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Judgment
P.D. Dinakaran, C.J.
1.1 The petitioner was employed as an X-Ray Assistant Technician in various capacities in the District Government Hospital, Namchi, of course with break in service as hereunder:
(i) Substitute X-Ray Assistant Technician from 5.4.85 Vide Office Order No. 11/M, dated 4.4.85.
(ii) On daily wages from 04.06.1986 vide O.O. No. 473/M, dated 01.07.1986.
(iii) On ad hoc basis from 16.7.88 vide O.O. No. 636/M, dated 16.7.88.
(iv) On contract basis from 17.10.88 vide O.O. No. 2013/M, dated 20.1.89.
(v) On ad hoc from 17.10.89 vide O.O. No. 98/M, dated 16.10.89.
(vi) On contract basis from 20.10.89 vide O.O. No. 982/M, dated 16.10.92.
(vii) On contract basis from 24.9.90 vide O.O. No. 202/M, dated 3.7.92.
(viii) On contract basis from 21.9.92 vide O.O. No. 691/M, dated 13.10.92.
(ix) On contract basis from 21.1.93 vide O.O. No. 556/M, dated 7.12.93.
(x) On contract basis from 21.3.94 vide O.O. No. 190/M, dated 5.7.94.
(xi) On contract basis from 1.4.95 vide O.O. No. 134/M, dated 21.7.95.
(xii) On contract basis from 1.11.96.95 vide O.O. No. 143/M, dated 31.8.97.
(xiii) On contract basis from 1.4.98.95 vide O.O. No. 305/M, dated 13.8.98
(xiv) On contract basis from 1.4.99.95 vide O.O. No. 314/H and FW dated 3.8.99.
1.2 The last appointment of the petitioner, as an X-Ray Technician on a consolidated pay of Rs. 6280/ - in the Health Care and Family Welfare Department, was on contract basis, as per the proceedings dated 03.08.1998, which reads as follows:
Government of Sikkim Department of Health Care and Family Welfare Gangtok
No. 314/HC, HS and FW Dated: 3/08/98 To
Mr. A.K. Jha 23, Rakhal Das, Banerjee Road, P.O. Berhampore, District: Murshidabad.
Sub: Offer Letter For Contract Appointment.
The Government of Sikkim is pleased to offer you employment as X-Ray Technician in the Health and Family Welfare Department for the period of one year on contract w.e.f. 1.04.1999 to 31.03.2000.
You will be paid a consolidated pay of Rs. 6280/ - per month.
This offer is subject to the terms and conditions of contract employment as per the advertisement calling for applications dated________and the conditions and terms in the Agreement of appointment to be entered into.
If you accept this offer, you are requested to report to the undersigned on the next immediate working day in his office and comply with the formalities of signing the agreement, but not later than 27.7.99 failing which this offer will stand cancelled.
You are likely to be posted at District Hospital, Namchi in South Sikkim.
The department will give you a posting order after the agreement is concluded.
Sd/ - Deputy Secretary (Adm.) Department of Health and F.W. Government of Sikkim
1.3 Pursuant to the said proceedings dated 03.08.1998, the petitioner entered into an agreement with the Health Care and Family Welfare Department, Government of Sikkim, the relevant portion of the said agreement reads as under:
Government of Sikkim Dept. of Health and Family Welfare Gangtok
Agreement of Appointment
This agreement of appointment entered on this 27th day of July 1999 between:
The Government of Sikkim, known as the employer on the first part:
And Shri Ashis Kr. Jha, son of Shri Neelamta Jha aged 39 years, residing at Berhampore, Murshidabad (hereinafter called the employee) of the second part as follows:
...
...
3(a) The employment shall be on contract and purely temporary for the period from 1.4.1999 to 31.03.2000.
(b) ...
(c) ...
(d) ...
(e) The employment will automatically come to and end on 31-3-2000.
(f) The employee has no right to continue in employment after the expiry of his/her term of employment. He may apply for a fresh appointment in which case a fresh agreement will be entered into by the parties, after following the procedure for recruitment by interview or written test or both.
(g) No employee under contract service shall be entitled for regularisation in the post as of right.
(emphasis supplied)
Undisputedly, the petitioner had not chosen to challenge the said offer letter dated 03.08.1998 for contract appointment and Clauses 3(a), (e), (f) and (g) of the Agreement of Appointment entered thereunder on 27.07.1999.
According to the petitioner, his case is similar to that of Buddha Lama, who was working as a Compounder in Namthang Primary Health Centre on contract basis from 1982 and subsequently got regularised by the respondents. He further contends that the Hon''ble Chief Minister by the proceeding dated 14.01.1997 recommended for regularisation of the petitioner''s service as a special case. Pursuant to the said recommendation, the Joint Director, Health and Family Welfare Department, South District, Namchi on 13.02.1997 observed as follows:
Mr. Ashish Kumar Jha has been working as X-ray Technician for more than 10 years at Namchi Hospital. So far he has been working satisfactorily. The request made by the applicant for regularisation of service may be considered sympathetically as we still require his service.
Sd/ - Joint Director Health and Family Welfare Deptt. South District, Namchi.
4.1 It may not be out of place to point out that the last appointment of the petitioner on contract basis, vide "Offer letter for Contract Appointment" dated 03.08.1998 by the Department of Health and Family Welfare, Government of Sikkim, and the agreement dated 27.07.1999 entered there under whereby the petitioner was appointed for the period 01.04.1999 to 31.03.2000, was subsequent to the proceedings of the Hon''ble Chief Minister, Joint Secretary and Joint Director, as referred to above.
4.2 Based on the said proceedings of the Joint Director, Health Care and Family Welfare Department, South District, Namchi, the petitioner seeks regularisation of his service as X-Ray Technician, and pray for the following reliefs:
(i) For direction to the concerned respondents to regularise the service of the petitioner as a regular employee to the post of X-Ray Technician with effect from 05.04.1985 in pursuance of order of approval dated 14.01.1997 (Annexure - 8) by Hon''ble Chief Minister, Government of Sikkim and order of recommendation dated 13.02.1997 (Annexure - 9) issued by the Joint Secretary, Health and Family Welfare Department, Government of Sikkim, South District Namchi and also taking into account the regularisation of one Mr. Buddha Lama to the post of Compounder, Namthang P.H.C. who also worked on the contract service from 1982 by following the principle laid down by Hon''ble Supreme Court of India in Gujarat Agricultural University case reported in AIR 2001 SCW 507.
(ii) For direction to the concerned respondents to pay arrears of due salaries from 05.04.1985, after deduction which has already paid earlier during course of his service, in the pay scale of X-Ray Technician from 05.04.1985 like a regular employee of X-Ray Technician by following well settled principle laid down by Hon''ble Supreme Court of India in Gujarat Agricultural University case reported in AIR 2001 SCW 507.
(iii) For direction to the concerned respondents to pay interest @ 18% over the due amount of arrears of salaries from 05.04.1985 on the basis of law as well as in equity on the well settled principles laid down by Hon''ble Supreme Court of India in Food Corporation of India and Anr. v. SEIL Ltd. and Ors. reported in 2008 (2) JLJR (SC) 141.
(iv) For direction to the concerned Respondents to grant all other consequential relief/reliefs for which the petitioner would be entitled for in the facts and circumstances of this case setforth in the writ petition as well as existing Laws, Regulation, Rule, Resolution, Notification and Act in the State of Sikkim and other laws.
Heard Mr. Sudesh Joshi, learned Counsel appearing on behalf of the petitioner and also Mr. J.B. Pradhan, learned Additional Advocate General appearing on behalf of the State.
6.1 Learned Counsel appearing for the petitioner fairly conceded that the law laid by the apex Court in Gujarat Agricultural University Vs. Rathod Labhu Bechar and Others, , stands overruled by the apex Court in Secretary, State of Karnataka and Others Vs. Umadevi and Others, .
6.2 However, the learned Counsel seeks sympathetic approach in the matter as in the case of Buddha Lama and also in the light of the Order dated 14.01.1997 passed by the Hon''ble Chief Minister as laid down by the petitioner.
The learned Additional Advocate General, contends that the recommendation of the Hon''ble Chief Minister dated 14.01.1997 and also the observation of the Joint Director, Health and Family Welfare Department dated 13.02.1997 have ultimately culminated into the proceedings dated 03.08.1998 of the Department of Health Care and Family Welfare and the consequent Agreement dated 27.07.1999, referred to above, as per which the petitioner is not entitled for regularisation in the post as of right. That apart, the qualification required for X-Ray Technician, as per the Sikkim State Subordinate Para Medical Recruitment Rules, 1998, is Class X passed from a recognized Board with Diploma in X-Ray/ECG technology from any recognised Institute. The petitioner does not possess the said qualification. It is a settled law that to seek writ of mandamus, the petitioner should satisfy that he has a legal right. But the petitioner himself does not posses the requisite qualification. Since the petitioner does not possess the required minimum qualification, he is not entitled to seek the writ of mandamus for regularisation of his service, as prayed for. That apart, there is an inordinate delay on the part of the petitioner in approaching this Court. The lapses on the part of the petitioner in this regard is not justified.
I have given careful consideration to the submissions of both sides.
It is the settled law that the discretion conferred upon this Court, while exercising the power of judicial review under Article 226 of the Constitution of India, may be refused, if the Court is satisfied that there is negligence or omission on the part of the applicant in approaching the Court, invoking Article 226 of the Constitution of India. Of course, the petitioner could say that he was making repeated requests to the authorities concerned, seeking regularisation of his service for all these ten years. But the apex Court time and again has held that mere making of repeated representations to the authority concerned cannot justify a belated approach vide: Karnataka Power Corporation Limited through its Chairman and Managing Director and Another Vs. K. Thangappan and Another, and the cases referred to thereunder.
In Gujarat Agricultural University Vs. Rathod Labhu Bechar and Others, , the apex Court held that Gujarat Agricultural University replacing the regularised daily-rated labourers, who rendered 10 years long service was an unfair labour practice, and the law laid down in Gujarat Agricultural University case (referred supra) was overruled by the apex Court in Umadevi''s (3) case (referred supra).
In Umadevi''s (3) case (supra.), the apex Court has clearly laid the law that in absorption, regularisation or permanent continuance of temporary, contractual, casual, daily-wage or ad hoc employees in public employment should not be merely based on equity. The wide powers conferred under Article 226 of the Constitution of India are not intended to be used for issuance of directions, which would bring about financial and economic impact of such directions, so as to defeat the concept of social justice and equal opportunity for all. While considering the equity for the handful of people, the Court should not ignore to equity for the teeming millions seeking employment and waiting for a fair opportunity for competing for employment.
12.1 At this point of time, Mr. Sudesh Joshi, learned Counsel appearing for the petitioner has invited my attention to the decision of the apex Court in UP State Electricity Board v. Pooran Chandra Pandey and Ors. reported in (2007) 11 SCC 92 , on the question of precedential value of decision rendered by the larger Bench (7 judges) in Mrs. Maneka Gandhi Vs. Union of India (UOI) and Another, over the principal laid down by a similar bench in Umadevi (3) case (5 judges) (supra.), particularly with reference to the reasonableness and arbitrariness.
12.2 Mr. Joshi, learned Counsel for the petitioner also invited my attention to paragraph 18 of the judgment in UP State Electricity Board v. Pooran Chandra Pandey and Ors. (supra.), which reads as follows:
We may further point out that a seven-Judge Bench decision of this Court in Maneka Gandhi v. Union of India has held that reasonableness and non-arbitrariness is part of Article 14 of the Constitution. It follows that the Government must act in a reasonable and non-arbitrary manner otherwise Article 14 of the Constitution would be violated. Maneka Gandhi case is a decision of a seven-Judge Bench, whereas Umadevi (3) case is a decision of a five-Judge Bench of this Court. It is well settled that a smaller Bench decision cannot override a larger Bench decision of the court. No doubt, Maneka Gandhi case does not specifically deal with the question of regularisation of government employees, but the principle of reasonableness in executive action and the law which it has laid down, in our opinion, is of general application.
In my considered opinion, there is no need to go into the question whether the petitioner is entitled the relief as prayed for as per the rulings in Maneka Gandhi''s case (supra), because the petitioner himself has agreed in the Agreement of Appointment dated 27.07.1999 that his employment on contract basis shall not entitle him for regularisation in the said post as of right.
For all the reasons aforementioned, the writ petition is failed and the same is dismissed. However, the dismissal of the writ petition will not be a bar for the petitioner to seek appropriate relief before the competent authority, if he so advised and make it clear that under any event, it will not be a matter of right.