HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH AFR Reserved Civil Misc.Writ Petition No.7621(SS) of 2008 Ram Naresh and others ...Petitioners Versus State of U.P. and others ...Opp.parties. Alongwith Writ Petition No.8020(SS) of 2008 Mahesh Prasad Tripathi and others ...Petitioners Versus State of U.P. and others ...Opp.parties. Alongwith Writ Petition No.8058(SS) of 2008 Mukesh Kumar Gaur ...Petitioner Versus State of U.P. and others ...Opp.parties. Alongwith Civil Misc.Writ Petition No.480(SS) of 2009 Manoj Kumar Sirohi and others ...Petitioners Versus State of U.P. and others ...Respondents Alongwith Civil Misc. Writ Petition No.483(SS) of 2009 Harish Chandra Joshi and others ...Petitioners Versus State of U.P. and others ...Opp.parties.. Alongwith Civil Misc.Writ Petition No.486 (SS) of 2009 Salman Ahmad and others ...Petitioners Versus State of U.P. and others ...Opp.parties. Alongwith Civil Misc.Writ Petition No.488(SS) of 2009 Vipin Kumar Arora and others ...Petitioners Versus State of U.P. and others ...Opp.parties. Alongwith Civil Misc.Writ Petition No.504 (SS) of 2009 Mukteshwar Sharma and others ...Petitioners Versus State of U.P. and others ...Opp.parties. Alongwith Civil Misc.Writ Petition No.2627(SS) of 2009 Rajesh Kumar Agarwal and others ...Petitioners Versus State of U.P. and others ...Opp.parties. Alongwith Civil Misc.Writ Petition No.2628(SS) of 2009 Anil Kumar and others ...Petitioners Versus State of U.P. and others ...Opp.parties. AND Civil Misc. Writ Petition No.2630(SS) of 2009 Sunil Kumar Srivastava ...Petitioner Versus State of U.P. and others ...Opp.parties. *** Hon'ble Shri Narayan Shukla,J.
Heard Mr.Pankaj Srivastava, learned counsel for the petitioners, Mr.J.N.Mathur, learned Additional Advocate General alongwith Mr.V.S.Tripati, learned Additional Chief Standing Counsel for the State and Mr.Anil Tiwari, learned Senior Advocate as well as Mr.R.K.Chaudhary, learned counsel for the State Warehousing Corporation.
The petitioners are the employees of the State Warehousing Corporation, State of U.P. They are deployed at different districts in the whole State. They belong to different categories viz. Technical Assistants, Accountants, Group 'C' and Group 'D' posts. They have come forward to lodge their claim of regularization through different set of writ petitions by challenging the advertisement issued for regular recruitment as well as the order passed by the State Government, rejecting their claim of regularization.
Since common questions are involved for determination in all the writ petitions the description of writ petitions alongwith total number of petitioners in each and every petition and categories of employees are mentioned here-in-below:-
Sl.No W.P.
No.
Party name Total Writ petitions Group 'C' empl-oyees Group 'D' Empl-oyees 1 7621 of 2008 Ram Naresh & others 60 15 45 2 8020 of 2008 Mahesh Prasad Tripathi & others 19 8 11 3 480 of 2009 Manoj Kumar Sirothi & others 8 8 4 2628 of 2009 Anil Kumar & others 67 7 60 5 486 of 2009 Salman Ahmed & others 43 43 6 483 of 2009 Harish Chandra Joshi & others 13 13 7 504 of 2009 Mukteshwar Sharma & others 6 5 1 8 488 of 2009 Vipin Kumar Arora & others 5 5 9 2627 of 2009 Rajesh Kumar Arora & others 32 32 (Tech.
Asstt.
102630 of 2009 Sunil Srivastava & others 1 1 (Acco-untant) Total 254 81 173 Some of the petitioners have completed their tenure of service more than ten years. Some are reaching that stage. Since several years they have been seeking their regularization before the competent authority, but they did not come forward to lodge their claim to the court of law, but when the advertisement proceeded for regular recruitment in different categories, they came forward to challenge the same, which is before this court. The services of the petitioners are regulated by the U.P. State Warehousing Corporation Staff Regulations, which have been framed in exercise of power conferred by Section 42 of the Warehousing Corporation Act, 1962. By way of Section 42 of the Warehousing Corporation Act, 1962 (in short 'Act') the Warehousing Corporation has been authorized to make regulations for the purpose of giving effect to the provisions of the Act, which may provide the conditions of service and remuneration payable to the officers and other employees of the Corporation etc. The regulation 3 speaks that they shall apply to all employees of the corporation and to the personnel employed on contract in respect of all matters not regulated by the contract.
Regulation 2 (e) defines the term 'Employee' as under:-
"(e) 'Employee' means a person in the whole time or part time on daily wages or a person employed on contract in so far as he is governed by the terms of the contract."
Regulation 4 speaks for strength of staff. It provides that the Board of Directors shall, from time to time, determine the strength of the staff both permanent and temporary under various categories required for carrying out its functions: Provided that the Managing Director may subject to the approval of the Executive Committee create any post in class II or class III for a period not exceeding six months.
Regulation 5 speaks for appointing authority. It provides that Appointments to posts in class II in the scale of Rs.625-1240 and above shall be made by the Managing Director and appointments to the posts in class II and III below the pay scale of Rs.625-1240 shall be made by the Deputy Managing Director. Appointment to the posts other than that of Managing Director, shall be made by the Executive Committee. The appointment of Managing Director shall be made in accordance with the provisions of Section 20(i)(c) of the Warehousing Corporations Act, 1962.
The State Warehousing Corporation has been defined under Section 2(k) of the Warehousing Corporations Act, 1962 as under:-
"2.(k) 'State Warehousing Corporation" means a Warehousing Corporation for a State established or deemed to be established under this Act.
Section 18 of the Act authorizes the State government to establish a Warehousing Corporation for a State with the approval of the Central Warehousing Corporation. It shall be a body corporate.
Section 20 of the Act empowers the Board of Directors to get general superintendence and management of the affairs of the Corporation as well as the constitution of the Board of Directors. Section 20 is extracted below:-
"20.(1) The general superintendence and management of the affairs of a State Warehousing Corporation shall vest in a board of directors which shall consist of the following:namely:-
(a)five directors mentioned by the Central Warehousing Corporation, of whom one shall be nominated in consultation with the State Bank and one at least shall be a non-official;
(b) five directors nominated by the State Government; and ( c) a managing director, appointed by the State Government in consultation with the directors referred to in clauses (a) and (b) and with the previous approval of the Central Warehousing Corporation.
(2) The Chairman of the board of directors shall be appointed by the State Government from among the directors of the State Warehousing Corporation with the previous approval of the Central Warehousing Corporation.
(3) The managing director shall-
(a) exercise such powers and perform such duties as the board of directors or the State Warehousing Corporation may entrust or delegate to him; and
(b) receive such salary and allowances as the State Warehousing Corporation may; in consultation with the Central Warehousing Corporation, and with the previous approval of the State Government, fix.
(4) The board of directors shall act on business principles having regard to public interest and shall be guided by such instructions on questions of policy as may by given to them by the State Government or the Central Warehousing Corporation.
(5) If any doubt arises as to whether a question is or is not a question of policy, or, if the State Government and the Central Warehousing Corporation give conflicting instructions, the matter shall be referred to the Central Government whose decision thereon shall be final.
(6) The directors of a State Warehousing Corporation, other than the managing director, shall be entitled to receive by way of remuneration such sums as may be prescribed: Provided that no official director shall be entitled to receive any remuneration other than any allowances admissible to him under the rules regulating his conditions of service.
(7) The term of office of, and the manner of filling casual vacancies among directors shall be such as may be prescribed."
Section 23 authorizes the State Warehousing Corporation to appoint officers and employees. It is extracted below:-
"23. (1) A State Warehousing Corporation may appoint such officers and other employees as it considers necessary for the efficient performance of its functions.
(2) Every person employed by a State Warehousing Corporation under this Act shall be subject in such conditions of service and shall be entitled to such remuneration as may be determined by regulations made by the Corporation under this Act.
Section 35 provides that if there is any difference of opinion between the Central Warehousing Corporation and a State Warehousing Corporation regarding their respective functions and powers under this Act, such difference shall be referred to the Central Government, whose decision thereon shall be final.
The Warehousing Corporation (Amendment) Act, 2001 as amended in Section 20 as under:-
In Section 20 of principal Act.-
(a) in sub-section (1), in clause (e), for the words "with the previous approval of", the words "under intimation to" shall be substituted;
(b) in sub-section (2), for the words "with the previous approval of", the words "under intimation to" shall be substituted.
The petitioners' grievance is that once they are working in their regular establishment of the Corporation (in short 'Corporation'), against the substantive vacancies, there is no question to fill the posts through fresh recruitment by means of advertisement impugned. They also claimed their regularization under the U.P. Regularization of Daily Wages Appointment of Group 'D' posts, 1998 as well as U.P. Regularization of Daily Wages Appointments, 2001. It is stated that the nature of duties and responsibilities of all the petitioners are of such a grave nature that they have to be all times alert in 365 days and 24 hours in each and every Godowns established in the whole State of U.P. by the Corporation. They are assigned the duties to properly maintain the Godowns, keeps the food grains, give them insecticides in time and providing help in transportation of food grains through Railway racks from one to another place by uploading and downloading both. It is stated that the Corporation is profit generating department of State as the profit of Corporation is increasing every year. It is stated that so many times the Corporation took decision to regularize their services, but due to political interference the decision of the Corporation could not attained finality. The posts of Chairman and Managing Directors are held by political appointments and thus are exercised for political ends. Many times the employees agitating for their demand of regularization by way of lawful demonstration, like 'Dharna and Pradarshan'. Number of decisions of the Board of Directors have been brought on record for regularization of the petitioners, but the same could not attained the finality and ultimately the State Government has turned down the decision. It is stated by the petitioners that once the Board of Directors, who is the competent authority took a decision for regularization, the interference of the State Government is unwarranted being without jurisdiction.
It is stated by the petitioners that the Board of Directors has extended all benefits to the petitioners like regular employees as they are entitled to enjoy weekly holidays, national holidays, their dearness allowance is enhanced after every six months, their salary is being paid through cheques for which they held accounts in the National Banks. Though they are working continuously since long, but just to deny their right of regularization, two days artificial break after every 89 days are being given. Their work is regular, they are transferred as regular staff from one to another city for which travelling allowance is paid, but they are permitted to sign in separate register. Several times some of the senior employees have been handed over charge to run the center independently.
It is also stated by the petitioners that the petitioners have been engaged by the competent authority under the Rules, may be on consolidated wages, but there is no violation of any procedure for appointment. The regularization do not prescribe any procedure for appointment. Only the appointing authority is prescribed and once the appointments have been made by the appointing authority, the mode and manner of appointment is meaningless. It is also stated that the advertisement in question is without approval by the Board of Directors. As on 1st of April, 2010 against the total sanctioned strength i.e. 2140, the total 1491 employees are working and 649 posts are still vacant. For the post of Technical Assistant, 19 posts are sanctioned, against which 17 persons are working and two posts are vacant. In class IV employees total sanctioned posts are 540, against which 340 employees are working and 200 pots are vacant. For the post of typist, total sanctioned posts are 15, out of which 13 employees are working, two posts are still vacant. For the Junior Office Assistant, total sanctioned strength is 198, out of which 139 employees are working and 59 posts are vacant.
On the other hand, in reply the learned counsel for the Corporation stated that though the work of the Corporation is managed by its regular staff at the Depots, but when harvesting of crops and its purchase at the center need extra working hands, then casual staff like the petitioners are engaged. These casual workers depends on the quantity of work available. They work either till the cession of work or for the definite period for which they are engaged. Thereafter their engagement automatically stands exhausted. The petitioners were not engaged under the appointment letters. No mode of recruitment was adopted for engaging them, as such the petitioners have no legal right to claim for their regularization. They are working on casual basis. The casual labours are getting Rs.102.43 per day. The casual clerks are getting Rs.129.63 per day, as is prescribed under the minimum wages Act. The appointing authority for the post of Peon and Chowkidar is the Regional Manager of the Region. The appointing authority for the post of Junior Clerk is the Deputy Managing Director of the Corporation, but the petitioners were engaged by the Center incharge of that particular center without approval of the Regional Manager. Thus, they were not appointed by the appointing authority nor the procedure prescribed for selection has been adopted as neither any selection Committee was constituted nor was advertised the vacancies. Moreover, they were not engaged against any sanctioned post.
The sanctioned posts of Peons and Chowkidars in the Corporation are 504, against which 451 persons are working. Thus, only 89 posts are vacant. However, strength of working casual laborers is 935 in number. Similarly, sanctioned posts of Junior Clerks are 198, 50% of which is to be filled up from direct recruitment and 50% from promotion, against which only 64 posts are vacant. However, the casual clerks are working 449 in number. The Corporation has shown full sympathy for the petitioners as the weightage of their past services has been given in the process of recruitment, as has been asked by this court also in the earlier matter i.e. writ petition No.7513 (SS) of 2008.
The allegation of political interference has been said to be false and have been denied. The State Government has also come forward to file counter affidavit, just to defend its order passed on 17th of April, 2009, whereby the petitioners' regularization has been rejected on two folds; firstly the regularization Rules framed by the State Government, either it belongs to Group 'C' or Group 'D' employees, are not applicable to the employees of the Corporation as the same has not been adopted by the Corporation, therefore, it is stated that the petitioners cannot take benefit of regularization under those Rules. Secondly the decision of the Hon'ble Supreme Court rendered in the case of Secretary, State of Karnataka versus Uma Devi (3), reported in 2006 (4) SCC 1 negates such regularization. Though it is stated by the Government that the State Government never interferes in the functioning of the Corporation as well as in the decision of the Board of Directors, but since the decision regarding the petitioners regularization is a policy matter, the State Government has interfered with in the decision, as it is only the State Government which is empowered to take a policy decision, not the Corporate bodies.
Though several letters had been brought on record by the petitioners to establish their claim of regularization on the basis of profit being earned by the Corporation with their efforts, but one letter dated 8th of June, 2005, which is very much relevant, is being referred herein, through which the Corporation has intimated to the Government that the Corporation is in a profiteering position continuously since last ten years. In 1994 the total sanctioned strength by the State Government of the Corporation was 2140. At that time the capacity of storage of the Corporation was 7.94 lack metric tonne, whereas Corporation has improved its qualitative work and now its storage capacity is 28.28 metric tonne, thus the capacity of storage has increased to 256 per cent. The strength of the employees are unable to handle the work of the Corporation. The Board of Directors in its meeting dated 6th of December, 2004 took a decision to increase the strength of staff to 3291 posts. It also described the statistics of profit as under:-
Sl.No.
Year Net Profit (in lakhs) 1 1994-1995 284.34 2 199501996 547.44 3 1996-1997 206.04 4 1997-1998 224.68 5 1998-1999 888.93 6 1999-2000 1656.13 7 2000-2001 2499.02 8 2001-2002 3016.26 9 2002-2003 1113.46 10 2003-2004 973.49 After the aforesaid period in financial year 2004-2005 the profit was accepted to Rs.1447.52 lakh. It reserves Rs.9320.65 lac as surplus amount. It was also stated that for the purpose of its income and expenditure the Corporation is not depending on others and there is no need of financial assistance from the Government of India to function the Corporation. It is also stated that by increasing the strength, there would be no financial burden over the State Government. It also recommended to increase the age of retirement.
One application for production of record being application No.48049 (w) of 2010 has been brought on record. Mostly those are decisions of the Board of Directors for the regularization of petitioners, but since these facts are not denied by the respondents, I do not feel it appropriate to call for the records, therefore, it is rejected.
One C.M. Application No.109967 (w) of 2010 has been moved for impleadment by Mr.Rajendra Kumar Chaubey and Mr.Avadehsh Kumar through Mr.Samir Kalia, learned Advocate. The applicants are declared successful candidates. Appointment letters were issued to them, pursuant to which they had also submitted their joining. However, since the order passed by this court, pursuant to which their results were declared, has been stayed by the Division Bench of this court in the Special Appeal, the applicants cannot claim their right to stand in the way of petitioners' claim, therefore, their application is absolutely irrelevant for the purpose of decision of the case and the same is rejected.
One application being application No.114443 of 2008 to initiate proceeding for perjury committed by Shri Mahendra Nath Sharma has been filed by the petitioners. They claim that the respondents have suppressed the true facts as the advertisement shows only 146 vacancies of Group 'D' employees, but they are proceeding for selection against 2140 vacancies. They have also invited the attention of this court towards the statement of some political persons as well as to the political decisions. However, I am of the view that once it is admitted fact that total strength of the employees in the Corporation is only 2140, the recruitment can be made only against the posts, which are vacant on the date of advertisement, therefore, treating the said application as baseless, it is rejected.
It is admitted by the respondents that seven messengers, two motor drivers and one electrician, total ten employees, who were working on consolidated pay, have been regularized within the sanctioned strength by the State Government on 27th of December, 1995. One Suresh Kumar Yadav has been regularized, even after the decision of Uma Devi's case (Supra) on 17th of May, 1996. Though the government order dated 8th of September, 2010, whereby the State has proposed to extend the benefit of regularization to some of the daily wages employees, has been issued, but that is still subject to financial concurrence and it is stated by the State Government that even if it is implemented, the petitioners shall not get any benefit of it.
The petitioners have based their claim of regularization on the basis of judicial pronouncements also, particularly, the decision of Hon'ble Supreme Court rendered in the case of State of U.P. Versus Putti Lal, reported in 2002 (2) UPLBEC 1595. According to the learned counsel for the petitioners as per aforesaid decision, the regularization of Daily Wages employees, are permissible under the law, therefore, the Hon'ble Supreme Court directed the State Government to frame the Rules for regularization. To some extent he also placed reliance upon the decision of State of Karnataka verus Uma Devi (Supra) and submitted that after ten years continuous service on daily wages, the Hon'ble Supreme Court has permitted the regularization.
Since the State Government has rejected the petitioners' regularization basically on the strength of Hon'ble Supreme Court decision rendered in the case of Secretary, State of Karnataka, versus Uma Devi (3) and others, (Supra), it is appropriate to discuss the aforesaid judgment at this stage itself. In this case there were two sets of appeals; in one set, the respondents who were temporarily inducted on daily wages in the commercial tax department, they claimed that since they have worked in the department more than ten years, hence they are entitled to be made permanent employees of the department as well as entitled to all the benefits of regular employees. The second set of appeals related to the employees who challenged the cancellation of their appointments. Here I am concerned only with the first set of appellants seeking regularization. The Hon'ble Supreme Court recognized the right of Union as well as the State Government to engage persons temporarily or on daily wages basis to meet the ends of situation with the observation that such engagements cannot be used to defeat the very scheme of public employment. The Hon'ble Supreme Court held that once this right of the government is recognized and the mandate of the constitutional requirement for public employment is respected, there cannot be much difficulty in coming the conclusion that it is ordinarily not proper for the courts, who are guided under Article 226 of the Constitution of India or under Article 32 of the Constitution, to direct absorption in permanent employment to those, who have been engaged without following the due process of selection as envisaged by the constitutional scheme. The Hon'ble Supreme Court by considering the financial implications and the economic aspects held that the court ought not to brought the financial burden on the State by issuing directions for regularization, as such terms may turn counter productive. After making discussions on several judgments rendered on the point of regularization or permanent absorption, the Hon'ble Supreme court observed as under:-
"33.It is not necessary to notice all the decisions of this Court on this aspect. By and large what emerges is that regular recruitment should be insisted upon, only in a contingency can an ad hoc appointment be made in a permanent vacancy, but the same should soon be followed by a regular recruitment and that appointments to non-available posts should not be taken note of for regularization. The cases directing regularization have mainly proceeded on the basis that having permitted the employee to work for some period, he should be absorbed, without really laying down any law to that effect, after discussing the constitutional scheme for public employment."
The Hon'ble Supreme Court further observed that the High Court has no jurisdiction to frame a scheme by itself or direct the framing of a scheme for regularization. The relevant observations of the Hon'ble Supreme Court, which are in the form of guidelines are reproduced hereunder:-
"43. Thus, it is clear that adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution, a court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirement of Article 14 read with Article 16 of the Constitution. Therefore, consistent with the scheme for public employment, this Court while laying down the law, has necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee. If it is a contractual appointment, the appointment comes to an end at the end of the contract, if it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued. Similarly, a temporary employee could not claim to be made permanent on the expiry of his term of appointment. It has also to be clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules. It is not open to the court to prevent regular recruitment at the instance of ad hoc employees who by the very nature of their appointment, do not acquire any right. The High Courts acting under Article 226 of the Constitution, should not ordinarily issue directions for absorption, regularization, or permanent continuance unless the recruitment itself was made regularly and in terms of the constitutional scheme. Merely because an employee had continued under cover of an order of the court, which we have described as "litigious employment" in the earlier part of the judgment, he would not be entitled to any right to be absorbed or made permanent in the service. In fact, in such cases, the High Court may not be justified in issuing interim directions, since, after all, if ultimately the employee approaching it is found entitled to relief, it may be possible for it to mould the relief in such a manner that ultimately no prejudice will be caused to him, whereas an interim direction to continue his employment would hold up the regular procedure for selection or impose on the State the burden of paying an employee who is really not required. The courts must be careful in ensuring that they do not interfere unduly with the economic arrangement of its affairs by the State or its instrumentalities or lend themselves the instruments to facilitate the bypassing of the constitutional and statutory mandates."
The Hon'ble Supreme Court also denied the theory of legitimate expectations who entered into temporary employment or got engagement as a contractual or casual labour and the engagement is not based on a proper selection as recognized by the relevant Rules or procedure and held that the theory of legitimate expectation cannot be successfully advanced by temporary, contractual or casual employees.
The Hon'ble Supreme Court further held that there is no fundamental right for those, who have been employed on daily wages or temporary or on contractual basis to claim that they have a right to be absorbed in service. They cannot be said to be holders of a post, since a regular appointment can be made only by making appointments consistent with the requirements of Article 14 and 16 of the Constitution. The right to be treated equally with other employees employed on daily wages, cannot be extended to a claim for equal treatment with those who were regularly employed. That would be treating unequals as equals. It cannot also be relied on to claim a right to be absorbed in service even though they have never been selected in terms of the relevant recruitment Rules.
The Hon'ble Supreme Court further observed that when the court is approached for relief by way of writ, the court has necessarily to ask itself whether the person before it had any legal right to be enforced. By considering in light of the very clear constitutional scheme, it cannot be said that the employees have been able to establish a legal right to be made permanent even though they have never been appointed in terms of the relevant rules or in adherence of Article 14 and 16 of the Constitution of India.
The Hon'ble Supreme court also considered one other aspect that where irregular appointments 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 the orders of the court or of Tribunals and permitted the regularization of service of such employees with the observation that the Union of India or the State Government and their instrumentalities should take steps to regularize, as a one time measure, the service of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts, but not under cover of orders of the courts or of Tribunals and should further ensure that regular appointments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wages are being now employed.
The Hon'ble Supreme Court further observed as under:-
"54. It is also clarified that those decisions which run counter to the principle settled in this decision, or in which directions running counter to what we have held herein, will stand denuded of their status as precedents."
It is not in dispute that the petitioners' services are governed under the U.P. State Warehousing Corporation Staff Regulations. Regulation (3) speaks that they shall apply to all employees of the Corporation and to the personnel employed on contract in respect of all matters not regulated by the contract. The petitioners are working since many years continuously, may be on consolidated wages, but their appointments are not regulated by any contract. Therefore, they are covered under the definition of "employee" as is defined under the regulations. Though it is said that they have been appointed by the Area Managers, but their appointments have been approved by the Board of Directors of the Corporation. The Board of Directors also commended their regularization, therefore, admittedly they are employees of the State Warehousing Corporation, of which the superintendence and management is vested with the Board of Directors.
Section 20 (4) of the Warehousing Corporation Act speaks that the Board of Directors shall act on business principles having regard to public interest and shall be guided by such instructions on questions of policy as may be given to them by the State Government or the Central Warehousing Corporation. Thus the activities of the Board of Directors are based on business principles and on the question of business policy, it is guided by the State Government or the Central Government.
Upon perusal of the aforesaid provisions, it is obvious that the State has been permitted to interfere in the policy matter relating to the business activities of the Corporation, not in the matter of employment. As the Board of Directors under Regulation (4) of the Regulations itself is empowered to determine the strength of staff, both permanent and temporary, under various categories, required for carrying out its functions, it establishes that it is autonomous body to take independent decisions without being guided by the State Government to carry out its functions properly. It is also not in dispute that the Board of Directors several times took decisions to regularize the employees like petitioners and also to increase strength of staff. It could not obtain the approval of the State Government, but it was sent for approval to the State Government, who denied it under the strength of the judgment of the Hon'ble Supreme Court rendered in the case of Uma Devi (Supra). It has also not been denied that 90 per cent permanent staff, who were initially employed on fixed wages, like the petitioners, had been made permanent, which establishes that such practice for regularization is permitted in the department. The Board of Directors is a statutory body, as it is constituted under the Act.
The petitioners have never worked under the cover of court's order. With their efforts the financial status of the Corporation has been upgraded to the extent that only from 2 per cent of total annual profit in one financial year, it can bear the expenses incurred out of giving regular appointment to the petitioners. Out of the total staff of the Corporation only 25% staff is permanent staff, whereas 75% staff are employed on fixed wages.
Since the Corporation has not opted the regularization Rules framed by the State Government, the petitioners being employees of the Corporation, cannot claim benefit of regularization under the Rules framed by the State Government. The directions issued by the Hon'ble Supreme Court in Putti Lal's case (Supra) has also no relevance in light of the observations made in Uma Devi's case (Supra).
The Hon'ble Supreme Court in the case of Uma Devi (Supra), definitely has denied the regularization of the employees, who are daily wages, temporary and on contract basis, but to some extent it permits the regularization of irregular appointments of the employees, who have been working for more than ten years. Under the Regulations no procedure for selection of Group 'D' and Group 'C' posts has been provided, except indicating the appointing authority. Though the appointment is directed to be in consonance of the Constitutional Scheme, as is envisaged under Article 14 and 16 of the Constitution of India, which should be through proper competition, but till the date of judgment of Uma Devi (Supra), there were no such guidelines and that is why the Hon'ble Supreme Court itself permitted the one time regularization of the employees, who worked for ten years. Therefore, I am of the view that once no procedure for appointment was prescribed under the Regulations and the petitioners were appointed by the competent authority, may be on fixed wages, but their appointments cannot be said to be illegal appointments and that being so, that cannot be categorized under the term of "illegal appointment".
Under the Act the Board of Directors is an Autonomous Body to take a decision in respect of appointment matters as well as to increase the strength of staff. It has own financial resources to bear the expenses for the payment of salary to the regular staff against the whole strength. The State Government has a very limited role of interference in functioning of the Board of Directors that too in the business matter, therefore, I am of the view that the State Government has mis-directed itself to interfere in the matter of appointment treating the same as it relates to policy matters.
I am of the considered view that once the Board of Directors took a decision to regularize the petitioners by following the earlier practice prevailing in the department, there was no need to seek approval of Government, even if it sought so, it was only empty formality, the denial of which has no adversial affect upon the decision of the Board. Therefore, I hereby quash the order dated 17th of May, 2009, issued by the State Government as well as the Advertisement No.3 dated 13th of November, 2008 with liberty to the Board of Directors to implement its own decisions for regularization of the petitioners within a reasonable time.
In the aforesaid terms the writ petitions are allowed. No order as to costs.
Order Dated:18th of April, 2011.
Banswar