Union Of India & Ors. vs Kilob Singh & Ors.
2008 Latest Caselaw 1011 Del

                             Unreportable
*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                    WP (C) Nos. 20155-59/2003

                                                Reserved on :May 14, 2008
%                                           Pronounced on : July 11, 2008

Union of India & Ors.                                 . . . Petitioners

                   through :              Mr. R.V. Sinha, Advocate

              VERSUS

Kilob Singh & Ors.                                    . . . Respondents

                   through :              Mr. Kamal Mehta, Advocate


CORAM :-
    THE HON'BLE MR. JUSTICE A.K. SIKRI
    THE HON'BLE MR. JUSTICE J.R. MIDHA

       1.     Whether Reporters of Local newspapers may be allowed
              to see the Judgment?
       2.     To be referred to the Reporter or not?
       3.     Whether the Judgment should be reported in the Digest?


A.K. SIKRI, J.

1. The respondents in this writ petition, which are six in number, had

filed two OAs before the Central Administrative Tribunal. Four of

them joined together in one OA and the other two were the

applicants in the second OA. All the six respondents, who are

working as casual workers on daily wage basis in CPWD, had made

common prayer in the said two OAs, namely, they should be

regularized in service. It was pleaded by them that they have been

working on daily wage basis for number of years and because of

their long service, their claim for regularization was justified. They

also submitted that many such orders for regularization of the

services of similarly situated persons in CPWD, even in respect of

those who were juniors to the respondents herein, had been passed

and on the strength of such orders those persons had been

regularized. They, thus, submitted that non-regularization of the

applicants amounted to invidious discrimination and violative of

Articles 14 and 16 of the Constitution of India.

The aforesaid plea of the respondents herein has been accepted

by the learned Tribunal in its impugned judgment dated 2.11.2004

vide which both the OAs have been allowed, in the following

manner :-

"10. In our considered view, having regularised the juniors when the seniority was the criteria for regularization, the applicants have also right for consideration and existing ban would not come in their way.

11. In the result, both these OAs are allowed. Respondents are directed to device ways and means to regularize the services of the applicants under direct recruitment quota in compliance with the directions dated 20.8.2002 rendered in OA No. 401/2001 and in that event, the applicants shall be entitled to all consequential benefits. We, however, make it clear that till then the status quo as of date regarding their continuance, shall be maintained. There shall be no order as to costs."

Challenging that judgment, the present petition is filed.

2. The circumstances under which the aforesaid order was passed in the

year 2004, having regard to the legal position prevailing on that

date, one may not have interfered with this order. However, during

the pendency of this writ petition, the Supreme Court has made

authoritative pronouncement, settling the controversy relating to

regularization of such casual/daily wage workers, in the case of Secy.,

State of Karnataka & Ors. v. Uma Devi & Ors., (2006) 4 SCC 1. The

law laid down in the said judgment can be stated in the capsulated

form in the following words :-

"Persons who get employed, without the following of a regular procedure or even through the backdoor or on daily wages, have been approaching the courts, seeking directions to make them permanent in their posts and to prevent regular recruitment to the posts concerned. The courts have not always kept the legal aspects in mind and have occasionally even stayed the regular process of employment being set in motion and in some cases even directed that these illegal, irregular or improper entrants be absorbed into service. A class of employment which can only be called "litigious employment", has risen like a phoenix seriously impairing the constitutional scheme. While directing that appointments, temporary or casual, be regularised or made permanent, the courts are swayed by the fact that the person concerned has worked for some time and in some cases for a considerable length of time. Such an argument fails when tested on the touchstone of constitutionality and equality of opportunity enshrined in Article 14 of the Constitution. 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 temporary employees who by the very nature of their appointment, do not acquire any right.

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 open eyes. It may be true that he is not in a position to bargain - not at arm's 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, perpetuate illegalities 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 avoid a contractual employment of the 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 succour 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."

3. It is the constitutional duty of the Government to fill the posts on

regular basis after following the proper selection procedure in

accordance with Rules. However, in spite of the constitutional

scheme for employment, there may be occasion when the sovereign

state or its instrumentality will have to employ persons in posts

which are temporary, on daily wage basis as additional hands or

taking them in without following required procedure to discharge

duties, in respect of posts that are sanctioned and that are to be filled

in terms of the relevant procedure established by the Constitution, or

in temporary posts or projects that are not needed permanently. It is

the right of the Union or the State Government to make such

appointments, engage persons temporarily or on daily wage basis to

meet notice of the daily situation. However, such appointment

would not confer any right on the appointee. Therefore, if it is a

contractual appointment, the appointment comes to an end at the

end of the contract. Likewise, if it is an engagement on daily wage or

casual basis the same would come to an end when it is discontinued.

Similarly, a temporary employee could not claim permanent

employment on the expiry of the term of appointment. A regular

process of recruitment and appointment has to be resorted to, when

regular vacancies in posts at a particular point of time are to be filled

up. The filling up of regular vacancies cannot be done in a haphazard

manner, or based on patronage or other considerations.

4. The Supreme Court thus brushed aside the contention that it should

individualise justice to suit a given situation, in as much as, in the

name of individualising justice, it is not possible for the Courts to shut

its eyes to the constitutional scheme and the right of the numerous

persons as against the few who are before the Court. The Apex Court

was candid in observing that the directions issued by it or the High

Court under Article 226 directing regularization on the basis of so-

called equitable consideration were issued, ignoring the equity for

teeming millions of this country seeking employment and seeking fair

opportunity for competing for employment. Therefore, such

equitable considerations could not be applied in cases of few people

coming to the Court ignoring the same equitable consideration for

vast majority waiting for employment through proper channels. The

Supreme Court categorically held that the constitutional scheme

cannot be by passed purportedly by passing such orders and issuing

directions for regularization.

5. The Apex Court was of the opinion that merely because a temporary

employee or a casual one has continued for some time beyond the

term of his appointment, would not entitle him 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

the due process of selection and as envisaged by the relevant Rules.

The unequivocal message of the judgment is that there would not be

any regularization or appointment on regular basis without following

of a regular procedure and backdoor entries through means of

appointment on daily wage basis or casual basis initially and then

conferring status of regular employee is to be deprecated and such

persons have no legal right to seek an order of permanence.

6. The respondents could not dispute the aforesaid statement of law

laid down in Uma Devi (supra). There is no scope of dispute either

about the law declared vide the said judgment which is binding on

all courts. The Constitution Bench was very specific in stating that the

High Courts acting under Article 226 should not ordinarily issue

directions for absorption or regularization or permanent continuance

unless recruitment itself was made regularly, and in terms of

constitutional scheme.

7. Having regard to the aforesaid position of law contained in the

Constitution Bench judgment of the Apex Court in Uma Devi (supra),

there may not be any difficulty in holding that the directions of the

Tribunal to regularize the respondents herein, if upheld, would go

contrary to the aforesaid dicta.

8. Faced with this legal position, which prevails today, endeavour of

learned counsel for the respondents was to submit that

notwithstanding the aforesaid judgment in Uma Devi (supra), the

directions given by the Tribunal should not be interfered with

because of the reason that persons junior to the respondents had

been regularized. He submitted that it would result in an inequitable

situation where persons junior to the respondents were given the

benefit of regularization and they were working in substantive posts

with the CPWD today and, on the other hand, the respondents are

deprived of this benefit when it became due to them before the

action to regularize a person junior to the respondents was taken.

There can be two answers to this submission: One is found in

the following passage from Uma Devi (supra) :-

"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 requirements 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."

We may also point out that in this case the Supreme Court has

also put a case of caution that even if some casual employees were

regularized earlier (though those orders are not to be interfered

with), that would not mean that these orders are to be extended to

other daily wage employees as well.

Secondly, in view of the dicta laid down in Uma Devi (ibid),

when no such regularizations are permissible and the Supreme Court

has protected the orders passed earlier for such regularizations, it

would not mean that on the basis of those orders passed earlier,

further orders are passed now after the directions in Uma Devi (ibid)

to the contrary. It would amount to perpetuating the application of

wrong principle {See also - ICAR & Anr. v. T.K. Suryanarayan & Ors.,

AIR 1997 SC 1318}.

9. Having said that in view of the aforesaid legal position direction of

the Tribunal to regularize the respondents would not be proper, it

would be of interest to note that the Court in that case was conscious

of those cases where appointment could be irregular and the

incumbents were continuing to work for a long time. Direction was

thus given to the Union as well as State Government and their

instrumentality to take steps to regularize as a onetime measure the

services of such irregularly appointed persons who had worked for 10

years or more in a duly sanctioned post but not under the cover of

the orders of the courts or Tribunals. The exact observations of the

Court in this behalf as contained in para 53 and 54 of the judgment

are as under :-

"53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa, R.N. Nanjundappa and B.N. Nagarjan and referred to in para 15 above, 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 orders of the courts or of tribunals. The questions of regularisation 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 abovereferred 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 regularise 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 the courts or of tribunals and should further posts; that require 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 regularisation, if any already made, but not sub judice, need

not be reopened based on this judgment, but there should be no further bypassing of the constitutional requirement and regularising or making permanent, those not duly appointed as per the constitutional scheme.

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."

Thus, if they satisfy the conditions laid down in para 53 of the

aforesaid judgment in Uma Devi (ibid), they would be entitled to the

benefit of regularization as onetime measure.

10. In view of the above, we modify the order of the Tribunal and direct

that the petitioner shall consider the cases of the respondents herein

with reference to the directions contained in para 53 of Uma Devi

(ibid). If it is found that they fulfil the conditions as stipulated in the

said para, then they will be given the benefit of regularization, as

onetime measure. Cases of the respondents thereof shall be

considered within four months from today and appropriate orders

passed.

11. The writ petition is disposed of in the aforesaid terms. No costs.

(A.K. SIKRI) JUDGE

(J.R. MIDHA) JUDGE July 11, 2008 nsk