The Divisional Engg., B.S.N.L.D vs Ram Kewal & Ors.
2011 Latest Caselaw 2284 Del

$~54.
*     IN THE HIGH COURT OF DELHI AT NEW DELHI


+      WRIT PETITION(CIVIL) NO. 8071/2002

                                 Judgment delivered on : 28th April, 2011

       THE DIVISIONAL ENGG., B.S.N.L.D     ..... Petitioner
                     Through Mr.Chandan Kumar, Advocate.

                       versus

       RAM KEWAL & ORS.                    ..... Respondents

Through Mr. Ravi Chhabra, Advocate for the respondent No. 1.

Mr. Shivram, Advocate for respondent No. 2.

Mr. Sumeet Pushkarna, Advocate for UOI.

CORAM:

HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE SANJIV KHANNA

1. Whether Reporters of local papers 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 ?

SANJIV KHANNA, J.:

Learned counsel for the parties state that efforts to settle

the matter through mediation have failed. We have accordingly

heard learned counsel for the parties on merits.

2. Bharat Sanchar Nigam Limited (the petitioner, for short)

has assailed the order dated 18th October, 2001 passed by the

Central Administrative Tribunal, Principal Bench, New Delhi

(tribunal, for short) allowing the O.A. No. 1470/2000 filed by the

respondent No. 1-Ram Kewal. By the impugned order, it has

been directed as under:

"10. In the result, I find that the applicant who has established his claim of having worked with R-3 in DOT prior to deputation to TCIL the period rendered by him in the TCIL of 240 days in an year upto his deputation i.e., 15.10.99 is eligible to be considered for accord of benefits of circular dated 14.1.88 and further engagement and regularization in accordance with the scheme of DOT of 1989. The present OA is, therefore, disposed of with the following directions:

(i) The respondents are directed to re-

engage the applicant on work and consider him for grant of temporary status in accordance with the Scheme in force;

(ii) The respondents shall also consider their cases for grant of regularization and other benefits at par with the casual mazdoors serving in the DOT, in the light of the circular dated 14.1.88; and

(iii) These directions shall be complied with by the respondents within a period of three months from the date of receipt of a copy of this order. No costs."

3. The aforesaid directions given by the tribunal cannot be

sustained in view of the decision of the Constitution Bench in

Secretary, State of Karnataka and Others versus Uma Devi

and Others, (2006) 4 SCC 1. In the said case, it has been held

as under:

"43. 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. If it is a contractual appointment, the appointment comes to an end at the end of the contract, if it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued. Similarly, a temporary employee could not claim to be made permanent on the expiry of his term of appointment. It has also to be clarified that 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 whose period of employment has come to an end or of ad hoc employees who by the very nature of their appointment, do not acquire any right. The High Courts acting under Article 226 of the Constitution, should not ordinarily issue directions for absorption, regularisation, or permanent continuance unless the recruitment itself was made regularly and in terms of the constitutional scheme. Merely because an employee had continued under cover of an order of the court, which we have described as "litigious employment" in the earlier part of the judgment, he would not be entitled to any right to be absorbed or made permanent in the service. In fact, in such cases, the High Court may not be justified in issuing interim directions, since, after all, if ultimately the employee approaching it is found entitled to relief, it may be possible for it to mould the relief in such a manner that ultimately no prejudice will be caused to him, whereas an interim direction to continue his employment would hold up the regular procedure for selection or impose on the State the burden of paying an employee who is really not required. The courts must be careful in ensuring that they do not interfere unduly with the economic arrangement of its affairs by the State or its instrumentalities or lend themselves the instruments to facilitate the bypassing of the constitutional and statutory mandates.

44. The concept of "equal pay for equal work" is different from the concept of conferring permanency on those who have been appointed on ad hoc basis, temporary basis, or based on no process of selection as envisaged by the rules.

This Court has in various decisions applied the principle of equal pay for equal work and has laid down the parameters for the application of that principle. The decisions are rested on the concept of equality enshrined in our Constitution in the light of the directive principles in that behalf. But the acceptance of that principle cannot lead to a position where the court could direct that appointments made without following the due procedure established by law, be deemed permanent or issue directions to treat them as permanent. Doing so, would be negation of the principle of equality of opportunity. The power to make an order as is necessary for doing complete justice in any cause or matter pending before this Court, would not normally be used for giving the go-by to the procedure established by law in the matter of public employment. Take the situation arising in the cases before us from the State of Karnataka. Therein, after Dharwad decision the Government had issued repeated directions and mandatory orders that no temporary or ad hoc employment or engagement be given. Some of the authorities and departments had ignored those directions or defied those directions and had continued to give employment, specifically interdicted by the orders issued by the executive. Some of the appointing officers have even been punished for their defiance. It would not be just or proper to pass an order in exercise of jurisdiction under Article 226 or 32 of the Constitution or in exercise of power under Article 142 of the Constitution permitting those persons engaged, to be absorbed or to be made permanent, based on their appointments

or engagements. Complete justice would be justice according to law and though it would be open to this Court to mould the relief, this Court would not grant a relief which would amount to perpetuating an illegality.

45. 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. 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 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 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. 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.

46. X X X X

47. When a person enters a temporary employment or gets engagement as a contractual or casual worker and the

engagement is not based on a proper selection as recognised by the relevant rules or procedure, he is aware of the consequences of the appointment being temporary, casual or contractual in nature. Such a person cannot invoke the theory of legitimate expectation for being confirmed in the post when an appointment to the post could be made only by following a proper procedure for selection and in cases concerned, in consultation with the Public Service Commission. Therefore, the theory of legitimate expectation cannot be successfully advanced by temporary, contractual or casual employees. It cannot also be held that the State has held out any promise while engaging these persons either to continue them where they are or to make them permanent. The State cannot constitutionally make such a promise. It is also obvious that the theory cannot be invoked to seek a positive relief of being made permanent in the post.

48. It was then contended that the rights of the employees thus appointed, under Articles 14 and 16 of the Constitution, are violated. It is stated that the State has treated the employees unfairly by employing them on less than minimum wages and extracting work from them for a pretty long period in comparison with those directly recruited who are getting more wages or salaries for doing similar work. The employees before us were engaged on daily wages in the department concerned on a wage that was made known to them. There is no case that the wage agreed upon was not being paid. Those who are working on

daily wages formed a class by themselves, they cannot claim that they are discriminated as against those who have been regularly recruited on the basis of the relevant rules. No right can be founded on an employment on daily wages to claim that such employee should be treated on a par with a regularly recruited candidate, and made permanent in employment, even assuming that the principle could be invoked for claiming equal wages for equal work. There is no fundamental right in those who have been employed on daily wages or temporarily or on contractual basis, to claim that they have a right to be absorbed in service. As has been held by this Court, they cannot be said to be holders of a post, since, a regular appointment could be made only by making appointments consistent with the requirements of Articles 14 and 16 of the Constitution. The right to be treated equally with the other employees employed on daily wages, cannot be extended to a claim for equal treatment with those who were regularly employed. That would be treating unequals as equals. It cannot also be relied on to claim a right to be absorbed in service even though they have never been selected in terms of the relevant recruitment rules. The arguments based on Articles 14 and 16 of the Constitution are therefore overruled.

49. It is contended that the State action in not regularising the employees was not fair within the framework of the rule of law. The rule of law compels the State to make appointments as envisaged by the Constitution and in the manner we have indicated earlier. In most of these cases,

no doubt, the employees had worked for some length of time but this has also been brought about by the pendency of proceedings in tribunals and courts initiated at the instance of the employees. Moreover, accepting an argument of this nature would mean that the State would be permitted to perpetuate an illegality in the matter of public employment and that would be a negation of the constitutional scheme adopted by us, the people of India. It is therefore not possible to accept the argument that there must be a direction to make permanent all the persons employed on daily wages. When the court is approached for relief by way of a writ, the court has necessarily to ask itself whether the person before it had any legal right to be enforced. Considered in the light of the very clear constitutional scheme, it cannot be said that the employees have been able to establish a legal right to be made permanent even though they have never been appointed in terms of the relevant rules or in adherence of Articles 14 and 16 of the Constitution."

4. It is not in dispute that the respondent No. 1 was engaged

as a casual labour in the Department of Telecommunication,

Muzafar Nagar till May, 1988. Thereafter, he did not work for

the petitioner till 30th June, 1991. He was assigned duty at

Dehradun on 30th June, 1991 and then worked with

Telecommunication Consultant India Limited (TCIL) from 15th

July, 1991 till 15th October, 1999, which is a separate company

stated to be a Government of India enterprise. The respondent

No. 1, however, claims that he was sent on deputation to TCIL

and upon repatriation, he was not taken back on duty. TCIL in

their affidavit filed before us has stated that they were deleted

from the array of parties before the tribunal. However, they have

stated that the respondent No. 1 had worked with them from 15th

July, 1991 to 15th October, 1999 and he was sent on deputation.

They have, however, not enclosed any document.

5. The respondent No. 1 has, however, placed on record two

letters dated 15th October, 1999 written by TCIL giving details of

the period during which the respondent No. 1 had worked with

them and it is stated that he was sent on deputation and is being

repatriated. However, no letter or communication from the

Department of Telecommunication is enclosed.

6. It is not the case of the respondent No. 1 that he was

appointed on regular basis after following due process of

selection and in accordance with the recruitment rules. It is not

possible to accept the contention of the respondent No. 1 that a

casual employee would be sent on deputation to a company and

thereafter he continued to work on deputation for nearly nine

years. It is the case of the petitioner that they did not send the

respondent No. 1 to TCIL on deputation and they had never

received any letter from TCIL repatriating him to his parent

department.

7. The respondent No. 1 had before the tribunal relied upon a

circular dated 14th January, 1988 issued by the Department of

Telecommunications safeguarding the interests of the Casual

Mazdoors already working in TCIL, New Delhi and drafted from

the Department of Telecom. The said circular obviously is not

applicable as the respondent No. 1 had joined TCIL in 1991.

The said circular was applicable to the workers already working.

8. However, during the course of hearing, it is pointed out

that the respondent No. 1 has been working with the petitioner

since 2001. Learned counsel for the petitioner states that they

have no intention to terminate services of the respondent No. 1.

The said statement is taken on record. It is also clarified that the

respondent No. 1 must be paid at least minimum wages as

stipulated and mandated by law. Learned counsel for the

petitioner has further stated that in case there is a regular

vacancy, the case of the respondent No. 1 will be considered

and, if required, age relaxation will be given and his experience

will be taken into consideration.

9. In view of the aforesaid discussion, we do not think the

respondent No. 1 is entitled to reliefs which have been granted

by the tribunal and quoted above. The impugned order dated

18th October, 2001 is accordingly set aside.

SANJIV KHANNA, J.

CHIEF JUSTICE

APRIL 28, 2011 VKR