JUDGMENT
J.M. Malik, J.
Page 2743
1. The case of the petitioner is this. The petitioner, aged about 35 years old, joined the respondent, Central Zoo Authority as daily wager Data Entry Operator on 16.03.1998 and was appointed w.e.f. 01.07.1998 on contractual basis. His services were extended from time to time without any interruption. The petitioner received threats from his senior officials that his services would be terminated. On 27.01.2005, respondent considered agenda item No. 8 suggesting to regularize the contractual employees. However, no final decision has yet been taken. The petitioner has put in more than eight years of contractual service and has become overage for all the other government jobs. There is no recruitment rules for the post of Data Entry Operator in Central Zoo Authority. It is alleged that the action on the part of the respondent is illegal, arbitrary and unconstitutional because the petitioner has legitimate expectation and a right to be regularized as the Data Entry Operator. Again, non regularization of the petitioner for the post of Data Entry Operator is violative of Article 16 of the Constitution. Consequently, the present writ of mandamus was filed with the prayer that the respondent be directed to regularize the services of the petitioner for the post of Data Entry Operator w.e.f. 01.07.1998.
2. Respondent has contested this application. In his reply the respondent made the following averments. The post of Data Entry Operator is not a sanctioned post either under the Act or any Rules made there under. The services of the petitioner were engaged only for the purpose of creating a data in order to facilitate the smooth functioning of the authority and monitoring its progress. The minutes of the meeting dated 27.01.2005, upon which the petitioner has placed reliance also clearly spell out that the EFC of the Central Zoo Authority for the 9th/10th plans had approved the creation of two posts of Scientists, one post of Registrar-cum-Superintendent and had desired that the remaining positions including the petitioner be continued/be operated on contract basis. In the absence of there being a sanction of Data Entry Operator, there cannot be any regularization of the petitioner. Again, the mere continuation of the services for a sufficient period of time, as he has not been able to complete the assignment given to him, cannot create any right in favor of the petitioner for being regularization, Page 2744 which is not provided for or sanctioned by the competent authority. Again, petitioner’s contention that there is no recruitment rules for any of the post in Central Zoo Authority is also misleading as all regular posts were filled up as per recruitment rules which are duly notified. Whenever Central Zoo Authority filled any regular post, the same was advertised in Employment News/Newspaper, the tests for recruitment were conducted by ISTM and the contention of the petitioner that the respondent follows pick and choose policy is wrong. Even in the case of contract basis engagement, respondent follows maximum transparency. In the case of contract basis regarding Scientists, the respondent circulates the posts to Institute/University of repute for circulation/forwarding of candidates required for specific field. The respondent has placed on record all the advertisements and notifications/gazettes published by the authority including the extract of an advertisement dated 15.04.2005, published in Hindustan Times, which is reproduced as follows.
Required Retired Govt. Employees, A retired Under Secretary/Section Officer level officer and a retired Assistant/Technical Assistant level official of Govt. of India/Autonomous bodies are required on contract basis. Person should not be more than 61 years. Knowledge of computer is desirable. Contact within 15 days Central Zoo Authority, Ministry of Environment & Forests, Annexe VI, Bikaner House, Shahjahan Road, New Delhi-110011.
(B.R. SHARMA)
MEMBER SECRETARY
3. I have heard the learned Counsel for the parties. It is admitted fact that the contract between the parties regarding the services of the petitioner came to an end in February, 2006. On 13.02.2006, my Predecessor passed the following order, ‘In the meantime, status quo as to the petitioner’s services shall be continued till next date of hearing.’ The learned Counsel for the petitioner made the following submissions. He argued that there are no recruitment rules for the post of Data Entry Operator in Central Zoo Authority. There is no sanctioned post. These posts are kept for hand-picked retired persons as is evident from the above said extract of newspaper dated 25.04.2005. Although, petitioner has been serving the respondent for the last eight years, yet, his post is yet to be sanctioned. Learned Counsel for the petitioner drew my attention towards the following extract in agenda item No. 8 with the heading ‘Strengthening of the establishment of the Central Zoo Authority’,
Similarly, 3 support staff namely Ms. Madhu Bala (LDC), Ms. Neeta Atal (LDC) and Mr. Pankaj Kathuria (Data Entry Operator) are also working on contract basis since last 11 years, 3 years and 8 years respectively. They were hired to assist the above said officers. These persons have also gained substantial experience and their discontinuance will certainly hamper smooth functioning of the Authority.
Keeping in view of the length of the service these officers/staff have put in and their contribution in building of the Authority to the present state, it is suggested that the Authority may consider regularising the services of both the Scientific Officers as well as 3 supporting staff against the sanctioned post/posts as provided in the EFC for Central Zoo Authority Page 2745 during the 10th Plan period, so that the work relating to ongoing process of modernisation of zoos by the Central Zoo Authority does not get interrupted. The EFC of the Central Zoo Authority for the 9th Plan (which has been continued to the 10th Plan, as per approval of the Ministry of Finance) had approved the creation of two post of Scientists and one post of Registrar-cum-Office Superintendent and had desired that the remaining proposed post of four Scientist and supporting staff may be operated on contract basis. The statement indicating the proposed post for the EFC and its decision is at Annexure-V.
However, he admits that the authority did not consider the regularization of the services of the petitioner against the sanctioned post. This is also admitted fact that no such post was ever sanctioned. This extract is merely a proposal which was never acted upon. Learned Counsel for the petitioner explained that the latest pronouncement of law by the Apex Court in the case of Secretary, State of Karnataka and Ors. v. Uma Devi (3) and Ors. does not apply to this case because there are no recruitment rules. He alleged that Authorities are responsible because they have not created the regular post, even after the lapse of so much time. Learned Counsel for the petitioner also drew my attention towards Central Inventory of Animals in Indian Zoos, 2003-2004, Central Zoo Authority, Statutory Body under the Ministry of Environment and Forests, Government of India and Central Inventory of Animals in Indian Zoos, 2004-2005, Central Zoo Authority, Statutory Body under the Ministry of Environment and Forests, Government of India in order to show that as a matter of fact work load in respect of Zoo has gone up. Zoo requires more persons.
4. Learned Counsel for the respondent pointed out that as a matter of fact the workload in respect of Zoo has gone down. He contended that Zoo does not get financial help from the Ministry. He explained that there is no work for the petitioner. Attention of the Court was brought to the order sheet dated 30.03.2006, wherein it was ordered, ‘It is made clear that the continuation of the interim order will not preclude the Respondents from insisting that the Petitioner should work in any capacity other than Data Entry Operator. The Petitioner’s counsel submits that the Petitioner is willing to perform other duties.’ The learned Counsel for the respondent pointed out that this fact further shows that there is no work for the petitioner. It further fortifies the contention of the respondent.
5. I do not hold with the arguments advanced by the learned Counsel for the petitioner. The facts of this case are clear. The following observations made by the Apex Court in Uma Devi’s Case (Supra) neatly dovetail with the facts of this case:
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 Page 2746 accepts the employment with open eyes. It may be true that he is not in a 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, perpetuate illegalities and to take the view that a person who has temporarily or casually got employed should be directed to be continued permanently.
It was further held,
When a person enters a temporary employment or gets engagement as a contractual or casual worker and the engagement is not based on a proper selection as recognized by the relevant rules or procedure, he is aware of the consequences of the appointment being temporary, casual or contractual in nature. Such a person cannot invoke the theory of legitimate expectation for being confirmed in the post when an appointment to the post could be made only by following a proper procedure for selection and in cases concerned, in consultation with the Public Service Commission. Therefore, the theory of legitimate expectation cannot be successfully advanced by temporary, contractual or casual employees. It cannot also be held that the State has held out any promise while engaging these persons either to continue them where they are or to make them permanent. The State cannot constitutionally make such a promise. It is also obvious that the theory cannot be invoked to seek a positive relief of being made permanent in the post.
6. To my mind the above said authority applies to the facts of this case to a hair. The petitioner signed the agreements with open eyes of his own accord. He was well aware of the terms and conditions regarding the nature of his job. Initially he was engaged for a period of three months only. It itself goes to reveal the nature of his job. The Court cannot direct the state to create jobs which no more exist. It is also not out of place to mention here that in the above cited authority, the respondents (Uma Devi etc.) claimed that they had worked in the department as daily wagers for more than ten years.
7. In the result, I see no merit in this writ petition. The same is dismissed. No order as to costs.