Central Administrative Tribunal - Delhi
Chander Prakash Saini vs M/O Railways on 10 January, 2025
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O.A. No. 4582/2018
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH: NEW DELHI
O.A. No. 4582/2018
Reserved on: 18.12.2024
Pronounced on: 10.01.2025
HON'BLE DR. CHHABILENDRA ROUL, MEMBER (A)
HON'BLE SHRI AJAY PRATAP SINGH, MEMBER (J)
1. Chander Prakash Saini s/o Shri Puran Lal Saini,
Loco Box Porter,
O/o Chief Loco Inspector,
Loco Shed, Northern Railway,
Moradabad.
2. Sanjeev Kumar s/o Shri Data Ram,
Loco Box Porter,
O/o Chief Loco Inspector,
Loco Shed, Northern Railway,
Moradabad.
3. Vinod Saini s/o Shri Suresh Saini,
Loco Box Porter,
O/o Chief Loco Inspector,
Loco Shed, Northern Railway,
Moradabad.
4. Ramfool s/o Tej Ram
Loco Box Porter,
O/o Chief Loco Inspector,
Loco Shed, Northern Railway,
Moradabad.
5. Rishi Pal s/o Shri Mahavir Singh,
Loco Box Porter,
O/o Chief Loco Inspector,
Loco Shed, Northern Railway,
Moradabad.
6. Rahul Saini s/o Sh. Suresh Saini,
Loco Box Porter,
O/o Chief Loco Inspector,
Loco Shed, Northern Railway,
Moradabad.
7. Vinay Kumar s/ Sh. Data Ram,
Loco Box Porter,
O/o Chief Loco Inspector,
Loco Shed, Northern Railway,
Moradabad.
8. Prem Pal s/o Sh. Ved Ram,
Loco Box Porter,
O/o Chief Loco Inspector,
Loco Shed, Northern Railway,
Moradabad.
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O.A. No. 4582/2018
9. Ashok Kumar s/o Dilip Singh,
Loco Box Porter,
O/o Chief Loco Inspector,
Loco Shed, Northern Railway,
Moradabad.
10. Chet Ram s/o Ved Prakash,
Loco Box Porter,
O/o Chief Loco Inspector,
Loco Shed, Northern Railway,
Moradabad.
11. Kapil Singh s/o Shri Dharam Singh,
Loco Box Porter,
O/o Chief Loco Inspector,
Loco Shed, Northern Railway,
Moradabad.
12. Aman Pal s/o Prem Singh,
Loco Box Porter,
O/o Chief Loco Inspector,
Loco Shed, Northern Railway,
Moradabad.
13. Shubham Pal s/o Prem Singh,
Loco Box Porter,
O/o Chief Loco Inspector,
Loco Shed, Northern Railway,
Moradabad.
...Applicants
Versus
1. Union of India through Secretary,
Ministry of Railways,
Railway Board, Rail Bhawan,
New Delhi.
2. The General Manager,
Northern Railway, HQ Office,
Baroda House, New Delhi.
3. The Divisional Railway Manager,
Northern Railway,
DRM Office, Moradabad.
4. The Chief Loco Inspector,
Loco Shed NR, Moradabad.
...Respondents
For Applicants: Mr. S.P. Sethi, Advocate.
For Respondents: Mr. S.N. Verma, Senior Central Government
Standing Counsel.
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O.A. No. 4582/2018
ORDER
AS PER AJAY PRATAP SINGH, MEMBER JUDICIAL:
ISSUES AT HAND The precise question that arises for determination in the present Original Application is -
"Whether the Applicants have legal right to seek regularization of their services in light of principles of law laid down by Hon'ble Supreme court in Constitution Bench decision in case of Secretary, State of Karnatka & Ors. Vs. Uma Devi (3) & Ors., reported in (2006) 4 SCC 1?"
PRAYER
2. Applicants engaged as Contractual Labour for providing services of Box Porters in Moradabad Division of Northern Railway, have filed the present OA invoking jurisdiction of this Tribunal under Section 19 of the Administrative Tribunals Act, 1985, seeking the following main relief (s) [as extracted from the OA) reads as under:-
"(i) Direct/command the Respondents to regularize the services of the Applicants as Box Porters and absorb them as such or in any other Group-D post so available in Moradabad Division.
(ii) Set-aside and quash the impugned action/orders of the Respondents, whereby the services of the Applicants as Box Porters are being terminated being badly vitiated as aforesaid.
(iii) Any other relief deemed fit and proper in the facts and circumstances of the case, may also be granted in favour of the applicants along with heavy costs against the Respondents, in the interest of justice."
FACTUAL MATRIX
3. Basic facts require notice to dispose of this O.A., as adumbrated by the applicants in the present OA that post of Box Porter is regular sanctioned post and job-profile includes lifting, carriage, loading, unloading of the boxes of running staff of railways i.e. Drivers, Loco Pilots, Asstt. Loco Pilots, Guards from Loco-shed to the respective engines of the trains on which the loco-staff, guards are deployed to work. The Boxes contain various instruments 4 O.A. No. 4582/2018 required for working of the said running staff on the train. The nature of work of Box-Porters in Group-D category have been since the introduction of the Railways working in India and work of Box- Porters is of perennial in nature.
4. It is also the case of applicants that the respondents have deployed the contractors for providing services of Box-Porters. The applicants have been engaged since 2000 by the contractors for providing services of Box-Porters in Moradabad Division, Northern Railway. The applicants fulfill all the eligibility conditions for regularization but respondents have started hand-trolley system instead of boxes of guards and Loco-Pilots in certain Divisions of Delhi in Northern Railway. The applicants completed more than 15 years of service and being paid a fixed amount of Rs.7200/- per month through contractors.
5. Applicants have also made averments in the OA that in terms of law laid down by Hon'ble Supreme Court in cases of National Federation of Railways Porters Vendors and Bearers Vs. Union of India & Ors., reported in 1995 Supp.(3) SCC 152; Narendra Kumar Tiwari & Ors. Vs. State of Jharkhan & Ors. (2018) 8 SCC 238; R.K. Panda Vs. SAI (1994) 5 SCC 304; and Mahanadi Coalfields Limited Vs. Braj. Rajnagar Coal Mines Workers Union 2024 SCC Online SC 270. The applicants have acquired vested legal rights for regularization to the posts of Box-Porters or any other Group-D posts in the railways as applicants are working for long period and completed more than 15 years service as contractual labour as Box-Porters.
6. Per contra, the respondents have filed the counter reply affidavit and have categorically stated that applicants were engaged directly by the contractors and not by the railways. Hon'ble Supreme Court in the Constitution Bench decision in case of Secretary, State of Karnatka & Ors. Vs. Uma Devi (3) & Ors., reported in (2006) 4 SCC 1, have declared the law on the issue involved in the present case and held that - "Any public employment has to be in terms of the constitutional scheme. If the appointment itself is in infraction of the rules or it is in violation of the provisions of constitution, illegally cannot be 5 O.A. No. 4582/2018 regularized. There is no fundamental right to 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. A regular appointment could be made only by making appointments consistent with the requirement of Articles 14 & 16 of the Constitution of India."
7. Respondents have also averred in the counter reply affidavit that applicants were directly engaged by the contractors to provide services of Box Porters and railway has not engaged them. The applicants worked under administrative control of deputed representative of contractors and, hence, Discipline and Appeals Rules, Medical facilities, Railway Passes facilities are not applicable to contractual labour like applicants. The safety and medical care of contractual labour is sole responsibility of contractors and not the railways.
8. Respondents in counter reply affidavit in sum and substance have submitted that applicants were engaged by the contractors. The services of Box-Porters from applicants taken by railways and engagement is by out-sourcing through contractors and in view of law laid down by Hon'ble Supreme Court in the constitution Bench decision in case of Uma Devi(3) (supra), the applicants have not been appointed in terms of the relevant recruitment rules and procedural requirements under public employment policy envisaged under Articles 14 & 16 of the Constitution of India have not been followed. The applicants have no legal right to seek regularization of their services and no legal right to seek continuation in service.
9. Rejoinder has been filed by the applicants denying averments made in the written statement. Applicants have reiterated their stand and made averments that respondent no.3 is the principal employer as the work performance is supervised by Chief Loco Inspector (Loco-Shed) and paid by respondent no.3. The Railway Board issued directions to deduct P.F. from payment made to the contract labour. Hon'ble Supreme Court in Padma Sundra Rao Vs. State of Tamil Nadu |(2002) 3 SCC 533 have laid down that "no reliance can be placed on judgments without considering the facts of each case."
6 O.A. No. 4582/2018ARGUMENTS ADVANCED
10. Shri S.P. Sethi, learned counsel for the applicants argued and can be summarized as under -
(i) Applicants were engaged by the contractor for providing services of Box Porters in Moradabad Division, Northern Railway and for more than 15 years discharging function of Box Porters against regular duly sanctioned posts of Box Porters and there is perennial nature of work, required round the clock for running the trains. Applicants are working under control of respondent no.3, since year 2000 and have become entitled for regularization against any other Group-D posts.
(ii) Applicants have been continuously working through contractors under administrative control of respondents and respondents decided to start hand trolley system in place of Box Porters and respondents be directed to allow them to continue and regularize on any post of Group -D.
(iii) Applicants have acquired status of temporary service and in view of law laid down in case of National Federation of Railway Porters Vendors and Bearers Vs. Union of India & Ors., 1995 Suppl.(3) SCC 152; Narendra Kumar Tiwari & Ors. Vs. State of Jharkhan & Ors. (2018) 8 SCC 238 and R.K. Panda Vs. SAI (1994) 5 SCC 304. The applicants are entitled for consideration for regularization on the post of Box Porters on any other equivalent Grup-D post in railways, having worked as contract labour for more than 15 years under the administrative control of the respondents.
11. Mr. S.N. Verma, Sr. CGSC, learned counsel for respondents vehemently submitted and can be summarized as -
(i) Applicants were engaged directly by the contractors and not by railways and Box-Porters services taken from applicants engaged by contractor. The applicants were under control of deputed representatives of contractors and D&A rules do not apply to them, so also they are not entitled for medical facilities, railway passes etc.
(ii) Applicants cannot be regularized being contractual labour, out-sourced by respondents. The applicants accepted the 7 O.A. No. 4582/2018 engagement with open eyes. They applicants were engaged contrary to constitutional scheme for public employment and no procedure followed as envisaged under Articles 14, 16 and 309 of the Constitution of India. The issue involved in the present case is no more res-integra and applicants neither entitled for regularization nor continuance in light of law laid down by the Constitution Bench judgment in case of Uma Devi (3) (supra).
(iii) Applicants have failed to establish even their appointment as contractual labour, no offer of engagement filed. It is the admitted position that applicants were engaged by contractors and they do not have any legal right to seek regularization of their services as their initial engagement is void-ab-initio and nullity in eyes of law.
(iv) Hon'ble Supreme Court in Constitution Bench case Uma Devi (3) (supra) overruled impliedly law laid down in case of National Federation of Railways Porters, Vendors and Bearers (supra). So also law laid down in Narendra Kumar Tiwari (supra) and Mahanadi Coal Mines (supra) not applicable in present case.
ANALYSIS AND FINDINGS
12. We have bestowed our anxious considerations on the rival contentions of the parties and also perused the material placed on record and precedents cited.
THE ISSUE
13. The short issue which arises for our consideration, viz -
"Whether the applicants have vested legal right to seek regularization of their contractual labour services in light of principles of law laid down by Hon'ble Supreme Court in the Constitution Bench judgment in case of Secretary, State of Karnatka & Ors. Vs. Uma Devi (3) & Ors., reported in (2006) 4 SCC 1?"
14. Admitted facts in the case in our hands that all the applicants were engaged directly by the contractors to provide services of Box-Porters and not engaged by railways, so also they being paid by the contractors. The appointment made by way of outsourcing of applicants and never in accordance with statutory 8 O.A. No. 4582/2018 recruitment rules framed under proviso appended to Article 309 and nor in accordance with procedural requirements of Articles 14 & 16 of the Constitution of India.
15. Dispute in the case is that the stand of the respondents that the applicants were engaged by the contractor to provide services of Box-Porters. Applicants were not engaged by railways and no procedure followed as prescribed under recruitment rules, Railway Board Circulars and under Articles 14,16 and 309 of the Constitution of India. In view of law laid down in Constitution Bench decision in case of Uma Devi (3) (supra), the applicants are not entitled for regularization of their services. Whereas, the applicants' contention is that the post of Box-Porters is of permanent nature, sanctioned and vacant posts and applicants working for more than 15 years since year 2000 and under administrative control of respondents and, thus, they are entitled for regularization of their services.
CASE LAW
16. Before dealing with the rival contentions advanced at the Bar, it is apposite to refer to the principles of law settled by Hon'ble Supreme Court on the question of regularization of services of employees continued for more than ten years or more, reads as -
A. Hon'ble Supreme Court has settled the question of regularization of services and laid down law, reads as -
(i) In case of Union of India & Ors. Vs. Bishamber Dutt, reported in (1996) 11 SCC 341. Their Lordships held -
"4...Since they are not appointed on regular basis in accordance with rules the direction issued by the Tribunal to regularize the service is obviously illegal. It is then contended by the learned counsel for the respondents that in view of the fact that they were regularly working for a long time they are entitled to regularization. We do not appreciate the stand taken on behalf of the respondents. Unless they are appointed on regular basis according to rules after consideration of the claims on merits, there is no question of regularization of the services."
(ii) In Three-Judge Bench decision titled Ashwani Kumar & Ors. Vs. State of Bihar & Ors., reported in (1997) 2 SCC1 : AIR 1997 SC 1628, Their Lordships held -
9 O.A. No. 4582/2018"The question of confirmation or regularization of an irregularly appointed candidate would arise if the candidate concerned is appointed in an irregular manner or on ad-hoc basis against an available vacancy which is already sanctioned. But if the initial entry itself is un-authorized and is not against any sanctioned vacancy, question of regularizing the incumbent on such a non- existing vacancy would never service for consideration and even if such purposed regularization or confirmation is given it would be an exercise in futility. It would amount to decorating a still-born baby. Under these circumstances there was no occasion to regularize them or to give them valid confirmation. The so-called exercise of confirming these employees, therefore, remained a nullity.
[Para 13] In the instant case neither the initial appointments nor the confirmations were done by following the prescribed procedure. On the contrary, all efforts were made to by-pass the recruitment procedure known to law which resulted in clear violation of Articles 14 and 16(1) of the Constitution of India both at the initial stage as well as at the stage of confirmation of the illegal entrants. The so called regularizations and confirmations could not be relied on as shields to cover up initial illegal and void actions or to perpetuate the corrupt methods.
[Para 14] [Emphasis supplied]
(iii) Hon'ble Supreme Court has settled the question of regularization of services in 5-Judge Constitution Bench decision in case of Secretary, State of Karnatka & Ors. Vs. Uma Devi (3) & Ors., reported in (2006) 4 SCC 1. Their Lordships were seisin with a reference referred to the Constitution Bench for decision, the conflict relates to the right, if any, of employees appointed by the State or by its instrumentalities on a temporary basis or on daily wages or casually, to approach the High Court for the issue of a writ of mandamus directing that they be made permanent in appropriate posts, the work of which they were otherwise doing. The claim is essentially based on the fact that they having continued in employment or engaged in the work for a significant length of time, they are entitled to be absorbed in the posts in which they had worked in the department concerned or the authority concerned, even not working against a sanctioned post, even if they do not possess the requite qualifications, even if they were not appointed in terms of the procedure prescribed for appointment, they are entitled to continue and should be directed to be absorbed. The relevant paragraphs for ready reference are extracted hereunder:-
"12. In spite of this scheme, there may be occasions when the sovereign State or its instrumentalities will have to employ persons, in posts which are temporary, on daily wages, as additional hands or taking them in without following the required procedure, to 10 O.A. No. 4582/2018 discharge the duties in respect of the posts that are sanctioned and that are required to be filled in terms of the relevant procedure established by the Constitution or for work in temporary posts or projects that are not needed permanently. This right of the Union or of the State Government cannot but be recognized and there is nothing in the Constitution which prohibits such engaging of persons temporarily or on daily wages, to meet the needs of the situation. But the fact that such engagements are resorted to, cannot be used to defeat the very scheme of public employment. Nor can a court say that the Union or the State Governments do not have the right to engage persons in various capacities for a duration or until the work in a particular project is completed. Once this right of the Government is recognized and the mandate of the constitutional requirement for public employment is respected, there cannot be much difficulty in coming to the conclusion that it is ordinarily not proper for courts whether acting under Article 226 of the Constitution or under Article 32 of the Constitution, to direct absorption in permanent employment of those who have been engaged without following a due process of selection as envisaged by the constitutional scheme.
15. Even at the threshold, it is necessary to keep in mind the distinction between regularization and conferment of permanence in service jurisprudence. In STATE OF MYSORE Vs. S.V. NARAYANAPPA [1967 (1) S.C.R. 128], this Court stated that it was a mis-conception to consider that regularization meant permanence. In R.N. NANJUNDAPPA Vs T. THIMMIAH & ANR. [(1972) 2 S.C.R. 799], this Court dealt with an argument that regularization would mean conferring the quality of permanence on the appointment. This Court stated:-
"Counsel on behalf of the respondent contended that regularization would mean conferring the quality of permanence on the appointment, whereas counsel on behalf of the State contended that regularization did not mean permanence but that it was a case of regularization of the rules under Article 309. Both the contentions are fallacious. If the appointment itself is in infraction of the rules or if it is in violation of the provisions of the Constitution, illegality cannot be regularized. Ratification or regularization is possible of an act which is within the power and province of the authority, but there has been some non-compliance with procedure or manner which does not go to the root of the appointment. Regularization cannot be said to be a mode of recruitment. To accede to such a proposition would be to introduce a new head of appointment in defiance of rules or it may have the effect of setting at naught the rules."
16. In B.N. Nagarajan & Ors. Vs. State of Karnataka & Ors. [(1979) 3 SCR 937], this court clearly held that the words "regular" or "regularization" do not connote permanence and cannot be construed so as to convey an idea of the nature of tenure of appointments. They are terms calculated to condone any procedural irregularities and are meant to cure only such defects as are attributable to methodology followed in making the appointments. This court emphasized that when rules framed under Article 309 of the Constitution of India are in force, no regularization is permissible in exercise of the executive powers of the Government under Article 162 of the Constitution in contravention of the rules. These decisions and the principles recognized therein have not been dissented to by this Court and on principle, we see no reason not to accept the proposition as enunciated in the above decisions. We have, therefore, to keep this distinction in mind and proceed on the basis that only 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, 11 O.A. No. 4582/2018 can be regularized and that it alone can be regularized and granting permanence of employment is a totally different concept and cannot be equated with regularization.
17. We have already indicated the constitutional scheme of public employment in this country, and the executive, or for that matter the Court, in appropriate cases, would have only the right to regularize an appointment made after following the due procedure, even though a non-fundamental element of that process or procedure has not been followed. This right of the executive and that of the court, would not extend to the executive or the court being in a position to direct that an appointment made in clear violation of the constitutional scheme, and the statutory rules made in that behalf, can be treated as permanent or can be directed to be treated as permanent.
30. In State of Himachal Pradesh Vs. Suresh Kumar Verma (1996 (1) SCR 972), a three Judge Bench of this Court held that a person appointed on daily wage basis was not an appointee to a post according to Rules. On his termination, on the project employing him coming to an end, the Court could not issue a direction to re- engage him in any other work or appoint him against existing vacancies. This Court said:
"It is settled law that having made rules of recruitment to various services under the State or to a class of posts under the State, the State is bound to follow the same and to have the selection of the candidates made as per recruitment rules and appointments shall be made accordingly. From the date of discharging the duties attached to the post the incumbent becomes a member of the services. Appointment on daily wage basis is not an appointment to a post according to the Rules."
Their Lordships cautioned that if directions are given to re-engage such persons in any other work or appoint them against existing vacancies, "the judicial process would become another mode of recruitment dehors the rules."
31. In Ashwani Kumar and others Vs. State of Bihar and others (1996 Supp. (10) SCR 120), this Court was considering the validity of confirmation of the irregularly employed. It was stated:
"13. So far as the question of confirmation of these employees whose entry was illegal and void, is concerned, it is to be noted that question of confirmation or regularization of an irregularly appointed candidate would arise if the candidate concerned is appointed in an irregular manner or on ad hoc basis against an available vacancy which is already sanctioned. But if the initial entry itself is unauthorized and is not against any sanctioned vacancy, question of regularizing the incumbent on such a non- existing vacancy would never survive for consideration and even if such purported regularization or confirmation is given it would be an exercise in futility."
This Court further stated :
"14. In this connection it is pertinent to note that question of regularization in any service including any government service may arise in two contingencies. Firstly, if on any available clear vacancies which are of a long duration appointments are made on ad hoc basis or daily-wage basis by a competent authority and are continued from time to time and if it is found that the incumbents concerned 12 O.A. No. 4582/2018 have continued to be employed for a long period of time with or without any artificial breaks, and their services are otherwise required by the institution which employs them, a time may come in the service career of such employees who are continued on ad hoc basis for a given substantial length of time to regularize them so that the employees concerned can give their best by being assured security of tenure. But this would require one precondition that the initial entry of such an employee must be made against an available sanctioned vacancy by following the rules and regulations governing such entry. The second type of situation in which the question of regularization may arise would be when the initial entry of the employee against an available vacancy is found to have suffered from some flaw in the procedural exercise though the person appointing is competent to effect such initial recruitment and has otherwise followed due procedure for such recruitment. A need may then arise in the light of the exigency of administrative requirement for waiving such irregularity in the initial appointment by a competent authority and the irregular initial appointment may be regularized and security of tenure may be made available to the incumbent concerned. But even in such a case the initial entry must not be found to be totally illegal or in blatant disregard of all the established rules and regulations governing such recruitment."
32. The Court noticed that in that case all constitutional requirements were thrown to the wind while making the appointments. It was stated, "On the contrary all efforts were made to bypass the recruitment procedure known to law which resulted in clear violation of Articles 14 and 16(1) of the Constitution of India, both at the initial stage as well as at the stage of confirmation of these illegal entrants. The so called regularizations and confirmations could not be relied on as shields to cover up initial illegal and void actions or to perpetuate the corrupt methods by which these 6000 initial entrants were drafted in the scheme."
38. In Union Public Service Commission Vs. Girish Jayanti Lal Vaghela & Others [2006 (2) SCALE 115], this Court answered the question, who was a Government servant and stated:-
"12. Article 16 which finds place in Part III of the Constitution relating to fundamental rights provides that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. The main object of Article 16 is to create a constitutional right to equality of opportunity and employment in public offices. The words "employment"or "appointment" cover not merely the initial appointment but also other attributes of service like promotion and age of superannuation etc. The appointment to any post under the State can only be made after a proper advertisement has been made inviting applications from eligible candidates and holding of selection by a body of experts or a specially constituted committee whose members are fair and impartial through a written examination or interview or some other rational criteria for judging the inter se merit of candidates who have applied in response to the advertisement made. A regular appointment to a post under the State or Union cannot be made without issuing advertisement in the prescribed manner which may in some cases include inviting applications from the employment exchange where eligible candidates get their names registered. Any regular appointment made on a post under the State or Union without issuing advertisement inviting applications from eligible candidates and without holding a 13 O.A. No. 4582/2018 proper selection where all eligible candidates get a fair chance to compete would violate the guarantee enshrined under Article 16 of the Constitution (See B.S. Minhas Vs. Indian Statistical Institute and others AIR 1984 SC 363)."
40. At this stage, it is relevant to notice two aspects. In Kesavananda Bharati Vs. State of Kerala (1973 Supp. S.C.R. 1), this Court held that Article 14, and Article 16, which was described as a facet of Article 14, is part of the basic structure of the Constitution of India. The position emerging from Kesavananada Bharati (supra) was summed up by Jagannatha Rao, J., speaking for a Bench of three Judges in Indira Sawhney Vs. Union of India (1999 Suppl. (5) S.C.R. 229). That decision also reiterated how neither the Parliament nor the Legislature could transgress the basic feature of the Constitution, namely, the principle of equality enshrined in Article 14 of which Article 16 (1) is a facet. This Court stated:-
"64. The preamble to the Constitution of India emphasises the principle of equality as basic to our constitution. In Keshavananda Bharati v. State of Kerala, it was ruled that even constitutional amendments which offended the basic structure of the Constitution would be ultra vires the basic structure. Sikri, CJ. laid stress on the basic features enumerated in the preamble to the Constitution and said that there were other basic features too which could be gathered from the Constitutional scheme (para 506 A of SCC). Equality was one of the basic features referred to in the Preamble to our Constitution. Shelat and Grover, JJ. also referred to the basic rights referred to in the Preamble. They specifically referred to equality (paras 520 and 535A of SCC). Hegde & Shelat, JJ. also referred to the Preamble (paras 648, 652). Ray, J. (as he then was) also did so (para 886). Jaganmohan Reddy, J. too referred to the Preamble and the equality doctrine (para 1159). Khanna, J. accepted this position (para 1471). Mathew, J. referred to equality as a basic feature(para 1621). Dwivedi, J. (paras 1882, 1883) and Chandrachud, J.(as he then was) (see para 2086) accepted this position.
65. What we mean to say is that Parliament and the legislatures in this Country cannot transgress the basic feature of the Constitution, namely, the principle of equality enshrined in Article 14 of which Article 16(1) is a facet."
41. In the earlier decision in Indra Sawhney Vs. Union of India [1992 Supp. (2) S.C.R. 454), B.P. Jeevan Reddy, J. speaking for the majority, while acknowledging that equality and equal opportunity is a basic feature of our Constitution, has explained the exultant position of Articles 14 and 16 of the Constitution of India in the scheme of things. His Lordship stated:-
"644(6). The significance attached by the founding fathers to the right to equality is evident not only from the fact that they employed both the expressions 'equality before the law' and 'equal protection of the laws' in Article 14 but proceeded further to state the same rule in positive and affirmative terms in Articles 15 to 18...
645(7). Inasmuch as public employment always gave a certain status and power --- it has always been the repository of State power ---besides the means of livelihood, special care was taken to declare equality of opportunity in the matter of public employment by Article 16. Clause (1), expressly declares that in the matter of public employment 14 O.A. No. 4582/2018 or appointment to any office under the state, citizens of this country shall have equal opportunity while clause (2) declares that no citizen shall be discriminated in the said matter on the grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them. At the same time, care was taken to, declare in clause (4) that nothing in the said Article shall prevent the state from making any provision for reservation of appointments or posts in favour of any backward class of citizen which in the opinion of the state, is not adequately represented in the services under the State..."(See paragraphs 6 and 7 at pages 544 and 545) These binding decisions are clear imperatives that adherence to Articles 14 and 16 of the Constitution is a must in the process of public employment.
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. High Courts acting under Article 226 of the Constitution of India, should not ordinarily issue directions for absorption, regularization, 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 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.
45. While directing that appointments, temporary or casual, be regularized or made permanent, courts are swayed by the fact that the concerned person 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 15 O.A. No. 4582/2018 aware of the nature of his employment. He accepts the employment with eyes open. It may be true that he is not in a position to bargain -- not at arms 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 succor 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 of India.
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 recognized 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 concerned cases, 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 concerned department on a wage that was made known to them. There is no case that the wage 16 O.A. No. 4582/2018 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 regularizing 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.
41. It is argued that in a country like India where there is so much poverty and unemployment and there is no equality of bargaining power, the action of the State in not making the employees permanent, would be violative of Article 21 of the Constitution. But the very argument indicates that there are so many waiting for employment and an equal opportunity for competing for employment and it is in that context that the Constitution as one of its basic features, has included Articles 14, 16 and 309 so as to ensure that public employment is given only in a fair and equitable manner by giving all those who are qualified, an opportunity to seek employment. In the guise of upholding rights under Article 21 of the Constitution of India, a set of persons cannot be preferred over a vast majority of people waiting for an opportunity to compete for State employment. The acceptance of the argument on behalf of the respondents would really negate the rights of the others conferred by Article 21 of the Constitution, assuming that we are in a position to hold that the right to employment is also a right coming within the purview of Article 21 of the Constitution. The argument that Article 23 of the Constitution is breached because the employment on daily wages amounts to forced labour, cannot be accepted. After all, the employees accepted the employment at 17 O.A. No. 4582/2018 their own volition and with eyes open as to the nature of their employment. The Governments also revised the minimum wages payable from time to time in the light of all relevant circumstances. It also appears to us that importing of these theories to defeat the basic requirement of public employment would defeat the constitutional scheme and the constitutional goal of equality.
51. The argument that the right to life protected by Article 21 of the Constitution of India would include the right to employment cannot also be accepted at this juncture. The law is dynamic and our Constitution is a living document. May be at some future point of time, the right to employment can also be brought in under the concept of right to life or even included as a fundamental right. The new statute is perhaps a beginning. As things now stand, the acceptance of such a plea at the instance of the employees before us would lead to the consequence of depriving a large number of other aspirants of an opportunity to compete for the post or employment. Their right to employment, if it is a part of right to life, would stand denuded by the preferring of those who have got in casually or those who have come through the back door. The obligation cast on the State under Article 39(a) of the Constitution of India is to ensure that all citizens equally have the right to adequate means of livelihood. It will be more consistent with that policy if the courts recognize that an appointment to a post in government service or in the service of its instrumentalities, can only be by way of a proper selection in the manner recognized by the relevant legislation in the context of the relevant provisions of the Constitution. In the name of individualizing justice, it is also not possible to shut our eyes to the constitutional scheme and the right of the numerous as against the few who are before the court. The Directive Principles of State Policy have also to be reconciled with the rights available to the citizen under Part III of the Constitution and the obligation of the State to one and all and not to a particular group of citizens. We, therefore, overrule the argument based on Article 21 of the Constitution.
52. Normally, what is sought for by such temporary employees when they approach the court, is the issue of a writ of mandamus directing the employer, the State or its instrumentalities, to absorb them in permanent service or to allow them to continue. In this context, the question arises whether a mandamus could be issued in favour of such persons. At this juncture, it will be proper to refer to the decision of the Constitution Bench of this Court in Dr. Rai Shivendra Bahadur Vs. The Governing Body of the Nalanda College [(1962) Supp. 2 SCR 144]. That case arose out of a refusal to promote the writ petitioner therein as the Principal of a college. This Court held that in order that a mandamus may issue to compel the authorities to do something, it must be shown that the statute imposes a legal duty on the authority and the aggrieved party had a legal right under the statute or rule to enforce it. This classical position continues and a mandamus could not be issued in favour of the employees directing the government to make them permanent since the employees cannot show that they have an enforceable legal right to be permanently absorbed or that the State has a legal duty to make them permanent.
53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. NARAYANAPPA (supra), R.N. NANJUNDAPPA (supra), and B.N. NAGARAJAN (supra), and referred to in paragraph 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 courts or of tribunals. The question of regularization 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 18 O.A. No. 4582/2018 in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularize 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 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 regularization, if any already made, but not subjudice, need not be reopened based on this judgment, but there should be no further by-passing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme.
54. It is also clarified that those decisions which run counter to the principle settled in this decision, or in which directions running counter to what we have held herein, will stand denuded of their status as precedents.
56. Coming to Civil Appeal Nos. 1861-2063 of 2001, in view of our conclusion on the questions referred to, no relief can be granted, that too to an indeterminate number of members of the association. These appointments or engagements were also made in the teeth of directions of the Government not to make such appointments and it is impermissible to recognize such appointments made in the teeth of directions issued by the Government in that regard. We have also held that they are not legally entitled to any such relief. Granting of the relief claimed would mean paying a premium for defiance and insubordination by those concerned who engaged these persons against the interdict in that behalf. Thus, on the whole, the appellants in these appeals are found to be not entitled to any relief. These appeals have, therefore, to be dismissed.
58. In the result, Civil Appeal Nos. 3595-3612 of 1999, Civil Appeal No. 3849 of 2001, Civil Appeal Nos. 3520-3524 of 2002 and Civil appeal arising out of Special Leave Petition (Civil) Nos. 9103-9105 of 2001 are allowed subject to the direction issued under Article 142 of the Constitution in paragraph 46 and the general directions contained in paragraph 44 of the judgment and Civil Appeal Nos. 1861-2063 of 2001 are dismissed. There will be no order as to costs."
[Emphasis supplied]
(iv) In Accounts Officer (A&I) A.P.S.R.T.C. & Ors. Vs. P. Chandra Sekhara Rao & Ors., reported in (2006) 7 SCC 488. Their Lordships seisin with similar issue "whether the respondents fulfilled the requirements for regularization of their services?" The relevant paragraphs 6 to 9 for ready reference reads as -
"6. The High Court did not have the benefit of considering the recent decisions of this Court including the Constitution Bench judgment in Secy., State of Karnataka v. Umadevi (3) [(2006) 4 SCC 1 : 2006 SCC (L&S) 753] . In the said decision it has categorically been held that the appointments made on a contract basis or on daily wages and in violation of the statutory rules or the Rules framed under the proviso appended to Article 309 of the Constitution of India, being void ab initio and thus nullities and hence the question of regularising their services would not arise.
7. The Constitution Bench in its judgment approved another Division Bench decision of this Court in 19 O.A. No. 4582/2018 A.Umarani v. Registrar, Coop. Societies [(2004) 7 SCC 112 :
2004 SCC (L&S) 918] wherein this Court opined: (SCC p. 126, para 45) "45. No regularization is, thus, permissible in exercise of the statutory power conferred under Article 162 of the Constitution if the appointments have been made in contravention of the statutory rules."
8. In view of the aforementioned authoritative pronouncements of this Court, therefore, even no direction for regularisation could have been made on the basis of any guidelines issued by the Andhra Pradesh State Road Transport Corporation. Such guidelines, in any event, could not have been made even in terms of Article 162 of the Constitution of India.
9. In view of the aforementioned decisions of this Court, we are of the opinion that the impugned judgment cannot be sustained and is set aside accordingly. The appeals are allowed. No costs."
[Emphasis supplied]
17. Now applying the principles of law, laid down by Hon'ble Supreme Court under Article 141 of the Constitution of India, binding on us. Admittedly, all the applicants have been engaged by contractors to discharge work of Loco Box-Porters and entry-permit have been issued placed on record as Annexure A-3 and no other material placed on record to demonstrate contractual terms and conditions. Respondents have admitted the fact that applicants were engaged by the contractors, without following procedure prescribed under rules and Article 14 & 16 of the Constitution of India. It is also not disputed that contractors are disbursing fixed amount of wages to the applicants since their initial engagement as early as starting from 04.01.2004.
18. Applicants have also filed crew availability report to enable them to attend particular trains for purpose of loading and unloading of boxes of the Drivers and Guards and also substantiated by certificates related to work performance of Box- Porters and medical prescriptions taken by them from railway doctors. It is undisputed fact that all the applicants have been engaged by outsourcing through contractors. Hon'ble Supreme Court in the Constitution Bench judgment in case of Roshan Lal Vs. Union of India, AIR 1967 SC 1889. Their Lordships observed that "the origin of government service is contractual, there being an offer and acceptance in every case, yet once appointed to his post or office, the government servant acquires a status and his rights and obligations are no longer determined by consent of both the parties 20 O.A. No. 4582/2018 but statute or statutory rules". So also Hon'ble Supreme Court in case of Uttaranchal Jal Sansthan Vs. Laxmi Devi, (2009) 7 SCC
205. Their Lordships held that "an employee can claim status as government servant only if his appointment has been made in terms of recruitment rules and he fulfills criterion for appointment. An appointment made in violation of constitutional scheme is a nullity."
19. The applicants have not filed terms of contractual assignments though contractors. But it is the admitted fact that applicants have been employed through contractors and same is the question of fact not disputed. So also, it is not at all disputed that all the applicants were engaged without following procedure laid down under Articles 14, 16 and 309 of the Constitution of India and in view of law laid down y Hon'ble Supreme Court, the regularization
- is to condone procedural irregularities as are attributable to methodology followed in making the appointments, where there is something irregular, some element in process of selection as per recruitment rules, which is irregular not illegal, then such employee can alone be regularized.
20. Hon'ble Supreme Court has been reiterating that regularization cannot be claimed as another mode of recruitment and recruitment has to be in accordance with principles of equality provided under Articles 14 and 16 of the Constitution of India in consonance with recruitment rules framed under Article 309 of the Constitution of India.
21. Shri S.P. Sethi, learned counsel for the applicants placed heavy reliance on premise that applicants working since long period more than 15 years and deserve to be considered for regularization against post of Box-Porters or against any Group-D post in railways. We have carefully gone through the Constitution Bench judgment in case of Secretary, State of Karnatka & Ors. Vs. Uma Devi (3) & Ors. (supra) also extracted relevant paragraphs for ready reference and found that the reference before Hon'ble Supreme Court was with regard to the similar issue involved in this case in our hand. Their Lordships in paragraph 7 of the judgment stated that the claim based on having continued in employment for long time, seeking absorption in the posts in which they had worked and even 21 O.A. No. 4582/2018 if they were not appointed in terms of the procedure prescribed for appointment and sought regularization of services against posts in which they worked. Their Lordships in paragraphs 43, 44, 45, 48, 53 have dealt in detail and held in paragraph 54 that those decisions which run counter to the principles settled in this decision until stand denuded of their status as precedent. Applicants submitted worked for more than 15 years hence entitle for regularization. This aspect of the matter has also been specifically dealt with by the said Constitution Bench in paragraph 45 of the judgment the relevant paragraphs to decide the issue involved in present case, have already been extracted.
22. Hon'ble Supreme Court in Uma Devi (3) (supra), the Constitution Bench decision also dealt with similar argument as raised by counsel for applicants in case in our hand, that respondents action not regularizing the applicants was not fair within the framework of the rules of law. Their Lordships observed that the appointments which have not been made in accordance with the Constitutional scheme, are regularized, that would amount to perpetuate illegalities in matter of public employment and would be a negation of the constitutional scheme adopted by the people of the country.
23. So far as contention of the applicants that the respondents be directed not to discontinue the applicants based on new trolley system. The Constitution Bench decision in case of Uma Devi
(s)(supra) also dealt this aspect of the matter in paragraph 47, extracted hereinabove, that where a person gets engaged as casual labour, contractual or temporary employee same is not based on a proper selection as recognized by relevant rules and procedure under Articles 14 & 16 of the Constitution of India and he is aware of consequences and theory of legitimate expectation cannot be involved.
24. Shri S.P. Sethi, learned counsel for applicants much emphasized and placed reliance on law laid down in case of National Federation of Railways Porters Vendors and Bearers Vs. Union of India & Ors., reported in 1995 Supp.(3) SCC 152; Narendra Kumar Tiwari & Ors. Vs. State of Jharkhan & Ors.
22 O.A. No. 4582/2018(2018) 8 SCC 238 and R.K. Panda Vs. SAI (1994) 5 SCC 304. We have carefully gone through the above cited judgments.
25. But it is settled position of law -
"But it is settled position of law that judgment has got no universal application rather the judgment is to be tested on the basis of fact of each case. Reference in this regard be made to the judgment rendered of Hon'ble Supreme Court in the case of Dr. Subramanian Swamy versus State of Tamil Nadu and others, (2014) 5 SCC75. The relevant paragraph 47 which reads as under -
"47. It is a settled legal proposition that the ratio of any decision must be understood in the background of the facts of that case and the case is only an authority for what it actually decides, and not what logically follows from it. "The Court should not-place reliance on decisions without discussing as to how the factual situation fits in with the fact Situation of the decision on which reliance is placed."
[Emphasis supplied]
26. We are now proceeding to examine the factual aspects as was in the case of National Federation of Railways Porters Vendors and Bearers Vs. Union of India & Ors. (supra) and found that therefrom that it is a case of year 1995 decided by 2-Judge Bench of Hon'ble Supreme Court in case of Railways Parcel Porters for absorption based on directions given by a three-Judge Bench of Hon'ble Supreme Court in case of R.K. Panda Vs. SAIL, (1994) 5 SCC 304. So also placed heavy reliance in case of Narendra Kumar Tiwari Vs. State of Jharkhand, (2018) 8 SCC 238 and Mahanadi Coalfields Ltd. Vs. Braj. Rajnagar Coal Mines Workers Union, 2024 SCC Online SC 270.
27. The issue involved in present case is squarely covered by the issue decided by the Constitution Bench in case of Uma Devi (s) (supra) and in view of paragraph 54 of the said Constitution Bench decision dated 10.04.2006. Their Lordships clarified that those decisions which run counter to the principle settled in this decision or in which directions running counter to what we have held, will stand denuded of their status as precedents. Thus, the judgments rendered in 2-Judge Bench decision in case of National Federation of Railways Porters Vendors and Bearers Vs. Union of India & Ors. (supra) based on 3-Judge Bench decision in case of R.K. Panda Vs. SAIL (supra) has no applicability and they are not precedents applicable in facts of the present case, in view of the five-
23 O.A. No. 4582/2018Judge, Constitutional Bench decision in case of Uma Devi (3) (supra).
28. We have also examined the factual aspect in case of Narendra Kumar Tiwari Vs. State of Jharkhand, (2018) 8 SCC 238 and Mahanadi Coalfields Ltd. Vs. Braj. Rajnagar Coal Mines Workers Union, 2024 SCC Online SC 270. We found that in case of Narendra Kumar Tiwari (supra), the petitioners were denied benefits or regularization in view of Jharkhand Sarkar Se Adhinasth Aniyamit Rup Se Niyukti Evam Karyarat Karmiyo Ki Sewa Niyamitikaran Niyamawati, 2015 and not completed 10 years on cut-off date of 10.04.2006 in view of law laid down in case of Uma Devi (3) (supra). On the basis of concept of one-time measure explained in State of Karnataka Vs. M.L. Kesari (2010) 9 SCC 247 - one time measure to be understood in cases of those who were irregularly appointed. So also in case of Mahanadi Coal Fields Ltd. Vs. Braj. Rajnagar Coal Mines (supra) - related engagement of workmen by contractors sought permanent status based on National Coal Wage Agreement IV dated 27.07.1982.
29. Hon'ble Supreme Court in case of Nair Service Society Vs T.Beermasthan & Ors, (2009) 5 SCC 545. Their Lordships held -
"Service Law - Service jurisprudence- Judgments on service law, held, should be understood in the context of relevant service rules.
[Para 48]
30. There is material difference in case of Narendra Kumar Tiwari Vs. State of Jharkhand, (supra) and Mahanadi Coalfields Ltd. Vs. Braj. Rajnagar Coal Mines Workers Union (supra) and will not be applicable in the case in hand as there is material difference in facts of the aforesaid cases.
31. Admittedly, applicants were never appointed by any offer of appointment by the official respondents and do not enjoy status of Central Government employees. There is no existence of master- servant relationship between the applicants and respondents. The agreement not filed with the OA by any of the applicants but it is admitted fact that they are contractor's labour engaged by outsourcing agency. In our considered opinion they do not have 24 O.A. No. 4582/2018 indefeasible right to be considered for regularization on the posts meant for regular railway servants. Hon'ble Supreme Court in the Constitution Bench judgment in case of Uma Devi (3) (supra) held such back-door entry in contravention to the Constitutional Scheme of equal opportunities in public employment is impermissible in law. We do not find any master-servant relationship in the present case and same is sine-qua-non to apply the ratio for direction to grant regularization on the sanctioned posts.
32. The applicants were engaged by contractors de hors the recruitment rules and in violation of constitutional scheme and procedure of Articles 14 & 16 and 309 of the Constitution of India and applicants do not have vested legal right to seek regularization of their services. The issue involved in present case has already been dealt with by the Constitution Bench decision in case of Uma Devi (3) (supra), relevant paragraphs already extracted and reproduced for ready reference.
33. What comes out loud and clear from the above that applicants were engaged as contractual labour and never been appointed in terms of relevant recruitment rules or in adherence of Articles 14, 16 and 309 of the Constitution of India. The engagement of applicants is de hors the statutory recruitment rules and Article 14 and 16 of the Constitution of India. The applicants failed to establish that they have any vested legal right to seek regularization of their services.
34. The issue involved in the present case is no longer res integra and the Constitution Bench in case of Uma Devi (3) (supra) has already dealt with, we do not find any merit in the case in hand. The Original Application being devoid of merits deserves to be dismissed.
CONCLUSION
35. We have already analyzed in detail the issue in light of aforesaid analysis. Accordingly, we decide the issue against the applicants and in favour of the respondents. The applicants have been engaged by contractors de hors the recruitment rules and in violation of Articles 14, 16 and 309 of Constitution of India. The applicants have no legal right to seek regularization of their services 25 O.A. No. 4582/2018 and also no protection can be given. Applicants are not entitled to the relief sought for in the present OA.
36. Resultantly, the Original Application being devoid of merits is accordingly dismissed.
37. There shall be no order as to costs.
38. As a sequel thereof, pending Miscellaneous Application(s), if any, shall also stand disposed off.
(Ajay Pratap Singh) (Dr. Chhabilendra Roul)
Member (J) Member (A)
/na/