ORDER
Meera Chhibber, Member (J)
1. By this O.A., applicant has challenged the order dated 31.7.2006 whereby his services have been terminated and order dated 10.3.2004 on the question of engagement of casual labourers. He has further sought a direction to the respondents to consider the engagement of the applicant as casual labourer in view of DOP&T guidelines dated 5.7.1968.
2. It is submitted by the applicant that he was engaged as part time casual labourer-cum-chowkidar w.e.f. 15.12.1997 in place of his mother, who had put in 26 years of service with the respondents. His services were terminated w.e.f. 3.5.2001. However, vide order dated 1.2.2002, termination was set aside by this Tribunal. Accordingly, he was engaged from 30.5.2002 but once again he has been terminated illegally and arbitrarily w.e.f. 31.7.2006. He has relied on order dated 12.4.2006 to show that applicant was working 6 hours daily from 1.9.2004 and even though work was sanctioned upto 30.9.2006, applicants services have been terminated w.e.f. 31.7.2006 in an arbitrary manner. The work is still available with the respondents, therefore, there is no justification to dispense with his services. It is submitted by the counsel for applicant that his services have been dispensed with because he had filed the O.A. earlier in this Tribunal, therefore, respondents action is not sustainable in the eyes of law.
3. I have heard counsel for the applicant. It is seen that when applicant had approached this Court earlier by filing OA No. 2135/2005, he had sought regularisation as well as direction to the respondents to convert his part time work into full time work. After considering the rival contentions of both the parties, it was observed in para 5 as follows:
Since he is working as a casual labourer, he cannot claim as a mater of right to be engaged for full time nor any such directions can be given by the Court as work requirement can be assessed by department only nor can he claim for regularisation now on the basis of some circular dated 5.7.1968. Admittedly, applicant has already filed 3 O.As earlier. He ought to have claimed this relief also in earlier O.A as he cannot be allowed to seek relief in piecemeal. In any case, regularisation is again dependent on availability of vacancy. It is not even the case of applicant that vacancies are available. Therefore, relief as claimed cannot be given to him
However, noting the letter of the Superintendent of Central Excise Range, Bahadurgarh, respondents were directed to dispose of the recommendation made by the Superintendent vide his letter dated 17.8.2004 meaning thereby, applicants other contentions regarding claiming parity with Shri Jai Chand were rejected. From the above para, it is clear that reliance placed by him on instructions dated 5.7.1968 was already taken care of in the earlier O.A. and rejected. Applicant did not challenge the above judgment, therefore, he cannot be allowed to reagitate the same matter all over again by filing O.As one after another. Simply because in the earlier OA, direction was given to the respondents to consider increasing the part time work keeping in view the summer season which was approaching and the recommendation made by Superintendent, applicant cannot take it, that he can approach the court as and when any orders are passed by the respondents. After all, applicant has to show how his legal right has been infringed by the respondents.
4. The issue of casual labourer has finally been settled in a recent judgment given by Honble Supreme Court in the case of Secretry, State of Karnatka and Ors. v. Uma Devi and Ors. . Honble Supreme Court has insisted that whenever a case is filed before any court of law, it is the duty of the courts to see what is the legal right of the person who is approaching the court. The above said judgment has dealt with in detail the cases of casual workers, temporary employment, ad hoc employment or even contractual employment and after referring to number of judgments observed that all such persons accepted the job given to them with open eyes and were fully aware of the consequences thereof. By no stretch of imagination, can it be held that these are the appointments made in accordance with the statutory rules. It was also held that casual labourer has no right to claim continuance of their job. It was further held that when the court is approached for relief by way of a writ, the court has necessarily to ask itself whether the person before it had any legal right to be enforced, casual labourers have no legal right to be permanently absorbed nor State has a legal duty to make them permanent. Honble Supreme Court has further held 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 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 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 and to take 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 court were to void a contractual employment of this nature on the ground that the parties were not having equal bargaining power, 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 succour to them. After all, innumerable citizens of our vast country are in 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. 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 term. 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 services 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.
5. It was thus held that it has become necessary to lay down the law that unless the appointment is in terms of the relevant rules and AFTER A PROPER COMPETITION AMONG QUALIFIED PERSONS, THE SAME WOULD NOT CONFER ANY RIGHT ON THE APPOINTEE. If it is a contractual appointment, the appointment comes to an end at the end of the contract, if it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued. Similarly, a temporary employee could not claim to be made permanent on the expiry of his term of appointment. It has also been clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made following a due process of selection as envisaged by the relevant rules.
6. It was further emphasized that when a person approaches the court for relief by way of a writ, the court has necessarily to ask itself, whether the person before it had any legal right to be enforced.
7. In view of above, it cannot be stated that any right had accrued in favour of applicant to claim writ of mandamus from the court of law. In view of above settled position, I find no merit in the O.A. The same is accordingly dismissed. No order as to costs.