AI Insights
The case involved a group of petitioners, part-time daily wage employees working in the Anti Malaria Department of the Ahmedabad Municipal Corporation, who sought regularization of their services after many years of employment. They argued that despite their long service, they were not regularized and were seeking benefits similar to those of regular employees, including those from the 6th Pay Commission. The Corporation contested these claims, highlighting that the employees were not appointed through a regular recruitment process and did not meet the necessary criteria for regularization as established by law and previous court rulings. The court's decision was based on the interpretation of relevant laws and precedents, particularly focusing on the principles of equality and non-arbitrariness in public employment.
Appeal Details
Counselvise Citation
[2015] 140 COUNSELVISE.COM (IT) 726641 (HC-GUJARAT)
Assessee PAN
Bench
Appeal Number
CRN Number
Appellant
Respondent
Appeal Type
Others
Pronouncement Date
23-06-2015
Assessment Year
misc
Judgement Text
"C/SCA/11441/2012 CAV JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 11441 of 2012 With SPECIAL CIVIL APPLICATION No. 13853 of 2012 With SPECIAL CIVIL APPLICATION No. 14916 of 2013 With SPECIAL CIVIL APPLICATION No. 15336 of 2013 With SPECIAL CIVIL APPLICATION No. 14832 of 2013 With SPECIAL CIVIL APPLICATION No. 14731 of 2013 With SPECIAL CIVIL APPLICATION No. 13876 of 2013 With SPECIAL CIVIL APPLICATION No. 16044 of 2013 With SPECIAL CIVIL APPLICATION No. 13877 of 2013 With SPECIAL CIVIL APPLICATION No. 14091 of 2013 With SPECIAL CIVIL APPLICATION No. 14326 of 2013 With SPECIAL CIVIL APPLICATION No. 13583 of 2013 With SPECIAL CIVIL APPLICATION No. 4758 of 2014 With CIVIL APPLICATION No. 3371 of 2014 In SPECIAL CIVIL APPLICATION No. 11441 of 2012 With SPECIAL CIVIL APPLICATION No. 12057 of 2014 With SPECIAL CIVIL APPLICATION No. 9502 of 2014 With SPECIAL CIVIL APPLICATION No. 6181 of 2014 With SPECIAL CIVIL APPLICATION No. 6564 of 2014 With SPECIAL CIVIL APPLICATION No. 8269 of 2014 With SPECIAL CIVIL APPLICATION No. 5196 of 2014 With Page 1 of 83 C/SCA/11441/2012 CAV JUDGMENT SPECIAL CIVIL APPLICATION No. 14121 of 2014 FOR APPROVAL AND SIGNATURE: HONOURABLE Ms. JUSTICE SONIA GOKANI ============================================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ? ============================================================== TALESHKUMAR MAGANBHAI PATEL & 45....Petitioner(s) Versus AHMEDABAD MUNICIPAL CORPORATION THRO'COMMISSIONER & 1....Respondent(s) ============================================================== Appearance: Mr YATIN OZA Sr Advocate with Ms RENU D CHAUDHARY & NIMISHA SHARMA, Advocates for the Petitioners Mr NIRAJ ASHAR, AGP for the Respondent(s) No. 2 Mr KAMAL TRIVEDI, Sr Advocate with Mr DEEP D VYAS, Advocate for the Respondent NOTICE SERVED for the Respondent(s) No. 2 ============================================================== CORAM: HONOURABLE MS JUSTICE SONIA GOKANI 23rd June 2015 CAV JUDGMENT This group of petitions since involve identical questions of facts and law, they are being decided by this common judgment and order. Facts in capsulized form, Page 2 of 83 C/SCA/11441/2012 CAV JUDGMENT necessary for the purpose of adjudication of the issue, are drawn from Special Civil Application No. 11441 of 2012. The petitioners were appointed by the Malaria Health Department in the year 1994 and they continued to work with artificial breaks in service and since the year 2006, they are working continuously without break in service. A circular came to be issued on 31st July 2010 wherein the Corporation invited applications from those employees working in Class IV who had successfully completed atleast one year of service as on 30th June 2010 for preparing a select list for permanent post of Sahayak on two years' probation. 2. It is the say of the petitioners that they are paid a meager amount per month for the services rendered as a part time employees and in the monsoon seasons, the petitioners services are taken as full-time daily wagers. It is the say of the petitioners that their service have been extended from time to time on issuance of the circulars which are dated 12th April 2010; 6th May 2010; 27th May 2011 and 6th July 2012. It is also averred that they are possessing Identity Card issued by the Corporation and Page 3 of 83 C/SCA/11441/2012 CAV JUDGMENT they are also sent for other work like election duty, etc. Some of the petitioners are Graduate, having qualification more than required for the services. It is the say of the petitioners that despite the requirement of the Corporation, they have not been regularized in service. They all have been working sincerely for more than eighteen years approximately, and therefore, there is a need to regularize their services and allow them all benefits; including those which are flowing from 6th Pay Commission. In essence, what has been sought is to regularize them in service for they having completed 5 years' and 900 days. 3. Following are the prayers sought for - “[A] Your Lordships may be pleased to admit and allow the present petitions; [B] Your Lordships may be pleased to issue a writ in the nature of mandamus or a writ in the nature of mandamus or any other appropriate writ, order and/or directions directing the respondents to absorb the petitioners with all consequential benefits from the date of appointment; [C] Your Lordships may be please to direct the Page 4 of 83 C/SCA/11441/2012 CAV JUDGMENT respondents to consider the petitioners as regular employees and give all consequential benefits of regular employees be granted to the petitioners; [D] Your Lordships may be please to declare the action of the respondents of not regularizing the petitioners is arbitrary, discriminatory and against the law; [E] Pending the hearing and final disposal of this petition, Your Lordships may be pleased to restrain the respondents from terminating the services of the petitioners and further direct respondents to continue services of the petitioners; [F] Your Lordships may be please to give benefits of Circular dated 05.05.2010 to the petitioners; [G] Your Lordships may be pleased to pass such other and further relief/s as may be deemed just and proper in the facts and circumstances of the case in favour of the petitioners in the interest of justice.” 4. In affidavit-in-reply, the Corporation has denied of petitioners having worked with artificial breaks for all these years. It is also denied that the office order dated 5th July 2010 of Solid Waste Management & Conservancy Page 5 of 83 C/SCA/11441/2012 CAV JUDGMENT Services purports to bear the eligibility for regularization or absorption, as contended by the petitioners with the intention that a deliberate suppression made by the petitioners with respect to their services as daily wage employees. It is further the say of the respondent that Special Civil Application No. 5019 of 2001 and allied cases were instituted by some of the workmen wherein a settlement was arrived at but the same is in respect of only those daily wagers who had completed five years' and 900 days service as full-time daily wagers on 15th August 2004. It was an exceptional measure for grant of permanency benefits to class IV employees as per the said resolution. It is emphasized that there is no right to be absorbed unless they are on permanent post. It is the say of the Corporation that the instructions had been issued vide Circular dated 31st July 2010 for preparing a select list for the persons working in Class IV. Pursuant to which 1061 applications were received, out of which details provided by 412 applicants were incomplete. Such instructions/circular did not have any clarification with regard to age restriction, eligibility, qualification, etc., and Page 6 of 83 C/SCA/11441/2012 CAV JUDGMENT therefore, a Committee was constituted of three members comprising Deputy Municipal Commissioner [Admn]; Deputy Municipal Commissioner [Health] and Deputy Municipal Commissioner [Hospitals]. Further, a Committee also was constituted comprising Chief Officer [MoH], Compliant Officer and Labour Officer to thrash out the issues concerning selection norms and other relevant issues. Later on, the Commissioner took a decision to scrap the entire procedure and file the applications. 4.1 Rejoinder and Sur-Rejoinder affidavits are also brought on the record. 4. Both the sides made their submissions elaborately in support of their rival stand. 5.1 Learned senior advocate Shri Y.N Oza appearing with Ms. Renu Chaudhari, learned advocate for the petitioners has fervently made his submissions urging inter alia that the policy which has been framed by the Corporation is a benevolent policy. During the pendency of this petition also, many others have been regularized in job. As the petitioners were not ready to forgo their previous years service, they have not been absorbed. However, the rule Page 7 of 83 C/SCA/11441/2012 CAV JUDGMENT of benevolent construction would require interpretation in the liberal manner. According to him, there are four communications dated 5th July 2010; 31st July 2010; 14th October 2010 and 4th March 2014 which have been given a complete go-bye. It was never the case of the Corporation that this policy was meant only for Full-time Daily Wagers and not for Part-time Daily wagers. He also argued at length how equality enshrined in the Constitution of India is violated by the respondents by its alleged arbitrary action. In support of his arguments, counsel placed reliance upon the following authorities :- [a] Shyam Sunder v. Ram Kumar, 2001 (8) SCC 24; [b] S. Appukuttan v. Thundiyil Janaki Amma, 1998 (2) SCC 372; [c] Harnam Singh & Ors. v. Regional Transport Authority, Calcutta Region & Ors., AIR 1954 SC 190; [d] National Insurance Company Ltd v. Kiral Singh, 2014 (5) SCC 189; [e] Barauni Refinery Pragatisheel Shramik Parishad vs. Indian Oil Corporation Limited, 1991 [1] SCC 4; [f] G.M, Security Paper Mills v. R.S Sharma,1986 (2) SCC 151; [g] Union of India v. Ibrahim Uddin, 2012 (8) SCC 148; [h] Sriram Industrial Enterprises Ltd. vs.Mahak Singh, 2007 (4) SCC 94; [I] Amarendra Kumar Mohapatra v. State of Orissa, Page 8 of 83 C/SCA/11441/2012 CAV JUDGMENT 2014 (4) SCC 583; [j] A. Manjula Bhashini v. A.P Women's Coop. Finance Corporation Limited, 2009 (8) SCC 431. 5.2 Per contra, learned senior advocate Shri Kamal Trivedi appearing with Mr. Deep D. Vyas, learned advocate for the Corporation has strenuously submitted that 128 petitioners are Part-time Daily Wagers and not Full-time Daily wagers. They are working since 2006. Work of 8 hours daily is being taken from them only in the monsoon seasons. From the very fact that they are in Anti Malaria Department, it is by a word of mouth that they have been engaged in such work. They work for eight hours during four months of monsoon season and for four hours during rest of the eight months. None has undergone the recruitment process nor has any one been engaged in regularly followed method. No process of recruitment is undertaken, not even their names have been called from the Employment Exchange. For the purpose of regularization, the scheme floated by the Corporation speaks of five years' service and 900 days of work experience. The requirement of 180 days each year of the work also has been given a go-bye. This policy was Page 9 of 83 C/SCA/11441/2012 CAV JUDGMENT meant for Full-time Daily Wagers and not for Part-time Daily Wagers. It is simply not possible for them to be regularized. It is his say that during pendency of these proceedings, on 1st July 2014, status of Part-time Daily Wagers have been converted to Full-time Daily Wagers as a policy decision, considering the plight of many. However, their absorption would be feasible only after five years only. Those who chose not to sign this option are the one who are left out and are agitating before the Court. 5.3 Counsel has relied upon a decision of the Apex Court rendered in case of Secretary to Government, School Education Department, Chennai v. R. Govindaswamy & Ors., reported in [2014] 4 SCC 769 wherein, in the case of Part-time Sweepers working with the appellant Bank for more than 10 years, the Court held and observed that mere continuation of service by a temporary or ad hoc or daily-wage employee, under the cover of some interim orders of the Court, would not confer upon him any right to be absorbed into service as such service would be 'litigious employment'. Even Page 10 of 83 C/SCA/11441/2012 CAV JUDGMENT temporary, ad hoc or daily wage service for a long number of years, let alone service for one or two years, will not entitle such employee to claim regularization, if he is not working against a sanctioned post. The Court further observed that sympathy and sentiment cannot be valid grounds for regularization of services in absence of legal right. 5.4 In support of his submissions, counsel also placed reliance on the following authorities : a] Punjab Water Supply & Sewerage Board v. Ranjodh Singh & Ors., reported in (2007) 2 SCC 491; b] Official Liquidator v. Dayanand & Ors., reported in (2008) 10 SCC 1; c] State of Rajasthan & Ors. vs. Daya Lal & Ors., reported in (2011) 2 SCC 429; d] State of Orissa & Anr. vs. Mamata Mohanty, reported in (2011) 3 SCC 436; e] State of Haryana & Anr. vs. Tilak Raj & Ors., reported in (2003) 6 SCC 123; f] State of Haryana & Ors. vs. Jasmer Singh & Ors., reported in (1996) 11 SCC 77. 6. Having thus heard both the sides and having considered the material on the subject, it could be noticed that all the petitioners are Part-time Daily Wagers working with the Corporation since 2006 in Anti Malaria activities, working for four hours daily for nearly eight months in a Page 11 of 83 C/SCA/11441/2012 CAV JUDGMENT year, whereas, they work for eight hours for four months in monsoon season. It is an undisputed fact that all the petitioners have been working without undergoing any regular recruitment procedure. Their appointments have not been made pursuant to either any advertisement or on calling the names from Employment Exchange. In the year 1978-79, the Corporation issued an administrative order bearing number 334 by making a policy decision that those who completed minimum five years of continuous service or more as on 31st March 1978 with minimum 180 days presence in a year should be considered for the purpose of regularization. 6.1 Those daily rated workers in the Engineering Department were to be conferred benefits pursuant to an award passed in Reference No. 179 9f 1975. 6.2 On 27th September 1982, the General Board of the Corporation by its Resolution No. 1110 approved the resolution No. 1461 dated 1st September 1982 of the Standing Committee resolved to delete from the said administrative order. The words, “daily rated workers who completed minimum 180 days in a year with minimum Page 12 of 83 C/SCA/11441/2012 CAV JUDGMENT five years of continuous service” were deleted and instead the words which replaced the same in the policy are, “..in case of those daily wagers, who have put in more than five years of service, their working days should be divided by 180 and if the total experience is five years or more, their services be regularized.” In other words, a strict requirement of 180 days per year for daily rated workers to be completed for the purpose of regularization and conferment of benefit of IT reference mentioned hereinabove was relaxed. And therefore, the requirement was replaced by completing 900 days of working in five years, rather than the requirement of 180 days every year individually. 6.3 On 16th August 1984, the Corporation issued a Circular giving further directions in relation to those daily rated workers who worked on scheduled posts in any Department for 900 days in five years directing inter alia that they should be regularized and the list of such workers should be prepared twice every year and forwarded to the concerned Department on 31st March and 30th September each year. Thus, this benefited non Page 13 of 83 C/SCA/11441/2012 CAV JUDGMENT permanent workers and also those workers, who worked by way of temporary arrangement for 900 days in five years' time. 6.4 The 23rd March 1999 circular issued by the Corporation thereafter directed to send the files of daily rated worker eligible for regularization as per the policy of the Corporation, particularly the resolution dated 27th September 1982 and because of that, there was increase in the litigation. 6.5 The Standing Committee passed a resolution No. 447 dated 13th August 2004 and decided that those daily wager Safai Kamdars belonging to Class IV who continued in service for five years and have worked for 900 days during the said period of five years as on 15th August 2004 should be made permanent workmen by way of such exceptional measure. 6.6 On 3rd September 2004, in a writ petition being Special Civil Application No. 5019 of 2001 filed by the workers, this Court passed an order with the consensus of the parties as regards the terms and the Court also observed that pursuant to the resolution, the process had Page 14 of 83 C/SCA/11441/2012 CAV JUDGMENT been initiated by the Corporation to resolve the disputes by inviting applications from the daily rated class IV workmen. 6.7 On 3rd January 2008, the Commissioner issued a Circular informing all the authorities of the Corporation as also all the Departments that pursuant to the Standing Committee resolution dated 13th August 2004, all Full-time Daily Wagers who completed 5 years of continuous service and have worked for 900 days be made permanent. The said resolution refers to the prevalent policy of regularization and suggested that the same was meant for Full-time Daily Wagers and not for Part-timers. 6.8 On 5th July 2010, the Municipal Commissioner passed an Order bearing No. 1/2010-2011 for Safai Kamdars in whose case, 900 Full-time days had not been completed or in case of those employees in whose case 1800 Part- time days had not been completed. In the said order it is stated that they should be allowed to work for completion of deficit number of days and thereafter their applications be invited in the prescribed form and upon evaluation, their names should be sent for approval of the competent Page 15 of 83 C/SCA/11441/2012 CAV JUDGMENT authority to consider whether to make them permanent or not. 6.9 The said order, however, was given a go-bye at the time of approval dated 7th May 2014. 7. On 31st July 2010, the Corporation issued a Circular inviting applications from employees working in Class IV who successfully completed atleast one year on 30th June 2010 for preparing a select list for the permanent post of Sahayak on two years' probation. As mentioned hereinabove, 1030 applications were received and out of which 408 applications were found incomplete and as the said circular did not specify the age restriction, eligibility criteria, qualification, etc., and no such details were also furnished by the candidates, a Committee was constituted for examining the complex issues. Eventually, the decision taken by such Committee was subsequently scrapped by the Commissioner and all the applications were ordered to be filed. 7.1 On 14th October 2010, an order came to be passed in connection with one Shri Bhavesh Govindbhai Patel where his total number of Full-time days were 449 and total Page 16 of 83 C/SCA/11441/2012 CAV JUDGMENT number of Part-time days were 189, indicating therein that for completing 900 Full-time days or 1800 part-time days, the deficit number of days are 357. Subsequently, both the orders dated 5th July 2010 and 14th October 2010 were not implemented. According to the Corporation, in view of the approval accorded on 7th May 2014 by the Municipal Commissioner declaring specifically that it had never been the policy of the Corporation either to consolidate the number of full-time days and part-time days or to allow him to complete 900 full-time days or 1800 part-time days of work, by permitting to complete the work on deficit number of days, and therefore, the petitioners cannot take benefit of these two orders which were never implemented, and therefore, are not in force. 7.2 Thereafter, the Municipal Commissioner approved a proposal dated 20th February 2014 on 4th March 2014 for placing 330 part-time daily wagers which included the present petitioners at the disposal of the Residential Welfare Association whose tenure otherwise was to end w.e.f 30th April 2014. The stay has been sought by way of Civil Application No. 3371 of 2014 seeking to stay the Page 17 of 83 C/SCA/11441/2012 CAV JUDGMENT implementation and execution and operation of such approval. This Court had granted ad interim relief and directed maintenance of status quo qua the service conditions of the petitioners on 25th March 2014. It appears that on 25th March 2014 itself, a proposal came to be forwarded for implementing the Circular dated 31st July 2010 pertaining to Class IV employees who completed one year on 30th June 2010 for preparing a selection list as Sahayak on 2 years probation. This has not been accepted by the Commissioner on 17th April 2014, and therefore, the said Circular also has not been implemented. 7.3 On 26th April 2014, the Commissioner approved a proposal of not implementing the earlier approval dated 4th March 2014 by which 300 part-time daily wagers were placed at the disposal of the Residential Welfare Association and for getting the work performed from Residential Welfare Association. On 7th May 2014, approval has been given by the Commissioner declaring inter alia that there had never been a policy of the Corporation that those who did not complete 900 Full-time days or 1800 Part-time days to complete the deficit Page 18 of 83 C/SCA/11441/2012 CAV JUDGMENT number of days or allow to consolidate the full-time or part-time number of days. It specifies that there should be 5 years of continuous service during which they should have worked for 900 days as Full-time Daily Wagers and absence of service for one year is to be construed as break in service. 7.4 The Standing Committee on 9th July 2014 passed a Resolution No. 326 inter alia resolving to give benefit of Full-time work of 8 hours to the said part-time daily wagers in the Corporation alongwith granting of Transport Allowances and four paid-leave per month. Such benefit stands extended in case where attendance is more than 70% per month and such policy came to be implemented from July 2014 on getting the approval of the Commissioner. 8. A statement under the provisions of Section 2 (p) of the Industrial Disputes Act read with Rule 62 (2) of the Rules came to be arrived at in respect of part-time daily wagers of the Corporation with majority of Union members. In other words, with this policy decision having been made effective from 1st July 2014, the part-time daily Page 19 of 83 C/SCA/11441/2012 CAV JUDGMENT wagers will work as full-time daily rated workers who would be getting the total amount of Rs. 7,730/= per month with medical allowance and other fringe benefits. One of the conditions of this conversion is to withdraw all the pending cases filed against the Corporation. This has been approved by the General Board of the Municipal Corporation on 25th July 2014. A Circular came to be issued on 6th December 2014 that all those petitioners who refused to sign the undertaking to withdraw the pending cases against the Corporation in consideration of the receipt of the benefits of the settlement would be terminated. 8.1 Such circular came to be challenged by way of Special Civil Application No. 13194 of 2014 where the Corporation made a statement that none of the petitioners would be terminated. 8.2 The question, therefore, that has been raised by the present petitioners who are working in Anti Malaria Department is that they are entitled to get the benefit of the policy of the Corporation which concerns regularization of those who have completed 5 years' Page 20 of 83 C/SCA/11441/2012 CAV JUDGMENT service and worked for 900 days during the said period of 5 years, particularly when it is emphasized by the Corporation all along that this policy is meant for full-time daily wagers and not for part-time daily wagers. It is the say of respondent Corporation that the part-time daily wagers cannot be allowed to consolidate the number of full-time days of work and part-time days of work so as to complete 900 days of work in five years' of continuous service for availing the benefit of regularization. The administrative decision dated 5th July 2010; 31st July 2010 and 14th October 2010, according to the Corporation, has never been implemented whereby the selection list was prepared for Sahayaks on two years' probation for those who completed atleast one year on 30th June 2010 and three of the employees were permitted to complete the deficit number of days or were allowed to consolidate the number of full-time days of work and part-time days of work for the purpose of getting the benefit of regularization and hence, no parity can be sought from the same for want of any implementation of such decision. 8.3 It is also the matter of record that on 1st July 2014, Page 21 of 83 C/SCA/11441/2012 CAV JUDGMENT part-time daily wagers have been converted into full-time daily wagers pursuant to the settlement dated 18th July 2014 arrived at by and between the parties under the provisions of Industrial Disputes Act where out of 128 petitioners, sixty have signed whereas the remaining continued to be part-time daily wagers. Thus, it appears that a consistent policy is followed by the Corporation from 1978-79 where those who have completed five years' of continuous service with minimum 180 days of presence in a year, were considered for regularization of their service. Later on in the year 1982 such requirement was relaxed and the requirement of completing minimum 180 days in a year was replaced by total number of 900 days in five years continuous service. In the last decision taken on 1st July 2014 also, those who were part-time daily wagers have been converted into full-time daily wagers with the minimum pay of Rs. 7,730/= plus other fringe benefits, of course subject to withdrawal of pending cases. Once having given them opportunity to work as full-time daily wagers, on completion of five years' period, their regularization would be feasible. Page 22 of 83 C/SCA/11441/2012 CAV JUDGMENT 8.4 Therefore, a moot question to be answered is whether the petitioners who have continued to be in service from 2006 can insist on combining their service as full-time daily wagers for four months in a year and part- time daily wagers for a period of eight months so as to avail the benefit of regularization and whether they can claim such regularization as of right or on the principle of parity ? 9. Admittedly, the total number of days in case of petitioners every year as full-time daily wagers would be 120 days, as they work as full-time daily wagers for four months in monsoon in Anti-Malaria Department and for the rest of the period, they work as part-time daily wagers. And therefore, in five years' period, their total working days cannot go beyond 600 days whereas as part-time daily wagers, for having worked for eight months, the total number of days of the petitioners would work out to be 240 and in five years' time, it can never reach 1800 days unless 600 days of work as full-time days is combined with 1200 days of part-time daily wager in five years. The policy which has been adopted by the Page 23 of 83 C/SCA/11441/2012 CAV JUDGMENT Corporation right from 1982 of minimum requirement of 5 years of continuous service as full-time daily rated worker and 900 days of such work can never be fulfilled by the petitioners herein, from the very nature of their appointment. 9.1 It is needed to be mentioned at this stage that according to the respondent-Corporation there has never been a scientific study carried out as to the requirement of manpower or workforce to be utilized for Anti Malaria activities, or for that matter, for any other Departments. However, as hazard caused by mosquito is at its peak during the monsoon period, these daily rated workers could be occupied full-time for four months and for rest of the time, their duty is taken as Class IV workers for four hours a day. The petitioners are continuing with the Corporation for the past nine years. Even if they continue for the entire life span, at no stage, they can meet with the requirement of completing 900 days in a given block of five years. Of course in the year 2010, the Corporation had contemplated the case of some of the employees to permit them additional days of work as full-time Page 24 of 83 C/SCA/11441/2012 CAV JUDGMENT employees since they were falling short by some days in completing 900 days of work within the period of 5 years. It is also refuted in so many words on affidavit by the Corporation that such benefit had been given to others, and therefore, emphasis on the principle of parity would not be available to the petitioners. The 1st July 2014 policy is for the benefit of part-time daily wagers, who had been given the benefit of full-time daily wages and 167 such workers of Anti Malaria Department consented to such settlement. The Corporation had agreed to grant benefit of shoes, woolen clothes, umbrella, etc alongwith medical facilities to the entire family of part-time workmen vide its Circular dated 3rd March 2014. 9.2 On one hand the stand of the Corporation has been that all these workmen have entered into service without undergoing the process of recruitment have not been appointed pursuant to any advertisement nor were their names called from the Employment Exchange and hence, they cannot claim regularization. On the other hand, those of them who agreed to their terms and conditions have been permitted to convert their service into Full-time Daily Page 25 of 83 C/SCA/11441/2012 CAV JUDGMENT workers by virtue of 2 (p) settlement and those who withdrew their pending cases are permitted to work for five years and at the end of five years' term on their having completed 900 days of work as full-time Daily wagers are ensured absorption. Their services could be utilized in any of the Departments and not exclusively in the Anti Malaria Department. This compromise was at the union level where minimum requirement of presence would be of 60%. They would be entitled to work in any other Department as per the assignment given to them. Petitioners herein have sought such benefits by way of their right so also putting forth principle of parity and equitable justice urging emphatically that by way of one time measure, such absorption is made permissible even in case of State of Karnataka v. Uma Devi [Supra]. This policy though had been continued for earlier years, after the case of Uma Devi [Supra], the Corporation as a one time measure has not absorbed those who were already serving it. 9.3 On 3rd January 2008, the full-time daily wagers who completed five years of continuous service and have Page 26 of 83 C/SCA/11441/2012 CAV JUDGMENT worked for 900 days as on 15th August 2004 have been made permanent. In a settlement with the Union, once again for those persons who worked as part-time daily workers and particularly as full-time daily rated workers, a compromise has been arrived at under section 2(p) of the Industrial Disputes Act, 1947 read with Rule 62 (2) of the Industrial Disputes {Gujarat} Rules. 10. As per Section 2 (p) of the Industrial Disputes Act, 1947 the word “Settlement” is defined which means a settlement arrived at in the course of conciliation proceedings and includes a written agreement between the employer and the workmen arrived at otherwise then in the course of conciliation proceedings where such agreement has been signed by the parties in such manner as may be prescribed and the copy of which is to be sent to the appropriate Government and the Conciliation Officer. 10.1 This section contemplates two categories of settlement, as held and observed by the Apex Court viz., [i] a settlement which is arrived at in the course of conciliation proceedings; and [ii] a written agreement Page 27 of 83 C/SCA/11441/2012 CAV JUDGMENT between the employer and the workmen arrived at otherwise than in the course of conciliation proceedings. When a settlement is arrived at otherwise than in the course of conciliation proceedings with the signature of both the parties, the question of justness and fairness of such settlement also can be examined; of course, with reference to the situation as it would stand on the date on which it is arrived at. Such settlement is binding on all the parties. 11. Admittedly, the settlement under the provisions of Section 2 (p) read with Rule 62 (2) of the Rules came to be arrived at during the course of present proceedings. This was pursuant to the Standing Committee resolution No. 326 dated 9th July 2014 and the approval accorded by the General Body Resolution No. 241 dated 25th July 2014, that such a settlement came to be made. The previous decision concerns only the full-time daily rated workers and not the part-time daily rated workers w.e.f 1st January 2014, of course 167 part-time workers of Anti Malaria Department consented to such settlement in the requisite form and they have agreed to work in other departments Page 28 of 83 C/SCA/11441/2012 CAV JUDGMENT as well. More particularly, when this is arrived at to herald peace, that may not help the cause for grant of regularization. There are in all 6000 part-time daily rated workmen in the Corporation who are working for four hours daily. This settlement under section 2 (p) of the Act would benefit 6000 such part time daily rated workmen. Essentially, to maintain higher standards of hygiene and to lend more beauty to the City of Ahmedabad as also for bringing industrial peace amongst the workers, this settlement has been arrived at. 11.1 In relation to Section 2(p) settlement, a decision which is sought to be relied upon is in case of General Manager, Security Paper Mill, Hoshangabad v. R.S Sharma & Ors., reported in (1986) 2 SCC 151 where the Court has stated that once the settlement between management and the Union is arrived at, in the course of conciliation proceedings, a subsequent settlement entered into otherwise than in the course of conciliation proceeding between the management and another Union not representing all the workers would not be binding on those who were not part thereto. There is no insistence on Page 29 of 83 C/SCA/11441/2012 CAV JUDGMENT the part of the respondent for the petitioner to abide by those terms nor should their termination notice be construed as an indirect imposition to be bound by those terms of settlement. Such settlement when is arrived at to sub-serve the larger cause, that per se, may not bind the petitioners who are before this Court seeking invocation of writ jurisdiction. 11.2 Yet another decision sought to be relied upon is in case of Barauni Refinery Pragatisheel Shramik Parishad v. Indian Oil Corporation Limited & Ors., reported in 1991 (1) SCC 4. According to the Apex Court, “Settlements” are divided into two categories viz., [i] those arrived at outside the conciliation proceedings [Section 18 (3)(1)]; and [ii] those arrived at in the course of conciliation proceedings. A settlement which belongs to the first category has limited application in that it merely binds the parties to the agreement but the settlement belonging to the second category has extended application since it is binding on all parties to the industrial dispute, to all others who were summoned to appear in the conciliation proceedings and to all persons Page 30 of 83 C/SCA/11441/2012 CAV JUDGMENT employed in the establishment or part of the establishment, as the case may be, to which the dispute related on the date of the dispute and to all others who joined the establishment thereafter. Therefore, a settlement arrived at in the course of conciliation proceedings with a recognized majority union will be binding on all workmen of the establishment, even those who belong to the minority union which had objected to th e same. To that extent it departs from the ordinary law of contract. The object obviously is to uphold the sanctity of settlement reached with the active assistance of the Conciliation Officer and to discourage an individual employee or a minority union from scuttling the settlement. There is an underlying assumption that a settlement reached with the help of the Conciliation Officer must be fair and reasonable and can, therefore, safely be made binding not only on the workmen belonging to the union signing the settlement but also on others. That is why a settlement arrived at in the course of conciliation proceedings is put on part with an award made by an adjudicatory authority.” Page 31 of 83 C/SCA/11441/2012 CAV JUDGMENT 12. Appropriate would be at this stage to consider the pleading of the petitioners that in a case of benevolent scheme, liberal approach is required to be adopted and for which one of the authorities which the learned senior counsel Mr. Oza has sought to rely upon is in case of Harman Singh & Ors. vs. Regional Transport Authority, Calcutta & Ors., reported in AIR 1954 SC 190 where the challenge was before the apex Court on issuance of permits to smaller taxis and fixing lower tariff for them. The question was whether that would infringe the fundamental rights of the existing permit-holders to carry on their occupation and their right to equal protection of the laws. The Apex Court found such action of the authority to be based on rational classification. 12.1 The Court, while so holding, observed thus, “.. a law applying to a class is constitutional, if there is sufficient basis or reason for it. In other words, a statutory discrimination cannot be set aside as the denial of equal protection of the laws if any state of facts may reasonably be conceived to justify it. It is clear that if is in the interests and for the benefit of a section of the public that Page 32 of 83 C/SCA/11441/2012 CAV JUDGMENT small taxis have been introduced and cheaper rates have been fixed having regard to the size, horse power and expenses of running such cars. We are unable to see any unreasonableness in this classification or any discrimination which infringes the provisions of Article 14 of the Constitution..” 12.2 Reliance is sought to be placed on the decision in case of S. Appukuttan vs. Thundiyil Janaki Amma & Anr., reported in (1988) 2 SCC 372, while interpreting the tenancy and land laws – particularly the Kerala Land Reforms Act, 1963, the Apex Court has held that the beneficial statutes, benevolent and liberal construction needs to be applied. There can be hardly any disagreement to this basic principle of interpretation of statute. However,what the petitioners has requested for is to interpret the policy and not the statute. Insistence on the part of the petitioners is that if the Statute could be liberally construed, the policy guidelines can as well surely be construed with much liberal approach. 12.3 In case of Shyam Sunder & Ors. v. Ram Kumar & Anr., reported in (2001) 8 SCC 24, again the question was Page 33 of 83 C/SCA/11441/2012 CAV JUDGMENT of interpreting the statute particularly the beneficial law and the Court held that there is no such rule of construction that beneficial legislation is always retrospective in operation. This authority further pronounces the well laid down principle that the rules of interpretation are meant to assist the Courts in advancing the ends of justice. 12.4 This authority is essentially on the aspect as to whether the beneficial legislation is retrospective in operation, even when legislation expressly or by necessary amendment is not made to be retrospective in operation. In essence this may not have much applicability to the facts of the instant case. 12.5 Reliance is placed upon the decision in case of National Insurance Company Limited & Anr. vs. Kirpal Singh, reported in (2014) 5 SCC 189 where the question of interpretation of subordinate/delegated legislation with the internal aid. While interpreting them, the apex Court was required to interpret the General Insurance Employees' Special Voluntary Retirement Scheme, 2004 [“Scheme of 2004” for short] made by Page 34 of 83 C/SCA/11441/2012 CAV JUDGMENT the Central Government in exercise of its powers under Section 17A of the General Insurance Business [Nationalization] Act, 1972 where the question was in respect of interpreting the word “retirement” in the earlier Pension Scheme where a restrictive meaning was given to the expression. The Court after giving the meaning to the word “means” used in the statutory definition held that generally it would imply that definition is exhaustive. However, the general rule of interpretation is not without an exception. The Apex Court referred to a decision in case of Reserve Bank of India v. Peerless General Finance & Investment Company Limited, reported in (1987) 1 SCC 424 where the Court has held that the best interpretation is the one in which the Court relies upon not only the text but also the context in which the provision has been made. The Apex Court had extracted para 33 from the said decision, which is reproduced hereunder : “33. Interpretation must depend on the text and context. They are the basis of interpretation. One may well say if the test is the texture, context is what gives the colour. Neither can be ignored. Both are important. That interpretation is best which makes the textual interpretation match the contextual. A statute is best interpreted when we know why Page 35 of 83 C/SCA/11441/2012 CAV JUDGMENT it was enacted. With this knowledge, the statute must be read, first as a whole and then section by section, clause by clause, phrase by phrase and word by word. If a statute is looked at, in the context of its enactment, with the glasses of the statute-maker, provided by such context, its scheme, the sections, clauses, phrases and words may take colour and appear different than when the statute is looked at without the glasses provided by the context. With these glasses, we must look at the Act as a whole and discover what each section, each clause, each phrase and each word is meant and designed to say as to fit into the scheme of the entire Act. No part of a statute and no word of a statute can be construed in isolation. Statutes have to be construed so that every word has a place and everything is in its place.” 25.6 It is the say of the petitioners that the settlement arrived at by and between the union of workmen and the Corporation was reached with the help of the Conciliation Officer, and therefore, it would have no binding effect on the minority nor could there be any underlying assumption of its fairness and reasonableness. It is true that this is not in course of conciliation proceedings that a compromise has been arrived at between the Union representing the workmen and the Corporation on the otherside and yet, this Court is not at present determining the legality and propriety of such settlement as none of the stakeholders has any grievance. Page 36 of 83 C/SCA/11441/2012 CAV JUDGMENT 13. Taking cue from the decisions above, what has been emphasized is that if liberal approach is adopted in interpreting the policy of the Corporation by combining both 900 days and 1800 days, the same would amount to reasonable classification for those who are working for all these years as Full-time daily wagers for four months and as Part-time daily wagers for remaining period of eight months. Further elaboration of the factual aspects shall be made later on in this judgment. 14. Before further delving into that issue, one of the contentions raised by learned counsel for the petitioners is also necessary to take into consideration at this stage which is with respect to non production of the documents, as directed by this Court vide its order [which has not been brought on the record], and therefore, adverse inference is required to be drawn. Decisions sought to be relied upon for substantiating such averment are as follow : [a] Union of India v. Ibrahim Uddin & Anr., [2012] 8 SCC 148; and [b] Sriram Industrial Enterprises Limited v. Mahak Singh & Ors., 2007 (4) SCC 94. 14.1 In case of Union of India v. Ibrahim Uddin & Anr. Page 37 of 83 C/SCA/11441/2012 CAV JUDGMENT [Supra], a question was raised with regard to additional evidence to be produced under Order 41 Rule 27 CPC. According to the Apex Court, it is the discretion of the appellate Court to allow the same in exceptional circumstances and such discretion be exercised judicially with circumspection only where prerequisite condition provided under Rule (2) exists. It was a suit for declaration of the title of the land against the Union. The burden of proof was on the plaintiff. The High Court shifted the burden on the Union. The Apex Court dealt with the issue of withdrawing all material evidence by a party and under what circumstances adverse inference can be drawn. The relevant factors, according to the apex Court for consideration of the Court are pleadings of the party. Relevance of the documents/evidence withholding – whether application for production of documents is made by the party in terms of Order 11 CPC and whether the documents are not produced despite the Court's order. All pros and cons are required to be examined by the Court for deciding whether adverse inference could be drawn or not. Page 38 of 83 C/SCA/11441/2012 CAV JUDGMENT 14.2 This would not have much bearing on the subject, except the ground of non production of some of the documents during the course of hearing. Since these documents were already brought on the record, and therefore, this ground of the petitioners requires no sustainance. 14.3 In case of Shriram Industrial Enterprises Limited v. Mahak Singh & Ors., reported in (2007) 4 SCC 94, the workmen had challenged retrenchment as violative of statutory provisions for length of their service, they had made a request for production of documents. Employer produced only 12 months' record immediately preceding the date of retrenchment and not the records of earlier years. In such circumstances, the Apex Court held that the employer went wrong in describing the record of earlier years as irrelevant. The workmen having discharged their initial onus by producing the documents in their possession, the High Court rightly drew an adverse inference against the employer. 15. Assuming that the entire record of their service is with the respondent Corporation, there is no dispute with Page 39 of 83 C/SCA/11441/2012 CAV JUDGMENT regard to the fact that the petitioners are working for a long time as part-time daily wagers for four hours for eight months and as full-time daily wagers for rest of the four months of the year. The requirement for the purpose of the employee to be considered as reiteratively discussed hereinabove is of completing five years' and 900 days. Instead of fulfillment of the requirement of 180 days per year individually. Some of these petitioners might be also working from earlier than the year 2006; as averred. The question is not of their length of discharging their duties. It is this criteria of five years and 900 days which has been adopted by the Corporation as a policy where they are not fitting in. The total number of persons working with Anti Malaria Department is 330 in number. The policy guidelines framed by the Corporation and adopted in case of majority of the employees is meant for around 6000 part time daily wagers. What the petitioners are desirous is to interpret the policy liberally and allow their absorption, keeping in mind the impossibility of ever fulfilling such criteria/requirement. Therefore, this non production of the details may not be stretched any Page 40 of 83 C/SCA/11441/2012 CAV JUDGMENT further. 15.1 As the claim of petitioners is essentially and predominantly for regularization, before adverting to the facts, law on the subject deserves consideration. There are various judgments of the Apex Court which lay down in no uncertain terms as to under which conditions those working as part-time workers may request regularization of their services. The Supreme Court in case of Punjab Water Supply & Sewerage Board v. Ranjodh Singh & Ors., reported in (2007) 2 SCC 491 was considering the case of some of the employees who were seeking regularization. The Apex Court held that the statutory bodies are bound to apply recruitment rules laid down under the statutory rules. As these statutory bodies being 'State' within the meaning of Article 12 of the Constitution of India, they are bound to implement the constitutional scheme of equality. Those employees who are irregular can be regularized but not the illegal ones. The recruitment of those persons who were appointed without following the recruitment rules and without following the selection process cannot insist Page 41 of 83 C/SCA/11441/2012 CAV JUDGMENT upon regularization. Apt would be, to reproduce some of the observations made by the Bench in this regard, which read thus : “17. A combined reading of the aforementioned paragraphs would certainly indicate that what the Constitution Bench had in mind in directing regularization was in relation to such appointments, which were irregular in nature and not illegal ones. 18. Distinction between irregularity and illegality is explicit. It has been so pointed out in National Fertilizers Ltd. & Ors. vs. Somvir Singh [(2006) 5 SCC 493] in the following terms : \"23. The contention of the learned counsel appearing on behalf of the respondents that the appointments were irregular and not illegal, cannot be accepted for more than one reason. They were appointed only on the basis of their applications. The Recruitment Rules were not followed. Even the Selection Committee had not been properly constituted. In view of the ban on employment, no recruitment was permissible in law. The reservation policy adopted by the appellant had not been maintained. Even cases of minorities had not been given due consideration. 24. The Constitution Bench thought of directing regularization of the services only of those employees whose appointments were irregular as explained in State of Mysore v. S.V. Narayanappa, R.N. Nanjundappa v. T. Thimmiah and B.N. Nagarajan v. State of Karnataka wherein this Court observed: [ Umadevi (3) case 1 , SCC p.24, para 16] \"16 . In B.N. Nagarajan v. State of Karnataka this Court clearly held that the words ’regular’ or 'regularisation’ do not connote permanence and cannot be construed so as to convey an idea of the nature of tenure of appointments. They are terms calculated to condone any Page 42 of 83 C/SCA/11441/2012 CAV JUDGMENT procedural irregularities and are meant to cure only such defects as are attributable to methodology followed in making the appointments.\" 25. Judged by the standards laid down by this Court in the aforementioned decisions, the appointments of the respondents are illegal. They do not, thus, have any legal right to continue in service.\" {See also State of Madhya Pradesh & Ors. vs. Yogesh Chandra Dubey & Ors. [(2006) 8 SCC 67)] and State of M.P. & Ors. vs. Lalit Kumar Verma [2006 (12) SCALE 642].} 19. In the instant case, the High Court did not issue a writ of mandamus on arriving at a finding that the respondents had a legal right in relation to their claim for regularisation, which it was obligated to do. It proceeded to issue the directions only on the basis of the purported policy decision adopted by the State. It failed to notice that a policy decision cannot be adopted by means of a circular letter and, as noticed hereinbefore, even a policy decision adopted in terms of Article 162 of the Constitution of India in that behalf would be void. Any departmental letter or executive instruction cannot prevail over statutory rule and constitutional provisions. Any appointment, thus, made without following the procedure would be ultra vires. 20. This Court, recently in Indian Drugs & Pharmaceuticals Ltd. vs. Workman, Indian Drugs & Pharmaceuticals Ltd. [2006 (12) SCALE 1], opined that rules of recruitment cannot be relaxed and the Courts/Tribunals cannot direct regularisation of temporary appointees de hors the rules, nor can it direct continuation Page 43 of 83 C/SCA/11441/2012 CAV JUDGMENT of service of a temporary employee (whether called a casual, ad hoc or daily rate employee) or payment of regular salaries to them. {See also Municipal Corporation, Jabalpur vs. Om Prakash Dubey [Civil Appeal No.5607/2006 @ S.L.P. (C) No. 5065 of 2006, disposed of on 5th December, 2006].} 21. Our attention was drawn to an order of a Division Bench of this Court dated 7th September, 2006 in State of Punjab & Ors. vs. Lakhwinder Singh & Ors. [Civil Appeal No.7995 of 2002], wherein the matters had been remitted for consideration of the matters afresh in the light of the decisions of this Court referred to therein. Similar order appears to have been passed in Chief Commissioner of Income Tax, Bhopal & Ors. vs. M/s. Leena Jain & Ors. [2006 (12) SCALE 411]. 22. We are not persuaded to do so as the decisions of this Court stare on our face. We cannot ignore the same. It was faintly suggested that as the respondents are qualified to hold the posts and they had been continuously working for a long time, this Court may not interfere with the impugned judgment. On the face of a catena of decisions of this Court, we cannot accept the said submission. 23. An endeavor was made also to submit that the respondents were employed on daily rated basis and their services were transferred to the Corporation. No such case was made out and in any event, as and when the respondents themselves agreed to be appointed on a contractual basis by the appellant-Board, at this juncture they cannot be heard to say that the purported transfer of Page 44 of 83 C/SCA/11441/2012 CAV JUDGMENT their services by the State of Punjab to the appellant- Board was illegal. Even no such case has been made out in the special leave petition.” 15.2 In case of Official Liquidator v. Dayanand & Ors., reported in (2008) 10 SCC 1, the Apex Court has held that in public employment, the decision of the employer to create or abolish post or Cadres or to prescribe source or mode of recruitment is not immune from judicial review. However, the same can be exercised only if it is shown that the action of the employer is contrary to any constitutional or statutory provisions or is patently arbitrary or vitiated by mala fides act. It is also held by the Court that those who are engaged as daily wagers or temporary or on contract basis have no fundamental right to claim absorption in service and regular appointment can be made only in consistence with the requirement of Articles 14 & 16 of the Constitution Right to be treated equally with regularly employed employees also cannot be extended to such employees who form a class by itself. 15.3 Apt would be, to reproduce some of the Page 45 of 83 C/SCA/11441/2012 CAV JUDGMENT observations, relevant to the case at hand, which reads thus - “71. In Secretary, State of Karnataka vs. Uma Devi (Supra), the Constitution Bench again considered the question whether the State can frame scheme for regularization of the services of ad- hoc/temporary/daily wager appointed in violation of the doctrine of equality or the one appointed with a clear stipulation that such appointment will not confer any right on the appointee to seek regularization or absorption in the regular cadre and whether the Court can issue mandamus for regularization or absorption of such appointee and answered the same in negative. The Court adverted to the theme of constitutionalism in a system established in rule of law, expanded meaning given to the doctrine of equality in general and equality in the matter of employment in particular, multi-facet problems including the one relating to unwarranted fiscal burden on the public exchequer created on account of the directions given by the High Courts and this Court for regularization of the services of persons appointed on purely temporary or ad hoc basis or engaged on daily wages or as casual labourers, referred to about three dozen judgments including R.N. Nanjundappa vs. T. Thimmiah [1972 (1) SCC 409], Daily Rate Casual Labour vs. Union of India [1988 (1) SCC 122], Bhagwati Prasad vs. Delhi State Mineral Development Corporation [1990 (1) SCC 361], Dharwad District P.W.D. Literate Daily Wage Employees Association and Page 46 of 83 C/SCA/11441/2012 CAV JUDGMENT others vs. State of Karnataka and others [1990 (2) SCC 396], State of Haryana vs. Piara Singh [1992 (4) SCC 118] and State of Punjab vs. Surinder Kumar [1992 (1) SCC 489] and held : “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 recognized 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 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 Page 47 of 83 C/SCA/11441/2012 CAV JUDGMENT 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 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.” “75. By virtue of Article 141 of the Constitution, the judgment of the Constitution Bench in Secretary, State of Page 48 of 83 C/SCA/11441/2012 CAV JUDGMENT Karnataka vs. Uma Devi (supra) is binding on all the courts including this Court till the same is overruled by a larger Bench. The ratio of the Constitution Bench judgment has been followed by different two-Judges Benches for declining to entertain the claim of regularization of service made by ad hoc/temporary/ daily wage/casual employees or for reversing the orders of the High Court granting relief to such employees - Indian Drugs and Pharamaceuticals Ltd. vs. Workmen [2007 (1) SCC 408], Gangadhar Pillai vs. Siemens Ltd. [2007 (1) SCC 533], Kendriya Vidyalaya Sangathan vs. L.V. Subramanyeswara [2007 (5) SCC 326], Hindustan Aeronautics Ltd. vs. Dan Bahadur Singh [2007 (6) SCC 207]. However, in U.P. SEB vs. Pooran Chand Pandey [2007 (11) SCC 92] on which reliance has been placed by Shri Gupta, a two-Judges Bench has attempted to dilute the Constitution Bench judgment by suggesting that the said decision cannot be applied to a case where regularization has been sought for in pursuance of Article 14 of the Constitution and that the same is in conflict with the judgment of the seven-Judges Bench in Maneka Gandhi vs. Union of India [1978 (1) SCC 248].” “90. We are distressed to note that despite several pronouncements on the subject, there is substantial increase in the number of cases involving violation of the basics of judicial discipline. The learned Single Judges and Benches of the High Courts refuse to follow and accept the verdict and law laid down by coordinate and even larger Benches by citing minor difference in the facts as the ground for doing so. Therefore, it has become necessary to reiterate that disrespect to constitutional ethos and breach of Page 49 of 83 C/SCA/11441/2012 CAV JUDGMENT discipline have grave impact on the credibility of judicial institution and encourages chance litigation. It must be remembered that predictability and certainty is an important hallmark of judicial jurisprudence developed in this country in last six decades and increase in the frequency of conflicting judgments of the superior judiciary will do incalculable harm to the system inasmuch as the courts at the grass root will not be able to decide as to which of the judgment lay down the correct law and which one should be followed.” “95. The ratio of Randhir Singh Vs. Union of India (supra) was reiterated and applied in several cases - Dhirendra Chamoli vs. State of U.P. (supra), Surinder Singh and Another vs. Engineer-in-Chief, CPWD and Others (supra), Daily Rated Casual Labour vs. Union of India (supra), Dharwad District P.W.D. Literate Daily Wage Employees’ Association vs. State of Karnataka (supra) and Jaipal vs. State of Haryana [1988 (3) SCC 354] and it was held that even a daily wage employee who is performing duties similar to regular employees is entitled to the same pay. However, in Federation of All India Customs and Central Excise Stenographers (Recognized) Union vs. Union of India [1988 (3) SCC 91], Mewa Ram Kanojia vs. A.I.I.M.S. [1989 (2) SCC 235], V. Markandeya vs. State of A.P. [1989 (3) SCC 191], Harbans Lal and others vs. State of Himachal Pradesh and others [1989 (4) SCC 459], State of U.P. and others vs. J.P. Chaurasia and others [1989 (1) SCC 121], Griha Kalyan Workers’ Union vs. Union of India [1991 (1) SCC 619], Ghaziabad Development Authority vs. Vikram Chaudhary [1995 (5) SCC 210], State of Haryana and Page 50 of 83 C/SCA/11441/2012 CAV JUDGMENT others vs. Jasmer Singh and others [1996 (11) SCC 77], State of Haryana vs. Surinder Kumar [1997 (3) SCC 633], Union of India vs. K.V. Baby [1998 (9) SCC 252], State of Orissa vs. Balram Sahu [2003 (1) SCC 250], Utkal University vs. Jyotirmayee Nayak [2003 (4) SCC 760], State of Haryana and another vs. Tilak Raj and others [2003 (6) SCC 123], Union of India vs. Tarit Ranjan Das [2003 (11) SCC 658], Apangshu Mohan Lodh vs. State of Tripura [2004 (1) SCC 119], State of Haryana vs. Charanjit Singh [2006 (9) SCC 321], Hindustan Aeronautics Ltd. vs. Dan Bahadur Singh (supra), Kendriya Vidyalaya Sangathan vs. L.V. Subramanyeswara (supra) and Canteen Mazdoor Sabha vs. Metallurgical & Engineering Consultants (India) Ltd. [2007 (7) SCC 710], the Court consciously and repeatedly deviated from the ruling of Randhir Singh Vs. Union of India (supra) and held that similarity in the designation or quantum of work are not determinative of equality in the matter of pay scales and that before entertaining and accepting the claim based on the principle of equal pay for equal work, the Court must consider the factors like the source and mode of recruitment/appointment, the qualifications, the nature of work, the value judgment, responsibilities, reliability, experience, confidentiality, functional need etc.” 15.4 In case of State of Rajasthan & Ors. vs. Daya Lal & Ors., reported in (2011) 2 SCC 429, the apex Court has reiterated the well-settled principles relating to regularization and parity in pay. Profitable it would be to reproduce the relevant observations made by the Bench, Page 51 of 83 C/SCA/11441/2012 CAV JUDGMENT which reads thus : “12. We may at the outset refer to the following well settled principles relating to regularization and parity in pay, relevant in the context of these appeals : (i) High Courts, in exercising power under Article 226 of the Constitution will not issue directions for regularization, absorption or permanent continuance, unless the employees claiming regularization had been appointed in pursuance of a regular recruitment in accordance with relevant rules in an open competitive process, against sanctioned vacant posts. The equality clause contained in Articles 14 and 16 should be scrupulously followed and courts should not issue a direction for regularization of services of an employee which would be violative of constitutional scheme. While something that is irregular for want of compliance with one of the elements in the process of selection which does not go to the root of the process, can be regularized, back door entries, appointments contrary to the constitutional scheme and/or appointment of ineligible candidates cannot be regularized. (ii) Mere continuation of service by an temporary or ad hoc or daily-wage employee, under cover of some interim orders of the court, would not confer upon him any right to be absorbed into service, as such service would be `litigious employment'. Even temporary, ad hoc or daily-wage service for a long number of years, let alone service for one or two years, will not entitle such employee to claim regularization, if he is not working against a sanctioned post. Sympathy and sentiment cannot be grounds for passing any order of regularization in the absence of a legal right. (iii) Even where a scheme is formulated for regularization with a cut off date (that is a scheme providing that persons who had put in a specified number of years of service and continuing in employment as on the cut off date), it is not possible to others who were appointed subsequent to the cut off date, to claim or contend that the scheme should Page 52 of 83 C/SCA/11441/2012 CAV JUDGMENT be applied to them by extending the cut off date or seek a direction for framing of fresh schemes providing for successive cut off dates. (iv) Part-time employees are not entitled to seek regularization as they are not working against any sanctioned posts. There cannot be a direction for absorption, regularization or permanent continuance of part time temporary employees. (v) Part time temporary employees in government run institutions cannot claim parity in salary with regular employees of the government on the principle of equal pay for equal work. Nor can employees in private employment, even if serving full time, seek parity in salary with government employees. The right to claim a particular salary against the State must arise under a contract or under a statute.” 15.5 In case of State of Orissa & Anr. vs. Mamata Mohanty, reported in (2011) 3 SCC 436, the Apex Court in paras 35 & 36 held and observed as under :- “35. At one time this Court had been of the view that calling the names from Employment Exchange would curb to certain extent the menace of nepotism and corruption in public employment. But, later on, came to the conclusion that some appropriate method consistent with the requirements of Article 16 should be followed. In other words there must be a notice published in the appropriate manner calling for applications and all those who apply in response thereto should be considered fairly. Even if the names of candidates are requisitioned from Employment Exchange, in addition thereto it is mandatory on the part of the employer to invite applications from all eligible candidates from the open market by advertising the Page 53 of 83 C/SCA/11441/2012 CAV JUDGMENT vacancies in newspapers having wide circulation or by announcement in Radio and Television as merely calling the names from the Employment Exchange does not meet the requirement of the said Article of the Constitution. (Vide: Delhi Development Horticulture Employees’ Union v. Delhi Administration, Delhi & Ors., AIR 1992 SC 789; State of Haryana & Ors. v. Piara Singh & Ors., AIR 1992 SC 2130; Excise Superintendent Malkapatnam, Krishna District, A.P. v. K.B.N. Visweshwara Rao & Ors., (1996) 6 SCC 216; Arun Tewari & Ors. v. Zila Mansavi Shikshak Sangh & Ors., AIR 1998 SC 331; Binod Kumar Gupta & Ors. v. Ram Ashray Mahoto & Ors., AIR 2005 SC 2103; National Fertilizers Ltd. & Ors. v. Somvir Singh, AIR 2006 SC 2319; Telecom District Manager & Ors. v. Keshab Deb, (2008) 8 SCC 402; State of Bihar v. Upendra Narayan Singh & Ors., (2009) 5 SCC 65; and State of Madhya Pradesh & Anr. v. Mohd. Ibrahim, (2009) 15 SCC 214). 36. Therefore, it is a settled legal proposition that no person can be appointed even on a temporary or ad hoc basis without inviting applications from all eligible candidates. If any appointment is made by merely inviting names from the Employment Exchange or putting a note on the Notice Board etc. that will not meet the requirement of Articles 14 and 16 of the Constitution. Such a course violates the mandates of Articles 14 and 16 of the Constitution of India as it deprives the candidates who are eligible for the post, from being considered. A person employed in violation of these provisions is not entitled to any relief including salary. For a valid and legal appointment mandatory compliance of the said Constitutional requirement is to be fulfilled. The equality clause enshrined in Article 16 requires that every such Page 54 of 83 C/SCA/11441/2012 CAV JUDGMENT appointment be made by an open advertisement as to enable all eligible persons to compete on merit.” 15.6 In case of A. Manjula Bhashini & Ors. v. Managing Director, Andhra Pradesh Women's Cooperative Finance Corporation Limited & Anr., reported in [2009] 8 SCC 431, the petitioners were employed on daily wage basis in different Departments of the Government of Andhra Pradesh and its agencies had sought regularization in service on completion of five years. They had sought a writ of mandamus for regularizing their services. Challenge was also made to the amendment in the Andhra Pradesh [Regulation of Appointments to Public Services & Rationalization of Staff Pattern and Pay Structure] Act, 1994 by Act No. 2 of 1998. The Apex Court considered the question as to whether such amendment ultra vires provisions of the Constitution. The Court concluded thus; “99. The question which remains to be considered is whether the Division Bench was justified in holding that all daily wage employees who completed 5 years service on the date of enforcement of Act No. 27 of 1998, i.e., 19.8.1998 would be entitled to be considered for regularization of their services. 100. A reading of paragraphs 54, 67, 68 and 72 of the Page 55 of 83 C/SCA/11441/2012 CAV JUDGMENT impugned judgment shows that even though the Division Bench did not find the cut off date i.e. 25.11.1993 specified in first proviso to Section 7 for determining the eligibility of daily wage employees for regularization to be arbitrary, irrational or discriminatory, yet it changed the said date from 25.11.1993 to 19.8.1998 solely on the premise that Act No. 27 of 1998 was enforced with effect from that date. In our view, once the Division Bench negatived the challenge to the validity of Act Nos.3 of 1998 and 27 of 1998, there was no warrant for altering the date of eligibility specified in first proviso to Section 7 of the 1994 Act and thereby extend the zone of eligibility of daily wage employees who could be considered for regularisation. 101. As a corollary, we hold that the declaration made by the Division Bench that all persons who completed 5 years service as on the date of coming into force of Act No.27 of 1998 would be entitled to be considered for regularisation of their services is legally unsustainable and is liable to be set aside. In the result, the appeals filed by the employees (C.A. Nos.3702, 3703, 3704, 3705, 3706, 3707, 3709, 3710, 3721, 3733, 3734, 3737, 3742, 3744, 3748, 3749 and 3751 of 2006) are dismissed and those filed by the State Government and agencies/instrumentalities of the State (C.A. Nos.3685, 3712, 3713, 3714, 3715, 3716, 3717, 3718, 3723, 3724, 3726, 3727, 3728, 3729, 3730, 3731, 3732, 3750, 3752, 3753, 3754 and 3755 of 2006) are allowed.” 16. In relation to the request for equal pay and equal benefits as available to the regular employees, in case of State of Haryana & Anr. vs. Tilak Raj & Ors., reported Page 56 of 83 C/SCA/11441/2012 CAV JUDGMENT in (2003) 6 SCC 123, the apex Court has held that in every situation, the principle of equal pay for equal work is not to be applied. It would not be right for the High Court to direct payment of same salary and allowances as is being paid to the regular employees holding similar post. The Court held thus, “11. A scale of pay is attached to a definite post and in case of a daily wager, he holds no posts. The respondent workers cannot be held to hold any posts to claim even any comparison with the regular and permanent staff for any or all purposes including a claim for equal pay and allowances. To claim a relief on the basis of equality, it is for the claimants to substantiate a clear cut basis of equivalence and a resultant hostile discrimination before becoming eligible to claim rights on a par with the other group visa-vis an alleged discrimination. No material was placed before the High Court as to the nature of the duties of either categories and it is not possible to hold that the principle of \"equal pay for equal work \" is an abstract one. 12. \"Equal pay for equal work \" is a concept which requires for its applicability complete and wholesale identity between a group of employees claiming identical pay scales and the other group of employees who have already earned such pay scales. The problem about equal pay cannot always be translated into a mathematical formula.” Page 57 of 83 C/SCA/11441/2012 CAV JUDGMENT 16.1 In case of State of Haryana & Ors. vs. Jasmer Singh & Ors., reported in (1996) 11 SCC 77, the question was of payment of minimum wages to the daily rated workmen where the Court has held that there cannot be applicability of same pay scale to those employees who were not in regular service. In the words of the Bench - “8. It is therefore, clear that the quality of work performed by different sets of persons holding different jobs will have to be evaluated. There may be differences in educational or technical qualifications which may have a bearing on the skills which the holders bring to their job although the designation of the job may be the same. There may also be other considerations which have relevance to efficiency in service which may justify differences in pay-scales on the basis of criteria such as experience and seniority, or a need to prevent stagnation in the cadre, so that good performance can be elicited from persons who have reached the top of the pay-scale. There may be various other similar considerations which may have a bearing on efficient performance in a job. This Court has repeatedly observed that evaluation of such jobs for the purposes of pay-scale must be left to expert bodies and, unless there are any mala fides, its evaluation should be accepted. 9. This Court in the case of Harbans Lal & Ors. v. State of Himachal Pradesh & Ors. (supra) further Page 58 of 83 C/SCA/11441/2012 CAV JUDGMENT held that daily-rated workmen who were before the Court in that case were entitled to be paid minimum wages admissible to such workmen as prescribed and not the mimimum in the pay-scale applicable to similar employees in regular service unless the employer had decided to make such minimum in the pay-scale applicable to the daily-rated workmen. The same position is reiterated in the case of Ghaziabad Development Authority v. Vikram Chaudhary & Ors. (supra). 10. The respondents, therefore in the present appeals who are employed on daily wages cannot be treated as on a par with persons in regular service of the State of Haryana holding similar posts. Daily- rated workers are not required to possess the qualifications prescribed for regular workers, nor do they have to fulfill the requirement relating to age at the time of recruitment. They are not selected in the manner in which regular employees are selected. In other words the requirements for selection are not as rigorous. There are also other provisions relating to regular service such as the liability of a member of the service to be transferred, and his being subject to the disciplinary jurisdiction of the authorities as prescribed, which the daily-rated workmen are not subjected to. They cannot, therefore, be equated with regular workmen for the purposes for their wages. Nor can they claim the minimum of the regular pay-scale of the regularly employed.” 16.2 Heavy reliance is placed by the petitioners on the Page 59 of 83 C/SCA/11441/2012 CAV JUDGMENT decision of this Court rendered in case of State of Gujarat & Ors. v. Gajaji Gopalji Jadeja & Ors. [LPA No. 712/2105 and allied appeals], where reliance was placed on the decision of the Apex Court rendered in case of State of West Bengal & Ors. vs. Pantha Chatterjee & Ors. reported in (2003) 6 SCC 469. In that matter, a distinction was sought to be drawn between part time and the permanent Border Wing Home Guards, which according to the Court, had obliterated as both had worked together shoulder to shoulder under similar situations and circumstances and discharged same duties. The apex Court therefore was of the opinion that the State Government or the Central Government cannot deny those benefits which were available to the permanent staff of BWHGs. Moreover, they were all governed by the provisions of the Bombay Home Guards Act,1947 and the Bombay Home Guards Rules, 1953 and had practically led their entire life serving the said institution. The Court also noticed that they were acting as an auxiliary police force and most of them were nearing the age of retirement. They had put in more than twenty years far away from Page 60 of 83 C/SCA/11441/2012 CAV JUDGMENT their home and more than 300 days in a year. 16.3 Such case cannot be equated in any which way with those of the petitioners. 16.4 In case of M.P State Coop. Bank Ltd., Bhopal v. Nanuram Yadav & Ors., reported in (2007) 8 SCC 264, it is held and observed that appointments made without following the appropriate procedure under the rules/government circulars and without advertisement or inviting applications from the open market would amount to breach of Articles 14 & 16 of the Constitution. It also says that regularization cannot be a mode of appointment. Any appointment made ignoring minimum educational qualification and other requirements cannot be ignored by taking recourse to regularization. In contravention of statutory rules, no regularization is permitted. 16.5 In case of State of Karnataka v. M.L Kesari, reported in (2010) 9 SCC 247, this aspect had been further explained by the apex court. Explaining the principle regarding regularization as enunciated in Umadevi's case, it boils down to these three requirements Page 61 of 83 C/SCA/11441/2012 CAV JUDGMENT [i] the employee concerned should have worked for 10 years or more in a duly sanctioned post without the benefit or protection of the interim order of any Court or tribunal; [ii] the appointment of such employee should not be illegal, even if irregular; and [iii] the person concerned must possess the prescribed qualifications for the said post. Such a person, even if had not undergone the process of open competition, the appointment is considered irregular, and therefore, the appointees should not be illegal but irregular for the same to be regularized. 16.6 In case of Amarendra Kumar Mohapatra & Ors. vs. State of Orissa & Ors., reported in (2014) 4 SCC 583, the question was with respect to constitutional validity of the Orissa Service of Engineers [Validation of Appointment] Act, 2002 by which appointment of 881 ad hoc Assistant Engineers belonging to different Engineering Wings had been validated. The High Court of Orissa had, in a batch of writ petitions, struck down the impugned Legislation on the ground that the same violates the fundamental rights guaranteed to the writ petitioners. The problem was of nearly 2000 unemployed degree holders Page 62 of 83 C/SCA/11441/2012 CAV JUDGMENT in various branches of Engineering. The proposal envisaged two fold action plan for absorbing the unemployed graduate engineers. The first part of the action plan provided for withdrawal of 127 posts of Assistant Engineers that had been referred to the Public Service Commission and advertised by it to be filled up by appointing unemployed degree-holders. The second part of the proposal envisaged creation of 614 posts of Junior Engineers in different departments to accommodate the unemployed degree holders. The Apex Court after detailed discussion has upheld the validity of regularization of Stipendiary Engineers as ad hoc Asstt. Engineers initially appointed pursuant to a G.O on the basis of a selection process and on basis of merit, although dehors the rules. The constitutional validity of Act of 2002 was also upheld since it was found in compliance with all requirements prescribed in Umadevi's case [Supra].The Court noted that the process of selection of appointees on ad hoc Stipendiary Engineers may not have been as per the relevant rules, but there was not complete arbitrariness in the manner of such Page 63 of 83 C/SCA/11441/2012 CAV JUDGMENT appointments and selection was on basis of merit. The appointment of Stipendiary Engineers on ad hoc basis and their subsequent regularization neither came as a side wind nor was inspired by any political or other extraneous consideration. Moreover, such regularization was ordered by way of Legislation. Instead of exercising its executive power, the Court therefore was of the opinion that what can be achieved by exercising the executive power can surely be achieved by Legislation. This Act in essence aimed at regularizing services of those persons who had worked as Assistant Engineers and the true purport of the Legislation was of regularization and not validation. As mentioned hereinabove, the enactment came dehors any complication arising from a judicial pronouncement regarding the invalidity attached to the appointment of Assistant Engineers and only because the State was anxious to appoint or absorb the Stipendiary Engineers. Thus, when instead of exercising the executive powers and making a scheme of regularization, the State Government had enacted the Legislation, the Apex Court referred to the case of Umadevi [Supra] and particularly Page 64 of 83 C/SCA/11441/2012 CAV JUDGMENT para-53 which permitted one time exception for regularizing the appointees, for regularizing the service of those employed irregularly but, not illegally. 17. As to what would constitute an irregular appointment is no longer res integra. Three essentials for regularization as one time measure under the exception are cared out in para-53 of the decision in case of Umadevi's case viz., [i] the employees should have worked for ten years or more; [ii] that they have so worked in a duly sanctioned post without the benefit or protection of the interim order of any court or tribunal; and [iii] they should have possessed the minimum qualification stipulated for the appointment. Subject to these three requirements being satisfied, even if the appointment process did not involve open competitive selection, the appointment would be treated irregular and not illegal and thereby qualify for regularization. 17.1 Apt would be to reproduce the observations made by the Bench in paras 42, 43, 44 & 45 of the decision, which reads thus; “42. The decision in Umadevi’s case (supra), as noticed earlier, permitted regularisation of regular Page 65 of 83 C/SCA/11441/2012 CAV JUDGMENT appointments and not illegal appointments. Question, however, is whether the appointments in the instant case could be described as illegal and if they were not, whether the State could be directed to regularise the services of the degree holder Junior Engineers who have worked as ad hoc Assistant Engineers for such a long period, not only on the analogy of the legislative enactment for regularisation but also on the principle underlying para 53 of the decision in Umadevi’s case (supra). 43. As to what would constitute an irregular appointment is no longer res integra. The decision of this Court in State of Karnataka v. M.L. Kesari and Ors. (2010) 9 SCC 247, has examined that question and explained the principle regarding regularisation as enunciated in Umadevi’s case (supra). The decision in that case summed up the following three essentials for regularisation (1) the employees worked for ten years or more, (2) that they have so worked in a duly sanctioned post without the benefit or protection of the interim order of any court or tribunal and (3) they should have possessed the minimum qualification stipulated for the appointment. Subject to these three requirements being satisfied, even if the appointment process did not involve open competitive selection, the appointment would be treated irregular and not illegal and thereby qualify for regularisation. Para 7 in this regard is apposite and may be extracted at this stage: Page 66 of 83 C/SCA/11441/2012 CAV JUDGMENT “7. It is evident from the above that there is an exception to the general principles against “regularisation” enunciated in Umadevi, if the following conditions are fulfilled : (i) The employee concerned should have worked for 10 years or more in duly sanctioned post without the benefit or protection of the interim order of any court or tribunal. In other words, the State Government or its instrumentality should have employed the employee and continued him in service voluntarily and continuously for more than ten years. (ii) The appointment of such employee should not be illegal, even if irregular. Where the appointments are not made or continued against sanctioned posts or where the persons appointed do not possess the prescribed minimum qualifications, the appointments will be considered to be illegal. But where the person employed possessed the prescribed qualifications and was working against sanctioned posts, but had been selected without undergoing the process of open competitive selection, such appointments are considered to be irregular.” It is nobody’s case that the degree holder Junior Engineers were not qualified for appointment as Assistant Engineers as even they possess degrees from recognized institutions. It is also nobody’s case that they were not appointed against the sanctioned post. There was some debate as to the actual number of vacancies available from time to time but we have no hesitation in holding that the appointments made were at all relevant points of Page 67 of 83 C/SCA/11441/2012 CAV JUDGMENT time against sanctioned posts. The information provided by Mr. Nageshwar Rao, learned Additional Solicitor General, appearing for the State of Orissa, in fact, suggests that the number of vacancies was at all points of time more than the number of appointments made on ad hoc basis. It is also clear that each one of the degree holders has worked for more than 10 years ever since his appointment as ad hoc Assistant Engineer. It is in that view difficult to describe these appointments of the Stipendiary Engineers on ad hoc basis to be illegal so as to fall beyond the purview of the scheme envisaged in Umadevi’s case (supra). 45. The upshot of the above discussion is that not only because in Umadevi’s case (supra) this Court did not disturb the appointments already made or regularisation granted, but also because the decision itself permitted regularisation in case of irregular appointments, the legislative enactment granting such regularisation does not call for interference at this late stage when those appointed or regularized have already started retiring having served their respective departments, in some cases for as long as 22 years.” 17.2 Thus, on the aspect of regularization, exceptions have been carved out in para 53 of the Umadevi's case where it permitted regularization for irregular appointment and not for illegal appointees. Page 68 of 83 C/SCA/11441/2012 CAV JUDGMENT 17.3 Apex Court in case of Renu & Anr. v. District & Sessions Judge, Tis Hazari & Anr., reported in AIR 2014 SC 2175 has considered the issue of public appointment made under Article 16 of the Constitution of India. It was an issue in relation to appointment of Court staff by the Chief Justice of the concerned Court in exercise of powers under Articles 229, 235, 14 & 16 of the Constitution where the Apex Court, after detailed discussion held that neither can a person be appointed without following the proper procedure nor can he be removed without inquiry or following the principles of natural justice. It also further held that every appointment of staff of High Court and subordinate Courts ought to be made in consonance with the constitutional philosophy where strict compliance with statutory rules and Articles 14, 16 should necessarily be made in making the recruitment. Some of the findings and observations made by the Apex Court would be relevant, as it has discussed at length the modalities to be adopted at the time of making appointments to the public posts where issuance of advertisement inviting applications from all eligible Page 69 of 83 C/SCA/11441/2012 CAV JUDGMENT candidates is must. The advertisement must specify the number of posts available for selection and recruitment. The qualification and other eligibility criteria for such post should be explicitly provided and the schedule of recruitment process should be published with certainty and clarity. The advertisement should also specify the rules under which the selection is to be made and in absence of the rules, the procedure under which the selection is likely to be undertaken. This is necessary to prevent arbitrariness and to avoid change of criteria of selection after the selection process is commenced, thereby unjustly benefiting someone at the cost of others. Relevant findings and observations which read, thus : “12. The principles to be adopted in the matter of public appointments have been formulated by this Court in M.P. State Coop. Bank Ltd., Bhopal v. Nanuram Yadav & Ors., (2007) 8 SCC 264 as under: “(1) The appointments made without following the appropriate procedure under the rules/government circulars and without advertisement or inviting applications from the open market would amount to breach of Articles 14 and 16 of the Constitution of India. (2) Regularization cannot be a mode of appointment. (3) An appointment made in violation of the mandatory provisions of the statute and in particular, ignoring the minimum educational Page 70 of 83 C/SCA/11441/2012 CAV JUDGMENT qualification and other essential qualification would be wholly illegal. Such illegality cannot be cured by taking recourse to regularization. (4) Those who come by back-door should go through that door. (5) No regularization is permissible in exercise of the statutory power conferred under Article 162 of the Constitution of India if the appointments have been made in contravention of the statutory rules. (6) The court should not exercise its jurisdiction on misplaced sympathy. (7) If the mischief played is so widespread and all pervasive, affecting the result, so as to make it difficult to pick out the persons who have been unlawfully benefited or wrongfully deprived of their selection, it will neither be possible nor necessary to issue individual show-cause notice to each selectee. The only way out would be to cancel the whole selection. (8) When the entire selection is stinking, conceived in fraud and delivered in deceit, individual innocence has no place and the entire selection has to be set aside.” 13. A similar view has been reiterated by the Constitution Bench of this Court in Secretary, State of Karnataka & Ors. v. Umadevi & Ors., AIR 2006 SC 1806, observing that any appointment made in violation of the Statutory Rules as also in violation of Articles 14 and 16 of the Constitution would be a nullity. “Adherence to Articles 14 and 16 of the Constitution is a must in the process of public employment ”. The Court further rejected the prayer that ad hoc appointees working for long be considered for regularization as such a course only encourages the State to flout its own rules and would confer undue benefits on some at the cost of many waiting to compete. Page 71 of 83 C/SCA/11441/2012 CAV JUDGMENT 14. In State of Orissa & Anr. v. Mamata Mohanty, (2011) 3 SCC 436, this Court dealt with the constitutional principle of providing equality of opportunity to all which mandatorily requires that vacancy must be notified in advance meaning thereby that information of the recruitment must be disseminated in a reasonable manner in public domain ensuring maximum participation of all eligible candidates; thereby the right of equal opportunity is effectuated. The Court held as under:- “Therefore, it is a settled legal proposition that no person can be appointed even on a temporary or ad hoc basis without inviting applications from all eligible candidates. If any appointment is made by merely inviting names from the employment exchange or putting a note on the noticeboard, etc. that will not meet the requirement of Articles 14 and 16 of the Constitution. Such a course violates the mandates of Articles 14 and 16 of the Constitution of India as it deprives the candidates who are eligible for the post, from being considered. A person employed in violation of these provisions is not entitled to any relief including salary. For a valid and legal appointment mandatory compliance with the said constitutional requirement is to be fulfilled. The equality clause enshrined in Article 16 requires that every such appointment be made by an open advertisement as to enable all eligible persons to compete on merit.” 15. Where any such appointments are made, they can be challenged in the court of law. The quo warranto proceeding affords a judicial remedy by which any person, who holds an independent substantive public office or franchise or liberty, is called upon to show by what right he holds the said office, franchise or liberty, so that his title to it may be duly determined, and in case Page 72 of 83 C/SCA/11441/2012 CAV JUDGMENT the finding is that the holder of the office has no title, he would be ousted from that office by judicial order. In other words, the procedure of quo warranto gives the Judiciary a weapon to control the Executive from making appointment to public office against law and to protect a citizen from being deprived of public office to which he has a right. These proceedings also tend to protect the public from usurpers of public office who might be allowed to continue either with the connivance of the Executive or by reason of its apathy. It will, thus, be seen that before a person can effectively claim a writ of quo warranto, he has to satisfy the Court that the office in question is a public office and is held by a usurper without legal authority, and that inevitably would lead to an enquiry as to whether the appointment of the alleged usurper has been made in accordance with law or not. For issuance of writ of quo warranto, the Court has to satisfy that the appointment is contrary to the statutory rules and the person holding the post has no right to hold it. (Vide: The University of Mysore & Anr. v. C.D. Govinda Rao & Anr., AIR 1965 SC 491; Shri Kumar Padma Prasad v. Union of India & Ors., AIR 1992 SC 1213; B.R. Kapur v. State of Tamil Nadu & Anr., AIR 2001 SC 3435; The Mor Modern Co-operative Transport Society Ltd. v. Financial Commissioner and Secretary to Govt., Haryana & Anr., AIR 2002 SC 2513; Arun Singh v. State of Bihar & Ors., AIR 2006 SC 1413; Hari Bansh Lal v. Sahodar Prasad Mahto & Ors., AIR 2010 SC 3515; and Central Electricity Supply Utility of Odisha v. Dhobei Sahoo & Ors., (2014) 1 SCC 161). Page 73 of 83 C/SCA/11441/2012 CAV JUDGMENT 16. Another important requirement of public appointment is that of transparency. Therefore, the advertisement must specify the number of posts available for selection and recruitment. The qualifications and other eligibility criteria for such posts should be explicitly provided and the schedule of recruitment process should be published with certainty and clarity. The advertisement should also specify the rules under which the selection is to be made and in absence of the rules, the procedure under which the selection is likely to be undertaken. This is necessary to prevent arbitrariness and to avoid change of criteria of selection after the selection process is commenced, thereby unjustly benefiting someone at the cost of others. 17. Thus, the aforesaid decisions are an authority on prescribing the limitations while making appointment against public posts in terms of Articles 14 and 16 of the Constitution. What has been deprecated by this Court time and again is “backdoor appointments or appointment de hors the rules”. In State of U.P. & Ors. v. U.P. State Law Officers Association & Ors., AIR 1994 SC 1654, this Court while dealing with the back-door entries in public appointment observed as under: “The method of appointment is indeed not calculated to ensure that the meritorious alone will always be appointed or that the appointments made will not be on the considerations other than merit. In the absence of guidelines, the appointment may be made purely on personal or political consideration and be arbitrary. This being so those who come to be appointed by such arbitrary procedure can hardly complain if the termination of their appointment is equally arbitrary. Those who come by the back-door Page 74 of 83 C/SCA/11441/2012 CAV JUDGMENT have to go by the same door….From the inception some engagements and contracts may be the product of the operation of the spoils system. There need be no legal anxiety to save them.” (Emphasis added) 18. Discussion made hereinabove thus make it clear that daily waged employees when are appointed irregularly and not illegally, there may remain a scope of consideration as a one-time measure, otherwise those employees have no independent right to claim absorption nor on equality in pay and other benefits with regularly appointed employees. 19. Going by the judgments in case of Umadevi and M.L Kesari [Supra], and those which followed these judgments, the petitioners have not continued against the sanctioned posts in the Anti malaria department as Class IV employees. It is not made clear as to whether they possess the minimum prescribed qualification necessary for appointment to the post of Class IV employee. Assuming that the petitioners do possess such qualification, their not having completed the period of 10 years in service on the sanctioned post, such appointment would be termed as illegal. The regularization is permitted for those who are irregular and not illegal. Page 75 of 83 C/SCA/11441/2012 CAV JUDGMENT 20. It is to be noted that in para 53 of the Umadevi's case, the Apex Court had contemplated a scheme for regularizing the employees as a one time measure in the year 2008. In the instant case, the Corporation had referred to the Standing Committee resolution dated 13th August 2004 where all the full-time daily wagers who completed 5 years' of continuous service and worked for 900 days during the said period of five years had been directed to be made permanent workmen of the Corporation by way of an exceptional case. If this was a one time measure, pursuant to the directions of the Supreme Court, there may not arise a question of thereafter continuing such policy as this cannot be a continuous feature. It is with a view to stop any illegality in the public employment and to bring transparency in such employment that the apex Court had time and again emphasized on not permitting any back-door entry. As the compromise arrived at with the Union representing 6000 part-time employees is not under challenge before this Court, all particulars with regard to the number of the years they worked and whether such continuation in Page 76 of 83 C/SCA/11441/2012 CAV JUDGMENT service was against the sanctioned post or not are some of the issues which cannot gone into. The decision of Apex Court rendered in case of Secretary to Government, School Education Deptt., Chennai v. R. Govindaswamy & Ors. [Supra] wherein part-time Sweepers working for more than 10 years had sought entitlement for regularization, the Court has held that if the person is not working against the sanctioned post he would not be entitled to regularization even if they had put in long service. 21. As could be noticed from factual matrix discussed hereinabove, the process of selection of the persons who are working as part-time daily wagers appears to be completely arbitrary in the manner that such appointments/selection is not based on either their undergoing the selection process adhering to any statute or rules or on the basis of merits. Such appointments were made on ad hoc basis and the same had continued for all these years. The process of regularization of some such workers by way of 2(p) settlement has begun whereby they are made full-time daily wagers and that would pave a way for their absorption once 900 days in five years is Page 77 of 83 C/SCA/11441/2012 CAV JUDGMENT completed. The same was aimed at regularizing services of those who worked as Anti-Malaria daily-rated workers and such action is meant for those who worked part-time and cannot fulfill the criteria to be absorbed even after particular number of years. The benefit of the settlement made by the Corporation is sought for regularizing service of those employed without following any due procedure and are not even full-time daily wagers, not to talk of sanctioned posts. As to what would constitute as irregular and illegal appointment is discussed sufficiently hereinabove. However, to insist upon absorption of the petitioners by declaring them as regular employees and to insist on giving them benefits available to regular employees of Corporation simply cannot be accepted. Petitioners have no right to be absorbed unless they are appointed on sanctioned posts, even if irregularly. Settlement with those full-time daily wagers and others was to buy peace and to subserve larger cause and moreover, this Court is not examining any challenge to such settlement. 21.1 It is of course wrong on the part of the public Page 78 of 83 C/SCA/11441/2012 CAV JUDGMENT authorities not to fill-up the posts and permit back door entry on a continuous basis. Regularization cannot be a mode of appointment after filling up the vacancies by daily wagers or part-time employees in contravention of the rules. In case of those employees whose employment could be termed as irregular and not illegal, the combined reading of decisions in case of Umadevi {Supra} & State of Karnataka v. M.K Kesari {Supra} permit regularization as a one time measure. That again cannot be regular and continuous feature, otherwise, it would be a tool in the hands of those holding the administrative powers and that would perpetrate arbitrariness and nepotism which these decisions frown upon and seek to have a check upon by emphasizing the requirements of constitutional mandates. 22. As noted above, already on the part of the Corporation, after the decision in case of Umadevi [Supra], a Circular was issued by the Commissioner in pursuance of Resolution dated 13th August 2004 whereby those Full-time Daily Wagers who completed 5 years' of continuous service and had worked for 900 days were made permanent. Such resolution refers to the prevalent Page 79 of 83 C/SCA/11441/2012 CAV JUDGMENT policy of regularization and specifies that the same was aimed at regularizing Full time Daily Wagers and not the Part-time Daily wagers. The insistence of implementation of 5th July 2010 order by the petitioners, wherein instead of 900 full-time days, the employees in whose case 1800 part-time days are completed, can in no manner be endorsed. They otherwise were to be given an opportunity for completing the deficit number of days and to make an application which were upon due considered to be sent to the competent authority for approval and to decide as to whether the person can be made permanent or not. This was given a go-bye completely later on; as noted hereinabove on 7th May 2014. So therefore, to insist upon such order to be implemented by way of a mandate is completely and totally unwarranted. In the opinion of this Court to permit the Corporation to continue this by way of a policy would also amount to endorsing an act of arbitrariness which is sought to be curbed by the decisions of the Apex Court discussed hereinabove. Moreover, this would also further embolden the authorities to continue back door entry without resorting Page 80 of 83 C/SCA/11441/2012 CAV JUDGMENT to open competitive selection. There does not appear to be any policy but, what is arrived at is the settlement under Section 2 [p] of the Industrial Disputes Act. There is no question of directing the authorities to relax it nor would there be any question of making it mandatory for the authority to relax even the period by calculating 1800 part-time days instead of 900 full-time days within five years' period on the ground of virtual impossibility of completion of 1800 part-time days in a five years' period. What has been upheld in case of Amarendra Kumar Mohapatra & Ors. vs. State of Orissa & Ors., [Supra] was the validity of a Legislation made for regularization, reiterating also the ratio rendered in case of Umadevi [Supra] and M.L Kesari [Supra], the same by no stretch can be made applicable in the instant case. Particularly when the appointment process in the instance case did not involve competitive selection procedure and when the petitioners do not work on sanctioned post as full-time daily wagers also. Again, the Corporation has already taken one-time measure of regularizing services of those who were there at the time when Umadevi's and other Page 81 of 83 C/SCA/11441/2012 CAV JUDGMENT decisions came, no direction for regularization is permissible under the law. It is not a fundamental right nor a legal right of being regularized particularly when the appointment made itself being de hors the rules and in contravention of the well-laid down guidelines on the subject. Therefore, the prayers sought for in the present group of writ petition, in the opinion of this Court, are not found acceptable and petitions deserves rejection. 23. Before parting, it would be desirable to note that all these persons have continued for many years as Part- time Daily Wagers. There does not appear to be any grievance against the work of any one. In a hope to get benefit of regularization and possible many of them have chosen not to join others when by virtue of 2 (p)settlement, many of their co-workers withdrew the pending cases and have agreed to work for five years and on their completing the period of 900 days as a Full-time Daily Wagers within five years and they have been ensured to be absorbed. This was done to buy industrial peace and for the betterment of the Institution in wake of large number of employees having been continued for Page 82 of 83 C/SCA/11441/2012 CAV JUDGMENT many years as Part-time Daily Wagers who otherwise are found not to be entitled for the benefit of completion of five years as Full-time daily wagers. These petitioners, if are desirous of getting the benefit of regularization, they may approach the authority concerned which may consider extending such benefit of settlement in their case, bearing in mind the chronology of events which had continued their employment as part-time daily wagers for all these years. 24. Resultantly, writ petitions fail and are dismissed. Rule nisi issued in each case stands discharged with no order as to costs. {Ms. Sonia Gokani, J.} Prakash* Page 83 of 83 "
Other Referred Cases
Shyam Sunder v. Ram Kumar, S. Appukuttan v. Thundiyil Janaki Amma, Harnam Singh & Ors. v. Regional Transport Authority, Calcutta Region & Ors., National Insurance Company Ltd v. Kiral Singh, Barauni Refinery Pragatisheel Shramik Parishad vs. Indian Oil Corporation Limited, G.M, Security Paper Mills v. R.S Sharma, Union of India v. Ibrahim Uddin, Sriram Industrial Enterprises Ltd. vs.Mahak Singh, Amarendra Kumar Mohapatra v. State of Orissa, A. Manjula Bhashini v. A.P Women's Coop. Finance Corporation Limited, Punjab Water Supply & Sewerage Board v. Ranjodh Singh & Ors., Official Liquidator v. Dayanand & Ors., State of Rajasthan & Ors. vs. Daya Lal & Ors., State of Orissa & Anr. vs. Mamata Mohanty, State of Haryana & Anr. vs. Tilak Raj & Ors., State of Haryana & Ors. vs. Jasmer Singh & Ors., Secretary to Government, School Education Department, Chennai v. R. Govindaswamy & Ors.
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CRM Implementation Plan
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