Calcutta High Court
Union Of India & Ors. vs T. Malleswar Rao & Ors. on 25 March, 1998
Equivalent citations: (1998)2CALLT121(HC)
Author: Basudeva Panigrahi
Bench: Basudeva Panigrahi
JUDGMENT V.K. Gupta, J.
1. This appeal is directed against the Judgment of the learned single Judge dated 2G-6-1997 whereby a Mandamus has been Issued against the appellants directing them to give the respondents the benefit of regular pay-scale as safalwallas (members of the conservancy stafl) and to absorb them into the permanent service of the appellants within a period of six months from the date of communication of this order. A further direction has been issued by the learned single Judge in the Judgment under appeal to the effect that if the establishment, where the respondents would be permanently absorbed as a consequence of the judgment of the learned single Judge is ultimately wound up, the respondents would be absorbed elsewhere in other department under the Union of India with the benefit of continuous service.
2. The respondents 1 to 12 before us in this appeal have, admittedly been working for varying periods as safalwallas with the appellants in the Brlchgunj cantonment area which is an establishment under the Ministry of Defence and caters to the requirements of the Army units stationed there. The respondents approached this court by filling two separate writ applications claiming the relief of regular absorption into the service of the appellants as also the payment of the regular pay-scales at par with the scales received by safalwallas similarly situated in other department of the Government and other safaiwallas working in the Ministry of Defence Itself on regular basis and posted in the BrlchgunJ cantonment area. The fact that the respondents have been working as safalwallas for varying periods of time, ranging from two to four years uptil eight to ten years, has not been denied by the appellants in the affidavit-In-opposition filed by them to both the writ applications. Even before us in this appeal, the appellants have not disputed the fact that the respondents were actually working as safalwallas at different periods of time and are continuing to work uptil date. The only defence of the appellants in the writ application and the only argument before us today, as very vehemently urged by Mr. Saroop, is that the Station Headquarter (or by whatever other name the establishment may be called in BrlchgunJ cantonment area) is a temporary establishment and because of such status of the establishment, the appropriate competent authorities have not sanctioned the posts on regular basis and it is for the aforesaid reason that each year the requirement of the safalwallas is Judged and on that basis requisite number of safaiwallas are appointed. Be that as it may, the fact remains that the respondents have been working almost continuously for sufficient length of time as safaiwallas with the appellants in the Brichgunj cantonment and yet the appellants have neither regularised their services nor have taken any steps to pay them the emoluments at par with those received by their counterparts either working on regular basis in the same establishment or elsewhere in other government departments. Even though, the appellants are entitled to regulated their working within the constraints of their parameters and to take decision about the employment of salalwallas depending upon their requirements, yet the respondents cannot be denied the enjoyment of their right of equality under Article 14 of the Constitution of India read with Article 16 Inasmuch as other safaiwallas similarly placed are enjoying the benefit of higher emoluments and are working in the security of regular employment. In a situation like this, therefore, a balance has to be struck between the conflicting interests of the employer and the employees in the sense that whereas the court cannot remain oblivious to the rights of the employees, at the same time, it cannot pass any order or Issue any directions which may amount to compelling the employer to somehow or the other engage the respondents even if the employer does not need their services or there is no requirement to engage them as such.
3. No one has a right of employment as such. Articles 14 and 16 of the Constitution of India do not guarantee any right of employment. These Articles, however, do guarantee the right of quality. The respondents thus have a right of being treated equality in the matter of their employment as safaiwallas on the same basis as other safalwalas are being treated under similar circumstances. Denying such right of equality, therefore, will amount to negating the enjoyment of the fundamental right guaranteed to the respondents under the aforesaid Articles 14 and 16.
4. The learned single Judge, therefore, in our opinion was correct in his view about the right of the respondents to be absorbed on regular basis and to be paid the same pay-scales as are being enjoyed by other safaiwallas similarly placed. However, as we have observed earlier, in a situation like the present one wherein with regard to the status of the establishment, the requirements of the appellants and the constraint of the parameters under ' which the appellants are functioning vls-a-vis the status of the establishment, Issuing a blanket, positive and binding direction upon the appellants to absorb the respondents, in our view, would amount to totally Ignoring the interests of the appellants. As we have Indicated earlier, we have to draw a fine balance between the conflicting interests of the appellants and the respondents and the need to equate properly and appropriately the rights of the respondents, based upon the Interests of the appellants in the light of their requirement, parameters and other relevant considerations governing their functioning. In a situation like, the present one, therefore, we have to pass an order which should not only satisfy the requirements of the Constitution and the law but should not also operate harshly upon either the appellants or the respondents, at the same time, also ensuring that the respondents are protected against arbitrary violation of their fundamental right of equality as guaranteed to them under Articles 14 and 16 of the Constitution of India.
5. We also do not find ourselves in agreement with that part of the Judgment of the learned single Judge where he observed and directed the appellants that even if the establishment is ultimately wound up, the respondents shall continue to serve elsewhere by transferring their services to other departments. We are sure that right is not vested in the respondents in a situation where the very establishment in which they have been working may ultimately come to be disbanded or wound up. As Indicated earlier. Articles 14 and 16 do not guarantee the right of employment; they only guarantee equality of opportunity, in contradistinction to the arbitraiy and unequal treatment in the matter of employment. In partial modification of the Judgment of the learned single Judge under appeal, therefore, and while partly allowing the appeal, we pass the following order and Issue directions as hereinbelow:--
1) Within four months from today the appellants shall lake a final decision about their actual requirement of employing the requisite number of safalwallas in the establishment in question. We have no doubt that the rationale of this decision and rolson d'etre shall be only with regard to the requirement of safaiwallas on regular basis. If the appellants decide that they do require the services of safalwallas, apparently, there would not be any justification for not determining the number of vacancies that would be required to be filled up on regular basis for such purpose. We are saying so because in the nature of such requirement, offering appointments on ad-hoc or casual basis, with proverbial Intermittent breaks is not a very healthy practice. In thus taking the aforesaid decision, the appellants shall make further endeavour to ensure that the requirement is arrived at on the basis of regular employment criteria since the nature of the work is both perennial and continuous.
2) Based upon the aforesaid assessment, the appellants shall Issued orders for the employment of the respondents on regular basis, depending upon the number of vacancies which would come to be created based upon the aforesaid assessment of requirement The respondents shall be appointed on the basis of their inter se seniority in their working as safalwallas in the past. Till the last respondent is employed, no one from outside shall be engaged as a safalwalla either on regular basis or otherwise. This stipulation is subject to the condition of the availability of such respondents and their willingness to join.
3) in offering employment to the respondents an undertaking shall be obtained from each one of the appointees that if ultimately, the establishment is dlsbounded, wound up or otherwise discontinued, the appellants shall be under no obligation to continue with the employment of the respondents or any one of them. Except for this stipulation, under all other circumstances, the appointees shall enjoy the status of regular service under the appellants, subject to all Rules and Regulations and the law on the point.
4) The appellants shall also decide about the grant of regular pay-scale to the respondents thus appointed on regular basis. While deciding upon the grant of such regular pay-scale, regard shall be had about the pay scale which are presently being enjoyed by safaiwallas working in other similar establishments elsewhere.
5) Till the aforesaid decisions are finally taken, the respondents shall not be disengaged from their present posts and their emoluments as at present shall be disbursed to them on regular basis.
The appeal is, accordingly, disposed of finally but without any order as to costs.
B. Panigrahi, J.
6. I agree.
7. Appeal disposed of