Delhi High Court
Aiims Employees Union & Ors. vs Aiims & Ors. on 2 February, 1999
Equivalent citations: 1999IIAD(DELHI)866, 78(1999)DLT453, (1999)IILLJ1184DEL
Author: K.S. Gupta
Bench: K.S. Gupta
ORDER Devinder Gupta, J.
1. C.Ws. Nos.456/95 & 4774/94 are by Union, claiming to be registered under the Trade Union Act, of 'C' and 'D' Grade employees of All India Institute of Medical Science. The prayers made therein are to issue directions against the respondent Institute to regularise the employees mentioned in AnnexureA (annexed separately to both these petitions) and to pay salary and other consequential benefits, as admissible to regular employees.
2. C.Ws. Nos.2737/95 and 4474/95 are by individual employees for regularisation of their services on the ground that they have completed 240 days of service.
3. Along with the petition, an application for interim relief was also filed in C.W. No.456/95. On 14.9.1995, it was directed that the individual employees apprehending adverse orders, are at liberty to file separate petitions and that the Association cannot be allowed to agitate individual causes in such writ petitions.
4. During pendency of the petitions, a statement was made on 28.11.1995 by learned counsel for the respondents that steps were being taken by the respondent Institute to formulate a policy in respect of similarly placed employees as those of petitioners. The case was thereafter adjourned from time to time. A copy of the said policy was placed on record. On going through the same on 7.10.1996, it was observed by the Court that certain changes were required to be made in the policy. Learned counsel for the respondents stated that necessary changes, as orally suggested, will be incorporated in the policy, keeping in view various decisions of Supreme Court. Ultimately, the policy of regularisation, as now formulated by the respondents, was placed on record. It was stated that most of the petitioners had no objection to the policy, but some agitation was still being made with respect to some of the clauses of the policy.
5. The earlier policy, which was placed on record on 5.10.1996 was slightly modified. The modified policy was placed on record on 1.2.1997 on the affidavit of Dr.P.K.Dave, Director, AIIMS, New Delhi stating that a subcommittee was asked to look into the matter relating to the cases of daily wage employees. The said committee, after going into various aspects of the matter, had recasted the policy already drawn. The recommendations of the subcommittee were approved by the Director on 25.1.1997. The revised policy for regularisation of daily wage employees in Group 'C' posts is as follows:
"REVISED POLICY FOR REGULARISATION OF DAILY WAGES EMPLOYEES IN GROUP `C' POSTS.
1. One must have been completed a minimum of two years of service on or before 23.8.1995, putting at least 240 days of service as Daily Wagers in each of the year.
2. He must have been engaged either through the process of Em ployment Exchange or through open advertisement at the time of initial or subsequent entry.
3. He must fulfill the Recruitment Rules for the post concerned (by Direct Recruitment) and he will be allowed to compete with the other candidates sponsored by the Employment Exchange.
4. He must be on the rolls of the Institute during the period 1.4.94 to 23.8.95.
5. His work and conduct should be satisfactory and found fit for entering the Government service, viz a viz medical, character, antecedents etc.
6. Has been found fit for regularisation by the Departmental Selection Committee.
7. Reservation shall be applicable to such regularisation.
8. He will be given relaxation in the upper age limit only if at the time of initial engagement on daily wages, he had not crossed the upper agelimit for the relevant post.
9. That the above regularisation shall be made in phased manner against vacancies arising due to retirement, resignations or new creation with the approval of the competent authority."
6. Revised policy for regularisation of daily rated employees in Group 'D' posts is in following terms:
"REVISED POLICY FOR REGULARISATION OF DAILY WAGES EMPLOYEES IN GROUP `D' POSTS.
1. One must have been completed a minimum of two years of service on or before 23.8.1995, putting at least 240 days of service as Daily Wagers in each of the year.
2. He must have been engaged either through the process of Em ployment Exchange or through open advertisement at the time of initial or subsequent entry.
3. He must fulfill the Recruitment Rules for the post concerned.
4. He must be on the rolls of the Institute during the period 1.4.94 to 23.8.95.
5. His work and conduct should be satisfactory and found fit for entering the Government service, viz a viz medical, character, antecedents etc.
6. Has been found fit for regularisation by the Departmental Selection Committee.
7. Reservation shall be applicable to such regularisation.
8. He will be given relaxation in the upper age limit only if at the time of initial engagement on daily wages, he had not crossed the upper agelimit for the relevant post.
9. Interse seniority would be observed, and persons working on regular basis shall be senior to the persons now being appointed.
10. That the above regularisation shall be made in phased manner viz by creating supernumerary posts with the approval of the competent authority. This process shall be attempted to be over within a period of one year.
11. All persons eligible for regularisation may apply within a period of 2 weeks with all supporting evidence."
7. Grievance on behalf of some of the petitioners is that clauses (1) and (4) of the policy requiring that one must have completed two years of service on or before 23.8.1995 by putting at least 240 days of service as daily wager and must be on the rolls of the Institute during the period from 1.4.1994 to 23.8.1995, are unreasonable. It was stated that most of the workers were not permitted to complete 240 days in a year. Artificial long breaks were deliberately given while deploying workers on daily wages. Contention of learned counsel for the respondents has been that daily wagers were engaged from time to time, keeping in view the exigencies of service and administration. There was no question of artificial breaks being deliberately given in the service, but it was a tendency on the part of some of the workmen of reporting for work at their whims, which according to learned counsel for the respondents would be evident from the chart prepared and filed by the petitioners in C.W. No.2737/95.
8. In the chart, which is at p27 of C.W. No.2737/95, against the name of Surender Bansal, there is a break of almost three months from 30.11.1993 to 23.2.1994. Dinesh Kumar at Serial No.4 did not report or worked after 10.4.1993. In some of other cases also, we find that there is a long break. The period is beyond two to three months. Otherwise most of them have been almost continuously been engaged and now for a couple of years, in some cases for the last about ten years. No doubt in view of the observations made by Supreme Court in the case of Delhi Development Horticulture Employees' Union Vs. Delhi Administration, Delhi & Ors., , it would not be proper to issue blanket directions for wholesome regularisation in respect of all daily rated persons working even one year, but relief for regularisation must be moulded in each case, having regard to the facts and circumstances of the case. In the policy framed by the respondent Institute, there are two conditions besides others for regularisation that the daily rated employee must be on the rolls during 1.4.1994 to 23.4.1995 and must have also completed minimum of two years on or before 23.8.1995 by putting at least 240 days of service as a daily wager in each of the year. Reading these two conditions together would imply that daily wage employees, who had ceased to be on the rolls of the Institute prior to 1.4.1994 would not be considered for regularisation and in case within the last two years prior to 23.8.1995, they had not put in at least 240 days of service in each year as daily wager, they would also not be considered for regularisation, which condition we are of the view, is strictly in consonance with the principles laid down by the Apex Court in number of decisions including that of State of Haryana & Ors. Vs. Piara Singh & Ors., . Requirement of minimum continuous service as daily wager of two to three years has been approved by Apex Court in Khagesh Kumar & Ors. Vs. Inspector General of Registration & Ors., and Delhi Development Horticulture Employees' Union's case (supra).
9. In case the requirement of the conditions 1 and 4 of the Policy of the respondents is dispensed with or modified to reduce the period, the same would become arbitrary. We are of the view that the same will not remain in consonance with the now settled principles laid down in the number of decisions. While directing regularisation, emphasis has always been for continuous service for a minimum number of years. The respondent Institute having provided for a minimum of 2 years' continuous service service with a rider that daily wager should also be on the rolls during the cut off period 1.4.1994 to 23.8.1995, will meet the ends of justice and the same is not arbitrary.
10. The second condition that the petitioners must have been engaged either through Employment Exchange or through open advertisement is also not an arbitrary. Petitioners' case is that it was for the respondent authority to have seen at the time of initial recruitment that the persons are employed through Employment Exchanges or through open advertisement. Now this condition cannot be made retrospective. It was contended that daily wagers who have worked for years with respondent Institute, to its satisfaction cannot be disqualified merely on the condition of not having been employed initially through Employment Exchanges. We do not find any substance in the petitioners' submissions more particular in what has been observed by Supreme Court in para14 of the decision in Piara Singh's case (supra), which reads:
"14. The next question is whether the orders issued by the two Governments were arbitrary and unreasonable in so far as they prescribed that only those employees who had been sponsored by Employment Exchange should alone be regularised. In our opinion, this was a reasonable and wholesome requirement designed to curb and discourage back door entry and irregular appointments. The Government orders say that all those who have been sponsored by Employment Exchange or have been appointed after issuing a public advertisement alone should be regularised. We see no unreasona bleness or invalidity in the same. As stated above, it is a wholesome provision and ought not to have been invalidated. Moreover, as pointed out hereinbefore, it is not found by the High Court that the writ petitioners were appointed only after obtaining a nonavailability certificate from the Employment Exchange. The decision relied upon by the High Court does not say that even without such a certificate from Employment Exchange, an appointment can be made or that such appointment would be consistent with the mandate of Articles 14 and 16."
11. In the case of Delhi Development Horticulture Employees' Union Vs. Delhi Administration, Delhi & Ors., , while deprecating the tendency of engaging daily wagers without advertisement and/or through Employment Exchange, the Supreme Court held the same to be backdoor entry and thereby jeopardising the public interest. As such, the Supreme Court refused to give any direction to regularise the petitioners therein.
12. Another condition in the revised policy about the daily wager fulfillling the conditions of the Recruitment Rules for the post concerned by direct recruitment and that he will be allowed to compete with other candidates sponsored by the Employment Exchange, has also got the approval of Apex Court in Pyara Singh's case (supra) wherein it is said: "We must also say that the further requirement prescribed in the orders viz., that the employees must have possessed the pre scribed qualifications for the post at the time of his appoint ment on ad hoc basis is equally a valid condition. Indeed, no exception is taken to it by the High Court."
13. The other condition is that other daily wager should be found fit for regularisation by the Departmental Selection Committee. The contention on behalf of the petitioners is that if a daily wager did not fulfill the conditions of Recruitment Rules, then why he was employed at all for years together. The respondent authority deliberately did not make regular recruitment and continued to employ daily wagers and getting regular work from them and now the respondents are estopped from contending that the daily wager must fulfill the Recruitment Rules. In so far as fulfillling the criteria laid down in Recruitment Rules is concerned, there cannot be any objection raised to that by the petitioners. There is no right vested in any daily wager much less an enforceable right to seek regularisation. Regularisation cannot be ordered to be made de hors the Recruitment Rules. Employees seeking regular employment must comply with the conditions put forth in the policy. The condition that a daily wager must fulfill the requisite conditions of Recruitment Rules has also found favour in E.Ramakrishnan & Ors. Vs. The State of Kerala & Ors., . It was held that decision cannot be taken contrary to service rules to regularise services de hors the Recruitment Rules and the statutory process of selection through Service Commission.
14. Same view was taken in the case of D.Kishore Vs. State of Maharashtra, 1996 Supreme (8) 82 that persons appointed on temporary basis de hors the rules have no right to the post.
15. In Union of India Ors. Vs. Bishamber Dutt, , the direction issued by the Service Tribunal for regularising the services of the persons, who had not been appointed on regular basis in accordance with the rules, was set aside. The contention that they had been working regularly for a long time and were entitled to regularisation was negated.
16. In Dr. Surinder Singh Jamwal & Anr. Vs. State of Jammu & Kashmir & Ors., , it was held that ad hoc appointment does not confer any right for regularisation of service. Regularisation is to be governed by the statutory rules. An ad hoc employee can, however, apply and seek selection according to the rules. In that case, State was directed to relax necessary upper age limit. The revised policy in the instant case for both categories of posts does take care of relaxation in the upper age limit, only in such cases, where at the time of initial engagement on daily wages, he had not crossed the upper age limit for recruitment to the relevant post under Recruitment Rules.
17. In Ashwani Kumar & Ors. Vs. State of Bihar & Ors., , appointments without following appropriate procedure prescribed by Government circulars without any advertisement or inviting applications from open market and without names being called from Employment Exchange and without notifying vacancies in the notice board, were held to be in flagrant breach of Articles 14 and 16 of the Constitution of India. As such, this condition of fulfillling the Recruitment Rules and competing with other candidates sponsored by Employment Exchanges is also not arbitrary.
18. No exception can be made to the other conditions in the policy that work and conduct of persons seeking regular employment should be satisfactory, they should be found fit for entry in Government service and reservation shall be applicable at the time of regularisation and the regularisation will be made in a phased manner.
19. It is not disputed that daily wagers are being paid the minimum wages. There is no question of issuing directions for payment of wages at par with regularly deployed employees when regular posts are neither created nor existing. Equal pay for equal work has no mechanical application in every case of similar work. Article 14 of the Constitution permits reasonable classification based on quality or characteristics of persons recorded and grouped together. Persons not appointed on regular basis are not entitled to claim equal pay to that of regular employees. It must be shown that daily wagers had parity in the qualities of duties and functions with regularly employed persons. In the absence of any sufficient material on record as regards the nature of duties and functions as also the responsibilities shared by the petitioners equal to those of regularly deployed persons, the respondents cannot be directed to pay arrears for the period during which they functioned on daily wages to those, who will ultimately be regularised. A reference in this regard be made to the decisions of Supreme Court in State of U.P. & Ors. Vs. J.P. Chaurasia & Ors., ; Mewa Ram Kanojia Vs. All India Institute of Medical Sciences & Ors., ; Harbans Lal & Ors. Vs. State of Himachal Pradesh & Ors., ; Ghaziabad Development Authority & Ors. Vs. Vikram Chaudhary & Ors., (1995) 5 SCC 210; State of Haryana & Ors. Vs. Jasmer Singh & Ors., ; State of U.P. & Ors. Vs. Madhyamik Shiksha Parishad Shramik Sangh & Anr., and State of U.P. & Ors. Vs. Ramashyraya Yadav & Anr., .
20. We do not find any irrationality in the revised policy framed by the respondents for regularisation of daily wage employees. Consequently, no other or further directions deserve to be issued in this petition except that the respondents will now proceed to comply with the policy and make orders of regularisation of such of the employees, who would be fulfillling the conditions of policy in a phased manner against the vacancies arising due to retirement, resignation or new creations with the approval of the competent authority. Ordered accordingly. As work is available with the respondents for the persons, who are in position, needless to add that such of the petitioners, who have continuously been engaged on daily wage basis by the respondents, will be continued to be deployed as such till regular incumbents are selected. Their services will not be dispensed with otherwise than in due course of law. However, in the cases of Dinesh Kumar and Kamal Singh, since it has been shown tht they had not been working in 1995, no direction deserves to be issued for continuing their engagement.
21. All writ petitions stand disposed of, in terms aforementioned. No costs.