Delhi Jal Board vs Workman Of The Erstwhile Delhi ...
2006 Latest Caselaw 229 Del

JUDGMENT

Markandeya Katju, C.J.

1. This Writ Appeal has been filed against the impugned judgment of the learned Single Judge dated 21.8.2002 by which the writ petition was dismissed.

2. Heard learned counsel for the parties and perused the record.

3. The writ petitioner, the Delhi Jal Board had filed the writ petition praying for quashing of the award of the Industrial Tribunal dated 27.11.1999. By that award the Tribunal directed regularisation of the concerned workmen i.e. Sh. Mahabir Singh, Sh. Amarjit Singh, Sh. Ganga Shahi, Sh. Panna Lal, Sh. Abdul Wahid and Sh. Jitender Singh as Pump Operators in the regular pay-scale and allowances. The management was directed to determine the date of the regularisation and make payment of arrears of salary and allowances with other benefits.

4. The writ petitioner, the Delhi Jal Board was constituted under the provisions of the Delhi Water Board Act, 1998 and was statutorily vested with the powers and functions in relation to water and sewerage. Prior to its constitution these functions were being undertaken and performed by the Delhi Water Supply and Sewage Disposal Undertaking, a department under the Delhi Municipal Corporation Act, 1957. However, after the enactment of the Delhi Water Board Act, 1998 the functions of the entire staff of the erstwhile Delhi Water Supply and Sewage Disposal Undertaking was vested with the petitioner, the Delhi Jal Board.

5. The claim of the workmen before the Industrial Tribunal was that they had joined the employment of the Delhi Development Authority as Daily Wage Pump Operators on Muster Rolls on different dates. In 1983-84 as per the case of the workmen their services were transferred to the Management of Delhi Water Supply and Sewage Disposal Undertaking w.e.f 10.6.1984 as Pump Operators under the JJ Scheme, Madangir. Alleging that they were doing work of a permanent and regular nature, the workmen had claimed regularisation with retrospective effect from the date of joining the employment of the management in the graded pay scales with all benefits. They contended that they acquired the status of permanent employment with effect from their joining the employment on completion of 90 days of continuous service.

6. The predecessor-in-interest of the petitioner i.e., Delhi Water Supply and Sewage Disposal Undertaking contested the claim of the respondents before the Tribunal and filed a written statement. It was stated in the written statement that the services of these workmen were transferred by the Delhi Development Authority Along with transfer of some colonies from the DDA to the Municipal Corporation of Delhi on 'as is where is' basis and as such they could not be entitled to appointment other than as Daily Wagers. It was alleged that the workmen were not entitled for regularisation on the post of Pump Operators since the Pump Operators can only be selected under the recruitment rules which had not been followed in the case of these workmen.

7. A reference was made to the Industrial Tribunal under the Industrial Disputes Act as to whether the aforesaid workmen were entitled to be regularised on the post of Pump Operators from the date of their initial date of appointment and what relief they were entitled to. The claim/WS and rejoinder before the Tribunal are annexure I to III to the writ petition.

8. The Tribunal by its award dated 23.11.1999 directed that Sh. Mahabir Singh, Sh. Ganga Shahi and Sh. Abdul Wahid be regularised as Pump Operators in the regular pay-scale and allowances and be granted arrears of salary and allowances. True copy of the award is annexure VI to the writ petition.

9. It is alleged in para 11 of the writ petition that Sh. Amarjit Singh, Sh. Panna Lal, Sh. Abdul Wahid and Sh. Jitender Singh were regularised on the post of Beldars on their own request. The offer for regularisation on the post of Beldar to these workmen was given by the Management, which was unconditionally and voluntarily accepted by them. This offer was in line with policy for regularisation of Muster Roll workers as beldars being followed uniformally by the Management. It is alleged that this aspect of the matter was totally ignored by the Tribunal.

10. Apart from that, it is alleged in para 12 of the writ petition that the post of Pump Operators is a technical post requiring certification from prescribed institutions. The appointment on promotion to these posts has to be in pursuance of a Departmental Promotion Committee prescribed by the Recruitment Rules. Copy of the recruitment rules are annexure VII to the writ petition. These require trade test for the eligible candidates having necessary qualification.

11. It is alleged that the workmen concerned were engaged only on daily wage basis which they accepted with full knowledge and without any objection. Their services were transferred from the DDA to the erstwhile Delhi Water Supply and Sewage Disposal Undertaking on this basis alone without any objection.

12. Apart from that, in terms of the policy of regularisation out of six workmen concerned, four workmen were offered the post of Beldars against their request as per the policy which they accepted unconditionally and without any objection.

13. It is alleged that the Tribunal has overlooked the fact that as regards the category of posts of Pump Drivers, Assistant Pump Drivers, etc., i.e. on the electrical side, it is necessary to have a license under the Indian Electricity Rules (Grade-I or Grade-II). As such the direction for regularisation of daily wage workers on these posts is contrary to law and in violation of the Rules and policy framed by the petitioners.

14. It is also alleged by the petitioner that the Tribunal erred in directing that the daily wagers were entitled to be paid the same salaries and allowances as are admissible to the regular workmen. The daily wagers were employed de hors the recruitment rules based on the requirement at a particular point of time. They joined service and accepted the offer knowingly without any objection. Mere engagement on daily wages over a period of time would not by itself entitle employees to regularlisation in the post vide State of Haryana v. Jasmer Singh and State of Haryana v. Surinder Kumar and Ors. . It was held in the aforesaid decisions that a daily wager cannot equate himself with regular workmen nor can he claim minimum of the regular pay scale of regularly employed employees.

15. It is stated by learned counsel for the appellant that the Supreme Court has held that there can be no regularisation without compliance of the eligibility conditions vide Dr. M.A. Haque and Ors. v. Union of India and Ors. , Khagesh Kumar and Ors. v. IG of Registration and Ors. , State of H.P v. Suresh Kumar Verma and Anr. and Hindustan Shipyard and Ors. v. Dr. P.Sambhasiva Rao etc. Hence the impugned award of the proceedings is liable to be quashed.

16. Learned counsel for the respondent,however, relied on the decision of the Supreme Court in Bhagwati Prasad v. Delhi State Mineral Development Corporation of which it has been observed:-

Once the appointments were made as daily rated workers and they were allowed to work for a considerable length of time, it would be hard and harsh to deny them the confirmation in the respective posts on the ground that they lack the prescribed educational qualifications. In our view, three years' experience, ignoring artificial break in service for short period/periods created by the respondent in the circumstances, would be sufficient for confirmation.

17. In our opinion, this appeal deserves to be allowed.

18. It is well settled that there is no right vested in any daily wager to seek regularization. Regularization can only be done in accordance with the rules and not de hors the rules. In the case of E. Ramakrishnan and Ors. v. State of Kerala and Ors. the Supreme Court held that there can be no regularization de hors the rules. The same view was taken in Dr. Kishore v. State of Maharashtra Union of India and Ors. v. Bishamber Dutt . The direction issued by the services tribunal for regularizing the services of persons who had not been appointed on a regular basis in accordance with the rules was set aside although the petitioner had been working regularly for a long time.

19. In Dr. Surinder Singh Jamwal and Anr. v. State of Jammu and Kashmir and Ors. it was held that ad-hoc appointment does not give any right for regularization as regularization is governed by the statutory rules.

20. In Ashwani Kumar and Ors. etc. v. State of Bihar and Ors. etc. the appointment made without following the appropriate procedures under the rules/Government circulars and without advertisement or inviting application from the open market was held to be in flagrant breach of Articles 14 and 16 of the Constitution.

21. Creation and abolition of posts, appointments, fixation of pay scales,regularization etc. are a purely executive function vide P.U. Joshi v. Accountant General, Ahmedabad and Ors. . Hence this court cannot issue orders for regularization. Also we cannot issue any direction that a post be created to absorb the petitioner. These are all executive, not judicial functions. There is broad separation of powers under our Constitution, and it is not proper for one organ of the State to encroach into the domain of another organ.

22. We cannot also issue any direction to regularize the petitioners. As already stated above, a regular appointment has to be done in accordance with the relevant rules. We also cannot direct that the petitioner be paid the salary of a regular employee since that can only be done by the concerned authorities, and that too, in accordance with the rules and not de hors the rules.

23. The petitioner/appellant has not been able to point out any statutory rule on the basis of which his claim of regularization can be considered. It is well settled that unless there exists some rule for regularization no direction can be issued by this court to consider the claim for regularization of an employee. Regularisation of an employee is an executive function, and it is not appropriate for this court to encroach into the functions of another organ of the State. The courts must exercise judicial restraint in this connection.

24. In Asif Hameed v. State of Jammu and Kashmir , the Supreme Court observed:

Before adverting to the controversy directly involved in these appeals we may have a fresh look on the inter se functioning of the three organs of democracy under our Constitution. Although the doctrine of separation of powers has not been recognized under the Constitution in its absolute rigidity but the constitution makers have meticulously defined the functions of various organs of the State. Legislature, executive and judiciary have to function within their own spheres demarcated under the Constitution. No organ can usurp the functions assigned to another. The Constitution trusts to the judgment of these organs to function and exercise their discretion by strictly following the procedure prescribed therein. The functioning of democracy depends upon the strength and independence of each of its organs. The Legislature and executive, the two facets of people's will, have all the powers including that of finance. The Judiciary has no power over the sword or the purse, nonetheless it has power to ensure that the aforesaid two main organs of the State function within the constitutional limits. It is the sentinel of democracy. Judicial review is a powerful weapon to restrain unconstitutional exercise of power by the legislature and executive. The expanding horizon of judicial review has taken in its fold the concept of social and economic justice. While exercise of powers by the legislature and executive is subject to judicial restraint, the only check on our own exercise of power is the self imposed discipline of judicial restraint.

19.When the State action is challenged, the function of the court is to examine the action in accordance with law and to determine whether the legislature or the executive has acted within the powers and functions assigned under the constitution and if not, the court must strike down the action. While doing so the court must remain within its self imposed limits. The court sits in judgment on the action of a coordinate branch of the Government. While exercising power of judicial review of administrative action, the court is not an appellate authority. The constitution does not permit the court to direct or advise the executive in matters of policy or to sermonize qua any matter which under the constitution lies within the sphere of the legislature or executive, provided these authorities do not transgress their constitutional limits or statutory powers.

25. The Courts must, therefore, exercise judicial restraint, and not encroach into the executive or legislative domain. Orders for creation of posts, appointment on these posts, regularization, fixing pay scales etc. are all executive or legislative functions, and it is ordinarily improper for Judges to step into this sphere, except in a rare and exceptional case. The relevant case law and philosophy of judicial restraint has been laid down by the Madras High Court in Rama Muthuramalingam v. Dy. S.P, , and we agree with the views expressed therein.

26. No doubt in some decisions the Supreme Court has directed regularization of temporary or ad hoc employees, e.g. Hindustan Machine Tools v. M. Rangareddy , Karnataka State Private College Stop Gap Lectures Association v. State of Karnataka , Raj Narain Prasad v. State of U.P. , Chief Conservator of Forest v. J.M.Kondhare , State of Haryana v. Piara Singh , Jacob M. Puthuparambil v. Kerala Water Authority (1991) 1 SCC 574 Bhagwati Prasad v. Delhi State Mineral Development Corporation , Daily Rated Casual Labour Employees v. Union of India , Dharwad Distt. PWD Literate Daily Wage Employees Association v. State of Karnataka . However, it is well settled that a mere direction of the Supreme Court without laying down any principle of law is not a precedent. It is only where the Supreme Court lays down a principle of law that it will amount to a precedent. Often the Supreme Court issues directions without laying down any principle of law, in which case, it is not a precedent. For instance, the Supreme Court often directs appointment of someone or regularization of a temporary employee or payment of salary, or creation of a post etc. without laying down any principle of law. This is often done on humanitarian considerations, but this will not operate as a precedent binding on the High Court. For instance if the Supreme Court directs regularization of service of a temporary employee who had put in 3 years' service, this does not mean that all temporary employees who have put in 3 years' service must be regularised. Hence such a direction is not a precedent. In Municipal Committee, Amritsar v. Hazara Singh , the Supreme Court observed that only a statement of law in a decision is binding. In State of Punjab v. Baldev Singh , the Supreme Court observed that everything in a decision is not a precedent. In Delhi Administration v. Manoharlal , the Supreme Court observed that a mere direction without laying down any principle of law is not a precedent.

In Divisional Controller, KSRTC v. Mahadeva Shetty , the Supreme Court observed as follows:

...The decision ordinarily is a decision on the case before the Court, while the principle underlying the decision would be binding as a precedent in a case which comes up for decision subsequently....The scope and authority of a precedent should never be expanded unnecessarily beyond the needs of a given situation. The only thing binding as an authority upon a subsequent Judge is the principle upon which the case was decided....

27. In J and K Public Service Commission v. Dr. Narinder Mohan , the Supreme Court held that the directions issued by the court from time to time for regularization of ad hoc appointments are not a ratio of this decision, rather the aforesaid directions were to be treated under Article 142 of the Constitution of India. The Supreme Court ultimately held that the High Court was not right in placing reliance on the judgment as a ratio to give the direction to the Public Service Commission to consider the cases of the respondents for regularization. In that decision the Supreme Court observed:

11. This Court in Dr. A.K. Jain v. Union of India , gave directions under Article 142 to regularise the services of the ad hoc doctors appointed on or before October 1, 1984. It is a direction under Article 142 on the particular facts and circumstances therein. Therefore, the High Court is not right in placing reliance on the judgment as a ratio to give the direction to the PSC to consider the cases of the respondents. Article 142 power is confided only to this Court. The ratio in Dr. P.C.C. Rawani v. Union of India , is also not an authority under Article 141. Therein the orders issued by this Court under Article 32 of the Constitution to regularise the ad hoc appointments had become final. When contempt petition was filed for non- implementation, the Union had come forward with an application expressing its difficulty to give effect to the orders of this Court. In that behalf, while appreciating the difficulties expressed by the Union in implementation, this Court gave further direction to implement the order issued under Article 32 of the Constitution. Therefore, it is more in the nature of an execution and not a ratio under Article 141. In Union of India v. Gian Prakash Singh this Court by a Bench of three Judges considered the effect of the order in A.K. Jain's case and held that the doctors appointed on ad hoc basis and taken charge after October 1, 1984 have no automatic right for confirmation and they have to take their chance by appearing before the PSC for recruitment. In H.C. Puttaswamy v. Hon'ble Chief Justice of Karnataka , this Court while holding that the appointment to the post of clerk etc. in the subordinate courts in Karnataka State without consultation of the PSC are not valid appointments, exercising the power under Article 142, directed that their appointments as a regular, on humanitarian grounds, since they have put in more than 10 years service. It is to be noted that the recruitment was only for clerical grade (Class-III post) and it is not a ratio under Article 141. In State of Haryana v. Piara Singh , this Court noted that the normal rule is recruitment through the prescribed agency but due to administrative exigencies, an ad hoc or temporary appointment may be made. In such a situation, this Court held that efforts should always be made to replace such ad hoc or temporary employees by regularly selected employees, as early as possible. Therefore, this Court did not appear to have intended to lay down as a general rule that in every category of ad hoc appointment, if the ad hoc appointee continued for long period, the rules of recruitment should be relaxed and the appointment by regularisation be made. Thus considered, we have no hesitation to hold that the direction of the Division Bench is clearly illegal and the learned single Judge is right in directing the State Government to notify the vacancies to the PSC and the PSC should advertise and make recruitment of the candidates in accordance with the rules.

28. In view of the above observations of the Supreme Court it has to be held that the rules of recruitment cannot be relaxed and the court cannot direct regularization of temporary or ad hoc appointees de hors the rules. The same view has been taken by two recent Division Bench decision of the Court in Ravinder Kumar v. Director, AIIMS LPA 2566/2005 decided on 7th December 2005 and in Delhi Tapedic Unmulan Samiti v. Babita Rani LPA No. 2554/2005 decided on 16.1.2006.

29. It is well settled that regularization cannot be a mode of appointment vide Manager, RBI, Bangalore v. S Mani and Ors. .

30. In the aforesaid decision the Supreme Court referred to its own earlier decision in A Umarani v. Registrar, Cooperative Societies and Ors. AIR 2004 SC 4504 wherein it was observed: ``Regularisation, in our considered opinion, is not and cannot be a mode of recruitment by any ``State'` within the meaning of Article 12 of the Constitution of India or any body or authority governed by a Statutory Act or the Rules framed there under. It is also now well-settled that an appointment made in violation of the mandatory provisions of the Statute and in particular ignoring the minimum educational qualification and other essential qualifications would be wholly illegal. Such illegality cannot be cured by taking recourse to regularisation. (See State of H.P. v. Suresh Kumar Verma and Anr. .'` The Supreme Court in R.N. Nanjundappa v. T. Thimmiah held:

If the appointment itself is in infraction of the rules or if it is in violation of the provisions of the Constitution the illegality cannot be regularised. Ratification or regularisation is possible of an act which is within the power and province of the authority but there has been some non- compliance with procedure or manner which does not go to the root of the appointment. Regularisation cannot be said to be a mode of recruitment. To accede to such a proposition would be to introduce a new head of appointment in defiance of the rules or it may have the effect of setting at naught the rules.

14. The decision in the case of R.N. Nanjundappa (supra) has been followed by the Supreme Court in several decisions viz. Ramendra Singh v. Jagdish Prasad 1984 Supp SCC 142; K. Narayanan v. State of Karnataka 1994 Supp (1) SCC 44, and V. Sreenivasa Reddy v. Government of A.P.. 1995 Supp (1) SCC 572. These decisions have also been noticed by the Supreme Court in Sultan Sadik v. Sanay Raj Subba and A. Umarani v. Registrar, Co-operative Societies and Ors. .

31. In Surender Kumar Sharma v. Vikas Adhikari and Anr. , the Supreme Court observed:-

4. Recently dealing with such scheme or project employees in S.M. Nilajkar and Ors. v. Telecom, District Manager, Karnataka, this Court observed. It is common knowledge that the Government as a welfare State floats several schemes and projects generating employment opportunities, though they are short-lived. The objective is to meet the need of the moment. The benefit of such schemes and projects is that for the duration they exist, they provide employment and livelihood to such persons as would not have been able to secure the same but for such schemes or projects. If the workmen employed for fulfillling the need of such passing-phase-projects or schemes were to become a liability on the employer-State by too liberally interpreting the labour laws in favor of the workmen, then the same may well act as a disincentive to the State for floating such schemes and the State may opt to keep away from initiating such schemes and projects even in times of dire need, because it may feel that by opening the gates of welfare it would be letting-in-onerous obligations entailed upon it by extended application of the labour laws.

5. A matter as to termination of employment caused by abolition of posts consequent upon the schemes having been abolished for non-availability of funds came up for the consideration of this Court in Rajendra and Ors. v. State of Rajasthan and Ors. It was held that when posts temporarily created for fulfillling the needs of a particular project or scheme limited in its duration come to an end because the need for the project comes to an end either because the need was fulfillled or the project had to be abandoned wholly or partially for want of funds, the employer cannot by a writ of mandamus be directed to continue employing such employees as have been dislodged, because such a direction would amount to requisition for creation of posts though not required by the employer and funding such posts though the employer did not have funds available for the purpose.

6. In Jaipal and Ors. v. State of Haryana, the employees of the project of adult and non-formal education, a temporary project which was time bound to last till 1990, were held not entitled for regularizing of their services.

32. In Dr. (Mrs.) Chanchal Goyal v. State of Rajasthan , the Supreme Court observed:-

As there is no scope of regularization unless appointment was on regular basis. Considerable emphasis has been laid down by the appellant to the position that even for temporary appointment there was a selection. That is really of no consequence.

33.In paragraph 8 of the same judgment, the Supreme Court observed:-

Unless the initial recruitment is regularized through a prescribed agency, there is no scope for a demand for regularization.

34. The Supreme Court observed in the same decision that the principle of legitimate expectation has no application in such a case.

35. In view of the above decisions, we are of the opinion that there is no principle of law that all employes who have put a long period of service must be regularlised.

36. In view of the above, we are of the opinion that the directions given in paragraph 6 of the decision of the Supreme Court in Bhagwati Prasad v. Delhi State Mineral Development Corporation (supra) wherein directions were issued to regularise employees who had put in three years service cannot be treated as a precedent. Such a direction was given on its own peculiar facts and it does not lay down any principle of law that all employees who had put in three years of service should be confirmed.

37. For the reasons given above, this appeal is allowed and the impugned judgment of the learned Single Judge is set aside and the award of the Tribunal is quashed. It is held that Pump Operators can only be appointed on regular basis or promoted in accordance with the rules for that purpose, and not dehors the rules by directions of the Tribunal or of this Court.