Central Administrative Tribunal - Madras
M/O Railways And Another vs Dakshin Railway Employees Union And ... on 19 December, 2023
1 OA 806/2022 CENTRAL ADMINISTRATIVE TRIBUNAL CHENNAI BENCH MA/310/00062/2023 in & OA/310/00806/2022 Dated the |4 % day of Decemter Two Thousand Twenty Three CORAM : HON'BLE MR. VARUN SINDHU KUL KAUMUDI, Member (A) HON'BLE MR. M. SWAMINATHAN, Member (J) 1.Dakshin Railway Employees' Union (Regn No. 3068), rep by its General Secretary, V. Harilal, No. 27, Mosque Street, Chepauk, Chennai. 2.B.Balamurugan, House Keeping Assistant -- Medical, Chennai Headquarters, Southern Railway, Chennai. .... Applicants/Respondents By Advocate Ms. R. Vaigai, Sr. Advocate, for M/s. Anna Mathew Vs 1.Union of India, rep by the Secretary to the Railway Board, Rail Bhavan, New Delhi 110001. 2.The Southern Railway, Rep by the General Manager, Park Town, Chennai 600003. 3.Principal Chief Persorinel Officer, Headquarters Office, Personnel Branch, Chennai 600003. 4.Senior Divisional Personnel Officer, Divisional Railway Manager Office, Southern Railway, Madurai 625016. 5.Senior Divisional Personnel Officer, Divisional Railway Manager Office, Southern Railway, Palghat 678002. 6.Senior Divisional Personnel Officer, Divisional Railway Manager Officer, Southern Railway, Thycaud, Trivandrum 696014. 7.Senior Divisional Personnel Officer, Divisional Railway Manager Office, Southern Railway, Chennai Division, Park Town, Chennai 600003. 8.Senior Divisional Personnel Officer, Divisional Railway Manager Office, Southern Railway, Tiruchirapalli Junction 620001. OA 806/2022 ....Respondents/Applicants By Advocate Mr. V. Radhakrishnan, Sr. Counsel, & Mr. Su. Srinivasan, SCGSC 3 OA 806/2022 ORDER
(Pronounced by Hon'ble Mr. Varun Sindhu Kul Kaumudi, Member(A)) This OA had been filed in September, 2022. It has come before this bench as per the order, dt. 21.09.2023, of the Hon'ble Madras High Court, in WP No. 27994 of 2023. Learned counsels on both the sides have argued vehemently before us and also furnished their written submissions on conclusion of their oral arguments.
2. The relief sought by the applicants is as follows --
"To direct the respondents to regularise the services of the applicants -- 202 House Keeping Assistants (Safaiwalas), who were appointed pursuant to the Notification dt. 27.07.2018 issued by the Chairman, Railway Recruitment Cell with effect from their dates of joining in 2019 with regular pay-scale, arrears, seniority and all other consequential benefits and pass such other orders as are necessary to meet the ends of justice."
3. The facts of the case, as per the OA, are given below, in brief:-
i. The 1* Applicant is the General Secretary of the Dakshin Railway Employees' Union. The 2™ applicant is working as House Keeping Assistant- Medical (Safaiwala) in the Chennai Head Quarters on contractual basis from 03.01.2019, vide order, dt. 20.12.2018. This case espouses the cause of 202 members (199 men and 3 women) of the 1* applicant Union, who are engaged as House Keeping Assistants -- Medical (Safaiwalas) on Full Time Contract basis in various divisions in the Southern Railway.
ii. It has been submitted that these 202 Safaiwalas are being engaged directly by the Southern Railway subsequent to an open advertisement, published vide notification issued by the Railway Recruitment Cell, dt.
4 OA 806/202227.07.2018. Online applications were invited from the eligible candidates from the open market for engagement as Safaiwala on Full Time Contract Basis. The posts notified in the said notification were 257. The notification prescribed an age limit of 18 to 33, as on 01.01.2019, with relaxations for various communal categories and an educational qualification of a pass in 10" standard or equivalent by State/Central Board of Secondary Education. According to the applicants, the eligibility criteria and the educational qualifications prescribed are the same as those meant for regular posts of Safaiwala. The notification makes it clear that the applications called for are against regular vacancies for doing regular works done by regular employees. Para 1 of the General Conditions appended to the notification states that the engagement of Safaiwala would be done on full time contract basis for a period of one year or if any extension made by Railway Board or till regularly selected RRC/RRB candidates are available, whichever is earlier.
iii. The selection, pursuant to the notification, was through a Screening Test, consisting of 50 objective type questions (in Hindi, English, Tamil and Malayalam) followed by Physical Efficiency Test (PET).
iv. On the basis of the performance in online examination, the Railway Recruitment Cell, Chennai, published the list, dt. 12.10.2018, wherein 1034 candidates were provisionally qualified to be called for Physical Efficiency Test scheduled for 29.10.2018 and 30.10.2018. Another 15 candidates, under the Persons with Disablities (PwD) category, who became provisionally qualified in 5 OA 806/2022 the online examination were exempted from Physical Efficiency Test. A list of 257 provisionally qualified candidates, based on the performance in Online Examination and the Physical Efficiency Test, was issued by the Chairman/RRC/MAS, vide order, dt. 30.10.2018, and they were called for document verification and medical examination. Thereafter, 257 candiates were initially engaged in the post of House Keeping Assistant -- Medical (Safaiwala) on Full Time Contract Basis vide individual orders in J anuary, 2019. The initial engagement was for a period of 6 months. The House Keeping Assistants -- Medical (Safaiwala) were posted mainly in the Railway Hospitals and in the Staff Quarters premises attached to the Railway Hospitals.
V. The OA mentions that many of the workers engaged as Safaiwalas on Full Time Contract Basis, for an initial period of 6 months, did not choose to either join or continue in the job in view of the strenuous nature of the job, more so, in view of the Covid related duties. Therefore, another set of 72 candidates, who were provisionally selected pursuant to the earlier notification, dt. 27.07.2018, were called for document verification on various dates, ie., 13.06.2019, 21.01.2020, 16.07.2020, 21.07.2020, 23.07.2020 and 20.08.2020, and were appointed as Safaiwalas on Full Time Contract Basis, from 31.12.2019, 07.02.2020, 16.06.2020, 31.07.2020, 04.08.2020 and 28.08.2020, respectively. vi. After the initial engagement of 202 Safaiwalas on Full Time Contract Basis, their contract was extended from time to time and all the 202 Safaiwalas are working till today. They were given artificial break in service, after each 6 OA 806/2022 term of engagement, and re-engaged, since they are working against regular vacancies and the work is of regular and continuing nature. It is alleged that the condition imposed in the latest order of re-engagement, dt. 08.07.2022, issued to the Safaiwalas working in Headquarters constitutes unfair labour practice and is extracted as below:-
"2. The re-engagement involving the same set of candidates as engaged, at least break in continuity of service may be ensured."
vil. The latest orders of extension of contract were issued by the Headquarters and various divisions at various spells, which are as follows:-
Division Date of order of|Duration of contract re-engagement Head Quarters, | 08/07/22 31.12.2022 Chennai Chennai Division 23.08.2022 31.12.2022 Madurai 05/07/22 31.12.2022 Tiruchirapalli 23.08.2022 30.06.2023 Palghat 13.07.2022 30.09.2022 Thiruvananthapuram | 14.07.2022 30.06.2022 viii. It is submitted that the conditions imposed in re-engagement order, dt.
08.07.2022, issued to the Safaiwalas working in the Headquarters specifically states that, "1. The re-engagement for the post of House Keeping Assistant -- Medical (Safaiwala) would be on Full Time Contract Basis for a period
a) upto 31.12.2022 or 7 0A 806/2022
b) till an alternate/regular arrangement is made by the Railway administration (i.e.) the regular candidate selected through Railway Recruitment Board or candidates on compassionate grounds or transfers and posted against the said post of House Keeping Assisntant whichever is earlier." The re-engagement order, dt. 13.07.2022, issued to the Safaiwalas working in the Palghat Division specifies that the candidates whose services were terminated w.e.f. 30.06.2022, on expiry of tenure, are now hereby engaged as House Keeping Assistants on contract basis for a period upto 30.09.2022 or until the date of finalization of contract through GeM, whichever is earlier." Thus, the applicants apprehend that the re-engagement orders issued by the respondents could be terminated at any time, as per the abovesaid condition.
ix. The conditions in the re-engagement order further stipulated that the House Keeping Assistant -- Medical (Safaiwala) who enters into contract or agreement with the Railways will not have any claim or right for their continuity or regularisation or absorption in Railway service. It is submitted that the terms of the contractual appointment given to the applicants cannot be put against them. Since the applicants were selected through a regular selection process against clear vacancies through open advertisement, they ought to have been appointed as regular Railway servants and not on contract basis. The contract is thus exploitative and one-sided and cannot operate against the applicants to deny their claim to be continued in service as regular railway 8 OA 806/2022 servants.
x. According to the applicants, none of the regular House Keeping Assistants who attended duty during the pandemic were allotted duty in the Covid ward. On the other hand, the services of House Keeping Assistants -- Medical (Safaiwalas) who are appointed on Full Time Contract Basis were forced to even wrap the dead bodies of the Covid infected patients in the Railway Hospital. For instance, in Chennai Head Quarters alone, these Safaiwalas had packed around 600 dead bodies during the said period. Moreover, they have been working with a very low quality PPE kit during the entire pandemic period. Some certificates of appreciationfor the exemplary work done by the Safaiwalas as Covid-19 Frontline Warriors, issued to the House Keeping Assistants, have been enclosed.
xi. The Railway Board, vide its communication, dt. 30.06.2022, issued to the General Manager (P) of all Zonal Railways/PUs, communicated its decision to extend the engagement of retired para-medical staff and hiring of the para- medical staff on contract basis, within the sanctioned strength, against clear vacancies, for a further period of one year beyond 30.06.2022, ie., upto 30.06.2023, subject to clear availability of funds. Para 3 of the communication further stated as follows:-
"3. It has also been decided that engagement/hiring of para-medical staff (in Group "C" on contract basis should mandatorily be done through GeM."
xii. As alleged by the applicants, the House Keeping Assistant ~ Medical (Safaiwala) who were selected through an open competitive selection process, 9 OA 806/2022 which is identical to that as required for a regular employee of Railways, by the Railway Recruitment Cell and have been working and are being paid directly under the Railways, are now asked to be employed through a contractor. In other words, the master-servant direct control between the Railways and these Safaiwalas is sought to be changed to indirent employment.
xiii. Many of the Safaiwalas engaged on full time contract basis have now become overaged to apply for any regular government jobs. They have almost lost their precious health due to the occupational disease they have contracted during the pandemic which they would not have suffered otherwise had they not been engaged in this work.
xiv. All these 202 Safaiwalas claim to have done every odd job while performing the duty of Safaiwala with the fond hope that their services will be made permanent in the Southern Railway, taking into consideration that they have duly participated in the selection process meant for regular appointments and turned out to be successful candidates. It has been submitted that, though the educational qualification prescribed in the notification, dt. 27.07.2018, is a pass in 10" standard or equivalent recognised by the State/Central Board of Secondary Education, most of the House Keeping Assistants -- Medical (Safaiwalas) are graduates and had applied for the said post due to acute unemployment crisis that they were suffering from.
xv. The Southern Railway is now trying to engage workers on contract basis in the post of Safaiwalas through GeM.
10 OA 806/2022xvi. The applicants state that therefore their Union has on several occasions represented to the Southern Railway authorities to confirm the services of 202 House Keeping Assistants (HKA) -- Medical (Safaiwalas) who are engaged pursuant to an open selection process (as was conducted for regular Group D Railway employees) called for vide notification, dt. 27.07.2018, issued by the Railway Recruitment Cell. There is no positive action by the Railway authorities till date.
4. The main grounds relied upon by the applicants are as under:-
i. The applicants, having been selected through a regular selection process, have a right to be made permanent. Denying them permanency, when clear vacancies exist, is an act of unfair labour practice.
ii. The artificial break in service given to the applicants, after each term of engagement, despite their being engaged for regular work of continuing nature and existence of sanctioned post, is aimed to deprive the applicants of their claim for permanency. The condition imposed in the latest order of re- engagement, dt. 08.07.2022, issued to the Safaiwalas working in Headquarters, clearly states that at least break in continuity of service may be ensured since the re-engagement involves the same set of candidates. This action of the respondents is malafide and constitutes unfair labour practice which is highly arbitrary and illegal.
ii. The terms of the contractual appointment given to the applicants cannot be put against them. Since the applicants were selected through a regular il OA 806/2022 selection process against clear vacancies, they ought to have been appointed as regular Railway Servants and not on contract basis. The contract is thus exploitative and one-sided and cannot operate against the applicants to deny their claim to be continued in service as regular railway servants.
iv. The action of the respondents in trying to engage workers on contract basis in the post of Safaiwalas, through GeM, will also amount to illegal termination of their services amounting to retrenchment. The Railways being a large establishment, with thousands of employees, is covered by the Industrial Disputes Act, 1947. Hence, they cannot retrench without complying with Sec. 25-N of the Industrial Disputes Act, 1947. No permission has been sought from the Government for such retrenchment. Hence, the proposed action is unjust, arbitrary and illegal.
v. All these 202 Safaiwalas had done every odd job while performing the duty of Safaiwala with the fond hope that their services will be regularised in the Southern Railway taking into consideration that they have duly participated in the selection process. Against the educational qualification prescribed in the Notification, dt. 27.07.2018, as a pass in 10" Standard or equivalent, most of the House Keeping Assistants-Medical (Safaiwalas) are graduates.
vi. Any engagement of fresh recruits in place of the applicants will be violative of Section 25-G of the Industrial Disputes Act, 1947.
vii. The impugned action is violative of the applicants' fundamental rights under Articles 14 and 16 of the Constitution.12 OA 806/2022
5.i. The respondents have filed a detailed reply, opposing the relief claimed by the applicants and prayed for dismissal of the OA.
ii. | The counsel for respondents has submitted that the present OA suffers from mis-joinder of parties and prayed that this Tribunal may allow the MA filed for deletion of the Chairman, Railway Board, from the array of respondents. He has started with the preliminary objection that a contract employee engaged for a limited period of time, can have no claim whatsoever for extension of contract or for his continuity or regularisation in the Railways in any manner. The 1* applicant is an unrecognised Trade Union claiming that 202 contract paramedical staff (including the 2" applicant) are its members, and has prayed that their contractual services must be regularised. However, the prayer of both the applicants is not only untenable but also unconstitutional, as laid down by the Constitution Bench of the Hon'ble Supreme Court in Umadevi's case [2006 4 SCC 1].
iii. In the Umadevi's case (supra), it has been specifically observed that the High Court, in exercise of jurisdiction under Article 226 of the Constitution of India, should not ordinarily issue direction for absorption, regularisation or permanent continuance unless the recruitment was itself done regularly and in terms of the constitutional scheme. The applicants in the instant case have been 'engaged' and/or 're-engaged' on contract basis only, but have never been recruited on a regular basis, in terms of the constitutional scheme. Their entire premise is misconceived, misplaced and not maintainable.
13 OA 806/2022iv. Further reliance is placed upon the decision taken by the Hon'ble Supreme Court in a catena of cases (Dr. Ashwani Kumar Vs. Union of India and anr, (2020) 13 SCC 581; State of Karnataka and anr Vs. Dr. Praveen Bhai Thogadia, (2004) 4 SCC 684; Anuradha Bhasin Vs. Union of India and ors; (2020) 3 SCC 637; Oil and Natural Gas Corporation Vs. Krishan Gopal & Ors., (2020) SCC Online $C150; State of Maharashtra & Anr. Vs. R. S. Bhonde & Ors., (2005) 6 SCC 751), that in a judicial review, a Court has no right to direct the Government to review the policy of appointment; in judicial review the Court cannot interfere in administrative matters and that, in the absence of a regular sanctioned post, the Court cannot direct to create one. Filling up of sanctioned vacancies through contract staff for short period of time (till regular appointment is done, as per the constitutional scheme), as per administrative requirement, through a government portal, is an executive policy decision of the government and cannot be assailed by these applicants for their own benefit.
v. Recently, in the Union of India Vs. Ilmo Devi [2021 SCC Online SC 899] decided on 07.10.2021, the Hon'ble Supreme Court has held that even the regularization policy to regularize the services of the employees working on temporary status and/or casual labourers is a policy decision, and, in judicial review, the Court cannot issue Mandamus and/or issue mandatory directions to do so. Hence, the prayer of the applicants, seeking directions for regularisation against the available vacancy in permanent posts, is not tenable and is liable to be rejected. By any stretch of imagination, these applicants cannot ask to be 14 OA 806/2022 regularized, overlooking the judgment pronounced by the constitutional bench of the Hon'ble Supreme Court in Umadevi's case.
vi. Applicant no. 1 has moved the instant application seeking regularisation of the contractual service of 202 contract House Keeping Assistants (in short HisAs) in railways, claiming that their termination is highly unjust and arbitrary. It has been further alleged that the practice of re-engaging contract HKAs with suitable breaks, in between, as per the Board's instructions is unfair trade practice. The applicants have not approached the competent forum established under the Industrial Disputes Act to decide on whether an act or omission of the. government constitutes unfair labour practice.
vii. Termination of the contract executed by each contractual para-medical staff has been done on each occasion duly relying upon the mutually agreed terms and conditions of engagement, and as such cannot be termed as retrenchment and cannot be labelled as unjust/illegal and/or arbitrary afterwards, by a Union alleged to represent such contract staff. Hence, the OA deserves to be dismissed, in limine.
viii. In the Zonal Railway, the 'Safaiwala' staff of the Medical Department, functioning under a Chief Health Inspector/Health Inspector, are utilized for maintaining cleanliness in Railway Hospitals/Health Units: The duties and responsibilities of various para medical staff working in railway hospitals have ~ been laid down by the Railway Board under Para 203 of Chapter II of the Indian Railway Medical Manual (in short, IRMM). The Railway Board amended this 15 OA 806/2022 Para 203, IRMM, vide letter No. 2014/H-1/10/18/Para Medical Staff, dated 15.10.2015, wherein the duties and responsibilities of Hospitals/Health Unit Cleaner (Safaiwala) have been listed.
ix. The Railway Board communicated its decision, vide letter No. 2018/Trans Cell/Conclave/Health, dated 23.03,201 8, that "2. Wherever posts are available but not getting filled in by normal recruitment process in categories such as safaiwallah, hospital attendant and others essentially required for patient care, these may be filled'in on contract basis."
X. The policy of granting consolidated monthly remuneration rates for para- medical categories in Group 'C', engaged on contract basis, was revised vide Railway Board's letter No. 2017/Trans/01/Policy/Pt., dated 12.04.2018, through which the Board communicated its decision to allow emoluments, as payable to regular employees, to be paid to para-medical staff in Group C, recruited on contract basis.
xi. The Railway Board revised the designation of 'Safaiwala' in the Indian Railways to 'House Keeping Assistant, vide letter number PC- III/2018/Standardization/2, dated 22.10.2018, circulated as RBE No. 163/2018. xii. It was decided by the competent authority to permit filling up of posts of Hospital Safaiwala in Group C, on contract basis, by re-engaging the retired employees, as first preference. However, since the retired Hospital Safaiwalas did not show interest for re-engagement to the vacant posts of Safaiwala in the Medical Department, it was decided by the administration to recruit the 16 OA 806/2022 Safaiwalas on contractual basis.
xiii. An advertisement inviting applications for engagement of 257 House Keeping Assistant (Medical) posts on full-time contract basis was published on 27.07.2018 on www.rremas.in website, as well as in newspapers like the Hindu, Daily Thanthi and Malayala Manorama. Under Para 3 of the General Conditions, it was specifically stated that, "Full time Contract staff who enters into contract with the Railways will not have any claim or right for his/her regularisation or absorption in Railway Service."
xiv. In response to this notification, 64187 candidates had applied and were invited to attend the screening test held through Online Examination conducted on 07.10.2018. 18542 candates attended the examination, and 1019 candidates were, subsequently, called to attend the Physical Efficiency Test (PET) which consists of lifting of weight (Female -- 20 kg, Male -- 35 kg) fora distance of 100 m in 2 minutes in one chance without putting the weight down. 15 candidates who were PWD (Persons with Disability), were exempted from attending/qualifying the PET. 862 candidates attended the physical efficiency test and 854 candidates qualified in the same. From amongst the eligible candidates, 257 candidates, in their order of merit, were offered to be engaged on full time contract basis.
xv. A number of candidates did not turn up or absented themselves, subsequently, necessitating calling for replacement papers from the Railway Recruitment Cell, Chennai. As many as 126 of the 257 contract House Keeping 17 OA 806/2022 Assistants (in short HKAs) originally engaged from January, 2019, are no longer in the service of this Railway. According to the respondents, it is not the case of the applicants that all the 202 House Keeping Assistants presently engaged at various railway hospitals from different dates have all been engaged from January 2019. Each contract HKA is engaged for a limited period only, and in terms of the Board's circulars, their services are terminated on expiry of the contract period. Those contract HKAs who were willing to be re-engaged as HSA on full time contract period, for a subsequent term, are allowed to accept to the terms of contractual employment and they shall be discharged immediately on joining of Railway Recruitment Board (RRB) selected candidates.
xvi. The Railway Board, vide letter, dt. 24.10.2019, circulated as RBE No. 180/2019, instructed that as the RRB recruited paramedical employees would be joining shortly, contractual employees should be let go within the prescribed notice period in a phased manner, ensuring that no such contractual employee continues beyond 31.03.2020, on joining of the regularly selected candidates from the RRB.
xvii. Due to the outbreak of the COVID pandemic, the Railway Board, vide letter, dt. 28.03.2020, permitted extension of re-engagement of retired paramedical candidates for a period of one month only, over and above the sanctioned strength of the cadre, depending upon the requirement. Till then, the engagement of contractual paramedical staff was allowed only against the 18 OA 806/2022 available vacancies in the cadre. Since the alarming situation of COVID pandemic continued unabated, the Board communicated, vide letter, dt. 31.03.2020, that the earlier permission to engage paramedical staff, over and above the sanctioned strength for one month only, was modified and extended for a period of three months instead. Further, the mode of engagement was left to the discretion of the General Manager. The permission to engage paramedical staff over and above the sanctioned strength was, subsequently, extended from time to time till 30.06.2022.
xviii. As many as 39 of the 202 contractual HK As, whose regularisation is being insisted upon by the applicants in this OA, had been initially engaged only after this decision of the Railway Board to engage over and above the sanctioned strength in the cadre.
xix. The Railway Board, vide letter, dt. 30.06.2022, communicated that it has been decided to extend the engagement of retired para-medical staff and hiring of para-medical staff.on contract basis (in Group C) within the sanctioned strength against clear vacancies for a further period of one year beyond 30.06.2022, ie., upto 30.06.2023, subject to clear availability of funds. Hiring of contractual staff shall be governed by the existing terms and conditions. The said letter further stipulated that engagement/hiring of para-medical staff (in Group C), on contract basis, should mandatorily be done through the Government e-Marketplace (GeM) only, which is a one-stop marketplace hosted by the Directorate General of Supplies and Disposals where common user goods 19 OA 806/2022 and services can be procured by the Government Ministries and Departments. xx. Applicant no. 2 has moved this OA seeking regularisation of contractual service of 202 HKAs including himself. Further, one of the trade unions operating in the Southern Railway, viz., Dakshin Railway Employees Union, which is the 1" applicant has sought regularisation of the contractual service of 202 contract HK As in Railways, claiming that their termination is retrenchment which is highly illegal, unjust and arbitrary. The engagement, as contract HKA, is purely a contractual agreement between the railway administration and willing individuals.
xxl. The bond executed by the contract HKAs permits the Railway administration the liberty to terminate the contract, by giving 15 days' notice, at any time, during the contract, without assigning any reasons whatsoever. The services of each contract HKA had been terminated at least once, and, after suitable break, if the para~medical staff were willing to be re-engaged, under the extant terms and conditions, they were allowed to be re-engaged again on executing a fresh contract. The decision to engage/hire para-medical staff through GeM or to re-engage retired railway para-medical staff is purely the prerogative of the Railway Administration, and the contract HKAs (Medical) have no say in the same. As such, administrative decision to disengage HKAs (Medical), on expiry of their contract, after 31.12.2022, cannot be termed to be illegal, unjust and arbitrary. The 2™ applicant and every contract House Keeping Safaiwala (Medical) is estopped from filing this OA in view of the undertakings 20 OA 806/2022 executed by them, wherein they have declared as follows:
"... T FURTHER AGREE AND DECLARE that 'the contract shall stand terminated in between the contract period as mentioned in para (3), (4) & (5) above' I_ FURTHER AGREE AND DECLARE that 'I shall have no claim whatsoever for extension of the period of contract or for my continuity or regularisation in Railway in any manner''.......... "
Accordingly, the respondents have prayed for dismissal of the OA.
6. The applicants have also filed a rejoinder rebutting the reply filed by the respondents. |
7. The respondents have further filed additional reply against the rejoinder filed by the applicants. |
8. The applicants have filed additional rejoinder.
9. What has been pressed by both the parties during their arguments and in their written submissions is as follows -
i. On the point of entertaining the industrial dispute, as claimed by the applicants, in the present issue, the learned Senior Counsel for the applicants, Ms. R. Vaigai, drew our attention that there is no bar in the Administrative Tribunals Act, 1985, against an Unrecognized Union filing OA before this Tribunal. Further, the respondents, viz., Railways themselves have issued a Circular stating that an unrecognized Association can represent the grievances which will be heard by the Railway Administration. The present applicants' Union is a Registered one and a legal entity, entitled 'to represent its members. The learned Senior Counsel relied on the decision in the case of -- Akhil Bharatiya Soshit Karamchari Sangh (Railways) Vs. Union of India(1981 (1)
e) 21 OA 806/2022 SCC 246. The relevant paragraph is extracted hereunder:
"62. A technical point is taken in the counter-affidavit that petitioner I is an unrecognized association and that, therefore, the petitioner to that extent, is not sustainable It has to be overruled. Whether the petitioners belong to a recognized union or not, the fact remains that a large body of persons with a common grievance exists and they have approached this Court under Article 32. Our current processual jurisprudence is not of individualistic Anglo-Indian mould. It is broad-based and people-oriented, and envisions access to justice through 'class actions'. public interest litigation' and 'representative proceedings'. Indeed, little Indians in large numbers seeking remedies in courts through collective proceedings, instead of being driven to an expensive plurality of litigations, is an affirmation of participative justice in our democracy. We have no hesitation in holding that the narrow concept of 'cause of action' and 'person aggrieved' and individual litigation is becoming obsolescent in some jurisdictions. It must fairly be stated that the learned Attorney-General has taken no objection to non-recognised association maintaining the writ petitions." , ii. As regards the issue of Ad-hoc or Contract employees, the learned Senior Counsel, Ms. R. Vaigai, contended that the respondents have not furnished any document before this Tribunal that any regular recruitment has taken place for the post of House Keeping Assistants, after the present applicants have been recruited. She also pointed out that the present applicants, assuming that they are ad-hoc or contract employees, cannot be replaced by other ad-hoc or contract employees. She drew our attention to the decision of the Hon'ble Apex Court in the case of HARGURPRATAP SINGH VS. STATE OF PUNJAB AND OTHERS (2007(13) SCC 292) wherein it is held as follows:
"We have carefully looked into the judgment of the High Court and other pleadings that have been put forth before this Court. It is clear that though the appellants may not be entitled to regular appointment as such it cannot be said that they will not be entitled to the minimum of pay scale nor that they should not be continued till regular incumbents are appointed. The course adopted by the High Court is to displace one ad hoc arrangement by another ad hoc arrangement which is not at all appropriate for these persons who have gained experience which will be more beneficial and useful to the colleges concerned rather than to appoint persons afresh on ad hoc basis. Therefore, we set aside the orders made by the High Court to the extent the same deny the claim of the 22 OA 806/2022 appellants of minimum pay scale and continuation in service till regular incumbents are appointed. We direct that they shall be continued in service till regular appointments are made on minimum of the pay scale. The appeals shall stand allowed in part accordingly."
iii. | She also referred to the decision of the Apex Court reported in 2022 SCC OnLine SC 485 in the case of Manish Gupta and Another Vs. President, Jan Bhagidari Samiti and others. The relevant paragraph of the decision is extracted as hereunder:
"12. ........ Though Shri Nataraj, learned ASG has strenuously urged that the appointments of the appellants were as guest lecturers and not as ad hoc employees, from the nature of the advertisements, it could clearly be seen that the appellants were appointed on ad hoc basis. It is a settled principle of law that an ad hoc employee cannot be replaced by another ad hoc employee and he can be replaced only by another candidate who is regularly appointed by following regular procedure prescribed. Reliance in this respect can be placed on the judgment of this Court in the case of Rattan Lal V. State of Haryana and on the order of this Court in the case of Hargurpratap Singh vs. State of Punjab."
iv. The learned Senior Counsel, Ms. R. Vaigai, contended that the Tribunal (CAT) has powers to enforce rights under the Industrial Disputes Act, 1947, for which she relied on the decision of the Hon'ble High Court of Madras in W.P. Nos. 14661 of 2004 and batch in the case of Tamil Nadu Highways Roadways Employees' Association Vs. Govt. of Tamil Nadu & Ors (Madras DB) dt. 08.09.2004. The relevant paragraphs of the decision are extracted hereunder:
"'17. This question was considered by various Administrative Tribunals functioning in different states and conflicting views came to be expressed by different Benches. Ultimately that question came to be referred before a Five Member Bench whose order is reported in '(1990) 14 Administrative Tribunal Cases 914(A. PADMAVALLLEY AND OTHERS versus CPWD)'. The larger Bench of the Central Administrative Tribunal framed as many as four issues for determination and for our present purpose, it would be 23 OA 806/2022 suffice to refer to first two issues, viz.,, '|. Whether the CAT has concurrent jurisdiction with the Industrial Tribunal/Labour Court on the ground that it became a substitute not only for Courts including the High Court but for all Tribunals in respect of service matters and whether it is left to the workman to choose the forum for redressal of the grievances in respect of service matters and whether it is left to the workman to choose the forum for redressal of the grievance in respect of rights conferred under the Industrial Disputes Act.
'2. Whether in the event of the first issue being answered in the negative, the Administrative Tribunal in exercise of powers analogous to Articles 226 and 227, Constitution of India, is competent to entertain or consider applications in respect of disputes/claims arising under the Industrial Disputes Act."
18, Ultimately, the above questions were answered in para 43 of its judgment, as under:
"43. To sum up, our conclusions are as follows:
(1) The Administrative Tribunals constituted under the Administrative Tribunals Act, are not substitutes for the authorities constituted under the Industrial Disputes Act and hence the Administrative Tribunal does not exercise concurrent jurisdiction with those authorities in regard to matters covered by that Act. Hence, all matters over which the Labour Court of the Industrial Tribunal or other authorities had jurisdiction under the Industrial Disputes Act do not automatically become vested in the Administrative Tribunal adjudication. The decision in the case of 'Sisodia' which lays down a contrary interpretation is, in our opinion, not correct. An applicant seeking relief under the provisions of the Industrial Disputes Act must ordinarily exhaust the remedies available under that Act. (2) The powers of the Administrative Tribunal are the same as that of the High Court under Article 226 of the Constitution and the exercise of that discretionary power would depend upon the facts and circumstances of each case as well as on the principles laid down in the case of Rohtas Industries.
(3) The interpretation given to the term 'arrangement in force' by the Jabalpur Bench in Rammoo case is not correct."
Vv On the same issue, the learned Senior Counsel has relied upon the judgment of the Hon' ble Apex Court reported in 2012 SCC OnLine Mad 1169 (Institute of Hotel Management Catering Technology and Applied Nutrition Vs. Labour Court. She further argued on the issue of retrenchment under Section 2(00) of the Industrial Disputes Act, 1947, 2(00)(bb) and Section 25- 24 OA 806/2022 N of the said Act.
vi. The learned Senior Counsel further drew our attention to the expression 'termination', which for any reason whatsoever contained in Sec.2(00), will also include automatic termination due to efflux of time based on the terms of the contract. In this regard, the learned Senior Counsel referred to the decision reported in 1976 (4) SCC 222 (M/s Hindustan Steel Ltd. Vs. The Presiding Officer, Labour Court, Orissa and others, wherein it is observed that Retrenchment has been defined in Section 2(00) of the Industrial Disputes Act as follows:
"2(00) "retrenchment means the termination by the employer of the service of workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, but does not include-
(a) voluntary retirement of the workman; or
(b) retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf; or
(c) termination of the service of a workman on the ground of continued ill-
health"
vii. She also referred to the judgment of the Hon'ble Apex Court in the case of Delhi Cloth and General Mills Ltd. Vs. Shambhu Nath Mukherji and others(1977 (4) SCC 415. The relevant paragraph of the said judgment is extracted as hereunder:
"Striking off the name of the workman from the rolls by the management is termination of his service. Such termination of service is retrenchment within the meaning of Section 2(00) of the Act. There is nothing to show that the provisions of Section 25F(a) and (b) were complied with by the management in this case. The provisions of Section 25F(a), the proviso apart, and (b) are mandatory and any order of retrenchment, in violation of these two peremptory conditions precedent, is invalid."25 OA 806/2022
viii. The learned Senior Counsel, Ms. R. Vaigai, also argued with regard to the exception in Sec.2(00)(bb) of the Industrial Disputes Act (1984 amendment) . By relying upon the judgment of the Hon'ble Supreme Court in the case of S.M. Nilajkar Vs. Telecom District Manager (2003(4) SCC 27, the learned Senior Counsel submits that Sub-clause(bb) in the definition of retrenchment was introduced to take care of such like situations by the Industrial Disputes(Amendment) Act, 1984, with effect from 18.08.1984.
ix. With regard to Section 25-N of the ID Act, the learned Senior Counsel contended that the services of an employee in an establishment with more than 100 workers cannot be retrenched without obtaining prior permission of the Appropriate Authority. Any such unilateral retrenchment is void. Therefore, she contended that the respondents cannot seek to terminate the services of the applicants without following the procedure under Sec.25-N of the ID Act. For the said contention, she relied upon the judgment, dated 08.09.2004, of the Hon'ble High Court of Madras in the case of Tamil Nadu Highways Roadways Employees' Association Vs. Govt. of Tamil Nadu & Ors. She referred to paragraphs 54 to 60 and 96 of the said judgment. The paragraphs which are relevant for the purpose of this case are extracted as hereunder:
"58. On this question, Ms. R. Vaigai, learned counsel appearing for the petitioners, contended that the various orders of termination were issued after the issuance of G.O.Ms. No.160, dated 5-9-2002, that while issuing the said orders of termination, none of the provisions of Industrial Disputes Act, which required compliance were taken into account or complied with.
59. The learned counsel contended that the termination orders issued to 9728 26 OA 806/2022 Gang Mazdoors would amount to retrenchment as defined under Section 2(00) of the Industrial Disputes Act, that in the light of the fact such retrenchment related to an industrial establishment in which more than one hundred workmen were employed on an average per working day for the preceding twelve months to the date of retrenchment, Chapter V-B of the Industrial Disputes Act also get attracted. The learned counsel would further contended that in as much as, no prior permission of the Government or such authority as stipulated under Section 25N(2) falling under Chapter V-B had been obtained and further since no retrenchment compensation as prescribed under Section 25-F was also paid, the whole lot orders of termination issued to 9813 Gang Mazdoors would become ab initio void."
x. The learned Senior Counsel for the applicants challenged the point of Estoppel and contended that the applicants have a fundamental right to equal and fair treatment without any arbitrariness by the State. She further contended that Courts have held that the terms of appointment, including those in the advertisement, cannot act as an estoppel against a citizen to override any fundamental right. She also contended that the principle of Approbate and Reprobate also cannot operate as against any fundamental right. Such principles evolved in the realm of commercial contract are wholly inapplicable to the case of the applicants. The learned Senior Counsel also cited the judgment of the Hon'ble Supreme Court in the case of Air India Vs. Nargesh Meerza (1981(4) SCC 335.
xi. With regard to the her contention regarding estoppel, the learned Senior Counsel further relied upon the judgment of the Hon'ble Apex Court reported in 1985 (3) SCC 545 (OLGA TELLIS AND OTHERS VS. BOMBAY MUNICIPAL CORPORATION AND OTHERS , particularly paragraphs 27 to 29 of the said judgment. The crucial portions in the above paragraphs are 27 OA 806/2022 extracted as hereunder:
"There can be no estoppel against the Constitution. The Constitution is not only the paramount law of the land but, it is source and sustenance of all laws. Its provisions are conceived in public interest and are intended to serve a public purpose. The doctrine of estoppel is based on the principle that consistency in word and action imparts certainty and honesty to human affairs."
"A concession made by him in a proceedings, whether under a mistake of law or otherwise, that he does not possess or will not enforce any particular fundamental right, cannot create an estoppel against him in that or any subsequent proceeding. Such a concession, if enforced, would defeat the purpose of the Constitution. Were the argument of estoppel valid, an all- powerful State could easily tempt an individual to forego his precious personal freedoms on promise of transitory, immediate benefits. Therefore, notwithstanding the fact that the petitioners had conceded in the Bombay High Court that they have no fundamental right to construct hutments on pavements and that they will not object to their demolition after October 15, 1981, they are entitled to assert that any such action on the part of public authorities will be in violation of their fundamental rights."
xii. The learned Senior Counsel further relied on the judgment of the Hon'ble Supreme Court in the case of Rakesh Ranjan Verma & Others Vs. State of Bihar & Others (1992 Supp (2) SCC 34 343). The relevant portion of the judgment is extracted as hereunder:
STD. Le eesecesesteeees The Board in this regard has clearly stated in the counter- affidavit filed before this Court that the appellants who apply for the posts of Junior Electrical Engineers as and when advertisement is issued and appear at the competitive examination to be held again by the Board for appointment to the posts of Junior Engineers and in case they compete, they would be appointed against the posts of Junior Electrical Engineers. The Board, of course, cannot deny the right of the appellants for appointment on the posts of Junior Electrical Engineers now sought to be filled on the ground that the appellants had given an undertaking at the time of their appointments as Operators. The Board has to make appointments for the posts of Junior Electrical Engineers both by way of direct recruitment from diploma holders in Electrical Engineering and by absorption of the Board's employees serving on lower posts in the ratio of 75:25 as contemplated in Rule 7 and the appellants would also have a right to be considered for such appointments. We have been informed during the course of argument on behalf of the Board that no written or oral examination has been conducted to fill the posts of Junior Electrical Engineers in pursuance to the advertisement issued on July 29, 1989.
13. Thus, taking in view the entire facts and circumstances of the case and in 28 OA 806/2022 order to do full justice to all the persons concerned, we direct the Board to issue a fresh advertisement for filling of the posts of Junior Electrical Engineers having fallen due upto March 31, 1992 and to make appointments in the ratio of 75 per cent by direct recruitment and 25 per cent by absorption as contemplated under Rule 7. It is further directed that age bar would not be considered as disqualification in respect of all those persons who were included in the panel list of 790 persons prepared in 1984."
xiii. The learned Senior Counsel further relied upon the decision of the Hon'ble Supreme Court in the case of The Manager, Government Branch Press and Another Vs. D. B. Belliappa (1979 (1) SCC 477). The relevant portion in para 25 of the said judgment is extracted as hereunder:
ODD. cecsseevsstsceeseees One of the terms of that contract, embodied in the letter of his appointment is that his service was purely temporary and was liable to termination at the will and pleasure of the appointing authority, without reason and without notice. Having willingly accepted the employment on terms offered to him, the respondent cannot complain against the impugned action taken in accordance with those mutually agreed terms."
xiv. The learned Senior Counsel contended, that no general principle has been laid down in Umadevi's case that in no case an ad ad-hoc or contract or temporary employee can claim regularization. She further submitted that the Hon'ble Supreme Court, in several decisions, had interpreted the judgment in Umadevi (2006(4) SCC 1) as not being applicable to cases, where appointments are made through an open process of selection after proper advertisement, after a proper selection process by the competent authority and when sanctioned posts exist. With regard to the situation where the Umadevi judgment will not be applicable, she drew our attention to the judgment of the Hon'ble Supreme Court in the State of Gujarat Vs. PWD Employees Union (2013 (12) SCC
417).29 OA 806/2022
The relevant paragraphs from the said judgment are reproduced as follows:
XV.
Singh & Others Vs. State of Punjab & Others, "27. The decisions in Umadevi and A. Umarani were regarding the question concerning regularization of employees entered by back door method or those who were illegally appointed encouraging a political set up, in violation of Arxticles 14 and 16 of the Constitution of India. We are of the opinion that both the aforesaid decisions are not applicable in the present case i.e.,to the members of the respondent Employees' Union for the following reasons:
(i)The Secretary, Forest and Environment Department of the State of Gujarat by his order dated 3-5-2008 held that initially, the entry of the daily wagers do not suffer from any illegality or irregularity but is in consonance with the provisions of Minimum Wages Act. Therefore, the question of regularization by removing the procedural defects does not arise.
(ii)The Gujarat High Court by its judgment dated 29-10-2010 passed in PWD Employees Union v. State of Gujarat while noticing the aforesaid stand taken by the State also held that the nature of work described in the order dated 3-5-2008 shows that the daily wage-workers are engaged in the work which is perennial in nature.
(iii)The case of A Umarani related to regularization of services of irregular appointees. In the said case this Court held that :(SCC p.112g) "When appointments were made in contravention of mandatory provisions of the Act and statutory rules framed(therein) and in ignorance of essential qualifications, the same would be illegal and cannot be regularized by the State.
28. Thus, the principal question that falls to be considered in these appeals is: whether in the facts and circumstances it will be desirable for the Court to direct the appellants to straightaway regularize the services of all the daily-wage workers working for more than five years or the daily-wage workers working for more than five years are entitled for some other relief?"
She further relied on the decision reported in 2013(14)SCC 65- Nihal Supreme Court has held as follows:
"23. Even going by the principles laid down in Umadevi(3) case, we are of the opinion that the State of Punjab cannot be heard to say that the appellants are not entitled to be absorbed into the services of the State on permanent basis as their appointments were purely temporary and not against any sanctioned posts created by the State.
24.In our opinion, the initial appointment of the appellants can never be categorized as an irregular appointment. The initial appointment of the appellants is made in accordance with the statutory procedure contemplated wherein, the Hon'ble XVI.
Sachin Ambadas Dawale & Others Vs. State of Maharashtra & Another (201422) Mh.L.J 36. The relevant paragraphs of the judgment are reproduced 30 ~ OA 806/2022 under the Act. The decision to resort to such a procedure was taken at the highest level of the State by conscious choice as already noticed by us."
The learned Senior Counsel also referred to the judgment in the case of as hereunder:
XVii.
Umrala Gam Panchayat Vs. Municipal Employees Union (2015 (12) SCC
775) . Reliance was placed by the learned Senior Counsel on paragraphs 17 "16. In our view the submissions made on behalf of the respondents relying on the judgment in the case of Secretary, State of Karnataka and ors. Vs. Umadevi and ors. (supra) would not be applicable in the facts of the present case. It is undisputed that the posts, in which the petitioners are working , are sanctioned posts. As discussed earlier, the Government of Maharashtra had issued the resolution dated 2™ August, 2003 by which the Selection Committee came to be constituted for the selection of the candidates. The respondents have not disputed that though the petitioners were initially appointed for a fixed term, they are continued in service. It is not disputed that the leave facility is made available by the resolution dated 18" February, 2006 to such employees. The respondents have stated in their affidavit that the monthly pay to these employees has been increased. It is not disputed that the petitioners are having the qualifications required for the posts in which they are working. The respondents have not disputed that the appointments for the teaching posts are taken out of the purview of the MPSC as informed by the communication dated 29" March, 2008. .
19. One more fact that needs to be taken into consideration is that even according to the respondent -- State there are more than 5000 teaching posts which are still vacant and the advertisement issued by the MPSC is only for 400 posts. It can, thus, be clearly seen that even after the candidates who would be selected through the selection process conducted by the MPSC are available, more than 4500 posts will be vacant. It is, therefore, clear that the petitioners' absorption would in no way affect the candidates who would now be selected through the MPSC. It is, thus, clear that the petitioners' continuation in service would not adversely affect the fundamental right guaranteed under Article 16 to the citizens. We are of the considered view that the respondents -- State having extracted the work from the petitioners for years together, the petitioners cannot be deprived of the right of regular employment particularly when their entry can neither be termed as "illegal" nor "back door"."
She also drew our attention to the judgment of the Hon'ble Apex Court in 31 OA 806/2022 to19 of the judgment which are reproduced as hereunder:
"17. The reliance placed by the learned Senior Counsel for the appellant upon the decision of this Court in State of Karnataka v. Umadevi (3), does not apply to the fact situation of the present case and the same cannot be accepted by us in the light of the cogent reasons arrived at by the Courts below.
18. In view of the the reasons stated supra and in the light of the facts and circumstances of the present case, we hold that the services of the workmen concerned are permanent in nature, since they have worked for more than 240 days in a calendar year from the date of their initial appointment, which is clear from the evidence on record. Therefore, not making their services permanent by the appellant Panchayat is erroneous and also amounts to error in law. Hence, the same cannot be allowed to sustain in law.
19, For the reasons stated supra, we dismiss the appeals and direct the appellants to treat the services of the workmen concerned as permanent employees, after five years of their initial appointment as daily wage workmen till they attain the age of superannuation for the purpose of granting terminal benefits to them."
xviii. With regard to the policy of imposing artificial breaks in service, the learned Senior Counsel, assailing it as illegal, relied upon the Hon'ble Apex Court judgment in the case of Mohd. Abdul Kadir & Another Vs. Director General of Police, Assam Ors (2009 (6) SCC 611. The relevant paragraph of the judgment relied on by the learned Senior Counsel is extracted as hereunder:
"17. When the ad-hoc appointment is under a scheme and is in accordance with the selection process prescribed by the scheme, there is no reason why those appointed under the scheme should not be continued as long as the scheme continues. Ad hoc appointments under schemes are normally coterminous with the scheme (subject of course to earlier termination either on medical or disciplinary grounds, or for unsatisfactory service or on attainment of normal age of retirement). Irrespective of the length of their ad hoc service or the scheme, they will not be entitled to regularisation nor to the security of tenure and service benefits available to the regular employees. In this background, particularly in view of the continuing Scheme, the ex-serviceman employed after undergoing the selection process, need not be subject to the agony, anxiety, humiliation and vicissitudes of annual termination and re-engagement, merely because their appointment is termed as ad hoc appointments."
10.1. The learned Senior Counsel for the respondents, Mr. V. Radhakrishnan, has come up with rebuttal of the points raised by the applicants and drew our attention to Para 9 of the written submissions, filed on behalf of the 32 OA 3806/2022 respondents, which has been extracted hereunder for ready reference:
"9, The issue of whether the engagement of Safaiwala should be on contract basis or permanent basis will depend upon several factors, which the railway administration has taken into consideration and decided for the same. It is most respectfully submitted that this Hon'ble Tribunal, while exercising its jurisdiction under judicial review, cannot decide the correctness of the same, as this Hon'ble Tribunal lacks expertise to decide whether the engagement notification for Safaiwala (medical) should be for permanent recruitment or contractual engagement". In this connection, the learned Senior Counsel referred to paragraph 23 of the Judgment pronounced by a Constitution Bench of the Hon'ble Supreme Court (2006) 4 SCC 1 The Secretary, State of Karnataka & Ors. V Umadevi (3) & Ors., wherein the Hon'ble Supreme Court has held that:
"12...,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 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 recognised 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. .... 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 particular project is completed......"
ii. In the present case, contractual employment was resorted to temporarily for a particular period till alternate arrangement could be made on a regular basis by the railway administration. Therefore, there cannot be any impediment 33 OA 806/2022 or bar on the railway administration to engage contractual workers as Safaiwalas in its medical department.
iii. The learned Senior Counsel for the respondents further contended that the engagement of contractual Safaiwalas does not offend Article 14 and Article 16 of the Constitution, nor can it be labelled as unfair labour practice, and non- extension of such contract cannot be termed as retrenchment. He drew our attention to the applicants' contention that non-renewal of the contractual engagement of HKAs, after expiry of the period of contract, would amount to retrenchment and also an unfair labour practice, which he denied as, according to him, the contention is legally unsustainable. In this regard, the learned Senior Counsel referred to the judgment, dated 07.09.2022, of the Hon'ble High Court of Madras in W.P. No.30824 of 2017 (K.M.Saradhadevi Vs. The State of Tamil Nadu and anr). Paragraphs 17 and 26, which are relevant for the purpose of this case are extracted as hereunder:
"17.When the terms and conditions of the appointment are unambiguous and the petitioners agreed for a contract appointment for a consolidated pay salary and the period of appointment also stipulated, the benefits of regularisation cannot be claimed as a matter of right. Regularisation and permanent absorption are to be granted in accordance with the recruitment rules in force. Scheme related appointments on contract basis on consolidated pay salary would not confer any right on such employees to claim regularisation or permanent absorption, which is otherwise to be made by following the procedures as contemplated under the Recruitment Rules in force. Though the petitioners were selected by a Selection Committee pursuant to the notification issued, the notification itself was issued _ to appoint the Assistant Professors under XII Plan under the special scheme implemented by the UGC on contract basis and for a consolidated pay salary. The terms and conditions of the appointment are notified by the University and appointment order reveals that such conditions were agreed by the appointees. Thus, there is no reason to turn around and to claim regularisation and permanent absorption as matter of right.
26. For instance, notification in the present case was issued to select and 34 OA 806/2022 appoint Assistant Professors, under the XII plan scheme, which is the scheme related appointments. The recruitment notification reveals that it is the contractual appointments on a consolidated pay salary, while so, many qualified and meritorious candidates would not prefer to participate in the process of selection as it was only on contract basis and for consolidated pay salary. Always the meritorious candidates will be aspiring to secure permanent employment in accordance with the procedures as contemplated. Those meritorious candidates would lose their opportunity to participate for the purpose of securing permanent appointment in the post of Assistant Professors. That exactly is the reason why the Constitutional Courts have repeatedly emphasised that the persons appointed on terms and conditions cannot claim regularisation and permanent absorption as a matter of right, which would infringe the rights of all other eligible and meritorious candidates, who all are aspiring to secure public employment on permanent basis in sanctioned posts."
iv. The learned Senior Counsel also referred to the judgment reported in 2008(10 SCC 1-Official Liquidator v. Dayanand and Ors) wherein he relied on paragraphs 49, 61, 64 to 75 of the said judgment which reiterate the principle cited supra.
v. Mr. V. Radhakrishnan, learned Senior Counsel, pointed out that, at no point of time, the applicants were under compulsion or forced or induced to join as contract HKAs. It is on their volition and on understanding of the conditions, that they have voluntarily accepted the offer and executed the bonds, Since each individual has accepted the conditions and executed the bond, such contract HRA is bound by his terms of engagement and cannot turn around and claim regularisation. In this connection, the learned Senior Counsel referred to Paragraphs 15 and 16 of the decision in the case of State of Maharashtra and Ors. v. Anita and Anr.(2016 (8) SCC 293). The said paragraphs are reproduced as hereunder:
"15. The above terms of the agreement further reiterate the stand of the State that the appointments were purely contractual and that the respondents shall not 35 OA 806/2022 be entitled to claim any right or interest of permanent service in the Government. The appointments of the respondents were made initially for eleven months but were renewed twice and after serving the maximum contractual period, the services of the respondents came to an end the Government initiated a fresh process of selection. The conditions of the respondents' engagement are governed by the terms of agreement. After having accepted the contractual appointment, the respondents are estopped from challenging the terms of their appointment. Furthermore, the respondents are not precluded from applying for the said posts afresh subject to the satisfaction of other eligibility criteria.
16. The High Court did not keep in view the various clauses in the Government Resolutions dated 21-8-2006 and 15-9-2006 and also the terms of the agreement entered into by the respondents with the Government. Creation of posts was only for administrative purposes for sanction of the amount towards expenditure incurred but merely because the posts were created, they cannot be held to be permanent in nature. When the Government has taken a policy decision to fill up 471 posts of Legal Advisors, Law Officers and Law Instructors on contractual basis, the Tribunal and the High Court ought not to have interfered with the policy decision to hold that the appointments are permanent in nature."
vi. The learned Senior Counsel for the respondents further relied on the judgment, dated 21.09.2006, of the Hon'ble Apex Court reported in 2006(12 SCC 482 (Vidyavaradhaka Sangha and Another Vs. Y.D. Deshpande and others) which also reiterates the very same view cited supra. The relevant portions are extracted as hereunder:
"4, It is now well-settled principle of law that the appointment made on probation/adhoc basis for a specific period of time comes to an end by efflux of time and the persons holding such post can have no right to continue on the post. In the instant case as noticed above, the respective respondents have accepted the appointment including the terms and conditions stipulated in the appointment orders and joined the posts in question and continued on the said post for some years. The respondents having accepted the terms and conditions stipulated in the appointment order and allowed the period for which they were appointed to have been elapsed by efflux of time, they are not now permitted to turn their back and say that their appointments could not be terminated on the basis of their appointment letters nor they could be treated as temporary employees or on contract basis. The submission made by the learned counsel for the respondents to the said effect has no merit and is, therefore, liable to-be rejected. It is also well-settled law by several other decisions of this Court that appointment on ad hoc basis/temporary basis comes to an end by efflux of time and persons holding such post have no right to continue on the post and ask for 36 OA 806/2022 regularisation, etc.
5. For the foregoing reasons, the civil appeals stand allowed and the judgments passed by the High Court in Writ Appeals Nos. 2807 and 2808 of 2002 andin -- the writ petitions are set aside. No costs."
vil. Learned Senior Counsel, Mr.V. Radhakrishnan, drew our attention to the judgment in Sachin Ambadas Dawale's case, relied upon by the learned Senior Counsel for the applicants, and submitted that the appointment of the petitioners was not back door or illegal, nor were they arbitrarily or haphazardly appointed without giving any opportunity to all eligible candidates. In that case, the Hon'ble Bombay High Court had held that there is no illegality in the selection process and the petitioners were found eligible and suitable for the posts for which they were selected and appointed. Based on the judgment of the Hon'ble Bombay High Court, several other cases have been allowed. The learned Senior Counsel brought to our attention that one of the Hon'ble Judges who was party to the Sachin Ambadas Dawale judgment had distinguished the judgment in Sachin Ambadas Dawale's case, while rendering judgment, subsequently, in the case of Mahesh Madhukar Wagh & Ors. State of Maharashtra & Ors(W.P. No.12597 of 2017) which is placed at Page 365 of the Citations Compilation submitted by the respondents. In that case, His Lordship Hon'ble Justice B.R. Gavai had considered the Sachin Ambadas Dawale and, after detailed discussion, held that the judgment in Sanchin Ambadas Dawale was widely misquoted and the decision should be restricted to the peculiar facts of that case only. Paragraphs 11 and 12 of the judgment, which are relevant, are extracted as 37 OA 806/2022 hereunder:
"11. Considering all these aspects and particularly taking into consideration that there were about 4500 sanctioned posts lying vacant for a long time on account of inability of the State Government to get the said posts filled-in through the MPSC, the aforesaid judgment in the case of Sachin Ambadas Dawale(supra) came to be delivered in the particular facts and circumstances. It is further to be noted that, even on the date on which the judgment in the said case was delivered, the Court has noted that, on the date of the judgment there were more _ than 400 vacancies of Lecturers in the Government Polytechnics still lying vacant and the advertisement that was issued by the State Government was only for 400 posts. The Court further took into consideration that on account of inaction on the part of the State Government in getting the selection done through MPSC for period of more than a decade, the Petitioners, in the said case, were continued for more than a decade and, by passage of time, many of them had become overage.
12. While considering the law laid down by Constitution Bench in the case of Secretary, State of Karnataka and Others Vs. Umadevi(3) and Others, this Court found that entry of the Petitioners in the case of Sachin Ambadas Dawale (supra) could not be said to be a back door entry, inasmuch as their appointment were made on the basis of Government Resolutions, which were issued to meet the peculiar exigency and the candidates appointed were appointed after the due advertisements were published and all interested candidates were made aware about the same and they were appointed after selection process, as prescribed under the said Government Resolution of 2003. As such, it could be seen that the said judgment does not , in any way, take a stand contrary to the law laid down by the Constitution Bench in the case of Umadevi(supra)."
viii. The learned Senior Counsel for the Respondents, also referred to the judgment of the Hon'ble High Court of Bombay in Writ Petition No.1609 of 2020 (The State of Maharashtra and Others Vs. Santosh and Another). He drew our attention to paragraphs 15 and 26 of the said Judgment. The said paragraphs are reproduced hereunder:
"15,We may notice some distinguishing factors that could be deduced from the decision in Sachin Ambadas Dawale (supra) and the facts of the present case. After the Lecturers herein had participated in the selection process pursuant to the advertisement wherein it was stated that the posts in question were to be filled in on temporary basis by contractual mode, the Directorate of Arts, Maharashtra State, issued an Office Order dated 31.10.2003 in which it was stated that the appointments were being made for a period of eleven months on monthly honorarium of Rs.8,000/- from 10.11.2003. The candidates were required to sign a bond on stamp paper of Rs.20/-. It was also stated that if the 38 OA 806/2022 post in question was declared excess after such contractual appointment, the services would automatically come to an end. It is an admitted fact that each Lecturer executed the requisite bond incorporating terms and conditions that were mentioned in the Circular dated 31,10.2003. In Anita and another(supra) Legal Advisors, Law Officers and Law Instructors were appointed on contractual basis. On an advertisement being issued seeking to make regular recruitment, the same was challenged by such conttactual appointees before the Tribunal. The Tribunal did not grant the relief of regularisation as prayed for. The appointees approached in the High Court which held that since 471 posts were created by the State Government which were permanent in nature, the appointments thereon were also permanent. The relief of permanency/regularisation was not granted. Both the parties then approached the Hon'ble Supreme Court. It was noticed that the intention of the State Government to fill in the said posts on contractual basis was clear from the government resolution under which the appointments were made. It also noticed that the appointees had signed an agreement acknowledging the contractual nature of appointment. In that backdrop, it was observed by the Hon'ble Supreme Court that the conditions of the engagement of the said appointees was governed by the terms of the agreement. Having accepted such contractual appointment, the appointees were estopped from challenging the contractual nature of appointment. On that premise the judgment of the High Court was set aside. The aforesaid decision that indicates that a contractual appointee having executed an agreement acknowledging the nature of appointment, it was not permissible for him to contend otherwise and claim a larger relief. It cannot be seen from the decision in Sachin Ambadas Dawale and others (supra) that the petitioners therein had executed such bonds and had acknowledged the nature of their contractual engagement. This relevant distinguishing aspect would have to be kept in mind.
26. Hence for aforesaid reasons we find that the Tribunal was not justified in law in granting the relief of regularisation to the Lecturers. There are various distinguishing factors in the present case which would not make it permissible for this Court to adopt the course that was followed in Sachin Ambadas Dawale and others (supra). It is true that the Lecturers have rendered service for a period of about ten years but their engagement being on contractual basis and governed by the bonds executed by them, such contractual appointments cannot be permitted to be regularised. Moreover, in the light of the subsequent Government Resolution dated 08.07.2020 no relief can be granted to the Lecturers on posts that have now been abolished. The Lecturers with the passage of time are likely to have crossed the age limit that would preclude them from participating in any fresh recruitment process. Hence, in this regard, we would adopt the course followed by the Division Bench in Lalita V. Mertia (supra) by granting liberty to the Lecturers to participate in any further process of recruitment on the post of Lecturers on substantive basis directing that if the eligibility criteria is satisfied, they could be considered for recruitment by condoning the bar of age, if any."
ix. The main argument put forth by the learned Senior Counsel for Respondents is that the engagement of the applicants is only on contract basis and, therefore, claim for regularisation of their services cannot be accepted. He drew our attention to the recent judgment, dated 12.11.2021, of the Hon'ble Supreme Court in the case of Saroj Kumar Nayak & Ors. Vs. Tribal Cooperative Marketing Development Federation of India Limited 39 OA 806/2022 (TRIFED) & Ors. (Special Leave to Appeal (C) No.17377/2021).
Hon'ble Supreme Court has held as follows:
X. decision of the Hon'ble Supreme Court in SLP (C) No. 2543 of 2023, dated 12.09.2023 (Ganesh Digamber Jambhrunkar & Ors Vs. the State of Maharashtra & Ors ). The relevant portions in the judgment are extracted "As the initial appointment of the petitioners was on contractual basis and even in the advertisement itself it was stated that there shall not be any right to claim regularization on the basis of such contractual appointment therefore the petitioners shall not be entitled for regularization on the basis such appointment.
The High Court has rightly refused the regularization. The Special Leave Petition is accordingly dismissed."
Mr. V. Radhakrishnan, learned Senior Counsel, also referred to the recent below:
Xi.
the above facts would undoubtedly disclose that the 202 contract HKAs know well that their contractual engagement is quite different from regular "The issue with which we are concerned in this petition is as to whether by working for a long period of time on contractual basis, the petitioners have acquired any vested legal right to be appointed in the respective posts on regular basis.
bev eseeetaseaee We are also apprised that some of the petitioners have applied for appointment through the current recruitment process. The High Court has rejected their claim mainly on the ground that they have no right to seek regularisation of their service. We do not think any different view can be taken."
The learned Senior Counsel for Respondents, therefore, contended that 40 OA 806/2022 appointment. Therefore, the 202 contract HKAs, the applicants herein, are estopped from making any claim for regularisation. The applicants have miserably failed to establish any legal right to come before this Tribunal to seek relief by way of regularisation. Hence, the learned Senior Counsel prayed that the OA be dismissed.
11. Heard both sides and perused the materials placed on record.
12. The applicants have prayed for the following interim relief:-
"To issue an interim injunction restraining the respondents from disengaging the services of the 1" applicant's members ie. 202 House Keeping Assistants (Safaiwalas) appointed pursuant to the Notification, dt. 27.07.2018 issued by the Chairman, Railway Recruitment Cell, pending final disposal of the Original Application."
13. When the matter came up for admission, this Tribunal, vide order, dt. 19.09.2022, directed the respondents not to disengage the Housekeeping Assistants till the next date of hearing. This interim order has been continued.
On 31.03.2023, this Tribunal passed the following order in MA 219/2023, filed by the applicants, aeeeeees we direct the respondents not to go ahead for recruitment in so far as the applicant's posts are concerned where they are rendering their services without leave of this Court. We hope and trust that the respondents will respect and honour the order passed on 19.09.2022 where this Tribunal allowed the applicants to render their services in their post as House Keeping Assistants."
On 26.04.2023, this Tribunal rejected MA No. 227/2023, filed for vacation of the interim order, dt. 31.03.2023 and the interim order was directed to be continued until further orders. On 19.07.2023, it was directed that appropriate order would be passed on the MA No. 62/2023 filed for vacation of stay moved by the respondents, on the next date of hearing. Thereafter, vide order, dt.
Al OA 806/202221.09.2023, the Hon'ble High Court of Madras in WP No. 27994 of 2023, extended the interim order, dt. 19.09.2022, for a further period of four weeks.
14. The main issue to be decided is whether the services of the HKAs, who were appointed as full time contractual employees and have been engaged/re- engaged, with break in their contractual employment, as per the bond executed by them, can be regularised. The applicants, who were appointed as contractual workers through an advertisement, dt. 27.07.2018, by the Southern Railways, have alleged that the Railways have been extremely arbitrary in seeking to disengage them after taking work from them in the most critical period of Covid and also recognising their services as Covid Frontline Warriors. Railways had recruited them through a process of selection which, according to them, was a regular selection process and the applicants had gone through the tests, including a written test, as prescribed under the rules. Now, invoking the terms and conditions of the bond, which was got executed by the applicants, the Railways have, through unfair industrial practices and in a high-handed manner, sought to disengage them. The Railways have, through the subsequent notification, dt. 21.04.2021, advertised the posts of House Keeping Assistants and not the posts of Safaiwala (Medical) for regular recruitment, therefore, there is no need to disengage the applicants who are doing essential job at the Railway hospitals as Medical Safaiwalas, since, for this post, no advertisement has been issued. It is also alleged that there is a move to engage other ad-hoc staff through the GeM portal. It would be highly improper and unfair to replace 42 OA 806/2022 the applicants, who are, admittedly, contractual appointees, with another set of contractual /ad hoc employees.
15. It is an admitted fact that, against the recruitment notification issued by the Railway Recruitment Cell on 27.07.2018, 257 Safaiwalas were selected to be engaged on full time contractual basis in January, 2019, for a period of 6 months, initially. Many of the Safaiwalas engaged in January, 2019, either failed to join or left the job subsequently, and, as a result, 72 Safaiwalas were provisionally selected, pursuant to the notification, dt. 27.07.2018, and were engaged between December, 2019, and August, 2020. Pointing to the Railway Board's communication, dt. 30.06.2022, for engaging Safaiwalas only through the Government e-Marketplace (GeM) Portal, the learned counsel for the applicants contended that it was clearly an effort to replace one set of contractual appointees with another set to be taken on contract through the GEM Portal, even though the present Safaiwalas, who are the applicants in this OA, have been working against clear sanctioned posts.
16. The learned counsel for respondents maintains that the contractual candidates had much lower standards for selection and even in the written/multiple choice test, less number of questions to attempt, as is evident from the table of tests prescribed for regular selection of employees for regular appointment vis-a-vis the tests undergone by the present set of contractual employees, who are applicants in the OA before this Tribunal. The counsel for respondents has furnished a table of the stages and tests undergone by those 43 OA 806/2022 recruited through regular competitive exams held by the Railways and the process followed for appointment of the contractual safaiwalas who are the applicants here. He has drawn attention to the items at Serial numbers 1, 4, 6(i)
(ii), 6(b) of the table which show the differences, whereas others remain the same. The learned counsel for the applicants has argued that practically there is no difference in the level of publicity given for the recruitment as well as the tests undergone by those who appeared for selection as contractual employees vis-a-vis those appointed as regular employees. The table only shows that the Railways have not been following uniform standards while putting the candidates through the tests, which basically remain quite identical. Simply because the advertisement was not published in the Rozgar Samachar and was restricted to local newspapers does not mean that it was known only to local candidates. As it was put up on the Railway website, it was in the public domain and had global reach. It is evident from the fact that candidates from North Indian states also applied for the contractual posts. These candidates were also put through computer based test and the number of questions was very much in proportion to the time available and not in any manner less demanding for the candidates. All in all, the marks and duration might have varied but the tests remain identical in each category.
17. The learned counsel for the applicants has alleged arbitrariness and high- handedness in terminating the services of the contractual employees on the plea that they have executed a bond where the terms and conditions were totally in 44 OA 806/2022 favour of the employer and violative of the rights of the applicants, as undue advantage was taken of their helplessness on account of unemployment and inability to question the authorities for fear of being rejected for the post.
18. The learned counsel for the respondents has maintained that the terms and conditions were made clear right from the stage of the notification for the posts of contractual Safaiwala (Medical), which have since been renamed as House Keeping Assistant (Medical) through the communication No: PC- II1/2018/Standardization/2, dt. 22.10.2018, of the Railway Board, Ministry of Railways. However, the counsel for the applicants has alleged that removal or disengagement of these contractual employees tantamounts to retrenchment and constitutes unfair industrial/labour practices. "Appointing and continuing them"
in contractual position for so long was itself highly unfair, according to her.
19. While the terms and conditions of employment of the contractual employees in question can be seen from the advertisement, offer letter and the bond executed by the candidates at every step of their initial engagement as well as subsequent re-engagement, we have gone into the length of engagement of each candidate, which was offered with breaks, after every stint on engagement or re-engagement. The total length of engagement, with the breaks, for all the applicants is to be counted from the month of joining as in the following table:-
Engagement of HKAs (Month-wise break up) [January 2019 87 February 2019 44 45 OA 806/2022 [June 2019 1 August 2019 18 September 2019 3 February 2020 10 August 2020 23 September 2020 16 Total no. of HKAs engaged 202
20. The abstract of tabulation filed by the respondents depicting participation of contract HKAs in the recruitment examination conducted vide CEN No. RRC-01/2019, for regular employment, is extracted as under:-
"6 Performance of 202 Contract HKAs for recruitment vide CEN No. RRC-01/2019 Total Contract HK As/applicants in OA |202 Total Applied 147 Total Failed in CBT* 136 Total Qualified in CBT il Total obtained cut-off & empanelled in|6 Panel 1 * CBT = Computer Based Test"
21. On the allegation of continuing with the contractual employees as such, without conferring regular status on them and also trying to replace one set of contractual employees with another set of contractual employees, the bench asked the counsel for the applicants categorically whether the Railways had the option or the power, under the rules, to convert these contractual employees into permanent/regular employees. The counsel for applicants went back to her argument that appointing them as contractual employees, after putting them 46 OA 806/2022 through the process adopted for recruitment of regular employees, was ab initio objectionable and unfair. Having appointed them through this process, they should be now treated on par with regular employees.
22. The applicants have tried to make out a case that they have been occupying the post of Safaiwalas for a considerable length of time. The respondents have furnished a chart, as discussed above, which shows that the senior-most on the list, as per the date of joining, and with certain breaks, has been working since 04.01.2019 and, at the time of filing of this application, he had put in service, in different stints, covering about three years and nine months, including the Covid period. It is also an admitted fact that the serving applicants have been given break after every period of contractual engagement because of which the duration of engagement/re-engagement could be as short as about two years, at times. 126 of the 257 contract HK As originally engaged are no longer in service with the Railways. It is also submitted that 147 of the contractual HKAs have participated in the recruitment process which was subsequently advertised vide Notification No. (CEN) RRC 01/2019, dt. 23.02.2019, and are actually awaiting the results. The last category, thus, would be in a unique position, whereby, if their plea in the OA is accepted by this Tribunal, even in case they fail in their attempt for regular recruitment for the posts advertised on 23.02.2019, despite the fact that, at present, they are only contractual appointees, they will end up getting converted as regular employees in the railways.
47 OA 806/202223. The counsel for respondents has been emphatic that the applicants, having accepted the terms of contract and having signed the bond every single time, without as much as a representation against the said conditions, cannot go back and now claim regularisation. To this, the argument on behalf of the applicants is that the bond is not sacrosanct and it is weighed entirely in favour of the employer and is totally one-sided. The applicants have objected to the plea of Estoppel in the issue. So far as the position of the helpless applicants is concerned, it is argued, they did not possess equal bargaining power against the Railways. As regards the contract signed by the applicants, the Learned Counsel for the applicants has referred to certain portions of the judgment of the Hon'ble Supreme Court in the Central Inland Water Transport Corporation Limited and Vs. Brojo Nath Ganguly and anr., which reads as follows:-
"it tends to create a sense of insecurity in the minds of those to whom it applies and consequently it is against public good. Such a clause, therefore, is opposed to public policy and being opposed to public policy, it is void under Section 23 of the Indian Contract Act.
eaceeee seseaee the same mutuality as in a contract between the lion and the lamb that both will be free to roam about in the jungle and each will be at liberty to devour the - other. When one considers the unequal position of the Corporation and its employees, the argument of mutuality becomes laughable."
24. On behalf of the applicants, the following rulings, among others, have been cited :-
i. Order, dt. 06.12.1995, of the Hon'ble Supreme Court, in Civil Appeal No. 4375 of 1990, in the case of Chief Conservator of Forests and anr. Vs. Jagannath Maruti Kondhare and ors (1995) 2 SCC 293;48 OA 806/2022
ii. Order, dt. 02.05.2006, of the Hon'ble Supreme Court, in Civil Appeal No. 2410 of 2006, in the case of Haryana State Electronics Development Corpn. Ltd. Vs. Mamni (2006) 9 SCC 434;
iti. Order, dt. 06.05.2008, of the Hon'ble Supreme Court, in Civil Appeal No. 3324 of 2008 in the case of Telecom District Manager and ors Vs. Keshab Deb (2008) 8 SCC 402;
iv. Order, dt. 22.04.2009, of the Hon'ble Supreme Court, in Civil Appeal No. 7922 of 2002 in the case of Mohd. Abdul Kadir and anr Vs. Director General of Police, Assam and ors (2009) 6 SCC 611;
V. Order, dt. 11.04.2011, of the Hon'ble Supreme Court, in Civil Appeal No. 3190 of 2011, in the case of Devinder Singh Vs. Municipal Council, Sanaur (2011) 6 SCC 584;
vi. Order, dt. 09.07.2013, of the Hon'ble Supreme Court, in Civil Appeals No. 5321-22 of 2013, in the case of State of Gujarat and ors Vs. PWD Employees Union and ors (2013) 12 SCC 417;
vii. Order, dt. 07.08.2013, of the Hon'ble Supreme Court in Civil Appeals No. 1059 of 2005, in the case of Nihal Singh and ors Vs. State of Punjab and ors (2013) 14 SCC 65;
viii. Order, dt. 27.03.2015, of the Hon'ble Supreme Court in Civil Appeals No. 3209-210 of 2015, in the case of Grama Panchayat Vs. Secretary, Municipal Employees Union and ors (2015) 12 SCC 775;
ix. Order, dt. 16.02.1982, of the Hon'ble Supreme Court, in Civil Appeal No. 49 OA 806/2022 1613 of 1979, in the case of L.Robert D'souza Vs. Executive Engineer, Southern Railway and anr (1982) 1 SCC 645;
x. Order, dt. 06.04.1986, of the Hon'ble Supreme Court, in Civil Appeal No. 4412 of 1985 and batch, in the case of Central Inland Water Transport Corporation Limited and anr Vs. Brojo Nath Ganguly and anr (1986) 3 SCC 156;
xi. Order, dt. 12.04.1990, of the Hon'ble Supreme Court, in Civil Appeal No. 251/1978, in the case of Nirchiliya & ors Vs. Management of Safire Theatre, Madras & Anr;
xii. Order, dt. 18.03.1997, of the Hon'ble Supreme Court, in Civil Appeal No. 481 of 1989 and batch, in the case of L. Chandra Kumar Vs. Union of India and ors (1997) 3 SCC 261;
xiii. Order, dt. 29.04.1997, of the Hon'ble Supreme Court, in Civil Appeal No. 913 of 1987 and batch, in the case of Union of India and ors. Vs. P.Sathikumarana Nair (1997) 10 SCC 663;
xiv.. Order, dt. 01.10.1997, of the Hon'ble Supreme Court, in Civil Appeal No. 6953 of 1997 in the case of Rashtriya Chaturth Shreni Railway Majdoor Congress (INTUC) Vs. Union of India and ors (1997) 11 SCC 1;
Order, dt. 26.04.2006, of the Hon'ble High Court of Madras, in W.A. No. 308 of 2005 and WP Nos. 6592 of 2004 and batch in the case of A.Madheswaran Vs. State of Tamil Nadu and anr 2006 (3) CTC 753;
xv. Order, dt. 03.08.1987, of the Hon'ble Supreme Court, in SLP (C) Nos.
50 OA 806/20226887-88 of 1987, in the case of Krishna District Co-operative Marketing Society Limited, Vijayawada Vs. N. V. Purnachandra Rao and ors (1987) 4 SCC 99;
xvi. Order, dt. 18.03.1997, of the Hon'ble Supreme Court, in Civil Appeal No. 481 of 1989 and batch, in the case of L. Chandra Kumar Vs. Union of India and ors (1997) 3 SCC 261;
xvii. Order, dt. 10.12.1976, of the Hon'ble Supreme Court, in Civil Appeal No. 432 of 1976, in the case of Shri. Ranjeet Mal Vs. General Manager, Northern Railway, Baroda House, New Delhi and anr (1977) 1 SCC 484; xvill. Order, dt. 20.09.2005, of the Hon'ble Supreme Court, in Civil Appeals No. 2254 of 2005 and batch, in the case of Hindustan Petroleum Corpn. Ltd. Vs. Daruis Shapur Chenai and ors (2005) 7 SCC 627;
xix. Order, dt. 27.02.1990, of the Hon'ble Supreme Court, in Writ Petitions ©) Nos. 2275-86 of 1982 with SLP (C) No. 4090 of 1985 and batch, in the case of M.M.R. Khan and ors Vs. Union of India and ors (1990) (Supp) SCC 191; xx. Order, dt. 10.08.2000, of the Hon'ble Supreme Court, in Civil Appeals No. 13087 of 1996 and batch, in the case of G.B.Pant University of Agriculture & Technology, Pantnagar, Nainital Vs. State of UP and ors (2000) 7 SCC 109;
xxi. Order, dt. 19.10.2013, of the Hon'ble Bombay High Court, in WP No. 2046 of 2010, in the case of Sachin Ambadas Dawale and ors Vs. State of Maharashtra and anr, 2014 (2) MhL. J. 36;
OC) 51 OA 806/2022 xxii. Order, dt. 09.12.2014, of the Hon'ble Supreme Court, in Civil Appeal No. 10856 of 2014, in the case of Durgapur Casual Workers Union and ors Vs. Food Corporation of India and ors (2015) 5 SCC 786;
xxiii. Order, dt. 17.04.2015, of the Hon'ble Supreme Court, in Civil Appeal No. 3727 of 2015, in the case of Oil and Natural Gas Corporation Limited Vs. Petroleum Coal Labour Union and ors (2015) 6 SCC 494;
xxiv. Order, dt. 13.01.2015, of the Hon'ble Supreme Court, in Civil Appeal No. 390 of 2015, in the case of Arjun Singh and ors Vs. State of Himachal Pradesh and ors (2015) 15 SCC 713;
xxv. Order, dt. 10.10.2018, of the Hon'ble Karnataka High Court, in WP Nos. 15712-15711 of 2015 and batch, in the case of Mallikarjun and ors Vs. State of Karnataka & Ors; | xxvi. Order, dt. 04.05.1990, of the Hon'ble Supreme Court, in Civil Appeals No. 3241-48 of 1981 and batch in the case of Punjab Land Development and Reclamation Corporation Ltd, Chandigarh Vs. Presiding Officer, Labour Court, Chandigarh and ors (1990) 3 SCC 682;
xxvii. Order, dt. 06.03.1991, of the Hon'ble Madras High Court, in WP No. 7832 of 1986, in the case of K. Rajendran Vs. Director (Personnel), Project and Equipment Corporation of India Ltd, New Delhi and anr 1992 -- 1 L.L.N. 150;
XXVIII. Order, dt. 03.09.2021, of the Hon'ble Supreme Court, in Civil Appeals Nos. 3922-25 of 2017 and batch, in the case of Somesh Thapliyal and 52 OA 806/2022 anr Vs. Vice Chancellor, H.N.B. Garhwal University and anr (2021) 10 SCC
116.
25. To strengthen their submissions, the learned counsel for the respondents has relied upon the following judgments, among others:-~ i. Order, dt. 10.04.2006, of the Hon'ble Supreme Court, in Civil Appeal Nos. 3595-3612 of 1999 and batch, in the case of Secretary, State of Karnataka and ors Vs. Umadevi (3) and ors 2006 SCC OnLine SC 407;
ii Order, dt. 21.09.2006, of the Hon'ble Supreme Court, in Civil Appeal No. 4224 of 2006 and batch, in the case of Vidyavardhaka Sangha and anr Ys. ¥.D.Deshpande and ors (2006) 12 SCC 482;
ii. Order, dt. 04.11.2008, of the Hon'ble Supreme Court, in Civil Appeal Nos. 2985 of 2007 and batch, in the case of Official Liquidator Vs. Dayanand and ors (2008) 10 SCC 1;
iv. Order, dt. 12.07.2016, of the Hon'ble Supreme Court, in Civil Appeal Nos. 6132-33 of 2016 and batch, in the case of State of Maharashtra and ors Vs. Anita and anr (2016) 8 SCC 293;
V. Order, dt. 24.03.2022, of the Hon'ble Supreme Court, in Civil Appeal No. 1951 of 2022, in the case of State of Gujarat and ors Vs. R.J. Pathan and ors (2022) 5 SCC 394;
vi. Order, dt. 07.10.2021, of the Hon'ble Supreme Court, in Civil Appeal Nos. 2491-92 of 2021 and batch, in the case of Union of India and ors Vs. N. Murugesan and ors (2022) 2 SCC 25;
53 OA 806/2022vil. Order, dt. 07.09.2022, of the Hon'ble Madras High Court, in WP Nos. 30824 to 30836 of 2017, in the case of K.M.Saradhadevi Vs. State of Tamil Nadu, rep by its Secretary Vs. Anr.;
viii. Order, dt. 29.07.2008, of the Hon'ble Supreme Court, in Civil Appeal Nos. 6934-6946 of 2005 and batch, in the case of Union of India Vs. Pushpa Rani and ors (2008) 9 SCC 242;
ix. Order, dt. 19.12.2002, of the Hon'ble Supreme Court, in Civil Appeal Nos. 4679-80 of 1996 and batch, in the case of P. U. Joshi and ors Vs. Accountant General, Ahmedabad and ors (2003) 2 SCC 632;
x. Order, dt. 13.09.2011, of the Hon'ble Supreme Court, in Arbitration Petition Nos. 7 and 8 of 2009, in the case of Cauvery Coffee Traders, Mangalore Vs. Hornor Resources (International) Company Limited (2011) 10 SCC 420;
xi. Order, dt. 27.03.2019, of the Hon'ble Bombay High Court, in WP No. 12597 of 2017 and batch, in the case of Shri. Mahesh Madhukar Wagh and ors Vs. State of Maharashtra and ors (13)-WP-12597-17;
xii. Order, dt. 13.10.2022, of the Hon'ble Bombay High Court, in WP No. 1609 of 2020 and batch, in the case of State of Maharashtra and ors Ys. Santosh and ors;
xiii. Order, dt. 21.06.2021, of the Hon'ble Delhi High Court, in WP (C) No. (5453/2020, in the case of Saroj Kumar Nayak & ors Vs. Tribal Cooperative Marketing Development Federation on India Limited;
54 OA 806/2022xiv. Order, dt. 12.11.2021, of the Hon'ble Supreme Court, in Petition for Special Leave to Appeal (C) No. 17377/2021, in the case of Saroj Kumar Nayak & ors Vs. Tribal Cooperative Marketing Development Federation of India Limited (TRIFIED) & ors;
xv. Order, dt. 20.09.2022, of the Hon'ble Bombay High Court, in Writ Petition No. 5646 of 2016 and batch, in the case of Ganesh Digamber Jambrunkar and ors Vs. The State of Maharashtra and ors; xvi. Order, dt. 12.09.2023, of the Hon'ble Supreme Court, in Petition for Special Leave to Appeal (C) No. 2543/2023, in the case of Ganesh Digamber Jambrunkar & ors Vs. The State of Maharashtra & ors.
26. The learned counsel for respondents, has consistently taken the plea that the applicants cannot approbate and reprobate, having signed the bond on every single offer of engagement/ re-engagement. The rulings of the Hon'ble Supreme Court in Civil Appeal Nos. 3491-92 of 2021 and batch in the case of the Union of India and ors Vs. N. Murugesan and ors, on the bar on approbate and reprobate, that have been cited by him, are extracted below:
"APPROBATE AND REPROBATE:
26. These phrases are borrowed from'the Scott's law. They would only mean that no party can be allowed to accept and reject the same thing, and thus one cannot blow hot and cold. The principle behind the doctrine of election is inbuilt in the concept of approbate and reprobate. Once again, it is a principle of equity coming under the contours of common law. Therefore, he who knows that if he objects to an instrument, he will not get the benefit he wants cannot be allowed to do so while enjoying the fruits. One cannot take advantage of one part while rejecting the rest. A person cannot be allowed to have the benefit of -an instrument while questioning the same. Such a party either has to affirm or disaffirm the transaction. This principle has to be applied with more vigour as a common law principle, if such a party actually enjoys the one part fully and on 55 OA 806/2022 near completion of the said enjoyment, thereafter questions the other part. An | element of fair play is inbuilt in this principle. It is also a species of estoppel dealing with the conduct of a party. We have already dealt with the provisions of the Contract Act concerning the conduct of a party, and his presumption of knowledge while confirming an offer through his acceptance unconditionally.
27. We would like to quote the following judgments for better appreciation and understanding of the said principle:
27.1. Nagubai Ammal v. B. Shama Rao, 1956 SCR 451:
"23. But it is argued by Sri Krishnaswami Ayyangar that as the proceedings in OS. No. 92 of 1938-39 are relied on as barring the plea that the decree and sale in OS. No. 100 of 1919-20 are not collusive, not on the ground of res judicata or estoppel but on the principle that a person cannot both approbate and reprobate, it is immaterial that the present appellants were not parties thereto, and the decision in Verschures Creameries Ltd. v. Hull and Netherlands Steamship Company Ltd. [(1921) 2 KB 608], and in particular, the observations of Scrutton, LJ, at page 611 were quoted in support of this position. There, the facts were that an agent delivered goods to the customer contrary to the instructions of the principal, who thereafter filed a suit against the purchaser for price of goods and obtained a decree.
Not having obtained satisfaction, the principal next filed a suit against the agent for damages on the ground of negligence and breach of duty. It was held that such an action was barred. The ground of the decision is that when on the same facts, a person has the right to claim one of two reliefs and with full knowledge he elects to claim one and obtains it, it is not open to him thereafter to go back on his election and claim the alternative relief. The principle was thus stated by Bankes, L.J.:
"Having elected to treat the delivery to him as an authorised delivery they cannot treat the same act as a misdelivery. To do so would be to approbate and reprobate the same act".
The observations of Scrutton, LJ on which the appellants rely are as follows:
"A plaintiff is not permitted to 'approbate and reprobate'. The phrase -- is apparently borrowed from the Scotch law, where it is used to express the principle embodied in our doctrine of election -- namely, that no party can accept and reject the same instrument: Ker _ v. Wauchope [(1819) 1 Bli 1, 21] : Douglas-Menzies v. Umphelby [(1908) AC 224, 232] . The doctrine of election is not however confined to instruments. A person cannot say at one time that a transaction is valid and thereby obtain some advantage, to which he could only be entitled on the footing that it is valid, and then turn round and say it is void for the purpose of securing some other advantage. That is to approbate and reprobate the transaction".56 OA 806/2022
27.2. State of Punjab v. Dhanjit Singh Sandhu, (2014) 15 SCC 144:
"22. The doctrine of "approbate and reprobate" is only a species of estoppel, it implies only to the conduct of parties. As in the case of estoppel it cannot operate against the provisions of a statute. (Vide CIT v. V. MR. P. Firm Muar [CIT v. V. MR. P. Firm Muar, AIR 1965 SC 1216]).
23. It is settled proposition of law that once an order has been passed, it is complied with, accepted by the other party and derived the benefit out of it, he cannot challenge it on any ground. (Vide Maharashtra SRTC v. Balwant Regular Motor Service [Maharashtra SRTC v. Balwant Regular Motor Service, AIR 1969 SC 329] .) In R.N. Gosain v. Yashpal Dhir [R.N. Gosain v. Yashpal Dhir, (1992) 4 SCC 683] this Court has observed as under: (SCC pp. 687-88, para 10) "10. Law does not permit a person to both approbate and reprobate.
This principle is based on the doctrine of election which postulates that no party can accept and reject the same instrument and that 'a person cannot say at one time that a transaction is valid and thereby obtain some advantage, to which he could only be entitled on the footing that it is valid, and then turn round and say it is void for the 2 99 purpose of securing some other advantage'.
27.3. Rajasthan State Industrial Development & Investment Corpn. v. - Diamond & Gem Development Corpn. Ltd., (2013) 5 SCC 470:
"I, Approbate and reprobate
15. A party cannot be permitted to "blow hot-blow cold", "fast and loose" or "approbate and reprobate". Where one knowingly accepts the benefits of a contract, or conveyance, or of an order, he is estopped from denying the validity of, or the binding effect of such contract, or conveyance, or order upon himself. This rule is applied to ensure equity, however, it must not be applied in such a manner so as to violate the principles of what is right and of good conscience......
16. Thus, it is evident that the doctrine of election is based on the rule of estoppel--the principle that one cannot approbate and reprobate is inherent in it. The doctrine of estoppel by election is one among the species of estoppel in pais (or equitable estoppel), which is a rule of equity. By this law, a person may be precluded, by way of his actions, or conduct, or silence when it is his duty to speak, from asserting a right which he would have otherwise had."
27. Starting from the judgement, dt. 10.04.2006, of the Hon'ble Apex Court in Civil Appeal Nos. 3595-3612 of 1999 and batch in the case of Secretary, State of Karnataka and ors Vs. Umadevi and ors, there have been pronouncements 57 OA 806/2022 to the effect that treating ad hoc or contractual appointees as regular recruits, at a later date, will deprive the other bonafide aspirants, waiting for a chance to join a regular post through regular recruitment, of their due. There cannot be special entry for the contractual employees, enabling them to steal a march over other deserving candidates, through the back door. As regards the contention, on behalf of the applicants, that getting a bond signed by a contractual employee is like forcing an agreement between a lion and a lamb, it is worth mentioning that, we cannot create a right or a situation where the so-called lamb runs with the hare and hunts with the hound. Such a situation will see a flood of litigious employees, having entered as contractual employees, blocking the entry of regular recruits. This OA has been brought on by contractual employees, whose total period of engagement/re-engagement, at the time of filing it, was not even 4 years for the longest serving ones and the latest entrants had completed not even 2 years and that, too, with breaks in the period of engagement/re- engagement.
28. The Hon'ble Supreme Court, in the Petition for Special Leave to Appeal (C) No. 17377/2021, in the case of Saroj Kumar Nayak & ors Vs. Tribal Cooperative Marketing Development Federation of India Limited (TRIFED) & Ors had observed as follows:-
As the initial appointment of the petitioners was on contractual basis and even in the advertisement itself it was stated that there shall not be any right to claim regularization on the basis of such contractual appointment therefore the . petitioners shall not be entitled for regularization on the basis of such appointment. The High Court has rightly refused the regularization.58 OA 806/2022
The Special Leave Petition is accordingly dismissed.
Pending applications stand disposed of."
29. The Aurangabad Bench of the Hon'ble Bombay High Court has observed in its judgement, dt. 20.09.2022, in WP no. 4546 of 2016 in the case of Ganesh Digamber Jambrunkar and ors Vs. the State of Maharashtra and ors as given below :
"25. Thus, the settled position of law now is that no person appointed on temporary/casual/adhoc/contractual basis can claim regularization or permanency in service. A one time exception has been carved out by the Apex Court in para No. 53 of the judgment in the case of Umadevi, wherein irregular appointments of duly qualified persons in duly sanctioned vacant posts where employees have worked for 10 years or more without intervention of Court orders have been permitted to be regularized. This Court at its Principal Seat in . the case of Union of India and others Vs. Smt. Lalita V. Mertia in Writ Petition No. 1338 of 2015 decided on 08 October 2021 has held that the said exception made in the case of Umadevi is a one time exception and applicable only in respect of employees who have completed ten years as on 10th April 2006. It is held that it was never the intention of the Apex Court to permit regularization of those who had not completed 10 years of service as on the date of rendering of the judgment.
"98. Thus, this Court has specifically clarified that the judgment in Sachin Ambadas Dawale (supra) does not lay down a ratio that persons appointed on purely contractual or temporary basis without following due selection process as laid down by the Apex Court in the case of Umadevi would also be entitled to regularization of their services. The present petitions have been filed on 18.04.2016 before issuance of the clarification by this Court on 27.04.2017. Thus, in view of the specific clarification issued by this Court by order dated 27.04.2017, the petitioners are not entitled to the relief of regularization by © relying on the judgment in the case of Sachin Ambadas Dawale (supra).
"34 The petitioners accepted the contractual appointments as well as executed undertakings. They knew from the very beginning that the appointments were purely contractual, for specified time and they were outside the sanctioned posts in the college. Mr. Acharya has in this regard relied upon the judgment of the Apex Court in the case of the State of Maharashtra others Vs. Anita and another reported in (2016) 8 SCC 293, in which it is held that after having accepted contractual appointments, appointees are estopped from challenging the terms of their appointments."59 OA 806/2022
"44, After pronouncement of the judgment, learned advocate Ms. Talekar for the petitioners submits that the interim relief has been in operation till date and a breathing time be given to the petitioners to approach the Apex Court.
"45. Considering the reasons for which we are dismissing the writ petitions, the request is rejected."
30. The above judgment of the Hon'ble Bombay High Court was challenged before the Hon'ble Apex Court, but the Hon'ble Supreme Court has put the lid on the debate by upholding the above judgement in the case of Ganesh Digamber Jambhrunkar and others vs the State of Maharashtra and ors, vide its ruling on 12-9-2023, in SLP (C) No. 2543/2023, wherein it has been observed that, "The petitioners were all appointed in Shri Guru Govind Singh Institute of Engineering and Technology on contractual basis and their appointments were made sometime in the year 2011. They are aggrieved as a regular recruitment process has started and we are apprised by learned counsel for the respondent-State that at present such process stands completed now but appointment letters are yet to be issued. The petitioners want to be regularized in the post for which such appointment process has been started ......"
"The issue with which we are concerned in this petition is as to whether -- by working for a long period of time on contractual basis, the petitioners have acquired any vested legal right to be appointed in the respective posts on regular basis."
"We appreciate the argument of the petitioners that they have given best part of their life for the said college but so far as law is concerned, we do not find their continuous working has created any legal right in their favour to be absorbed. In the event there was any scheme for such regularization, they could have availed of such scheme but in this case, there seems to be none. We are also apprised that some of the petitioners have applied for appointment through the current recruitment process. The High Court has rejected their claim mainly on the ground that they have no right to seek regularization of their service. We do not think any different view can be taken.
"The present petition shall stand dismissed.
"Pending application(s), if any, shall also stand disposed of. "
31. Respective learned counsels of both the parties have ably assisted this 60 OA 806/2022 Bench through their well-researched and exhaustive submissions along with incisive differentiation, clarifying the nuances of the landmark judgements in the compilations of citations.
32. In the light of the aforesaid discussions and the decisions of the Hon'ble High Courts and their confirmation by the Hon'ble Apex Court, we find that the applicants have failed to make out a case for accepting their prayers in the OA.
33. The Original Application is, therefore, dismissed.
34. The interim order, dt. 31.03.2023, directing the Railways not to go ahead
-with recruitment in so far as the applicants' posts are concerned where they are rendering their services stands vacated. Connected MA No. 62/2023 stands closed.
35. No order as to costs.
(M. SWAMINATHAN) (VARUN SINDHU KUL KAUMUDD MEMBER (J) MEMBER (A) _ {Pe se 2023 SKSI/MAS