Madras High Court
Indian Airlines Canteen Workers' Union vs Director Personnel, Indian Airlines ... on 20 April, 2000
Equivalent citations: (2000)IIILLJ979MAD
Author: P. Sathasivam
Bench: P. Sathasivam
JUDGMENT P. Sathasivam, J.
1. All the above writ petitions relate to casual workers. Since the issue is one and the same, they being disposed of by the following common order. In Writ Petition No. 17381 of 1991, Indian Airlines Canteen Workers' Union through its President has prayed to issue a writ of mandamus directing the respondents, namely, management of the Indian Airlines to regularise all the canteen workers working in the respondent Indian Airlines Canteen at Madras and those who put in 240 days of work during their tenure as casual workers. In Writ Petition No. 14134 of 1997, the petitioners numbering 11, aggrieved by the employment notice, dated June 4, 1997, filed the said writ petition seeking for quashing of the notice and for direction to the respondent to grant the petitioners regular appointment as helpers, loaders, safaiwalas, peons or other equivalent posts or to regularise their services therein. In the other writ petitions, similar prayers have been made by loaders, casuals, etc. to quash the employment notice and regularise their services in the Indian Airlines. In Writ Petition No. 320 of 2000, the petitioner challenges the order of the respondent-management refusing to relax the age for the posts of peon, helper (Commercial), etc. In Writ Petition No. 630 of 2000, the petitioner challenges the order, dated January 29, 1999 of the third respondent wherein he was found not eligible to be considered for employment. In some of the writ petitions, the petitioners pray for relaxation of their age requirement for the purpose of appointment to the post of helper (Commercial) or its equivalent post in the existing vacancy.
2. Brief facts which are required for the disposal of the above cases alone are stated hereunder;
For the convenience, I shall refer the case of the Indian Airlines Canteen Workers' Union in Writ Petition No. 17381 of 1991 which is the earliest writ petition filed in the year 1991. According to them, the Indian Airlines Canteen Workers Union consists of 44 persons. They filed the said writ petition for regularisation of their employment. It is stated that respondents 1 and 2 consistently followed a nefarious system of employing casuals for 90 days in a year and forcing them to remain in jobless position for the rest of the 270 days of the year. Their turn would come for another spell of 90 days in the succeeding year. This process is continued from year to year. The workers are given work only for 90 days at a stretch not because the canteen work is seasonal in character, not because of lack of work in the canteen, but because the concerned authorities do not want to give any scope for them to claim regularisation or permanency. After 90 days of work every casual worker is discontinued for a few days. After this break in service, he is allowed to submit fresh application for work again with recommendation of permanent employee again after submission of the application he is required to get fresh medical report, which is followed by an appointment order for 90 days only. This process is repeated in every case of casual worker. Thus each casual worker is kept for a number of years in the status of casual worker. These casual workers are paid daily-wages and they are not entitled to any other allowances or benefits even though they discharge their work like any other Class IV employee. They made repeated representations to the authorities and pleaded for their regularisation. But their plea fell on deaf ear. Therefore, the members of the petitioner- union approached this Court by way of the present writ petition. It is stated that the impugned acts of the respondents keeping casuals who have put in 240 days of work as casual workers are violative of provisions of Articles 21 and 41 of the Constitution of India.
3. In other writ petitions the petitioners have stated that they have been working in the Indian Airlines on casual basis over 10 years as loaders, helpers, safaiwalas. They are given employment with artificial breaks every year by retrenching them from time to time. Recruitment for filling up regular posts of helpers, sweepers, loaders, peons etc. in various departments of Indian Airlines has been taking place, but the petitioners have not been granted regular appointments; instead outsiders were appointed to the post of helper in 1983, to the post of sweeper in 1984, to the post of helper in 1986, to the post of loader in 1988, to the post of peon in 1990 and again to the post of helper in 1991. In some of the writ petitions, they stated that because of the attitude of the respondents, they have crossed the age-limit and as such they have been barred by age. At the threshold of that, they have been working for more than 15 days on a casual basis. The action of the respondents is in violation of Section 25-H of the Industrial Disputes Act (hereinafter referred to as the Act). The petitioners being seniors among the casual labourers ought to be granted regular appointment. As stated earlier, similar averments have been made in other cases also. They also highlighted how they are being treated by the Indian Airlines-Management by sending them out after expiry of 90 days. All of them have prayed for suitable direction to the respondents for regularisation and in some cases relaxation of their age and for regularisation.
4. On behalf of respondents 1 and 2, though they filed individual counter-affidavits in some of the cases, I shall refer the specific averments in Writ Petition No. 17381 of 1991 and their stand in the other cases. It is stated that Indian Airlines is a Statutory Corporation constituted under the Air Corporations Act, 1953. A staff canteen was being run by a canteen managing committee consisting of representatives of employees and representatives of Indian Airlines till 1980. The staff canteen was being run purely as a welfare measure to cater to the requirements of the employees. Running of the staff canteen at Madras is not a statutory requirement under any of the existing labour laws. A memorandum of settlement was signed between the Management of Indian Airlines and the Indian Airlines Canteen Workers Union on July 6, 1981. As per the terms of the settlement, workmen in the Indian Airlines staff canteen who were on the rolls of the workers engaged by the canteen managing committee as on January 1, 1980 and continued to be on rolls as on January 1, 1981 and below the age of 55 years as on March 31, 1981 shall be appointed in Indian Airlines subject to their being found suitable by a Screening Board subject to medical fitness and verification of character and antecedents. The appointment was to be effective from April 1, 1981. It was also indicated in the settlement that workmen employed after January 1, 1980 against regular vacancies or who have completed 240 days service as casual/daily rated workmen in the calendar year 1980 shall be given preference for employment against any future vacancies. Accordingly, 34 employees in various categories were appointed. Subsequently, an additional sanction of 11 posts was received in the year 1984 and 11 casual employees in the canteen who had completed 240 days were absorbed after being subjected to the selection process and assessment of medical fitness. After creation and filling up of these posts and absorption of the employees of the canteen managing committee in the services of Indian Airlines, the engagement of casuals was restricted only against heavy absenteeism and unexpected increase in work-load. Thereafter, the Ministry of Civil Aviation issued an order, dated December 9, 1986 banning creation and filling up of posts in Indian Airlines. The respondent Airlines has been financially not doing well after the grounding of A-320 aircrafts in February 1990. As a matter of fact, the Airlines has been incurring huge losses. The persons engaged on casual basis are paid Rs. 52 per day. Besides wages, they are eligible for free food in the canteen. They are also paid for their weekly-off days. The daily- wage has been fixed taking into account the minimum wage that would be payable to a permanent employee on the minimum of the pay-scale. It is further stated that none of the casual workers have completed 240 days during any period of 12 consecutive months. Hence the prayer in the Writ Petition No. 17381 of 1991 for regularisation is not maintainable.
5. In respect of the claim made by other petitioners, it is stated by the management that in view of the nature of the services rendered by the respondents and the exigencies of work requirements demanded by the operation of schedule flights with least inconvenience to its customers, engagement of casual labour in certain areas of works, particularly, in unskilled labour cadre is inevitable inasmuch as there occurs a temporary and seasonal addition to the work-load apart from the absenteeism/leave of the regular employees in the cadres. The practice of engaging casual labour is in vogue for many years throughout the network of the respondent. Based on the direction by the Bombay High Court in Writ Petition No. 346 of 1996, dated June 3, 1996, respondents 1 and 2 decided to implement the same in the Madras region.
6. It is further stated by the management that recruitment against the regular vacancies in various cadres are done in accordance with the Recruitment and Promotion Rules formulated by the respondent which enjoins the respondent to notify the vacancies apart from sending requisitions to the Employment Exchanges, Ex-Servicemen Cell and other Agencies approved by the Central Government. The candidature of the eligible applicant is considered on the basis of which panel of suitable candidates in the order of merit is drawn up from which appointments are made. The recruitment and promotion rules of the respondent Airlines prescribe minimum educational qualification.
7. Apart from highlighting the fact that how the claim of individuals could not be complied with, they also explained the fact that because of the policy of the Central Government permitting private Airlines, their passengers and traffic reduced drastically from 1989-1990 to 1998-1999, on the other hand, they are keeping more employees and it would not be possible for them to regularise all the casuals in view of the financial constraint.
8. The management has also placed a scheme as directed by this Court for rehabilitation of the casuals worked/working in the Indian Airlines. They prayed for disposal of all the writ petitions by approving the scheme framed by them.
9. In the light of the above factual position, I have heard Dr. K.P. Krishna Shetty, Smt. D. Geetha, Sri Fredrick Castro, Sri V. Prakash, Sri V. Dhanapalan, Ms Anna Mathew and Sri K.M. Ramesh for the petitioners-casual workmen and Sri N.G.R. Prasad for respondents 1 and 2 Indian Airlines.
10. The only point for consideration is whether the canteen workers, peons, sweepers, helpers, loaders, safaiwalas, etc., working as casuals are to be regularised in the services of the Indian Airlines or the Scheme framed by the Indian Airlines pursuant to the direction of the High Court, dated December 23, 1997, has to be approved?
11. In order to appreciate the rival contentions, it would be appropriate to refer interim orders passed by this Court. The first writ petition filed by Indian Airlines Canteen Workers Union, represented by its President was admitted by K.S. Bakthavatsalam on December 12, 1991. They also prayed for interim injunction restraining the respondents from recruiting fresh workers as casuals in the canteen and also direction to maintain status quo as on the date of December 9, 1991 of all the casual workers working in the canteen of the Indian Airlines. Orders were granted by this Court on December 12, 1991. The management after filing counter-affidavit, filed a petition to vacate the interim orders. After hearing all the parties, GOVINDASAMY, J., has passed an order on March 9, 1992 permitting the petitioners to continue in employment subject to any disciplinary proceedings on the conduct pending disposal of the writ petition. The learned Judge has also made it clear that if the employer needs to recruit somebody else, it is open to them to recruit over and above the employees who are involved in the writ petition. Thereafter, Air Corporation Employees Union, represented by its Regional Secretary, claimed right to represent the casual labourers working in the Indian Airlines and filed Writ Miscellaneous Petition No. 7621 of 1992 to get the union impleaded as third respondent. As per order, dated July 3, 1992, the said union was impleaded as third respondent in Writ Petition No. 17381 of 1991. The said union filed writ miscellaneous petitions for vacating the interim directions made earlier. After hearing all the parties as well as various averments in those petitions, AR. LAKSHMANAN J., has passed an order on July 21, 1992 wherein the learned Judge directed respondents 1 and 2 not to recruit any new casuals and all the casuals, viz., the members of the writ-petitioners union and the impleaded third respondent-union and others who are not represented by either of the unions and were working before the filing of the writ petition, shall be given work in rotation in accordance with practice in vogue before the filing of the writ petition. The learned Judge has also made it clear that the said arrangement will be without prejudice to contentions and rights of all parties. Thereafter, the management filed Writ Miscellaneous Petition No. 17792 of 1993 in Writ Petition No. 17381 asking for modification of the order, dated July 21, 1992. The management sought through this miscellaneous petition permission to engage new casuals. On June 14, 1994 the said petition was dismissed by this Court, as it was not pressed by the counsel for the management. Later, that is in 1997, when the first writ petition along with other writ petitions came up before R. JAYASIMHA BABU, J., for disposal, after hearing the parties for some lime, the learned Judge passed an order, dated December 23, 1997, in Writ Petition No. 17381 of 1991 and Writ Petition No. 14134 of 1997. Since the management based on the said direction, has framed a scheme and filed it before this Court for approval, it is but proper to refer the order of the learned Judge, which is as follows:
"After hearing the matter for some time, I consider it in the interest of justice to direct the respondent-Indian Airlines to place before the Court a scheme for dealing with the cases of casual labourers who had been employed by the Indian Airlines from the year 1991. The respondent, in that scheme, shall set out the total number of casual labourers who had been employed in the relevant departments since the year 1991 and the number of days worked by each of them in years commencing from 1991, as it is submitted that the attendance and payments registers are available only from that year. The earliest of the writ petitions concerning these matters also was filed in the year 1991. The year 1991, therefore, can be taken as the starting point for ascertaining and identifying the persons who had worked as casual labourers, and who would be considered as eligible for being included in the list of casual labourers to be considered for the benefit of the scheme to be formulated by the Airlines.
(2) The Indian Airlines shall also place before the Court a list so arranged as to show the total number of days worked by each of these casual employees from the year 1991 and arranged their names in accordance with the total number of days worked in the period 1991-1997 those who had worked longer being placed above who had worked for a lesser period. If the educational qualifications of these employees are known to the Airlines, the qualification shall also be stated against the names of the concerned workmen in the list.
(3) The number of workmen who can be gainfully employed in the relevant department in the year 1998 shall be stated as also the number of casual labour required in these departments, if all the existing vacancies in the grade of Helper are filled by making regular appointments/thereto. The age of these workmen, if known to the Airlines shall also be mentioned in the list to be prepared."
12. Pursuant to the above direction of this Court, the Senior Manager (Personnel), Indian Airlines Southern Region, Chennai, has filed an affidavit wherein the scheme framed by the management has been highlighted. After highlighting the salient features of the scheme the Senior Manager (Personnel) also brought to my notice information regarding the present status of the company and prayed that the same may also be kept in view before an order is passed. The scheme formulated by the management is extracted hereunder:
"As directed by this Hon'ble Court the respondent-company submits the following:
SCHEME
(i) Since the casuals who had worked between 1993 and 1995 were already covered by our earlier notification and the eligible candidate already interviewed, in order to enable the casuals who had worked between 1991 and 1992 a fresh employment notification will be issued inviting applications exclusively from these casuals to respond against the said employment notification.
(ii) The casuals will have to meet the eligibility criteria including the minimum qualification laid down for the post which is 8th class pass from a recognised school.
(iii) The casuals who have worked during the years 1993 to 1995 were already given age relaxation to the extent of the period they worked as casual in the respondent-company and similarly the casuals who had worked from 1991 to 1992 would also be covered by giving relaxation of age to the extent of the period they worked.
(iv) The cut-off date for the purpose of reckoning the eligibility criteria will be as on July 4, 1997, i.e., the date of the earlier notification against which the petitioners have come to the Court,
(v) Selections will be made by the same Selection Committee as per the Recruitment and Promotion Rules of the company.
(vi) A panel will be drawn of the selected candidates as per merit and as per rules. The validity of the panel so drawn will be for a period of two years from the date of approval of the same by competent authority.
(vii) Directives of the Government on reservations will be adhered to.
(viii) Any appointment in respondent-company is subject to the recruitment and promotion rules including the pre-employment formalities and on being declared medically fit by the Medical Officer of the Company, which will also be applicable to these casuals.
(ix) 50 per cent of the vacancies for the post of helper ( Commercial ) will be set apart for casuals who have worked from 1991 onwards.
(x) Those who cannot be appointed due to non-availability of vacancies during the validity of panel would be given ex-gratia payment calculated on the basis of compensation payable under Section 25-F of the Industrial Disputes Act 1947. However, they will have no claim for re-employment as casual or otherwise in future.
(xi) This will be a one time exercise only and will not be quoted as a precedent at any point of time, in future."
As stated earlier, apart from the scheme they also furnished certain information to be taken note of before considering the scheme. It is stated by the management that pursuant to the direction given by the Prime Minister of India in 1992 to effect 10 per cent cut in the staff strength across the Board, the Ministry of Civil Aviation has been consistently reviewing the status. It is also stated that the Fifth Pay Commission had also stated that 30 per cent posts have to be abolished in the next ten years or three percent (sic) annually. The Ministry of Civil Aviation adopted the following course of action:
(a) Freeze on further recruitment;
(b) reduction in manpower by 3 per cent per annum, leading to 30 per cent reduction in 10 years.
(c) introduction of Voluntary Retirement Scheme;
(d) Strict enforcement of provisions relating to compulsory retirement;
(e) Optimal utilisation of existing manpower and restructuring the organisation to make them more efficient and result oriented.
It is further stated that the respondent-company has been suffering losses from 1989-1990, In order to overcome the continuous loss, it is stated that the Government of India constituted a Committee of Experts in February 1995 with Dr. Vijay Kelkar, Secretary, Ministry of Petroleum, and Natural Gas as the Chairman, to make a comprehensive examination of the reasons for losses and to develop strategies for turning around the respondent-company in the context of competitive market environment. The committee recommended two phased strategy for revitalisation of the respondent-company. The Government of India towards implementation of the Kelkar Committee recommendations laid down, among others, the following milestones for capital restructuring of respondent-company:
"(a) In the next three years, employees productivity in terms of ATKm achievement will be increased by 50 per cent;
(b) Freeze on recruitment;
(c) increase in staff costs per ATKm will not be allowed beyond inflation rate;
(d) productivity targets will be improved as under:
(i) Passenger employee ratio:
1997-1998 360 (existing) 1998-1999 385 1999-2000 425
(ii) Total revenue earnings: 1997-1998 Rs. 16.60 Lakhs (existing) 1998-1999 Rs. 18.15 Lakhs 1999-2000 Rs. 20.00 Lakhs
(iii) The employee to aircraft ratio will be reduced progressively by 5 per cent in the next five years and by further 5 per cent in the following five years;"
It is further stated that based on the report, the respondent-company has initiated various measures to restructure the existing manpower. Towards this end, efforts have been initiated to curb absenteeism among employees, control and monitor overtime, casual employment, etc., for optimum utilisation of the existing manpower as also embark upon re-skilling and redeployment. The recommendations of the Kelkar Committee have been accepted by the Government and it has been decided to carry out equity injection. They also introduced a voluntary retirement scheme and also is proposing to redeploy the surplus manpower. From the year 1992, the monopoly of the respondent company in connection with the domestic air travel had come to an end, since the Government of India changed the policy and adopted open sky policy. Because of the various Private Airlines entering into airline business, the monopoly status of the respondent company had come to an end. It is also stated that the respondent was faced with competition from other private airlines who are trying to capture the market. The market share of the respondent company had reduced considerably and as a result, the respondent company is now facing a situation to curtail the number of employees. To achieve this, the respondent company is proposing to adopt various methods such as voluntary retirement etc.
13. Dr. K.P. Krishna Shetty, learned counsel appearing for the canteen workers union, would contend that in view of the various orders passed by this Court in the years 1991 and 1992, the recruitment of casuals made after the order of AR. LAKSHMANAN, J., dated July 21, 1992, has no validity. He also contended that by virtue of various interim orders, the members of the petitioner union continue to work as casuals uninterruptedly from 1991 to 1997; consequently they served more than 240 days. He also contended that the members of the petitioner-union worked for 4 to 5 years as casuals prior to the date of filing of the writ petition. So many of them have already put in 240 days work. Accordingly it is stated that the initial date of appointment of the employee should be taken into consideration to determine the seniority. He also contended that notwithstanding the intermittent breaks in service imposed on the casuals to circumvent the law, all casuals, who in the course of their employment as casual labourers completed 240 days work, are legally entitled to regularisation of jobs. He further contended that apart from regularisation of casual workers, who worked hitherto, are entitled to get full pay from the date of their initial engagement as casuals equal to the pay of permanent Class IV employees who perform jobs similar to that of the casuals. He also contended that loss to a concern cannot be ground for either denying a job to the worker or for paying lesser than fair wage.
14. Smt. D. Geetha, learned counsel appearing for some of the petitioners highlighted that the petitioners are working continuously for the past 15 years on rotation basis. According to her the cessation of employment of the petitioners after 90 days every year amounts to retrenchment under Section 2(oo) of the Industrial Disputes Act, Retrenched workmen are bound to be re-employed as per Section 25-H of the said Act. By pointing out various decisions of the Hon'ble Supreme Court, she submitted that regularisation of workmen employed as casuals is obligatory on the part of the authority, The scheme framed by the management is subject to scrutiny of this Court and it is open to this Court to ascertain whether the same is in accordance with the provisions of Industrial Disputes Act, and the directions issued by the Supreme Court as well as this Court in various judgments on the matter of regularisation, whether the said scheme is fair, just and equitable and also whether it ensures a life with human dignity guaranteed under Article 21 read with Article 41 of the Constitution.
15. Sri Fredrick Castro appearing for some of the petitioners would submit that all the workmen engaged by the management are in short called "Helpers (Commercial)." The name of the post is Helper (Commercial). The employment of the petitioners is inevitable and the work is of perennial nature. The work continues throughout the year. As per the circular issued by the respondent-management, even on October 24, 1970, the services of the petitioners are to be regularised. He also contended that the respondents are not justified in observing 50 per cent of the existing casuals and 50 per cent from outside. When experienced persons are at hand and freely available in plenty, there is no need to take 50 per cent of the persons from outside, accordingly the scheme formulated by the management cannot be accepted. The circular dated October 24, 1970 has not been brought to the knowledge of this Court. The new scheme formulated by the management is unnecessary. Accordingly, he prayed for regularisation of all the casuals who have put in atleast 2 spells of 90 days each subject to certain conditions and for absorption in the regular cadre in due course based on their seniority.
16. Sri V. Prakash, learned counsel appearing for some of the petitioners highlighted individual grievance of the writ petitioners. He contended that the work for which the petitioners were employed did not cease and it is of a permanent nature. It is not proper on the part of the management to give artificial breaks in their service by terminating their service on the 90th or 110th day and recruiting in their place a fresh set of workers. The motive behind the practice is to deny the benefits of labour welfare legislations to the workers. Any scheme put up by the employer should be tested for fairness by this Court and only a scheme that is fair ought to be accepted as that alone would pass the test of reasonableness and fairness mandated under Article 14 of the Constitution. By the present action of the respondents, the petitioners' fundamental rights under Article 14 of the Constitution and rights under Sections 25-G, 25-H, 25-T and 25-U of the Industrial Disputes Act have been violated. He also contended that, the scheme of other regions approved by various High Courts as well as the Supreme Court are not applicable to the present case as the said scheme was evolved based on facts peculiar to a particular zone.
17. Sri M.V. Muralidaran, learned counsel appearing for some of the petitioners, while adopting the argument of Dr. Krishna Shetty, would contend that the employment on rotation basis has been held to be unfair labour practice on the part of the employer in various decisions by the Hon'ble Supreme Court. He also contended that the cessation of employment of the petitioner after 90 days every year amounts to retrenchment under Section 2(oo) of the Industrial Disputes Act. The Scheme framed by the respondent is totally against all canons of justice.
18. Sri V. Dhanapalan and Sri K.M. Ramesh, learned counsel appearing for the petitioner in Writ Petition No. 609 of 2000 and 1734 of 2000 respectively while reiterating their claim for regularisation, adopted the arguments made by the other counsel.
19. Ms. Anna Mathew, learned counsel appearing for the petitioners in Writ Petition No. 1146 of 2000, raised an objection to Clause III of the scheme which states that casuals who have worked from 1991-1992 would be given age relaxation. According to her, the cut-off date fixed without any reasons affects people like the petitioners who have worked in earlier period and who will be deprived of the age relaxation simply because the cut-off date is fixed. She also contended that Clause IX of the scheme which states 50 per cent of vacancies of Helpers (Commercial) will be set apart for casuals who have worked from 1991 is unacceptable since it once again eugroses (sis) the claim of the petitioners who have worked even before 1991.
20. Sri N.G.R. Prasad, learned counsel appearing for the Indian Airlines-Management, would contend that unlike Government Department, the respondent Airlines are a Commercial Corporation, hence the question of regularisation will depend on:
(i) the economic position of the Corporation;
(ii) sanctioned posts; and
(iii) fulfillment of R and P Rules.
If the casuals who had been employed over a period of years from 1991, which is around 2506 ought to be absorbed without reference to actual vacancies and viability of the Corporation, it will lead to unworkable state of affairs. They pay wages more than the minimum wages prescribed. He also contended that the casuals do not get a right for regularisation merely because they had been employed for a long term. He further contended that Court cannot order a wholesale regularisation because it will add to public exchequer and the cadre strength. The 1970 circular relied on by some of the petitioners is no longer in existence. The petitioners were not empanelled as per that circular. In view of the subsequent circular, dated February 28, 1994, the petitioners have no right in relying upon 1970 circular which is obsolete. He also submitted that casuals can claim no preference for absorption unless they are selected under the R and P Rules or they are absorbed as per the scheme. In spite of financial constraint, the Airlines have framed a scheme which is just equitable and fair in the light of the various decisions of the Hon'ble Supreme Court, accordingly he prayed for dismissal of all the writ petitions directing the casuals to work out their rights as per the scheme filed in the form of an affidavit.
21. I have considered the rival submissions.
22. As stated earlier, I have to consider whether the petitioners who are employed as casuals are to be regularised in the service of the Indian Airlines as claimed by them or the scheme framed and filed before this Court in the form of an affidavit has to be approved? There is no dispute that even prior to 1991, the management had engaged certain persons as casuals in staff canteen and also as helpers. In so far as the staff canteen is concerned, it is the definite stand of the management that there is no statutory requirement under any of the existing Labour Laws to run a staff canteen at Madras. According to them, the same was being run purely as a welfare measure to cater to the requirements of the employees. It is also their case that the engagement of the casuals was restricted only against heavy absenteeism and unexpected increase in work load. When the canteen workers union as well as other individual casual workers working as helpers, loaders, peons, safaiwalas, etc., moved this Court by way of the above writ petitions, after taking note of various interim orders by this Court, this Court on December 23, 1997 directed the management to place before the Court a scheme dealing with the cases of casual labourers who had been employed by them from the year 1991. Pursuant to the direction by this Court, the management taking note of the plight of the casuals as well as the availability of work and the financial position, framed a scheme. I have already extracted the scheme submitted through an affidavit by their Senior Manager (Personnel). Before considering the claim of the petitioners for absorption and regularisation of all the casuals and the stand of the management for approval of their scheme framed pursuant to the direction of this Court, I shall consider various decisions cited at the Bar.
23. Dr. K.P. Krishna Shetty, learned counsel for the petitioners in Writ Petition No. 17381 of 1991, has very much relied on the decision in the case of Daily-Rated Casual Labour, Post and Telegraphs Department v. Union of India wherein the following passage in 1988-I-LLJ-370 at 375 is relevant:
"9. The right to work, the right to free choice of employment, the right to just and favourable conditions of work, the right to protection against unemployment, the right of every one who works to just and favourable remuneration ensuring a decent living for himself and for family, the right of every one without discrimination of any kind to equal pay for equal work, the right to rest, leisure, reasonable limitation on working hours and periodic holidays with pay, the right to form trade unions and the right to join trade unions of one's choice 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 true that all these rights cannot be extended simultaneously. But they do indicate the socialist goal. The degree of achievement in this direction depends upon the economic resources willingness of the people to produce and more than all the existence of industrial peace throughout the country. Of those rights the question of security of work is of utmost importance. If a person does not have the feeling that he belongs to an organization engaged in production, he will not put forward his best effort to produce more. That sense of belonging arises only when he feels that he will not be turned out of employment the next day at the whim of the management. It is for this reason it is being repeatedly observed by those who are in charge of economic affairs of the countries in different parts of the world that as far as possible security of work should be assured to the employees so that they may contribute to the maximisation of production. 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 unreasonably long period of time...".
24. In the case of General Secretary Bihar State Road Transport Corporation Karmachari Union, Patna v. Presiding Officer, Industrial Tribunal, Patna 1988-II-LLJ-109, the Hon'ble Supreme Court directed the Bihar State Road Transport Corporation to prepare a reasonable scheme for regularisation of the casual labourers who have been working for more than one year. Their Lordships have further directed that the scheme shall be prepared within one month and that the Transport Corporation to pay with effect from January 1, 1987, salary and allowances to the casual labourers at the minimum pay in the pay-scale of regularly employed, persons in the corresponding cadres of the Corporation.
25. In Dhirendra Chamoli and Anr. v. State of Uttar Pradesh 1986-I-LLJ-134, Their Lordships have held, in at pp. 135, 136 of LLJ that:
"2. ....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 receive the same salary and conditions of service as Class IV employees."
26. In the case of Dharwad District Public Works Department Literate Daily-wages Employees Association v. State of Karnataka , the Hon'ble Supreme Court has observed:
"..... even casual workmen are entitled at the rates equivalent to the minimum pay in the pay-scales of regular employees and also directed the State Government to frame a rational scheme...."
27. In Indian Petrochemicals Corporation Ltd. v. Shramik Sena, the Hon'ble Supreme Court approved the direction of the High Court regarding the absorption of the canteen employees subject to fulfilling certain conditions.
28. In Bijay Cotton Mills Ltd. v. State of Ajmer with regard to payment of decent wages, Their Lordship have held as follows:
"It can scarcely be disputed that securing of living wages to labourers which ensure not only bare physical subsistence but also the maintenance of health and decency, is conducive to the general interest of the public. This is one of the Directive principles of State Policy embodied in Article 43 of our Constitution....."
29. Smt. D. Geetha, learned counsel for some of the petitioners, by pointing out the decision of the Apex Court in the case of Central Bank of India v. S. Satyam, , would contend that as per Section 25-H of the Industrial Disputes Act retrenched workmen are to be given re-employment. In that decision, their Lordships have observed, in Paras 10 and 11 of 1996-II-LLJ-820 at 826, 827:
"10. Section 25-H is capable of application to all retrenched workmen, not merely those covered by Section 25-K According to them, it does not require curtailment of the ordinary meaning of the word "retrenchment" used therin. The provisions for re-employment of retrenched workmen gives preference to a retrenched workman in the matter of re-employment over other persons. They further held that it is enacted for the benefit of the retrenched workmen and there is no reason to restrict its ordinary meaning which promotes the object of the enactment without causing any prejudice to a better placed retrenched workman.
11. According to them, Chapter V-A, in which Section 25-H occurs, provides for retrenchment and is not enacted only for the benefit of the workmen to whom Section 25-F applies but for all cases of retrenchment and, therefore, there is no reason to restrict the application of Section 25-H therein only to one category of retrenched workmen...."
30. In the case of State of Haryana v. Piara Singh , regarding creation and abolition of a post, their Lordships have held as follows, in 1993-II-LLJ-937 at 944, 945:
"21. Ordinarily speaking, the creation and abolition of a post is the prerogative of the executive, it is the executive again that lays down the conditions of service subject, of course, to a law made by the appropriate Legislature. This power to prescribe the conditions of service can be exercised either by making rules under the proviso to Article 309 of the Constitution or (in the absence of such rules) by issuing rules/instructions in exercise of its executive power. The Court comes into the picture only to ensure observance of fundemental rights, statutory provisions, rules and other instructions, if any, governing the conditions of service. 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. It also means that the State should not exploit its employees nor should it seek to take advantage of the helplessness and misery of either the unemployed persons or the employees, as the case may be. As is often said, the State must be a model employer. It is for this reason, it is held that equal pay must be given for equal work, which is indeed one of the directive principles of the Constitution. It is for this very reason it is held that a person should not be kept in a temporary or ad hoc status for long. Where a temporary or ad hoc appointment is continued for long the Court presumes that there is need and warrant for a regular post and accordingly "directs regularisation..."
Again their Lordships have held in 1993-II-LLJ-937 at 957:
"51. So far as 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 two or three years a presumption may arise that there is regular need for his services. In such a situation, it becomes obligatory for the authority concerned to examine the feasibility of his regularisation...."
31. The Hon'ble Supreme Court in Jacob M. Puthuparambil v. Kerala Water Authority has held at p 74 of LLJ:
"15. .... employees serving for a reasonably long period and having requisite qualification for the job deserve to be regularised..."
32. In Dharwad Public Works Department Literate Daily-Wages Employees' Association v. State of Karnataka, (supra), their Lordships of the Supreme Court have held that while considering viability of a scheme for regularisation, Court will keep in mind both the anxiety of the aggrieved workers as also economic constraints of the State or its instrumentality.
33. In Pippalla Surya Bhagavan v. Member Secretary Andhra Pradesh State Electricity Board 1999-II-LLJ-1004 the Full Bench of Andhra Pradesh High Court has held that scheme for absorbing ex casual labourers being benevolent one has to be interpreted in manner which furthers its object.
34. With regard to absorption of census workers recruited on temporary basis, the Hon'ble Supreme Court in Government of Tamil Nadu v. G. Mohd Ammeenudeen, 1999 (3) L.L.N 873, has observed as follows:
"(4).. considering the special features of the case, it would be appropriate for the State Government to frame a scheme to absorb the respondents and other employees, who were similarly placed and who have been retrenched. On the commencement of the census operations, persons who have registered themselves in the Employment Exchange get jobs in that Department. However, when the project is over, their employment would come to an end and they are retrenched thereby losing both the employment and their position in the queue in the Employment Exchange. Bearing this aspect in mind, the Government was asked to work out an appropriate scheme.
(5) the condition relating to the exclusion of three years from their age shall be deleted. Subject to this modification, the scheme proposed by the State Government may be worked out so as to absorb the respondent in services of the State Government in any of the local authority or Government undertaking as may be feasible as expeditiously as possible."
35. In Inter Pal Yadav and Ors. v. Union of India and Ors., 1985-II-LLJ-406, their Lordships of the Supreme Court have approved the scheme framed by the Railways in respect of casual labourers who were retrenched after completion of the project with modification in respect of cut-off date. Similar order has been passed by the Supreme Court in Dakshin Railway Employees Union, Trivandrum Division v. G.M. Southern Railway and Ors. 1987-I-LLJ-505 (SC).
36. In the case of Bhagwati Prasad v. Delhi State Mineral Development Corporation, the Hon'ble Supreme Court has held in p 322 of LLJ :
"6. ....practical experience would always aid the person to effectively discharge the duties and is a sure guide to assess the suitability. The initial minimum educational qualification prescribed for the different posts is undoubtedly a factor to be reckoned with but it is so at the time of the initial entry into the service. Once the appointments were made as daily-rated workers and they were allowed to work for a considerable length of time, it would be hard and harsh to deny them the confirmation in the respective posts on the ground that they lack the prescribed educational qualifications..."
37. In the case of Daily-Rated Casual Labour v. Union of India, (supra), the Supreme Court has directed the Post and Telegraph Department 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 their department.
38. In Indian Airlines Ltd. v. Samaresh Bhowmick the Supreme Court has observed that:
".... However we are of the opinion that the respondents having been selected in the test earlier should be given preference in the matter of their consideration under the Scheme. In the result the appeals are allowed to the extent that the respondents shall be given preference for regularization of their service consistently with the Scheme...."
39. The Hon'ble Supreme Court, in State of Haryana and Ors. v. Piara Singh and Ors., (supra), while setting aside the conditions imposed by the High Court for regularisation of ad hoc/ temporary employees in Punjab and Haryana States, who have put in one year's service, has arrived at the following conclusion, in 1993-II-LLJ-937 at 950:
"33. Now coming to the direction that all those ad hok temporary employees who have continued for more than a year should be regularised we find it difficult to sustain it. The direction has been given without reference to the existence of a vacancy. The direction in effect means that every ad hoc/temporary employee who has been continued for one year should be regularised even though :
(a) no vacancy is available for him which means creation of a vacancy;
(b) he was not sponsored by the Employment Exchange nor was he appointed in pursuance of a notification calling for applications which means he had entered by a back-door;
(c) he was not eligible and/or qualified for the post at the time of his appointment;
(d) his record of service since his appointment is not satisfactory.
These are in addition to some of the problems indicted by us in para 25, which would arise from giving of such blanket orders. None of the decisions relied upon by the High Court justify such wholesale, unconditional orders. Moreover, from the mere continuation of an ad hoc employee for one year, it cannot be presumed that there is need for a regular post. Such a presumption may be justified only when such continuance extends to several years. Further, there can be no "rule of thumb" in such matters. Conditions and circumstances of one unit may not be the same as of the other. Just because in one case, a direction was given to regularise employees who have put in one year's service as far as possible and subject to fulfilling the qualifications, it cannot be held that in each and every case such a direction must follow irrespective of and without taking into account the other relevant circumstances and considerations. The relief must be moulded in each case having regard to all the relevant facts and circumstances of that case. It cannot be a mechanical act but a judicious one. Judged from this stand point, the impugned directions must be held to be totally untenable and unsustainable."
40. While disapproving the direction issued by the Division Bench of the Jammu and Kashmir High Court in the matter of regularisation of respondents therein, whose appointments were made on ad hoc basis in different disciplines of Medical Education from 1986, the Hon'ble Supreme Court in Jammu and Kashmir Public Service Commission v. Dr. Narinder Mohan :
"10. .... the Public Service Commission cannot be directed to devise a third mode of selection, as directed by the High Court, nor be mandated to disobey the Constitution and the law.."
The Hon'ble Supreme Court has also held, in 1994-I-LLJ-780 at 787:
"11. This Court (Supreme Court) did not appear to have intended to lay down as a general rule that in every category of ad hoc appointment, if the ad hoc appointee continued for long period, the rules of recruitment should be relaxed and the appointment by regularisation be made. The Supreme Court further held that the direction of the Division Bench is clearly illegal and the learned single Judge is right in directing the State Government to notify the vacancies to the Public Service Commission and the Public Service Commission should advertise and make recruitment of the candidates in accordance with the rules.
41. With regard to regularisation of persons appointed directly as casual mates in the Railway even though acquiring temporary status by completing requisite length of service, the Hon'ble Supreme Court in Union of India v. Motilal has held thus:
"Thus it is apparent that a daily wage or casual worker against a particular post when acquires a temporary status having worked against the said post for specified number of days does not acquire a right to be regularised against the said post. He can be considered for regularisation in accordance with the rules and, therefore, so far as the post of mate under Railways is concerned, the same has to be filled up by a promotion from the post of gangman and key-man in Class IV subject to employees passing the trade test"
42. In the case of State of Uttar Pradesh and Ors. v. Ajay Kumar the Hon'ble Supreme Court has held as follows :
"......Daily wage appointment will obviously be in relation to contingent establishment in which there cannot exist any post and it continues so long as the work exists. Under these circumstances, the Division Bench was clearly in error in directing the appellant to regularise the service of the respondent to the post as and when the vacancy arises and to continue him until then. The direction in the backdrop of the above facts is, obviously, illegal."
43. The entire analysis of the above mentioned decisions, particularly, the decisions of the Hon'ble Supreme Court would show that no one should be kept as casual worker for a longer period and approved the schemes prepared by Railways, and Post and Telegraph Department for rehabilitation of the casual labourers. No doubt, certain clauses like cut-off date, etc., have been enlarged by the Hon'ble Supreme Court. The Supreme Court has also held that even the casual labourers are to be paid on par with persons working in cadre if they do the same work. Even though it is stated that the casual workers were not paid even the minimum wages, it was brought to my notice by Sri N.G.R. Prasad, learned counsel for the respondent-Indian Airlines that as per circular, dated January 20, 1999, the peon/loader/helper is paid Rs. 127 per day and the driver is paid Rs. 140 per day. If that is so, even on the basis of 26 working days in a month, they will get Rs. 3,302 and 3,640 per month respectively. This can by no stretch of imagination be said to be below the minimum wages, as contended by the petitioners it is also clear from the above decisions that there is no second opinion regarding regularisation of casual workers who fulfil certain conditions and satisfy R and P Rules. It is also clear that this Court cannot compel the employer to regularise all the casual workers irrespective of the existence of posts and financial constraint. Accordingly, it is clear that there must be a sanctioned post or required work coupled with the financial position of the undertaking or company. In this background, now I shall consider whether the scheme formulated by the respondents is acceptable or not? I have already stated that the respondents 1 and 2 being a commercial Corporation, the regularisation will depend on its economic position, its sanctioned post and fulfilment of R and P Rules. It is also brought to my notice that the Indian Airlines are not any longer in a viable position and that they do not enjoy monopoly any more. It is also brought to my notice that privatisation has come in a big way and many of the trunk routes like Madras-Delhi, Madras-Bombay which bring in lot of revenue to the Corporation have been thrown open to private carriers like Jet Airways, etc. The respondents have given the details of number of passengers they carry, passenger load factor and number of employees for the last 10 years, i.e., from 1989-90 to 1998-99. The said details are extracted below :
STATISTICAL DETAILS OF PASSENGER LOAD FOR THE LAST 10 YEARS (1989-90 TO 1998-99) (Information from 10 years approved Annual Report) Sl No. Details 1989-90 1990-91 1991-92 1992-93 1993-94 1994-95 1995-96 1596-97 1997-98 1998-99 01 No. of Passengers Carried 98,45,985 78,65,890 88,85,600 78,20,748 78,91,000 76,35,000 77,42,000 70,98,000 63,63.000 60,69,000 02 Passenger Load Factor 76.6 78.8
73. 74.0 68.6 69.7 73.4 69.5 67.4 63.1 03 No. of employees 21,737 22,082 22,] 12 22,470 22,220 21,062 20,758 22,153 22,073 21,928 *includes 100 Vayudoot employees absorbed in IAL as per Government directive. Note: In the year 1989-90, for carrying 98,45,985 passengers, we had 21,737 employees. In the year 1998-99, for carrying 60,69,000 passengers, the no of employees were 21,928.
According to the learned counsel for respondents 1 and 2, these details have been taken from the annual audit report which was placed before the Parliament. It is clear that the passenger load has gone down from 76.6 per cent to 63.1 per cent whereas the number of employees have not come down. On the contrary, the number of employees which were 21,737 in 1989-90, is now (1998-99) at 21,928. Apart from this, in the earlier part of my order, I have referred to the recommendation made by Kelkar Committee to freeze recruitment, reduction of manpower, introduction of Voluntary Retirement Scheme, etc. It is stated by the respondents 1 and 2 that even if cutoff year is fixed as 1990-1991, around 2506 casuals are to be absorbed without reference to actual vacancies or viability of the Corporation which will lead to an un-workable state of affairs. In this regard, Sri N.G.R. Prasad is right in contending that the decision in Daily-rated Casual Labour Posts & Telegraphs Department v. Union of India (supra), cannot be compared and cited to this case since the daily-rated casuals in Post and Telegraph Department, where the welfare schemes are on an ongoing process and the Government servants are paid out of the revenues collected by the Government, whereas payment in the case of the Indian Airlines has to come out of the profit made by the Corporation. Even though it is true that many of them had been employed for 90 days in a year, as rightly contended, that does not give them an automatic right to regularisation.
44. I have already referred to various decisions of the Hon'ble Supreme Court regarding regularisation of casual workers as well as formation of certain schemes to help those persons. Apart from the said decisions, it is brought to my notice that question of regularisation of casual labourers has been the subject-matter of at least 4 decisions with reference to Indian Airlines itself. In similar circumstance, on a reference made by the Government of India under Section 10(2A)(1)(d) of the Industrial Disputes Act, the Industrial Tribunal, Alleppey, in Industrial Dispute No.37 of 1987, dated May 23, 1988, directed the Management, namely, Indian Airlines that casual employment shall be offered on rotation by choosing one each from the respective panels. Aggrieved by the said order, the Indian Airlines, Ernakulam filed O.P.No. 8218 of 1988 before the High Court of Kerala. Upon that the learned single Judge of the Kerala High Court modified the order of the Tribunal and directed that 50 per cent of the vacancies is reserved for respondents 1 to 12, and the other set of workmen similarly placed and who had been employed prior to 1982, The other 50 per cent of the vacancies is allotted to casuals who had been employed after 1982. To that extent, the award of the Tribunal has been modified. Against the order of the learned single Judge, the Indian Airlines, Ernakulam, filed appeal in Writ Appeal No. 534 of 1989 before the Division Bench. After considering the matter in detail, the Division Bench by order, dated July 5, 1990, allowed the writ appeal and quashed the order passed by the learned single Judge as well as the award passed by the Industrial Tribunal. The aggrieved workmen filed S.L.P. before the Hon'ble Supreme Court in Civil Appeal Nos. 11413-14 of 1990, dated October 23, 1990. It is clear from the order of the Supreme Court that casual employees should be considered afresh by the management for being employed as casual labour subject to availability of work.
45. The other decision arose from the Calcutta High Court. In Writ Petition No. 3275 of 1989, (Phani Bhusan Dutta v. Indian Airlines and Ors.) a learned single Judge of the Calcutta High Court, while dismissing a writ petition filed by casual employee, has held that:
"... In my opinion, Article 14 is not to be used for creating a labour agreement for an individual when an agreement does not extend to the class to which he belongs."
The said order has been affirmed by the Division Bench in G.A.No. 1347 of 1997 dated December 4, 1997. The Division Bench has held that once they complete 240 days they cannot claim regularisation on that basis. The Division Bench further held that their case should be considered along with the other eligible candidates. S.L.P.(Civil) No. 14877 of 1998 filed against the judgment of the Calcutta High Court was dismissed upholding the contentions raised by the management. Another Division Bench decision of the Delhi High Court in C.W.No. 2644 of 1997 and 5229 of 1997, dated August 23, 1998 supports the stand of the management. The decision reported in Indian Airlines v. Samaresh Bhowmick (supra), also relates to Indian Airlines and scheme framed by them for regularisation on posts of helpers in Commercial, Engineering, Stores, Ground Support, Catering Canteens and Peons etc. In that case, the management-Indian Airlines prepared a list of selected persons for appointment to the post of helpers. The select list was valid up to July 15, 1994. The names of 74 writ petitioners the respondents therein, were included in the select list but they could not be appointed during the period of validity of the select list. The unsuccessful workmen approached High Court of Calcutta by filing a writ petition. The learned single Judge inter alia held that the respondents had no indefeasible right of being appointed and they had only the right of being considered for appointment in the vacancies for which selection was made contingent upon the appellant filling up those vacancies. However, the learned single Judge directed that the oases of the respondents should be considered for appointment if any vacancies arose till July 30, 1991. Against the judgment of the learned single Judge, an appeal was laid before the Division Bench, and by order, dated August 12, 1998 the Division Bench of the Calcutta High Court inter alia directed that in the present vacancies as well as future vacancies, the candidates who were selected and empanelled shall be regularised first. The appellant/Indian Airlines proposed a scheme for regularisation of casual employees working in Calcutta and the respondents were also given casual employment by the appellant/ management. The Supreme Court has extracted various clauses in the scheme. The contention on behalf of the appellant was that as the life of the select list had expired long back, the direction of the Division Bench is not relevant. It has also been urged that merely because the candidates were empanelled, it would not give any right to them for appointment and at best they may have the right for consideration for appointment. It has been further contended on behalf of the appellant that as the scheme has been prepared for absorption of casual employees which would also include the present respondents, the judgment of the Division Bench of the High Court is not at all sustainable in view of the above scheme. In such a circumstance, the Hon'ble Supreme Court has held as follows :
"We are of the considered opinion that the impugned judgment of the Division Bench of the High Court is not sustainable inasmuch as High Court could not have overlooked the scheme. However, we are of the opinion that the respondents having been selected in the test earlier should be given preference in the matter of their consideration under the scheme. In the result the appeals are allowed to the extent that the respondents shall be given preference for regularisation of their service consistently with the scheme extracted above."
It is clear that the Hon'ble Supreme Court has held that regularisation has got to be consistent with the scheme. All the above decisions, which relate to Indian Airlines clearly established that the casuals by their very nature of employment do not have any right apart from the scheme. Otherwise they have to take their chance along with others in accordance with the R and P Rules.
46. The decisions relating to Indian Airlines cases support the stand of the management and in view of the various clauses, particularly, relaxation of age for certain period keeping 50 per cent of the vacancies for the post of Helpers (Commercial) exclusively for them and a need to pay compensation as per Section 25-F of the Industrial Disputes Act to those who do not get absorption, I am of the view that the scheme as formulated by the respondents 1 and 2 has to be approved.
47. Even in the other judgments, as rightly pointed out by Sri N.G.R. Prasad, the legal position is not different. In State of Haryana and Ors. v. Piara Singh and Ors. (supra), the Hon'ble Supreme Court has held that a practical and pragmatic view has to be taken and the Court cannot order a wholesale regularisation because it will add to public exchequer and cadre strength. They also held that before regularisation post should be available and one must satisfy the qualification prescribed in the rules and also satisfy the scheme conditions. In (1992) 2 SCC 99 where a scheme was prepared for giving relief unemployed persons, the Supreme Court in paras. 16 and 17 have reiterated that there should be sanctioned posts for regularisation. Their Lordships have held that mere completion of 240 days does not entitle a person to regularisation. They have also said that the absorption can only be as per the scheme which principle has been applied in Indian Airlines v. Samresh Bhownick (supra), In Jammu & Kashmir Public Service Commission v. Dr. Narinder (supra), the Supreme Court has held that long period of ad hoc employment will not entitle an employee for regularisation. They have got to compete with others. The Supreme Court has further held that if persons have to be regularised ignoring rules and qualifications, it will amount to a third mode of selection which is not permissible. Same view has been expressed by the Hon'ble Supreme Court in Union of India v. Motilal (supra), . Their Lordships have emphasised that the existence of post before absorption is necessary. The learned counsel for the respondents has also brought to my notice that after 1994 circular Bombay High Court has directed the Indian Airlines to prepare a pool of casuals from among those who have worked between 1993 and 1995 and operate the panel on rotation basis. Though this related to Western Region, the Corporation applied the said direction to all the Regions in the interest of uniformity. It is clear from the various decisions of the Apex Court that the casuals can claim no preference for absorption unless they are selected under R and P Rules or they are absorbed as per the scheme.
48. Regarding the claim that some of the petitioners have been working for the last 15 years continuously this Court, by order, dated December 23, 1997, had directed the management to file particulars regarding the number of days the petitioners and other casuals have been employed since 1991. Those particulars had been furnished to this Court. In the absence of supporting documents regarding their employment for the last 15 years, Indian Airlines has specifically pleaded that there is no factual basis and they are not having any records prior to 1991. Another feature to be noted is that when a large number of people were continued to be employed on rotation basis and they had accepted their position for quite some time, they cannot claim that ail of them should be regularised. If such direction is issued undoubtedly it will lead to an impossible state of affairs. In the light of the particulars furnished by the Indian Airlines, it is also clear that these persons were employed only as casuals in leave vacancies or due to temporary increase in workload on account of taking up handling of flights. If the employees had been employed for 90 days in a year, they cannot claim that they should be absorbed regularly as there were no permanent posts. It is the definite case of the Airlines that these were all casual vacancies in which there are permanent employees and that these persons cannot be absorbed against post in which there are already permanent incumbents. Regarding the claim for consideration of persons who had worked prior to 1991, I am of the view that no such direction be issued since even on earlier occasion, i.e., on December 23, 1997 this Court, after hearing all the parties concerned, directed the Indian Airlines to prepare a scheme for employees who had worked from 1991. It is seen from the averments and proceedings of the Indian Airlines that the records are not available prior to 1991. Further, the earliest writ petition filed before this Court is of the year 1991. As rightly contended by the learned counsel for the respondents, except the statement in the affidavit, there is no acceptable material produced by the petitioners to show that they had worked from 1984.
49. Regarding the scheme of regularization framed in Railways and Government P and T Departments, as rightly contended, the petitioners cannot rely upon those schemes because there is always expansion and availability of jobs in these departments. The petitioners cannot claim regularisation on that basis, in which case, according to the Indian Airlines, it will lead to an impossible state of affairs when 2506 casuals were employed over a period of years, on different dates for different periods. It is their definite case that if they are to be absorbed, Indian Airlines will cease to be a commercial Corporation. The Airlines have already filed a statement showing decline in passenger traffic because of the privatisation policy of the Government of India, which has a direct impact on the employment potential, I have already referred to the Kelkar Committee's report which has advised ban on recruitment and reduction in work force. Undoubtedly, any regularisation should take note of these facts. It is relevant to note that the Hon'ble Supreme Court in Piara Singh case (supra), has held that there should be a pragmatic view, in terms of post being available on satisfying the qualifications prescribed by the rules. In other words, the regularisation will depend upon the vacancy position and qualification. The petitioners cannot rely upon the judgment reported in Government of Tamil Nadu v. G. Mohd. Ammeenudeen (supra) relating to census workers, because that judgment itself states that certain special features were taken into account in framing a scheme. This judgment only emphasises that any scheme should take note of the ground realities. No doubt, in Rajiv Gandhi Transport Corporation case, I had directed the Corporation to give preference to the petitioners therein if any vacancy arises either in the form of casual or permanent. In our case, the scheme provides reservation of 50 per cent of the jobs subject to the other qualifications to the casuals. Therefore, the petitioners cannot make a grievance of the scheme. I have already referred to a similar scheme framed in Calcutta Region that had been approved by the Supreme Court. The other claim that the entire lot of vacancies and not only 50 per cent of the vacancies have got to be given to the casuals who had worked earlier is not acceptable, because, there are persons in the open market who are also looking forward to employment in the Indian Airlines. As rightly contended, they cannot be shut out. As observed by their Lordships in the decision reported in State of Haryana and Ors. v. Piara Singh and Ors. (supra), just because in certain cases a direction was given to regularise employees who have put in one year's service as far as possible and subject to fulfilling the qualifications, it cannot be held that in each and every case such a direction must follow irrespective of and without taking into account the other relevant circumstances and considerations. The relief must be moulded in each case having regard to all the relevant facts and circumstances of that case. It cannot be a mechanical act but a judicious one. In the light of the facts and figures regarding existence of vacancy, their financial position, the scheme framed by the Indian Airlines has to be accepted and the claim of the petitioners have to be considered only in terms of the said scheme.
50. Taking note of the various judicial decisions, particularly the decisions relating to Indian Airlines, approval of their scheme, and after going through the statistical details of passenger load for the last ten years, i.e., 1989-90 to 1998-99 as well as the policy of the Government in permitting the private Airlines to compete with the Indian Airlines, I am of the view that the "Scheme" formulated by the respondent-Indian Airlines is just, equitable and fair; accordingly the same is accepted. The petitioners have to work out their rights as per the scheme referred to in the affidavit of Senior Manager (Personnel) of the Indian Airlines. With these observations, all the writ petitions are dismissed. No costs. Consequently, all the miscellaneous applications are also dismissed.