S.R. Singh, J. - (1.) THE petitioners who have been working and performing the duties of Mall on daily wages under the District Udyan Adhikari, Allahabad have approached this court under Article 226 of the Constitution for issuance of a writ in the nature of mandamus directing the respondents to regularise their services on the post on which they have been allegedly working since July 1989, July 1986 and January, 1984 respectively. It is alleged that the payment of wages @ Rs. 18/ - per day to the petitioners and their non -regularisation in service are arbitrary, illegal and discriminatory. The defence as set up in the counter affidavit is that the petitioners are engaged, from time to time, on daily wages depending upon the increased work load from July to October each year and that they are paid wages in accordance with the Government Order in force on the subject. It is also alleged in the counter affidavit that the engagements of the petitioners being casual in nature and there being no vacancies in the regular cadre of service, they are entitled neither to claim regularisation nor parity with the members of regular cadre in respect of pay and other benefits. The question of regularisation of services of daily rated and casual employment is a question of constitutional and legal intricacies inasmuch as answer to the question one way or the other may affect not only the casual/daily rated employees seeking regularisation but it may also affect the employer as well as the third parties. For the casual/daily rated employees it is argued that the right to livelihood is a facet of and is implicit in the fundamental right to life enshrined in Article 21 of the Constitution and the right to security in employment by regularisation of service within a reasonable time which flows from the right to justice comprehended by the preamble to the Constitution. For the employer it is argued that it is under no constitutional obligation to provide employment beyond its economic capacity. It is also argued for the employer that daily rated/casual employees are very often engaged to perform casual nature of duties as distinguished from perpetual and permanent ones depending on the exigencies of the situation, the nature of the scheme or project under which the daily rated/casual employees are engaged and similar other factors. For the third party, it is argued that regularisation of employment made on daily rated/casual basis is generally done at the behest of power source at different levels and is bound to result in destruction of the Constitutionally guaranteed right to equal opportunity in the matter of employment so far the persons eligible and qualified for the post are concerned. It is also argued for them that regularisation of daily rated and casual employees very often results in breach of statutory/non -statutory rules for appointments to regular cadre of service including government policy on reservation.
(2.) I have given my anxious consideration to the question involved in the present writ petition. Learned counsel appearing for the petitioners has not been able to invite my attention to any rule - -statutory or non -statutory nor even a policy decision formulated in tune with the principles of equality, justice and fairness on the basis of and in accordance with which the claimed regularisation of petitioners services could be ordered. In Delhi Development Horticulture Employees Union v. Delhi Administration Delhi and others : AIR 1992 SC 789, the Supreme Court although observed that broadly interpreted and as a necessary logical corollary, the right to life would include the right to livelihood and therefore, the right to work but then their Lordships have further observed that this country has so far not found it feasible to incorporate the right to livelihood in the fundamental right in the Constitution because it so far has not attained the capacity to guarantee it and that the State is only enjoined with a duty, under Article 41 of the Constitution, to make effective provisions for securing the same "within the limits of its economic capacity and development." In the context of the facts therein and the nature of scheme under which the casual employment was given, the Supreme Court found it, "not possible to accede to the request of the petitioners that the respondents" therein be directed to regularise them. The Supreme Court has in fact deprecated the practice of back door entry on the ground that "a good deal of illegal employment market has developed resulting as new source of corruption and frustration of those who gain such back -door entry."
(3.) IN State of Haryana and others v. Piara Singh and others : AIR 1992 SC 2130, the Supreme Court has laid down the following rules in respect of work charged employees and casual labourer; If a casual labourer is continued for a fairly long spell say two or three years a presumption may arise that there is regular need for his service. In such a situation, it becomes obligatory for the concerned authority to examine the feasibility of his regularisation. While doing so, the authorities ought to adopt a positive approach coupled with an empathy for the person. As has been repeatedly stressed by this Court, security of tenure is necessary for an employee to give his best to the job. From the above observation of the Supreme Court, it is obvious that the matter has to be left to the discretion of the concerned authority to examine the feasibility of regularisation in that creation or abolition of posts is a prerogative of the executive and the court can interfere in the matter only in the case of proved mala fide or proved injustice. Further the entire matter has to be examined in the light of the above observations and also having regard to the relevant Service Rules if any, for it cannot be gain said that regularisation cannot be ordered or done if it results in breach of any statutory provision including the one pertaining to reservations. From the averments made in the counter affidavit it appears that the petitioners are engaged from time to time to discharge duties of mali particularly during July to October and from the material placed on the record it is not conclusively deducible that the petitioners have been performing the duties of Mali all the year round and/or that there is a regular need of regular Malies and yet the respondents are deliberately taking work from the petitioners on daily wages so that they may not get the benefits of regular service. In the circumstances of the case, therefore, no writ of mandamus can be issued directing the respondents to regularise the services of the petitioners. It is well settled that a writ is issued for the enforcement of legal right. As already stated earlier in the judgment no rule - -statutory or non -statutory nor even a policy decision has been brought to the notice of the Court conferring any right in favour of the petitioners for regularisation of their services. In the result, the petition fails and is dismissed in limine subject, however, to the observation that the dismissal of the writ petition would not preclude the respondents to formulate a policy, consistent with the rule of equality, justice and fairness for regularisation of the services of the daily rated/casual employees working in Udyan Vibhag of the Government for fairly long spell and to consider the petitioners case for regularisation in accordance with such policy/rule.;