Madhya Pradesh High Court
Brijlal Patel And Ors. vs Managing Director, M.P. Hastashilp ... on 20 January, 1997
Equivalent citations: 1998(1)MPLJ236
Author: C.K. Prasad
Bench: C.K. Prasad
ORDER C.K. Prasad, J.
1. In all these petitions common questions of law and fact arise and as such they are being disposed of by this common order.
2. The Government of India, in order to increase the production base in carpet weaving, for the purpose of meeting the demand of hand-knotted carpet in international market and to enhance employment opportunity amongst the artisans, launched the scheme of training in carpet weaving. The training in carpet weaving was decided to be given by either departmental training scheme or through other organisations i.e. State Corporation, Apex Society and Voluntary Organisations etc. In the State of M. P., the scheme was to be executed through the Madhya Pradesh Hastashilp Vikas Nigam (hereinafter referred to as the Vikas Nigam) and Central Government placed at its disposal, funds for carrying out the scheme. In the scheme of training, in carpet weaving through other organisation, honorarium at different rates at different time was given to the instructors. In the year 1989, the honorarium was fixed at Rs. 600/- whereas at present it is at Rs. 850/-. The trainees undergoing the training were also paid stipend at different rates at different point of time.
3. Petitioners were engaged as instructors for imparting training in carpet weaving by respondent Vikas Nigam. Some of them were engaged as back as in the year 1989. Some of the instructors were also transferred from one centre to another situated in another district. By the writ petitions filed under Articles 226 and 227 of the Constitution of India the petitioners seek a direction for regularisation of their services and for grant of regular scale of pay.
4. I have heard Shri Datta, Shri Pathak, Shri Chouhan and other learned counsel in support of the writ petitions whereas Shri Vivek Tankha addressed in opposition of the writ petitions'
5. It has been averred by the petitioners that the respondent Vikas Nigam has entered in the phase of training in carpet weaving as also production as well as selling of carpet through its emporium. It is stated that it has been decided that instructors for training in carpet weaving will be appointed for six months and they will not be treated as employees of the Vikas Nigam. The appointment was to be restricted only for limited period in a particular district where the scheme is launched. It is stated that because of large scale unemployment and there being surplus labour force the employer taking advantage of such a situation forced the petitioners to accept unilateral terms and conditions of appointment which provided for payment of honorarium only and continuance of the employment during the subsistence of the scheme.
6. According to the petitioners there was no permanent post of instructors even in carpet weaving centre run directly by the Central Government in the State of U. P. and after the decision of the various Central Administrative Tribunals, affirmed by the Supreme Court, that the Central Government in the year 1990 has created permanent post of instructors and assistant instructors in the regular scale of pay. In this connection the decisions of the Central Administrative Tribunal, Allahabad Bench in O. A. No. 165/90 dated 27-3-1990, judgment dated 9-8-1988 passed in O A No. 545/86 as also judgment of the Central Administrative Tribunal, Patna Bench in O. A. No. 72/88 dated 29-8-1989, have been referred.
7. Regularization is sought for on the ground that the petitioners being engaged as instructors for a long time and being transferred from one place to another, show that the nature of the work is permanent and, therefore, their continuance on payment of honorarium is not only against the public- policy but arbitrary also. It is further contended that the respondent Corporation having decided to sell carpets also shows that the nature of work is permanent. The petitioners termed the inaction on part of the respondent Vikas Nigam in refusing to regularise their services as discriminatory, as according to them, when instructors appointed in the State of U. P. were regularised and given the regular scale of pay, the petitioners are also entitled for regularisation of their service on the principle of equality.
8. However, it is averred on behalf of the respondent Vikas Nigam that for the purpose of carrying out the scheme the Central Government placed at its disposal the funds and so long the funds are made available to it the scheme shall continue and the petitioners shall be allowed to work as instructors during the subsistence of the scheme. It is averred that in order to mitigate the hardship of the instructors they were transferred from one centre to another, otherwise they could have lost their job. It is the stand of the respondent that it is prerogative of the Central Government to continue with the scheme or launch another scheme and this Court cannot direct for continuance of a particular scheme so as to continue the employment of the petitioners. Respondent Vikas Nigam contends that termination of the employment of the petitioners after the completion of the scheme can neither be termed arbitrary or against public policy. It is further averred that the judgments of the Central Administrative Tribunal of Allahabad and Patna Benches not in any way advance the case of the petitioners. The allegation of discrimination has also been refuted and it has been stated that the craftsmen who were directed to be regularised by the Allahabad Bench of the Central Administrative Tribunal were working in the scheme undertaken by the Central Government and their case is clearly distinguishable. It is the stand of the respondent Vikas Nigam that for the purpose of carrying out the scheme the Central Government placed at its disposal the fund, it cannot be forced to regularise the service of the petitioners.
9. For the pleadings of the parties, it is apparent that the petitioners were appointed under scheme run by the Vikas Nigam and they were paid honorarium for the work rendered by them. The appointment was under the scheme of training for carpet weaving and funds for the said purpose was allocated to the respondent Vikas Nigam. The scheme in the State of M. P. in which the petitioners are engaged are not run by the Central Government.
10. Before I advert to the case of the petitioners, it is apt to understand the scope of interference in matters of regularisation of service. For directing regularisation of service existence of permanent nature of work or permanent post is sine qua non. For the purpose of arriving at a decision as to whether the nature of work is permanent the Court takes into consideration the span of service of an employee on casual or daily wages and when it is found that the employee has continued for a long period, inference is drawn that the nature of work is of permanent character and the action of the employer in continuing the employee on daily wages/casual basis is held arbitrary and against public policy. But it is not a rule thumb, it depends upon the facts and circumstances of each case. The Government may launch a scheme which may continue for a long period, but nonetheless the employment under a temporary scheme has to come to an end after the completion of the scheme and in such a circumstance the order of regularisation cannot be granted. In my opinion, direction for regularisation of the service of a person engaged in a scheme shall amount to direction for continunace of the scheme and creation of permanent post which are not permissible. Where temporary or ad hoc appointment has continued for long, it is presumed that there is need and warrant for a regular post and accordingly the Court directs for framing of scheme for regularisation of service. Persons employed on daily wages working for a long time, prima facie, suggests the existence of work of permanent nature and in such cases direction to frame scheme for regularisation of the service can be granted. However, when the work is not of permanent nature or appointment is made under a scheme order for regularisation cannot be granted.
11. In view of the settled legal position it is not necessary to refer to the various authorities relied on behalf of the petitioners. The question of regularisation of service of a person appointed under a scheme pointedly came up for consideration before the Apex Court in the case of D. D. H. E. Union v. Delhi Administration, AIR 1992 SC 789; wherein the Supreme Court held as follows:
"To get an employment under such scheme and to claim on the basis of the said employment a right to regularisation is to frustrate the scheme itself. No Court can be a party to such exercise. It is wrong to approach the problems of those employed under such schemes with a view to providing them with full employment and guaranteeing equal pay for equal work. These concepts, in the context of such schemes are both unwarranted and misplaced. They will do more harm than good by depriving the many of the little income that they may get to keep them from starvation. They would benefit a few at the cost of the many starving poor for whom the schemes are meant. That would also force the State to wind up the existing schemes and forbid them from introducing the new ones, for want of resources. This is not to say that the problems of the unemployed deserve no consideration or sympathy. This is only to emphasise that even among the unemployed a distinction exists between those who live below and above the poverty line, those in need of partial and those in need of full employment, the educated and uneducated, the rural and urban unemployed etc."
12. The ratio of the aforesaid judgment squarely covers the case of the petitioners. In my opinion, when there is no permanent need for work and the project being for a particular period direction for regularization of the service of the employee cannot be granted. It is admitted position that there is no permanent post of instructor in the respondent Corporation. The appointment of the petitioners by the respondent Vikas Nigam is under a scheme funded by the Central Government and in that view of the matter direction for regularisation of their services cannot be granted.
13. So far as the case of Assistant Craftsmen appointed in the State of U. P. and who were directed to be regularised by order of the Allahabad Bench of the Central Administrative Tribunal are concerned, they stand on an entirely different footing. In the said case the employees were found to be government servants and they were engaged in the scheme directly working under the Central Government. In the ultimate paragraph of the Judgment the Central Administrative Tribunal directed as follows:-
"For the reasons mentioned above we direct the respondents to regularise the service of the petitioners and to treat them as regular Government Servants."
The reasons assigned were that the petitioners were appointed in the year 1976 and were government servants. This is not the situation here and as such the decision relied on is clearly distinguishable.
14. The decision of the Patna Bench of the Central Administrative Tribunal on which heavy reliance has been placed on behalf of the petitioners, is of no consequence. In the aforesaid case the Patna Bench did not direct for regularisation but stated that since no decision, seem to have been taken till now, direction was given to consider the case of regularisation expeditiously.
15. Learned counsel for the petitioners then contends that when respondent Vikas Nigam has also decided to sale the carpet, the scheme can be run on permanent basis and accordingly the petitioners are entitled for regularisation of their services. For making the scheme effective the authority may decide to sell the product, but this itself does not show that the scheme has to continue on permanent basis. Launching of the scheme or continuance of a scheme for a particular period are matters which are within the domain of the authority launching the scheme. It is well settled that the question of policy is essentially for the authority to decide and the Court cannot sit in judgment over the wisdom of the policy evolved by the authority. It may be a wise policy which may effectuate the purpose of the policy launched and the Court cannot strike it down on the ground that in its opinion this is not a wise and prudent policy, unless and until it is shown that the policy adopted is either arbitrary or unreasonable. Here in the present case the Government of India has launched the scheme of giving training in carpet weaving and they cannot be directed to continue with the same. On overall assessment of the situation the Government of India may discontinue with the policy of training in carpet weaving and may adopt different policy for the welfare of the citizens of the country. Respondent Vikas Nigam is getting the fund from the Central Government and the petitioners have been employed under the scheme and accordingly the respondent Vikas Nigam cannot be directed to regularise the service of the petitioners. I do not find any substance in the submission of the learned counsel for the petitioners and their prayer for regularisation of the service cannot be granted.
16. For seeking direction for regularisation, the petitioners contend that in view of Rule 2(i) and (vi) of the standing order for all the undertakings in the State they shall be deemed to be permanent employees. Rule 2(i) and (vi) reads as under:-
"2. Classification of employees. - Employees shall be classified as (i) permanent, (ii) permanent seasonal, (iii) probationers, (iv) Badlies, (v) apprentices and (vi) temporary:
(i) A 'permanent' employee is one who has completed six months' satisfactory service in a clear vacancy in one or more posts whether as a probationer or otherwise, or a person whose name has been entered in the muster roll and who is given a ticket of permanent employee;
(ii) .........
(iv) ........
(v) .........
(vi) 'temporary employee' means an employee who has been employed for work which is essentially of a temporary character, or who is temporarily employed as an additional employee in connection with the temporary increase in the work of a permanent nature; provided that in case such employee is required to work continuously for more than six months he shall be deemed to be a permanent employee, within the meaning of clause (i) above."
In support of the aforesaid submission reliance has been placed on a Judgment of the Division Bench of this Court in the case of M.P.S.R.T.C. v. Harish, 1990 MPLJ 97; wherein it has been held as follows:-
"It was therefore, the bounden duty of the employer petitioner to prove its own case that the vacancy was not 'clear' vacancy. Secondly, the contention is also blunted by the provisions of sub-clause (iv) of clause 2; wherein there is no such requirement of a 'clear' vacancy."
A plain reading of rule 2 of the Standing Order as referred to above, it is clear that before an employee can be classified as a permanent employee he is required to complete 6 months of satisfactory service and that 6 months satisfactory service has to be in clear vacancy in one or more post. Here in the present case the petitioners were employed under a scheme and in that view of the matter existence of clear vacancy is ruled out. Accordingly the submission made by the learned counsel for the petitioners has no substance. I am fortified in my view from the view expressed by Lahoti, J. as he then was, in the case of Vandna Singh (Smt.) v. Steel Authority of India, 1993 JLJ 55 wherein it has been held as follows:-
"Vide clause (i) to be a permanent employee, the employee should have (a) completed six months (b) satisfactory service; and (c) in a clear vacancy. If the proviso to clause (vi) is read in isolation, a temporary employee employed for work essentially of a temporary character would be deemed to have been confirmed with the status of a permanent employee without regard to the considerations whether the services were satisfactory or not and whether or not there was a clear vacancy. Such an interpretation would not only violate the celebrated rule of harmonious construction but would also lead to absurdity. Reference to clause (i) in the proviso to clause (vi) obliges the proviso being read with clause (i); meaning thereby that the temporary employee as defined under clause (vi) would remain a temporary employee without regard to the period of work done by him unless and until it is found that there was a clear vacancy available and the services of the employee were satisfactory. If this test is applied to the petitioner, she cannot be classified as 'permanent', for there is no material available to hold that the petitioner's performance was satisfactory and there was a clear vacancy available."
I do not find any merit in this submission of the learned counsel.
17. Now, I advert to the prayer of the petitioners for grant of pay equal to that of regular instructors employed by the Central Government on the principle of equal pay for equal work. Petitioners claim that they perform the same work as that of regular instructors employed by the Central Government or instructors of Mandla and Jabalpur. The equal pay for equal work is guarantee ensured under the Constitution and flows from Articles 14, 16 and 39 of the Constitution of India, but for the purpose of applying the aforesaid principle, the degree of responsibility, nature of their work as also the object of employment and other conditions of service are required to be seen. Here in the present case, the petitioners are required to work for particular hours which is not in the case of the instructors employed by the Government. The service of the instructors employed by the Government are placed at the disposal of the Government for all the 24 hours and they are not permitted to take any other employment or engagement, but this is not in the case of the petitioners. The petitioners can very well engage themselves in other vocation also, besides the work of the instructors which they are under the scheme required to perform. The instructors are required to give training in carpet weaving to trainees who get stipend. In D.D.H.E. Union (supra) the Apex Court held "it is wrong to approach the problems of those employed under such schemes with a view to providing them with full employment and guaranteeing equal pay for equal work". In such a situation the principle of equal pay for equal work does not apply in the case of the petitioners and they are not entitled for the same.
18. To put the record straight, it has been averred by the petitioners that the instructors of carpet weaving centre at Jabalpur and Mandla who are doing equal and identical nature of work as the petitioners and were also paid a sum of Rs. 800/- as consolidated salary, the respondent Vikas Nigam entered into an agreement to give them pay scale of Rs. 950/- to 1,400/- at par with pay scale of Assistant Instructors of Central Government. It is contended that denial of the said pay scale to the petitioners is absolutely discriminatory. As stated earlier the petitioners have been engaged under the scheme and it has been further found that their employment permit them other vocation besides functioning as instructors and therefore, they cannot claim equality of status. The scale of pay granted to the instructors of Jabalpur and Mandla under the agreement between the employer and employees cannot give right to the petitioners to claim the same. The petitioners in this connection may approach the employer, but this Court having found that the appointment of the petitioners is under a scheme and principle of equal pay for equal work does not apply, cannot grant the same scale of pay.
19. For the reasons stated above, I do not find any merit in these writ petitions and they are dismissed. However, in the facts and circumstances of the case, there shall be no order as to costs. Security amount, if deposited, be refunded to the petitioners.