Orissa High Court

M/S. Indian Railway Coal vs Union Of India And Others .... Opposite ... on 8 November, 2024

Author: S.K. Panigrahi

Bench: S.K. Panigrahi

                                                              Signature Not Verified
                                                              Digitally Signed
                                                              Signed by: BHABAGRAHI JHANKAR
                                                              Designation: AR-CUM-SR. SECRETARY
                                                              Reason: Authentication
                                                              Location: ORISSA HIGH COURT, CUTTACK
                                                              Date: 18-Nov-2024 19:08:03



                   IN THE HIGH COURT OF ORISSA AT CUTTACK

                                 W.P.(C) No.23403 of 2016

        (In the matter of an application under Articles 226 and 227 of the
        Constitution of India, 1950).

        M/s. Indian Railway Coal, Ash               ....              Petitioner(s)
        & Workshop Handling Mazdur
        Union, Khurda

                                         -versus-

        Union of India and Others                   ....       Opposite Party (s)

      Advocates appeared in the case through Hybrid Mode:

        For Petitioner(s)            :                      Mr. A. Patnaik, Adv.



        For Opposite Party (s)       :               Ms.Jyotsnamayee Sahoo, CGC


                  CORAM:
                  DR. JUSTICE S.K. PANIGRAHI

                       DATE OF HEARING:-07.08.2024
                      DATE OF JUDGMENT:-08.11.2024
      Dr. S.K. Panigrahi, J.

1. In this Writ Petition, the Petitioner Union seeks a directive to regularize

its members as permanent employees in the Indian Railways, arguing

that the ongoing denial imposes undue hardship on its members.

I. FACTUAL MATRIX OF THE CASE:

2. The brief facts of the case are as follows:

Designation: AR-CUM-SR. SECRETARY

Location: ORISSA HIGH COURT, CUTTACK Date: 18-Nov-2024 19:08:03

(i) Between the years 1981 and 1990, M/s Harihar Cooperative Contract

Labour Society was engaged under a contractual arrangement for coal

handling, cinder picking, and ash handling operations at the Loco Shed

of the Khurda Division.

(ii) During an inspection conducted in August 1985, the Labour

Enforcement Officer observed that the contract labourers employed by

M/s Harihar Cooperative were performing duties identical to those of

regular Group-D employees of the Railways but were not being

remunerated at equivalent rates. Consequently, a petition was filed

before the Chief Labour Commissioner in September 1985, raising

concerns regarding the said wage disparity.

(iii) Following extensive legal proceedings, including the filing of a writ

petition (OJC No. 1436 of 1988) and subsequent judicial directions, the

Chief Labour Commissioner issued an order directing the Railways to

ensure parity in wages between the contract labourers and regular

Class-IV employees. Although the Railways challenged this directive,

the Supreme Court upheld the order, resulting in the payment of wage

differentials to the affected labourers.

(iv) The petitioner Union, representing the coal and ash handling workers,

has consistently sought for regularization of its members within Indian

Railways. However, their request was formally rejected by the Railways

on 11.03.2014.

(v) Aggrieved by the rejection of their request, the petitioner Union has

filed the present Writ Petition, seeking a mandamus to direct the

Railways to regularize the employment of its members as permanent

Designation: AR-CUM-SR. SECRETARY

Location: ORISSA HIGH COURT, CUTTACK Date: 18-Nov-2024 19:08:03

employees. The Union contends that the continued denial of

regularization subjects its members to undue hardship and inequity.

II. SUBMISSIONS ON BEHALF OF THE PETITIONER:

3. Learned counsel for the Petitioner earnestly made the following

submissions in support of his contentions:

(i) The petitioner submitted that the Opposite parties breached legitimate

expectations by retracting previous assurances and failing to fulfil

commitments to regularize contractual workers.

(ii) He further submitted that the decision of the Opposite Party No.4 is

arbitrary, motivated by malafide intent, and in disregard of

governmental and judicial recommendations. It alleges that the decision

lacked rational judgment, logic, and consideration of the workers'

records.

(iii) The petitioner contended that they were denied an opportunity to

present relevant records or demonstrate compliance with regularization

criteria, as set by the Supreme Court, particularly in the Secretary, State

of Karnataka v.Uma Devi1 case.

(iv) He further contended that the opposite party no. 4 failed to review

relevant documents, such as attendance and wage registers, which

would have verified the work history of Union Members and eligibility

for regularization.

III. SUBMISSIONS ON BEHALF OF THE OPPOSITE PARTIES:

4. The Learned Counsel for the Opposite Parties earnestly made the

following submissions in support of his contentions:

2006(4) SCC 1,

Designation: AR-CUM-SR. SECRETARY

Location: ORISSA HIGH COURT, CUTTACK Date: 18-Nov-2024 19:08:03

(i) It is submitted that the labourers, being employed by a contractor and

not directly by the Railways, have no right to claim regularization.

Citing the case of Uma Devi (supra) they argue that regularization of

contract workers would violate constitutional requirements and

Railways' employment rules.

(ii) He further submitted that M/s Harihar Cooperative Contract Labour

Society, as the contractor, holds primary responsibility for the workers'

Railways are not legally obligated to absorb these workers.

(iii) It is contended that the Contract Labour (Regulation and Abolition) Act,

1970, does not mandate the automatic absorption of contract labourers

into permanent positions.

(iv) He further contended that the labourers were engaged on a temporary,

daily wage basis by the contractor, without any sanctioned posts. As

such, their claim for regularization is legally unsustainable.

IV. COURT'S REASONING AND ANALYSIS:

5. Heard learned counsel for the parties and carefully reviewed the

documents submitted before this Court.

6. At the outset, it is apparent that the contract labourers in question were

engaged solely on a temporary, daily-wage basis under an agreement

with the Railways. The Railways have consistently maintained that no

sanctioned posts existed to justify the absorption or regularization of

these contract workers. The employment arrangement was contractual,

with no indication or legal provision supporting a permanent tenure.

Designation: AR-CUM-SR. SECRETARY

Location: ORISSA HIGH COURT, CUTTACK Date: 18-Nov-2024 19:08:03

7. Now, it is no more res integra that the creation and sanctioning of posts

falls exclusively within the purview of the executive or legislative

authorities, and the judiciary cannot usurp this function, which is

inherently administrative or legislative in nature, by issuing directions

for the creation of posts in any organization. Courts cannot direct for

creations of posts. To this effect, the Supreme Court, in the case of

Divisional Manager Aravali Golf Club and Anr. v. Chander Hass and

Anr.2 it has been held as under:

"15. The court cannot direct the creation of posts. Creation and sanction of posts is a prerogative of the executive or legislative authorities and the court cannot arrogate to itself this purely executive or legislative function, and direct creation of posts in any organisation. This Court has time and again pointed out that the creation of a post is an executive or legislative function and it involves economic factors. Hence the courts cannot take upon themselves the power of creation of a post. Therefore, the directions given by the High Court and the first appellate court to create the posts of tractor driver and regularise the services of the respondents against the said posts cannot be sustained and are hereby set aside."

8. The Supreme Court, in Umadevi (supra), addressed the issue of

employees who were appointed irregularly or without adhering to the

prescribed selection process under statutory rules governing

government employment. Despite their appointments being irregular,

many such employees had continued on an ad-hoc basis for over a

decade. While the Court strongly disapproved of this practice, it

nevertheless, as a one-time measure, permitted the government to

regularize the services of employees working against sanctioned posts

2008(1) SCC 683

Designation: AR-CUM-SR. SECRETARY

Location: ORISSA HIGH COURT, CUTTACK Date: 18-Nov-2024 19:08:03

who had been allowed to continue by the government, doing so without

necessitating judicial intervention. The same is reproduced hereunder:

‚One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa [(1967) 1 SCR 128] , R.N. Nanjundappa [(1972) 1 SCC 409] and B.N. Nagarajan [(1979) 4 SCC 507] 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 question 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 above-referred 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 ensure that regular recruitments are undertaken to fill those vacant sanctioned 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."

9. Additionally, the Apex Court observed that, without a sanctioned post,

the State cannot be obligated to create a position solely to regularize or

absorb individuals who are currently serving in its employment.

10. Drawing on the authoritative precedent established, it is clear that

courts are not empowered to direct the creation of posts solely for the

Designation: AR-CUM-SR. SECRETARY

Location: ORISSA HIGH COURT, CUTTACK Date: 18-Nov-2024 19:08:03

purpose of regularizing contractual or ad-hoc employees. It is

imperative to emphasize that public employment must adhere to

principles of equal opportunity and sanctioned posts.

11. Consequently, compelling the Railway to create positions specifically

for regularization would not only encroach upon administrative