Punjab-Haryana High Court
Balbir Raj vs Bhakra Beas Management Board And Ors on 24 January, 2024
Neutral Citation No:=2024:PHHC:009983
CWP-23925-2022 1 2024:PHHC:009983
201(2)
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
1) CWP-23925-2022
Date of Decision:24.01.2024
BALBIR RAJ ......... Petitioner
Versus
BHAKRA BEAS MANAGEMENT BOARD AND ORS
..... Respondents
2) CWP-24552-2022
SATNAM SINGH AND ORS .....Petitioners
Versus
BHAKRA BEAS MANAGEMENT BOARD AND ORS
......Respondents
CORAM: HON'BLE MR. JUSTICE JAGMOHAN BANSAL
Present : Mr. Ajayvir Singh, Advocate
for the petitioner (s).
Mr. Sachin Mittal, Advocate and
Mr. Akshit Mittal, Advocate
for the respondents.
****
JAGMOHAN BANSAL, J. (Oral)
1. By this common order CWP-23925-2022 and CWP-24552- 2022 are disposed of since issue involved in both the petitions and prayer sought are common. With the consent of parties and for the sake of brevity, facts are borrowed from CWP-23925-2022.
1 of 14 ::: Downloaded on - 26-01-2024 04:15:43 ::: Neutral Citation No:=2024:PHHC:009983 CWP-23925-2022 2 2024:PHHC:009983
2. The petitioner through instant petition under Articles 226/227 of the Constitution of India is seeking setting aside of order dated 29.01.2014 (Annexure P-4) whereby claim of the petitioner for regularization has been rejected.
3. The petitioners are daily wagers and they are working with respondent-BBMB since 1992. The respondent in 2012 introduced a policy dated 10.05.2012 wherein it was decided to regularize workers who had completed 10 years service from 1997 to 2012. The petitioner claimed for regularization, however, by impugned order their claim came to be rejected on the ground that they do not fulfill eligibility criteria for regularization as laid down in policy of 2001, 2004 and 2012.
3. Mr. Ajayvir Singh, learned counsel for the petitioner submits that petitioners are working with respondent since 1996-1997 and they could not complete 10 years service because every year they were not offered employment and respondent intentionally offered work for few days in each year. The petitioners were always available for work, however, respondent did not avail their services, thus, they cannot be denied benefit of regularization as contemplated by policy of 2012. They have worked for quite long time, thus, they deserve to be regularized.
4. Per contra, Mr. Sachin Mittal, learned counsel for the respondents submits that petitioners were engaged for the purpose of seasonal work. They since 1996-1997 have been engaged, however, they have worked for a very short span and there are many years when they have not worked at all. The claim of regularization is not a vested or fundamental right of the employees. The petitioners were never appointed against regular or sanctioned post. They are causal workers and they do 2 of 14 ::: Downloaded on - 26-01-2024 04:15:44 ::: Neutral Citation No:=2024:PHHC:009983 CWP-23925-2022 3 2024:PHHC:009983 not fulfill requisites of policy of 2012, thus, they cannot be considered for regularization.
5. I have heard the arguments of learned counsels for the parties and perused the record with their able assistance.
6. A Constitution Bench in Secretary, State of Karnataka and Others v. Uma Devi and Others, (2006) 4 SCC 1, has adverted with question of regularization of temporary/part time/adhoc employees. The Court has deprecated practice of employing temporary/part time or contractual employees though Court has held that in exigency, State can make appointment on contract basis. The Court has held that regularization of contractual or part time employees would amount to legalization of back door entry. The regularization of part time employees is violative of Articles 14, 16 & 309 of Constitution of India. The employees who are working on daily wages cannot claim discrimination on the ground that they have been paid lesser than regularly recruited employees. The High Court should not ordinarily issue directions for absorption, regularization or continuance unless the recruitment itself was made regularly and in terms of the constitutional scheme. High Court is not justified in issuing interim orders in such cases. There is no fundamental or vested right in those who have been employed on daily wages or temporary or contractual to claim that they have a right to be absorbed in service. The relevant extracts of the judgment read as:
"43. Thus, it is clear that adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution, a court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to 3 of 14 ::: Downloaded on - 26-01-2024 04:15:44 ::: Neutral Citation No:=2024:PHHC:009983 CWP-23925-2022 4 2024:PHHC:009983 comply with the requirements of Article 14 read with Article 16 of the Constitution. Therefore, consistent with the scheme for public employment, this Court while laying down the law, has necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee. If it is a contractual appointment, the appointment comes to an end at the end of the contract, if it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued. Similarly, a temporary employee could not claim to be made permanent on the expiry of his term of appointment. It has also to be clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules. It is not open to the court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad hoc employees who by the very nature of their appointment, do not acquire any right. The High Courts acting under Article 226 of the Constitution, should not ordinarily issue directions for absorption, regularisation, or permanent continuance unless the recruitment itself was made regularly and in terms of the constitutional scheme. Merely because an employee had continued under cover of an order of the court, which we have described as "litigious employment" in the earlier part of the judgment, he would not be entitled to any right to be absorbed or 4 of 14 ::: Downloaded on - 26-01-2024 04:15:44 ::: Neutral Citation No:=2024:PHHC:009983 CWP-23925-2022 5 2024:PHHC:009983 made permanent in the service. In fact, in such cases, the High Court may not be justified in issuing interim directions, since, after all, if ultimately the employee approaching it is found entitled to relief, it may be possible for it to mould the relief in such a manner that ultimately no prejudice will be caused to him, whereas an interim direction to continue his employment would hold up the regular procedure for selection or impose on the State the burden of paying an employee who is really not required. The courts must be careful in ensuring that they do not interfere unduly with the economic arrangement of its affairs by the State or its instrumentalities or lend themselves the instruments to facilitate the bypassing of the constitutional and statutory mandates.
44. The concept of "equal pay for equal work" is different from the concept of conferring permanency on those who have been appointed on ad hoc basis, temporary basis, or based on no process of selection as envisaged by the rules. This Court has in various decisions applied the principle of equal pay for equal work and has laid down the parameters for the application of that principle. The decisions are rested on the concept of equality enshrined in our Constitution in the light of the directive principles in that behalf. But the acceptance of that principle cannot lead to a position where the court could direct that appointments made without following the due procedure established by law, be deemed permanent or issue directions to treat them as permanent. Doing so, would be negation of the principle of equality of opportunity. The power to make an order as is necessary for doing complete justice in any cause or matter pending before this Court, would not normally be used for giving the go-by to the procedure 5 of 14 ::: Downloaded on - 26-01-2024 04:15:44 ::: Neutral Citation No:=2024:PHHC:009983 CWP-23925-2022 6 2024:PHHC:009983 established by law in the matter of public employment. Take the situation arising in the cases before us from the State of Karnataka. Therein, after Dharwad decision [(1990) 2 SCC 396 : 1990 SCC (L&S) 274 :
(1990) 12 ATC 902 : (1990) 1 SCR 544] the Government had issued repeated directions and mandatory orders that no temporary or ad hoc employment or engagement be given. Some of the authorities and departments had ignored those directions or defied those directions and had continued to give employment, specifically interdicted by the orders issued by the executive. Some of the appointing officers have even been punished for their defiance. It would not be just or proper to pass an order in exercise of jurisdiction under Article 226 or 32 of the Constitution or in exercise of power under Article 142 of the Constitution permitting those persons engaged, to be absorbed or to be made permanent, based on their appointments or engagements. Complete justice would be justice according to law and though it would be open to this Court to mould the relief, this Court would not grant a relief which would amount to perpetuating an illegality.
45. While directing that appointments, temporary or casual, be regularised or made permanent, the courts are swayed by the fact that the person concerned has worked for some time and in some cases for a considerable length of time. It is not as if the person who accepts an engagement either temporary or casual in nature, is not aware of the nature of his employment. He accepts the employment with open eyes. It may be true that he is not in a position to bargain--not at arm's length--since he might have been searching for some employment so as to eke out 6 of 14 ::: Downloaded on - 26-01-2024 04:15:44 ::: Neutral Citation No:=2024:PHHC:009983 CWP-23925-2022 7 2024:PHHC:009983 his livelihood and accepts whatever he gets. But on that ground alone, it would not be appropriate to jettison the constitutional scheme of appointment and to take the view that a person who has temporarily or casually got employed should be directed to be continued permanently. By doing so, it will be creating another mode of public appointment which is not permissible. If the court were to void a contractual employment of this nature on the ground that the parties were not having equal bargaining power, that too would not enable the court to grant any relief to that employee. A total embargo on such casual or temporary employment is not possible, given the exigencies of administration and if imposed, would only mean that some people who at least get employment temporarily, contractually or casually, would not be getting even that employment when securing of such employment brings at least some succour to them. After all, innumerable citizens of our vast country are in search of employment and one is not compelled to accept a casual or temporary employment if one is not inclined to go in for such an employment. It is in that context that one has to proceed on the basis that the employment was accepted fully knowing the nature of it and the consequences flowing from it. In other words, even while accepting the employment, the person concerned knows the nature of his employment. It is not an appointment to a post in the real sense of the term. The claim acquired by him in the post in which he is temporarily employed or the interest in that post cannot be considered to be of such a magnitude as to enable the giving up of the procedure established, for making regular appointments to available posts in the services of the State. The argument that since one has 7 of 14 ::: Downloaded on - 26-01-2024 04:15:44 ::: Neutral Citation No:=2024:PHHC:009983 CWP-23925-2022 8 2024:PHHC:009983 been working for some time in the post, it will not be just to discontinue him, even though he was aware of the nature of the employment when he first took it up, is not one that would enable the jettisoning of the procedure established by law for public employment and would have to fail when tested on the touchstone of constitutionality and equality of opportunity enshrined in Article 14 of the Constitution.
46. Learned Senior Counsel for some of the respondents argued that on the basis of the doctrine of legitimate expectation, the employees, especially of the Commercial Taxes Department, should be directed to be regularised since the decisions in Dharwad [(1990) 2 SCC 396 : 1990 SCC (L&S) 274 : (1990) 12 ATC 902 : (1990) 1 SCR 544] , Piara Singh [(1992) 4 SCC 118 : 1992 SCC (L&S) 825 : (1992) 21 ATC 403 :
(1992) 3 SCR 826] , Jacob [Jacob M. Puthuparambil v. Kerala Water Authority, (1991) 1 SCC 28 : 1991 SCC (L&S) 25 : (1991) 15 ATC 697] and Gujarat Agricultural University [Gujarat Agricultural University v. Rathod Labhu Bechar, (2001) 3 SCC 574 : 2001 SCC (L&S) 613] and the like, have given rise to an expectation in them that their services would also be regularised. The doctrine can be invoked if the decisions of the administrative authority affect the person by depriving him of some benefit or advantage which either (i) he had in the past been permitted by the decision-maker to enjoy and which he can legitimately expect to be permitted to continue to do until there have been communicated to him some rational grounds for withdrawing it on which he has been given an opportunity to comment; or (ii) he has received assurance from the decision-maker that they will not be withdrawn without giving him first an opportunity of advancing reasons for contending that 8 of 14 ::: Downloaded on - 26-01-2024 04:15:44 ::: Neutral Citation No:=2024:PHHC:009983 CWP-23925-2022 9 2024:PHHC:009983 they should not be withdrawn. [See Lord Diplock in Council for Civil Services Union v. Minister of Civil Service [1985 AC 374 : (1984) 3 All ER 935 : (1984) 3 WLR 1174 (HL)] , National Buildings Construction Corpn. v. S. Raghunathan [(1998) 7 SCC 66 : 1998 SCC (L&S) 1770] and Chanchal Goyal (Dr.) v. State of Rajasthan [(2003) 3 SCC 485 : 2003 SCC (L&S) 322] .] There is no case that any assurance was given by the Government or the department concerned while making the appointment on daily wages that the status conferred on him will not be withdrawn until some rational reason comes into existence for withdrawing it. The very engagement was against the constitutional scheme. Though, the Commissioner of the Commercial Taxes Department sought to get the appointments made permanent, there is no case that at the time of appointment any promise was held out. No such promise could also have been held out in view of the circulars and directives issued by the Government after Dharwad decision [(1990) 2 SCC 396 : 1990 SCC (L&S) 274 : (1990) 12 ATC 902 : (1990) 1 SCR 544] . Though, there is a case that the State had made regularisations in the past of similarly situated employees, the fact remains that such regularisations were done only pursuant to judicial directions, either of the Administrative Tribunal or of the High Court and in some cases by this Court. Moreover, the invocation of the doctrine of legitimate expectation cannot enable the employees to claim that they must be made permanent or they must be regularised in the service though they had not been selected in terms of the rules for appointment. The fact that in certain cases the court had directed regularisation of the employees involved in those cases cannot be made use of to found a claim based on legitimate expectation.
9 of 14 ::: Downloaded on - 26-01-2024 04:15:44 ::: Neutral Citation No:=2024:PHHC:009983 CWP-23925-2022 10 2024:PHHC:009983 The argument if accepted would also run counter to the constitutional mandate. The argument in that behalf has therefore to be rejected.
47. When a person enters a temporary employment or gets engagement as a contractual or casual worker and the engagement is not based on a proper selection as recognised by the relevant rules or procedure, he is aware of the consequences of the appointment being temporary, casual or contractual in nature. Such a person cannot invoke the theory of legitimate expectation for being confirmed in the post when an appointment to the post could be made only by following a proper procedure for selection and in cases concerned, in consultation with the Public Service Commission. Therefore, the theory of legitimate expectation cannot be successfully advanced by temporary, contractual or casual employees. It cannot also be held that the State has held out any promise while engaging these persons either to continue them where they are or to make them permanent. The State cannot constitutionally make such a promise. It is also obvious that the theory cannot be invoked to seek a positive relief of being made permanent in the post.
48. It was then contended that the rights of the employees thus appointed, under Articles 14 and 16 of the Constitution, are violated. It is stated that the State has treated the employees unfairly by employing them on less than minimum wages and extracting work from them for a pretty long period in comparison with those directly recruited who are getting more wages or salaries for doing similar work. The employees before us were engaged on daily wages in the department concerned on a wage that was made known to them. There is no case that the wage agreed upon was not 10 of 14 ::: Downloaded on - 26-01-2024 04:15:44 ::: Neutral Citation No:=2024:PHHC:009983 CWP-23925-2022 11 2024:PHHC:009983 being paid. Those who are working on daily wages formed a class by themselves, they cannot claim that they are discriminated as against those who have been regularly recruited on the basis of the relevant rules. No right can be founded on an employment on daily wages to claim that such employee should be treated on a par with a regularly recruited candidate, and made permanent in employment, even assuming that the principle could be invoked for claiming equal wages for equal work. There is no fundamental right in those who have been employed on daily wages or temporarily or on contractual basis, to claim that they have a right to be absorbed in service. As has been held by this Court, they cannot be said to be holders of a post, since, a regular appointment could be made only by making appointments consistent with the requirements of Articles 14 and 16 of the Constitution. The right to be treated equally with the other employees employed on daily wages, cannot be extended to a claim for equal treatment with those who were regularly employed. That would be treating unequals as equals. It cannot also be relied on to claim a right to be absorbed in service even though they have never been selected in terms of the relevant recruitment rules. The arguments based on Articles 14 and 16 of the Constitution are therefore overruled.
49. It is contended that the State action in not regularising the employees was not fair within the framework of the rule of law. The rule of law compels the State to make appointments as envisaged by the Constitution and in the manner we have indicated earlier. In most of these cases, no doubt, the employees had worked for some length of time but this has also been brought about by the pendency of proceedings in tribunals and courts initiated at the 11 of 14 ::: Downloaded on - 26-01-2024 04:15:44 ::: Neutral Citation No:=2024:PHHC:009983 CWP-23925-2022 12 2024:PHHC:009983 instance of the employees. Moreover, accepting an argument of this nature would mean that the State would be permitted to perpetuate an illegality in the matter of public employment and that would be a negation of the constitutional scheme adopted by us, the people of India. It is therefore not possible to accept the argument that there must be a direction to make permanent all the persons employed on daily wages. When the court is approached for relief by way of a writ, the court has necessarily to ask itself whether the person before it had any legal right to be enforced. Considered in the light of the very clear constitutional scheme, it cannot be said that the employees have been able to establish a legal right to be made permanent even though they have never been appointed in terms of the relevant rules or in adherence of Articles 14 and 16 of the Constitution."
7. A three Judge Bench of Hon'ble Supreme Court in Official Liquidator v. Dayanand and Others, (2008) 10 SCC 1 has reiterated opinion of Constitution Bench in Uma Devi (supra).
8. A two Judge Bench of Hon'ble Supreme Court in Union of India and others v. Vartak Labour Union, (2011) 4 SCC 200 has rejected claim of regularization of contractual employees who had worked for more than 30 years with Border Roads Organization.
9. A two Judge Bench of Hon'ble Supreme Court in Union of India and others v. All India Trade Union Congress and others, (2019) 5 SCC 773, following Vartak Labour Union (supra) has held that no contractual employee can claim regularization. High Courts cannot direct authorities to frame policy and regularize the contractual employees.
10. A Division Bench of this Court vide judgment dated 12 of 14 ::: Downloaded on - 26-01-2024 04:15:44 ::: Neutral Citation No:=2024:PHHC:009983 CWP-23925-2022 13 2024:PHHC:009983 31.05.2018 in Yogesh Tyagi and another v. State of Haryana and others, CWP No.17206 of 2014, set aside policy of regularization made by the State. The Court has set aside policy on the ground that regularization of contractual employees who have been appointed without following prescribed procedure amounts to back door entry and it amounts to violation of Articles 14, 16 & 309 of Constitution of India.
11. In the case in hand, the petitioners from 1996-1997 to 2011- 2012 worked as detailed below:
Name 1996- 97-98 98- 99- 200 01 02- 03- 04- 05- 06- 07- 08- 09- 10- 11- 97 99 20 0 -02 03 04 05 06 07 08 09 10 11 12
-01 Balbir 40 86 29 44 - - - 88 40 - 104 16 166 255 205 301 9 Rakesh - - - - - - - 26 39 - 104 14 180 255 202 300 0 M.Moha 13 80 - - - - - 26 40 - 104 16 166 255 205 301 n Singh 9 Kamlesh - - - - - - - 22 40 - 104 13 180 255 198 295 Kumar 6 From the above quoted table, it is quite evident that petitioners every year from 1996-1997 worked for a few days. Two out of four petitioners even joined respondent department in 2003-2004. There are many years when they did not work at all. It indicates that petitioners were causal/daily workers and they did not meet minimum required period of service i.e. 10 years as contemplated by policy of 2012. They were not appointed against regular/sanctioned post. No procedure for appointment of regular employees was followed, thus, they have no vested or fundamental right to claim regularization. The case of the petitioner is squarely covered by afore-cited judgments.
12. In the wake of judgment of Hon'ble Supreme Court in Uma Devi (supra) and Official Liquidator (supra), this Court finds that the 13 of 14 ::: Downloaded on - 26-01-2024 04:15:44 ::: Neutral Citation No:=2024:PHHC:009983 CWP-23925-2022 14 2024:PHHC:009983 petitioners have neither legal nor vested nor fundamental right to claim regularization or absorption. Court cannot ask the respondent to regularize the service of the petitioners especially when they do not meet criteria laid down by 2012 policy.
12. In view of above discussion and findings, this Court is of the considered opinion that present petitions are bereft of merit, thus, deserve to be dismissed and accordingly dismissed.
( JAGMOHAN BANSAL )
JUDGE
24.01.2024
Ali
Whether speaking/reasoned Yes/No
Whether Reportable Yes/No
Neutral Citation No:=2024:PHHC:009983 14 of 14 ::: Downloaded on - 26-01-2024 04:15:44 :::