Gujarat High Court
Bhailalbhai Ranchhodbhai Prajapati & 2 vs State Of Gujarat & 2 on 17 March, 2016
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/3552/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 3552 of 2015
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BHAILALBHAI RANCHHODBHAI PRAJAPATI & 2....Petitioner(s)
Versus
STATE OF GUJARAT & 2....Respondent(s)
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Appearance:
MS MEDHA N PANDYA, ADVOCATE for the Petitioner(s) No. 1 - 3
MR KM ANTANI, AGP for the Respondent(s) No. 1 , 3
MR DEEPAK P SANCHELA, ADVOCATE for the Respondent(s) No. 2
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 17/03/2016
ORAL ORDER
By this writ-application under Article 226 of the Constitution of India, the petitioners, serving as temporary employees past three decades with the Umreth Nagarpalika, have prayed for the following reliefs :
"(a) The Hon'ble Court may kindly be pleased to issue appropriate writ, order or direction to the respondent authorities to kindly consider the case of the petitioner for the purpose of regularizing the services of the petitioners on the basis of the letter no.1807/2013 dated 12.11.2013 (Annexure-I) whereby, Umreth Nagarpalika has recommended for regularizing the services of the employees who are working on fixed pay salary.
(b) The Hon'ble Court may kindly be pleased to direct the respondent authorities to act and comply the communication dated 12.11.2013, having letter no.1807/2013, as early as possible, before the retirement of the petitioners. In case it is not decided prior to their retirement, they may be extended the benefits as accrued even after retirement.Page 1 of 35
HC-NIC Page 1 of 35 Created On Tue Mar 22 01:26:25 IST 2016 C/SCA/3552/2015 ORDER
(c) The Hon'ble Court may kindly be pleased to direct the respondent authorities to regularize the services of the petitioners and pay them all available benefits as paid to regular employees including pay scale benefits.
(d) Pending hearing and final disposal, the communication dated 12.11.2013 having letter no.1807/2013 may be forwarded to department concerned for expeditious consideration and deciding the case of the petitioners.
(e) The Hon'ble Court may kindly be pleased to pass any other and further order as deem fit in the interest of justice."
This litigation has a checkered history. The petitioners are working with the Umreth Nagarpalika past almost thirty years. They are praying for regularization of their service.
On 10th March 2015, this Court passed the following order :
"Learned advocate Ms. Medha Pandya appearing for the petitioners has urged that petitioner no. 1 is retiring this year. He has been serving for the past 35 years. Likewise petitioner no. 2 and 3 are also to retire this year who have been rendering service for the past 35 years. She has urged that on 6th August 2015 the posts have been sanctioned by the authority but till date the Corporation has not filled the same. In the event of petitioners' retirement before they being regularised on the post on which they have been discharging their duty , they will be deprived of all the retiral benefits. She has sought priority.
Mr.Deepak Sanchela learned advocate appearing for respondent no. 2 has sought time as he is being instructed by respondent no. 2 today itself. Learned AGP has appeared for respondent nos 1 and 3. Copy of the affidavit-in-reply if to be filed shall be served to the petitioneron or before 19th March 2015. If the petitioners are desirous of filing any rejoinder affidavit, the same shall be filed and the the copy thereof shall be given to the other side on or before 23rd March 2015. The matter shall be heard finally on 25th March 2015."
On 30th June 2015, this Court passed the following order :
"Pursuant to the oral directions issued yesterday by this Page 2 of 35 HC-NIC Page 2 of 35 Created On Tue Mar 22 01:26:25 IST 2016 C/SCA/3552/2015 ORDER Court, the Chief Officer of the Umreth Nagarpalika is personally present in the Court. Mr.Sanchela, the learned advocate appearing for the Nagarpalika has filed an additional affidavit-in-reply today. He clarified the position stating that in the past the predecessor-in-office of the present Chief Officer had forwarded a proposal to the Collector for regularization of the services of ten employees including the petitioners herein who are serving with the Nagarpalika past more than 30 years. Mr.Sanchela further submitted that the Collector thereafter inquired with the Nagarpalika once again whether the proposal which was forwarded was in consonance with the recruitment rules or not. It appears that the Chief Officer, as on today, informed the Collector that the proposal was not in accordance with the recruitment rules. The Collector, in turn, informed the Director of Municipalities that the proposal which was forwarded by the Nagarpalika was not in accordance with the recruitment rules. It appears that taking into consideration the report of the Collector, the Director of Municipalities rejected the entire proposal.
Mr.Sanchela clarified that the Nagarpalika is ready and willing to fill up all the vacant posts sanctioned on the establishment, in accordance with the recruitment rules, but for that, the Nagarpalika will have to issue an advertisement fixing certain eligibility criteria. He further submitted that having regard to the fact that the ten employees are working past more than 30 years without any benefit which a regular employee derives today, some relaxation can also be granted so far as the eligibility criteria is concerned. However, according to him, this process would take a long time.
Ms.Pandya, the learned advocate appearing for the petitioners, submitted that the petitioner no.1 has already retired from service and the petitioner nos.2 and 3 are on the verge of retirement.
The only option now left is for the Director of Municipalities to consider the proposal of the Nagarpalika to regularize the services of the ten employees named in the original proposal, which includes the petitioners, having regard to the fact that the petitioners and 7 others serving with the Nagarpalika past 30 years, having crossed the age of 50 years, will never get the benefit which the regularly appointed employees are receiving today.Page 3 of 35
HC-NIC Page 3 of 35 Created On Tue Mar 22 01:26:25 IST 2016 C/SCA/3552/2015 ORDER It is not in dispute that the posts are sanctioned but were never filled up. Ms.Pandya pointed out that by now almost five proposals must have been sent by the Nagarpalika but, for some reason or the other, none of the proposals were considered. Ms.Pathak shall personally take appropriate instructions in this regard and verify, whether the Director of Municipalities would consider regularization of services of the ten employees as a special case having regard to the fact that they all have put in more than 30 years of service and are on the verge of retirement. If there is any positive reply at the end of the Director of Municipalities, then I may think of directing the Nagarpalika to forward a fresh proposal in that regard.
I hope and trust that these aspects are considered in their true perspective by the Director of Municipalities.
Let this matter appear on 14th July 2015. On that day, Ms.Pathak shall apprise the Court as regards the stance of the Director of Municipalities.
Direct service is permitted.
A copy of this order be provided to Ms.Shruti Pathak, the learned AGP, for its onward communication."
On 23rd July 2015, this Court passed the following order :
"1. By this writ application under Article 226 of the Constitution of India, the petitioners working on the establishment of the Umreth Nagar Palika past 35 years, have prayed for the following reliefs;
a) The Hon'ble Court may kindly be pleased to issue appropriate writ, order or direction to the respondent authorities to kindly consider the case of the petitioner for the purpose of regularizing the services of the petitioners from on the basis of the letter no.1807/2013 dated 12.11.2013, (Annexure- I) whereby, Umreth Nagarpalika has recommended for regularizing the services of the employees who are working on fixed pay salary.
b) The Hon'ble Court may kindly be pleased to direct the respondent authorities to act and comply the communication dated 12.11.2013, having letter no.1807/2013, as early as possible, before the retirement of the petitioners. In case it is not Page 4 of 35 HC-NIC Page 4 of 35 Created On Tue Mar 22 01:26:25 IST 2016 C/SCA/3552/2015 ORDER decided prior to their retirement, they may be extended for the benefits as accrued even after retirement.
c) The Hon'ble Court may kindly be pleased to direct the respondent authorities to regularize the services of the petitioners and pay them all available benefits as paid to regular employees including pay scale benefits.
d) Pending hearing and final disposal, the Communication dated 12.11.2013 having letter No.1807/2013 may be forwarded to department concerned for expeditious consideration and deciding the case of the petitioners.
e) The Hon'ble Court may kindly be pleased to pass any other and further order as deem fit in the interest of justice.
2. On 30th June, 2015, this Court passed the following order:
"Pursuant to the oral directions issued yesterday by this Court, the Chief Officer of the Umreth Nagarpalika is personally present in the Court. Mr.Sanchela, the learned advocate appearing for the Nagarpalika has filed an additional affidavit-in- reply today. He clarified the position stating that in the past the predecessor-in-office of the present Chief Officer had forwarded a proposal to the Collector for regularization of the services of ten employees including the petitioners herein who are serving with the Nagarpalika past more than 30 years. Mr.Sanchela further submitted that the Collector thereafter inquired with the Nagarpalika once again whether the proposal which was forwarded was in consonance with the recruitment rules or not. It appears that the Chief Officer, as on today, informed the Collector that the proposal was not in accordance with the recruitment rules. The Collector, in turn, informed the Director of Municipalities that the proposal which was forwarded by the Nagarpalika was not in accordance with the recruitment rules. It appears that taking into consideration the report of the Collector, the Director of Municipalities rejected the entire proposal.Page 5 of 35
HC-NIC Page 5 of 35 Created On Tue Mar 22 01:26:25 IST 2016 C/SCA/3552/2015 ORDER Mr.Sanchela clarified that the Nagarpalika is ready and willing to fill up all the vacant posts sanctioned on the establishment, in accordance with the recruitment rules, but for that, the Nagarpalika will have to issue an advertisement fixing certain eligibility criteria. He further submitted that having regard to the fact that the ten employees are working past more than 30 years without any benefit which a regular employee derives today, some relaxation can also be granted so far as the eligibility criteria is concerned. However, according to him, this process would take a long time.
Ms.Pandya, the learned advocate appearing for the petitioners, submitted that the petitioner no.1 has already retired from service and the petitioner nos.2 and 3 are on the verge of retirement.
The only option now left is for the Director of Municipalities to consider the proposal of the Nagarpalika to regularize the services of the ten employees named in the original proposal, which includes the petitioners, having regard to the fact that the petitioners and 7 others serving with the Nagarpalika past 30 years, having crossed the age of 50 years, will never get the benefit which the regularly appointed employees are receiving today.
It is not in dispute that the posts are sanctioned but were never filled up. Ms.Pandya pointed out that by now almost five proposals must have been sent by the Nagarpalika but, for some reason or the other, none of the proposals were considered. Ms.Pathak shall personally take appropriate instructions in this regard and verify, whether the Director of Municipalities would consider regularization of services of the ten employees as a special case having regard to the fact that they all have put in more than 30 years of service and are on the verge of retirement. If there is any positive reply at the end of the Director of Municipalities, then I may think of directing the Nagarpalika to forward a fresh proposal in that regard.
I hope and trust that these aspects are considered in their true perspective by the Director of Municipalities.
Let this matter appear on 14th July 2015. On that Page 6 of 35 HC-NIC Page 6 of 35 Created On Tue Mar 22 01:26:25 IST 2016 C/SCA/3552/2015 ORDER day, Ms.Pathak shall apprise the Court as regards the stance of the Director of Municipalities.
Direct service is permitted.
A copy of this order be provided to Ms.Shruti Pathak, the learned AGP, for its onward communication.
3. In response to the order referred to above, an additional affidavit has been filed on behalf of the respondent No.1, duly affirmed by Shri J. J. Patel, Mamlatdar, Directorate of Municipalities, State of Gujarat, inter alia, stating as under;
I, Shri J.J. Patel Age: Adult, Occupation: Service, Mamlatdar, Directorate of Municipalities, State of Gujarat, Gandhinagar, do hereby solemn affirm and state on oath as under:-
1. I say and submit that I am filing the present affidavit in compliance of the order dated 30/06/2015 passed by the Hon'ble Court. The Hon'ble Court had vide order dated 30/06/2015 directed the concerned Assistant Government Pleader to verify whether the services of the petitioners can be regularized as a special case by the Director of Municipalities or not.
2. I say and submit that the authorities have reexamined the entire aspect regarding the claim of the petitioners with respect to regularization. I say and submit that earlier when the proposal for regularization of the employees was forwarded, the opinion of the Collector dated 08/04/2015 was sought for and the Collector had vide opinion dated 08/04/2015 forwarded the opinion to the office of the deponent that the proposal of the Nagarpalika is not in accordance with the recruitment rules. A copy of the opinion of the Collector dated 08/04/2015 is annexed herewith and marked as Annexure R-I.
3. I say and submit that the opinion of the Collector was based upon the communication dated 26/03/2015 issued by the Chief Officer of the Umreth Nagarpalika who had intimated to the Collector as against the query raised by the Collector that the proposal is not in consonance Page 7 of 35 HC-NIC Page 7 of 35 Created On Tue Mar 22 01:26:25 IST 2016 C/SCA/3552/2015 ORDER with the relevant recruitment rules. A copy of the communication dated 26/03/2015 is annexed herewith and marked as Annexure- R-II.
4. I say and submit that based upon the communication inform of the opinion forwarded by the Collector, the Office of the Deponent had already taken a decision on 07/05/2015 to reject the proposal of regularization. A copy of the decision dated 07/05/2015 is annexed herewith and marked as Annexure R-III.
5. I say and submit that the chief officer is blowing hot and cold at the same tie as on one by way of communication dated 26/03/2015 he informs the Collector upon query raised by the Collector that the proposal is not in consonance with the recruitment rules and on the other hand the Chief Officer is filing such affidavit before the Hon'ble Court taking contrary stands
6. I say and submit that the appointment of the petitioners is made by the Nagarpalika without seeking prior approval and without following the due process of recruitment. I say and submit that the appointments of the employees of the Umreth Nagarpalika are governed by their recruitment and service rules which have been approved by the Director of Municipality vide notification dated 17/09/2009. The resolution dated 17/09/2009 provides for schedule which is in form of chart specifying the Education Qualification, Experience and other criterias. A copy of the resolution dated 17/09/2009 is annexed herewith and marked as Annexure R-IV along with the schedule attached there to.
7. I say and submit that the Nagarpalika at the time of forwarding the proposal to the office of the deponent herein has not provided any detail with respect to the qualifications possessed by the petitioners in light of the fact that whether the petitioners possess the requisite qualifications prescribed or not.
8. I say and submit that as against the sanction course which are to be filled by way of direct recruitment, the authorities are required to take into consideration the requisite qualifications which Page 8 of 35 HC-NIC Page 8 of 35 Created On Tue Mar 22 01:26:25 IST 2016 C/SCA/3552/2015 ORDER have been clearly specified in the recruitment rules of the Nagarpalika. I say and submit that the authorities can not grant any approval dehors the provisions of the recruitment rules.
9. I say and submit that under the provisions of section 50 of the Gujarat Municipalities Act, 1963, the Director of Municipality accords sanction to creation of the post of officers and servants. I say and submit that the Director of Municipalities under the provisions of Act can only provide sanction for a set up however, the Director of Municipalities does not have any power or authority under the provisions of law to issue any directions for absorption of employees.
4. It appears from the stance of the respondent No.1 that the petitioners cannot be regularized in service since they were not appointed by a regular recruitment process. The second ground on which the proposal has been rejected is that the educational qualifications have not been mentioned in the proposal which was forwarded by the Nagarpalika, and thirdly, the Collectors opinion is to the effect that the proposal which was forwarded by the Nagarpalika was not in accordance with the rules and regulations.
5. It is very sad to note that at a point of time, a particular Chief Officer of the Nagarpalika forwarded the proposal to the Director, Municipalities for regularization of the services of the petitioners herein, whereas a successor in office is of the view that the proposal which was forwarded by his predecessor in office was not in accordance with the rules and regulations. The respondents are unmindful of the fact that here are the petitioners who have worked for 35 years at a stretch with the Nagarpalika. If any information is lacking, then the same could have been called for, but it seems that the proposal has been outright rejected. The Chief Officer of the Umreth Nagarpalika shall prepare a fresh proposal in accordance with the rules and regulations and this time prescribing the qualifications of each of the petitioners in the proposal and then forward the same to the Collector, Anand and the Collector, Anand, in turn, shall forward the same with his recommendations to the Director of Municipalities, State of Gujarat.
6. I may only say one thing that the petitioners were appointed almost 35 years back on the establishment.Page 9 of 35
HC-NIC Page 9 of 35 Created On Tue Mar 22 01:26:25 IST 2016 C/SCA/3552/2015 ORDER The insistence for a particular procedure which ought to have been adopted at the time of their appointment appears to be a little unreasonable. Having regard to the fact that they have put in almost more than three decades of service and are on the verge of retirement, their case deserves to be considered sympathetically.
7. The fresh proposal shall be forwarded within a period of 15 days from the date of the receipt of the writ of the order, and the Collector, in turn, shall forward it to the Director within a period of 15 days thereafter. The Director shall take appropriate decision in accordance with law within a period of 15 days from the date of the receipt of the proposal from the Collector, Anand.
8. It is needless to clarify that by the time this exercise is completed, if any of the petitioners retires from service, then if the proposal is accepted, the benefit of the same shall be extended to him.
9. Let this matter appear for further hearing on 4th September, 2015."
Lastly, on 4th September 2015, this Court passed the following order :
"Shri Swapneshwar Gautam, learned Assistant Government Pleader appearing for the respondent-State, has submitted that pursuant to the Court's direction, since a fresh proposal has been forwarded by the Umreth Municipality to the Collectorate and the Collectorate, in turn, forwarded it to the Director on August31, 2015 and the Director is required to consider and take appropriate decision within a fortnight in accordance with law, he has prayed for some time.
Let the matter appear on September 21, 2015. The required consideration shall be done within a period of fortnight and the Court be apprised of the outcome of the same by September 21, 2015.
Let the matter appear on September 21, 2015."
In the morning when the matter was taken up for hearing, the learned counsel appearing for the petitioners invited my attention to the order passed by this Court dated 23rd July 2015, more particularly, Page 10 of 35 HC-NIC Page 10 of 35 Created On Tue Mar 22 01:26:25 IST 2016 C/SCA/3552/2015 ORDER the observations made in paragraphs 6 and 7 therein.
Having regard to the same, I inquired with Mr.Antani, the learned AGP, about the developments, if any, in the matter. From the order dated 23rd July 2015, it transpires that the Director of Municipalities was to take an appropriate decision as regards the proposal forwarded by the Collector. Mr.Antani requested that the matter be kept at 2:30 pm. so that he can take appropriate instructions.
In the second session when the matter is taken up for hearing, Mr.Antani places on record a communication from the office of the Director of Municipalities addressed to the Collector, informing that nothing is to be done in the matter as way back on 8th April 2015 the proposal for regularization was rejected.
It was expected of the Director to assign some reasons while rejecting the proposal of the Nagarpalika forwarded through the Collector for regularization of service of the three petitioners.
The manner in which the matter has been dealt with leaves me with no other option but to issue a writ for regularization of the services of the petitioners. In my order dated 23rd July 2015, I made myself very clear that the petitioners were appointed almost 35 years back and were on the verge of retirement and, therefore, their case deserved to be considered sympathetically. Far from considering the case sympathetically, the case does not seem to have even considered remotely. It is just an eye-wash.
I had also made myself clear that in the mean time if the petitioners retire, then the benefits of the regularization be calculated and extended to the petitioners.
Page 11 of 35HC-NIC Page 11 of 35 Created On Tue Mar 22 01:26:25 IST 2016 C/SCA/3552/2015 ORDER I am told that the petitioners have retired. Even after a long drawn litigation and running from pillar to post, they were unable to get their services regularized while they were in service.
Mr.Antani, the learned AGP appearing for the State Government relied on a decision of the Supreme Court in the case of Secretary to Government, School Education Department, Chennai v. Thiru R.Govindaswamy and others, (2014)4 SCC 769, wherein the Supreme Court has taken the view that the High Courts, in exercise of power under Article 226 of the Constitution of India should not issue directions for regularization, absorption or permanent continuance, unless the employees claiming regularization had been appointed in pursuance to a regular recruitment in accordance with the relevant rules in an open competition against the sanctioned vacant post.
I may only say that the petitioners were appointed 35 years back. They have worked on the sanctioned post but at no point of time the Nagarpalika thought fit to undertake any regular recruitment although the posts were vacant. They did not continue for 35 years on some interim orders of the Court. They have worked with the Nagarpalika but, unfortunately, under the label of being temporary employees. There cannot be a gross case of unfair labour practice and exploitation of the lower strata of the employees than the one in hand. In my view, the decision of the Supreme Court referred to above needs to be understood in the facts of that case and it does not lay down an absolute proposition of law that the High Courts cannot issue a writ under Article 226 of the Constitution of India.
This Court, in one of its recent pronouncements dated 4th February 2016 in Special Civil Application No.10829 of 2003 and allied matters, has explained in details how in these type of cases Page 12 of 35 HC-NIC Page 12 of 35 Created On Tue Mar 22 01:26:25 IST 2016 C/SCA/3552/2015 ORDER Articles 14 and 16 are violated. Let me quote the observations made from paragraph 78 onwards upto para 120 :
"78 In U.P. State Electricity Board vs. Pooran Chandra Pandey and others, 2007 (7) Supreme Today 374, the Supreme Court observed in paras 18 and 19 as under:
"18. We may further point out that a seven Judge Bench decision of this Court in Maneka Gandhi vs. Union of India & Anr. AIR 1978 SC 597 has held that reasonableness and non-arbitrariness is part of Article 14 of the Constitution. It follows that the government must act in a reasonable and non-arbitrary manner otherwise Article 14 of the Constitution would be violated. Maneka Gandhis case (supra) is a decision of a seven Judge Bench, whereas Uma Devis case (supra) is a decision of a five Judge Bench of this Court. It is well settled that a smaller bench decision cannot override a larger bench decision of the Court. No doubt, Maneka Gandhi's case (supra) does not specifically deal with the question of regularization of government employees, but the principle of reasonableness in executive action and the law which it has laid down, in our opinion, is of general application.
19. In the present case many of the writ petitioners have been working from 1985 i.e. they have put in about 22 years service and it will surely not be reasonable if their claim for regularization is denied even after such a long period of service. Hence apart from discrimination, Article 14 of the Constitution will also be violated on the ground of arbitrariness and unreasonableness if employees who have put in such a long service are denied the benefit of regularization and are made to face the same selection which fresh recruits have to face."
79 In State of Jharkhand (supra), the Supreme Court, while explaining the role of the State as a model employer and its responsibility to sustain social and economic security, observed in paras 52, 53, 54, 55, 56 and 57 as under:
"52. Having regard to the position that has emerged, we are compelled to dwell upon the role of the State as a model employer. In Som Prakash Rekhi v. Union of India(1981) 1 SCC 449 : (AIR 1981 SC 212), Krishna Iyer, J., has stated thus:
"70. Social justice is the conscience of our Constitution, the State is the promoter of economic Page 13 of 35 HC-NIC Page 13 of 35 Created On Tue Mar 22 01:26:25 IST 2016 C/SCA/3552/2015 ORDER justice, the founding faith which sustains the Constitution and the country is Indian humanity. The public sector is a model employer with a social conscience not an artificial person without soul to be damned or body to be burnt."
53. In Gurmail Singh and others v. State of Punjab and others (1991) 1 SCC 189 : (AIR 1993 SC 1388) it has been held that the State as a model employer is expected to show fairness in action.
54. In Balram Gupta v. Union of India and another 1987 (Supp) SC 228 : (AIR 1987 SC 2354), the Court observed that as a model employer the Government must conduct itself with high probity and candour with its employees.
55. In State of Haryana v. Piara Singh (1992) 4 SCC 118 :
(AIR 1992 SC 2130 : 1992 AIR SCW 2315) the Court has ruled that the main concern of the court in such matters is to ensure the rule of law and to see that the Executive acts fairly and gives a fair deal to its employees consistent with the requirements of Articles 14 and 16.
56. In Bhupendra Nath Hazarika and another v. State of Assam and others .(2013) 2 SCC 516 : (AIR 2013 SC 234 :
2013 AIR SCW 401), while laying emphasis on the role of the State as a model employer, though in a different context, the Court observed:
"65...It should always be borne in mind that legitimate aspirations of the employees are not guillotined and a situation is not created where hopes end in despair. Hope for everyone is gloriously precious and a model employer should not convert it to be deceitful and treacherous by playing a game of chess with their seniority. A sense of calm sensibility and concerned sincerity should be reflected in every step. An atmosphere of trust has to prevail and when the employees are absolutely sure that their trust shall not be betrayed and they shall be treated with dignified fairness then only the concept of good governance can be concretised."
57. If the present factual matrix is tested on the anvil of the aforesaid principles, there can be no trace of doubt that both the States and the Corporations have conveniently ostracized the concept of "model employer". It would not be wrong to say that they have Page 14 of 35 HC-NIC Page 14 of 35 Created On Tue Mar 22 01:26:25 IST 2016 C/SCA/3552/2015 ORDER done so with Pacific calmness, sans vision, shorn of responsibility and oblivious of their role in such a situation. Their action reflects the attitude of emotionlessness, proclivity of impassivity and deviancy with cruel impassibility. Neither of the States nor the Corporations have even thought for a moment about the livelihood of the employees. They have remained totally alien to the situation to which the employees have been driven to. In a State of good governance the Government cannot act like an alien. It has an active role to play. It has to have a constructive and progressive vision. What would have ordinarily happened had there not been bifurcation of the State and what fate of the employees of BHALCO would have faced is a different matter altogether. The tragedy has fallen solely because of the bifurcation. True it is, under the law there has been bifurcation and the Central Government has been assigned the role to settle the controversies that had to arise between the two States. But the experimentation that has been done with the employees as if they are guinea pigs is legally not permissible and indubitably absolutely unconscionable. It hurts the soul of the Constitution and no one has the right to do so."
80 In the case of Chief Conservator of Forest and another vs. Jagannath Maruti Kandhare and another [AIR 1996 SC 2898], the Supreme Court held as under:
"18. This takes us to the second main question as to whether on the facts of the present case could it be held that the appellants were guilty of adopting unfair labour practice. As already pointed out, the respondents alleged the aforesaid act by relying on what has been stated under item 6 of Schedule IV of the State Act which reads as below :
"To employ employee as "badlis", casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent employees".
19. The Industrial Court has found the appellants as having taken recourse to unfair labour practice in the present case because the respondents workmen who had approached the Court had admittedly been in the employment of the State of 5 to 6 years and in each year had worked for period ranging from 100 to 330 days. Ms. Jaising draws our attention in this context to the statement filed by the appellants themselves before the Page 15 of 35 HC-NIC Page 15 of 35 Created On Tue Mar 22 01:26:25 IST 2016 C/SCA/3552/2015 ORDER Industrial Court, a copy of which is at pages 75 to 76 of C.A.No.4375/90. A perusal of the same shows that some of the respondents had worked for a few days only in 1977 and 1978, though subsequently they themselves had worked for longer period, which in case of Gitaji Baban Kadam, whose name is at serial No.4 went up to 322 in 1982, though in 1978 he had worked for 412 days. (Similar is the position qua some other respondents).
21. Shri Dholakia would not agree to this submission as, according to him, the item in question having not stopped merely by stating about the employment of persons as casuals for years being sufficient to describe the same as unfair labour practice, which is apparent from what has been in the second part of the item, it was the burden of the workmen to establish that the object of continuing them for years was to deprive them of the status and privileges of permanent employees. Ms. Jaising answers this by contending that it would be difficult for any workmen to establish what object an employer in such a matter has, as that would be in the realm of his subjective satisfaction known only to him. She submits that we may not fasten a workman with such a burden which he cannot discharge.
22.We have given our due thought to the aforesaid rival contentions and, according to us, the object of the State Act, inter alia, being prevention of certain unfair labour practices, the same would be thwarted or get frustrated if such a burden is placed on a workman which he cannot reasonably discharge. In our opinion, it would be permissible on facts of a particular case to draw the inference mentioned in the second part of the item, if badlis, causals or temporaries are continued as such for years. We further state that the present was such a case inasmuch as from the materials on record we are satisfied that the 25 workmen who went to Industrial Court of Pune (and 15 to Industrial Court, Ahmednagar) had been kept as casuals for long years with the primary object of depriving them the status of permanent employees inasmuch as giving of this status would have required the employer to pay the workmen at a rate higher than the one fixed under the Minimum Wages Act. We can think of no other possible object as, it may be remembered that the Pachgaon Parwati Scheme was intended to cater to the recreational and educational aspirations also of the populace, which are not ephemeral objects, but par excellence permanent. We would say the same about environment pollution care Page 16 of 35 HC-NIC Page 16 of 35 Created On Tue Mar 22 01:26:25 IST 2016 C/SCA/3552/2015 ORDER work of Ahmednagar, whose need is on increase because of increase in pollution. Permanancy is thus writ large on the face of both the types of work. If, even in such projects, persons are kept in jobs on casual basis for years the object manifests itself; no scrutiny is required. We, therefore, answer the second question also against the appellants."
81 The Supreme Court in Durgapur Casual Workers Union vs. Food Corporation of India [(2014) 13 Scale 644] observed as under:
"19. Almost similar issue relating to unfair trade practice by employer and the effect of decision of Umadevi (3) in the grant of relief was considered by this Court in Ajaypal Singh v. Haryana Warehousing Corporation in Civil Appeal No.6327 of 2014 decided on 9th July, 2014. In the said case, this Court observed and held as follows:
"20. The provisions of Industrial Disputes Act and the powers of the Industrial and Labour Courts provided therein were not at all under consideration in Umadevi's case. The issue pertaining to unfair labour practice was neither the subject matter for decision nor was it decided in Umadevi's case.
21. We have noticed that Industrial Disputes Act is made for settlement of industrial disputes and for certain other purposes as mentioned therein. It prohibits unfair labour practice on the part of the employer in engaging employees as casual or temporary employees for a long period without giving them the status and privileges of permanent employees."
82 It appears that the Government thought fit to do away with the policy only with a view to overcome the judgment rendered in the Special Civil Application No.7464 of 1996 by a learned Single Judge of this Court. The reference of which is in para 34 of the judgment, which was affirmed by the Division Bench of this Court in appeal, and further reaffirmed by the Supreme Court.
83 I may reiterate without going into the issue for the present of retrospective operation or retroactive or prospective that the Government could not have continued the petitioners in the work charged establishment for thirty odd years and this action itself is unfair and unreasonable. The very action of the Government to cancel the Government Resolution from the date of its issue smacks of lack of bona fide.
Page 17 of 35HC-NIC Page 17 of 35 Created On Tue Mar 22 01:26:25 IST 2016 C/SCA/3552/2015 ORDER 84 Let me assume for the moment that there was no such Government Resolution at any point of time. Let me assume for the moment that there was no such policy to absorb the work charged employees on the temporary establishment on completion of five years of service, even then as a part of the social obligation, the Government was obliged to grant the status of temporary employment for the work charged as it cannot act arbitrarily and unreasonably.
85 The Heads of Departments under the Public Works Department were requested to ensure as regards making an appropriate proposal for conversion to temporary establishment. They were asked to submit separate proposals for each Division in an enclosed proforma giving justification for conversion of each individual post and indicating the norms which existed or standard for such posts or the norms which could have been fixed. Thus, an obligation was cast on the authority concerned, that is, the Heads of Departments for conversion of the work charged posts to temporary. Once it is not in dispute or shown that all the conditions for absorbing a person from the work charged on the temporary establishment existed, it becomes the duty that the authority exercises his power for the purpose for which such power has been vested in the authority.
86 Principle is succinctly stated by Lord Cairns more than a century ago in Julius v. Lord Bishop of Oxford:
"There may be something in the nature of the thing empowered to be done, something in the object for which it is to be done, something in the conditions under which it is to be done, something in the title of the person or persons for whose benefit the power is to be exercised, which may couple the power with a duty, and make it the duty of the person in whom the power is reposed to exercise that power when called upon to do so."
87 About enforceability of duty to exercise such power when conditions for the exercise of such power is established, through court was too accepted. Lord Cairns said :
"Where a power is deposited with a public officer for the purpose, of being used for the benefit of persons specifically pointed out with regard to whom a definition is supplied by the Legislature of the conditions upon which they are entitled to call for its exercise, that power ought to be exercised and the court will require it to be exercised."Page 18 of 35
HC-NIC Page 18 of 35 Created On Tue Mar 22 01:26:25 IST 2016 C/SCA/3552/2015 ORDER 88 The principle has withstood the test of time. The Supreme Court has consistently approved and applied the principle. The principle laid in Julius v. Lord Bishop was approved and applied in Punjab Sikh Regular Motor Service, Moudhapara v. Regional Transport Authority, Raipur and another [AIR 1966 SC 1318] by a Constitutional Bench of the Apex Court, while construing enabling power to renew a permit whose period had expired. The Court said :
"The exercise of such power of renewal depends not upon the discretion of the Authority but upon proof of particular case out of which such power arises."
89 In L. Hirday Narain v. I.T. Commr. [AIR 1971 SC 33], the Apex court approving the principle enunciated by Lord Cairns said :
"If a statute invests a public officer with authority to do an act in a specified set of circumstances, it is imperative upon him to exercise his authority in a manner appropriate to the case when a party interested and having a right to apply moves in that behalf and circumstances for exercise of authority are shown to exist. Even if the words used in the statute are prima facie enabling the Courts will readily infer a duty to exercise power which is vested in aid of enforcement of a right public or private of a citizen."
90 It appears that for years together, no such steps were taken by the Heads of Departments.
91 As observed by me earlier, the continuance of an employee for an indefinite long period in the work charged establishment results in denial of the legitimate emoluments due for the work discharged by such employee for the employer and a presumption arises that there exist permanent work for continued employing of such person for that purpose. Such a practice amounts to unfair labour practice and exploitation of the employee. Such practice clearly violates Articles 14 and 16 of the Constitution and also cannot be defended on the jejune ground that the exercise of power being in the discretion of the authority, such authority is not bound to exercise such power, and that there does not vest correspondingly an enforceable right in a person for whose benefit such provision has been made.
92 It now stands firmly ingrained in constitutional guarantee under Article 14 for equal protection of law that its protecting Page 19 of 35 HC-NIC Page 19 of 35 Created On Tue Mar 22 01:26:25 IST 2016 C/SCA/3552/2015 ORDER umbrella reaches all areas of state action which is unreasonable and arbitrary. Arbitrariness is antithesis of equality. I remind myself of what the Supreme Court said while laying bare the far reaching third but hither to undiscovered dimension of the fundamental rights enshrined in Articles 14 and 16, one of the specie of Article 14, said in E.P. Royappa v. State of Tamil Nadu [1974 AIR 555].
"Article 14 is the genus while Article 16 is a species....The basic principle which therefore, informs both Articles 14 and 16 is equality and inhibition against discrimination. ....Equality is a dynamic concept with many aspects and dimensions and it cannot be "cribbed, cabined and confined within traditional and doctrinaire limits. From a positivistic point of view, equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14, and if it affects any matter relating to public employment, it is also violative of Article 16. Articles 14 and 16 strike at arbitrariness in State action and ensure fairness and equality of treatment."
93 While cautioning that appointments made in public employment on ad hoc/casual/temporary basis breeds the abuse of Article 16 and is not to be countenanced, at the same time the court has recognised as a part of fair deal at the hands of state to its employees need to frame scheme for regularising services of such persons who had been working for long in such state of affairs, without a permanent status and rights equal to those who have been appointed permanently for discharging the same or similar work. The obligation of the state in this regard is explained and enunciated in State of Haryana v. Piara Singh (supra). The Apex Court said :
"The normal rule is regular recruitment through prescribed agency but exigencies of administration may sometimes call for an ad hoc or temporary appointment to be made. Secondly an ad hoc or temporary, employee should not be replaced by another ad hoc or temporary employee; he must be replaced only by a regularly selected employee. If for any reason an adhoc or temporary employee is continued for a fairly long spell, the authorities must consider his case for regularisation provided he is eligible and qualified according to rules Page 20 of 35 HC-NIC Page 20 of 35 Created On Tue Mar 22 01:26:25 IST 2016 C/SCA/3552/2015 ORDER and his service record is satisfactory and his appointment does not run counter to the reservation policy of the State."
94 These observations were made in regard to the appointments made on the regular establishment of the employee. However, the court clearly drew distinction between the ad hoc employee appointed to any post in the regular establishment and the work charged employees which are employed as a casual labour on need basis. The Court observed :
"So far as the members of the work charged employees and casual labour are concerned, the effort must be to regularise them as far as possible and as early as possible subject to their fulfilling the qualifications, if any, prescribed for the post and subject also to availability of work. If a casual labourer is continued for a fairly long spell say 2 or 3 years a presumption may arise that there is regular need for his services. In such a situation, it becomes obligatory for the concerned authority to examine the feasibility of his regularisation. While doing so, the authorities ought to adopt a positive approach coupled with an empathy for the person. As has been repeatedly stressed by this court, security of tenure is necessary for an employee to give his best to the job."
95 The very term 'unfair labour practice' indicates arbitrariness inherent in it. If the remedy against such arbitrariness in the action of employer in general has been accepted by legislature it cannot be less arbitrary if adopted by State or any of its instrumentality. Such an arbitrariness in the State action results in violation of Articles 14 and 16 cannot be over emphasised. In case an unfair labour practice is adopted by the State or its instrumentality, it brings in violation of Articles 14 and 16 of the Constitution. With this, comes in existence his right to seek its enforcement, even through constitutional remedies by invoking extraordinary jurisdiction of the High Court. Any arbitrary action of the State, correspondingly vest in the citizen so attested an enforceable right in not to be treated unfairly, arbitrarily and unjustly by the State in any sphere of its activities.
96 The issue received detailed consideration in the case of Daily Rated Casual Labour vs. Union of India [AIR 1987 SC 2342]. This case arose out of a claim made by the casual employees in the Post & Telegraph Department of Union of India at various places. While deprecating the classification of employees into regularly recruited employees and casual Page 21 of 35 HC-NIC Page 21 of 35 Created On Tue Mar 22 01:26:25 IST 2016 C/SCA/3552/2015 ORDER employees for the purpose of paying less than the minimum pay payable to employees in the corresponding regular cadres particularly in the lowest rungs on the department and further classifying such casual employees into three classes for the purpose of making different levels of payment of wages as violative of Article 14 & 16 of the Constitution, the Court said:
"India is a socialist republic. It implies the existence of certain important obligations which the State has to discharge. The right to work, the right to free choice of employment, the right to just and favourable conditions of works to jut and favourable remuneration ensuring a decent living for himself and him family, .......... and the right to security of work are some of the rights which have to be ensured by appropriate legislative and executive measures...... It is again for this reason that managements and the governmental agencies in particular should not allow workers to remain as casual labourers or temporary employees for an unreasonable long period of time. Where is any jurisdiction to keep persons as casual labourers for years as is being done in the Post and Telegraphs Department? Is it for paying them lower wages? It cannot be so because there is so much of development to be carried out in the communications department that you need more workers ...... Let us remember the slogan ;
"Produce or Perish". It is not an empty slogan. We fail to produce more at out own peril. It is against this background that we say that non-regularisation of temporary employees or casual labour for a long period is not a wise policy. We, therefore, direct the respondents to prepare a scheme on a rational basis for absorbing as far as possible the casual labourers who have been continuously working for more than one year in the Posts and telegraphs Department."
97 This positive mandate was issued by the Supreme Court to regularize the services of the casual workers on rational basis to give effect to the Constitutional mandate.
98 In Jacob M. Puthuparamibil v. Kerala Water Authority [1990 AIR 2228], the question arose in connection with the employees serving under the Kerala Water Authority. They were employed through the employment exchanges between 1st April, 1984 and 4th August, 1986. The petitions were filed apprehending termination of their services as their appointments were on temporary basis. The High Court dismissed the petitions which led to appeals before the Apex Page 22 of 35 HC-NIC Page 22 of 35 Created On Tue Mar 22 01:26:25 IST 2016 C/SCA/3552/2015 ORDER Court. Some petitions were also filed before the Supreme Court directly under Art, 32. The Court referred to Rule 9 which permitted to fill immediate vacancy in emergency temporarily otherwise then in accordance with law. Notwithstanding the rule required that such temporary employment should not continue for period exceeding three months i.e. 180 days and the person so temporarily appointed should be replaced as soon as possible by a member of the service or an approved candidate qualified to hold the post under the said rules but their urgent temporary appointments continued for longer period. The Court referred to Part III of Constitution and said:
"The Constitution guarantees 'equality', abhors discrimination, prohibits and penalises forced labour in any form whatsoever and extends protection against exploitation of labour including child labour. After extending these guarantees, amongst others, the Constitution makers proceeded to chart out the course for the governance of the country in Part IV of the Constitution entitled 'Directive Principles of State Policy'. These principles reflect the hopes and aspirations of the people. Although the provisions of this part are not enforceable by any court, the principles laid down therein are nevertheless fundamental in the governance of the country and the State is under an obligation to apply them in making laws. The principles laid down therein, therefore, define the objectives and goals which the State must endeavour to achieve over a period of time. Therefore whenever the State is required to make laws it must do so consistently with these principles with a view to securing social and economic freedom so essential for the establishment of an egalitarian society. This part, therefore, mandates that the state shall strive to promote the welfare of the people by minimising the inequalities ...... and by making effective provision for securing the right to work as also to public assistance in cases of unemployment, albeit within the limits of its economic capacities. ...... Thus the Preamble promises socioeconomic justice, the fundamental rights confer certain justiciable socioeconomic rights and the Directive Principles fix the socioeconomic goals which the State must strive to attain. These three together constitute the core and conscience of the Constitution."
99 The Court then referred to earlier decisions of the Supreme Court in P.K. Narayani v. State of Kerala [1995 SCC (1) 142], and the Dally rated Casual Labour employed under P & T Deptt. through Bhartiya Dak Tar Mazdoor Manch v. Union of India [(1988) 1 SCC 122], and directed the regularisation of the four Page 23 of 35 HC-NIC Page 23 of 35 Created On Tue Mar 22 01:26:25 IST 2016 C/SCA/3552/2015 ORDER categories of employees.
100 In State of Haryana v. Piara Singh (supra), the problem arising from irregular appointment and long continued ad hoc temporary employment received more wholesome attention.
101 While emphasising that the normal rule is that regular recruitment should be through prescribed agency but countenanced that the exigencies may call some times for an ad hoc/temporary employees by a regularly selected employee as early as possible and that ad hoc or temporary employee should not be replaced by another ad hoc or temporary employee but he must be replaced only by a regularly selected employee. This is necessary to avoid arbitrary action on the part of the appointing authority. 102 However, the Court also noticed equities arising from continued temporary employment for a fairly long spell and said:
"If for any reason, an ad hoc or temporary employee is continued for a fairly long spell, the authorities must consider his case for regularisation provided he is eligible and qualified according to rules and his service recorded is satisfactory and his appointment does not run counter to the reservation policy of the State. The proper course would be that each State prepares a scheme, if one is not a already in vogue, for regularisation of such employees consistent with its reservation policy and if a scheme is already framed, the same may be made consistent with our observations herein so as to reduce avoidable litigation in this behalf.
103 More importantly, the Court observed in relation to workmen coming under the umbrella of the Industrial Disputes act and other welfare legislations by noting the status of the work charged employees and said:
"So far as work-charged employees and casual labour are concerned, the effort must be to regularise them as far as possible and as early as possible subject to their fulfilling the qualifications, if any, prescribed for the post and. subject also to availability of work. If a casual labourer is continued for a fairly long spell say two or three years a resumption may arise that there is regular need for his services. In such a situation, it becomes obligatory for the concerned authority to examine the feasibility of his regularisation. While doing so, the authorities ought to adopt a positive approach coupled with an empathy for the person. As has been repeatedly stressed by this Court, security of tenure is necessary for Page 24 of 35 HC-NIC Page 24 of 35 Created On Tue Mar 22 01:26:25 IST 2016 C/SCA/3552/2015 ORDER an employee to give his best to the job. ............ These are but a few observations which we though it necessary to make, impelled by the facts of this case, and the spate of litigation by such employees. They are not exhaustive nor can they be understood as immutable. Each Government or authority has to devise its own criteria or principles for regularisation having regard to all the relevant circumstances, but while doing so, it should bear in mind the observations made herein."
104 While holding in principle that the employee whose entry in service is illegal being in total disregard of recruitment rules or being not on existing vacancy, has no case for regularisation, distinction was pointed out by the Supreme Court between the cases requiring regularisation and the cases in which regularisation of services cannot be considered in Ashwani Kumar v. State of Bihar [AIR 1997 SC 1628], the Court said:
"In this connection it is pertinent to note that question of regularisation in any service including any Government service may arise in two contingencies Vacancies which are of a long duration appointments are made on ad hoc basis or daily wage basis by a competent authority and are continued from time to time and incumbents have continued to be employed any artificial breaks, and their services are otherwise required by the institution which employees them, a time may come in the service career of such employees who such an employees must be made against an available sanctioned vacancy by following the rules and regularisation may arise would be when the initial entry of the employees against an available vacancy is found to have suffered from some flow in the procedural exercise though the person appointing is competent to effect such initial recruitment and has otherwise followed due procedure for such recruitment. A need may then arise in the light of the exigency of administrative requirement for waiving such irregularity in the initial the irregular initial appointment may be made available to the concerned initial entry must not be found to be of all the established rules and in any case back door entries for filling up such vacancies have got to be strictly avoided. However, there would never arise any occasion for regularising the appointment of an employees whose initial entry itself is tainted and is in total breach of the requisite procedure of recruitment and especially when there is no vacancy on which such an initial entry of the candidate could ever be effected. tainted from the very beginning and no Page 25 of 35 HC-NIC Page 25 of 35 Created On Tue Mar 22 01:26:25 IST 2016 C/SCA/3552/2015 ORDER entrant would ever survive for recruiting this latter class of cases."
105 In the case of Gujarat Agriculture University v. Labhu Bechar [AIR 2001 SC 201], the Supreme Court again had the occasion to consider the issue about the concept of prolonged temporary casual appointment and the obligation of the State or instrumentality of the State towards such employees for regularisation. The appellant before the Supreme Court was the Gujarat Agricultural University, which is fully aided by the State of Gujarat and is engaged in educational activities in agriculture and allied sciences and humanity and is also prosecuting research in agriculture and other allied sciences. It engaged daily rated workers for its various activities. Those workers were paid as per the minimum wages fixed by the State Govt. from time to time. Such persons were engaged due to the exigencies of work without considering the relevant factors about their educational qualification, age limit and other relevant requirements for the purpose of regular appointment under the recruitment rules. Those daily rated workers employed at the different agricultural research centres at different places with different projects were unskilled, semiskilled, skilled and field labourers of the different categories. Since the University is grant-in-aid institution fully funded by the State Government, it requires prior sanction by the State Government for appointment of its employees. In fact, all the posts sanctioned by the State Government were filled by the University as per the recruitment rules. But in the case of daily wage workers who were plumbers, carpenters, sweepers, pump operators, helpers and masons etc., no posts were sanctioned for them and hence they were working on daily rate basis, thus, their appointment were on irregular basis and not in accordance with the recruitment rules. In the aforesaid scenario, the appellant Gujarat agricultural University had contested the claims of its workmen for regularisation and permanent status. A Single Judge of this Court relying on the decision of the Supreme Court in Daily rated casual labour employed under P & T Deptt. through Bhartiya Dak Tar Mazdoor Manch v. Union of India [(1988) 1 SCC 122], in the case of Gujarat Agricultural University v. Rathod Labour Bechar (supra), had directed the Gujarat Agricultural University to submit scheme for conferring regularisation and also directed that such a scheme of giving permanent status could not be confined to the workmen before the Court as large number of such workers were involved, disputes about which were pending in various labour Courts, and with the suggestion that it would be fair and just instead of making multiple schemes for such purpose separately in each case to frame a comprehensive scheme for the purpose of considering all Page 26 of 35 HC-NIC Page 26 of 35 Created On Tue Mar 22 01:26:25 IST 2016 C/SCA/3552/2015 ORDER pending litigations. Appeal against that order was dismissed by a Division Bench and further appeal before the Supreme Court during the course of which the appellant Gujarat Agricultural University challenged the direction of framing a scheme of regularisation for its workmen in a phased manner. It is in the aforesaid circumstances that the right to claim regularisation was questioned by the University. The Court observed:
"It is also well settled, if work is taken by the employer continuously from daily wage workers for a long number of years without considering their regularisation for its financial gain as against employees legitimate claim, has been held by this Court repeatedly as an unfair labour practice. 106 Therefore, the Court denouncing the new culture of taking work from the daily wage worker or ad hoc appointee for a long time either for financial gain or for controlling workers more effectively with the sword of democles hanging over their heads, said:
"If the work is of such nature, which has to be taken continuously and in any case when this pattern become apparent, when they continue to work for year after year, only option to the employer is to regularise them ...... In such situation a legal obligation is cast on an employer if there be vacant post to fill it up with such workers in accordance with rules if any and where necessary by relaxing the qualifications, where long experience could be equitable with such qualifications. If no post exists then duty is cast to assess the quantum of such work and create such equivalent post for their absorption."
107 The Court buttressed this conclusion by referring to Daily rated casual labour employed under P & T Deptt. through Bhartiya Dak Tar Mazdoor Manch v. Union of India (supra), State of Haryana v. Piara Singh (supra), Surender Singh v. Engineer-in-Chief, CPWD [(1986) 1 SCC 639], Mool Raj Upadhavava v. State of Himachal Pradesh [1994 Supp (2) SCC 316], Dharwad Distt. PWD Literate daily wages employees Association v. State of Karnataka [(1990) 2 SCC 396], Bhagwati Prasad v. Delhi State Mineral Development Corporation [(1990) 1 SCC 361] and large number of other cases also.
108 From the aforesaid discussion, it is apparent that the Supreme Court has viewed the continuance of employment on temporary, casual and ad hoc basis to be an act of arbitrariness violative of Articles 14, 16 & 21 of the Constitution read in light of the Directive Principles of State Policy enshrined in Articles 39, 41 & 42 of the Constitution. The test of reasonableness in State action pervades the constitutional scheme particularly Page 27 of 35 HC-NIC Page 27 of 35 Created On Tue Mar 22 01:26:25 IST 2016 C/SCA/3552/2015 ORDER with reference to Articles 14 & 21 which confines its positive manifestation and expression in the lofty ideal of social and economic justice which inspires and animates the Directive Principles and that Article 14 strikes at arbitrariness in State action.
109 In Central Inland Water Transport Corporation Ltd. v. Brojo Nath (2B) [1986 AIR 1571], the Court said:
"...... State actions, including actions of the instrumentalities and agencies of the stale, must not only be in conformity with the Fundamental Rights guaranteed by Part 111 but must also be in accordance with the Directive Principles of State Policy prescribed by Part IV. Clause (a) of Article 39 provides that the Stale shall, in particular, provides that the State shall, in particular, direct its policy towards "securing that the citizens, men and women, equally have the right to adequate means of livelihood." Article 41 requires the State, within the limits of its economic capacity and development to "make effective provisions for securing the right to work". An adequate means of livelihood cannot be secured to the citizens by taking away without any reason the means of livelihood. The mode of making "effective provision for securing the right to work" cannot be by giving employment to a person and then without any reason throwing him out of employment. The action of an instrumentality or agency of the State, if it frames a service rule such as Clause (a) of Rule 9 of a rule analogous thereto would, therefore, not only be violative of Article 19 but would also be contrary to the Directive Principles of State Policy contained in Clause (a) of Article 39 and in Article 41."
110 In this connection, following observations from the Supreme Court in Bandhua Mukti Morcha v. Union of India [1984 SCR (2) 67], also invite my attention.
"It is the fundamental right of every one in this country, assured under the interpretation given to Article 21 by this Court in Francis Mullin's case (AIR 1980 SC 849) to live with human dignity free from exploitation. This right to live with human dignity enshrined in Article 21 derives its life breath from the Directive principles of State Policy and particularly Clauses (e) and (f) of Article 39 and Articles 41 and 42."
The Court went on to say after observing that the Directive Principles of State Policy contained in Clauses (e) and (f) of Page 28 of 35 HC-NIC Page 28 of 35 Created On Tue Mar 22 01:26:25 IST 2016 C/SCA/3552/2015 ORDER Article 39, Article 41 are not enforceable in a Court of law, it may not be possible to compel the State through judicial process to make law "But where legislation is already enacted by the State providing those requirements to the workmen and thus investing their right to live with basic human dignity, with concrete reality and content, the State can certainly be obligated to ensure observance of such legislation for inaction on the part of the State in securing implementation of such legislation would amount to denial of the right to live with human dignity enshrined in Article 256 which provides that, the executive power of every state shall be so exercised as to ensure shall be so exercised as to ensure compliance with the laws made by Parliament and any existing laws which apply in that State. The Slate is under a constitutional obligation to see that there is no violation of the fundamental right of any person, particularly when the belongs to the weaker sections of the community and is unable to wage a legal battle against a strong and powerful opponent who is exploiting him. The Central government is therefore bound to ensure observance of various social welfare and labour laws enacted by parliament for the purpose of securing to the workmen a life of basic human dignity in compliance with the Directive Principles of State Policy."
111 With these premise the Court held that State of Haryana cannot be permitted to deny benefits of various social welfare and labour laws enacted with a view to enabling them to live a life of human dignity. The State must therefore ensure that the employers observe various social welfare and labour laws enacted for the benefit of the workmen. This is a constitutional obligation which can be enforced against the Central Government and the State by a writ petition under Article 32 of the Constitution.
112 Thus the implementation of law to give effect to Directive Principles of State Policy are also enshrined in Articles 39, 41 & 42 as has been placed on such high pedestal to be enforceable as the fundamental Rights by invoking Article 39 of the Constitution.
113 Likewise, in Union of India v. Hindustan Development Corporation [1993 SCR (3) 128], on the interplay of Articles 14, 19 and 21 of Part III of the Constitution and Directive Principles of the State Policy, the Court said:
"now coming to the test of reasonableness which pervades the constitutional scheme, the Court in several cases particularly with reference to Articles 14, 19 and 21 has considered this concept of reasonableness and had Page 29 of 35 HC-NIC Page 29 of 35 Created On Tue Mar 22 01:26:25 IST 2016 C/SCA/3552/2015 ORDER held that the same finds its positive manifestation and expression in the lofty ideal of social and economic justice which inspires and animates the Directive Principles and that Article 14 strikes at arbitrariness in State action."
114 Reference was made by the Court in this connection to the cases of E.P. Royappa v. State of Tamil Nadu [1974 SCR (2) 348], Meneka Gandhi v. Union of India [1978 SCR (2) 621] and Kasturi Lal Lakshmi Reddy v. State of & Kashmir [1980 SCR (3)1338].
115 It may be noticed that prior to the decision in Royappa's case, the test of reasonableness in Article 14 was confined to examine case of discrimination on the touchstone of reasonableness of classification having a rationale nexus to the object sought to be achieved by such classification. But in Royappa's case, the Apex Court opined the most potent and positivist dimension of the spirit and soul of Article 14 cutting at the roots of arbitrariness, unreasonableness and unfairness in every sphere of State action.
116 After posing the question: "Now what is the content and reach of this great equalising principle", the Court observed:
"It is a founding faith, to use the words of Bose, J., "a way to life", and it must not be subjected to a narrow pedantic or lexicographic approach. We cannot countenanced any attempt to truncate its all embracing scope and meaning, for to do so would be to violate its activist magnitude. Equality is a dynamic concept with many aspects and dimensions and it cannot be "cribbed, cabined and confined" within traditional and doctrinaire limits. From a positivistic point of view, equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14, and if it affect any matter relating to public employment, it is also violative of Article 16. Articles 14 and 16 strike at arbitrariness in State action and ensure fairness and equality of treatment. They require that State action must be based on valid relevant principles applicable alike to all similarly situate and it must not be guided by any extraneous or irrelevant considerations because that would be denial of equality."Page 30 of 35
HC-NIC Page 30 of 35 Created On Tue Mar 22 01:26:25 IST 2016 C/SCA/3552/2015 ORDER Coming to the temporary and hoc appointments, the Court said:
"It is also necessary to point out that ambit and reach of Articles 14 & 16 are not limit to cases where public servant affected has a right to a post. Even if a public servant is in an officiating position, he can complain of violation of Articles 14 and 16 if he has been arbitrarily or unfairly treated or subjected to mala fide exercise of power by the State machine, it is, therefore, no answer to the charge of infringement of Articles Hand 16 to say that the petitioner had no right to the post of Chief Secretary but was merely officiating in that post."
117 The view was reiterated by the Court in Maneka Gandhi's case and Ajay Hasiya's case. In Maneka Gandhi's case the Court said:
"No attempt should be made to truncate its also embracing scope and meaning, for to do so would be to violate its magnitude. Equality is a dynamic concept with many aspects and dimensions and it cannot be imprisoned within traditional and doctrinaire limits. Equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic which the other to the whim and caprice of an absolute monarch. Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment. The principle of reasonableness which legally as well as philosophically, is an essential element of equality or non-arbitrariness pervades Article 14 like a brooding omnipresence and the procedure contemplated by Article 21 must answer the test of reasonableness in order to be in conformity with Article 14 to must be right and just and fair and not arbitrary, fanciful or oppressive."
118 The principle was reiterated in Ajay Hasiya's case [1981 AIR 487 : 1981 SCR (2) 79].
119 On the aforesaid premise, the requirements of the State to consider regularisation as a positivist, in its manifestation of fundamental right under Articles 14, 16 & 21 of the Constitution as animated in Directive Principles of State Policy and law enacted by Parliament on the subjects enumerated in the Concurrent list entries No.21, 21 & 24 in the form of Industrial Disputes act, and the provisions made thereunder and the right to remedy against indefinite continuance in the service without the permanent status and regular employment Page 31 of 35 HC-NIC Page 31 of 35 Created On Tue Mar 22 01:26:25 IST 2016 C/SCA/3552/2015 ORDER resulting in unfair labour practice is a part of the Fundamental right.
120 To sum up the principle deduced from the long chain of decided cases it can be said to be well settled:
"(i) In the matter of Government service normal rule is regular recruitment through prescribed agency, the recruitment of ad hoc or temporary hands is an exceptional leeway permitted due to exigencies of administration. In such a fact situation the endeavour will also be to replace such temporary employee by regular selected employees.
(ii) that law does not favour ad hoc or temporary employment continuing for long spells, as it breeds unhealthy and unreasonable service environment endangering industrial peace perilously affecting dignity and quality of life of those whose security of work is under constant threat.
(iii) Article 14 of the Constitution is embodiment of rule against arbitrariness and unreasonableness in the State action in all spheres of its activities. Article 21 of the Constitution which guarantees protection against deprivation of life and personal liberty includes within it the right to dignified livelihood. Article 39(d) spells out the directive principles of the State policy towards securing equal pay for equal work for both woman and man and Article 42 stipulates the Directive Principles of the State policy in securing just and humane conditions of work.
(iv) equal pay for equal work and security of employment by regularising casual employees of long duration within a reasonable period have been unanimously accepted as Constitutional goal to our policy. To this end, thrust has been that the management particularly Govt. agencies should not allow workers to remain as casual labourers or temporary employees for unreasonably long period of time.
(v) mere continuation for some period on ad hoc by itself does not give a right to permanency but where for any reason ad hoc or temporary or work charged employees are continued for fairly long spell they have a right to claim regularisation and the authorities are under obligation to consider their case for regularisation in a fair manner.Page 32 of 35
HC-NIC Page 32 of 35 Created On Tue Mar 22 01:26:25 IST 2016 C/SCA/3552/2015 ORDER
(vi) regularisation cannot be resorted to by the governmental agencies as mode of fresh recruitment to permit back door entries to frustrate the mandate of Article 16 by making a straight jacket measure of service for regularising the appointment made de hors the rules, unmindful of the circumstances under which the appointment had been made.
(vii) the first condition for laying claim for regularisation is availability of work on reasonably permanent basis. Mere continuance for some time of a casual or ad hoc employee does not give right to presume about need for continued employment or work charged but continuation of casual or ad hoc employee or work charged for a long duration of several years raises a presumption for need for regular permanent employment may be justified.
(viii) Apart from the right to reasonable treatment by the State agencies and security of job emanating from the Constitutional provisions, Industrial Disputes Act is a legislative measure giving effect to the directive principles of State Policy in the field of ensuring equal pay for equal work and ensuring security of job with just and humane conditions by providing prohibition against practising of unfair labour practice both by employers and employees and defining the term unfair labour practice to include practice of engaging workman for long spells characterising them badli, casual, temporary, ad hoc work charged with the object of denying them the status of permanency and benefits and privileges attached thereto.
(ix) A claim by workers, continuing for long spell as casual or temporary or work charged under an employer governed by the Industrial Disputes Act, to permanency is a demand which can be achieved through collective bargaining or a claim giving rise to a industrial dispute which can be enforced through adjudication under the provisions of the I.D. Act.
(x) Adjudication of claim for permanent status as an industrial dispute which has been made subject matter of reference to the Industrial tribunal is governed by the principles emanating from the provisions of Industrial Disputes Act which by necessary implication involves determination of question whether continued casual or temporary employment is a bonafide administrative exigency simplicitor or amounts to unfair labour practice Page 33 of 35 HC-NIC Page 33 of 35 Created On Tue Mar 22 01:26:25 IST 2016 C/SCA/3552/2015 ORDER on the part of the employer, inasmuch as claim to permanency under Industrial Disputes Act directly emanates from prohibition against unfair labour practice adopted by the employer.
(xi) In situation emerging from long spell of ad hoc or temporary or casual employment of daily rated workmen, courts have consistently resorted to issue of directions for framing a scheme for regularisation of such workmen on a just and fair basis to the employer or have also issue of directions for regularising the petitioners before it as the circumstances of the case may warrant but ordinarily in the first instance an opportunity is being given to the employer himself to frame a scheme in a fair and just manner of absorbing such casual workmen on permanent basis whether in one go or in a phased manner and has considered objections thereto, if any, before according its approval to such scheme.
(xii) In considering the question of granting relief as to conferring status of permanency and emoluments and privileges attached thereto, primary consideration is existence of permanent nature of work for such casual employees to be utilised against it and the extent of absorption on regular and permanent basis depends upon the extent of regular work available against which temporary employee can be regularly employed. Regularisation or permanency is not to be resorted in case where the establishment by itself is of temporary nature; where the employment is not with the object of offering employment but for ameliorating financial condition of weaker sections of the society like employment under Jawahar Yojana or where employment has been secured or offered by committing illegalities, irregularities or fraud as in the case of Ashwani Kumar (supra) where the appointments were found to have been given to six thousand persons out of all proportion to the then existing requirement of the project for about 800 persons only, by the Director of the project Mr. Malik by committing illegalities, irregularities and fraud as per the investigation report. In which case the appointments against rules were held to be nullity and void ad initio."
There are plethora of judgments of the Supreme Court taking the view that continuance of employment on temporary, casual and adhoc basis is an act of arbitrariness, violative of Articles 14, 16 and 21 of the Constitution of India read in line with the Directive Principles Page 34 of 35 HC-NIC Page 34 of 35 Created On Tue Mar 22 01:26:25 IST 2016 C/SCA/3552/2015 ORDER of the State policy enshrined in Articles 39, 41 and 42 of the Constitution of India.
In the result, this writ-application is allowed. The Director of Municipalities, State of Gujarat, and the State Government, shall pass necessary orders regularizing the services of the three petitioners within a period of one month and the consequential benefits be accordingly extended to the petitioners who have retired from service. Direct service is permitted.
(J.B.PARDIWALA, J.) MOIN Page 35 of 35 HC-NIC Page 35 of 35 Created On Tue Mar 22 01:26:25 IST 2016