Central Administrative Tribunal - Delhi
Suraj Meena vs Delhi State Industrial And ... on 27 May, 2025
Item No. 23/C-2 1 OA No. 2638/2021
Central Administrative Tribunal
Principal Bench, New Delhi
O.A. No. 2638/2021
Reserved on: 17.04.2025
Pronounced on: 27.05.2025
Hon'ble Mr. R. N. Singh, Member (J)
Hon'ble Mr. Rajinder Kashyap, Member (A)
Suraj Meena, Age 40 years
S/o Late Gopal Meena
R/o 41A, Block R5, Mohan Garden,
Uttam Nagar, New Delhi-110059
M. No.: 75033529829
Email: [email protected]
... Applicant
(By Advocate: Mr. F. K. Jha)
Versus
1. Delhi State Industrial & Infrastructure
Development Corporation Ltd. (DSIIDC)
Through its Managing Director
Office at: N-36, Bombay Life Building,
Connaught Circus, New Delhi-110001
Email id: [email protected] & [email protected]
2. The Managing Director
Delhi State Industrial & Infrastructure
Development Corporation Ltd. (DSIIDC)
Office at: N-36, Bombay Life Building,
Connaught Circus, New Delhi-110001
Email id: [email protected] & [email protected]
3. M/s Intelligent Communication Systems India Ltd.
Through its Managing Director
Office at: Administrative Building, First Floor,
Phase-3, Above Post Office, Okhla Industrial Estate,
New Delhi-110020
Email: [email protected]
...Respondents
(By Advocate: Mr. Amit Singh Chauhan with Mr. Syed Hamza
Ghayour and Mr. Udit Chauhan for R-1 and 2)
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Item No. 23/C-2 2 OA No. 2638/2021
ORDER
Hon'ble Mr. Rajinder Kashyap, Member (A):-
By way of the present O.A. filed u/s 19 of the AT Act, 1985, the applicant, in para 8 of the O.A., has prayed for the following reliefs: -
"8.1A Be pleased to quash the letter No. DSIIDC/A- 18008/Extn. ICSIL/Estt./437 dated 08.11.2021 and direct the respondent No. 1 & 2 to induct the applicant permanently against reserve category sanctioned posts of JE (Civil) and consequential promotion, back wages for equal pay for equal work, in the interest of justice.
8.1B Be pleased to pass any other order/direction as this Hon'ble Tribunal deems fit in the facts and circumstances of the case in favour of the applicant, in the interest of justice."
FACTS OF THE CASE
2. The applicant, who belongs to a Scheduled Tribe community, joined the services of Respondent No.3 after his appointment as a Junior Engineer (Civil) [hereinafter referred to as. „JE (C)‟] on contract basis approved by Respondent No.1 vide approval dated 23.06.2011, despite the sanctioned post meant for ST category lying vacant under Respondent Nos.1 and 2. He assumed duties as JE (C) w.e.f. 12.07.2011 on a consolidated salary of Rs. 12,000/- per month through respondent no. 3.
3. The applicant emphasized that he is the only Scheduled Tribe employee working against the sanctioned post of JE (C) with respondent nos.1 and 2. This fact is specifically acknowledged by respondent no. 3 vide letter dated 13.01.2012, relevant portion whereof reads as under:-
"04. You shall report for duty to DSIIDC. You shall remain under the overall control of the DSIIDC 2025.05.28 RAVI KANOJIA 17:15:32+05'30' Item No. 23/C-2 3 OA No. 2638/2021 Officer or any other officer as may be nominated by the Management."
4. The applicant had continuously been serving the respondents since July, 2011 without any break and performing assigned duties.
5. The applicant further stated that all matters related to his transfer, posting, training, and conveyance allowance over the last 10 years had been handled by Respondent No.1. He was paid a consolidated salary of Rs. 12,000/- to Rs. 15,000/- per month from 2011 to 2015, and thereafter, from September 2019 onwards it was revised to Rs. 28,000/- per month. It is averred by the applicant that despite performing the duties as that of a regularly appointed J.E.(C), who receives Rs.60,000/- per month, he continues to receive substantially lower salary.
6. It is stated by the applicant that to evade the statutory minimum benefits to which he and similarly placed Junior Engineers are entitled, Respondent No.1 falsely portrays the applicant as employed on a contractual basis by the placement agency, i.e., Respondent No.3. In reality, Respondent No. 1 is also the Chairperson of Respondent No.3 and manages its daily operations, verifies the monthly attendance of the applicant and other employees through Respondent No.3, who receives consolidated salary and subsequently disburses it to individual employees, including Junior Engineers.
7. It is further averred by the applicant that pursuant to directions of this Tribunal in T.A. No. 261/2009 (S. K. Chaudhary & Ors. Vs. Govt. of NCT of Delhi & Anr. decided on 08.07.2009) upheld by the Hon‟ble High Court of Delhi in W.P. (C) No.14160/2009 - decided on 09.01.2013, Respondents nos.1 and 2 regularized 18 contractual J.E.(C) 2025.05.28 RAVI KANOJIA 17:15:32+05'30' Item No. 23/C-2 4 OA No. 2638/2021 i.e. applicants therein. The relevant portion of Tribunal's order dated 08.07.2009 (supra) reads as under:-
"10. In the result, for the foregoing reasons, these TAs are disposed of with a direction to the respondents to hold a selection for the posts of JE through DSSSB and in such an event applicants who are eligible under the recruitment rules shall be considered, giving due weightage to their experience on relaxing the age. On results of such selection, law shall take its own course. Till then status quo, as of date, shall be maintained in respect of the applicants. No costs."
8. The applicant has been protesting against this disparity for a long time by submitting several representations to the respondents on various dates, i.e. 15.02.2018, 25.09.2018, 20.05.2019, 23.07.2019, 11.09.2019, 21.02.2020, 10.09.2020, 12.09.2017, 29.01.2018, 01.05.2018, 23.07.2018, 05.03.2019, 24.05.2019, 13.08.2019, 27.11.2019, 11.03.2020, 19.10.2020, 18.03.2019, 12.06.2019, 02.09.2019, 08.01.2020, 01.07.2020, 22.12.2020, 12.07.2021, and 27.08.2021. These representations highlight the unequal treatment in salary and denial of regular appointment despite performing identical duties for more than ten years. The applicant, who used to receive lower wages on the pretext of being contractual employee, has been denied casual leave, earned leave, medical facilities, whereas regular J.Es. (C) are being paid Rs.60,000/- per month with consequential benefits and promotions.
9. The Ministry of Personnel, Public Grievances and Pensions, Department of Personnel & Training, Government of India, issued directions for effective implementation of the principle of "Equal Pay for Equal Work" vide Office Memorandum dated 04.09.2019, mandating revision of salaries and payment of Dearness Allowance to all workers against regular posts, as per various judgments of the Hon‟ble 2025.05.28 RAVI KANOJIA 17:15:32+05'30' Item No. 23/C-2 5 OA No. 2638/2021 Supreme Court and various High Courts. This was reiterated in another OM dated 13.02.2020.
10. It is the contention of the applicant that other departments under the Government of NCT of Delhi, e.g., Delhi Jal Board, NDMC, and all MCDs are disbursing salaries to contractual J.E. (C) at par with regular employees, in accordance with the OMs, referred to above. However, Respondent Nos.1 and 2 continue to discriminate against the applicant, despite his working against sanctioned vacant posts.
11. The respondents have historically adopted the strategy of first appointing J.Es. (C) on contract and then regularizing them against sanctioned posts. Some such examples include the cases of Mr. Gajender Sharma (now SE), Mr. Jatinder Kumar (now SE), Mr. S.D. Sharma (now EE), Mr. S.A. Awwal (now EE), Mr. Vijay Pal (now EE), Mr. S.K. Upadhyay (now SE), Mr. Satish Chandra (now EE), Mr. Kuldeep Singh (now EE).
12. In 1998, Respondents nos. 1 and 2 published an advertisement for JE (Civil) vacancies through DSSSB, and pursuant to the selection, only two candidates were appointed in 2000 under reserved categories - (i) Mr. Suresh Kumar (now EE) in the Scheduled Caste category and (ii) Mr. Ashwini Kumar Sinha (now EE) in the OBC category. Notably, no Scheduled Tribe vacancy, to which the applicant belongs, has been filled up since 2000 as is evident from the seniority list published by Respondent nos. 1 and 2 in 2014 as well as from other relevant official records.
13. Respondents often call J.E (C) on deputation from other departments to fill these sanctioned vacant posts which clearly indicate that these posts exist in the department. The 2025.05.28 RAVI KANOJIA 17:15:32+05'30' Item No. 23/C-2 6 OA No. 2638/2021 sanctioned strength for J.E (C) is 52 out of which 3 posts are reserved for Scheduled Tribes. Despite these unfilled vacancies under ST category for nearly 20 years, the applicant has not been regularized nor have the posts been abolished. Though other sanctioned posts were revised in 2020 and 2021, the posts of J.E (C) remain unchanged in the Recruitment Rules.
14. It is further contended that despite three available duly sanctioned posts in the ST category, irregular appointments are being made by the respondents just to deny the applicant's legitimate claim of regularization after more ten years of continuous service. The respondents have also appointed one Mr. Furqan Ahmed against a sanctioned vacant post of JE (C), who was promoted to the post of Assistant Executive Engineer in 2018.
15. As per Rule 10 of the DSIIDC Service Rules, 1978, the Managing Director of Respondent Nos.1 and 2 is the appointing authority for Group „C‟ employees.
16. The applicant is aggrieved by letter dated 08.11.2021 of the respondents whereby applicant‟s services with Respondent Nos. 1 and 2 are being surrendered. Hence, this O.A. is being preferred.
SUBMISSIONS OF RESPONDENT NOS.1 AND 217. The respondents nos. 1 & 2 filed their counter reply on 15.03.2022 wherein they have stated that respondent nos.1 & 2 and respondent no. 3 are separate entities, incorporated under the relevant provisions of law and its aim and functioning are not correlated in any manner whatsoever. Further, Respondent no. 3 is so fictional body, as alleged, but is a separate entity registered under Company's act 1956. It is 2025.05.28 RAVI KANOJIA 17:15:32+05'30' Item No. 23/C-2 7 OA No. 2638/2021 submitted that the applicant is in the employment of respondent no.3 and respondent no. 3 is the appointing authority, terminating authority and the authority governing the terms of service of the applicant is the respondent no.3 i.e. M/s. ICSIL. The applicant was deployed and/or outsourced to the answering respondent by respondent no.3 in terms of an Agreement dated 9th November, 2010 between respondent no.2 and respondent no.3 whereby inter-alia certain personnel were to be deployed to answering respondent by respondent no. 3. Some extremely relevant terms of the agreement dated 9th November, 2010 are reproduced hereinafter for the ease of reference:-
"8. That the second party shall be the employers of the personnel so deputed in DSJIDC and shall have the liberty to call back any of them by giving 7 days notice in advance to first party subject to the condition that their immediate replacement will be provided to the corporation.
9. The aforesaid personnel so deployed at DSIIDC shall be immediately replaced by second party if their performance is not found satisfactory by the first party. The decision of the first party in this regard shall be final and binding on the second party.
..... ..... .....
11. The aforesaid personnel so deployed by the second party shall have no right or claim for appointment in the Corporation. The second party shall be liable for all statutory payment to the person deployed. The first party shall make the attendance available to the second party by 1st party.
..... ..... .....
14. The initial terms of the contract shall be for a period of 1 (one) year from the date of execution of this agreement. If however the corporation is of the opinion that the service of the second party is not satisfactory for any reason or the second party commits a breach of any terms of the agreement the first party will be entitled to terminate this agreement earlier by giving 15 (fifteen) days notice in writing to the second party.
2025.05.28 RAVI KANOJIA 17:15:32+05'30' Item No. 23/C-2 8 OA No. 2638/2021 ..... ..... .....
16. On the termination of this agreement by efflux of time or otherwise the aforesaid personnel shall be withdrawn from DSIIDC forthwith on such termination.
..... ..... .....
20. The personnel so deputed by 2nd party shall maintain the secrecy and confidentiality of the work of the 1st party and they shall perform the work assigned to them by the 1st party with due diligence and integrity. Further the 2nd party shall indemnify and keep the 1st party indemnified against any damage/loss pecuniary or otherwise caused by the act of the personnel so deployed by the agency. It will be the responsibility of the contractor that the personnel engaged are trained and the department will not be liable for any mischief directly or indirectly. "
18. A bare perusal of the aforesaid terms and conditions of the agreement clearly evince that the applicant was a temporary employee of respondent no.3 and had no right to claim appointment with answering respondent. It is further evident that in the eventuality, the answering respondent was not satisfied with the performance and conduct of the employee of respondent No.3, so deputed, it could demand that the said outsourced employee be replaced or simply surrender him back to the respondent no.3. It is further more evident that the answering respondent was under no obligation to extend the terms of employment of the personnel so deputed.
19. The respondents further submitted that the present Original Application is not maintainable qua answering Respondents as the applicant under the guise of impugned Order dated 08.11.2021 is trying to impress upon this Tribunal that he was an employee/contractual employee of answering respondent whereas in reality, there is no privity of contract between the answering respondent and the applicant. The applicant was deployed by a placement agency i.e. respondent no. 3 and any/all obligations pertaining to the 2025.05.28 RAVI KANOJIA 17:15:32+05'30' Item No. 23/C-2 9 OA No. 2638/2021 applicant's employment/regulatory compliance including any redressal against termination, if any, were required to be complied with the respondent no.3 and answering respondent could not be made party to any grievance of the applicant regarding deployment by the respondent no.3, especially when respondent no.3 had indemnified the answering respondent qua any such actions in terms of the agreement dated 09.11.2010. Thus, it is humbly submitted that the present OA qua the answering respondents is not maintainable.
20. It is also submitted that the applicant, who entered the employment of respondent no. 3, subsequent upon his deployment, was well aware of the terms and conditions of his appointment and deployment. It is submitted that it has been categorically held in a catena of judgments that employees akin to the applicant or placed in a similar situation cannot claim parity with regular employees. It has been further held that such outsourced employees cannot claim legitimate expectation of absorption/ regularization, as they were fully aware of the nature of their employment, i.e., temporary as well as outsourced with the terms and conditions of such employment. Thus, it is humbly submitted that relief claimed by the applicant in this original application cannot be granted as it would be in violation of various Judgments of the Hon'ble Supreme Court of India.
21. A brief summary of the facts, necessary to appreciate the averments made in the reply, are -
a. On account of need arising for an employee to carry out the proposed work in the schemes launched by CSMC, HUPA and Government of India under housing in the year 2010/2011, a request was forwarded to respondent no. 3 and consequently thereto approval was granted for availing the 2025.05.28 RAVI KANOJIA 17:15:32+05'30' Item No. 23/C-2 10 OA No. 2638/2021 services of the applicant through respondent no. 3. Subsequent thereto, the applicant was deployed as J.E. (Civil) to look after the works related to SPD ( 4 ), DSIIDC or other works to be assigned from time to time, to answering respondent for a fixed tenure of 12 months in terms of deployment order dated 13.01.2012 whereby it was categorically mentioned that the aforesaid deployment would stand automatically determined at the end of the aforementioned period and/or could be terminated without assigning any reason whatsoever. The said offer letter dated 13.01.2012 (Annexure- A/4) specifically states that the deployment of the applicant stand automatically terminated on the expiry of the fixed period of deployment or/and can be terminated at any time without assigning any reason whatsoever and the decision of Managing Director, ICSIL, shall be final in all respects. After having reviewed the said order, the Applicant gave his acceptance in the terms mentioned hereinafter:
"I accept the contract engagement mentioned above. I understand this is purely a temporary contract engagement an I will have no right against the company after completion of contract period."
The acceptance of the applicant was willful and he was well aware of the fact that the deployment was temporary. The applicant was also aware that he is being deployed as an outsourced staff to the answering Respondent and would have no right or legitimate expectation to seek regularization.
b. It is submitted that since the applicant was deployed in DSIIDC through Respondent No.3, transfer/posting have been done by answering Respondent for carrying out the work in efficient manner. Further, Identity Card was issued to JEs engaged through ICSIL for the period and specifically mentioning that the personnel have been working on contract 2025.05.28 RAVI KANOJIA 17:15:32+05'30' Item No. 23/C-2 11 OA No. 2638/2021 basis through M/s. ICSIL. It is pertinent to mention here that the remuneration of the personnel engaged through respondent no.3 is also paid to respondent no.3 only on the basis of bills raised by it and not directly to the staff deployed.
It is reiterated that every aspect of the employment and/or consequential obligations, legal or otherwise pertaining to the applicant/personnel deployed by respondent no.3, were within the domain of respondent no.3. There existed no privity of contract with the Applicant or other such employees, who were similarly placed.
c. It is submitted that the deployment of the Applicant including all other personnel hired through respondent no.3 was extended on need basis by respondent no.3 from time to time on the requirement of answering respondent.
d. The answering respondent received a complaint dated 28.10.2021 along with an FIR No. 0519/2021 lodged at P.S. Ashok Vihar, Delhi u/s 67 IT Act and Section 500 IPC 1860 dated 27.10.2021 against the applicant alleging harassment of a woman staff (morphing and sharing of pictures with comments) who worked as DEO with the answering respondent and was also deployed by the respondent no.3. Immediately upon receipt of the complaint by Divisional Manager (Works)/CE-III of answering respondent, the complaint was forwarded to higher authorities for further action as the incident involved modesty of a woman. It was decided by the answering respondent that the applicant's services may be discontinued/surrendered. Consequently, the applicant has been surrendered to respondent No. 3 in terms of the agreement.
22. The respondents also contend that in light of the aforementioned preliminary submission, this Tribunal has no 2025.05.28 RAVI KANOJIA 17:15:32+05'30' Item No. 23/C-2 12 OA No. 2638/2021 jurisdiction to adjudicate the present dispute qua respondent nos.1 and 2 and there is an apparent mis-joinder of parties.
REJOINDER TO THE REPLY OF RESPONDENT Nos.1 & 2
23. In response to the counter reply filed by the respondents no.1 & 2, the applicant has also filed rejoinder on 02.05.2022 stating that the respondent no.3 specifically admits the fact that its company is under the aegis of respondent no. 1 & 2. They jointly issue certificate to every trainee who works under them, their board of members are also same. It is further contended that the applicant/employee can be replaced or surrendered back to the respondent no.3 - a fictional body created as an eye wash to arm twist the employee for one or other false reasons. It is submitted that the applicant is being discriminated by the respondent nos.1 & 2 under the garb of his engagement through respondent no.3.
24. The applicant further submitted that he is duly qualified and selected in accordance with due selection process by the respondent no. 1 but got appointment letter from respondent no.3. The modus operandi of the respondent nos. 1 & 2 was to engage the services of the applicant and like personnel at their whims and fancies. The applicant also submitted that the investigating officer had not discovered the name of the applicant. Moreover, it is the question of trial. The applicant is neither convicted nor is any inquiry conducted to prove his guilt in any manner for the alleged morphing the photo and comments thereon. A false story is cooked to deprive the applicant to form his legitimate claim. The applicant further submitted that though the higher officials of respondent no.1 have admitted the fact that services of the applicant will be allowed to resume if he is not 2025.05.28 RAVI KANOJIA 17:15:32+05'30' Item No. 23/C-2 13 OA No. 2638/2021 found guilty in the aforesaid FIR, yet a Data Entry Operator is used as pawn to terminate the services of applicant.
SUBMISSIONS OF RESPONDENT NO.3
25. The respondent no.3 filed a counter reply on 12.10.2023 wherein it has been stated that the Department of Industries, New Delhi of Government of National Capital Territory of Delhi, issued a Circular dated 29.03.2016 with respect to empanelment of M/s ICSIL for hiring of contractual manpower in different department of Govt. of NCT of Delhi and by virtue of the above circular, the respondent No.3 was functioning as a recruiting agency. Prior to the said circular dated 29.03.2016, the ICSIL was working for hiring of contractual manpower for different department of Govt. of NCT of Delhi as well as for other organizations since its inception. As per the contents of the said agreement of the contract or work order, respondent no.3 has to provide the personnel with different set of skill of respective requirement for the post, with conditions precedent for the period of contract, subject to extension by respondent no.1. The employment and remuneration of applicant channelized under the contractual agreement commenced between respondent no.1 and respondent no.3. As per the agreement, respondent no.3 paid the salary/ remuneration and other statuary benefits to the applicant under the terms of agreement entered into between the respondent no.1 and respondent no.3 and as received by the respondent no.3 from respondent no.1 on back-to-back basis. It is further stated by respondent no.3 that it recruited the applicant on contractual terms as the respondent no.1 required from time to time and deployed him for service by the respondent no.1 as required. According to the agreement, the respondent no.3 does not directly bear any liability to pay the Wages + ESI + Service Tax etc. to the applicant unless the 2025.05.28 RAVI KANOJIA 17:15:32+05'30' Item No. 23/C-2 14 OA No. 2638/2021 Wages+ ESI+ Service Tax etc. are approved and paid by the respondent no.1 and received by the answering respondent no.3.
26. The respondent no. 3 stated that the applicant has got no locus standi to file the present Original Application since he has been appointed on purely contractual basis for fixed period. At the time of appointment, the applicant had gone through the terms and conditions incorporated in the letter for deployment for fixed period and signed after understanding the terms and conditions mentioned in the letter for deployment for fixed period. Therefore, applicant is bound to abide by the said terms and conditions. Hence, the present Original Application deserves to be dismissed on this sole ground in limine. It is further stated that the applicant was neither an employee of the respondent no.3 nor the respondent no.3 had control and supervision over the applicant with respect to the work assigned to him.
27. It is also averred that there is no dispute between the applicant and respondent no.3 and, therefore, this Hon‟ble Tribunal lacks jurisdiction to entertain and decide the present Original Application against the respondent no.3. The applicant filed the present Original Application in order to malign the prestige of respondent no.3 and to create false evidence as an arm-twisting tactic to cause unlawful loss to the respondent no.3 without being any fault whatsoever on the part of respondent no.3.
28. In response to the counter reply filed by the respondent no.3, the applicant has also filed rejoinder on 18.10.2023 wherein it is stated that the respondent no.3 is the necessary party since the respondent nos. 1 & 2 took the plea that the applicant's services were surrendered to respondent no.3 for further action at their end. The applicant added that 2025.05.28 RAVI KANOJIA 17:15:32+05'30' Item No. 23/C-2 15 OA No. 2638/2021 his services were extended from time to time without any break for about 11 years. It is reiterated that services of applicant were surrendered in violation of principle of natural justice, contrary to law and an issued the impugned order in an arbitrary and illegal manner.
29. The applicant, however, denied that the present OA has been filed to malign the reputation of respondent no.3. Since Annexure A-1 clarifies the fact that respondent nos.1 & 2 have surrendered the services of applicant to the respondent no.3 without assigning any reason/show cause, without issuance any charge-sheet, disclosing any reason to surrender his services after about 11 long years of his continuous service without any break of even a single day, the stand of the respondent no.3 that "they have no control and supervision over the applicant and was not its employee" false flat. Hence, respondent no.3 has rightly been impleaded in this OA being necessary party.
CASE LAWS RELIED UPON BY THE PARTIES
30. Learned counsel appearing for the applicant placed reliance on the following orders/judgments;
(i) Order/judgment dated 22.08.2024 of Hon‟ble Apex Court in Civil Appeal No. 9758//2024 in the matter of Swati Priyadarshini Vs. State of Madhya Pradesh & Ors., reported in 2024 SCC Online SC 2139;
(ii) Order/judgment dated 07.02.2022 of Hon‟ble High Court of Gujarat at Ahmedabad in Special Civil Application No. 11518/2020 in the matter of Dineshbhai Dhudabhai Patel Vs. State of Gujarat, C/SCA/11518/2020;
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(iii) Order/judgment dated 02.12.2022 of Hon‟ble High
Court of Kerala at Ernakulam in W.P. (C) No. 26934/2022 in the matter of Tintu K. & Anr. Vs. Union of India & Ors;
(iv) Order/judgment dated 16.12.2023 of Hon‟ble High Court of Jammu and Kashmir and Ladakh in W.P. (C) No. 2260/2022 in the matter of Feroz Ahmed Sheikh Vs. Union Territory of J & K, as reported in 2023 SCC Online J&K 1095; and
(v) Order/judgment dated 05.09.2022 of this Tribunal in O.A. No. in the matter of Surender Vs. Delhi State Industrial and Infrastructure Development Corp. Ltd.,
31. Per contra, learned counsel for the respondents has also placed reliance on the following order/judgments namely;
(i) Order/judgment dated 13.04.2009 of Hon‟ble Supreme Court in Civil Appeal No. 2244/2002 in the matter of International Airport Authority of India Vs. International Air Cargo Workers' Union, [(2009) 13 SCC 374]; and
(ii) Order/judgment dated 10.04.2006 of Hon‟ble Supreme Court in Civil Appeals Nos. 3595- 3612 of 1999 in the matter of Secretary, State of Karnataka and Others Vs. Umadevi and Others, [(2006) 4 SCC 1].
32. We have heard learned counsels for the parties and considered the submissions made by them.
ANALYSIS
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Item No. 23/C-2 17 OA No. 2638/2021
33. The primary issue for consideration in the present OA is "Whether the applicant, who had been continuously working as a J.E. (C) though on contract basis without any break since July 2011 against a duly sanctioned post under Respondent Nos.1 and 2, is entitled to regularization and equal pay for equal work considering the nature of duties discharged by him for a long period of more than 11 years?"
34. From the material placed on record, it is undisputed that the applicant was engaged as a J.E.(C) through Respondent No.3, pursuant to an approval granted by Respondent No.1 on 23.06.2011 and belongs to ST category. The applicant assumed duties on 12.07.2011 and since then continued to discharge the same duties and functions without any break in service, as were/are being discharged by a regular J.E. (C).
35. The nature of duties performed by the applicant, as enumerated in the pleadings, reveals that he has been undertaking core engineering responsibilities, including site inspection, preparation of plans and tenders, verification of technical drawings, assistance in arbitration matters, and compliance monitoring, all of which align with the job description of a regular Junior Engineer (Civil). This is not denied by the respondents and, in fact, supported by the internal communications on record.
36. It is further noted that all aspects related to the applicant‟s transfer, attendance, training, and allowances were administered by Respondent No.1, thereby establishing a clear supervisory and functional relationship. This belies the respondents‟ contention that the applicant was merely engaged through an external placement agency (Respondent No.3). The fact that the Chairperson of Respondent No.1 also heads Respondent No.3 reinforces the applicant‟s submission 2025.05.28 RAVI KANOJIA 17:15:32+05'30' Item No. 23/C-2 18 OA No. 2638/2021 that the contractual arrangement was a façade to circumvent statutory obligations.
37. A glaring disparity exists in the emoluments paid to the applicant vis-à-vis regular appointees. Despite working against sanctioned posts and performing identical duties, the applicant was paid the emoluments between Rs. 12,000/- to Rs. 28,000/- per month, whereas regular J.Es (C) receive around Rs. 60,000/- per month along with other benefits. This is a clear violation of the principle of "Equal Pay for Equal Work" as enunciated by the Hon‟ble Supreme Court in a catena of judgments and reiterated by the Department of Personnel & Training (DoP&T) vide Office Memoranda dated 04.09.2019 and 13.02.2020.
38. The Tribunal further takes note of the fact that similarly situated contractual J.Es were directed to be considered for regularization in S. K. Chaudhary's case (supra) which was upheld by the Hon‟ble High Court of Delhi. Despite availability of sanctioned vacancies, including posts reserved for Scheduled Tribes, no attempt was made by the respondents to consider the applicant for regularization, despite his consistent representations, as noted above.
39. The Tribunal is particularly concerned with the systemic failure to fill the reserved posts meant for ST category in the cadre of J.E (C), which remained vacant since 2000. It is also noted that the sanctioned strength of 52 posts, including 3 ST-reserved posts, continues to exist without any regular appointment of a ST candidate, thereby defeating the Constitutional objective of providing adequate representation to ST category in public employment.
40. The conduct of the respondents in regularizing other similarly placed contractual Junior Engineers in the past, 2025.05.28 RAVI KANOJIA 17:15:32+05'30' Item No. 23/C-2 19 OA No. 2638/2021 some of whom have even been promoted to higher posts, further exposes the discriminatory treatment meted out to the applicant. The respondents have failed to provide any cogent explanation for the differential treatment, which appears to be arbitrary and violative of Articles 14 and 16 of the Constitution of India.
41. In view of the above facts and circumstances of the case, we are of the view that the appointment of the applicant cannot be said to be illegal, whereas, it may be "irregular" but admittedly against the sanctioned regular three vacant posts of JE(C) under the ST category. We also find that where an employee has rendered over a decade of continuous service on a sanctioned post, discharging similar duties as that of a regular employee under the direct supervision and control of the principal employer, the artificial labeling of such engagement as "contractual" cannot be sustained. It is apparent that the respondents have adopted a method to circumvent the principles of fair employment by employing personnel through intermediary agencies while retaining full control over their employment.
42. The argument of the respondents that the applicant was not recruited through the Delhi Subordinate Services Selection Board (DSSSB) cannot override the principle laid down in the Order/judgment dated 10.04.2006 of Hon‟ble Supreme Court in Civil Appeals Nos. 3595- 3612 of 1999 in the matter of Secretary, State of Karnataka and Others Vs. Umadevi and Others, [(2006) 4 SCC 1], which, while discouraging backdoor appointments, permitted regularization of employees who have been working for long durations against sanctioned posts, where recruitment rules are not strictly followed due to the fault of the employer.
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Item No. 23/C-2 20 OA No. 2638/2021
43. It is also noticed that the issue involved in this case has been elaborately and categorically dealt with by Hon‟ble Supreme Court of India in a judgment in the case of Jaggo v. Union of India and others in SLP(C) No.5580 of 2024 decided on 20.12.2024, observing that the persons in regular service for more than 10 years are required to be regularized. Relevant portion of the said Judgment in the case of Jaggo (supra) is extracted below for ready reference:-
"20. It is well established that the decision in Uma Devi (supra) does not intend to penalize employees who have rendered long years of service fulfilling ongoing and necessary functions of the State or its instrumentalities. The said judgment sought to prevent backdoor entries and illegal appointments that circumvent constitutional requirements. However, where appointments were not illegal but possibly "irregular," and where employees had served continuously against the backdrop of sanctioned functions for a considerable period, the need for a fair and humane resolution becomes paramount. Prolonged, continuous, and unblemished service performing tasks inherently required on a regular basis can, over the time, transform what was initially ad-hoc or temporary into a scenario demanding fair regularization. In a recent judgment of this Court in Vinod Kumar v. Union of India [2024] 1 S.C.R. 1230, it was held that procedural formalities cannot be used to deny regularization of service to an employee whose appointment was termed "temporary" but has performed the same duties as performed by the regular employee over a considerable period in the capacity of the regular employee. The relevant paras of this judgment have been reproduced below:
"6. The application of the judgment in Uma Devi (supra) by the High Court does not fit squarely with the facts at hand, given the specific circumstances under which the appellants were employed and have continued their service. The reliance on procedural formalities at the outset cannot be used to perpetually deny substantive rights that have accrued over a considerable period through continuous service. Their promotion was based on a specific notification for vacancies and a subsequent circular, followed by a selection process involving written tests and interviews, which distinguishes their case from 2025.05.28 RAVI KANOJIA 17:15:32+05'30' Item No. 23/C-2 21 OA No. 2638/2021 the appointments through back door entry as discussed in the case of Uma Devi (supra).
7. The judgment in the case Uma Devi (supra) also distinguished between "irregular" and "illegal" appointments underscoring the importance of considering certain appointments even if were not made strictly in accordance with the prescribed Rules and Procedure, cannot be said to have been made illegally if they had followed the procedures of regular appointments such as conduct of written examinations or interviews as in the present case..."
21. The High Court placed undue emphasis on the initial label of the appellants' engagements and the outsourcing decision taken after their dismissal. Courts must look beyond the surface labels and consider the realities of employment:
continuous, long-term service, indispensable duties, and absence of any mala fide or illegalities in their appointments. In that light, refusing regularization simply because their original terms did not explicitly state so, or because an outsourcing policy was belatedly introduced, would be contrary to principles of fairness and equity.
22. The pervasive misuse of temporary employment contracts, as exemplified in this case, reflects a broader systemic issue that adversely affects workers' rights and job security. In the private sector, the rise of the gig economy has led to an increase in precarious employment arrangements, often characterized by lack of benefits, job security, and fair treatment. Such practices have been criticized for exploiting workers and undermining labour standards. Government institutions, entrusted with upholding the principles of fairness and justice, bear an even greater responsibility to avoid such exploitative employment practices. When public sector entities engage in misuse of temporary contracts, it not only mirrors the detrimental trends observed in the gig economy but also sets a concerning precedent that can erode public trust in governmental operations.
23. The International Labour Organization (ILO), of which India is a founding member, has consistently advocated for employment stability and the fair treatment of workers. The ILO's Multinational Enterprises Declaration6 encourages companies to provide stable employment and to observe obligations concerning employment stability and social security. It emphasizes that enterprises should assume a leading role in promoting employment security, particularly in contexts where job discontinuation could exacerbate long- term unemployment.
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Item No. 23/C-2 22 OA No. 2638/2021
24. The landmark judgement of the United State in the case of Vizcaino v. Microsoft Corporation, 97 F.3d 1187 (9th Cir. 1996) serves as a pertinent example from the private sector, illustrating the consequences of misclassifying employees to circumvent providing benefits. In this case, Microsoft classified certain workers as independent contractors, thereby denying them employee benefits. The U.S. Court of Appeals for the Ninth Circuit determined that these workers were, in fact, common-law employees and were entitled to the same benefits as regular employees. The Court noted that large Corporations have increasingly adopted the practice of hiring temporary employees or independent contractors as a means of avoiding payment of employee
25. It is a disconcerting reality that temporary employees, particularly in government institutions, often face multifaceted forms of exploitation. While the foundational purpose of temporary contracts may have been to address short-term or seasonal needs, they have increasingly become a mechanism to evade longterm obligations owed to employees. These practices manifest in several ways:
• Misuse of "Temporary" Labels:
Employees engaged for work that is essential, recurring, and integral to the functioning of an institution are often labeled as "temporary" or "contractual," even when their roles mirror those of regular employees. Such misclassification deprives workers of the dignity, security, and benefits that regular employees are entitled to, despite performing identical tasks.
• Arbitrary Termination: Temporary employees are frequently dismissed without cause or notice, as seen in the present case. This practice undermines the principles of natural justice and subjects workers to a state of constant insecurity, regardless of the quality or duration of their service.
• Lack of Career Progression: Temporary employees often find themselves excluded from opportunities for skill development, promotions, or incremental pay raises. They remain stagnant in their roles, creating a systemic disparity between them and their regular counterparts, despite their contributions being equally significant.
• Using Outsourcing as a Shield: Institutions increasingly resort to outsourcing roles performed by temporary employees, effectively replacing one set of exploited workers with another. This practice not only perpetuates exploitation but also demonstrates a 2025.05.28 RAVI KANOJIA 17:15:32+05'30' Item No. 23/C-2 23 OA No. 2638/2021 deliberate effort to bypass the obligation to offer regular employment.
• Denial of Basic Rights and Benefits: Temporary employees are often denied fundamental benefits such as pension, provident fund, health insurance, and paid leave, even when their tenure spans decades. This lack of social security subjects them and their families to undue hardship, especially in cases of illness, retirement, or unforeseen circumstances.
26. While the judgment in Uma Devi (supra) sought to curtail the practice of backdoor entries and ensure appointments adhered to constitutional principles, it is regrettable that its principles are often misinterpreted or misapplied to deny legitimate claims of long-serving employees. This judgment aimed to distinguish between "illegal" and "irregular" appointments. It categorically held that employees in irregular appointments, who were engaged in duly sanctioned posts and had served continuously for more than ten years, should be considered for regularization as a one- time measure. However, the laudable intent of the judgment is being subverted when institutions rely on its dicta to indiscriminately reject the claims of employees, even in cases where their appointments are not illegal, but merely lack adherence to procedural formalities. Government departments often cite the judgment in Uma Devi (supra) to argue that no vested right to regularization exists for temporary employees, overlooking the judgment's explicit acknowledgment of cases where regularization is appropriate. This selective application distorts the judgment's spirit and purpose, effectively weaponizing it against employees who have rendered indispensable services over decades.
27. In light of these considerations, in our opinion, it is imperative for government departments to lead by example in providing fair and stable employment. Engaging workers on a temporary basis for extended periods, especially when their roles are integral to the organization's functioning, not only contravenes international labour standards but also exposes the organization to legal challenges and undermines employee morale. By ensuring fair employment practices, government institutions can reduce the burden of unnecessary litigation, promote job security, and uphold the principles of justice and fairness that they are meant to embody. This approach aligns with international standards and sets a positive precedent for the private sector to follow, thereby contributing to the overall betterment of labour practices in the country.
28. In view of the above discussion and findings, the appeals are allowed. The impugned orders passed by the High Court and 2025.05.28 RAVI KANOJIA 17:15:32+05'30' Item No. 23/C-2 24 OA No. 2638/2021 the Tribunal are set aside and the original application is allowed to the following extent:
i. The termination orders dated 27.10.2018 are quashed;
ii. The appellants shall be taken back on duty forthwith and their services regularised forthwith. However, the appellants shall not be entitled to any pecuniary benefits/back wages for the period they have not worked for but would be entitled to continuity of services for the said period and the same would be counted for their post- retiral benefits."
(emphasis supplied)
44. The Hon‟ble High Court of Chhatisgarh in a recent judgment in WPS No.5629 of 2024 decided on 12.02.2025 in the case of Shyam Sunder Shukla Vs. State of Chattisgarh, decided the identical issue following the decision of the Hon‟ble Supreme Court in Jaggo's case (supra) in extenso and concluded as under:-
"8. Considering the nature of relief sought for by the petitioner in this writ petition and the decisions of Hon'ble Supreme Court as referred above, this writ petition at this stage is disposed off with a direction to the respondent/State to consider the case of the petitioner for regularization in service in accordance with law expeditiously, keeping in mind the decisions of the Hon'ble Supreme Court in Umadevi (supra), Vinod Kumar (supra) and Jaggo (supra) as also the Circular issued by the State Government in this regard. The said exercise be done within a period of three months from the date of production of this order."
(Emphasis supplied)
43. In view of the facts and circumstances of the case as well as keeping in view the aforesaid dicta on the subject laid down by the Hon‟ble Apex Court in Jagoo (supra) followed recently by Hon‟ble High Court of Chhattisgarh in Shyam Sunder Shukla (supra), we of the firm that as the applicant has made out a case for consideration in light of the decisions, 2025.05.28 RAVI KANOJIA 17:15:32+05'30' Item No. 23/C-2 25 OA No. 2638/2021 referred to above, the instant OA is allowed with the following directions:-
i. Impugned order dated 08.11.2021 surrendering the services of the applicant by respondents no.1 & 2 to respondent no.3 is quashed and set aside with all consequential benefits;
ii. The Respondents shall also consider the case of the applicant for regularization against the post of Junior Engineer (Civil) under ST category keeping in view the decisions of the Hon'ble Supreme Court in Umadevi (supra), Vinod Kumar (supra), Jaggo (supra) and Shyam Sunder Shukla (supra) on the subject, and if the applicant is otherwise found fit, subject to outcome of the complaint filed vide FIR No.0519/2021 registered at PS Ashok Vihar, Delhi against him, the services of the applicant shall be regularized in accordance with law and in the spirit of constitutional mandate.
iii. Till such time a decision on regularization is taken, the applicant shall be paid wages and allowances at par with regular Junior Engineers (Civil) in light of the DoP&T OMs dated 04.09.2019 and 13.02.2020.
44. The exercise, as ordained above, shall be completed by the respondents within a period of eight weeks from the date of receipt of certified copy of this order.
45. No order as to costs. Pending MA(s), if any, stand closed.
(Rajinder Kashyap) (R. N. Singh)
Member (A) Member (J)
/ravi/neetu/
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