Union Of India vs Pramod Kumar & Ors.
2011 Latest Caselaw 980 Del

R-4
*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+      W.P.(C) 5577/1997

       UNION OF INDIA                             ..... Petitioner
                     Through Nemo.

                     versus

       PRAMOD KUMAR & ORS.                      ..... Respondents
                  Through Nemo.

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

                ORDER

% 18.02.2011

None appears for the petitioner-Union of India and its

functionaries as well as for the respondents. Though there has been no

appearance on behalf of the parties, we have thought it appropriate to

address, the controversy and issue. The respondents invoked the

jurisdiction of the Central Administrative Tribunal, Principal Bench,

New Delhi (for short, tribunal) in OA No. 748/1997 claiming that the

present petitioners should confer temporary status on them as they

were wrongly declined grant of temporary status on the ground that the

respondents had not completed 206 days of casual service on the date

of issuance of the Office Memorandum dated 10th September, 1993.

2. It was contended by the respondents, herein before the tribunal

that they were initially engaged for a period of three months with effect

from 1st May, 1995 and their engagement was extended till 8 th January,

1996. They worked upto 31st December, 1995 and the extension was

only upto that date. Thereafter they filed O.A. No. 274/1996 wherein

the tribunal directed the respondents to communicate the decision of

temporary status and regularization within a period of two months

from the date of receipt of the order dated 23rd December, 1996. It was

further put forth that they had worked for 245 days till then and hence

they should be given temporary status but the second respondent

therein issued an Office Memorandum dated 17th February, 1997

rejecting their claim on the ground that the scheme was applicable to

casual labourers who were in employment and who had put in one year

of service as on 10th September, 1993. Reliance was placed on the

decision of the tribunal in Kiran Kishore versus Union of India, in

O.A. No. 1696/1995. Reliance was also placed on the decision in O.A.

No. 1398/1996 whereby the tribunal had directed only temporary status

but eventually regular absorption as Group D employees on available

vacancies was to be conferred.

3. The said stand was combated to by the petitioner contending,

inter alia, that the functionaries of the department were authorized to

engage eight persons for a period of three months and accordingly six

persons had already been selected. It is also put forth that the

applicants therein were engaged from 1st May, 1995 upto 31st July,

1995 and thereafter from 30th September, 1995 to 31st December, 1995

and thereafter their services came to an end.

3A. The tribunal referred to the scheme and the decisions rendered

by various Benches and came to hold that the casual employees cannot

be engaged and disengaged at the sweet will of a departmental

authority. We think it appropriate to reproduce a passage from the

order of the tribunal:-

"5. ..........The concept of temporary status is only a recognition that having put in a specific length of service, a contingent employee has to have some protection. His services cannot be terminated without notice and he shall be considered for eventual absorption in a Group-D vacancy. These safeguards cannot wither away after a cut-off date. Employees putting in 240 days of service in one complete year cannot cease to enjoy this protection. The Government need not again await a judicial pronouncement to formulate another scheme for employees working after 10.9.93. There is no need for the Court always to remind the Government once in every interval to formulate a Scheme. As observed by the Supreme Court in Ghaziabad case (supra), the purpose is to see that as long as casual labourers are discharging their duties efficiently and to the satisfaction of the employer and as long as work is available, they shall not be disengaged. The procedures for temporary status leading to eventual absorption are built in safeguards to secure a casual labourer's future. I do not see any justification to refer this to a larger bench and there is no need to seek fresh evidence by way of an additional affidavit."

4. Thereafter the tribunal proceeded to direct conferment of

temporary status on the applicants within four weeks. This Court while

issuing notice had directed stay of operation of the impugned order.

5. On a perusal of the pleadings that were put forth before the

tribunal and the order impugned, it is quite perceptible that the tribunal

had placed reliance on the 1993 scheme and earlier judgments and had

directed for conferment of temporary status despite the fact that the

respondents were casual employees and their selection was not after

following a due process. There is no necessity, in praesenti to dwell

upon the issue of their status, in view of the factum that they were only

casual employees and nothing has been brought on record with regard

to the process of selection. The Constitution Bench of the Apex Court

in Secretary, State of Karnataka and Others versus Uma Devi and

Others, (2006) 4 SCC 1 has held thus:-

"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.

6. In view of the aforesaid, we find the order passed by the tribunal

is unsustainable and accordingly the same is quashed. In the result, the

writ petition is allowed without any order as to costs.

CHIEF JUSTICE

SANJIV KHANNA, J.

FEBRUARY 18, 2011 VKR