Case BriefsSupreme Court

Supreme Court: In the case where the Gujarat High Court had ordered the absorption of persons employed in a temporary unit, by creating supernumerary posts, the bench of MR Shah* and BV Nagarathna, JJ has held that no such direction can be issued by the High Court for absorption/regularisation of the employees who were appointed in a temporary unit which was created for a particular project and that too, by creating supernumerary posts.

In the present case, the respondents were initially appointed for a period of eleven months and on a fixed salary and that too, in a temporary unit – ”Project Implementation Unit”, which was created only for the purpose of rehabilitation pursuant to the earthquake for “Post-Earthquake Redevelopment Programme”. Therefore, the unit in which the respondents were appointed was itself a temporary unit and not a regular establishment. The posts on which the respondents were appointed and working were not the sanctioned posts in any regular establishment of the Government.

The Court, hence, observed that when the respondents were appointed on a fixed term and on a fixed salary in a temporary unit which was created for a particular project, no such direction could have been issued by the Division Bench of the High Court to absorb them in Government service and to regularise their services, by creating supernumerary posts. It was held that such a direction is wholly without jurisdiction.

What has weighed with the High Court was that the respondents were continued in service for a long time, i.e., seventeen years. However, out of seventeen years, the respondents continued in service for ten years pursuant to the interim order passed by the High Court. In such circumstances as well, the Court noticed that the High Court totally missed out on the aspect that the period for which the employees have continued in service pursuant to the interim order is to be excluded and not to be counted.

Not only this but though not required, the State, instead of putting an end to the services of the respondents, graciously placed the respondents in the Indian Red Cross Society, which the respondents did not accept.

“No duty was cast upon the State to transfer them to another establishment in a case where it is found that the employees are appointed in a temporary unit and on a temporary contractual basis and on a fixed term salary and on closure of the temporary unit, their services are not required.”

Considering all the aforementioned aspects, the Court set aside the decision of the High Court.

[State of Gujarat v. RJ Pathan, CIVIL APPEAL NO. 1951 OF 2022, decided on 24.03.2022]


*Judgment by: Justice MR Shah


Counsels

For State: Advocate Deepanwita Priyanka

For Respondents: Advocate Kabir Hathi

Tripura High Court
Case BriefsHigh Courts

Tripura High Court: S. Talpatra, J. disposed of the petition holding that the discretion lies with the respondents to provide job for livelihood.

Petitioners were engaged as the Daily Rated Worker (DRW) under respondent 2, which is admittedly a Society for promotion of self-employment activities. They have contended that they have completed ten years of service as DRWs and as such, they should be considered for regularization in terms of the policy declared by the State by the memorandum dated 01-09-2008.

Petitioners had challenged the decision contained in the communication dated 24-08-2020 whereby one agency called DREAMZ Services had been given the contract for the works catalogued therein under the terms and conditions that have been agreed upon by SWAVALAMBAN and the said DREAMZ Service. Its tenure was one year, hence, that is assumed to be not in vogue.

They had urged to issue direction in the form of mandamus upon the respondents to quash the NIQ dated 03-07-2020 issued by the Nodal Officer, SWAVALAMBAN. In terms of the earlier note in terms of NIQ, one agency for services had been engaged. The said agency was engaged by a formal letter dated 24-08-2020 which had been sought to be interfered with.

Court opined that the petitioner have failed to substantiate that they were working as the Daily Rated Worker/Contingent Workers in the Government departments for which the memorandum dated 01-09-2008 and the subsequent memorandum dated 21-01-2009 were framed.

Petitioners could not produce the term of their engagements and as such does not have any indefeasible right to continue in such capacity.

But a Society which has been working for the benefit of the people, particularly for promotion of self-employment activities is not expected to disengage the petitioners in the manner they have done so. They should have taken a sincere effort but they have not done so. It was not a matter of compassion, it was completely a matter of approach how to deal with new situation, particularly when the petitioners have worked in their Society for more than ten years.

Court held that it cannot intervene in such matter. Therefore, the respondents were asked to consider the aspect so that the petitioners may get some engagement for livelihood, even through the outsourcing agency which had been providing several services in the Society. The respondents were allowed to be at their discretion to consider whether the petitioners can be provided job so that they can live, as they do not have any other livelihood. Such consideration was made expeditiously. The writ petition was disposed of.[Harmila Uchai v. State of Tripura, 2022 SCC OnLine Tri 117, decided on 23-02-2022]


For Petitioner(s): Ms A. Debbarma

For respondent(s): Mr D. Bhattacharya, G.A. Mr S. Saha


Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsSupreme Court

Supreme Court: Stating that the creation and/or sanction of the posts is the sole prerogative of the Government, the bench of MR Shah* and AS Bopanna, JJ has held that High Court cannot, in exercise of the power under Article 226 of the Constitution, issue a Mandamus to direct the Department to sanction and create the posts.

The Court was deciding a case wherein the respondents-original applicants were working as contingent paid part-time sweepers (Safai Karamcharies working for less than five hours a day) in a Post Office at Chandigarh. There is no documentary evidence on record to establish and prove that the respondents were working continuously.

It is important to note that there are no sanctioned posts of Safaiwalas in the Post Office in which the respondents were working.

A regularization policy was framed considering the decision of this Court in the case of Secretary, State of Karnataka v. Umadevi, (2006) 4 SCC 1. It provided that the Union of India, the State Governments and their instrumentalities should take steps to regularize as a one-time measure the services of such irregularly appointed, qualified persons, in terms of the statutory requirement of the Rules for the posts, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals.

By the impugned judgment and order, the Punjab and Haryana High Court directed to reformulate the regularization policy and to take a decision to sanction the post in a phased manner.

The Supreme Court, however, noted that since the Union of India/Department has already come up with a regularization policy in consonance with the law laid down by the Supreme Court, which does not apply to the part-time workers who do not work on the sanctioned post, the respondents were not entitled for the benefit of regularization.

The Court explained,

“As per the settled preposition of law, the regularization can be only as per the regularization policy declared by the State/Government and nobody can claim the regularization as a matter of right dehors the regularization policy. Therefore, in absence of any sanctioned post and considering the fact that the respondents were serving as a contingent paid part-time Safai Karamcharies, even otherwise, they were not entitled for the benefit of regularization under the regularization policy dated 30.06.2014.”

The Court took note of the decision in State of Maharashtra v. R.S. Bhonde, (2005) 6 SCC 751 wherein it was held that the status of permanency cannot be granted when there is no post and that mere continuance every year of seasonal work during the period when work was available does not constitute a permanent status unless there exists a post and regularization is done.

Holding that part-time employees are not entitled to seek regularization as they are not working against any sanctioned post and there cannot be any permanent continuance of part-time temporary employees as held, the Court said that

“Part-time temporary employees in a Government run institution cannot claim parity in salary with regular employees of the Government on the principle of equal pay for equal work.”

Concluding that the regularization policy to regularize the services of the employees working on temporary status and/or casual labourers is a policy decision and in judicial review the Court cannot issue Mandamus and/or issue mandatory directions to do so, the Court held,

“The High Court cannot, in exercise of the power under Article 226, issue a Mandamus to direct the Department to sanction and create the posts. The High Court, in exercise of the powers under Article 226 of the Constitution, also cannot direct the Government and/or the Department to formulate a particular regularization policy. Framing of any scheme is no function of the Court and is the sole prerogative of the Government. Even the creation and/or sanction of the posts is also the sole prerogative of the Government and the High Court, in exercise of the power under Article 226 of the Constitution, cannot issue Mandamus and/or direct to create and sanction the posts.”

[Union of India v. Ilmo Devi, 2021 SCC OnLine SC 899, decided on 07.10.2021]


Counsels

For appellants: ASG Madhvi Divan

For respondents: Advocate Rahul Gupta


*Judgment by: Justice MR Shah

Case BriefsHigh Courts

Tripura High Court: Akil Kureshi, CJ., dismissed a writ petition which was filed by the petitioner praying for regularizing her in service w.e.f. 14-02-2002, i.e. on completion of 10 years of service with all consequential benefits.

Counsel for the petitioner, Mr Arijit Bhowmik however submitted that the expectation of the petitioner was for being granted regularization w.e.f. 01-07-2008 as provided in office memorandum dated 01-09-2008 issued by the State Government.

The petitioner was appointed as temporary fixed pay worker (clerical) under an order dated 15-02-1992 by the Notified Area Authority, Dharmanagar. This Notified Area Authority was later on upgraded as Dharmanagar Nagar Panchayat and thereafter to the status of Dharmanagar Municipal Council. All the employees of the Notified Area Authority automatically became the employees of Dharmanagar Municipal Council. Under an office memorandum dated 14-12-2012 the Finance Department, Government of Tripura granted its concurrence for regularization of temporary workers. Accordingly, the petitioner was regularized by an order dated 20-12-2012 with effect from the said date. The grievance of the petitioner was that such regularization was granted prospectively from the date of the order instead of regularizing her services w.e.f. 01-07-2008 as provided in office memorandum dated 01-09-2008.

Counsel for the respondent, Mr R.G. Chakraborty and Mr Rajib Saha contended that regularization of daily rated or contingent staff was subject to concurrence of the Finance Department which was granted only in the year 2012. The regularization, therefore, cannot be granted with retrospective effect.

The Court after perusing the office memorandum observed that the eligibility criteria was that the DRW, Casual or Contingent Workers should have been engaged prior to 31-03-2003 and should have completed 10 years full-time work on 01-07-2012. The cut-off date of 31-03-2008 as envisaged in office memorandum dated 01.09.2008, for the workers of Municipal Council and Panchayats was shifted to 01-07-2012. Further, the eligible workers would be provided the pay scale in the entry level scale from prospective date of joining the regular scale post. This office memorandum thus did not envisage granting regularization from retrospective effect.

The Court while dismissing the petition held that petitioner cannot seek the benefit of regularization from any date anterior to the date of order of regularization.

[Vaswati Sharma v. State of Tripura, 2021 SCC OnLine Tri 270 decided on 13-05-2021]


Suchita Shukla, Editorial Assistant has put this report together 

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]