Delhi High Court
Govt. School Teachers Association ... vs Union Of India And Ors. on 18 May, 2015
Author: Rajiv Shakdher
Bench: Rajiv Shakdher
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment Reserved on: 14.05.2015
% Judgment delivered on: 18.05.2015
+ WP(C)3989/2010
GOVT SCHOOL TEACHERS ASSOCIATION
(MIGRANTS) REGD. AND ORS. ....PETITIONERS
Versus
UNION OF INDIA AND ORS. .....RESPONDENTS
ADVOCATES WHO APPEARED IN THIS CASE:
For the Petitioners : Mr. Rakesh Tiku, Sr. Advocate with Mr. B.L. Wali and
Mr. Sandeep Kumar, Advocate
For the Respondents : Mr. Amit Mahajan, CGSC with Mr. Krishnu Barua, Advocate
for R-1
Mr. V.K. Tandon and Mr. Naushad Ahmad Khan, Advocates for
R-2
CORAM :-
HON'BLE MR JUSTICE RAJIV SHAKDHER
RAJIV SHAKDHER, J
WP(C)3989/2010 & CM No.7948/2010 (stay)
1. The petitioners before me appear to be children of a lesser God. Their
mass exodus in 1989, on account of threat to life and liberty caused them, to
move to Delhi. The Government of the day facilitated their movement. The
scale of the problem was huge. Make shift camps were set up in the Jammu
and Delhi and in other neighbouring States.
2. Governments both at the Central and State level grappled with issues
relating to housing, health and employment. A very proud set of people
were made to ask and survive on State dole. Persons who were kings, in a
WP(C) 3989/2010 Page 1 of 53
manner of speech, in their own houses were overnight turned into paupers.
It is a story of riches to rags.
3. It is in these circumstances that respondents reached out to the
petitioners - found them employment as teachers in State run schools.
These are schools run by the Municipal Corporation, the New Delhi
Municipal Council (NDMC) and the Directorate of Education (DOE),
Government of National Capital of Delhi (in short GNCTD).
4. The engagement was offered on contractual basis at (approximately)
1/3rd of the salaries paid to regularly employed teachers in these very
schools. Faced with the prospect of extreme impecuniosity, petitioners
accepted whatever came their way. Small mercies of God could not be
declined. There were no alternatives given nor was there any scope for
negotiations.
5. Each one of those who moved from the valley believed that it was a
temporary phase. They were made to believe that in not too distant in point
of time, they would return to their home and hearth. Alas! After nearly two
and a half decades, this still seems a nebulous dream. The petitioners
continue to offer their services which are identical, if not more, both in terms
of quality and length (i.e., number of hours) to that of regular employees;
albeit based on unequal recompense and conditions of service.
5.1 The State refuses to bridge the gap - principally on three counts: First,
the petitioners are contractual employees, and thus, cannot be equated with
those who are regularly employed in matter of pay, allowances and other
attendant benefits. Second, the petitioners knew what they were getting into
i.e., their terms of engagement. And lastly, the judgment of the Supreme
WP(C) 3989/2010 Page 2 of 53
Court in State of Karnakata Vs. Uma Devi, 2006 (4) SCC 1 stands in the
State's way to grant relief both qua regularisation and, in according, parity
in pay to the petitioners.
6. Before, I proceed to examine the veracity of the stand taken by the
respondents, let me narrate a few facts which would lend greater clarity to
the issues at hand.
7. Petitioner no.1, is the Government Schools Teachers Association
(Migrant), registered under the Societies Registration Act, 1860. The
association has as its members, persons who were displaced from the
Kashmir valley in the wake of internal disturbance which, as indicated
above, erupted in the late 1980s. The said petitioner obtained its
registration, on 03.12.1999.
8. The petitioner no.2 to 199 are those who are directly affected by the
acts of omission and / or commission of the respondents herein. During the
pendency of the writ petition, I am told, 12 petitioners have retired while
two petitioners have expired. I propose to make a specific reference to
these petitioners towards the end of my discussion.
9. It appears that on 19.06.1994, DOE under GNCTD had taken out an
advertisement for employment of teachers on a regular basis for candidates
who were registered with the employment exchange as on 31.05.1994.
There were thus, in point of fact, sanctioned posts available even at that
point in time.
10. In view of the fact that a large number of qualified teachers such as the
petitioners were stationed in Delhi, the Cabinet of the GNCTD took a
WP(C) 3989/2010 Page 3 of 53
decision on 02.04.1994, to appoint, one member in each of the Kashmiri
migrant family, who were housed in camps set up in Delhi, as a teacher in
schools run by DOE, MCD and NDMC, on contract, on a year to year basis.
10.1 The fact that a pool of trained teachers were available as amongst the
Kashmiri migrants, and that, their services could be utilized was reflected in
the Cabinet resolution dated 02.04.1994. The advertisement dated
19.06.1994, issued by GNCTD, to which I have made a reference above,
would show, that posts were available. Despite which, no mechanism was
set forth to offer regular employment. One of the reasons, perhaps, in the
immediate aftermath of the exodus was that, there was a thinking, in some
sections of the administration, that the problem of displacement, had a
temporary character.
10.2. At this stage, it may be noted that employment was offered both to
Trained Graduate Teachers (TGT) and Post Graduate Teachers (PGT). The
terms of engagement stipulated, initially, offered appointment for a
maximum period of six months or till the post was filled on a regular basis.
The appointment could be terminated by giving one month's notice or in the
alternative one month's salary in lieu thereof. The termination of
appointment could be made without affording any reasons. In case the
appointee was desirous of dis-engaging himself/ herself from the given
assignment, he / she was required to give a month's notice. The terms of
engagement, apart from the above, stipulated the following :-
"..4. The appointee shall take full teaching load as prescribed in
the curriculum.
5. The appointee shall not be entitled to any benefit of provident
fund, pension, gratuity, medical attendance and treatment or any
WP(C) 3989/2010 Page 4 of 53
other benefits available to the govt. servants appointed on regular
basis.
6. The appointee will not be entitled for Govt. residential
accommodation or H.R.A. in lieu thereof.
7. This appointment will not grant the appointee any right or
claim for regular appointment to the post.
8. The appointee shall be on the whole time appointment of the
school and shall not accept any other appointment paid or
otherwise during the currency of the contract. However, he can
take up part time assignment without effecting the duties in the
school outside working hours.
9. The appointee shall be entitled for casual leave of 12 days
with the approval of the principal in a year in addition to Govt.
holidays. No other leave / vacation with pay will be admissible."
(emphasis is mine)
10.3 In the appointment, the DOE provided a 5% relaxation, in the marks
obtained in Graduation, to those applicants who possessed a Post Graduate
Degree in the teaching subject for which he / she had applied. Furthermore,
in so far as age was concerned, relaxation of 5 years was accorded. The
non-negotiable eligibility conditions were as follows :-
"..A. At least a Second Class Degree involving (sic) more than
45% of marks.
B. Compulsory holding of B.Ed. Degree.
C. Registration as a Kashmiri migrant in Deputy
Commissioner's Office.."
10.4 The facility of contractual employment was also extended though, to
the spouse of a registered Kashmiri migrant even if, he / she was not
registered with the Deputy Commissioner's office.
WP(C) 3989/2010 Page 5 of 53
10.5 It is pertinent to note that the petitioners' engagement took place prior
to the constitution of the Delhi Subordinate Services Selection Board (in
short the DSSSB). This body was set up only in October, 1996 and
commenced functioning in July, 1997.
10.6 As would be evident from the terms and conditions stipulated in the
letter of appointment, the petitioners were required to undertake a full
teaching load as prescribed in the curriculum without being accorded the
usual benefits such as medical facilities, HRA and provident fund. The
disparity in engagement extended to, even, failure to accord paid leave
during summer vacations. The petitioners were in fact expected to
undertake remedial classes and other administrative works, if they wished to
earn their wages for the period when, schools, ordinarily remained closed.
10.7 In this background, the petitioners represented to the respondents from
time to time, commencing from 1998 onwards. The record though shows
that while one wing of the Government was sympathetic to its cause, the
other, had doubts, misplaced or otherwise as to whether the petitioners'
services could be regularized, and that, they could be paid regular pay
scales.
10.8 In this context, it may be relevant to extract the relevant portions of the
correspondence exchanged between the high functionaries of the Central and
the State Government. The first letter, in the series of correspondence
exchanged between the two entities is a letter dated 17.02.2000, of the then,
Secretary to the Government of India, Ministry of Human Resources and
Development, DOE. This is a letter addressed to the then Special Secretary,
in the Ministry of Home Affairs, Government of India. Copies of these
WP(C) 3989/2010 Page 6 of 53
letters were marked to various functionaries in the GNCTD such as the
Chief Secretary, the Principal Secretary (Education), the Commissioner,
MCD and the Chairman, NDMC. The relevant extract of the letter reads as
follows :-
" ..Dear
I have received a representation from Government School
Teacher Association (Migrant) Regd. a copy of which is
enclosed for your kind information.
The representation is self-explanatory. The migrant
teachers are not being regularized most probably because of
some implicit policy decision in the Ministry of Home Affairs
that they are here on a temporary basis and have to be sent
back at some stage.
Most of them have already been serving the Delhi
Administration since 1994 and the period of six years has
elapsed. The conditions in the Valley are such that it is
extremely difficult to foresee return of Kashmiri Pandits to the
Valley in the foreseeable future. This is especially so in the
case of ladies and the very large proportion of these teachers
consists of lady teachers. Meanwhile, the teachers are getting
very low salaries as consolidated pay as also have been
deprived of all benefits which normal government employees
enjoy except for casual leave.
The same situation is applicable to the employees of the
Municipal Corporation of Delhi (MCD) and the New Delhi
Municipal Council (NDMC) whose migrant employees had
also met me in the deputation some time back.
I discussed this matter with you and we both agreed that it
is not fair to deny the benefits of regularization to the migrant
employees of Delhi Administration, MCD and NDMC on the
WP(C) 3989/2010 Page 7 of 53
ground that they have to go back some day. We have to
recognize the hard reality that Kashmiri Pandits (especially
ladies) will not be able to go back to the Valley in the near
future. As such, you kindly agree to issue necessary directions
to the Delhi Administration (which could also be passed on to
MCD, NDMC) to the effect that all the migrant employees
working as teachers should be regularized and given full
benefit of pay, allowances and other conditions of service
against vacancies which already exists in these organizations.."
(emphasis is mine)
10.9 In response to this letter, the Special Secretary, Ministry of Home
Affairs wrote to the then Chief Secretary, Govt. of NCT vide letter dated
18/20.04.2000. By this letter, the Special Secretary, Govt. of India removed
the misgivings, if any, carried by the GNCTD that the services of the
petitioners could not be regularized because of a policy decision of the
Union Home Ministry that Kashmiri migrants were stationed in Delhi on a
temporary basis and that at some stage, they had to return to their home
State. The communication clarifies in no uncertain terms that the
regularization of services of the petitioners did not require the approval of
the Govt. of India. As a matter of fact, it was stated that the position was no
different vis-à-vis migrant employees of MCD and NDMC as well.
11. Apart from the above, in so far as regular pay scales were concerned,
the communication made certain crucial observations :-
"....2. It may be seen from the representation that these
migrant teachers are employees of the Delhi Administration
appointed on contract basis by the government of Delhi in
October, 1994. These migrant teachers are not being
regularized and are being paid a consolidated amount and are
WP(C) 3989/2010 Page 8 of 53
also reportedly being denied other benefits which normal
Government employees enjoy. Secretary, Education,
Government of India has informed that these teachers are not
being regularized because of a policy decision in the Union
Home Ministry that the Kashmiri migrants are here on a
temporary basis and that they have to be sent back at some
stage.
3. On this point, I would like to clarify that these teachers are
not Central Government employees and their regularization by
the Delhi Government does not require any approval from the
Government of India. Similar is the case of migrant
employees of MCD and NDMC. As far as Central
Government employees are concerned, there is a special
package of incentives in force since March, 1990. Under the
package migrant Central Government employees have been
accommodated, as a purely temporary measure, against
available vacancies in respective Ministries/ Departments in
offices located outside but adjacent to the UT of Delhi. This
policy, as such, has no bearing on Kashmiri migrants
appointed by the Government of Delhi in its office.
4.. As regards providing regular pay scales to these Kashmiri
migrants employed as teachers, this Ministry is of the view
that this benefit should not be denied to them merely on the
ground that they may return to the Valley once the situation
becomes normal since this would negate the principle of equal
pay for equal work. The Government of NCT of Delhi and the
two local bodies, NDMC/MCD may, therefore, like to
consider the representation of the Kashmiri migrants for grant
of regular pay scales and other benefits on the principles of
"equal pay for equal work". However, it may kindly be
ensured that these Kashmiri migrants who may be regularized
by the NCT or by NDMC / MCD do not continue to draw
salaries as migrants from the Government of J&K as well.."
WP(C) 3989/2010 Page 9 of 53
(emphasis is mine)
11.1 The aforesaid propelled the then Secretary, MHRD to immediately
write to the Chief Secretary of Govt. of India with regard to what he
construed as a "human problem"; vide letter dated 02.05.2000. Importantly,
in this letter the Secretary, MHRD offered solutions to the supposed
problems which perhaps were being articulated by GNCTD. The
crystallization of the problems and their possible solutions are set out in
paragraphs 4 and 5 of the letter. These being relevant are extracted
hereinbelow :-
"..4. During discussions with Secretary, Education, it has
transpired that the regularization of these teachers is also
pending because of the following reasons.
(i). They were appointed without following the normal
procedure of recruitment through the Service Selection
Commission.
(ii). Some of them do not fulfil the eligibility criteria.
(iii). It is felt that if they are regularized, other contract
teachers in Delhi Schools, some of whom have already gone to
the Court, will also ask for parity of treatment.
5. It is felt that these issues can be addressed in the following
manner.
(i). With regard to the formality of regularization through
the Service Selection Commission, a one time decision can be
taken that all such employees will be screened by the
Commission of the (sic) whether they fulfil the eligibility
criteria or nor (sic). If they do and if their work and conduct has
been satisfactory the Commission can recommend their
regularization as a one time measure.
(ii). With regard to those persons who do not fulfil the
educational criteria may be seen whether any relaxation can be
WP(C) 3989/2010 Page 10 of 53
given as a one time measure in order to tackle this human
problem. Any ineligibility on the ground a person being over
age may be ignored.
(iii). There is no question of other employees employed on
contract basis seeking parity with the migrant employees. The
concession given to the migrant employees was a deliberate act
of policy by the then State Government of Delhi and was given
as a one time measure in order to rehabilitate the migrants who
had lost all their assets and jobs in the Valley. Other contract
employees who do not suffer from similar disabilities cannot
seek similar treatment if they go to court, are not likely to
receive any relief.."
(emphasis is mine)
11.2 It is perhaps, after several initiatives, which led to the enhancement, in
the remuneration of the petitioners. An order dated 08.04.2003, was issued
by the GNCTD. The existing remuneration of TGT and PGT set at
Rs.6,000/- per month and Rs.7,000/- per month were enhanced to Rs.8,000/-
per month and Rs.9,500/- per month, respectively. The tenure of the
teachers was extended from 01.04.2003 to 31.03.2004, without change in
other terms and conditions. The order specifically adverted to the fact that
the appointment was "purely on compassionate grounds", keeping in view
the prevailing situation in Kashmir. The terms set out in the order barred the
petitioners from claiming regularization or benefits of pay, leave and other
perks which were available to an employee appointed on a regular basis.
11.3 The petitioner knocked on several doors including at the door of the
Ministry of Minority Affairs, Government of India. The Minister of the day
vide his letter dated 10.11.2006 sought intervention of the then Chief
Minister of GNCTD by bringing to fore the harsh and unjustified reality of
WP(C) 3989/2010 Page 11 of 53
disparity in the terms of engagement of the petitioners when, compared with
regular employees.
11.4 It appears that, as a matter of fact even though the petitioners were
entitled to 12 days casual leave, an attempt was made to reduce it to 8 days
as that was what was permissible qua regular employees, without
recognizing the fact that no other leave was available to the petitioners,
including, as indicated above, summer vacations. This led to a
representation being filed by petitioner no.1 association dated 13.12.2006, to
the then Secretary (Education), GNCTD.
11.5 The fact that the petitioners were given additional duties apart from
their principal duties of teaching is borne out from circular dated 28.04.2007
which, defined the "duties of Kashmiri migrant teachers vis-à-vis INSET
Training Programme, for Assistant Teachers, TGTs and newly recruited
Principals, conducted during May and June, 2007. Quite naturally, the
circular had to be taken out as regular teachers perhaps were not available
during the months of May and June, 2007.
11.6 The disparity in engagement seemed so obvious that it got taken up by
the Parliamentary Standing Committee on Civil Defence and Rehabilitation
of J&K Migrants (in short the PSC) which, while dealing with other
problems plaguing the Kashmiri pundits made the following observations in
paragraph 4.18 of its 137th Report of February, 2009 with regard to those
appointed as teachers amongst them :-
"18. The services of Kashmiri Displaced Persons who have
been appointed as Teachers on ad hoc basis in MCD and
Government of NCT of Delhi Schools, should be regularized.
WP(C) 3989/2010 Page 12 of 53
The Committee was given to understand that there are cases
where Kashmiri teachers have been working on contract for
the last thirteen years. The Committee is of the view that all
such cases should also be regularized as soon as possible..."
(emphasis is mine)
11.7 Apart from the above, the PSC also made the following observations in
paragraph 20 of its 137th Report with regard to the utilization of funds.
"...20. The Committee takes a serious note of the fact that the
actual expenditure on account of implementation of
rehabilitation programmes for J&K displaced persons during
2006-07 was only Rs.69.31 crore as against the allocation of
Rs.120 crore and against Rs.120 crore kept for 2007-08 in BE,
only Rs.100 crore was provided at RE 2007-08. The
Committee once again took serious note that as enough claims
were not received from the Government of Jammu and
Kashmir, only Rs.110.00 crore was kept in the BE 2008-09.
The Committee in its successive Reports, i.e., 119th, 126th and
130th Reports, urged upon the Ministry to impress upon the
J&K Government about the necessity of sending schemes
expeditiously and implement them in time so that all the J&K
Displaced Persons are rehabilitated without further delay.
Inspite of those recommendations, it is unfortunate that the
Government of J&K has not taken requisite action..."
11.8 This set in motion a flurry of activity at the Central Government level;
albeit momentarily. The Director in the Ministry of Home Affairs,
Government of India vide letter dated 03.03.2009 sought comments from the
Divisional Commissioner in GNCTD. The SDM (HQ) in turn forwarded the
letter of Ministry of Home Affairs dated 03.03.2009 to the Director, DOE
and Additional Commissioner, MCD to forward their comments in the
matter.
WP(C) 3989/2010 Page 13 of 53
11.9 The petitioners realizing that there was no headway in the matter,
approached the Public Grievances Commission (PGC). The PGC, it
appears, vide its order dated 20.02.2009 directed the DOE, GNCTD to
furnish an action taken report in the background of the report of the PSC on
the subject, pertaining to the following two aspects : (i). Parity of pay of
Migrant Kashmiri Teachers with Regular Teachers; (ii). Regularization of
the services of such teachers without being subjected to tests / exams, since
many of them were now too old to undertake examinations.
12. The PGC, however, it appears, on 31.08.2009 closed the proceedings
before it, based on a decision taken by the cabinet of GNCTD that the
petitioners' services would be extended for a further period of three years.
The PGC construed this as complete discharge of DOE's obligations. In so
far as the revision and enhancement of salary was concerned, the
complainant before it, i.e., the All India Kashmiri Samaj Secretary, was
advised to take up the matter with GNCTD.
12.1 It is in this background that order dated 13.08.2009, was issued by
DOE, GNCTD extending the contractual engagement of the petitioners from
01.04.2009 to 31.03.2012.
12.2 The record, however, does not show as to whether a similar order
was taken out vis-à-vis those teachers engaged with the MCD and NDMC.
12.3 In effect, the position which obtained as far back as in 1994 has not
changed.
13. Left with no alternative, the petitioners approached this court. Notice
in the petition was issued on 03.06.2010. At that stage, the petitioners had
WP(C) 3989/2010 Page 14 of 53
approached the court for interim relief as their salaries for the months of
April and May, 2010 had not been paid. While issuing notice, a direction
was issued by the court that the same would be paid within two weeks.
14. The petition was admitted vide order dated 02.02.2011, and looking at
the fact that it involved a large number of Kashmiri migrants, the hearing
was expedited.
15. As a matter of fact, during the pendency of the writ petition, the
petitioners had to approach this court by way of an interlocutory application
for being given temporary assignments during summer vacations as their
non-engagement would obviously have led to non-payment of dues.
Consequently, vide order dated 31.05.2011, the court directed that if any
such benefit had been granted in the past, the same would be extended
during the ensuing summer vacations. This order was passed in CM
No.6103/2011. A similar order was passed on 07.05.2013 as well.
15.1 The hearing was finally expedited by an order dated 18.04.2012 by
placing it in 'after notice miscellaneous matters'. However, since, the writ
petition was again put in the 'regular category' vide order dated 08.08.2013,
with a direction that it be listed according to its year of seniority, an
application was moved for expediting hearing, being CM No. 2608/2014.
Accordingly, vide order dated 24.02.2014 passed in CM No. 2608/2014,
directions were issued for expedited hearing. It was submitted before the
court that in the hearing held on 08.08.2013, what was not brought to the
notice of the court, was that, there was already an order on record dated
18.04.2012, whereby, the matter had been put in the category of 'after notice
miscellaneous matters'.
WP(C) 3989/2010 Page 15 of 53
16. It is, in this background that the arguments were advanced before me to
begin with, in the captioned application i.e., CM No.7948/2010. In the
application, the substantial relief prayed for is that the petitioners be paid
salaries and accorded benefits as those which are made available to regularly
appointed teachers of respondent no.3 and 4. I may only point out that this
is also, one of the reliefs, sought for in the writ petition.
16.1 Initially, after hearing arguments in the application, I had reserved the
matter for orders. However, having considered the matter at some length,
especially given the fact that pay parity was also one of the final reliefs
sought in the petition, I decided to hear further arguments in the matter so
that a decision could be taken vis-a-vis the prayers made in the writ petition
itself. Accordingly, matter was placed on board, for direction on 06.05.2015,
whereupon the writ petition was fixed for further arguments of the counsels.
Arguments in the writ petition were heard on 14.05.2015.
17. Continuing with narrative, pertinently, in the counter affidavit filed on
behalf of respondent no.1, while briefly adverting to various schemes that
have been drawn up for the benefit of Kashmiri migrants, there is a
reference to the reply of the concerned department to the report of the PSC.
The relevant portion of the averments made in this behalf are extracted
hereinbelow :-
"..MCD has granted extension to teachers upto 30.04.2010.
For regularization of teachers, MCD will take action on the
analogy of Govt. of NCT of Delhi. Govt. of NCT of Delhi has
intimated that at present the Govt. of NCT is not in a position
to regularize the services of Kashmiri migrant teachers in view
of judgment dated 10.04.2006 of Hon'ble Supreme Court. The
Hon'ble Court has clearly expressed itself against
regularization of contractual employees.."
WP(C) 3989/2010 Page 16 of 53
17.1 The aforesaid extract would show that one of the impediments in the
regularization of the petitioners articulated by the GNCTD is the judgment
of the Supreme Court in State of Karnataka Vs. Uma Devi.
17.2 Despite, the aforesaid stand taken by the Department, in the minutes of
meeting dated 04.12.2009, held under the aegis of the then Home Secretary,
Government of India, the Principal Secretary (Education), in the GNCTD,
evidently, conveyed that the cabinet had taken a decision to absorb
contractual teachers against regular posts subject to the said persons clearing
mandatory recruitment test, and that, having regard to their peculiar
circumstances and length of service, they would be extended relaxation in
age limit and given "more number of attempts". This aspect quite obviously
did not attain fruition, which is why, the petitioners are before me.
17.2 Be that as it may, in so far as the DOE is concerned, it has principally
taken the position that since the engagement of the petitioners was made on
contractual basis without following any recruitment procedures, they would
continue to be governed by their terms of employment. DOE has thus, taken
the stand, that the petitioners, could not be absorbed against regular posts,
and therefore, the principle of equal pay for equal work would not be
applicable in their case. In other words, they would continue to be paid
consolidated monthly emoluments.
17.3 The stand of the MCD is no different. It is averred in the counter
affidavit that the petitioners like other contractual appointees cannot have a
vested right to claim regularization, and that, their engagement would come
to an end on the expiry of the contract tenure or the extended period
stipulated therein.
WP(C) 3989/2010 Page 17 of 53
17.4 In the rejoinder, the petitioner has not only reiterated its stand in
the petition but has also rebutted the assertions made by the respondents.
18. Counsels for parties advanced their arguments, largely, based on the
stand taken in their respective pleadings.
REASONS
19. What has emerged from the pleadings and the record is as follows :-
(i). The petitioners claim that at the time when they were engaged in
schools run and managed by the DOE, MCD and NDMC, the DSSSB was
not constituted, and that, there was no system in place for holding
examinations.
(ii). The appointments were made in respect of the applicants, other than the
petitioners, who were registered with the Employment Exchange. The fact
that regular posts were available, was sought to be demonstrated by placing
reliance on the advertisement dated 19.06. 1994, floated by GNCTD.
(iii). The petitioners, claim that since, their displacement took place in
circumstances set out above, which were unprecedented, they could not
register themselves with Employment Exchange.
(iv). Despite, availability of regular posts, the petitioners were employed on
contractual basis; a situation which has continued to date. In case of DOE,
the last extension took place on 01.04.2009, which came to an end on
31.03.2012. In case of MCD, the last extension expired on 30.04.2010.
(v). There is no difference in the qualifications held by the petitioners as
against those held by regular employees holding permanent posts. The
WP(C) 3989/2010 Page 18 of 53
petitioners have averred that they were qualified in every way to hold
regular posts, despite which, they were appointed on contractual basis. It is
the petitioners' assertion that their selection, albeit on contractual basis, was
on merits.
(vi). It is the assertion of the petitioners that nearly 510 persons applied in
1994 and initially only 143 candidates were found suitable. In other words,
a pruning exercise was carried out by the respondents. This aspect is not
refuted by the respondents. (See reply to Ground 'Ç'of the writ petition).
(vii). The petitioners also assert that they performed functions and duties
which were identical to those entrusted to and / or performed by regularly
appointed teachers.
(vii)(a) None of these assertions have been refuted by the respondents
before me save and except the fact that the mode of the appointment was
pivoted on a contract.
(viii). Despite, long years of service by the petitioners in schools run by
DOE, MCD and NDMC, no steps have been taken by the respondents to
regularize their appointment. Correspondence referred to above, which
stood exchanged between the representatives of the Central Government
and the State Government, would show that the Central Government
recognized the need for regularizing the services of the petitioners and
payment of pay scales and service benefits to them, which were equivalent
to those, that were extended to regular employees.
(ix). The nearest that the GNCTD came to providing petitioners an option
for regularization was in the meeting held on 04.12.2009. In this meeting,
WP(C) 3989/2010 Page 19 of 53
GNCTD offered to hold examinations for regularizing the services of the
petitioners. Despite which, no concrete steps were taken in that behalf by
GNCTD.
20. In the background of the aforesaid facts and averments, let me, first,
briefly, touch upon the contours of law with regard to the principle of equal
pay for equal work as it has been argued before me on behalf of the
petitioners that relief qua parity of pay could be sustained independently of
the decision on the issue of right to regularization.
20.1 A three judge bench of the Supreme Court in the case of Randhir
Singh Vs. Union of India and Ors., (1982) 1 SCC 618 explained the earlier
Constitution Bench judgment of the Supreme Court in the case of Kishori
Mohan Lal Bakshi Vs. Union of India, AIR 1962 SC 1139 whereby, it was
held that the said principle was an abstract doctrine which had nothing to do
with Article 14.
20.2 The Supreme Court, broadly, observed in Randhir Singh's case that
though the principle 'equal pay for equal work' is not declared under our
constitution as a fundamental right, it is certainly a constitutional goal,
which is reflected in Article 39 (d) of the Constitution.
20.3 The court, pertinently, emphasised that equality clauses in the
constitution must mean something to everyone, and that, it would have no
meaning to a vast majority of people if those clauses were unconcerned
with the work they do and the pay they get. After taking into account the
constitutions of various countries, as also the constitution of the
International Labour Organization, it observed as follows :-
WP(C) 3989/2010 Page 20 of 53
"..Construing Articles 14 and 16 in the light of the Preamble
and Article 39(d), we are of the view that the principle 'equal
pay for equal work' is deducible from those Articles and may be
properly applied to cases of unequal scales of pay based on no
classification or irrational classification though those drawing
the different scales of pay do identical work under the same
employer..."
(emphasis is mine)
20.4 The court, thus proceeded, to grant parity in pay to the drivers
employed in the Delhi Police Force qua those who were employed in the
Delhi Administration and the Central Government. The court observed that
the driver -constables, in the Delhi Police Force, performed no less arduous
duties than drivers engaged in other departments. Finding no justification in
the classification and holding it to be irrational, directed that the petitioners
before it be given pay scales at least at par with drivers of the Railway
Protection Force.
20.5 In yet another case which involved engagement of casual workers by
Nehru Yuvak Kendra, a two-judge bench of the Supreme Court directed
payment of same salary and conditions of service which were received by
Class-IV employees. The Court stopped short of directing regularization as
no sanctioned posts were available though it expressed the hope and trust
that posts will be sanctioned by the Central Government in different Nehru
Yuvak Kendras so that the petitioners before them could be regularized.
This was a case where the court registered letters addressed to it as writ
petitions. The judgment of the court is entitled as : Dhirendra Chamoli and
Anr. Vs. State of U.P., (1986) 1 SCC 637. Justice Bhagwati, as he then
was, speaking for a bench made the following telling observations at pages
638-639 :-
WP(C) 3989/2010 Page 21 of 53
"..But while raising this argument, it is conceded in the counter
affidavit that "the persons engaged by the Nehru Yuvak
Kendras perform the same duties as is performed by Class IV
employees appointed on regular basis against sanctioned
posts". If that be so, it is difficult to understand how the
Central Government can deny to these employees the same
salary and conditions of service as Class IV employees
regularly appointed against sanctioned posts. It is peculiar on
the part of the Central Government to urge that these persons
took up employment with the Nehru Yuvak Kendras knowing
fully well that they will be paid only daily wages and therefore
they cannot claim more. This argument lies ill in the mouth of
the Central Government for it is an all too familiar argument
with the exploiting class and a Welfare State committed to a
socialist pattern of society cannot be permitted to advance such
an argument. It must be remembered that in this country where
there is so much unemployment, the choice for the majority of
people is to starve or to take employment on whatever
exploitative terms are offered by the employer. The fact that
these employees accepted employment with full knowledge
that they will be paid only daily wages and they will not get
the same salary and conditions of service as other Class IV
employees, cannot provide an escape to the Central
Government to avoid the mandate of equality enshrined in
Article 14 of the Constitution. This Article declares that there
shall be equality before law and equal protection of the law
and implicit in it is the further principle that there must be
equal pay for work of equal value. These employees who are in
the service of the different Nehru Yuvak Kendras in the
country and who are admittedly performing the same duties as
Class IV employees, must therefore get the same salary and
conditions of service as Class IV employees. It makes no
difference whether they are appointed in sanctioned posts or
not. So long as they are performing the same duties, they must
WP(C) 3989/2010 Page 22 of 53
receive the same salary and conditions of service as Class IV
employees..."
(emphasis is mine)
20.6 In another decision of a two-judge bench of the Supreme Court, in the
case titled : Surender Singh and Anr. Vs. Engineer in Chief, CPWD,
(1986) 1 SCC 639 parity was directed vis-a-vis petitioners, who had been
working on a daily wage basis for several years with permanent employees;
once again, on the principle of 'equal pay for equal work'. The court
followed its own judgment in Randhir Singh's case and Dhirender
Chamoli's case. The court deprecated the stand of the Central Government
that the principle of 'equal pay for equal work' was an abstract doctrine and
while doing so, it made the following crucial observations :
"..We are not a little surprised that such an argument should be
advanced on behalf on the Central Government 36 years after
the passing of the Constitution and 11 years the Forty-Second
Amendment proclaiming India as a socialist republic. The
Central Government like all organs of the State is committed to
the Directive Principles of State Policy and Article 39 enshrines
the principle of equal pay for equal work. In Randhir Singh v.
Union of India this Court had occasion to explain the
observations in Kishori Mohan Lal Bakshi v. Union of
India (supra) and to point out how the principle of equal pay for
equal work is not an abstract doctrine and how it is a vital and
vigorous doctrine accepted through out the world, particularly
by all socialist countries. For the benefit of those that do not
seem to be aware of it, we may point out that the decision in
Randhir Singh's case has been followed in any number of cases
by this Court and has been affirmed by a Constitution Bench of
this Court in D.S. Nakara v. Union of India. The Central
Government, the State Governments likewise, all public sector
WP(C) 3989/2010 Page 23 of 53
undertakings are expected to function like model and
enlightened employers and arguments such as those which were
advanced before us that the principle of equal pay for equal
work is an abstract doctrine which cannot be enforced in a court
of law should ill-come from the mouths of the State and State
Undertakings. We allow both the writ petitions and direct the
respondents, as in the Nehru Yuvak Kendras case (supra) to pay
to the petitioners and all other daily rated employees, to pay the
same salary and allowances as are paid to regular and permanent
employees with effect from the date when they were
respectively employed..."
(emphasis is mine)
20.7 In 2003 in the case titled: State of Punjab Vs. Talwinder Singh
and Ors., (2003) 11 SCC 776, the court again granted parity to daily wagers,
and, in this behalf, sustained the finding of the High Court that they be
granted minimum scale of pay as was available to their counter parts in
regular establishment. As a matter of fact, the direction of the High Court to
pay arrears for the period 3 years prior to date of filing of the writ petition
was also sustained. The two-judge bench decision in Talwinder Singh's
case relied upon its own judgment in the case of State of Punjab Vs.
Devender Singh, (1998) 9 SCC 595. The court distinguished the judgment
in the case of State of Haryana Vs. Jasmer, (1996) 11 SCC 77.
20.7 A three-judge bench of the Supreme Court in the case of State of
Haryana Vs. Charanjeet Singh, (2006) 9 SCC 321, considered amongst
others the judgments in the case of Devender Singh, Talwinder Singh and
Jasmer Singh. In so far as the observations in Devender Singh is
concerned that the principle of 'equal pay for equal work' would apply to
"similar work", the bench dis-agreed with the same and while doing so,
WP(C) 3989/2010 Page 24 of 53
observed that : "Equal pay can only be given for equal work of equal
value". Justice Variava, as he then was, spoke for the bench.
20.9 It is pertinent to note that in a judgment rendered by a three judge
bench of the Supreme Court in the case of State of U.P. and Ors. Vs. Putti
Lal, (2006) 9 SCC 337, a three-judge bench of which Justice Variava was a
member, ruled otherwise and granted pay parity to daily wagers. Directions
were issued that daily wagers would be entitled to draw the minimum of the
pay scales being received by their counter parts in the Government. The
observations in paragraph 6 at page 340 of the judgment hold some
significance for the present case and therefore, are extracted hereinbelow :-
"..6. So far as the State of Uttaranchal is concerned, a scheme
for regularisation of daily workers has been produced before us
which prima facie does not appear to be objectionable
excepting the provision regarding qualification for
regularisation. Be it stated that the qualification essential for
being regularised would be the qualification as was relevant on
the date a particular employee was taken in as a daily-wager
and not the qualification which is being fixed under the scheme.
The fact that the employees have been allowed to continue for
so many years indicates the existence or the necessity for
having such posts. But still, it would not be open for the Court
to indicate as to how many posts would be created for the
absorption of these daily-wages workers. Needless to mention
that the appropriate authority will consider the case of these
daily-wagers sympathetically who have discharged the duties
for all these years to the satisfaction of their authority
concerned. So far as the salary is concerned, as we have stated
in the case of State of Uttar Pradesh, a daily-wager in the State
of Uttaranchal would be also entitled to the minimum of the
pay-scale as is available to his counter-part in the Government
WP(C) 3989/2010 Page 25 of 53
until his services are regularised and he is given regular scale of
pay.."
21. This judgment was noticed in Charanjit Singh's case and was not
distinguished based on the observation that every aspect as between the
daily wagers and their counter parts in Government being equal, the
principle of 'equal pay for equal work', applied. (See paragraph 14 at page
334 of the judgment in Charanjit Singh's case).
22. I may only note that in paragraph 22 of the judgment in Charanjit
Singh's case the court held that in the case of persons employed on contract,
the principle of 'equal pay for equal work' had no application and that they
were governed only by the terms of the contract. This observation, however,
has to be read with the observations made in paragraph 24 of the very same
judgment where the court took into account the stand taken by some of the
petitioners before them that their appointments were regular appointments
under the regular process and that instead of being regularly appointed, they
were appointed on a contractual basis with the intention of not paying them
salaries payable to a regular employee. On this aspect, the court, ultimately,
remanded the matter to the High Court for disposal with a caveat that the
High Court will permit the petitioners to amend their writ petitions.
23. In nutshell the dominant view of the court in the recent post seems to
be that:
(i) The principle of equal pay for equal work is well and truly entrenched
in our constitutional scheme.
(ii) In applying the said principle one must look for "equal work of equal
value".
WP(C) 3989/2010 Page 26 of 53
(iii) Contractual employment cannot be used as a ploy to shy away from
making regular appointments. Though the Supreme Court in the past has
segregated the issue of pay parity from regularisation.
23.1 Therefore, to answer the first question whether petitioners can be given
pay parity, one needs to deal with the related issue of regularization as well
since in some judgements the court examined the nature of engagement in
coming to a conclusion in this aspect of the matter. Therefore, let me move
to the aspect of regularization.
24. As noticed hereinabove, in the present case, it is the assertion of the
petitioners that their appointment is a regular appointment (as distinguished
from an irregular appointment), and that, despite, the fact that vacancies
were available, GNCTD chose to take the route of contractual employment.
In other words, the petitioners claim that, they were not only fully qualified
for appointment on their date of engagement, but that, appointments were
neither irregular nor illegal or for that matter back-door appointments.
24.1 Pertinently, there is no dispute, whatsoever, raised in the pleadings
before me that the work performed by the petitioners is not "identical" to
that which is performed by regularly employed teachers. There is also no
dispute raised before me by the respondents, in particular, GNCTD, that the
petitioners do not have the same qualifications as those, which are, held by
regularly employed teachers. Undoubtedly, despite, nearly two decades
having passed, GNCTD has taken no steps to regularize the appointments of
the petitioners.
WP(C) 3989/2010 Page 27 of 53
25. In these circumstances, can the petitioners be asked to discharge duties
as teachers by GNCTD without being regularized and accorded parity in pay
and allowances. In my view, it cannot be done for the following reasons :-
(i) The petitioners appointment took place pursuant to a decision taken by
the Cabinet of the GNCTD at its meeting held on 02.04.1994. The decision
being crucial is extracted hereinafter:
"...The Council of Ministers considered the following
subject and took decisions indicated against each:-
Employment of Kashmir Migrants in the Education Deptt:
It was pointed out that some of the migrants were trained
teachers and their services should be utilized on contractual
basis. It was further mentioned that the number of such
trained teachers amongst the Kashmir migrants was
comparatively small and there should be no difficulty in
offering them employment on contract on a year to year basis.
It was decided after brief discussion that one member
from each migrant family may be appointed as teacher
depending on his/her suitability for different categories of
jobs. Such persons may be employed in the schools run by the
Directorate of Education, MCD and NDMC. This benefit will
be available only to the migrants presently living in camps run
by the Government...."
(emphasis is mine)
(i)(a) The decision taken on 02.04.1994 demonstrates that following
factors were taken into consideration by the Cabinet:
(a) Availability of trained Kashmiri migrant teachers.
(b) Possibility of such teachers being utilized in schools run by
DOE, MCD and NDMC.
WP(C) 3989/2010 Page 28 of 53
(c) Appointments to be made as per suitability qua the job at hand.
(ii). The petitioners assertion that they were regularly appointed, albeit by
using the device of a contractual employment when, regular posts were
available, is an aspect which the respondents should have met, if at all, with
appropriate facts and figures placed on record. There is no traverse or a
pleading made in the affidavits filed on behalf of the respondents.
(iii). The misgiving that the GNCTD had that it could not regularize the
appointment of the petitioners on account of the policy of the Ministry of
Home Affairs, Union of India as they were required to be sent back, at some
stage, was put to rest by the Special Secretary in the Ministry of Home
Affairs in this letter dated 18/20.04.2000.
(iii)(a) In the very same letter, the Central Government emphasised the
fact that pay parity should not be denied to the petitioners by GNCTD and
other two local bodies i.e., NDMC/MCD only on the ground that they may
have to return to the Valley, once, the situation normalizes.
(iv). The elapse of a vast period of time, and given the existing situation, of
which, the court can take judicial notice, only supports the view that there is
no likelihood of the petitioners being sent back to the Valley.
(v). The State being a model employer cannot ignore the principles of
socialism which, intrinsically form part of our Constitution.
(vi). The argument that regularization could not be accorded to the
petitioners in view of a judgment of the Supreme Court, in the facts of this
case, misses several important aspects. The judgement of the Supreme
Court in Uma Devi's case dealt with appointments made by State and its
WP(C) 3989/2010 Page 29 of 53
instrumentality without adhering to the established appointment procedure.
The court frowned upon rules and regulations being side-stepped by
engagement of personnel on daily wages or via contractual engagement,
thereby depriving a large section of duly qualified persons, an opportunity to
compete. The thrust of the judgement was to strike down all such
appointments to posts sanctioned by the State which were illegal or
irregular. The continued engagement of such personnel in the employment
of the State and its instrumentalities with the assistance of court orders was
categorized as "litigious employment", which the court ruled was against the
constitutional scheme, being violative of provisions of Article 14 and 16.
(vi)(a). The question, therefore, arises in each such case, where principles
set forth in Uma Devi's case are sought to be applied, is: are the petitioners
before the court employed "illegally" or "irregularly"?
(vi)(b) If the employment falls in the category of a irregular employment
does it fall within the exception carved out in paragraph 53 at page 42 of the
said judgement?
(vi)(c) Before I get to the point as to whether the employment of the
petitioners is illegal or irregular apropos Uma Devi's case, there are two
recent judgements of the Supreme Court, that I would like to advert to,
which have squarely dealt with and distinguished the said judgement.
(vi)(c.1) The first judgement is titled: Nihal Singh & Ors. vs State of
Punjab & Ors,. (2013) 14 SCC 65. This was a case where 27 petitioners
approached the court for regularization; a relief, which was denied to them
by the Division Bench of the Punjab & Haryana High Court.
WP(C) 3989/2010 Page 30 of 53
(vi)(c.2) The facts obtaining in the case, broadly, were as follows. On
account of large scale disturbance in the State of Punjab, in 1980s, in the
wake of terrorism, the State, was unable to handle the law and order
situation, with the available police personnel. The position was, particularly
acute, vis-a-vis, provisioning of security to the banks located within the
State of Punjab. In a high level meeting held by the State functionaries,
which included the Governor, and the police personnel, the provisions of
Section 17 of the Police Act, 1861, were taken recourse to, for engaging ex-
servicemen as Special Police Officers (in short SPOs).
(vi)(c.3) Section 17 of the said Act, generally provides, that where police is
unable to control an unlawful assembly, or a riot or disturbance of peace,
with the force available with it, an officer, not below the rank of Inspector,
has the power to apply to the nearest Magistrate to appoint any number of
residents of the neighbourhood as police officers. These residents then act
as SPOs, for such time as it is deemed necessary. The Magistrate is required
to comply with such application, when made, unless he sees cause to the
contrary.
(vi)(c.4) Based on the aforesaid provisions, the petitioners before the court
were employed as SPOs, and they were paid, to begin with, an honorarium
of Rs. 15 per day, which was enhanced to Rs. 30 per day. The SPOs, so
appointed, functioned as guards for the banks, which paid their
remuneration.
(vi)(c.5) The appellants before the Supreme Court, as also persons
similarly placed, approached the High Court seeking directions for
regularization of their services. The writ petitions were dismissed vide
WP(C) 3989/2010 Page 31 of 53
order dated 12.12.2001, directing consideration of the cases of the
petitioners and other similarly placed, for regularization, in accordance with
law.
(vi)(c.6) The SSP, Amritsar, vide order dated 23.04.2002, rejected the
claims of the appellants before the Supreme Court. The burden of the order
passed by the SSP, Amritsar, was that, wages were paid, to the SPOs by the
banks; no seniority of the SPOs was maintained in Amritsar district; and
therefore, if at all, the appellants could lay a claim, they could do so only
with the bank authorities, as against, the police authorities.
(vi)(c.7) Consequently, a second round of writ petitions followed, which
also met the same fate. The matter was carried to the Division Bench,
which, while holding that there was a Master-Servant relationship between
the SPOs and the State Government, refused to grant the relief of
regularization sought by the petitioners on the ground that the very nature of
their employment, was such, which did not warrant regularization. It was
stressed that there was no regular cadre created for such posts, nor were
there any, particular, number of posts created for this purpose.
(vi)(c.8) It is in these circumstances, that the matter reached the Supreme
Court. The Supreme Court not only sustained the finding that SPOs were
the employees of the State, i.e., the Police department, but also directed their
regularization and in this process distilled the ratio of the judgement in Uma
Devi's case. The observations made by the court, in the following
paragraphs are apposite and closest, to my mind, to the facts obtaining in the
instant case. For the sake of convenience, the same are extracted
hereinbelow:
WP(C) 3989/2010 Page 32 of 53
"...... 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 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. The State has to create
them by a conscious choice on the basis of some
rational assessment of the need.
WP(C) 3989/2010 Page 33 of 53
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
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
WP(C) 3989/2010 Page 34 of 53
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. This court while
recognising the authority of the State to make temporary
appointments engaging workers on daily wages declared
that the regularisation 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.
22. It was further declared in Umadevi case 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
WP(C) 3989/2010 Page 35 of 53
Punjab cannot be heard to say that the appellants are
not entitled to be absorbed into the services of the
State on permanent basis as their appointments were
purely temporary and not against any sanctioned
posts created by the State.
24. In our opinion, the initial appointment of the
appellants can never be categorized as an irregular
appointment. The initial appointment of the appellants is
made in accordance with the statutory procedure
contemplated 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.....
..... 30. It can also be noticed from the written statement of
the Assistant Inspector General of Police (Welfare &
Litigation) that preference was given to persons who are
in possession of licensed weapons. The recruitment of the
appellants and other similarly situated persons was made
in the background of terrorism prevailing in the State of
Punjab at that time as acknowledged in the order dated
23.4.2002 of the SSP. The procedure which is followed
during the normal times of making recruitment by
inviting applications and scrutinising the same to identify
the suitable candidates would itself take considerable
time. Even after such a selection the selected candidates
are required to be provided with necessary arms and also
be trained in the use of such arms. All this process is
certainly time consuming. The requirement of the State
was to take swift action in an extra-ordinary situation.
31. Therefore, we are of the opinion that the process of
selection adopted in identifying the appellants herein
cannot be said to be unreasonable or arbitrary in the sense
that it was devised to eliminate other eligible candidates.
It may be worthwhile to note that in Umadevi's case, this
Court was dealing with appointments made without
following any rational procedure in the lower rungs of
various services of the Union and the States....."
(emphasis is mine)
WP(C) 3989/2010 Page 36 of 53
(vi)(c.9) In the very same judgement, the Supreme Court also dealt with the
other aspect of the matter, which is, whether in the absence of the sanctioned
post, could the State could be compelled to absorb persons, like the
appellants before it. The court, in this context, noted that posts are required
to be created by the State depending on the "need" to employ persons
having regard to various functions that the State undertakes to discharge.
The court observed, while the assessment of the need is within the domain
of the executive of the day, subject to overall control of the legislature, the
constitutional court is not bereft of its power to examine the accuracy of the
"assessment" of the "need" so portrayed by the State. It held, in the facts of
that case, that there was a need for creation of the post and the failure of the
executive government to apply its mind as also to take a decision to create
post or, in the alternative stop extracting work from the persons, i.e., the
appellants before it, for decades together, would result in its inaction in the
matter being treated as capricious and arbitrary.
(vi)(c.10) Accordingly, the court directed regularization of the services of
the appellants before it, within a period of three months, with a direction,
that they would be entitled to all benefits of service attached to the post
which are similar in nature to those who were already in the cadre of the
Police Services of the State. As a matter of fact, costs in the sum of Rs.
10,000/- was also directed to be paid to each of the appellants. The
observation of the court, on this aspect of the matter, are contained in
paragraphs 32 to 39 of the judgement. The same being relevant are
extracted hereinbelow:
"....32. Coming to the other aspect of the matter pointed
out by the High Court - that in the absence of sanctioned
WP(C) 3989/2010 Page 37 of 53
posts the State cannot be compelled to absorb the persons
like the appellants into the services of the State, we can
only say that posts are to be created by the State
depending upon the need to employ people having regard
to various functions the State undertakes to discharge.
"Every sovereign government has within its
own jurisdiction right and power to create
whatever public offices it may regard as
necessary to its proper functioning and its own
internal administration."
33. It is no doubt that the assessment of the need to
employ a certain number of people for discharging a
particular responsibility of the State under the
Constitution is always with the executive government of
the day subject to the overall control of the legislature.
That does not mean that an examination by a
Constitutional Court regarding the accuracy of the
assessment of the need is barred.
34. This Court in S.S. Dhanoa v. Union of India, (1991) 3
SCC 567, did examine the correctness of the assessment
made by the executive government. It was a case where
Union of India appointed two Election Commissioners in
addition to the Chief Election Commissioner just before
the general elections to the Lok Sabha. Subsequent to the
elections, the new government abolished those posts.
While examining the legality of such abolition, this Court
had to deal with an argument whether the need to have
additional commissioners ceased subsequent to the
election. It was the case of the Union of India that on the
date posts were created there was a need to have
additional commissioners in view of certain factors such
as the reduction of the lower age limit of the voters etc.
This Court categorically held that
"27.... The truth of the matter as is apparent
from the record is that .......there was no need
for the said appointments.....".
WP(C) 3989/2010 Page 38 of 53
35. Therefore, it is clear that the existence of the need for
creation of the posts is a relevant factor with reference to
which the executive government is required to take
rational decision based on relevant consideration. In our
opinion, when the facts such as the ones obtaining in the
instant case demonstrate that there is need for the creation
of posts, the failure of the executive government to apply
its mind and take a decision to create posts or stop
extracting work from persons such as the appellants
herein for decades together itself would be arbitrary
action (inaction) on the part of the State.
36. The other factor which the State is required to keep in
mind while creating or abolishing posts is the financial
implications involved in such a decision. The creation of
posts necessarily means additional financial burden on the
exchequer of the State. Depending upon the priorities of
the State, the allocation of the finances is no doubt
exclusively within the domain of the legislature. However
in the instant case creation of new posts would not create
any additional financial burden to the State as the various
banks at whose disposal the services of each of the
appellants is made available have agreed to bear the
burden. If absorbing the appellants into the services of the
State and providing benefits at par with the police officers
of similar rank employed by the State results in further
financial commitment it is always open for the State to
demand the banks to meet such additional burden.
Apparently no such demand has ever been made by the
State. The result is - the various banks which avail the
services of these appellants enjoy the supply of cheap
labour over a period of decades. It is also pertinent to
notice that these banks are public sector banks.
37. We are of the opinion that neither the Government of
Punjab nor these public sector banks can continue such a
practice consistent with their obligation to function in
accordance with the Constitution. Umadevi's judgment
cannot become a licence for exploitation by the State and
its instrumentalities.
WP(C) 3989/2010 Page 39 of 53
38. For all the abovementioned reasons, we are of the
opinion that the appellants are entitled to be absorbed in
the services of the State. The appeals are accordingly
allowed. The judgments under appeal are set aside.
39. We direct the State of Punjab to regularise the
services of the appellants by creating necessary posts
within a period of three months from today. Upon such
regularisation, the appellants would be entitled to all the
benefits of services attached to the post which are similar
in nature already in the cadre of the police services of the
State. We are of the opinion that the appellants are
entitled to the costs throughout. In the circumstances, we
quantify the costs to Rs.10,000/- to be paid to each of the
appellants....."
(emphasis is mine)
(vi)(d) This brings me to the second judgement of the Supreme Court in
the case of Amarkant Rai vs State of Bihar & Ors., 2015 (3) SCALE 505.
This was a case where the appellant before the Supreme Court had served as
a "Night Guard" on daily wages, for 29 years. The appellant was appointed
for the first time, albeit temporarily, as a Night Guard on daily basis vide
order dated 04.06.1983, issued by the principal of the college affiliated to
the Lalit Narayan Mithila University (in short the University).
(vi)(d.1) The University vide order dated 04.07.1985 took a decision to
regularize in service all those persons who had worked for more than 240
days. It appears that the Addl. Commissioner-cum -Secretary passed a
settlement order dated 11.07.1989; a copy of which was forwarded to the
Vice-Chancellor of various Universities, wherein it was stated that services
of employees working in educational institutions, as per staffing pattern,
should be regularized, with a caveat, that new appointments should not be
WP(C) 3989/2010 Page 40 of 53
made. The principal of the concerned college vide order dated 07.10.1993
regularized the services of the appellant.
(vi)(d.2) The registrar, however, passed an order of termination on
01.03.2001. Consequent thereto, a writ petition was preferred by, similarly,
placed daily wagers with the concerned High Court, upon the orders passed
therein, the Registrar of the University, allowed all daily wagers, including
the appellant, to resume their employment from 03.01.2002. The principal
recommended the absorption of the appellant against two vacant posts vide
letter dated 08.01.2002 and 12.07.2004.
(vi)(d.3) In pursuance of an order passed in another writ petition, the
appellant was asked to appear before a three-member committee, constituted
by the Vice-Chancellor for consideration of his case of regularization of
service. The claim of the appellant was rejected on the ground it was not in
consonance with the recruitment rule. The judgement of the Supreme Court
in Uma Devi's case was relied upon in support of the conclusion reached.
(vi)(d.4) The appellant approached the High Court, once again, whereupon
his writ petition was dismissed. The High Court observed that his
appointment was in violation of Section 10(6) and Section 35 of the Bihar
State Universities Act, 1976. The High Court sustained the order of the
three-member committee. Aggrieved, the appellant preferred an appeal with
the Division Bench, which met the same fate. This is how the matter
reached the Supreme Court.
(vi)(d.5) The Supreme Court made the following crucial observations in
paragraph 8, 9, 11, 12, 13, 15 & 16.
WP(C) 3989/2010 Page 41 of 53
"...... 8. We have carefully considered the rival
contentions and also perused the impugned order and material
on record.
9. Insofar as contention of the respondent that the
appointment of the appellant was made by the principal who
is not a competent authority to make such appointment and is
in violation of the Bihar State Universities Act and hence the
appointment is illegal appointment, it is pertinent to note that
the appointment of the appellant as Night Guard was done out
of necessity and concern for the college. As noticed earlier,
the Principal of the college vide letters dated 11.03.1988,
07.10.1993, 08.01.2002 and 12.07.2004 recommended the
case of the appellant for regularization on the post of Night
Guard and the University was thus well acquainted with the
appointment of the appellant by the then principal even
though Principal was not a competent authority to make such
appointments and thus the appointment of the appellant and
other employees was brought to the notice of the University
in 1988. In spite of that, the process for termination was
initiated only in the year 2001 and the appellant was
reinstated w.e.f. 3.01.2002 and was removed from services
finally in the year 2007. As rightly contended by the learned
counsel for the appellant, for a considerable time, University
never raised the issue that the appointment of the appellant by
the Principal is ultra vires the rules of BSU Act. Having
regard to the various communications between the Principal
and the University and also the education authorities and the
facts of the case, in our view, the appointment of the
appellant cannot be termed to be illegal, but it can only be
termed as irregular......
.......11. As noticed earlier, the case of the appellant was
referred to Three Members Committee and Three Members
Committee rejected the claim of the appellant declaring that
his appointment is not in consonance with the ratio of the
decision laid down by this Court in Umadevi's case (supra).
In Umadevi's case, even though this Court has held that the
appointments made against temporary or ad-hoc are not to be
regularized, in para 53 of the judgment, it provided that
irregular appointment of duly qualified persons in duly
WP(C) 3989/2010 Page 42 of 53
sanctioned posts who have worked for 10 years or more can
be considered on merits and steps to be taken one time
measure to regularize them. In para 53, the Court observed as
under:-
"53. One aspect needs to be clarified. There may be
cases where irregular appointments (not illegal
appointments) as explained in S.V. Narayanappa,
R.N. Nanjundappa and B.N. Nagarajan 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 regularisation 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 above referred 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 regularise as a one-time measure, the
services of such irregularly appointed, who have
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. We also
clarify that regularisation, if any already made, but
not sub-judice, need not be reopened based on this
judgment, but there should be no further bypassing
of the constitutional requirement and regularising or
making permanent, those not duly appointed as per
the constitutional scheme."
The objective behind the exception carved out in this case
was prohibiting regularization of such appointments,
appointed persons whose appointments is irregular but not
illegal, ensure security of employment of those persons who
WP(C) 3989/2010 Page 43 of 53
served the State Government and their instrumentalities for
more than ten years.
12. Elaborating upon the principles laid down in Umadevi's
case (supra) and explaining the difference between irregular
and illegal appointments in State of Karnataka & Ors. v. M.L.
Kesari & Ors., (2010) 9 SCC 247, this Court held as under:
"7. It is evident from the above that there is an
exception to the general principles against
"regularisation" 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."
13. Applying the ratio of Uma Devi's case, this Court
in Nihal Singh & Ors. v. State of Punjab & Ors., (2013) 14
SCC 65 directed the absorption of the Special Police Officers
in the services of the State of Punjab holding as under:
WP(C) 3989/2010 Page 44 of 53
"35. Therefore, it is clear that the existence of the
need for creation of the posts is a relevant factor
with reference to which the executive government
is required to take rational decision based on
relevant consideration. In our opinion, when the
facts such as the ones obtaining in the instant case
demonstrate that there is need for the creation of
posts, the failure of the executive government to
apply its mind and take a decision to create posts or
stop extracting work from persons such as the
appellants herein for decades together itself would
be arbitrary action (inaction) on the part of the
State.
36. The other factor which the State is required to
keep in mind while creating or abolishing posts is
the financial implications involved in such a
decision. The creation of posts necessarily means
additional financial burden on the exchequer of the
State. Depending upon the priorities of the State,
the allocation of the finances is no doubt
exclusively within the domain of the legislature.
However in the instant case creation of new posts
would not create any additional financial burden to
the State as the various banks at whose disposal the
services of each of the appellants is made available
have agreed to bear the burden. If absorbing the
appellants into the services of the State and
providing benefits on a par with the police officers
of similar rank employed by the State results in
further financial commitment it is always open for
the State to demand the banks to meet such
additional burden. Apparently no such demand has
ever been made by the State. The result is-the
various banks which avail the services of these
appellants enjoy the supply of cheap labour over a
period of decades. It is also pertinent to notice that
these banks are public sector banks."
........
WP(C) 3989/2010 Page 45 of 53
........ 15. Considering the facts and circumstances of the case
that the appellant has served the University for more than 29
years on the post of Night Guard and that he has served the
College on daily wages, in the interest of justice, the
authorities are directed to regularize the services of the
appellant retrospectively w.e.f. 03.01.2002 (the date on which
he rejoined the post as per direction of Registrar).
16. The impugned order of the High Court in LPA No.1312
of 2012 dated 20.02.2013 is set aside and this appeal is
allowed. The authorities are directed to notionally regularize
the services of the appellant retrospectively w.e.f. 03.01.2002,
or the date on which the post became vacant whichever is
later and without monetary benefit for the above period.
However, the appellant shall be entitled to monetary benefits
from 01.01.2010. The period from 03.01.2002 shall be taken
for continuity of service and pensionary benefits......"
(emphasis is mine)
(vi)(e) The facts in the instant case, seen in the light of the judgement in
the case of Nihal Singh and Amarkant Rai, would show that the
respondent's stand that the services of the petitioners were contractual and
hence could not be regularized, is unsustainable.
(vi)(e.1) The reason for the same is that recruitment of the petitioners took
place, in peculiar circumstances, due to mass exodus from the Kashmir
Valley in the wake of terrorism in the State of Jammu & Kashmir. The
respondents sought to engage the petitioners and other persons, similarly
placed, on contractual basis, despite the fact that sanctioned posts were
available in and around the same time. The petitioners have worked for
nearly two decades at 1/3rd of the emoluments paid to regular/ permanently
employed teachers. It is not as if the respondents do not "need" the teachers
to work in their school. There is also, no case made out, by the respondents,
that the petitioners are not qualified, and that, their selection was not made
WP(C) 3989/2010 Page 46 of 53
on merits and/or based on suitability. Having regard to these facts, I can
only say that the circumstances obtaining in the petitioners' case, are no
different from those that obtained in the Nihal Singh case.
(vi)(e.2) At best, the petitioners engagement could be, if at all, termed as
irregular. Though I must state that the petitioners dispute this aspect of the
matter. Even if they are termed as irregular, the respondents were required
to act in accordance with paragraph 53 of the judgement of the Supreme
Court in Uma Devi's case which required all those, who had worked for
more than ten years, to be absorbed in employment. The respondents did
neither and have instead continued to engage the petitioners on contractual
basis, much to their detriment.
(vi)(e.3) In a recent judgment of this court dated 30.04.2015, passed in
LPA No. 260/2015, titled: State Bank of India & Anr. vs Dharmendra
Prasad Singh & Ors., the Division Bench was examining the policy of the
State Bank of India, whereby it had absorbed personnel who were engaged
on contractual basis, as Officer Marketing and Recovery (Rural), qua their
gramin branches.
(vi)(e.4) The Single Judge, struck down the policy with the observation that
the board of the SBI had brazenly breached the law declared by the Supreme
Court in Uma Devi's case. A further direction was issued by the learned
Single Judge, that the matter be placed before the secretaries in the Ministry
of Finance and Law.
(vi)(e.5) The Division Bench, however, set aside the directions issued by
the learned Single Judge, and while, doing so, made the following
WP(C) 3989/2010 Page 47 of 53
observations, even while it noted that in the impugned judgement the facts in
issue had not been dealt with:
".....28. As noted above the appellant Bank had to experiment
before sanctioning permanent posts of Officers Marketing
and Recovery (Rural). The banking sector had to penetrate
the rural market to give a fillip to the financial inclusion
policy of the Government of India and to increase the level of
business in agriculture and simultaneously recover the
outstanding debts which otherwise would have been written
off as non-performing assets. A fair and a transparent policy
of recruitment by prescribing eligibility criteria was notified
and the age limit was fixed. Public advertisements were
issued inviting applications from all eligible candidates and
all those who applied were subjected to the selection process.
Those found meritorious were offered appointment on
contract basis. They were trained and assigned jobs. Their
work profiles were recorded. What started as an experiment
in the year 2004 was appraised in the year 2009 and in the
year 2010 a decision was taken that since the experiment had
succeeded, it was time to crystallized the mother solution.
Decision was taken to regularize the contractual employees
but after subjecting them to a proper scrutiny. A bench mark
of achieving 60% targets was fixed. A proforma was devised
containing the evaluation matrix as advised by the concerned
SBUs. The performance of the officers was evaluated on said
matrix and only those who secured the bench mark were
regularized. For that, permanent posts were sanctioned...."
(vi)(e.6) In somewhat similar case involving employment of Auxiliary
Nurses Midwife, whose engagement was also on contractual basis, a Single
Judge of the Rajasthan High Court in a batch of petitions, the lead petition
being: S.B. Civil Writ petition No. 2329/2014, dated 28.07.2014, titled: Smt.
Nisha Mathur & Ors. vs State of Rajasthan & Ors., directed their
regularization with consequential benefits. Here again, in this case as well,
WP(C) 3989/2010 Page 48 of 53
the petitioners had been working on contractual basis, on continuous period,
for periods exceeding ten years.
(vi)(e.7) Similarly, the Division Bench of the Himachal Pradesh High
Court vide a judgement dated 09.12.2014, passed in a batch of petitions, the
lead petition being: CWP No. 6916/2011, titled: Pankaj Kumar vs State of
Himachal Pradesh, repelled the challenge made to the decision of the State
to regularize the Gram Vidya Upasaks and Para Teachers. Here again, the
appointments/ engagements were made subject to condition that the
appointees will not seek regularization/ absorption. The fact that, in the
meanwhile, teachers had worked for a decade or so, and had acquired the
necessary qualification, the State decided to regularize the services of the
petitioners as Gram Vidya Upasaks. The Division Bench, after examining
the several precedents, held that the appointments could not be held as
illegal, and thus, could be regularized as per the mandated policy of the
State.
26. Therefore, having regard to the discussion above, the judgement of the
Supreme Court in Uma Devi's case cannot come in the way of the
petitioners' entitlement to claim regularization and for this very reason the
petitioners claim for pay parity is legally valid. The petitioners, to my mind,
without doubt are performing "equal work of equal value". Despite which,
there is a deep disparity in the pay and emoluments of the petitioners in
comparison to their counter parts holding regular posts.
26.1 It is also for all these reasons, that the judgement of another Single
Judge dated 05.04.2013, passed in WP(C) 2574/2010, titled: Indu Munshi
& Ors. vs Union of India & Ors., cannot come in the way of the present
WP(C) 3989/2010 Page 49 of 53
petitioners as the judgement in Nihal Singh case and Amarkant Rai were
delivered after the pronouncement in the aforementioned judgement. The
judgment in Nihal Singh's case was delivered on 07.08.2013 while the
judgement in Amarkant Rai's case was pronounced on 13.03.2015.
Furthermore, I am informed that an appeal against the said judgment, being:
LPA No.286/2015 is pending consideration before the Division Bench.
27. Before I conclude, I may only note that when the matter was put up for
further hearing on 14.05.2015, Mr. Naushad Ahmad Khan, who appeared for
respondent no.2 made two additional submissions. First, that the writ
petition was filed by the petitioner association and therefore, could not be
maintained. Second, that no consent of the persons qua whom contracts had
been executed, had been taken.
27.1 According to me, both these submissions are factually incorrect. Apart
from the petitioner association, the persons who are directly impacted are
also arrayed as the petitioners.
27.2 In so far as the second submission is concerned, that is also clearly
untenable as the writ petition is accompanied by separate affidavits of all the
individuals.
27.3 On the aspect of disparity, as per the information supplied to me by
the counsels for the petitioners, to which no objection was taken by the
respondents, the difference in pay, as it obtains today, is substantial, which
is demonstrable from the following table pertaining to TGTs and PGTs.
27.4 The table would show that though, there have been enhancements in
the salaries of the Kashmiri Migrants Teachers (KMTs), it has not kept pace
WP(C) 3989/2010 Page 50 of 53
with those, which are offered, to regularly employed teachers of DOE,
NDMC and MCD.
"DOE/GNCTD
PGTs
Year 1994 1996 1998 2000 2008 2011 2015
KMT 3000 3500 7000 9500 13160 21389 29187
REGULAR 4350 9900 12450 21286 44000 55000 70401
TGTs
Year 1994 1996 1998 2000 2008 2011 2015
KMT 2500 3000 6000 8000 11140 20989 28773
REGULAR 3700 8300 10350 18184 38000 48000 60496
MCD
Year 1994 1996 1998 2000 2008 2011 2015
KMT 2000 2400 5000 7600 9500 13500 25000
REGULAR 3000 3900 8000 16000 26000 38000 49900
27.5 Furthermore, the teachers in regular employment, I am told are given
following allowances :
"..1. 10% of School Fees, for the child education.
2. Medical Benefit for the entire family.
3. Bonus = Rs.3454/- year
4. LTC = Rs.1,50,000/- above once in every 4 years
5. Two months summer vacation."
WP(C) 3989/2010 Page 51 of 53
27.6 As against this, KMTs / petitioners are allowed only 8 days casual
leave.
28. I am informed, during pendency of the writ petition, the engagement of
12 petitioners came to an end as they crossed the age for retirement fixed
qua permanent employees, while two petitioners, in the meanwhile have
expired. The names of those who are no longer engaged with the
respondents are as follows : Rita Kachroo (petitioner no.7), Pyari Raina
(petitioner no.48), Shama Sapru (petitioner no. 50), Vijay Kumari Koul
(petitioner no.52), Vijay Khurdi (petitioner no.79), Vijay Razdan (petitioner
no.109), Kundan Bhat (petitioner no.124), Sukreeti Sapru (petitioner
no.186), Raj Kumari (petitioner no.188), Veena Jalali (petitioner no.191),
Kasum Lata (petitioner no.23), Sarojni Tikoo (petitioner no.39).
28.1 Similarly, the two persons, who have expired are : Basanti Raina
(petitioner no.123) and Neeru Matoo (petitioner no.168).
29. Having regard to the above, following directions are issued:-
(i). Petitioners, presently, employed in schools under DOE, MCD and
NDMC would be given emoluments and benefits which are paid and
extended to regular employees falling in the same category, i.e., TGT and
PGT.
(ii). Petitioners, presently, employed will be regularized and for this
purpose necessary posts will be created within three months from today.
(iii) In respect of those, amongst petitioners, who have been disengaged
from employment, or have expired during the pendency of the writ petition,
WP(C) 3989/2010 Page 52 of 53
GNCTD shall treat them as regular employees and grant them suitable
benefits as would be available to permanent/ regular employees.
30. The Writ petition and the application are disposed of in the aforesaid
terms. There will be, however, no order as to costs.
RAJIV SHAKDHER, J.
MAY 18, 2015 yg WP(C) 3989/2010 Page 53 of 53