JUDGMENT
J.M. Malik, J.
1. The petitioner was appointed as Assistant Teacher (Part-time) in Govt. Sarvodaya Bal Vidhyalaya, Radhey Shyam Park, Delhi. The terms and conditions of her appointment regarding remuneration and period of teaching were explained to her by respondent No. 1 verbally and anything in writing was avoided to be given towards conditions of service. The petitioner completed full two academic sessions successfully for the years 1995-96 and 1996-97. It was midway of the session 1997-98, when suddenly on 15.01.1998, the Principal of the said school, who was also working as Education Officer intimated her verbally that her services stand terminated. It is pointed out that petitioner is a fully qualified teacher. She is double M.A. B.Ed. She was well within the age limit prescribed by the Director of Education, but when her services were terminated, she had crossed 45 years. she had crossed the age limit prescribed for any such job or Govt. jobs. The remuneration which the petitioner received was not less than the daily wages i.e. daily wages started initially at Rs. 25/- per day which was gradually raised to Rs. 35/-, Rs. 40/- Rs. 45/- and lastly Rs. 50/- per day till termination of her services. No wages were paid for Sundays, holidays and vacations, whereas the other teachers were having holidays/vacations etc. on full pay. It is pointed out that this is against the principle of “equal pay for equal work. The petitioner was kept on part time basis as a temporary teacher but in due course of time, she was given assurance that she would be absorbed as a regular teacher against a permanent post in the same school. However, needful was never done. Authorities also refused to issue work experience certificate. Under these circumstances, the petitioner filed the present writ petition wherein she prays to quash the termination order dated 15.01.1998 and restore the employment of the petitioner with back wages from the date of termination i.e. 15.01.1998 till she is to be considered for regular appointment on the regular post of teacher.
2. I have heard the counsel for the parties. The learned Counsel for the petitioner placed reliance on Rudra Kumar Sain and Ors. v. Union of India and Ors. and the counsel for the respondent placed reliance on National Fertilizer v. Somveer Singh 2006 SCC 493 as well as Secretary State of Karnataka V. Uma Devi , the Constitution Bench judgment. The learned Counsel for the petitioner admitted that no letter of appointment was issued in her favor, the contract of service was never reduced in writing and termination of the petitioner was also oral. From the pleadings of the petitioner herself it appears that she was appointed as a daily wager. Again her appointment was not regular. Rule 96 (b) of the Delhi School Education Rules 1973 runs as follows:
(i) to (iii) xxxxxxxxxxxxx
(iv)in the case of an aided school, one educationist to be nominated by the Director, and one representative of the Director;
(v)xxxxxxxxxxxxxxx
The school in question is an unaided school. The counsel for the respondent No. 2 pointed out that had it been a regular appointment, one educationist to be nominated by the Director and one representative of the Director would have also been made the members of the selection committee. It is clear that the appointment of the petitioner was by virtue of an oral agreement. This was a contractual irregular appointment. The case of the petitioner is clearly hit by the celebrated authority of Secretary State of Karnataka and Ors. v. Uma Devi and Ors. , wherein it was held:
Therefore, consistent with the scheme for public employment, this Court while laying down the law, has necessarily to hold 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 to be clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his 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 by following a due process of selection as envisaged by the relevant rules. It is not open to the court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad hoc employees who by the very nature of their appointment, do not acquire any right. The High Courts acting under Article 226 of the Constitution, should not ordinarily issue directions for absorption, regularization or permanent continuance unless the recruitment itself was made regularly and in terms of the constitutional scheme.
It was also held:
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 favor of such persons. At this juncture, it will be proper to refer to the decision of the Constitution Bench of this Court in Rai Shivendra Bahadur (Dr.) v. 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 favor 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.
It was lastly observed:
In cases relating to service in the commercial taxes department, the High Court has directed that those engaged on daily wages, be paid wages equal to the salary and allowances that are being paid to the regular employees of their cadre in government service, with effect from the dates from which they were respectively appointed. The objection taken was to the direction for payment from the dates of engagement. We find that the High Court had clearly gone wrong in directing that these employees be paid salary equal to the salary and allowances that are being paid to the regular employees of their cadre in government service, with effect from the dates from which they were respectively engaged or appointed. It was not open to the High Court to impose such an obligation on the State when the very question before the High Court in the case was whether these employees were entitled to have equal pay for equal work so called and were entitled to any other benefit.
3. In the light of the discussion, I find that writ is meritless and therefore, the same is dismissed.