order. Though the applicants have stated that their applications were not entertained and they were not considered for selection against those advertised posts, yet it has not been denied that the same questions which have been raised in the present proceeding for their temporary appointment for regularisation on the advertise post or giving a preference to them over the outsiders was raised and did not find favour with the Tribunal. The applicants cannot be allowed to raise these very issues again in the present proceeding. Even otherwise on merit, their claim cannot be allowed that there is no evidence to substantiate this claim. The applicants cannot be given preferential treatment over other candidates who had filed applications in response to the present advertisement. The applicants have also submitted their applications and it is stated at the bar on behalf of the respondents that they would also be given due consideration by the selection Committee appointed. The claim of the applicants for considering them first against those posts, to our view, is untenable in the present facts and circumstances of the case.
8. Reference of the applicants to OA 953/1991 entitled Suresh and Others or for that matter any other order relating to the conferment of temporary status and regularization of service of daily rated causal employees, is misplaced since the questions which the applicants have raised, had already been dealt with by this Tribunal in their previous OAs.
9. A five Judges Bench of the Hon’ble Supreme Court in a recent judgment in the case of Secretary, State of Karnataka and Ors. v. Uma Devi (3) and Ors. after examining the whole gamut of law on regularization/absorption of contractual/temporary casual daily wage, adhoc employees appointed/recruited and continued in government service dehors the constitutional scheme of public employment has held as follows:
12. What is sought to be pitted against this approach, is the so called equity arising out of giving of temporary employment or engagement on daily wages and the continuance of such persons in the engaged work for a certain length of time. Such considerations can have only a limited role to play, when every qualified citizen has a right to apply for appointment, the adoption of the concept of rule of law and the scheme of the Constitution for appointment to posts. It cannot also be forgotten that it is not the role of courts to ignore, encourage or approve appointments made or engagements given outside the constitutional scheme. In effect, orders based on such sentiments or approach would result in perpetuating illegalities and in the jettisoning of the scheme of public employment adopted by us while adopting the Constitution. The approving of such acts also results in depriving many of their opportunity to compete for public employment. We have, therefore, to consider the question objectively and based on the constitutional and statutory provisions. In this context, we have also to bear in mind the exposition of law by a Constitution Bench in State of Punjab v. Jagdip Singh and Ors. . It was held therein, “In our opinion, where a Government servant has no right to a post or to a particular status, though an authority under the Government acting beyond its competence had purported to give that person a status which it was not entitled to give, he will not in law be deemed to have been validly appointed to the post or given the particular status.”
13. During the course of the arguments, various orders of courts either interim or final were brought to our notice. The purport of those orders more or less was the issue of directions for continuation or absorption without referring to the legal position obtaining. Learned Counsel for the State of Karnataka submitted that chaos has been created by such orders without reference to legal principles and it is time that this Court settled the law once for all so that in case the court finds that such orders should not be made, the courts, especially, the High Courts would be precluded from issuing such directions or passing such orders. The submission of learned Counsel for the respondents based on the various orders passed by the High Court or by the Government pursuant to the directions of Court also highlights the need for settling the law by this Court. The bypassing of the constitutional scheme cannot be perpetuated by the passing of orders without dealing with and deciding the validity of such orders on the touchstone of constitutionality. While approaching the questions falling for our decision, it is necessary to bear this in mind and to bring about certainty in the matter of public employment. The argument on behalf of some of the respondents is that this Court having once directed regularization in the Dharwad case (supra), all those appointed temporarily at any point of time would be entitled to be regularized since otherwise it would be discrimination between those similarly situated and in that view, all appointments made on daily wages, temporarily or contractually, must be directed to be regularized. Acceptance of this argument would mean that appointments made otherwise than by a regular process of selection would become the order of the day completely jettisoning the constitutional scheme of appointment. This argument also highlights the need for this Court to formally lay down the law on the question and ensure certainty in dealings relating to public employment. The very divergence in approach in this Court, the so-called equitable approach made in some, as against those decisions which have insisted on the rules being followed, also justifies a firm decision by this Court one way or the other. It is necessary to put an end to uncertainty and clarify the legal position emerging from the constitutional scheme, leaving the High Courts to follow necessarily, the law thus laid down.
43. Normally, what is sought for by such temporary employees when they approach the court, is the issue of a writ of mandamus directing the employer, the State or its instrumentalities, to absorb them in permanent service or to allow them to continue. In this context, the question arises whether a mandamus could be issued in favour of such persons. At this juncture, it will be proper to refer to the decision of the Constitution Bench of this Court in Dr. Rai Shivendra Bahadur v. The Governing Body of the Nalanda College (1962) Supp. 2 SCR 144. That case arose out of a refusal to promote the writ petitioner therein as the Principal of a college. This Court held that in order that a mandamus may issue to compel the authorities to do something, it must be shown that the statute imposes a legal duty on the authority and the aggrieved party had a legal right under the statute or rule to enforce it. 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.
45. It is also clarified that those decisions which run counter to the principle settled in this decision, or in which directions running counter to what we have held herein, will stand denuded of their status as precedents.
47. Coming to Civil Appeal Nos. 1861-2063 of 2001, in view of our conclusion on the questions referred to, no relief can be granted, that too to an indeterminate number of members of the association. These appointments or engagements were also made in the teeth of directions of the Government not to make such appointments and it is impermissible to recognize such appointments made in the teeth of directions issued by the Government in that regard. We have also held that they are not legally entitled to any such relief. Granting of the relief claimed would mean paying a premium for defiance and insubordination by those concerned who engaged these persons against the interdict in that behalf. Thus, on the whole, the appellants in these appeals are found to be not entitled to any relief. These appeals have, therefore, to be dismissed.
10. The Principle of Law enunciated by the Hon’ble Supreme Court when applied to the facts of the present case will render the claim of the applicant in the present case unsustainable in law.
11. In view of the above cited judgment of the Hon’ble Supreme Court the applicants reliance on the order of this Tribunal dated 5.8.1993 in OA No. 859/1992 and Other connected OAs Layak Ram Sharma v. Ministry of Defence through its Secretary and Anr. order dated 13.11.1995 in OA No. 1696/1995 Kiran Kishore and Anr. v. U.O.I. and Anr., order dated 25.5.1993 in OA No. 2520/1992 Kundan Singh and Ors. v. U.O.I., order dated 26.4.1991 in OA No. 2952/1989 and other connected cases Shri Rameshwar and Anr. v. U.O.I. and Ors., order dated 12.9.2001 in OA 334/2001 Titu Ram and Ors. v. U.O.I. and Anr., order dated 19.7.1993 in OA No. 2292/1992 Shri Ram and Ors. v. U.O.I. and Ors., order dated 16.2.1995 passed in Contempt Petition No. 345/1994 in OA 346/1994 Ram Krishan and Ors. v. B.P. Tyagi and N.K. Gupta and the order dated 1.6.2001 passed in OA 1724/2000 Kasturi Lal and Ors. v. U.O.I. and Anr. will not advance the arguments of the applicants. In the case of Layak Ram Sharma (Supra), it was stated on behalf of the respondents-department that there was no likelihood of the discontinuance of the service of the applicants, casual workers and that they would be continued to be employed so long as there was work for them in preference to juniors and outsiders. In the instant case it is emphatically stated by the respondents that no junior or substitute in place of the applicants had been employed by them. It is not the case of the applicants that they had worked as Assistant Keeper, Gangman, Cook-cum-Food Distributor or Mahout, which posts are being filled in accordance with the Recruitment Rules and the applications have been invited from the employment exchange for filling these posts. The applicants do not have any preferential right even otherwise for consideration for selection against those posts. In the case of Kiran Kishore and Another (Supra), the applicants were engaged on a daily wage basis as casual labourer and claimed to be covered by the Scheme formulated for conferment of temporary status and regularization. The Tribunal on the facts of the case declared that they were entitled to the benefit of the Scheme and their service could be terminated only in accordance with law. No advantage of this order could be given to the applicants as their right had been decided by the Tribunal and they have not been found fulfilling the eligibility criteria laid down in the Scheme. As regards their applications submitted in response to the advertisement, it is clearly admitted by the respondents that they will be considered along with the others. In the case of Kundan Singh and Others (Supra), the applicants who were causal labourers had prayed for consideration of their cases for regularization of their service, the Tribunal directed the respondents to consider them keeping in view the length of their service and to continue them as causal labourer till a decision was taken in the matter. In the case of Rameshwar and Another (Supra), the applicants were casual labourer engaged in Directorate General Doordarshan and the respondents pleaded that they were contractual workers and not holder of civil post and their claim that they may be replaced by another group of casual labourers, was not justified. The Tribunal in the peculiar facts of the case directed the respondents to frame a suitable scheme in the light of the direction of the Hon’ble Supreme Court for regularisation of casual labourers and in the meantime the respondents will allow the applicants to continue to work as casual labourer so long as there is need for employing such casual worker etc. As observed above, the order was passed in the peculiar circumstances pending framing of the Scheme but in the instant case the applicants have not been able to establish their eligibility for regularization against the post. Their challenge is to the new advertisement issued for filling up advertised posts to which the applicants cannot have a preferential claim over other candidates. In the case of Kasturi Lal (Supra), applicants wanted implementation of the casual labour Scheme dated 1.9.1993 and the Tribunal directed that the applicants would be given preference over juniors and freshers whenever they decide to engage casual labourers. Needless to repeat that the applicants are not similarly circumstanced and similarly situated persons so cannot be extended the benefit of the said judgment. In the case of Ram Kishan (Supra), the Tribunal had directed the respondents to consider the applicants for grant of temporary status under the Scheme on the footing that they had rendered services for more than 240 days in a particular year. It was not implemented and a Contempt Petition was filed. The Tribunal examined whether the applicants were eligible for consideration for temporary status and finally took into consideration the facts and the oral submissions made before it by the respondents that engagement of fresh causal labour has been stopped prior to the implementation of the Scheme. In the circumstances, the Tribunal directed the respondents to extend the benefit of temporary status on the applicants. The applicants cannot claim parity and equality with the applicants in the said OA as this case turns on its own distinctive facts. The applicants in the present case have not been held to be eligible for regularization of their services as per the provisions of the Scheme and neither in the previous OAs nor in the present OA they have been able to establish the veracity of their claim that they had rendered more than 240 days of service within a year and fulfilled the eligibility condition laid down in the Scheme when the scheme came into effect. Similar is the question of Ram Krishan and Ors. (Supra) and Titu Ram and Ors. (Supra). The benefit of the order could be extended to the applicants only when they are similarly circumstanced and similarly situated persons and not merely because certain casual labourers in the past were granted benefit based on the facts of their cases who had been directed to be considered for grant of temporary status or regularization of their case. The principles of law laid down by the Hon’ble Supreme Court in the above cited case has to be applied in all such matters. Applying it to the present case, we do not find merit in the case of the applicants.
10. Accordingly, the OA is dismissed but without any order as to costs.