Case BriefsSupreme Court

Supreme Court: In a case where the Allahabad High Court passed orders from time to time to secure presence of the public officers, the bench of SK Kaul and Hemant Gupta, JJ held that the High Court was not justified in doing so as,

“The practice of summoning officers to court is not proper and does not serve the purpose of administration of justice in view of the separation of powers of the Executive and the Judiciary. If an order is not legal, the Courts have ample jurisdiction to set aside such order and to issue such directions as may be warranted in the facts of the case.”

The Court said that the officers of the State discharge public functions and duties and the orders are generally presumed to be passed in good faith unless proved otherwise. The officers pass orders as a custodian of public money. Therefore, merely because an order has been passed, it does not warrant their personal presence.

“The summoning of officers to the court to attend proceedings, impinges upon the functioning of the officers and eventually it is the public at large who suffer on account of their absence from the duties assigned to them.”

The Court was hearing the case where the Divisional Director, Social Forestry Division Agra had passed an order on 19.11.2008 that the respondent is not eligible for regularisation/equal pay. The said order was passed based on the Supreme Court ruling in State of U.P and Others. vs. Putti Lal, (2006) 9 SCC 337 where it was held that the daily wagers are entitled to minimum pay scale as is being received by their counter-parts in the Government and would not be entitled to any other allowances or increment so long as they continue as daily wagers. The respondent instead of challenging the abovementioned order declining the claim for regularisation and/or minimum of pay scale, filed a Contempt Application.

The Court held that the grievance regarding regularization of the service on account of a break in service could not have been taken up in Contempt proceedings, when such issue has attained finality in the High Court. Allahabad High Court had passed an order in Visheshwar vs. Principal Secretary Forest Anubhag[1], wherein, it was held that artificial break in the case of regularization has to be ignored.

[N.K. Janu, Deputy Director Social Forestary Division, Agra v. Lakshmi Chandra, 2019 SCC OnLine SC 518, decided on 10.04.2019]

[1] Civil Misc. Writ Petition No. 47568 of 2002 decided on 29.11.2004

Case BriefsSupreme Court

Supreme Court: In the matter where an illegally terminated workman had sought reinstatement claiming preference over other persons being a “retrenched workman” as per Section 25(H) of the Industrial Disputes Act, 1947 (ID Act), the bench of Abhay Manohar Sapre and Indu Malhotra, JJ held that it was not a case of a retrenchment of the respondent from service as contemplated under Section 25(H) of the ID Act as the workman had already accepted the compensation awarded to him in lieu of his illegal termination.

In the present case, the respondent had claimed that since the appellant company had regularised the services of 2 peons, he become entitled to claim re­employment in terms of Section 25 (H) of ID Act.  The Court, however, rejected the claim and held that the respondent was not entitled to invoke the provisions of   Section   25(H) of   the ID Act and seek reemployment by citing the case of another employee (Peon) who was already in employment and whose services were only regularized by the appellant on the basis of his service record in terms of the Rules.

The Bench said:

“the regularization of an employee already in service does not give any right to retrenched employee so as to enable him to invoke Section 25(H) of the ID Act for claiming reemployment in the services. The reason is that by such act the employers do not offer any fresh employment to any person to fill any vacancy in their set up but they simply regularize the services of an employee already in service.  Such act does not amount to filling any vacancy.”

It was explained that in order to attract the provisions of Section 25(H) of the ID Act, the workman needs to prove that:

  • he was the “retrenched employee”
  • his ex­employer has decided to fill up the vacancies in their set up and, therefore, he is entitled to claim preference over those persons, who have applied against such vacancies for a job while seeking re­employment in the services.

Explaining the difference between the terms ‘employment’ and ‘regularization of the service”, the Bench said:

“the   expression ‘employment’   signifies   a fresh employment to fill the vacancies whereas the expression ‘regularization of the service’ signifies that the employee, who is already in service, his services are regularized as per service regulations.”

[Management of the Barara Cooperative Marketing­cum Processing Society Ltd v. Workman Pratap Singh, 2019 SCC OnLine SC 1, decided on 02.01.2019]

Case BriefsHigh Courts

Gujarat High Court: A petition filed by the aggrieved under Articles 14, 16 and 226 of the Constitution, for denial of pensionary benefits was heard by the Bench of Mohinder Pal, J.

The petitioners were unskilled labourers on daily wage contract under Deesa Irrigation Division in the year 1972. According to a circular issued by the Government of Gujarat, the unskilled labourers were to complete 5 years of service and after completion of 5 years of regular service and completion of 240 days in each year, only then they would be put to a fixed pay-scale.

The crucial question before the Court was whether the period of service completed prior to regularization, would be counted towards pensionary benefits.

Certainly, the unskilled labourers had completed their 5 years of service and were subsequently put up on fixed-pay scale, after which they were retired in the year 2011. The contention put up against the petitioner for denial of pensionary benefits was that the petitioners did not complete service of 10 years of service after they were made permanent.

The Court was of the considered opinion that the period spent by the petitioners from 1998 till 2003, when they were kept on fixed pay is required to be counted while calculating the total length of service of the petitioners, as the petitioners had completed 5 years of continuous service and 240 days in each financial year in the year 1998, after which they were put on a fixed pay-scale. Therefore, the petitioners are well entitled to receive the pensionary benefits from 1998 and the arrears were directed to be paid by the respondents with 9% interest till the actual payment is made. [Galabji Navaji Thakor v. State of Gujarat, 2018 SCC OnLine Guj 71, decided on 18-01-2018]
Case BriefsHigh Courts

High Court of Judicature at Madras: A Single Judge Bench comprising of M.S Ramesh, J., recently addressed a writ petition under Article 226 of the Constitution wherein the petitioners prayed for the quashment of an order given by way of a government letter and to regularize the services of the petitioners while filling up the vacancies from the date of their initial appointment.

The facts of the case entail that the Parents Teachers Association (PTA) had appointed various persons for several posts such as that of the night watchmen, sweepers etc. on an ad hoc basis and they had been serving in various schools for more than 10 years on consolidated wages of approximately Rs. 1,500. Subsequent to this, an order dated 02/03/2012 was issued, wherein a certain number of sweepers and other allied non-teaching staff were being sought out for being recruited on special scale of pay. Some of the persons who had earlier been appointed on an ad hoc basis and had been working for a considerably long period of time requested the government to consider them for regularization of their services. The government rejected their pleas on the basis that the ad hoc appointments had been made without consideration to the caste reservation and the age criteria. The Court also held so since the ad hoc decisions had been made by the PTA, the services of those appointed could not be regularized.

The PTA is a Non-Governmental Organization that was established to develop good relations and cooperation between teachers and parents. One of its main duties also involves raising funds for necessary expenses for smooth running of schools in case the government is not able to provide the same. Owing to the issues as mentioned above, the PTA had to make ad hoc appointments consequent to which they were awaiting the government’s sanctioning of such appointments. But the government failed to do so for very long. Following this, despite the government having been aware of such ad hoc employees working, it passed an order for filling up these positions afresh through regular appointments. The respondent state had even justified the decision by pointing out that neither were the ad hoc appointments recommended by the Employment Exchange nor were they appointed by adopting caste reservation or taking into consideration their age eligibility criteria.

The Court held that the petitioners, who had also put in considerable service as ad hoc appointees on consolidated pay, were entitled to be regularized in the said post and that the impugned order passed by the respondent state was to be quashed. The Court observed that there was a severe crisis whereby appointments to the posts were imminent and necessary for the welfare of the school children. It was also not in dispute that the respondents were contemplating to sanction the posts of sweepers, watchmen, night watchmen, office assistants, etc., It was thus in contemplation of such a sanction that the PTA had made these appointments, which was also one of the objects of the PTA. It was held that the government’s decision to appoint 5000 new persons to those posts without considering the plight of the ad hoc appointments, who had been serving for a considerable time on meagre consolidated pay, was totally irrational. It directed the State to regularize the ad hoc appointments and then resort to new appointments while trying to adjust the 5000 appointments announced by the Chief Minister. The Court was also of the opinion that the respondent’s attempt to justify the rejection orders stating that the ad hoc appointments were not regular was illegal. [G. Baskar v. State of Tamil Nadu,  2017 SCC OnLine Mad 10804, order dated 16.02.2017]

Case BriefsHigh Courts

Delhi High Court: In a writ petition under Article 226 before the Delhi High Court, the petitioner sought the relief of continuation as a teacher in the Dayanand Model School. She pleaded that the advertisement that guided her for applying in the school as a teacher did not mention that the employment was only on temporary basis and the same was not informed to her even after her appointment. On the other hand, respondent submitted that the employment was purely on ad hoc basis and the same was conveyed to the petitioner at the time of her interview even though it was not mentioned in the advertisement.

Hearing both the parties, the Court noticed that the petitioned had failed to produce before the Court her letter of appointment issued to her mentioning whether she was appointed on regular or temporary basis. The Court said that a contractual teacher could seek regularisation only after three years of service and for this, relied on several judgments, Hamdard Public School V. Directorate of Education, (2013) 202 DLT 111 and Army Welfare Education Society v. Manju Nautiyal, 2015 SCC OnLine Del 13072. The Court held that as the petitioner had still not completed three years of her service in the school, she therefore, was not entitled to the benefit of regularisation as had been granted by the Court in previous cases before it. [Arun Lata v. Dy. Director of Education, 2017 SCC OnLine Del 6909, decided on 06.02.2017]

Case BriefsSupreme Court

Supreme Court: In the PIL relating to lack of basic amenities in the Bandipora District Court affecting the proper functioning of Courts where the issue of regularization of employement by the High Court was in question the Court laid down the following principles:

  • Article 235 enables the High Court to exercise complete administrative control over the district judiciary which extends to all functionaries attached to those courts, including ministerial staff and employees on the establishment.
  • Employment in the High Courts or in the courts subordinate to them constitutes public employment.
  • The date on which the vacancies are likely to occur are foreseeable with a reasonable amount of clarity and precision.
  • While the High Court is an autonomous constitutional authority whose status cannot be undermined, it is equally necessary for it to strictly comply with the rules framed in making recruitments.

Explaining the concept of regularization, the Court said that it is not a source of recruitment nor is it intended to confer permanency upon appointments which have been made without following the due process envisaged by Articles 14 and 16 of the Constitution. Essentially a scheme for regularisation, in order to be held to be legally valid, must be one which is aimed at validating certain irregular appointments which may have come to be made in genuine and legitimate administrative exigencies. In all such cases it may be left open to Courts to lift the veil to enquire whether the Scheme is aimed at achieving the above objective and is a genuine attempt at validating irregular appointments. The State and its instrumentalities cannot be permitted to use this window to validate illegal appointments. The second rider which must necessarily be placed is that the principle as formulated above is not meant to create or invest in a temporary or ad hoc Employee the right to seek a writ commanding the State to frame a scheme for regularisation.

The High Court of Jammu & Kashmir had, by order dated 01.12.2015, had observed that over a considerable period of time the state government had not created the required number of posts for the state judiciary as a result of which work has been hampered. According to the High Court, appointment of daily rated workers was necessitated to ensure that judicial work does not suffer. The High Court opined that these workers have been rendering work which should have been assigned to persons appointed on a regular basis against sanctioned posts.

The bench of T.S. Thakur, CJ and Dr. D.Y. Chandrachud and L. Nageswara Rao, JJ, noticing that the direction for regularization was issued by the High Court without considering the relevant constitutional and legal principles, said that it is unfortunate that the state government has allowed the requirements of the state judiciary to be neglected over such a long period of time. The need to facilitate the proper functioning of the High Court and the district judiciary is a constitutional necessity which imposes a non-negotiable obligation on the state government to create an adequate number of posts and to provide sufficient infrastructure. The state government is to blame for the unfortunate situation which has resulted in a large number of persons being recruited on a daily wage basis. [State of Jammu & Kashmir v. District Bar Association, Bandipora, 2016 SCC OnLine SC 1435, decided on 08.12.2016]