- (1.) Heard Sri Vivek Shandilya, learned Senior Advocate, assisted by Sri Manish Pandey, learned counsel for the petitioner and learned Standing Counsel for state functionaries.
(2.) This writ petition has been filed for direction upon the respondents to release the retiral benefits including gratuity and pension along with interest.
(3.) It is contended that the petitioner was initially appointed as Work Charge/Chaukidar in the month of July, 1987, in the Office of respondent No. 2 (Executive Engineer, Rural Engineering Department, Division Banda, District Banda). His service stood regularized from 11.1.2013. He attained the age of superannuation on 31.12.2014 i.e. after completing 27 years of service. It is further contended that respondent's department is not releasing the retiral dues of the petitioner. Due to the fact, his service is regularized in the year 2013 and he has worked as regular employee for only about two years. In view of the Government Order dated 1.7.1999, pension, gratuity and other dues are payable only on completion of ten years of regular service. Learned Senior counsel has placed reliance upon judgment of Apex Court in cases of Prem Singh vs. State of Uttar Pradesh and others passed in Civil Appeal No. 6798 of 2019, decided on 02.09.2019, Habib Khan vs. State of Uttarakhand and others , passed in Civil Appeal No. 10806 of 2017, decided on 23.08.2017 and judgment of this Court in Service Single No.12417 of 2018, decided on 02.05.2018, in which the Apex Court has held that the earlier service rendered in a Work Charged Establishment, the same is to be counted towards the service of an employee. Per contra, learned counsel for the State relied upon the Paragraph No. 4B of the counter affidavit, which is quoted as under:- "4B. That since the petitioner not employee of regular establishment rather is an employee of Work Charge Establishment, his appointment has been made without following any procedure, or rules or advertisement or calling for the applications against the post and following due procedure of selection such appointments or Work Charge Employees their status has been decided in Civil Appeal No. 3595/3612/99 State of Karnataka Versus Uma Devi and others. These appeals are decided by five judges bench and it has been decided vide order dated 10.04.2006 in paragraph 23, 30, 38, 43, 44 as hereinafter mentioned:- 23. In Madhyamik Shiksha Parishad, U.P. Vs. Anil Kumar Mishra and Others [AIR 1994 SC 1638], a three judge bench of this Court held that ad hoc appointees/temporary employees engaged on ad hoc basis and paid on piece-rate basis for certain clerical work and discontinued on completion of their task, were not entitled to reinstatement or regularization of their services even if their working period ranged from one to two years. This decision indicates that if the engagement was made in a particular work or in connection with particular project, on completion of that work or of that project, those who were temporarily engaged or employed in that work or project could not claim any right to continue in service and the High Court cannot direct that they be continued or absorbed elsewhere. 30. In Union Public Service Commission Vs. Girish Jayanti Lal Vaghela and Others [2006 (2) SCALE 115], this Court answered the question, who was a Government servant and stated:- " Article 16 which finds place in Part III of the Constitution relating to fundamental rights provides that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. The main object of Article 16 is to create a constitutional right to equality of opportunity and employment in public offices. The words "employment" or "appointment" cover not merely the initial appointment but also other attributes of service like promotion and age of superannuation etc. The appointment to any post under the State can only be made after a proper advertisement has been made inviting applications from eligible candidates and holding of selection by a body of experts or a specially constituted committee whose members are fair and impartial through a written examination or interview or some other rational criteria for judging the inter se merit of candidates who have applied in response to the advertisement made. A regular appointment to a post under the State or Union cannot be made without issuing advertisement in the prescribed manner which may in some cases include inviting applications from the employment exchange where eligible candidates get their names registered. Any regular appointment made on a post under the State or Union without issuing advertisement inviting applications from eligible candidates and without holding a proper selection where all eligible candidates get a fair chance to compete would violate the guarantee enshrined under Article 16 of the Constitution (See B.S. Minhas Vs. Indian Statistical Institute and others AIR 1984 SC 363)." 38. 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 concerned cases, 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. 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 Vs. 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. 44. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. NARAYANAPPA (supra), R.N. NANJUNDAPPA (supra), and B.N. NAGARAJAN (supra), and referred to in paragraph 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of courts or of tribunals. The question of regularization of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularize as a one time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularization, if any already made, but not subjudice, need not be reopened based on this judgment, but there should be no further by-passing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme.";