Mahipal Singh Bisht And Ors. vs Union Of India (Uoi) And Ors.
2007 Latest Caselaw 1865 Del

JUDGMENT

Hima Kohli, J.

1. With the consent of the parties, this writ petition is being taken up for hearing and final disposal.

2. The petitioners have approached this Court against the respondents with a grievance that their services were terminated verbally and for directions to the respondent No. 2, Indian Institute of Foreign Trade, to take the petitioners back in service as Data Entry Operators and to grant the petitioners temporary status with effect from the date when they were purportedly verbally terminated from service by the respondents.

3. A brief narration of the facts is necessary. The petitioners No. 1 to 4 claim that they were appointed as Data Entry Operators (DEOs) on daily wage basis with the respondent No. 2 on different dates between October, 1999 to December, 1999. The petitioners discharged their duties as DEOs from the date of their respective appointments till 31st August, 2001. However, suddenly thereafter, the petitioners were verbally informed that their services had been terminated w.e.f. 13th August, 2001. Aggrieved by the aforesaid action, the petitioners have filed the present writ petition.

4. Counsel for the petitioners states that as the petitioners were daily wage employees who had worked for more than 206 days in a calendar year under the respondent No. 1, they are entitled to be granted temporary status under the "Casual Labourers (Grant of Temporary Status and Regularization) Scheme of Government of India, 1993 (hereinafter referred to as 'the 1993 scheme'). It was also contended that had the petitioners been accorded temporary status on their completing 240 days of work, they would have been entitled to the benefits under Article 311 of the Constitution of India. Thus, refusal on the part of the respondents to grant temporary status to the petitioners under the 1993 scheme and removing them without any reason was claimed to be illegal and violative of the principles of natural justice. He also placed reliance on the certificates issued by the respondent in favor of the petitioners to show that their performance was outstanding. It was lastly submitted that the petitioners were removed illegally so as to accommodate certain other persons in their place, arrayed as respondents No. 3 to 8 in the writ petition, which action was stated to be in violation of Articles 14 and 16 of the Constitution of India inasmuch as even though the petitioners were daily wage/casual employees not having fixed tenure, they could not be replaced with other casual/daily wage employees and could be removed only if regular employees were appointed against the said posts by the respondents. It is relevant to note that while the petitioners had initially imp leaded the private individuals as respondents No. 3 to 8, a statement was made on behalf of the petitioners for deletion of the names of the said respondents from the array of parties, which was allowed, vide order dated 16.8.2007.

5. Per contra, counsel for the respondent No. 2 denied all the allegations made on behalf of the petitioners and stated that the petitioners were labouring under a wrong impression that they were disengaged as DEOs with a view to substitute certain individuals in their place as DEOs. He said that the correct factual position is that the petitioners were working as DEOs for which only a basic knowledge of computer operation was enough, whereas the new appointments were made by the respondent No. 2 pursuant to an advertisement inserted in the newspapers on 7th August, 2001 inviting application for the posts of typists for the W.T.O. Centre, having requisite educational qualifications of graduation, with good command over English, minimum typing speed @ 40 w.p.m. along with proficiency in Microsoft Word, Excel and Power Point. Thus, it was submitted that while the qualifications for the casual assignment held by the petitioners did not specifically include knowledge of Microsoft Word, Excel and Power Point, the appropriate persons who were selected to the post of typists after a walk in test conducted on 13th August, 2001, were required to perform the job of not only the DEOs but whose job also required specific knowledge of Microsoft Word, Excel, Power Point and its allied functions.

6. It was stated that the petitioners were engaged on daily wage basis to work in the W.T.O. Centre established by the Ministry of Commerce and Industry, the status of the W.T.O. Centre was purely temporary, its continuation depending on an year to year basis, subject to availability of funds from the Ministry and that the respondent No. 2 was only a facilitator in the entire process. In this context, attention of the Court was drawn to the note dated 25th July, 2001 issued by the Ministry of Commerce, wherein it was observed that the work relating to data entry was nearing completion and the services of the 7 DEOs was not required any more. However, the Ministry stated that some computer literate persons having good knowledge of Microsoft Word, Excel and Power Point, etc., were required on daily wage basis to enter and anlayse complicated data and since the W.T.O. Centre is only of temporary nature, the employment of the said persons was advised to be made only on contractual/daily wage basis as done earlier.

7. Counsel for the respondent No. 2 submitted that during the pendency of the present writ petition, out of six private persons whose names have been deleted from the array of parties, one has expired and barring one or two, the services of the rest of the persons have also been disengaged as they were also engaged on contractual basis.

8. Insofar as the plea of the petitioners claiming coverage under the 1993 scheme is concerned, counsel for the respondents stated that the said scheme was not applicable to the petitioners as the petitioners could by no stretch of imagination be termed as "casual labourers" in the employment of the Ministry to claim the benefits offered under the said scheme so as to be treated at par with temporary Group-'D' employees. It was also submitted that there are no regular posts in the respondent No. 2 for DEOs and hence there is no question of regularizing the petitioners on the said post. In this regard, the respondents relied upon the following judgments:

1. Vandana Singh and Anr. v. NDMC ;

2. Dinesh Kumar v. Netaji Subhash Institute of Tec. and Ors. ;

3. Anand Kumar and Ors. v. IIT Delhi and Ors. ; and

4. Vivek Kumar Khandelwal and Ors. v. Govt. of NCT of Delhi and Ors. .

9. Counsel for the respondents further stated that if the petitioners qualified for appointment on the post of typist on contractual basis, as per the advertisement issued by the respondent No. 2 on 7th August, 2001, nothing precluded them from participating in the walk in test held by the respondent.

10. It was urged by the counsel for the respondent that as the petitioners were engaged on daily wage/contractual basis and their continuation was solely dependent upon availability of work, the respondent No. 2 was well within its right to discontinue the services of the petitioners in the absence of work. The petitioners can also not seek any parity with the private parties, namely, the persons who were appointed to the post of typists pursuant to a walk in test held by the respondents in August, 2001, as the said incumbents were admittedly not appointed to the post of DEOs but were engaged as typists with proficiency in Microsoft Word, Excel and Power Point. If the petitioners were of the opinion that they qualified to be appointed as typists for the W.T.O. Centre and receive a better salary of Rs. 3,500/- to Rs. 5,000/- as compared to the salary of Rs. 3,000/- per month that they were receiving in the capacity of DEOs., they could have participated in the walk in test held for the post of typists in August, 2001.

11. In rebuttal, counsel for the petitioners submitted that the judgments relied upon by the respondents were of no benefit to them as the petitioners were neither seeking regularization nor were they seeking equal pay for equal work, but their actual grievance was that the respondent No. 2 could not have replaced one set of casual labour employees with another set of casual labour employees. The plea of the respondent that the petitioners were also at liberty to have participated in the walk in test held by the respondent for the post of typist, was replied to by the counsel for the petitioners by stating that at the relevant time, the petitioners had no reason to believe that they would be disengaged and that while the advertisement was issued on 7.8.2001, the petitioners' services were terminated thereafter and they were verbally informed only on 31st August, 2001, that they had been disengaged.

12. I have heard counsels for the parties and have also perused the documents including the 1993 scheme on which the petitioners have placed reliance. It is not disputed by the petitioners that they were appointed by the respondent No. 2 as DEOs on daily wage basis at an inclusive contractual amount of Rs. 3,000/- per month. Thus, the petitioners were aware of the temporary status of their appointments from day one and hence the question of the respondent No. 2 having terminating the services of the petitioners, as alleged, does not arise. Their status of employment was purely contractual in nature and at the time of joining duties as DEOs, they were well aware of the fact that they could be disengaged at any point of time. The appointment of the petitioners, being on contractual basis, such an engagement could come to an end by efflux of time, or on expiry of the tenure or on completion of the project.

13. The issue regarding appointment of casual/temporary employees and their status was considered by the Supreme Court in the case of Secretary, State of Karnataka and Ors. v. Umadevi (3) and Ors. reported as , whereunder it was held that such employees do not have any right to regularization or permanent public employment and further that an employee cannot be believed to have accepted a temporary, contractual, casual, ad hoc or daily-wage public employment without knowing fully well the nature of the engagement and the consequences flowing from it. In the present case, the petitioners when they were appointed to the post of DEOs on contractual basis, were well aware of the fact that their appointments were purely on daily wage basis, but they still chose to accept the contractual appointment with open eyes. Hence, they cannot claim a better right on a later date. In this regard, reference is made to the following observations made by the Supreme Court in the case of Umadevi (supra):

45. While directing that appointments, temporary or casual, be regularized or made permanent, courts are swayed by the fact that the concerned person has worked for some time and in some cases for a considerable length of time. It is not as if the person who accepts an engagement either temporary or casual in nature, is not aware of the nature of his employment. He accepts the employment with eyes open. It may be true that he is not in a position to bargain - not at arms length - since he might have been searching for some employment so as to eke out his livelihood and accepts whatever he gets. But on that ground alone, it would not be appropriate to jettison the constitutional scheme of appointment and to take the view that a person who has temporarily or casually got employed should be directed to be continued permanently. By doing so, it will be creating another mode of public appointment which is not permissible. If the court were to void a contractual employment of this nature on the ground that the parties were not having equal bargaining power, that too would not enable the court to grant any relief to that employee. A total embargo on such casual or temporary employment is not possible, given the exigencies of administration and if imposed, would only mean that some people who at least get employment temporarily, contractually or casually, would not be getting even that employment when securing of such employment brings at least some succor to them. After all, innumerable citizens of our vast country are in search of employment and one is not compelled to accept a casual or temporary employment if one is not inclined to go in for such an employment. It is in that context that one has to proceed on the basis that the employment was accepted fully knowing the nature of it and the consequences flowing from it. In other words, even while accepting the employment, the person concerned knows the nature of his employment. It is not an appointment to a post in the real sense of the term. The claim acquired by him in the post in which he is temporarily employed or the interest in that post cannot be considered to be of such a magnitude as to enable the giving up of the procedure established, for making regular appointments to available posts in the services of the State. The argument that since one has been working for some time in the post, it will not be just to discontinue him, even though he was aware of the nature of the employment when he first took it up, is not one that would enable the jettisoning of the procedure established by law for public employment and would have to fail when tested on the touchstone of constitutionality and equality of opportunity enshrined in Article 14 of the Constitution of India.

14. Insofar as the plea of the petitioners with regard to grant of temporary status in terms of the 1993 scheme is concerned, a bare perusal of the said scheme makes it evident that the same is applicable only to the "casual labourers" in the employment of the Ministries/Departments of Government of India who were in employment on the date of issue of the said scheme and who had rendered continuous services of at least one year, in other words, it was applicable to those "casual labourers" who had been engaged for a period of at least 240 days. The petitioners who were working as DEOs with the respondent do not qualify as "casual labourers" for seeking the benefit under the 1993 scheme, as the work of DEOs which the petitioners were doing is not of a nature that falls under a Group-'D' post, but the same is a Group - 'C' post.

15. For the petitioners to contend that as fresh posts were available with the respondent No. 2, it was incumbent upon it to examine the bio-datas of the petitioners and see whether they qualified to be appointed to the post of typists, before issuing an advertisement for inviting applications for the said post, is unacceptable. There is force in the argument advanced by the counsel for the respondent that if the petitioners felt that they were qualified to be appointed as typists in the W.T.O. Centre, they could have certainly participated in the walk in test held for the said post in August, 2001, more so when the emoluments offered for the said post were better than those being paid to the petitioners as DEOs. The argument advanced on behalf of the petitioners that the respondent should not have substituted one set of casual employees with another set is devoid of merits as the appointments made by the respondent No. 2 were not to the post of DEOs, in which the petitioners were working, but to that of typists. In any case, as stated by the counsel for the respondent, even the individuals who were appointed as typists have since left the services, barring a couple of them.

16. In view of the aforementioned facts and circumstances and the position of law as discussed above, the writ petition is dismissed being devoid of merits.

17. No orders as to costs.