Central Administrative Tribunal - Delhi
Anita Kumari vs Municipal Corporation Of Delhi on 4 April, 2024
1
O.A. No. 2525/2023
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
O.A. No. 2525/2023
Order Reserved on: 12.02.2024
Order Pronounced on: 04.04.2024
Hon'ble Mr. Tarun Shridhar, Member (A)
Hon'ble Mrs. Pratima K. Gupta, Member (J)
Anita Kumari, Age 54 years,
W/o Shri R.N. Singh,
R/o DAYA KUTIR,
Plot No.107-109, Khasra No.150,
Rajpur Khurd Extension Colony,
South Delhi-110068
[Working as Teacher (Primary)]
MC Primary School,
Rajpur Khurd, New Delhi-110068 - Applicant
(By Advocates: Mr. RV Sinha with Ms. Nidhi Singh)
VERSUS
1. Municipal Corporation of Delhi,
Dr. SPM Civic Centre,
JL Nehru Marg,
New Delhi-110002
(Through: its Commissioner)
2. Director Local Bodies,
Govt. of NCT of Delhi,
Urban Development Department,
Govt. of NCT of Delhi,
9th & 10th level, Delhi Secretariat,
IP Estate, Delhi-110002
(By Advocates: Ms. Sriparna Chatterjee and Mr. Amit Yadav)
2
O.A. No. 2525/2023
ORDER
Hon'ble Mr. Tarun Shridhar, Member (A):
The applicant is engaged as a Teacher (Primary) in the Municipal Corporation of Delhi on contract basis. Her grievance is that despite the regular nature of her engagement, artificial and intermittent breaks are being given just to deny her the benefit of regularisation. She claims that this act of the respondents is not only arbitrary and discriminatory but it is also in violation of the provisions of the Constitution of India, specifically, Article 14, 16 and 21. By virtue of the present OA, she seeks the following reliefs:-
"(a) that the continued engagement of the applicant as Teacher (Primary) on contract basis with intermittent breaks and non-payment of pay and allowances and other service benefits by the respondents at par with a regular employee against the post of Teacher (Primary) under the Respondent No. 1 is arbitrary, discriminatory, per-se illegal and violative of Articles 14, 16 and 21 of the Constitution of India, besides being result of unfair service/labour practice adopted by the respondents;
(b) holding that the claimed contract by and between applicant and respondents is sham, unconscionable and violative of Articles 14 & 16 of the Constitution of India and therefore nullity in the eyes of law i.e., non-est in the eyes of law;
(c) commanding the respondents to regularise the applicant from the initial date of appointment as Teacher (Primary) from 11.09.2003 in a time bound manner;
(d) commanding the respondents to pay to the applicant consequential benefits as a result of prayer No. (c) above i.e., fixation of pay, grant of annual increment(s), promotion/benefits under ACP/MACP scheme, difference of salary, leave encashment, medical benefits, gratuity, service benefits, counting of service for the pension and other benefits, as available to a regular Teacher (Primary) under the Respondent No. 1;3 O.A. No. 2525/2023
(e) award cost of this application and proceedings against the Respondents and in favour of the applicant.
(f) may also pass further order(s) as be deemed just and proper to meet the ends of justice."
2. The applicant had also sought for urgent consideration of the prayer for interim relief set forth in Para 9 of the OA which reads as under:-
"Pending adjudication of the OA finally, it is most respectfully prayed that this Hon'ble Tribunal be graciously pleased to restrain the respondents from terminating the services of the applicant and direct the respondents to continue the applicant's services without any break.
It is submitted that the applicant has a good prima facie case in her favour, balance of convenience is in her favour and no irreparable loss would be caused to the respondents in as much as the applicant is continuing against the sanctioned post and there is requirement of the applicant and/or similarly placed teacher on such post with the respondents."
3. Vide order dated 22.08.2023, the respondents were restrained from either terminating the services of the applicant or giving any break in service till the next date of hearing. When this matter came up for hearing again on 25.08.2023, the following order was made:-
"The applicant was appointed on contract basis as a Primary Teacher on 11.09.2003 initially for a period of 6 months. Her engagement, even though on contract has been continuing since then, till date, i.e., for a long period of 20 years. However, it is admitted and learned counsel for the applicant explains that the period of contract may have continued for 20 long years, however, there have been a short and intermittent breaks in between. He explains that the purpose of these intermittent breaks has been only to prevent the applicant from making a bonafide claim for regularisation of service on account of 20 long years of engagement. He further explains that barring these intermittent short breaks, which are purely technical in nature, the service of the applicant as a Primary Teacher has been continuous and in a way uninterrupted since the date of initial engagement, i.e., 4 O.A. No. 2525/2023 11.09.2003. What the applicant seeks by virtue of this OA is continued engagement appointment, leading to regularisation to be followed by benefits at par with regular employees. While we record these submissions, we make it clear that this is the matter for final adjudication.
2. Notice has already been issued to the respondents, granting them adequate opportunity to file their counter reply.
3. Arguing on the applicant's prayer for interim relief, learned counsel for the respondents submits that the services of the applicant have been purely on a contract basis and the contract is of a specified period. If the services/engagement of the applicant have continued, it has only been on account of specific orders passed from time to time extending the contract. She further clarifies that even the extension of contract is for a specified period, as set forth in the relevant orders.
4. Although it is not clear from the record as to when the present contract/extension of contract from the applicant will culminate, it is stated that the applicant is, at present, in engagement and is performing her duties as a Primary Teacher, a capacity in which she was initially engaged in the year 2003.
5. We are conscious of the fact that the main relief sought in the OA is likely to get frustrated in case the applicant's prayer for interim relief is not considered . Moreover, one of the reliefs sought in para 8 is also a continued engagement without any break and accordingly, benefits at par with regular employees. This observation has been recorded in the order dated 22.08.2023 also. Accordingly, the order passed upon the applicant's interim prayer on 22.08.2023 is made absolute. To clarify, the respondents are restrained from either disengaging or terminating or giving any break in service or changing any term and condition of the service engagement of the applicant, till the disposal of this OA.
6. Let the reply be filed within the period already allowed. Rejoinder, if any, within one week thereafter. List for further consideration on 18.10.2023."
4. Subsequently, the respondents have filed a detailed counter reply to which the applicant, too, has filed rejoinder affidavit.
5. The respondents in their counter have questioned the maintainability of the present Original Application stating that in 5 O.A. No. 2525/2023 terms of the settled legal position laid down by the Hon'ble Apex Court in a series of judgments, the applicant is not entitled to the relief she is claiming as her engagement has been purely on contractual basis.
6. Drawing strength from the averments made in the said counter, learned counsel for the respondents has further argued that even this contractual appointment of the applicant is under a specific scheme, titled Samagra Shiksha Abhiyan (SSA) which is essentially funded by the Government of India. She has gone on to submit, again drawing attention to specific contentions in the counter reply, that the teachers appointed on contract are engaged only for a period of 10 months in a year by excluding the period of summer vacation;
and on account of the financial position of the MCD, now no further engagement is being made. She reiterates that since the SSA is fully funded by the Government, the payment of salary etc. is dependent upon receipt of funds and hence the claim for regularization is misplaced.
7. Learned counsel goes on to argue that the terms of appointment/engagement of the applicant is to be determined strictly in accordance with the terms and conditions set forth in the contract.
The appointment of the applicant was not made through the DSSSB which is the recruiting agency and the applicant has not responded to further requisitions for appointment to the post of Primary Teacher and hence, cannot claim regular appointment since she herself has chosen not to apply for regular vacancies. Even if the post of Primary Teacher were to be available, the same would have to be filled 6 O.A. No. 2525/2023 through regular recruitment process and not by way of converting a contractual appointment into a regular appointment, she goes on to argue.
8. The respondents have justified the extension of contract from time to time as a humanitarian decision to address the issue of rising unemployment. She draws attention to various communications annexed to the counter reply submitting that from time to time, circulars with respect to SSA and engagement of teachers therein have been issued and the stipulation contained therein will determine the conditions of contract and its extension.
9. Drawing strength from some judgments of the Hon'ble Apex Court, learned counsel argues that a mere fact of long period of engagement on contract does not create any right in favour of the employee and points out that specific averment to this effect has been made in the counter reply.
10. Ms. Sriparna Chatterjee, learned counsel reiterates that the applicant, along with identically placed employees has been recruited against a specific project, which is being implemented under the aegis of the society called Samagra Shiksha Samiti. She further submits that unless the said Society, which is a part of the Directorate of Education, Govt. of NCT of Delhi, is impleaded as a party/respondent, the prayer of the applicant cannot be considered.
She repeats that the entire expenditure of the SSA including the salary of the applicant and other teachers appointed in the project is met from the funds of the project which are released by the Union of India and for some time such funds have dwindled, thus making it 7 O.A. No. 2525/2023 difficult for the respondents to meet the expenditure. Drawing attention to the counter reply, she again points out that the number of the primary teachers is proposed to be reduced after taking into assessment of their requirement as also considering the financial position. To a specific query put by us, Ms. Sriparna Chatterjee asserts that this Tribunal will not have jurisdiction over the Samagra Shiksha Society.
11. Mr. Amit Yadav, learned counsel for the respondent No. 2 submits that despite best of his efforts, chasing the concerned officer of the department, no information is forth-coming.
12. On the other hand, Mr. R. V. Sinha, learned counsel for the applicant contests the aforesaid arguments drawing attention to para 2 of the rejoinder affidavit. The said para reads as under:
"2 That with regard to the submissions made on behalf of the respondent No.1 that currently contract teachers are sponsored by Samagra Siksha Abhiyan, a Joint Scheme of Government of India and the Government of NCT called 'SSA', it is submitted that the applicant was appointed by the respondent No.1 with a conscious decision of the respondent No.1 and has been continuing from the date of her initial engagement in 11.09.2003 against a regular post and the government scheme called Samagra Siksha Abhiyan was not in existence and came only in or after 2014. The applicant has been performing her duties under the respondent No.1 under their control and the respondent No.1 continues to be her appointing and disciplinary authority. The applicant is not concerned about the source of receipt of pay because it is the responsibility of the respondents to pay the salary to the applicant for the services rendered by her to it. Moreover, neither the applicant was informed at the time of arranging the payment that there will be change of any service condition nor had the applicant consented for such change in the service condition and thus the change of category of appointment was without her consent and unilateral. It is further submitted that the funds to the Samagra Siksha Abhiyan come from the Consolidated Fund of India."8 O.A. No. 2525/2023
13. Besides oral arguments, learned counsel for the parties have also made written submissions along with the relevant judgments/pronouncements of various courts which they have relied upon.
14. Learned counsel for the applicant, by way of the written submissions and oral arguments, has argued that the applicant has been continuing in service for more than 20 years and performing all such duties and responsibilities as are discharged by regularly employed teachers. During this period of engagement/appointment, she has performed her duties to the utmost satisfaction of the respondents and there is not even a whisper of any adverse comment with respect to her conduct and performance. Since her duties and responsibilities are akin to those performed by regular employees, denial of regularization and the consequential benefits as would arise out of the same is violative of Articles 14, 16 and 21 of the Constitution being arbitrary and discriminatory. He submits that the Hon'ble Apex Court in Central Inland Water Transport Corporation Limited & Anr. V. Brojo Nath Ganguly & Anr., (1986)3 SCC 156, had defined what an unconscionable contract would be and the present case would fall under the said definition. The Hon'ble Apex Court had also held that a contract, which is in opposition to public policy or is contrary to the public policy, would not be sustainable.
This Tribunal, in the matter of Ms. Harleen Kaur & Ors. V. North Delhi Municipal Corporation & Ors., reported as (2015)SCC Online CAT 707, had directed regularization of Entomologists on contract basis along with consequential benefits in identical circumstances 9 O.A. No. 2525/2023 wherein the said employees had been working on regular basis against existing vacancies.
15. Learned counsel submits that Hon'ble High Court of Delhi in a case titled Government School Teachers Association (Migrants( Regd. & Ors. V. Union of India & Ors., reported as 2015SCC Online Del 9561, relying upon Umadevi judgment of the Hon'ble Apex Court, had directed regularization of teachers employed in the Municipal Corporation Schools along with benefits as are applicable to regular teachers.
16. Mr. Sinha has further relied upon a host of other judgments, the relevant extracts of which are quoted below:-
(i) State of Karnataka & Ors. V. ML Kesri & Ors., reported as (2010)9 SCC 247
6. This Court further held that a temporary, contractual, casual or a daily-wage employee does not have a legal right to be made permanent unless he had been appointed in terms of the relevant rules or in adherence of Articles 14 and 16 of the Constitution.
This Court however made one exception to the above position and the same is extracted below :
"53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa [1967 (1) SCR 128], R.N. Nanjundappa [1972 (1) SCC 409] and B.N. Nagarajan [1979 (4) SCC 507] and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the courts or of tribunals. The question of regularization of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases abovereferred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularize as a one-time measure, the services of such irregularly appointed, who have 10 O.A. No. 2525/2023 worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. ...."
`7. It is evident from the above that there is an exception to the general principles against `regularization' enunciated in Umadevi, if the following conditions are fulfilled :
(i) The employee concerned should have worked for 10 years or more in duly sanctioned post without the benefit or protection of the interim order of any court or tribunal. In other words, the State Government or its instrumentality should have employed the employee and continued him in service voluntarily and continuously for more than ten years.
(ii) The appointment of such employee should not be illegal, even if irregular. Where the appointments are not made or continued against sanctioned posts or where the persons appointed do not possess the prescribed minimum qualifications, the appointments will be considered to be illegal. But where the person employed possessed the prescribed qualifications and was working against sanctioned posts, but had been selected without undergoing the process of open competitive selection, such appointments are considered to be irregular.
xxx xxx xxx
9. The term `one-time measure' has to be understood in its proper perspective. This would normally mean that after the decision in Umadevi, each department or each instrumentality should undertake a one-time exercise and prepare a list of all casual, daily-wage or ad hoc employees who have been working for more than ten years without the intervention of courts and tribunals and subject them to a process verification as to whether they are working against vacant posts and possess the requisite qualification for the post and if so, regularize their services.
11 O.A. No. 2525/202310. . At the end of six months from the date of decision in Umadevi, cases of several daily-wage/ad-hoc/casual employees were still pending before Courts. Consequently, several departments and instrumentalities did not commence the one-time regularization process. On the other hand, some Government departments or instrumentalities undertook the one-time exercise excluding several employees from consideration either on the ground that their cases were pending in courts or due to sheer oversight. In such circumstances, the employees who were entitled to be considered in terms of Para 53 of the decision in Umadevi, will not lose their right to be considered for regularization, merely because the one-time exercise was completed without considering their cases, or because the six month period mentioned in para 53 of Umadevi has expired. The one-time exercise should consider all daily-wage/adhoc/those employees who had put in 10 years of continuous service as on 10.4.2006 without availing the protection of any interim orders of courts or tribunals. If any employer had held the one-time exercise in terms of para 53 of Umadevi, but did not consider the cases of some employees who were entitled to the benefit of para 53 of Umadevi, the employer concerned should consider their cases also, as a continuation of the one-time exercise. The one time exercise will be concluded only when all the employees who are entitled to be considered in terms of Para 53 of Umadevi, are so considered.
11. The object behind the said direction in para 53 of Umadevi is two- fold. First is to ensure that those who have put in more than ten years of continuous service without the protection of any interim orders of courts or tribunals, before the date of decision in Umadevi was rendered, are considered for regularization in view of their long service. Second is to ensure that the departments/instrumentalities do not perpetuate the practice of employing persons on daily-wage/ad- hoc/casual for long periods and then periodically regularize them on the ground that they have served for more than ten years, thereby defeating the constitutional or statutory provisions relating to recruitment and appointment. The true effect of the direction is that all persons who have worked for more than ten years as on 10.4.2006 (the date of decision in Umadevi) without the protection of any interim order of any court or tribunal, in vacant posts, possessing the requisite qualification, are entitled to be considered for regularization. The fact that the employer has not undertaken such exercise of regularization within six months of the decision in Umadevi or that such exercise was undertaken only in regard to a limited few, will not disentitle such employees, the right to be considered for regularization 12 O.A. No. 2525/2023 in terms of the above directions in Umadevi as a one- time measure."
(ii) Nihal Singh & Ors. Vs. State of Punjab & Ors., reported as (2018)14 SCC 65;
"12. We are required to examine the correctness of the decision dated 23.4.2002 of the SSP as approved by the judgment under appeal. The reason assigned by the SSP for rejecting the claim of the appellants (the relevant portion of which order is already extracted above) is that the appellants are working as guards with various banks and their wages are being paid by such banks and, therefore, their claim for regularization, if any, lay only to the concerned bank but not to the police department.
xxx xxx xxx
17. From the mere fact that the payment of wages came from the bank at whose disposal the services of each of the appellants was kept did not render the appellants employees of those banks. The appointment is made by the State. The disciplinary control vests with the State. The two factors which conclusively establish that the relationship of master and servant exists between the State and the appellants. A fact which is clearly recognized by the division bench of the High Court in LPA No.209 of 1992. It may be worthwhile mentioning here that under the law of contracts in this country the consideration for a contract need not always necessarily flow from the parties to a contract. The decision of the SSP to reject the claim of the appellants only on the basis that the payment of wages to the appellants herein was being made by the concerned banks rendering them disentitled to seek regularization of their services from the State is clearly untenable.
18. Coming to the judgment of the division bench of the High Court of Punjab & Haryana in LPA No.209 of 1992 where the claims for regularization of the similarly situated persons were rejected on the ground that no regular cadre or sanctioned posts are available for regularization of their services, the High Court may be factually right in recording that there is no regularly constituted cadre and sanctioned posts against which recruitments of persons like the appellants herein were made. However, that does not conclusively decide the issue on hand. The creation of a cadre or sanctioning of posts for a cadre is a matter exclusively within the authority of the State. That the State did not choose to create a cadre but chose to make appointments of persons creating contractual relationship only demonstrates the arbitrary nature of the exercise of the power 13 O.A. No. 2525/2023 available under section 17 of the Act. The appointments made have never been terminated thereby enabling various banks to utilize the services of employees of the State for a long period on nominal wages and without making available any other service benefits which are available to the other employees of the State, who are discharging functions similar to the functions that are being discharged by the appellants.
19. No doubt that the powers under section 17 are meant for meeting the exigencies contemplated under it, such as, riot or disturbance which are normally expected to be of a short duration. Therefore, the State might not have initially thought of creating either a cadre or permanent posts.
20. But we do not see any justification for the State to take a defence that after permitting the utilisation of the services of large number of people like the appellants for decades to say that there are no sanctioned posts to absorb the appellants. Sanctioned posts do not fall from heaven. State has to create them by a conscious choice on the basis of some rational assessment of the need.
21. The question is whether this court can compel the State of Punjab to create posts and absorb the appellants into the services of the State on a permanent basis consistent with the Constitution Bench decision of this court in Umadevi's case. To answer this question, the ratio decidendi of the Umadevi's case is required to be examined. In that case, this Court was considering the legality of the action of the State in resorting to irregular appointments without reference to the duty to comply with the proper appointment procedure contemplated by the Constitution.
"4. ... The Union, the States, their departments and instrumentalities have resorted to irregular appointments, especially in the lower rungs of the service, without reference to the duty to ensure a proper appointment procedure through the Public Service Commissions or otherwise as per the rules adopted and to permit these irregular appointees or those appointed on contract or on daily wages, to continue year after year, thus, keeping out those who are qualified to apply for the post concerned and depriving them of an opportunity to compete for the post. It has also led to persons who get employed, without the following of a regular procedure or even through the backdoor or on daily wages, approaching the courts, seeking directions to make them permanent in their posts and to prevent regular recruitment to the 14 O.A. No. 2525/2023 posts concerned. The courts have not always kept the legal aspects in mind and have occasionally even stayed the regular process of employment being set in motion and in some cases, even directed that these illegal, irregular or improper entrants be absorbed into service. A class of employment which can only be called "litigious employment", has risen like a phoenix seriously impairing the constitutional scheme. Such orders are passed apparently in exercise of the wide powers under Article 226 of the Constitution. Whether the wide powers under Article 226 of the Constitution are intended to be used for a purpose certain to defeat the concept of social justice and equal opportunity for all, subject to affirmative action in the matter of public employment as recognised by our Constitution, has to be seriously pondered over." (emphasis supplied) It can be seen from the above that the entire issue pivoted around the fact that the State initially made appointments without following any rational procedure envisaged under the Scheme of the Constitution in the matters of public appointments.
22. This court while recognizing the authority of the State to make temporary appointments engaging workers on daily wages declared that the regularization of the employment of such persons which was made without following the procedure conforming to the requirement of the Scheme of the Constitution in the matter of public appointments cannot become an alternate mode of recruitment to public appointment. It was further declared that the jurisdiction of the Constitutional Courts under Article 226 or Article 32 cannot be exercised to compel the State or to enable the State to perpetuate an illegality. This court held that compelling the State to absorb persons who were employed by the State as casual workers or daily-wage workers for a long period on the ground that such a practice would be an arbitrary practice and violative of Article 14 and would itself offend another aspect of Article 14 i.e. the State chose initially to appoint such persons without any rational procedure recognized by law thereby depriving vast number of other eligible candidates who were similarly situated to compete for such employment.
23. Even going by the principles laid down in Umadevi's 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 15 O.A. No. 2525/2023 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 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.
28. The abovementioned process clearly indicates it is not a case where persons like the appellants were arbitrarily chosen to the exclusion of other eligible candidates. It required all able bodied persons to be considered by the SSP who was charged with the responsibility of selecting suitable candidates."
(iii) Sheo Narain Nagar & Ors. Vs. State of Uttar Pradesh & Ors. reported as(2018)13 SCC 432;
7. When we consider the prevailing scenario, it is painful to note that the decision in Uma Devi (Supra) has not been properly understood and rather wrongly applied by various State Governments. We have called for the data in the instant case to ensure as to how many employees were working on contract basis or ad-hoc basis or daily-wage basis in different State departments. We can take judicial notice that widely aforesaid practice is being continued. Though this Court has emphasised that incumbents should be appointed on regular basis as per rules but new devise of making appointment on contract basis has been adopted, employment is offered on daily wage basis etc. in exploitative forms. This situation was not envisaged by Uma Devi (supra). The prime intendment of the decision was that the employment process should be by fair means and not by back door entry and in the available pay scale. That spirit of the Uma Devi (supra) has been ignored and conveniently over looked by various State Governments/ authorities. We regretfully make the observation that Uma Devi (supra) has not be implemented in its true spirit and has not been followed in its pith and substance. It is being used only as a tool for not regularizing the services of incumbents. They are being continued in service without payment of due salary for which they are entitled on the basis of Article 14, 16 read with Article 34 (1)(d) of the Constitution of India as 16 O.A. No. 2525/2023 if they have no constitutional protection as envisaged in D.S. Nakara v. Union of India, AIR 1983 SC 130 from cradle to grave. In heydays of life they are serving on exploitative terms with no guarantee of livelihood to be continued and in old age they are going to be destituted, there being no provision for pension, retiral benefits etc. There is clear contravention of constitutional provisions and aspiration of down trodden class. They do have equal rights and to make them equals they require protection and cannot be dealt with arbitrarily. The kind of treatment meted out is not only bad but equally unconstitutional and is denial of rights. We have to strike a balance to really implement the ideology of Uma Devi (supra). Thus, the time has come to stop the situation where Uma Devi (supra) can be permitted to be flouted, whereas, this Court has interdicted such employment way back in the year 2006. The employment cannot be on exploitative terms, whereas Uma Devi (supra) laid down that there should not be back door entry and every post should be filled by regular employment, but a new device has been adopted for making appointment on payment of paltry system on contract/adhoc basis or otherwise. This kind of action is not permissible, when we consider the pith and substance of true spirit in Uma Devi (supra).
(iv) Narender Kumar Tiwari & Ors. v. State of Jharkhand, reported as (2018)8 SCC 238;
4. Having heard learned counsel for the parties and having considered the decision of the Constitution Bench in Umadevi (3) as well as the subsequent decision of this Court explaining Umadevi (3) in State of Karnataka and Ors. v. M.L. Kesari and Ors.2, we are of the view that the High Court has erred in taking an impractical view of the directions in Umadevi (3) as well as its consideration in Kesari.
Xxx xxx xxx
7. The concept of a one-time measure was further explained in Kesari in paragraphs 9, 10 and 11 of the Report which read as follows:
"9. The term "one-time measure" has to be understood in its proper perspective. This would normally mean that after the decision in Umadevi (3), each department or each instrumentality should undertake a one-time exercise and prepare a list of all casual, 17 O.A. No. 2525/2023 daily-wage or ad hoc employees who have been working for more than ten years without the intervention of courts and tribunals and subject them to a process verification as to whether they are working against vacant posts and possess the requisite qualification for the post and if so, regularise their services.
10. At the end of six months from the date of decision in Umadevi (3), cases of several daily-wage/ad hoc/casual employees were still pending before courts. Consequently, several departments and instrumentalities did not commence the one-time regularisation process. On the other hand, some government departments or instrumentalities undertook the one-time exercise excluding several employees from consideration either on the ground that their cases were pending in courts or due to sheer oversight. In such circumstances, the employees who were entitled to be considered in terms of para 53 of the decision in Umadevi (3), will not lose their right to be considered for regularisation, merely because the one-time exercise was completed without considering their cases, or because the six- month period mentioned in para 53 of Umadevi (3) has expired. The one-time exercise should consider all daily- wage/ad hoc/casual employees who had put in 10 years of continuous service as on 10-4- 2006 without availing the protection of any interim orders of courts or tribunals. If any employer had held the one-time exercise in terms of para 53 of Umadevi (3), but did not consider the cases of some employees who were entitled to the benefit of para 53 of Umadevi (3), the employer concerned should consider their cases also, as a continuation of the one-time exercise. The one-time exercise will be concluded only when all the employees who are entitled to be considered in terms of para 53 of Umadevi (3), are so considered.
11. The object behind the said direction in para 53 of Umadevi (3) is twofold. First is to ensure that those who have put in more than ten years of continuous service without the protection of any interim orders of courts or tribunals, before the date of decision in Umadevi (3) was rendered, are considered for 18 O.A. No. 2525/2023 regularisation in view of their long service.
Second is to ensure that the
departments/instrumentalities do not
perpetuate the practice of employing persons on daily-wage/ad hoc/casual basis for long periods and then periodically regularise them on the ground that they have served for more than ten years, thereby defeating the constitutional or statutory provisions relating to recruitment and appointment. The true effect of the direction is that all persons who have worked for more than ten years as on 10-4-2006 [the date of decision in Umadevi (3)] without the protection of any interim order of any court or tribunal, in vacant posts, possessing the requisite qualification, are entitled to be considered for regularisation. The fact that the employer has not undertaken such exercise of regularisation within six months of the decision in Umadevi (3) or that such exercise was undertaken only in regard to a limited few, will not disentitle such employees, the right to be considered for regularisation in terms of the above directions in Umadevi (3) as a one-time measure."
7. The purpose and intent of the decision in Umadevi (3) was therefore two-fold, namely, to prevent irregular or illegal appointments in the future and secondly, to confer a benefit on those who had been irregularly appointed in the past. The fact that the State of Jharkhand continued with the irregular appointments for almost a decade after the decision in Umadevi (3) is a clear indication that it believes that it was all right to continue with irregular appointments, and whenever required, terminate the services of the irregularly appointed employees on the ground that they were irregularly appointed. This is nothing but a form of exploitation of the employees by not giving them the benefits of regularisation and by placing the sword of Damocles over their head. This is precisely what Umadevi (3) and Kesari sought to avoid.
8. If a strict and literal interpretation, forgetting the spirit of the decision of the Constitution Bench in Umadevi (3), is to be taken into consideration then no irregularly appointed employee of the State of Jharkhand could ever be regularised since that State came into existence only on 15th November, 2000 and the cut-off date was fixed as 10 th April, 2006. In other words, in this manner the pernicious practice of indefinitely continuing irregularly appointed employees would be perpetuated contrary to the intent of the Constitution Bench.
19 O.A. No. 2525/20239. The High Court as well as the State of Jharkhand ought to have considered the entire issue in a contextual perspective and not only from the point of view of the interest of the State, financial or otherwise - the interest of the employees is also required to be kept in mind. What has eventually been achieved by the State of Jharkhand is to short circuit the process of regular appointments and instead make appointments on an irregular basis. This is hardly good governance.
10. Under the circumstances, we are of the view that the Regularisation Rules must be given a pragmatic interpretation and the appellants, if they have completed 10 years of service on the date of promulgation of the Regularisation Rules, ought to be given the benefit of the service rendered by them. If they have completed 10 years of service they should be regularised unless there is some valid objection to their regularisation like misconduct etc."
(v) Hanumantharayappa & Ors. V. Principal Secretary, Higher Education Department, Government of Karnataka & Anr., reported as 2022 SCC Online Kar 533;
33. On a coalesce of the judgments rendered by the Apex Court in the afore-extracted cases which were in the aftermath of the judgment in the case of UMADEVI would in unmistakable terms indicate that regularization of employees is not a concept that is obliterated, but could be considered on several parameters laid down in the said judgments. One unmistakable stream that runs through judicial thinking of judgments of the Apex Court is that regularization of employees engaged to work for the State for long years should be considered, failing which it would amount to violation of Article 14 of the Constitution of India.
34. In my considered view, if the claim of the petitioners for regularization is not considered, it would be leaving such employees in the lurch after having extracted work from them for close to 24 years. The services of these petitioners have been utilized in their energetic youth, have travelled this far and are at this age, if they are not now considered for regularization, it would amount to exploitation of such labour from the hands of the University, a State under Article 12 of the Constitution of India. Such action would not behove the status of a State under the Constitution of India. It is not the university that is now wanting to deny the benefit of regularization, but it is the State Government which is declining to 20 O.A. No. 2525/2023 accept their claim on an irrelevant plea of financial burden of rupees one crore thirty six lakhs.
(vi) Ravinder Reddy & Ors. Vs. State of Telengana, reported as 2022 SCC Online TS 3169 "20. The plea of the respondents in their counter affidavit that the respondents engaged the service of the petitioners whenever and wherever their services are required for the repairing of pumps within the jurisdiction of the concerned Mandal Parishad and the petitioner were paid for the piece of work done by them on the basis of assessment of respondent authorities from the source of funds provided for the maintenance of sanitation and drinking water under the 13th Finance Commission and the petitioners were not appointed on regular or contract basis cannot be said to be true, having regard to the documents filed along with the writ petition by the petitioners and a bare perusal of the same indicate that the petitioners have been engaged in the Panchayat Raj Department though for some period their services were utilized by the Rural Water Supply Department as well and they are being paid as on date from the grants received by the respective Grampanchayats as by 14th Finance Commission as per proceedings No.A2/4855/2006 (Pts), dated 09.01.2016 as observed by the High Court in its order dated 17.12.2018 passed in I.A.No.1 of 2018 and as admitted by the 1st to 3rd respondents in their counter affidavit filed in the present writ petition that after completion of 13th Finance Commission grants are directly released to the Grampanchayats in support of Mandal Praja Parishad and the petitioners have been paid from the funds of the 14th Finance Commission by the Grampanchayats as per the work extracted from the petitioners.
21. In the counter affidavit at page 2 para one, respondents 1 to 3 it is specifically pleaded that in some cases wages are being paid through third party (through contractor), the same is extracted as under:
"It is to submit that, the hand pump mechanics were engaged as per need by the concerned Mandal Parishad Development Officers on place work basis and they are not termed as NMR/contract employee, there is no individual contract between the employer and employee in writing even if there is any such contract the same will become invalid as and when the work completes, payment was made and they are 21 O.A. No. 2525/2023 working under a scheme which has no permanent future. Once the works under scheme are completed, it will not be in force. The wages paid to the persons who attended the work (repairing of hand pumps) from the funds available in the scheme and in some cases wages are being paid through third party (through contractor).
22. This Court opines that where a worker is engaged through a contractor or through agencies, they, after deducting their commission, pay the wages to the workers and probably with a fond hope that their services would be regularized subsequently, they work as contract workers or through agencies. This is nothing but exploiting the helplessness of those workers and thereby denying them the minimum wages. It certainly violates the right to life guaranteed by Article 21 of the Constitution of India to those workers/ employees like the petitioners.
23. The creation of a cadre or sanctioning of posts for a cadre is a matter exclusively within the authority of the State and the respondents herein, but if they did not choose to create a cadre or fill up the available vacancies in accordance with the applicable procedure /Rules, but chose to make appointments of persons creating contractual relationship, their action would be arbitrary.
24. Thus, the respondent authority cannot avoid recruitment to the posts in question and engage persons like the petitioners through intermediaries/ contractors through the system of "outsourcing", pay them paltry wages, and deny them regularisation of services saying the decision in Uma Devi entitles them to deny relief of regularisation. Engagement of the persons like the petitioners through outsourcing agencies/ intermediaries violates the law laid down in Uma Devi's case.
25. This Court opines that the engagement of the persons like the petitioners through 3rd party (through contractor) as admitted in the counter affidavit at page 2, para one, for more than 15 years without undertaking any exercise to identify regular vacancy in the above posts in the various mandals pertaining to respondents 6 to 10 and fill up the same as per applicable rules by properly qualified personnel and instead engaging persons through 3rd party (through contractor) is in clear violation of law laid down in Umadevi's case and it also violates Articles 14, 16 and 21 of the Constitution of India. This Court is of the firm view that the respondents cannot contend that the petitioners are not entitled to be considered for regularisation of their services in the said posts on the ground that they were not recruited through 22 O.A. No. 2525/2023 a process of selection or on the ground that they have been engaged through 3rd party (through contractor) without there being any individual contract between the petitioners and respondents 6 to 10 and further on the plea that they were engaged as per need by the respondents or on the plea that there are no sanctioned posts in view of para 53 of the decision in Umadevi's case which permits one time exercise on regularisation to be done for the persons employed on temporary basis/daily wages etc, who have rendered continuous service for more than 10 years."
17. Learned counsel for the applicant has emphasised that by no stretch of imagination, can the appointment of the applicant be termed as irregular or illegal since the applicant was engaged through open public advertisement and due selection process and by the competent authority keeping in view the extant rule and instructions and against regular sanctioned vacant post, it has been continuing uninterruptedly for a long period of time and any action to deny her the benefit of regular appointment at such a belated stage would be illegal and arbitrary. The applicant till date continues to perform duties as a Primary Teacher under the supervision and control of the respondents and she cannot be forced to carry the burden if such engagement is under a particular scheme nor is she responsible for the source of funds for her pay and allowances. It is squarely the responsibility of the respondents, being a public authority, to provide for appropriate budget/funds for the scheme and pay and allowances of its employees.
18. Learned counsel for the respondents has time and again reiterated that since the appointment of the applicant is purely contractual under a specific scheme/project and for a specified period, it cannot be converted into regular appointment. She, too, 23 O.A. No. 2525/2023 has drawn strength from a large number of judgments of the various courts, including the Hon'ble Apex Court, some of the relevant ones being as under:-
(i) Cyprian Kujur & Anr. V. UOI & Ors., 2023 SCC OnlineDel 3248 "32. The regularisation was granted to the petitioners w.e.f.
October 29, 2002. It is the said date from which it can be said that the petitioners have been substantially appointed to post of LDC and not before that. It is settled that regularisation of employees appointed on ad hoc basis cannot be given retrospective effect. The Supreme Court as far back in 1998 in the case titled Registrar General of India & Ors. v. V. Thippa Setty & Ors., (1998) 8 SCC 690 has held as under:-
"2. We have heard counsel for both sides and perused the orders of the Tribunal dated 16-12-1991 and 19-2-1993. By the previous order, the Tribunal's direction was to regularise the respondents with effect from the date of promulgation of the recruitment rules or from the date of their appointment, depending on the seniority list. That was a direction which was a flexible one leaving it to the management to consider from what date regularisation should take effect. In pursuance of the said direction, on the new recruitment rules being promulgated on 11-5-1985, the regularisation was given effect from that date. However, in the subsequent order passed by the Tribunal on 19-2-1993, the Tribunal has directed that they should be treated as having been conferred regular status with effect from 5- 2-1981, that is, the date of their entry into service as Investigators. It must be remembered that they had entered as ad hoc appointees and the question was whether they should be regularised in service since they had worked as ad hoc employees for a sufficiently long time. If the ad hoc service is regularised from the back date in this manner, it will disturb the seniority of regularly appointed employees in the cadre and, therefore, ordinarily the regularisation must take effect prospectively and not retrospectively. It must also be borne in mind that ad hoc appointees, casual labour and daily-rated persons are not subject to strict discipline of service and it is a matter of common experience that their attendance is very often not regular and at times they do not even meet the qualification for appointment since they are taken on ad hoc basis. These deficiencies are overlooked by way of granting of relaxation and, therefore, care must be taken to see that they do not upset the seniorities of regular appointees. Whether they qualify in a given case or not is not relevant but what is relevant is that regularisation should be prospective and not retrospective as the chances of their upsetting the seniorities cannot be overlooked. The Tribunal must take care to see that when they pass orders of 24 O.A. No. 2525/2023 regularisation from retrospective dates, those who are likely to be affected on account of that order are not before that court and unwittingly their careers are not adversely affected. Ordinarily, therefore, the regularisation must be prospective."
(emphasis supplied)"
(ii) Secretary, State of Karnataka & Ors. v. Uma Devi & Ors., AIR 2006 SC 1806;
"44. The concept of 'equal pay for equal work' is different from the concept of conferring permanency on those who have been appointed on ad hoc basis, temporary basis, or based on no process of selection as envisaged by the Rules. This Court has in various decisions applied the principle of equal pay for equal work and has laid down the parameters for the application of that principle. The decisions are rested on the concept of equality enshrined in our Constitution in the light of the directive principles in that behalf. But the acceptance of that principle cannot lead to a position where the court could direct that appointments made without following the due procedure established by law, be deemed permanent or issue directions to treat them as permanent. Doing so, would be negation of the principle of equality of opportunity. The power to make an order as is necessary for doing complete justice in any cause or matter pending before this Court, would not normally be used for giving the go-by to the procedure established by law in the matter of public employment. Take the situation arising in the cases before us from the State of Karnataka. Therein, after the Dharwad decision, the Government had issued repeated directions and mandatory orders that no temporary or ad hoc employment or engagement be given. Some of the authorities and departments had ignored those directions or defied those directions and had continued to give employment, specifically interdicted by the orders issued by the executive. Some of the appointing officers have even been punished for their defiance. It would not be just or proper to pass an order in exercise of jurisdiction under Article 226 or 32 of the Constitution or in exercise of power under Article 142 of the Constitution of India permitting those persons engaged, to be absorbed or to be made permanent, based on their appointments or engagements. Complete justice would be justice according to law and though it would be open to this Court to mould the relief, this Court would not grant a relief which would amount to perpetuating an illegality.
45. While directing that appointments, temporary or casual, be regularized or made permanent, courts are swayed by the fact that the concerned person has worked for some time and in some cases for a considerable length of time. It is not as if the person who accepts an engagement either temporary or 25 O.A. No. 2525/2023 casual in nature, is not aware of the nature of his employment. He accepts the employment with eyes open. It may be true that he is not in a position to bargain -- not at arms length -- since he might have been searching for some employment so as to eke out his livelihood and accepts whatever he gets. But on that ground alone, it would not be appropriate to jettison the constitutional scheme of appointment and to take the view that a person who has temporarily or casually got employed should be directed to be continued permanently. By doing so, it will be creating another mode of public appointment which is not permissible. If the court were to void a contractual employment of this nature on the ground that the parties were not having equal bargaining power, that too would not enable the court to grant any relief to that employee. A total embargo on such casual or temporary employment is not possible, given the exigencies of administration and if imposed, would only mean that some people who at least get employment temporarily, contractually or casually, would not be getting even that employment when securing of such employment brings at least some succor to them. After all, innumerable citizens of our vast country are in search of employment and one is not compelled to accept a casual or temporary employment if one is not inclined to go in for such an employment. It is in that context that one has to proceed on the basis that the employment was accepted fully knowing the nature of it and the consequences flowing from it. In other words, even while accepting the employment, the person concerned knows the nature of his employment. It is not an appointment to a post in the real sense of the term. The claim acquired by him in the post in which he is temporarily employed or the interest in that post cannot be considered to be of such a magnitude as to enable the giving up of the procedure established, for making regular appointments to available posts in the services of the State. The argument that since one has been working for some time in the post, it will not be just to discontinue him, even though he was aware of the nature of the employment when he first took it up, is not one that would enable the jettisoning of the procedure established by law for public employment and would have to fail when tested on the touchstone of constitutionality and equality of opportunity enshrined in Article 14 of the Constitution of India.
46. Learned Senior Counsel for some of the respondents argued that on the basis of the doctrine of legitimate expectation, the employees, especially of the Commercial Taxes Department, should be directed to be regularized since the decisions in Dharwad (supra), Piara Singh (supra), Jacob, and Gujarat Agricultural University and the like, have given rise to an expectation in them that their services would also be regularized. The doctrine can be invoked if the decisions of the Administrative Authority affect the person by depriving him of some benefit or advantage which either (i) he had in the past been permitted by the decision-maker to enjoy and which he can legitimately expect to be permitted to continue to do until there have been communicated to him some rational grounds for withdrawing it on which he has been given an opportunity to comment; or (ii) he has received assurance from the decision-maker that they will not be withdrawn 26 O.A. No. 2525/2023 without giving him first an opportunity of advancing reasons for contending that they should not be withdrawn {See Lord Diplock in Council of Civil Service Unions V. Minister for the Civil Service (1985 Appeal Cases 374), National Buildings Construction Corpn. Vs. S. Raghunathan, (1998 (7) SCC 66) and Dr. Chanchal Goyal Vs. State of Rajasthan (2003 (3) SCC
485). There is no case that any assurance was given by the Government or the concerned department while making the appointment on daily wages that the status conferred on him will not be withdrawn until some rational reason comes into existence for withdrawing it. The very engagement was against the constitutional scheme. Though, the Commissioner of the Commercial Taxes Department sought to get the appointments made permanent, there is no case that at the time of appointment any promise was held out. No such promise could also have been held out in view of the circulars and directives issued by the Government after the Dharwad decision. Though, there is a case that the State had made regularizations in the past of similarly situated employees, the fact remains that such regularizations were done only pursuant to judicial directions, either of the Administrative Tribunal or of the High Court and in some case by this Court.
Moreover, the invocation of the doctrine of legitimate expectation cannot enable the employees to claim that they must be made permanent or they must be regularized in the service though they had not been selected in terms of the rules for appointment. The fact that in certain cases the court had directed regularization of the employees involved in those cases cannot be made use of to found a claim based on legitimate expectation. The argument if accepted would also run counter to the constitutional mandate. The argument in that behalf has therefore to be rejected."
(iii) University of Delhi v. Delhi University Contract Employees Union & Ors., 2021 SCC Online SC 256;
23. It is true that, as on the day when the judgment in Umadevi1 was delivered by this Court, the contract employees had put in just about 3 to 4 years of service. But, as of now, most of them have completed more than 10 years of service on contract basis. Though the benefit of regularization cannot be granted, a window of opportunity must be given to them to compete with the available talent through public advertisement. A separate and exclusive test meant only for the contract employees will not be an answer as that would confine the zone of consideration to contract employees themselves. The modality suggested by the University, on the other hand, will give them adequate chance and benefit to appear in the ensuing selection.
(iv) Rajasthan State Roadways Transport Corporation v.
Paramjet Singh, Civil Appeal No.4593 of 2019;
27 O.A. No. 2525/20237. The sole ground on which the writ petition was allowed was that there was a breach of the principle of natural justice.
8. Learned counsel appearing on behalf of the appellant submits that the High Court was in error, having regard to the fact that the nature of the appointment was purely contractual for a period of one year or until the shortage of drivers was met, whichever was earlier. Moreover, the contract stipulates that the services of the respondent could be dispensed with without any notice.
9 We find merit in the submission. The terms of the appointment indicate that the respondent was on a purely contractual appointment and that the services could be dispensed with without notice at any stage.
xxx xxx xxx 11 Having regard to the terms of the contractual engagement, we are of the view that the action of the appellant cannot be faulted. We accordingly allow the appeal and set aside the impugned judgment and order of the High Court. In consequence, the writ petition filed by the respondent shall stand dismissed. However, there shall be no order as to costs.
(v) Gridco Limited & Anr. V. Sri Sadananda Doloi & Ors., Civil Appeal No. 11303 of 2011;
27. Applying the above principles to the case at hand, we have no hesitation in saying that there is no material to show that there is any unreasonableness, unfairness, perversity or irrationality in the action taken by the Corporation. The Regulations governing the service conditions of the employees of the Corporation, make it clear that officers in the category above E-9 had to be appointed only on contractual basis.
28. It is also evident that the renewal of the contract of employment depended upon the perception of the management as to the usefulness of the respondent and the need for an incumbent in the position held by him. Both these aspects rested entirely in the discretion of the Corporation. The respondent was in the service of another employer before he chose to accept a contractual employment offered to him by the Corporation which was limited in tenure and terminable by three months' notice on either side. In that view, therefore, there was no element of any unfair treatment or unequal bargaining power between the appellant and the respondent to call for an over-sympathetic or protective approach towards the latter. We need to remind ourselves that in the modern commercial world, executives are engaged on account of their expertise in a particular field and those who are so employed are free to leave or be asked to leave by the employer. Contractual appointments work only if the same are mutually beneficial to both the contracting parties and not otherwise.
28 O.A. No. 2525/2023(vi) State of Rajasthan & Ors. Vs. Dayalal & Ors., 2011(2) SCC 429;
12. We may at the outset refer to the following well settled principles relating to regularization and parity in pay, relevant in the context of these appeals:
(i) High Courts, in exercising power under Article 226 of the Constitution will not issue directions for regularization, absorption or permanent continuance, unless the employees claiming regularization had been appointed in pursuance of a regular recruitment in accordance with relevant rules in an open competitive process, against sanctioned vacant posts.
The equality clause contained in Articles 14 and 16 should be scrupulously followed and courts should not issue a direction for regularization of services of an employee which would be violative of constitutional scheme. While something that is irregular for want of compliance with one of the elements in the process of selection which does not go to the root of the process, can be regularized, back door entries, appointments contrary to the constitutional scheme and/or appointment of ineligible candidates cannot be regularized.
(ii) Mere continuation of service by an temporary or ad hoc or daily-wage employee, under cover of some interim orders of the court, would not confer upon him any right to be absorbed into service, as such service would be `litigious employment'. Even temporary, ad hoc or daily-wage service for a long number of years, let alone service for one or two years, will not entitle such employee to claim regularization, if he is not working against a sanctioned post. Sympathy and sentiment cannot be grounds for passing any order of regularization in the absence of a legal right.
(iii) Even where a scheme is formulated for regularization with a cut off date (that is a scheme providing that persons who had put in a specified number of years of service and continuing in employment as on the cut off date), it is not possible to others who were appointed subsequent to the cut off date, to claim or contend that the scheme should be applied to them by extending the cut off date or seek a direction for framing of fresh schemes providing for successive cut off dates.
(iv) Part-time employees are not entitled to seek regularization as they are not working against any sanctioned posts. There cannot be a direction for absorption, regularization or permanent continuance of part time temporary employees.
(v) Part time temporary employees in government run institutions cannot claim parity in salary with regular employees of the government on the principle of equal pay for equal work. Nor can employees in private employment, even if 29 O.A. No. 2525/2023 serving full time, seek parity in salary with government employees. The right to claim a particular salary against the State must arise under a contract or under a statute.
13. In view of the above, both the questions are answered in the negative and in favour of the appellants. Therefore, none of the respondents is entitled to any relief. All the appeals are allowed and the orders of the High Court challenged in these appeals are set aside. Consequently, the writ petitions filed by the respondents before the High Court stand dismissed."
(vii) Secretary to Government, School Education Department, Chennai v. R. Govinda Swamy & Ors., 2014(4) SCC 769;
5. The issue involved here remains restricted as to whether the services of the part-time sweepers could have been directed by the High Court to be regularized. The issue is no more res integra.
6. In State of Karnataka & Ors. v. Umadevi & Ors., AIR 2006 SC 1806, this Court held as under:
"48. ...There is no fundamental right in those who have been employed on daily wages or temporarily or on contractual basis, to claim that they have a right to be absorbed in service. As has been held by this Court, they cannot be said to be holders of a post, since, a regular appointment could be made only by making appointments consistent with the requirements of Articles 14 and 16 of the Constitution. The right to be treated equally with the other employees employed on daily wages, cannot be extended to a claim for equal treatment with those who were regularly employed. That would be treating unequals as equals. It cannot also be relied on to claim a right to be absorbed in service even though they have never been selected in terms of the relevant recruitment rules."
7. In Union of India & Ors. v. A.S. Pillai & Ors., (2010) 13 SCC 448, this Court dealt with the issue of regularisation of part-time employees and the court refused the relief on the ground that part- timers are free to get themselves engaged elsewhere and they are not restrained from working elsewhere when they are not working for the authority/employer. Being the part-time employees, they are not subject to service rules or other regulations which govern and control the regularly appointed staff of the department. Therefore, the question of giving them equal pay for equal work or considering their case for regularisation would not arise.
8. This Court in State of Rajasthan & Ors. v. Daya Lal & Ors., AIR 2011 SC 1193, has considered the scope of regularisation of irregular or part-time appointments in all possible eventualities and laid down well-settled principles 30 O.A. No. 2525/2023 relating to regularisation and parity in pay relevant in the context of the issues involved therein. The same are as under:
"(i) The High Courts, in exercising power under Article 226 of the Constitution will not issue directions for regularisation, absorption or permanent continuance, unless the employees claiming regularisation had been appointed in pursuance of a regular recruitment in accordance with relevant rules in an open competitive process, against sanctioned vacant posts. The equality clause contained in Articles 14 and 16 should be scrupulously followed and Courts should not issue a direction for regularisation of services of an employee which would be violative of the constitutional scheme. While something that is irregular for want of compliance with one of the elements in the process of selection which does not go to the root of the process, can be regularised, back door entries, appointments contrary to the constitutional scheme and/or appointment of ineligible candidates cannot be regularised.
(ii) Mere continuation of service by a temporary or ad hoc or daily-wage employee, under cover of some interim orders of the court, would not confer upon him any right to be absorbed into service, as such service would be "litigious employment". Even temporary, ad hoc or daily-wage service for a long number of years, let alone service for one or two years, will not entitle such employee to claim regularisation, if he is not working against a sanctioned post. Sympathy and sentiment cannot be grounds for passing any order of regularisation in the absence of a legal right.
(iii) Even where a scheme is formulated for regularisation with a cut-off date (that is a scheme providing that persons who had put in a specified number of years of service and continuing in employment as on the cut-off date), it is not possible to others who were appointed subsequent to the cut-off date, to claim or contend that the scheme should be applied to them by extending the cut-off date or seek a direction for framing of fresh schemes providing for successive cut-off dates.
(iv) Part-time employees are not entitled to seek regularisation as they are not working against any sanctioned posts. There cannot be a direction for absorption, regularisation or permanent continuance of part-time temporary employees.
(v) Part-time temporary employees in government-run institutions cannot claim parity in 31 O.A. No. 2525/2023 salary with regular employees of the Government on the principle of equal pay for equal work. Nor can employees in private employment, even if serving full time, seek parity in salary with government employees.
The right to claim a particular salary against the State must arise under a contract or under a statute." (Emphasis added)
9. The present appeals are squarely covered by clauses (ii), (iv) and (v) of the aforesaid judgment. Therefore, the appeals are allowed. However, in light of the facts and circumstances of the case as Shri P.P. Rao, learned senior counsel has submitted that the appellant has already implemented the impugned judgments and does not want to disturb the services of the respondents, the services of the respondents which stood regularised should not be affected."
(viii) S. Mariappan Vs.the State of Tamil Nadu, WP(MD) No. 23081 of 2015;
8.The writ petitioners were admittedly not appointed in accordance with the recruitment rules in force. The initial http://www.judis.nic.in appointment of the writ petitioners were irregular and the procedure of selection was not followed. Thus, the writ petitioners had entered into service through back door and therefore, they cannot seek the benefit of retrospective regularisation from the date on which they were initially appointed. When the initial appointment of the writ petitioners is not in accordance with the recruitment rules in force, the benefit of retrospective regularisation cannot be considered in view of the legal principles settled by the Constitution Bench of the Hon'ble Supreme Court in the case of Secretary, State of Karnataka and others Vs. Umadevi (3) and others reported in (2006) 4 Supreme Court Cases 1, at Paragraphs 5,10,12,13,14,20 and 43 to 50, which reads as under:
"5. This Court has also on occasions issued directions which could not be said to be consistent with the Constitutional scheme of public employment. Such directions are issued presumably on the basis of equitable considerations or individualization of justice."
The question arises, equity to whom? Equity for the handful of people who have approached the Court with a claim, or equity for the teeming millions of this country seeking employment and seeking a fair opportunity for competing for employment? When one side of the coin is considered, the other side of the http://www.judis.nic.in coin, has also to be considered and the way open to any court of law or justice, is to adhere to the law as laid down by the Constitution and not to make directions, which at times,even if do not run counter to the Constitutional scheme, certainly tend to water down the Constitutional requirements. It is this conflict that is reflected in these cases referred to the Constitution Bench.
32 O.A. No. 2525/202319. It is pertinent to note that even the regularisation of services of part-time employees vide G.O. (Rt.) No. 505 Finance (AA-2) Department dated 14-10- 2009 and G.O. (2D) No. 32 Finance (T.A. 2) Department dated 26-3-2010 was effected by extending the benefit of G.O. dated 28-2-2006 only from the date of government orders and not from the date of completion of their ten years of service. The Division Bench also failed to take note that GOMs No. 22 P & AR Dept. dated 28-2-2006 is applicable only to full-time daily-wage employees and who had http://www.judis.nic.in completed ten years of continuous service as on 1-1- 2006 and not to part-time employees. As per G.O. (Rt.) No. 84 dated 18-6-2012, the respondent is entitled to the monetary benefits only from the date of issuance of government order regularising his service, that is, 18-6- 2012. The impugned order [Commercial Taxes and Registration Deptt., State of T.N. v. A. Singamuthu, Writ Appeal No. 1209 of 2012, decided on 4-7-2012 (Mad)] of the Division Bench affirming the order [A. Singamuthu v. Commercial Taxes and Registration Deptt., State of T.N., WP No. 26702 of 2010, order dated 26-11- 2010 (Mad)] of the Single Judge granting benefits to the respondent from the date of completion of ten years of service is erroneous and the same is liable to be set aside."
19. We have heard learned counsels for the parties at great length and also meticulously gone through the written submissions preferred by them. In addition, we have given a careful reading to the various judgments/pronouncements quoted by the counsels in support of their respective contentions.
20. Before dwelling upon the merits of the OA, we would like to address the issue of jurisdiction which has been raised by the learned counsel for the respondents by pointing out that the applicant is employed in a project called Samagra Shiksha Abhiyan which is being executed by a Society called Samagra Shiksha Samiti and hence the applicant is an employee of a society and the said society does not fall under the jurisdiction of this Tribunal. We find that the issue of jurisdiction does not find a mention in the counter 33 O.A. No. 2525/2023 reply. However, we are obliged to go into it even if it has not been raised in the counter reply and it has only been argued at a later stage during oral arguments.
21. The public notice/advertisement for engagement of teachers was issued by the Municipal Corporation of Delhi (A1) and the said advertisement does not anywhere state that appointment is to be made in a society. The initial engagement of the applicant was done on 11.09.2023 and the office order to this effect has been issued by the Education Department of Municipal Corporation of Delhi. This too nowhere makes a mention that this engagement/appointment is being done in a society. In fact, none of the further orders of re-
engagement/extension of contract give even a reference to Samagra Shiksha Samiti or any other society. This argument obviously appears to be an afterthought. There is absolutely no doubt that the applicant's appointment has been made by an Education Department of Municipal Corporation of Delhi and has been continuing since 2003 by various orders of the said department. Therefore, the issue with respect to the jurisdiction as raised by the learned counsel for the respondents is misplaced and does not merit any consideration.
We emphatically state that the jurisdiction in this matter would squarely lie with this Tribunal.
22. Both the counsels have quoted extensively from varied pronouncements of the Hon'ble Supreme Court and the High Courts to support their respective contentions and pleadings. We have gone through them carefully and we have no doubt in holding that a fair 34 O.A. No. 2525/2023 adjudication of the issue at hand would primarily call for a close examination of the factual matrix.
23. The applicant, at the time of filing of the Original Application, was 54 years of age, and it was in the year 2003 that she was engaged/appointed as a Primary Teacher. This means that at the relevant time, she would be aged 33 years and thus, eligible for such appointment. If she were to now apply for engagement/appointment for any post in the Government, she would be much above the upper age limit. Her engagement/appointment was pursuant to a public notice/advertisement notified by the Municipal Corporation of Delhi and was strictly in accordance with the provisions of the Recruitment Rules as also in adherence to all the other statutory provisions governing appointment to a public post, including reservation in government jobs. There is no dispute that the applicant was selected for engagement/appointment through a transparent, open and fair selection process strictly in terms of her own merit. Her initial engagement on 11.09.2023 has since then continued and is continuing as on date. For all intents and purposes, this engagement/continuance is uninterrupted. An artificial technical break would certainly not count as that would fall in the face of elementary principles of justice. There is no denial that since beginning there have been and still there are sufficient vacant post(s) on which the applicant was appointed and has been continuing. We find that, routinely, Government departments resort to short technical/artificial breaks merely to deny a person an opportunity to exercise his legal and genuine rights. The initial appointment on contract basis was for a period of six months. However, the later 35 O.A. No. 2525/2023 orders, instead of mentioning a period of contract, gave an outer date till such contractual appointment would to be valid. And the initial six months have now extended to twenty one years and still continue.
24. Curiously, the subsequent office orders mention that the applicant is "allowed to resume the duty". It may just be used of a particular term and perhaps much meaning may not be read into it, however, at the same time, it cannot be ignored that while issuing fresh orders of engagement, the specific order is for "resumption" of duty. This would surely mean continuation of the post already held.
However, thereafter a few of the office orders use the word "re-
engagement" and some isolated orders "extended".
25. To cut a long story short, we would reiterate that the applicant has been continuing to hold the post of Teacher (Primary) in MCD since 11.09.2023, i.e., more than a good 21 years now and as mentioned above, this engagement has been uninterrupted even though there may have been a technical/artificial break. It would be pertinent to mention that during this period, the applicant has also been transferred from Sadar Paharganj Zone to South Zone in September, 2007. It has not been explained as to how a contractual employee engaged for a limited period could be transferred from one zone to another when the order of engagement of contract has been issued by the Education Officer of the concerned zone. This fact, too, establishes that the term of engagement may have been mentioned as contractual, however, such engagement/appointment was of a regular and continuous nature. Merely for the reason that the applicant's initial engagement was not through the DSSSB but 36 O.A. No. 2525/2023 directly by the respondents themselves through open advertisement and due selection process on merit, the same cannot be construed as 'illegal' as held by the Hon'ble Apex Court in Uma Devi (supra).
26. Giving due consideration to arguments put forth by the learned counsel for the respondents that the applicant was engaged against a specific project of the Government of India and under the aegis of Samagra Shiksha Samiti, we have very carefully gone through each and every office order issued by the respondents; and time and again, read between the lines too. There is not even a whisper in any of the orders, be it of engagement/appointment right at the initial stage or subsequent extension that the applicant was engaged/appointed in a society for a specific project. The initial order dated 11.09.2003 reads as under:-
"MUNICIPAL CORPORATION OF DELHI EDUCATION DEPARTMENT SADAR PAHAR GANJ ZONE No. D/47/DEO/Edu/SP2/03/Gen Date:11.09.2003 OFFICE ORDER Consequent upon approval dated 29/8/2003 of the Deputy Commissioner, Sadar Paharganj Zone and having signed the Contractual Agreement for engagement as Teacher on contract basis for a period of six months or till the select list is received from DSSSB, whichever as earlier: on consolidated monthly remuneration of Rs.5000/-. Mrs. Anita Kumari, W/o Sh. R.N. Singh R/o 253, Sector 5, R.K. Puram, is hereby allowed to resume the duty as Contractual Teacher w.e.f. 11.09.03 and posted in M.C. Primary School Pahar Ganj New-II, S.P. Zone.
2. Accordingly, He/She is directed to report to Head Master/Head Mistress immediately.
Sd/ Dy. Education Officer Sadar Paharganj Zone Distribution:
1. Mrs. Anita Kumari
2. DCA, S.P. Zone Copy for information to:-37 O.A. No. 2525/2023
1) Deputy Commissioner (S.P. Zone) 2) Deputy Education Officer (TRC, Education Dept. HQ) 3) Additional Deputy Commissioner (Education/HQ)"
Similarly, a sample of a subsequent order, i.e. order dated 31.12.2004 reads as under:-
"MUNICIPAL CORPORATION OF DELHI EDUCATION DEPARTMENT SADAR PAHAR GANJ ZONE No. D/3998/DEO/SPZ/04 Date:31.12.2004 OFFICE ORDER In pursuant upon O.O. No.DEO/TRC/Edu/04/872 dated 29.12.2004 issued from Director (Primary Education)/MCD and approval of D.C./SP Zone dt. 31/12/2004 the Contractual Agreement for engagement as Primary Teacher on contract basis for a period ending on 30/04/2005 on consolidated monthly remuneration of Rs.5000/-. Mrs. Anita Kumari, W/o Sh. R.N. Singh, R/o S-5/253, R.K. Puram, New Delhi is hereby allowed to resume the duty as Contractual Teacher w.e.f. 01/01/2005 provided the teacher attended the school and posted in M.C. Pry School, Pahar Ganj, New-II, SP Zone.
2. Accordingly, she directed to report to Head Master/Head Mistress immediately.
Sd/ Dy. Education Officer S.P. Zone/M.C.D Distribution:
1. Mrs. Anita Kumari
2. ACA/DCA S.P. Zone Copy for information to D.E.O (TRC), Education/HQ"
27. No matter how many time we read these orders, we cannot find even a single word to substantiate the argument put forth by the learned counsel for the respondents and as stated in the counter reply that the engagement was in a Samiti and for a specific project.
In fact, the orders of extension of contract coincide with the academic session and not the duration of the project, if any. This is not to contest that there is no such project called Samagra Shiksha 38 O.A. No. 2525/2023 Abhiyan being executed by a Socieity call Samagra Shiksha Samiti but if the engagement/appointment was under such a samiti for the aforesaid project, it should have been outrightly mentioned so to the applicant and other similarly placed persons. The clock cannot be put back after the persons have been working for more than 20 long years now. For all intents and purposes, the applicant has been continually and uninterruptedly discharging the duties of regular teacher despite having been at the receiving end of discriminatory treatment by not allowing her the benefit of regularization; nor the benefit of pay and allowances at par with those employees whose appointment letter/order does not mention the term contract. In the instant case, the applicant was appointed by the MCD and since her initial appointment she has been working under the Municipal Corporation of Delhi, the respondents herein, who are the disciplinary, supervisory and controlling authorities. Merely because after many years of her such appointment, the funds for payment of salary were arranged by the respondents from some different source, i.e. Samagra Siksha Abhiyan and that too unilaterally by the respondents at their own for the reasons best known to them, the relationship of employer and employee between the respondents and the applicant shall not change. We find support in this regard from the law laid down by the Hon'ble Apex Court in the case of Nihal Singh (Supra).
28. We have also considered various case laws cited by the ld.
Counsels for the parties. The judgment of the Hon'ble Apex Court in the case of M.L. Kesari (supra), Sheo Narain Nagar (supra) and Narendra Kumar Tiwari (supra), as referred to in Para 16(i),(iii) and 39 O.A. No. 2525/2023
(iv) above has explained the term 'irregular' and 'illegal as defined by the Constitution Bench of the Hon'ble Apex Court in the case of Uma Devi (3)(supra) and the circumstances in which direction can be issued for regularization of services of a person engaged as daily wager, a contractual and/or a temporary employee. As recorded by us in para 23 above, the engagement of the applicant can in no manner be termed as 'illegal' in view of the ratio of the judgment referred to herein this para.
In identical situation, the Hon'ble High Court of Delhi in the case of Harleen Kaur & Ors. (supra) and also in the case of the Government School Teachers Association (supra) has directed regularization of Entomologists and Teachers respectively who have been working on contract basis under these very respondents, i.e. Municipal Corporation of Delhi, etc. The ratio of these judgments are binding precedents for this Tribunal and we do not find any reason for not to follow the same. We further find support in this regard from the judgments of the Hon'ble High Court of Karnataka in the case of Hanumanthrayappa & Ors. (supra) and of the Hon'ble High Court of Telengana in the case of Ravinder Reddy & Ors.
(supra).
So far the reliance of the respondents on the terms of the contract between them and the applicant is concerned, we have no hesitation to hold that the contract is void and unconscionable in view of the law laid down by the Hon'ble Apex Court in Central Inland Water Transport Corporation Limited & Anr. Vs. Brojo Nath Ganguly & Anr. (supra).
40 O.A. No. 2525/202329. We have also carefully gone through the judgments, referred to and relied by the ld. Counsel for the respondents, noted hereinabove.
The judgment of the Constitution Bench in the case of Uma Devi (3) (supra) has already been considered and explained by the Hon'ble Apex Court and the Hon'ble High Courts, including the Hon'ble High Court of Delhi, in the cases relied upon by the ld. Counsel for the applicant and noted and discussed by us hereinabove. Accordingly, mere quoting of a few paras thereof on behalf of the respondents does not support the respondents.
The judgment in the case of University of Delhi Vs. Delhi University Contract Employees Union (supra), Rajasthan State Roadways Transport Corporation Vs. Paramjit Singh (supra), Gridco Limited & Anr. (supra), State of Rajasthan Vs. Dayalal & Ors. (supra) and Secretary to Government School Education Department, Chennai (supra), S.Mariappan (supra) are concerned, it is apparent that the same are based on the facts and circumstances of those cases and hence they do not help the defence taken by the respondents herein.
30. Against the background of what has been elaborately outlined above, we have no hesitation in holding that the OA deserves to be allowed with consequential benefits.
31. Therefore, we allow the Original Application with following order(s) and directions:-
(i) We hold and declare the engagement of the applicant as Teacher (Primary) on contract basis with intermittent breaks, non-payment of salary and allowances and other 41 O.A. No. 2525/2023 service benefits at par with regular Teacher (Primary) under the respondents as arbitrary and violative of the provisions of Articles 14 and 16 of the Constitution of India;
(ii) Consequently, we direct the competent authority amongst the respondents to pass an order for regularizing the applicant's services as Teacher (Primary) from the date of her initial appointment/engagement i.e. 11.09.2003;
(iii) To fix the pay of the applicant as a regular Teacher (Primary), grant annual increment(s), leave and also to consider her for promotion/grant of benefits under ACP/MACP scheme(s) as per the extant rules and instructions in this regard and also to pay her the consequential benefits arising out of the same;
(iv) The interim order dated 22.8.2023 passed in the present OA is made absolute;
(vi) The aforesaid directions shall be complied by the respondents within six weeks of receipt of a copy of this order.
32. However, in the facts and circumstances, there shall be no order as to costs.
(Pratima K. Gupta) (Tarun Shridhar) Member (J) Member (A) /lg/