Raj Kishore Singh, S/O Sh. ... vs The Central Civil Services Board ...
2006 Latest Caselaw 1410 Del

JUDGMENT

J.M. Malik, J.

1. All the 9 petitioners are Gardners under the respondent. They were appointed on 5.6.1986, 21.8.1985, 1.10.1988, 7.2.1990, 5.12.1986, 1.4.1989, 12.8.1986, 2.2.1978 and 10.11.1989 respectively, as per the above said title. The main grouse of the petitioners is that they have not been regularised, a regular pay scale is not given to them and they are being given a lump sum payment. The petitioners are working with the respondent regularly and there has been no break till the filing of the writ petition. The salary paid to the petitioners includes medical facility and expenses towards soap etc. The petitioners are granted 12 casual leaves annually, and three gazetted holidays on 26th January, 15th August and 2nd October. They are entitled to bonus and gratuity on retirement or whenever they leave the service of the respondent after a period of ten years or so. They are paying provident fund @ 8%. As the petitioners are not regular employees, therefore, they cannot apply for the allotment of quarters and other benefits. No house rent allowance is payable to them. The petitioners approached the respondent authorities a number of times to give them regular pay scale and all the incidents of regular service but the representations and requests made by them fell on deaf ears. The authorities of the respondent have clearly discriminated by granting a regular pay scale to another daily wager Ms. Renu, who is working as L.D.C. Under these circumstances, the present writ of mandamus was filed on 20.02.1996, with the prayer that respondent be directed to give the arrears of regular pay scale to the petitioners from the date, they had completed 240 days of service, or from any other later date when the petitioners are considered / held entitled for the said regular benefits. It was further prayed that the respondent be further directed to pay equal pay for equal work and all other benefits and allowances to the petitioners to which they are entitled and let the respondent not to discontinue their service.

2. The main objection raised by the respondent is that the Central Civil Services Cultural & Sports Board is a Society set up under the Registration of Societies Act, 1860. This is an agency created for promotion of cultural and sports activities amongst the civil servants. The Board is not performing any statutory functions. The Board is totally dependent upon the financial help in the form of 'grant-in-aid' received from the Government of India. The Board prepares a budget estimate to seek a grant for the Government of India. The aforesaid estimate, inter alia contains details relating to the staff working with it and/or proposed to be employed by the Board, as well as the likely expenditure to be incurred upon the payment of salaries and other benefits to such staff or employees. It is open to the Government of India to accept the proposals sent by the Board or reject and/or modify the said proposals while making a sanction of the 'grant-in-aid'. The Board has to apportion its finances between salaries and expenditure relating to the promotion of sports. Had the Board granted the pay-scale to its employees, as had been sought in the present writ petition, in such an event hardly any funds would have been left with the Board to meet the aims and objectives for which the Board was set up. The Board was also faced with an option of further reducing the lump-sum payment being made to its employees considering the reduced 'grant-in-aid' made available to it. Moreover, the Board is not a Government department. The petitioners cannot, ipso fact, claim as a matter of right the same service conditions as are granted by the Government of India to its employees. It is stated that in the event of the 'grant-in-aid' being stopped by the Government of India to the Board, the Board would be left with no option but to abolish the posts and/or dispense with the services of its employees. However, as long as the Board continues to receive 'grant-in-aid' on a year to year basis, from the Government of India commensurate with the sanction strength and the payments being made by the Board to its employees, it is not the intent of the Board to terminate the services of its employees. It is stated that respondent no. 1 is not a state. Respondent is not a Government department and the service conditions basically etc. of its employees are not as per Government scales but as decided by the Board.

3. I have heard the counsel for the parties. The learned Counsel for the respondent submitted that the respondent is not a State within the meaning of Article 12 of the Constitution. She pointed out that it does not have funds, the Board is being run on the grant paid by the President of India. She further pointed out that in case the said 'grant-in-aid' is stopped for any reason who will be responsible for its employees.

4. On the other hand, the learned Counsel for the petitioners pointed out that respondent is a Board floated by Government of India and at least the government can keep the employment of the petitioner till it is getting the grant in aid. The attention of the court was drawn towards Annexure R1, which is a circular issued by Secretary S.Gopal, Central Civil Services Sports Board. At its head it reads:

F.No. : 20/19/85-CCSSB

Govt. of India,

Ministry of Personnel, Public Grievances and Pension,

Central Civil Services Sports Board

New Delhi

Dt. 28 June, 1986

learned Counsel for the petitioners pointed out that the circular mentions the terms and conditions of Board employees which came into effect from 1st April, 1986. Again annexure R-2 is the Constitution of the Central Civil Services Sports Board. Annexure R-2 mentions:

The Board shall be registered under the Societies Act with its headquarters in the Department of Personnel and Administrative Reforms.

Constitution of the Board

The Board shall be composed of the following:

 President         -  Secretary, Department of Personnel.
7 Members         -  All officers of the rank of Secretary, Additional
Secretary, Joint Secretary and Deputy Secretary to the Government of
India to be nominated by the Department of Personnel.

Chief Welfare Officer.

Director, Finance, Department of Personnel.

Secretary         -  An officer of the rank of Under Secretary to be
appointed by Department of Personnel.

Assistant
Secretary         -  An officer of the rank of Section Officer to be
appointed by the Department of Personnel.
 

5. To my mind, it stands proved that respondent no. 1 is a state. The above said documentary evidence goes to prove it. This view further stands emboldened by an authority reported in Grih Kalyan Kendra Workers' Union, Petitioner v. Union of India and Ors. , wherein it was held:

learned Counsel for the petitioner contended that though the Grih Kalyan Kendras are managed by the Board as contemplated by the Rules of the Registered Societies, the Union of India have the pervasive control over its functions, it is an instrumentality and agency of the Union government and therefore it is a State within the meaning of article 12 of the Constitution. He palced reliance on decisions of this Court in Ramana Dayaram Shetty v. International Airport Authority of India ; P.K. Ramachandra Iyer v. Union of India ; B.S. Mihas v. IndianStatistical Institute ; Bihar State Harijan Kalyan Parishad v. Union of India ; Surya Narain Yadav v. Bihar State Electricity Board . We do not think it necessary to consider this question in detail as in our opinion given on an assumption that the Grih Kalyan Kendra is an instrumentality of a State within the meaning of Article 12 of the Constitution and the petitioners are entitled to enforce their fundamental rights against it, it is difficult to uphold this contention that the respondents have violated any of the fundamental rights of the petitioners. We accordingly proceed on the assumption that the Grih Kalyan Kendra is a State for the purposes of Chapter IV of the Constitution and consequently this petition under Article 32 of the Constitution is maintainable and the petitioners are entitled to invoke the jurisdiction of this Court for the enforcement of their fundamental right founded on the principle of equal pay for equal work.

6. The counsel for the parties locked horns over the question whether the celebrated Constitution Bench authority reported in Secretary, State of Karnataka v. Umadevi, 2006(4) SCALE 197 applies to this case? The learned Counsel for the petitioners has drawn my attention to Section 44 of the judgment, which is reproduced as follows:

44. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. NARAYANAPPA (supra), R.N. NANJUNDAPPA (supra), and B.N. NAGARAJAN (supra), and referrred to in paragraph 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees more but without the intervention of orders of courts or of tribunals. The question of regularization of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularize as a one time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that required to be filled up, in cases where temporary employees or daily wagers are being now employed. the process must be set in motion within six months from this date. We also clarify that regularization, if any already made, but not subjudice, need not be reopened based on this judgment, but there should be no further by-passing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme.

7. The instant writ petition depicts that it was filed as back as on 22nd February, 1996. The learned Counsel for the petitioners argued that since no stay was granted by the court, therefore, petitioners no. 1, 3, 4, 5, 6, 7 & 9 would be deemed to have worked for ten years despite the fact that they had filed the writ.

8. I clap no importance to these submissions because those petitioners came within the umbrella of the High Court since 22nd February, 1996. It is, therefore, made clear that all the other petitioners except petitioner no. 2 are not entitled to the benefit detailed in para 44 of the above said judgment. Order sheet dated 7.3.96 clearly goes to show that petitioner no. 8 had ceased to be in service early in January 1996. As he is not in service therefore he is not entitled to any relief. The relevant extracts from orders dated 22.2.96 and 7.3.96 read:

22.2.1996 Counsel for the petitioner states that the facts of this case are identical as those of C.W. No. 352 of 1996 wherein Rule has already been issued. In that view, Rule Nisi is issued.

7.3.1996

Mr. Bhushan states that till the next date the services of none of the petitioners who are at present in the employment will be terminated. He further states that petitioner no. 8 had ceased to be in service in early January prior to the filing of this writ petition.

It clearly means that the above said order was passed due to intervention of the court.

9. In view of the above said Apex Court authority the respondent is hereby directed to take steps to regularise the service of petitioner no. 2 as per above said Supreme Court authority. The needful be done within six months.

10. The learned Counsel for the petitioner strenuously argued that all the petitioners should get equal pay for equal work as per law laid down in Grih Kalyan Kendra Workers' Union, Petitioner v. Union of India and Ors. Supra and Dr. Ms. O.Z. Hussain, Petitioner v. Union of India and Ors. .

11. I find that this argument is not tenable. In para 46 of the above said Constitution Bench authority it was held:

In cases relating to service in the commercial taxes department, the High Court has directed that those engaged on daily wages, be paid wages equal to the salary and allowances that are being paid to the regular employees of their cadre in government service, with effect from the dates from which they were respectively appointed. The objection taken was to the direction for payment from the dates of engagement. We find that the High Court had clearly gone wrong in directing that these employees be paid salary equal to the salary and allowances that are being paid to the regular employees of their cadre in government service, with effect from the dates from which they were respectively engaged or appointed. It was not open to the High Court to impose such an obligation on the State when the very question before the High Court in the case was whether these employees were entitled to have equal pay for equal work so called and were entitled to any other benefit. They had also been engaged in the teeth of directions not to do so. We are, therefore, of the view that, at best, the Division Bench of the High Court should have directed that wages equal to the salary that are being paid to regular employees be paid to these daily wage employees with effect from the date of its judgment. Hence, that part of the direction of the Division Bench is modified and it is directed that these daily wage earners be paid wages equal to the salary at the lowest grade of employees of their cadre in the Commercial Taxes Department in government service, from the date of the judgment of the Division Bench of the High Court. Since, they are only daily wage earners, there would be no question of other allowances being paid to them. In view of our conclusion, that Courts are not expected to issue directions for making such persons permanent in service, we set aside that part of the direction of the High Court directing the Government to consider their cases for regularization.

12. In the light of the above discussion, the petition filed by the petitioner no. 2 succeeds. The needful be done with a period of six months. However, the petition filed by the remaining petitioners has no merit and stands dismissed. No costs.