Delhi High Court
M.S.Patwal vs School Of Planning & Arch. & Anr. on 23 July, 2008
Author: Pradeep Nandrajog
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 305/1996
M.S. PATWAL ..... Petitioner
Through: Mr.B.K.Pal, Adv.
versus
SCHOOL OF PLANNING & ARCH. & ANR. ..... Respondents
Through: Mr.R.K.Singh, Adv. and
Ms.Deepa Rai, Adv. for
respondent No.1.
+ W.P.(C) 310/1996
RAM SINGH BANI ..... Petitioner
Through: Mr.B.K.Pal, Adv.
versus
SCHOOL OF PLANNING & ARCH. & ANR...... Respondents
Through: Mr.R.K.Singh, Adv. and
Ms.Deepa Rai, Adv. for
respondent No.1.
DATE OF DECISION:
% 23.07.2008
CORAM:
Hon'ble Mr.Justice Pradeep Nandrajog
1. Whether reporters of local papers may be allowed
to see the judgment?
2. To be referred to the Reporter or not?
3. Whether judgment should be reported in Digest?
: PRADEEP NANDRAJOG, J. (Oral)
1. Heard learned counsel for the parties. Short issue
arises for consideration in both the writ petitions.
2. On 5.4.1987 petitioner, M.S.Patwal was appointed
under the first respondent on daily wage basis as a peon.
3. Petitioner Ram Singh Bani was appointed under the
WP(C) 305/96 & 310/96 page 1 of 7
first respondent on daily wage basis on 2.5.1986 as a cleaner.
4. A DOPT circular notifying a scheme called 'Casual
Labourers - Grant of Temporary Status and Regularization
1993' was floated. It came into force on 1.9.1993.
5. The scheme, inter alia, directed that employees
working as casual employees relatable to Group-D posts would
be entitled to the benefit under the scheme provided they had
served for at least 240 days as of 1.9.1993.
6. The scheme, inter alia, required a temporary status
to be granted to such employees with further right to be
considered for regular selection.
7. Relevant part of the scheme reads as under:-
"Temporary status
(i) Temporary status would be conferred on all
casual labourers who are in employment on the date
of issue of this O.M. and who have rendered a
continuous service of at least one year, which means
that they must have been engaged for a period of at
least 240 days (206 days in the case of offices
observing 5 days a week).
(ii) Such conferment of temporary status would be
without reference to the creation/availability of
regular Group 'D' posts.
(iii) Conferment of temporary status on a causal
labourer would not involve any change in his duties
and responsibilities. The engagement will be on daily
rates of pay on need basis. He may be deployed
anywhere within the recruitment unit/territorial circle
on the basis of availability of work.
(iv) Such casual labourers who acquire temporary
status will not however, be brought on to the
permanent establishment unless they are selected
through regular selection process for Group 'D' posts."
WP(C) 305/96 & 310/96 page 2 of 7
8. It is not in dispute that the first respondent
proceeded to confer benefit upon the petitioners under the
scheme and accorded temporary status to both and in terms
of the temporary status gave the benefits which had to be
given to the petitioners under the scheme.
9. Subsequently, services of both the petitioners were
taken on permanent basis i.e. as regular employees.
Petitioner M.S.Patwal was taken on the rolls as a permanent
employee on 12.6.1998. Petitioner Ram Singh Bani was
likewise taken on the regular rolls as a permanent employee
on 10.3.1997.
10. The 2 writ petitions which were filed in the year
1996 prayed to this Court that services of the petitioners be
regularized with consequential benefits. The basis of the claim
in the 2 writ petitions is the continued employment of the
petitioners under the first respondent since the year 1986 and
1987 respectively and the Casual Labour Grant of Temporary
Status and Regularization Scheme 1993.
11. As noted above, during the pendency of the 2 writ
petitions the petitioners were granted benefit of temporary
status as per the scheme followed by permanent employment.
12. Thus, the only issue which needs to be decided
today is whether the petitioners would be entitled to the
benefit of past service on being treated as regular employees.
WP(C) 305/96 & 310/96 page 3 of 7
13. I need not discuss much on the issue for the reason
the scheme in question itself provides for the consequential
benefits, in that, vide para 5 v of the scheme it records that
when temporary status is accorded to a casual employee and
he is subsequently regularized, 50% of the service rendered
under the temporary status would be accounted for the
purposes of retirement benefits. Sub-para vi of para 5 records
that after rendering 3 years continuous service after
confirmation of temporary status, the casual labourers would
be treated at par with group-D employees for the purposes of
contribution to the general provident fund and would be
entitled to festival allowance etc. Paras 5 v and 5 vi of the
scheme read as under:-
"5. Temporary status would entitle the casual
labourers the following benefits:-
(i) ..........
(ii) ..........
(iii) ..........
(iv) ..........
(v) 50% of the service rendered under Temporary
Status would be counted for the purpose of retirement
benefits after their regularization.
(vi) After rendering three years' continuous service
after conferment of temporary status, the casual
labourers would be treated on par with temporary
Group D employees for the purpose of contribution to
the General Provident Fund, and would also further be
eligible for the grant of Festival Advance/Flood
Advance on the same conditions as are applicable to
temporary Group D employees, provided they furnish
WP(C) 305/96 & 310/96 page 4 of 7
two sureties from permanent Govt. servants of their
Department."
14. Thus, the petitioners would be entitled to
consequential benefits as above on acquiring temporary status
under the scheme in question.
15. Needless to state, on being permanently absorbed
the benefit of the temporary service has to be continued for
the reason the scheme in question states that 50% of service
rendered under temporary service has to be reckoned for the
purposes of retirement benefits.
16. The petitioners would thus not be entitled to
benefits with effect from the date they joined service as casual
labourers under the first respondent. Petitioners would
certainly be entitled to the benefits which flow to them under
the Casual Labourers Grant of Temporary Status and
Regularization Scheme 1993.
17. Learned counsel for the petitioner cites a decision
of the Division Bench of the Punjab & Haryana High Court
reported as 2003 (4) SLR 771 Maninder Kaur & Ors. vs. State
of Punjab.
18. I am afraid, said decision does not help the
petitioner for the reason the decision has followed the principle
of equal pay for equal work. The said decision is based on the
fact that petitioners who had performed varying works for
periods ranging from 7 years to 16 years were entitled to have
WP(C) 305/96 & 310/96 page 5 of 7
their services regularized.
19. It be noted that prior to the year 2006 there was a
divergence of judicial opinion on claims of regularizations.
Certain decisions had taken the view that the state was
expected to be a modern employer and could not indulge in
unfair labour practices by engaging, for long period of time,
casual workmen when admittedly job requirement was
perennial in nature. The other view taken in certain decisions
was that creation of a post is in the domain of the executive
and that no mandamus would be issued by any Court to create
a post and regularize existing casual worker against the said
post.
20. All these decisions were re-visited by the
Constitutional Bench of the Supreme Court in the decision
reported as 2006 (4) SCC 1 Secretary, State of Karnataka &
Ors. vs. Umadevi & Ors.
21. The final view which emerged was that the Courts
cannot direct regularization in that cannot direct creation of
posts and permanent absorption of daily wage employees.
22. All earlier decisions of the Hon'ble Supreme Court
and various High Courts were considered by the Constitutional
Bench.
23. I note that the Division Bench of the Punjab &
Haryana High Court has relied upon various decisions of the
Hon'ble Supreme Court which had taken the view that when
WP(C) 305/96 & 310/96 page 6 of 7
people have rendered continuous employment on daily wage
basis they would be entitled to regularization.
24. Thus, the Division Bench judgment of the Punjab &
Haryana High Court relied upon by learned counsel for the
petitioner will not apply. The view taken therein stands
overruled by the view taken by the Hon'ble Supreme Court in
Umadevi's case (supra).
25. I therefore dispose of the petitions noting that
during the pendency of the petitions the petitioners acquired
status of temporary employees followed by the petitioners
being regularized i.e. taken as permanent employees.
26. I note that the Temporary Status Scheme itself
mandates that as and when permanent vacancy arose the
process of selection has to be followed to fill up the vacant
post. I note that the petitioners undertook the process of
regular selection and on being selected were granted
permanent employment. I thus declare that for the purposes
of consequential benefits the respondent would give the
benefit of the Temporary Status Regularization Scheme which I
note grants certain consequential benefits to casual labourers
granted temporary status followed by regular service.
27. No costs.
PRADEEP NANDRAJOG, J.
JULY 23, 2008
dk
WP(C) 305/96 & 310/96 page 7 of 7
