Writ Petition No. 4133 of 2012

16th April, 2013

Petitioner Counsel: Shri A.P. Tathod
Respondent Counsel: Shri S.A. Sahu,Shri M.I. Dhatrak,Shri M.P. Kariya

Cases Cited:
State of Haryana & Ors. Vs. Piara Singh & Ors., (1992) 4 SCC 118 [Para 2,3,5]
Rajendra Vitthalrao Kamble Vs. Government of Maharashtra & Ors., 2012(4) ALL MR 293=2012(4) Mh.L.J. 505 [Para 2,4,5]
Gangadhar Pillai Vs. Siemens Ltd., 2007(2) ALL MR 449 (S.C.)=(2007) 1 SCC 533 [Para 3,5]
Secretary, State of Karnataka Vs. Umadevi (3), 2008 ALL SCR 134 : (2006) 4 SCC 1 [Para 3,5]

JUDGMENT

B. P. DHARMADHIKARI, J. :- Rule is made returnable forthwith and heard finally with the consent of Shri Tathod, learned counsel for the petitioners, Shri Sahu, Advocate holding for Shri Dhatrak, learned counsel for respondents No. 1 & 2 and Shri Kariya, learned counsel for respondents No. 3 to 7.

2. The petitioners, who are working on clock hour basis, rely upon the judgment of the Hon'ble Apex Court in the case of State of Haryana & Ors. vs. Piara Singh & Ors., reported at (1992) 4 SCC 118, to urge that they cannot be substituted by another set of adhoc employees and they should be continued in service till the regularly selected candidates report for work. The support is being taken from the Division Bench judgment of this Court in the case of Rajendra Vitthalrao Kamble vs. Government of Maharashtra & Ors., reported at 2012(4) Mh.L.J. 505 : [2012(4) ALL MR 293].

3. The respective counsel appearing for the respondents submit that the petitioners are not adhoc employees and they were working only on clock hour basis that too for a period of one year. According to them, therefore, reliance upon the judgments (supra) is not relevant. They also seek to rely upon the judgment of the Hon'ble Apex Court in the case of Gangadhar Pillai vs. Siemens Ltd., reported at (2007) 1 SCC 533 : [2007(2) ALL MR 449 (S.C.)], to urge that there the Hon'ble Apex Court has specifically found that the judgment in the case of State of Haryana & Ors. vs. Piara Singh & Ors., has been overruled by the Constitution Bench judgment of the Hon'ble Apex Court in the case of Secretary, State of Karnataka vs. Umadevi (3), reported at (2006) 4 SCC 1 : [2008 ALL SCR 134]. They, therefore, pray for dismissal of present writ petition.

4. In reply arguments, Shri Tathod, learned counsel apart from reiterating the law as per judgment of Division Bench of this Court in the case of Rajendra Vitthalrao Kamble vs. Government of Maharashtra & Ors., [2012(4) ALL MR 293] (supra) submits that fresh recruitment to fill in the vacancies is being undertaken by Respondent No. 1 and the petitioners should be given due preference because of past experience with them.

5. The Division Bench judgment of this Court in the case of Rajendra Vitthalrao Kamble vs. Government of Maharashtra & Ors., [2012(4) ALL MR 293] (supra) has considered the fate of ad-hoc employees and concluded that adhoc employees cannot claim regularization or permanency. However, it also found that when such adhoc employees are appointed to a permanent post, they should not be replaced by another set of adhoc employees, they can only be replaced by regularly selected employees. The perusal of this Division Bench judgment reveals that the judgment of the Hon'ble Apex Court in the case of Gangadhar Pillai vs. Siemens Ltd., [2007(2) ALL MR 449 (S.C.)] (supra) was not pointed to the Division Bench. The Division Bench has no doubt looked into the judgment of the Constitution Bench judgment of the Hon'ble Apex Court in the case of Secretary, State of Karnataka vs. Umadevi (3), [2008 ALL SCR 134] (supra), but then has arrived at a finding that the judgment in the case of State of Haryana & Ors. vs. Piara Singh & Ors., is not overruled by the said Constitution Bench judgment. In the light of specific observations of the Hon'ble Apex Court in paragraph 31 of its judgment in the case of Gangadhar Pillai vs. Siemens Ltd., [2007(2) ALL MR 449 (S.C.)] (supra), this Court has to accept that the judgment in the case of State of Haryana & Ors. vs. Piara Singh & Ors., (supra) stands overruled by the Constitution Bench judgment of the Hon'ble Apex Court in the case of Secretary, State of Karnataka vs. Umadevi (3), [2008 ALL SCR 134] (supra).

6. In view of this position, it is apparent that the said judgment cannot help the cause and case of the petitioners. Moreover, the petitioners were working on clock hour basis and hence they were not occupying any permanent post, hence, even otherwise the Division Bench judgment of this Court cannot save the situation for them. If there is any law which enables the petitioners to claim preference in employment or consideration, because of past experience with them, we permit them to rely upon it and press it for consideration by Respondent No. 1, whenever regular recruitment to fill in permanent vacancy is undertaken.

7. Needless to mention that these observations do not preclude Respondent No. 1 from again appointing the petitioners on clock hour basis as before and it also do not preclude the petitioners from participating in regular selection process in accordance with law.

8. With these observations and directions, we dispose of this writ petition. Rule is made absolute in above terms. However, in the facts and circumstances of the case, there shall be no order as to costs.

Ordered accordingly.