Uttarakhand High Court

SPA/173/2020 on 26 September, 2022

      IN THE HIGH COURT OF UTTARAKHAND
                 AT NAINITAL
          HON'BLE THE CHIEF JUSTICE SRI VIPIN SANGHI
                             AND
                HON'BLE SRI JUSTICE R.C. KHULBE

                      26TH SEPTEMBER, 2022
              SPECIAL APPEAL No. 173 OF 2020

Between:

Jogendra Singh.
                                                               ...Appellant

and

Union of India and others.
                                                          ...Respondents

Counsel for the appellant. : Mr. Shakti Singh, the learned counsel.

Counsel for the respondents. : Mr. Rakesh Thapliyal, the learned Assistant Solicitor General assisted by Mr. Mohd. Azmeen, the learned Standing Counsel for the Union of India.

JUDGMENT : (per Sri Vipin Sanghi, C.J.)

DELAY CONDONATION APPLICATION (IA No. 6964 OF 2022)

Issue notice on the Delay Condonation

Application.

2. Mr. Mohd. Azmeen, the learned Standing

Counsel for the Union of India, appears and accepts

notice on behalf of the respondents.

3. The respondents fairly do not oppose the

application to seek condonation of delay of 295 days in

filing the present Special Appeal.

4. For the reasons stated in the application, the

same is allowed. Delay caused in filing the present

Special Appeal is, hereby, condoned.

SPECIAL APPEAL No. 173 OF 2020

5. The present Special Appeal is directed against

the judgment rendered by the learned Single Judge in

three Writ Petitions, including Writ Petition (S/S) No.

331 of 2019 titled "Navneet Raturi and others v.

Union of India and others". The appellant - Jogendra

Singh was petitioner no. 4 in the aforesaid Writ Petition.

6. The learned Single Judge disposed of the said

Writ Petition with a direction to the respondent no. 2 to

consider and grant age relaxation to those petitioners,

who were otherwise eligible on the date of their induction

on contractual appointment, and they shall be granted

age relaxation for the period they have worked with the

respondent-Institute. It was made clear that no

interference was made with the ongoing recruitment

process. The writ petitioners were at liberty to apply

against the posts advertised, for which the appointment

process had already commenced. In case they were to

apply against the said posts, on which they were earlier

discharging their duties, the respondents would consider

their candidature as per the Rules, and they would not be

rejected on account of being overage.

7. The appellant also assails the order passed in

the Review Application preferred by him. The learned

Single Judge dismissed the said Review application vide

order dated 04.08.2020.

8. The case of the appellant is that he was

appointed as a Wireman, on contractual basis, by the

respondent no. 2-Institute. The respondents had

advertised several posts, which were to be filled up on

contractual basis "for a period of 11 months or till regular

appointments are made", whichever is earlier. Amongst

the posts, for which the advertisement was issued, was

the post of Wireman. The recruitment process was

undertaken by issuing the notice dated 03.12.2014, and

the process of recruitment was through a walk-in-

interview. The advertisement itself stipulated that, for

the post of Wireman, a consolidated salary of Rs.

14,000/- was payable. The appellant participated in the

walk-in-interview, and was appointed on a contractual

basis, vide communication dated 11.02.2015, on a

consolidated pay of Rs. 14,000/-. The services of the

appellant were continued till 31.12.2018, whereafter, his

contractual appointment was not continued any further.

Instead, it appears that the respondent no. 2-Institute

sought to invite applications to fill up the post of, inter

alia, Wireman on regular basis. At that stage, the

appellant and other writ petitioners preferred the present

Writ Petition. The Writ Petition has been disposed of, with

the directions taken note of hereinabove.

9. The appellant had sought, firstly, the relief of

regularization on the post of Wireman on the ground that

the appellant had been discharging efficient services on

the said post, since his appointment on 11.02.2015. The

appellant also sought a direction to the respondents to

pay minimum pay scale to the appellant, as granted to

the sanctioned/ regular posts of Plumber and Wireman

respectively, on which post he had been discharging his

services efficiently since January/February, 2015, on the

principle of equal pay for equal work, as laid down in the

case of State of Punjab v. Jagjit Singh, (2017) 1 SCC

148.

10. Both the aforesaid reliefs have been rejected

by the learned Single Judge by the impugned judgment.

11. The submission of the learned counsel for the

appellant, so far as relief of regularization is concerned, is

that the eligibility qualifications and experience

requirement stipulated in the advertisement issued by the

respondents on 03.12.2014 to fill up the post of, inter

alia, Wireman, was identical to the eligibility qualifications

and experience requirement, as stipulated for a regular

appointee. He submits that the recruitment of the

appellant was through an open process, by inviting

applications from the public. Therefore, there was

complete transparency in the matter of employment of

the appellant, and the appellant also had the requisite

essential qualifications and professional knowledge. The

essential qualifications and professional knowledge for the

post of Wireman, as stated in the advertisement, was as

follows :-

8 Wireman Rs. 14,000/- Essential Qualifications: 05 Academic Qualification:

Should have passed ITI Diploma or equivalent qualification in the trade.

Professional Knowledge:

Electrical workman permit / workman's competency certificate electrical workman's/lineman license (Certificate of competency Class-II) or any other equivalent certificate with atleast 5 years experience in Trade test as applicable.

12. Learned counsel for the appellant submits that

the nature of work of the appellant was perennial,

inasmuch, as, the respondent-Institute requires a

Wireman on a regular basis. This is also evident from the

fact that the respondents have subsequently sought to

advertise the regular posts of Wireman. He submits that,

even though the appellant was appointed on contractual

basis for a period of 11 months, or till regular

appointments are made, the appellant is entitled for

regularization by the respondents. In this regard, he has

also placed reliance on a file noting made by the AS(AS)

on 28.08.2018 in a file of the Ministry of Health and

Family Welfare, which recorded the points which emerged

from the discussion held on 28.08.2018 by the

Department Related Standing Committee on Health and

Family Welfare. Learned counsel emphasizes on Point

No. ii, as recorded in the aforesaid note, which reads as

follows :-

"ii. It should be earnestly examined what preference can be extended to contractual staff in regular recruitment and also whether they can be regularised."

13. Learned counsel has also sought to place

reliance on the judgment rendered by the Supreme Court

in State of Rajasthan and others v. Daya Lal and

others, (2011) 2 SCC 429, and, in particular, on the

following observations :-

"12. We may at the outset refer to the following well-settled principles relating to regularisation and parity in pay, relevant in the context of these appeals:

(i) The High Courts, in exercising power under Article 226 of the Constitution will not issue directions for regularisation, absorption or permanent continuance, unless the employees claiming regularisation had been appointed in pursuance of a regular recruitment in accordance with relevant rules in an open competitive process, against sanctioned vacant posts. The equality clause contained in Articles 14 and 16 should be scrupulously followed and Courts should not issue a direction for regularisation of services of an employee which would be violative of the constitutional scheme. While something that is irregular for want of compliance with one of the elements in the process of selection which does not go to the root of the process, can be regularised, back door entries, appointments contrary to the constitutional scheme and/or appointment of ineligible candidates cannot be regularised.

(ii) Mere continuation of service by a temporary or ad hoc or daily-wage employee, under cover of some interim orders of the court, would not confer upon him any right to be absorbed into service, as such service would be "litigious employment". Even temporary, ad hoc or daily-wage service for a long number of years, let alone service for one or two years, will not entitle such employee to claim regularisation, if he is not working against a sanctioned post. Sympathy and sentiment cannot be grounds for passing any order of regularisation in the absence of a legal right.

(iii) Even where a scheme is formulated for regularisation with a cut-off date (that is a scheme providing that persons who had put in a specified number of years of service and continuing in employment as on the cut-off date), it is not possible to others who were appointed subsequent to the cut-off date, to claim or contend that the scheme should be applied to them by extending the cut-off date or seek a direction for framing of fresh schemes providing for successive cut-off dates.

(iv) Part-time employees are not entitled to seek regularisation as they are not working against any sanctioned posts. There cannot be a direction for absorption, regularisation or permanent continuance of part-time temporary employees.

(v) Part-time temporary employees in government-run institutions cannot claim parity in salary with regular employees of the Government on the principle of equal pay for equal work. Nor can employees in private employment, even if serving full time, seek parity in salary with government employees. The right to claim a particular salary against the State must arise under a contract or under a statute.

[See State of Karnataka v. Umadevi (3) [(2006) 4 SCC 1 : 2006 SCC (L&S) 753] , M.

Raja v. CEERI Educational Society [(2006) 12 SCC 636 : (2007) 2 SCC (L&S) 334] , S.C. Chandra v. State of Jharkhand [(2007) 8 SCC 279 : (2007) 2 SCC (L&S) 897] , Kurukshetra Central Coop. Bank Ltd. v. Mehar Chand [(2007) 15 SCC 680 : (2010) 1 SCC (L&S) 742] and Official Liquidator v. Dayanand [(2008) 10 SCC 1 : (2009) 1 SCC (L&S) 943] .]"

14. We have perused the impugned judgment;

heard the learned counsels; and considered the decisions

relied upon by him.

15. So far as the relief of regularization sought by

the appellant is concerned, we do not find any merit in

the submission of learned counsel for the appellant, and

we are not inclined to interfere with the impugned

judgment on that aspect. The appellant participated in

the recruitment process undertaken through a walk-in-

interview, for the post of Wireman advertised as on

purely contractual basis for a period of 11 months, or till

regular appointments are made. The contractual period

of the appellant was about 04 years, since he was

appointed on 11.02.2015, and continued till 31.12.2014.

The appellant claims that he served till 16.02.2019. Be

that as it may, the tenure of the appellant was around 04

years.

16. The appellant cannot now turn around and

claim that he should be regularized, since he participated

in the walk-in-interview, knowing fully well that his

appointment was being made on contractual basis for a

period of 11 months, or till regular appointments are

made, whichever is earlier. His contract of employment

may have been extended for a further period. However,

it did not extend beyond 04 years. The appellant did not

get vested with any legal right to enforce/ thrust

regularization against/ upon the respondent-Institute.

17. The submission that the appellant had all the

requisite essential qualifications and professional

knowledge, which are prescribed for regular employment,

does not mean that he could be considered as having

been appointed against a regular vacancy, on a regular

basis. Scores of others, who would have been interested

in offering their candidature against a regular post, for

regular appointment, may not have participated in the

walk-in-interview conducted by the respondent-Institute,

as only contractual employment was offered for a period

of 11 months or till regular appointment is made,

whichever is earlier. It would be highly discriminatory

against all other eligible candidates, to consider the case

of the appellant for regularization in these circumstances.

18. Reliance placed by the learned counsel for the

appellant on the State of Rajasthan (supra) is also

misplaced. The Supreme Court set out the well settled

principles relating to regularization in paragraph no. 12 of

the judgment, by referring to the Constitution Bench

judgment in State of Karnataka v. Umadevi

(3), (2006) 4 SCC 1, and a few other judgments.

19. These principles do not support the appellant's

claim. The Supreme Court in Umadevi (supra) had

frowned upon the backdoor entries and casual

appointments, which were then continued for decades

together. All such appointments were held to be illegal,

and contrary to Article 14 of the Constitution of India.

The Supreme Court, however, with a view to save the

employment of thousands of such casual appointees, as a

one-time measure, directed that those, who were in

service for more than 10 years and fulfilled the eligibility

criteria, could be considered for regularization by framing

of a scheme by the State.

20. The appellant is harping upon the fact that the

appellant has the requisite qualifications. However, that

by itself is not sufficient even to invoke the principles laid

down in Umadevi (supra). Assuming for the sake of

argument that the said principle could be invoked by the

appellant in respect of his employment - which took place

only in 2015 on a contractual basis, it is not the

appellant's case that he was continued on contractual

basis for decades together. Therefore, merely because

he may have been qualified to be regularly appointed

against the post of Wireman, is no ground to grant his

prayer for being considered for regularization.

21. Reliance placed on the aforesaid noting made

by the AS(AS) on 28.08.2018 is neither here, nor there.

An office note does not tantamount to an order. In any

event, the said note merely states that it should be

earnestly examined what preference can be extended to

contractual staff in regular recruitment, and whether they

can be regularized. The same cannot be read as a

mandate to the respondent-Institute to regularize a

contractual employee. The appellant has already been

granted the relief of age relaxation, and he has been

permitted to participate in the regular recruitment

process. Beyond that, the appellant was not entitled to

any further relief. Insofar as his claim for regularization

is concerned, we dismiss the present Special Appeal.

22. As far as the second relief for the claim of equal

pay for equal work, i.e. to grant the minimum of the pay

scale, which is founded upon the judgment of the

Supreme Court in Jagjit Singh (supra) (paragraph no.

61), is concerned, the claim of the appellant appears to

be justified.

23. The appellant has made a categorical

statement in paragraph no. 15 of the Writ Petition that

the work, duties and the length of working hours of the

appellant/writ petitioners are quantitatively and

qualitatively same as a regular incumbent, and he

performs various duties of respondent no. 2-Institute,

and, therefore, he is entitled to minimum salary, as paid

to regular incumbent, on the principle of equal pay for

equal work. In paragraph no. 17 of the Writ Petition, the

appellant specifically relied upon the judgment of the

Supreme Court in Jagjit Singh (supra).

24. The respondents had filed their counter

affidavit, but they did not specifically meet the writ

petitioners' averment made in paragraph no. 15 of the

Writ Petition. Therefore, it appears that there was no

denial of the fact that the appellant was performing the

same duties, and discharging the same responsibilities,

as a regular Wireman would have been doing, had a

regular Wireman been appointed.

25. In Jagjit Singh (supra), the Supreme Court

framed the issue, that came up for its consideration, in

paragraph no. 6. The said paragraph reads as follows :-

"6. The issue which has arisen for consideration in the present set of appeals, necessitates a bird's-eye view on the legal position declared by this Court, on the underlying ingredients, which govern the principle of "equal pay for equal work". It is also necessary for resolving the controversy to determine the manner in which this Court has extended the benefit of "minimum of the regular pay scale" along with dearness allowance, as revised from time to time, to temporary employees (engaged on daily-wage basis, as ad hoc appointees, as employees engaged on casual basis, as contract appointees, and the like). For the aforesaid purpose, we shall, examine the above issue, in two stages. We shall first examine situations where the principle of "equal pay for equal work" has been extended to employees engaged on regular basis. And thereafter, how the same has been applied with reference to different categories of temporary employees."

26. The Supreme Court, then proceeded to

consider a host of earlier decisions rendered by it, and

concluded in paragraph no. 61 as follows :-

"61. In view of the position expressed by us in the foregoing paragraph, we have no hesitation in holding that all the temporary employees concerned, in the present bunch of cases would be entitled to draw wages at the minimum of the pay scale (at the lowest grade, in the regular pay scale), extended to regular employees holding the same post."

27. In the light of the aforesaid, we allow the

present Special Appeal, insofar as the appellant's claim

for payment of wages at the minimum of the pay scale

(at the lowest grade, in the regular pay scale), extended

to regular wireman, is concerned. To that extent, the

Special Appeal stands allowed. The appellant shall be

paid the wages at the minimum of the pay scale (at the

lowest grade, in the regular pay scale) extended, or

extendable to a regular Wireman in the respondent-

Institute. The difference in the wages payable on the

said basis, and the wages actually paid, shall be

calculated and arrears be paid within three months.