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Judgment
Sudhir Narain, J.
The petitioners have sought a writ of mandamus commanding respondents to treat the petitioners in continuous and regular service of respondents and to pay them salary and other increments.
The respondent, U.P. Cooperative Sugar Factories Federation (hereinafter referred to as the Federation), is a cooperative society registered under the provisions of U.P. Cooperative Societies Act, 1965. According to the respondent it is a Federation and is an apex society. It offers guidance etc. The obligations are imposed upon an apex level society under the provisions of U.P. Cooperative Societies Act, 1965.
The Federation was granted licence by the Excise Department for the selling Indiamade foreign liquor in 22 retail shops in the district Pauri Garhwal for the year 199293. The Federation appointed the petitioners as salesmen for selling and smooth running of the liquor shops run by the Federation. The petitioners were issued appointment letter dated 8th June, 1992. The appointment letters indicate that they were appointed for the period of three months on probation and on their being satisfied their services can be extended till 31 March, 1993.
The petitioners continued to work as salesmen in the liquor shops run by the Federation. The Federation was again granted licence for the year 1S9394. The petitioners continued to work till March 1995. For the year 199596 the Federation entered into an agreement with M/s. Uttarakhand Wines appointing its managing agent for selling foreign liquor in the 22 retail shops in favour of the Federation. M/s. Uttarakhand Wines after having been appointed as managing agent by the Federation appointed their own men as salesmen for selling foreign liquors in the retail shops. They did not employ the petitioners as salesmen. The petitioners, aggrieved against this action, have filed the present writ petition claiming that they are entitled to continue in service of the Federation and entitled to payment of salary,
Learned counsel for the petitioners contended that the Federation has not issued any order terminating their services. They should be treated in its service and in any case are entitled for regularization as they have worked since April 1992 without interruption. There is no allegation against the work and conduct of the petitioners.
A counter affidavit has been filed on behalf of the respondents. The contention of the respondents is that the licence was granted for the year 199293 for sale of the India made foreign liquors by the licensing authority. The licence was renewed for the subsequent years. Petitioners were engaged as salesmen only for a period of three months and it was extended till 31st March of the licensing year. Their appointments were for a specific purpose and for a fixed In the year 1995 the Federation had appointed M/S Uttarakhand Wines (managing agent for selling foreign liquors. The managing agent is entitled to appoint any person as salesman and the Federation cannot force M/S Uttrakhand Wines to take service from the petitioners.
The appointment of the petitioners was only for a period till the end of sing year and the petitioners cannot be treated as permanent employees of the Federation.
The petitioners themselves have filed copy of appointment letter as Annexure 1 A to 1S. The appointment letters were issued on 8th June l992. The letters indicate that the appointment is for three months on probation and on the work being satisfactory it can extended only upto 31st March 13SS.'' appointment letters clearly indicate that the appointment of the petitioner was for a fixed period. It appears, the licence of the Federation was for the period till 31st March 1993. The petitioners were appointed for the period till the end of licensing year. As the licence was renewed by the licensing authority for the other years the petitioners continued to work on the post of salesmen of the Federation. The Federation appointed M/S Uttarakhand Wines as its managing agent and the latter did not take the work from the petitioners as its salesmen. The service of the petitioners were treated as terminated by respondent no. 1. The petitioners have not shown that there is any service rule governing their services. The Federation is a registered cooperative society under the provisions of U.P. Cooperative Societies Act. The appointment of the petitioners was for a fixed period as indicated in the appointment letters dated 8th June 1992 referred to above. The petitioners, who were permitted to work even thereafter, cannot claim their right to continue in service unless there is a contract or any law under which they can claim such a right to hold the post.
Learned counsel for the petitioners submitted that the petitioners having worked for more than three years were entitled for regularisation in service of the Federation. Learned counsel for the petitioner placed reliance upon Daily Rated Casual workers employed under Post & Telegraph Department v. union of India and others, (1988)1 SCC 122 wherein their Lordships of the Supreme Court held that where daily rated casual workers in Post and Telegraph Department are doing work similar to regular workers of the department they are entitled to minimum pay of the pay scale of regular workers plus D.A. without increments and further directed the respondents to frame scheme for absorption of labourers continuously working in the department for more than one year.
The similar view was expressed in U.P. Income Tax Department Contigent Paid Staff Welfare Association v. Union of India and others, AIR 1988 SC 517.
In Jacob. M. Puthuparambil and others v. Kerala Water Authority and others, AIR 1990 SC 2228, it was held that the employees who have been working in the establishment since long and who possess requisite qualifications for the job as prescribed on the date of their appointment must be allowed to continue on their jobs and their services be regularised. This decision has taken into consideration in State of Haryana v. Piara Singh, AIR 1992 8G 2130. The State of Punjab and Haryana made appointments to Classes HI and IV services on ad hoc basis. They were initially appointed for a period of six months or so and were continued for years together under the orders passed from time to time. Subsequently the Government issued orders prescribing eligibility and conditions for regularisation of service. This order was challenged in the Supreme Court. It was contended that the conditions prescribed in the order are arbitrary, discriminatory and unrelated to the object. There were certain workcharge employees, daily wagers working on the projects. They too wanted to be regularised. The High Court had upheld the contention of the petitioners. The Supreme Court in Para 25 of the judgment laid down certain guidelines for making regularisation of services of ad hoc or temporary employees. It was held that the normal rule is that the recruitment should be made through prescribed agency but exigency of the administration may sometime call for ad hoc or temporary appointment to be made. In such a situation, efforts should always be made to replace such ad hoc or temporary employees by regularly selected employees as far as possible. Secondly, and ad hoc or temporary employee should not be replaced by another ad hoc or temporary employee. It should be replaced by a regularly selected employee. This is necessary to avoid arbitrary action on the part of the appointing authority.
The question still to be answered is as to what extent an employee is entitled to be regularised in service. There are conditions when an employee is appointed for specific purpose or for a fixed time. There may be circumstances where the post on which a person is appointed is abolished or not sanctioned by the appropriate authority. There may be another situation where the work and conduct of an employee appointed to work on daily wages or on ad hoc basis is not found satisfactory and lastly to what extent the policy of regularisation can beextended.
The appointment is to be made by a process of selection and such persons, who have been working, if are regularised, the rights of such other persons who can claim appointment on the basis of selection is negatived because some persons have been appointed on ad hoc basis for one reason or the other.
In Zakir Husain v. EngineerinChief, Irrigation Department, U. P. Lucknow, 1993 (1) UPLBEC 15, the Court after taking into consideration the various decisions took the view that merely because an employee as worked for two or three years be cannot claim regularisation of service as a matter of right. For regularisation there must be post and funds and need for retention of employee according to work. Apart from it he must be qualified and his work should also be satisfactory. Similar view was expressed in Rajesh Kumar Awasthi v. D. F. O. Special Forestry Division, Fatehpur 1993 (66) IF and LR 613.
In Dr. Arundhaii Ajit Pargaonkar v. State of Maharashtra, 31 1994 (5) SC 378. The appellant, lecturer in Dentistry, was working in Government B. 3. Medical College, Pune for 9 years and contended that he was entitled for regularisation on the post on which he was working. He claimed that he was selected by the Divisional Selection Board and was appointed as lecturer on a temporary basis. He also challenged the action of the State of Maharashtra for making selection on the post which he was holding. Their Lordships of the Supreme Court repelled the contention of the appellant that if a person has been appointed temporarily to a permanent post cannot be equated with a person appointed as ad hoc. It was further observed that if a person is appointed till further order that does not confer upon him any permanent status nor is entitled to regularisation. It was further observed:
�Nor the claim of the appellant, that she having worked as Lecturer without break for nine years on the date the advertisement was issued she should be deemed to have been regularised appears to be well founded. Eligibility and continuous working for howsoever long period should not be permitted to overreach the law. Requirement of rules of selection through Commission cannot be substituted by human considerations. Law must take its course. Consequently the appellant was not entitled to claim that she should have been deemed to have been regularised as she had been working without break for nine years.�
In Maharashtra State Cooperative Cotton Growers'' Marketing Federation Ltd. v. Maharashtra State Cooperative Cotton Growers'' Marketing Federation Employees'' Union, AIR 1994 SC 1046, it was held that seasonal employees putting more than 240 days of service are not entitled to be regularised merely on the ground that they had worked for 240 days in a year. The seasonal employees need not be made as permanent employees because seasonal employees are employed considering the nature of work.
In Madhyamik Shiksha Parishad, U.P. v. Anil Kumar Misra, AIR 1994 SC 1638, it was held that the workers working on unsanctioned post cannot claim any right of regularisation merely on the ground that they had completed 240 days of work.
In Devi Shyam Shukla v. Director of Education, Lucknow, 1994 (3) UPLBEC 1831, it was held that a person has no right to continue on the post if the post is itself abolished. In 1995 (1) Educational and Service Cases 26, it was held that if an employee is engaged for a specific purpose he cannot claim the fight to continue in service if that purpose for which he was appointed has ceased.
Coming to the facts of the present case it is admitted to the petitioners that the Federation had appointed the petitioners as salesmen for selling Indiamade forcing liquors in 22 retail shops in the district Pauri Garhwal. In the year 1995 it appointed M/s. Uttarakhand Wines as its managing agent. The Federation itself is not selling Indiamade foreign liquors. The work of selling has been assigned to an agency. The Federation had appointed the petitioners only for a specific purpose e.g. for selling the foreign liquors in the shops which were allotted to it. If the Federation has chosen not to carry on the work of sale directly but through some other agency, the persons employed by it cannot claim any right to work on the post to which they were appointed.
The petitioners have not impleaded M/s. Uttarakhand Wines as a party in the petition nor any claim has been made against them. On the other hand the petitioners in Para 17 of the writ petition have stated that petitioners could not be transferred and made subordinate to M/s. Uttarakhand Wines.
In view of the above the petitioners cannot claim any right of permanency of service of the Federation. Their appointment was for a fixed period and even if they continued to work after the period fixed in the appointment letter they cannot claim any right to continue on the post on which they were appointed originally. There is neither any agreement nor any law under which the Federation can be compelled to take work from the petitioners.
Learned counsel for the petitioners next contended that the services were dispensed with without giving notice to them as required under Section 6N of the U.P. Industrial Disputes Act, which involves various questions of fact. The petitioners can seek appropriate legal remedy, if they claim that they are workmen, by raising industrial dispute under the provisions of U.P. Industrial Disputes Act, 1947.
Learned counsel for the respondent contended that the writ petition is not maintainable as the U.P. Cooperative Federation is not State as defined under Article 12 of the Constitution of India. He has placed reliance upon a Full Bench decision in Radha Chandra Sharma v. U. P. Cooperative Federation, 1982 UPLBEC 89.
Learned counsel for the petitioner submitted that the respondent is receiving aid from the Government and as such it is instrumentality of the State. He has placed reliance upon the decision in Sri Pukh Raj Mantri v. U.P. Cooperative Spinning Mills Federation Ltd., 1992 ALR (SOC) 25, in which it was held that U.P. Cooperative Spinning Mills Ltd. is a instrumentality of the State within the meaning of Article 12 of the Constitution as it is a public institution and the Federation cannot claim immunity from judicial review under Article 226 of the Constitution of India.
This question is, however, not necessary to be decided in the present case on the view taken above, regarding the legal rights of the petitioners.
The writ petition is accordingly dismissed. Parties shall, however, bear their own costs.