Bhuvnesh Kumar and Others vs The State of Himachal Pradesh

Justice Sanjay Karol, J.—Petitioners have prayed for the following reliefs:

i) That the order dated 30.10.2006, Annexure A-8, passed by the Principal Secretary (Education), to the Govt. of H.P. may kindly be quashed and set aside in the interest of justice.

ii) That the respondents may be directed to grant the minimum of the regular pay scale plus allowances of the post of Information Technology Teacher/Lecturer in Computer Vocational of school cadre to the applicants.

iii) That the respondents may be directed to provide protection in service career to the applicants by treating them at par with Contract/Adhoc Teacher in the Govt. Department with all other consequential benefits.

iv) That the memorandum of understanding/ agreement, Annexure A-6, may kindly be quashed and set aside being illegal, arbitrary, malafide and unconstitutional.

In terms of order dated 30.10.2006, petitioners'' request for according them status of Lecturers (contract/adhoc) appointed by the Government stands rejected.

Facts are not much in dispute. The State of Himachal Pradesh entered into an agreement with DOEACC, an autonomous body of Department of Information Technology, Ministry of Communication & Information Technology, Govt. of India for imparting training in computer technology to students studying in various government schools within the State of Himachal Pradesh. For executing such contract, DOEACC of its own appointed teachers on contract basis with fixed salary and posted them at various schools. Separate agreements were executed by DOEACC with such teachers, petitioners being some of them. It is not in dispute that petitioners were engaged by DOEACC and posted by them at various centres. On the strength of such agreement, petitioners claim regularization in the Government services and parity in pay scales with the Lectures appointed by the Government of Himachal Pradesh. Such claim stands rejected in terms of the impugned order.

It is not in dispute that petitioners have been discharging their duties in various government schools within the State of Himachal Pradesh since the year of their engagement i.e. 2005 - 2006. It is also not in dispute that they are imparting training to the satisfaction of their employer i.e. DOEACC and also the State Government.

Now there is nothing on record to show any privity of contract between the State and the petitioners. State has no role in their selection or appointment. Service conditions of the petitioners are contractually regulated and controlled by DOEACC who also pays their salary. The Government of Himachal Pradesh has got no control over their appointments and service conditions. Interference over postings is also restricted in cases of complaints. Petitioners are discharging their duties under directions of DOEACC in terms of their contractual engagement. This is to fulfill the contractual obligation in terms of the agreement entered into between the State of Himachal Pradesh and DOEACC.

It is contended by the petitioners that they are discharging duties similar to that of regularly appointed Lecturer and as such are entitled to benefits of equal pay and regularization as are admissible to other employees of the State Government. The contention merits rejection. As has already been observed, petitioners are not employees of the State Government. Their initial engagement is not on the basis of any Rules or Administrative Instructions/Regulations issued by the Government. Also process of recruitment, selection and appointment has not been undertaken by the State Government nor is it in accordance with the Rules framed by the State. These employees are governed by the terms of their contractual employment. Significantly petitioners have been appointed under a specific I.T. Education Project. Their terms of engagement specifically provide that with the completion of this project their employment shall stand terminated. Thus by no stretch of imagination petitioners are employees of the State Government.

How and in what manner their contract is illegal, arbitrary, malafide or unconstitutional is neither substantiated nor effectively argued.

In support, petitioners have invited my attention to the judgments delivered by the Apex Court as reported in National Federation of Railways Porters, Vendors and Bearers Vs. Union of India and others, and Secretary, H.S.E.B Vs. Suresh and Others etc. etc.,

Reliance upon the same, in my considered view is totally misconceived. It pertains to regularization of workmen under the Contract Labour Laws. Petitioners who are working as teachers want themselves to be equated with such workmen. Without being judgmental on such wisdom, I may only observe that the decisions are not applicable. In any event their efficacy stands whittled down subsequently.

In National Federation of Railway Porters (supra) the Apex Court was dealing with Railway Parcel Porters itself engaged by the Railway Administration and directions for regularization of some of these Porters were issued in terms of scheme framed by the department. However this decision subsequently came up for consideration before the Apex Court in Union of India and others versus Nanda Kumar and others, (1997) 11 SCC 661 wherein it was clarified that porters who were not working under the Railway Administration and were otherwise free to do private work were not entitled to the benefit of the scheme framed by the Railways for regularization of casual/daily wage porters.

In Secretary, H.S.E.B. (supra) the Apex Court, by lifting the corporate veil, found that Haryana State Electricity Board had camouflaged employment through private contractors. Since the employees were actually found to be that of the Board, as such they were held entitled to benefit of Contract Labour (Regulation and Abolition) Act, 1970. However subsequently, Apex Court i Ram Singh and Others Vs. Union Territory, Chandigarh and Others, had occasion to deal with almost similar circumstances wherein it held that:

Normally, the relationship of employer and employee does not exist between an employer and a contractor and the servant of an independent contractor. Where, however, an employer retains or assumes control over the means and method by which the work of a Contractor is to be done, it may be said that the relationship between employer and the employee exists between him and the servants of such a Contractor. In such a situation the mere fact of formal employment by an independent Contractor will not relieve the master of liability where the servant is, in fact, in his employment. In that event, it may be held that an independent Contractor is created or is operating as a subterfuge and the employee will be regarded as the servant of the principal employer. Whether a particular relationship between employer and employee is genuine or a camouflage through the mode of a Contractor, is essentially a question of fact to be determined on the basis of the features of relationship, the written terms of employment, if any, and the actual nature of the employment. The actual nature of relationship concerning a particular employment being essentially a question of fact, it has to be raised and proved before an industrial adjudicator.

[Emphasis supplied]

Also earlier the Constitution Bench of the Apex Court i Steel Authority of India Ltd. and Others etc. etc. Vs. National Union Water Front Workers and Others etc. etc., , had occasion to deal with the provisions of Contract Labour (Regulation and Abolition) Act, 1970 and finally settled the law by inter alia issuing the following directions: 125. The upshot of the above discussion is outlined thus :

...

...

(3) Neither Section 10 of the CLRA Act nor any other provision in the Act, whether expressly or by necessary implication, provides for automatic absorption of contract labour on issuing a notification by appropriate Government under sub-section (1) of Section 10, prohibiting employment of contract labour, in any process, operation or other work in any establishment. Consequently the principal employer cannot be required to order absorption of the contract labour working in the concerned establishment.

(4) We overrule the judgment of this Court in Air India''s case Air India Statutory Corporation, etc. Vs. United Labour Union and others [overruled], prospectively and declare that any direction issued by any industrial adjudicator/any Court including High Court, for absorption of contact labour following the judgment in Air India''s case (supra), shall hold good and that the same shall not be set aside, altered or modified on the basis of this judgment in cases where such a direction has been given effect to and it has become final.

(5) On issuance of prohibition notification under S. 10(1) of the CLRA Act prohibiting employment of contract labour or otherwise, in an industrial dispute brought before it by any contract labour in regard to conditions of service, the industrial adjudicator will have to consider the question whether the contractor has been interposed either on the ground of having undertaken to produce any given result for the establishment or for supply of contract labour for work of the establishment under a genuine contract or is a mere ruse/camouflage to evade compliance of various beneficial legislations so as to deprive the workers of the benefit thereunder. If the contract is found to be genuine but a mere camouflage, the so-called contract labour will have to be treated as employees of the principal employer who shall be directed to regularize the services of the contract labour in the concerned establishment subject to conditions as may be specified by it for that purpose in the light of para 6 hereunder.

6) If the contract is found to be genuine and prohibition notification under S. 10(1) of the CLRA Act in respect of the concerned establishment has been issued by the appropriate Government, prohibiting employment of contract labour in any process, operation or other work of any establishment and where in such process, operation or other work of the establishment the principal employer intends to employ regular workmen he shall give preference to the erstwhile contract labour, if otherwise found suitable and, if necessary, by relaxing the condition as to maximum age appropriately taking into consideration the age of the workers at the time of their initial employment by the contractor and also relaxing the condition as to academic qualifications other than technical qualifications." ... ....

We have used the expression "industrial adjudicator" by design as determination of the questions aforementioned requires inquiry into disputed question of facts which cannot conveniently be made by High Courts in exercise of jurisdiction under Art. 226 of the Constitution. Therefore, in such cases the appropriate authority to go into those issues will be Industrial Tribunal / Court whose determination will be amenable to judicial review.

[Emphasis supplied]

As to whether writ petitions for enforcement of provisions of the Contract Labour (Regulation and Abolition) Act, 1970 are maintainable or not, the Apex Court in A.P.S.R.T.C. and Others Vs. G. Srinivas Reddy and Others, has held that where questions of fact are involved scope of interference by the High Court is limited and Court cannot direct absorption of the employees on the ground that the work for which they were engaged as contract labour was perennial in nature. Significantly the Court cautioned that:

We may also note that sometimes the High Courts dispose of matter merely with a direction to the authority to ''consider'' the matter without examining the issue raised even though the facts necessary to decide the correctness of the order are available. Neither pressure of work nor the complexity of the issue can be a reason for the court, to avoid deciding the issue which requires to be decided, and disposing of the matter with a direction to ''consider'' the matter afresh. Be that as it may.

There are also several instances where unscrupulous petitioners with the connivance of ''pliable'' authorities have misused the direction ''to consider'' issued by court. We may illustrate by an example. A claim, which is stale, time-barred or untenable, is put forth in the form of a representation. On the ground that the authority has not disposed of the representation within a reasonable time, the person making the representation approaches the High Court with an innocuous prayer to direct the authority to ''consider'' and dispose of the representation. When the court disposes of the petition with a direction to ''consider'', the authority grants the relief, taking shelter under the order of the court directing him to ''consider'' the grant of relief. Instances are also not wanting where authorities, unfamiliar with the process and practice relating to writ proceedings and the nuances of judicial review, have interpreted or understood the order ''to consider'' as directing grant of relief sought in the representation and consequently granting reliefs which otherwise could not have been granted. Thus, action of the authorities granting undeserving relief, in pursuance of orders to ''consider'', may be on account of ignorance, or on account of bona fide belief that they should grant relief in view of court''s direction to ''consider'' the claim, or on account of collusion/connivance between the person making the representation and the authority deciding it. Representations of daily wagers seeking regularization/absorption into regular service is a species of cases, where there has been a large scale misuse of the orders ''to consider''.

Therefore, while disposing of writ petitions with a direction to ''consider'', there is a need for the High Court to make the direction clear and specific. The order should clearly indicate whether the High Court is recording any finding about the entitlement of the petitioner to the relief or whether the petition is being disposed of without examining the claim on merits. The court should also normally fix a time-frame for consideration and decision. If no time-frame is fixed and if the authority does not decide the matter, the direction of the court becomes virtually infructuous as the aggrieved petitioner will have to come again to court with a fresh writ petition or file an application for fixing time for deciding the matter.

[Emphasis supplied]

Further in Secretary, State of Karnataka and Others Vs. Umadevi and Others, the Constitution Bench of the Apex Court observed that:

.....A class of employment which can only be called ''litigious employment'', has risen like a phoenix seriously impairing the constitutional scheme. Such orders are passed apparently in exercise of the wide powers under Article 226 of the Constitution of India. Whether the wide powers under Article 226 of the Constitution is intended to be used for a purpose certain to defeat the concept of social justice and equal opportunity for all, subject to affirmative action in the matter of public employment as recognized by our Constitution, has to be seriously pondered over.It is time, that Courts desist from issuing orders preventing regular selection or recruitment at the instance of such persons and from issuing directions for continuance of those who have not secured regular appointments as per procedure established. The passing of orders for continuance, tends to defeat the very Constitutional scheme of public employment. It has to be emphasized that this is not the role envisaged for High Courts in the scheme of things and their wide powers under Article 226 of the Constitution of India are not intended to be used for the purpose of perpetuating illegalities, irregularities or improprieties or for scuttling the whole scheme of public employment. Its role as the sentinel and as the guardian of equal rights protection should not be forgotten." ... ...

Thus, it is clear that adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution, a Court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution. Therefore, consistent with the scheme for public employment, this Court while laying down the law, has necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee. If it is a contractual appointment, the appointment comes to an end at the end of the contract, if it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued. Similarly, a temporary employee could not claim to be made permanent on the expiry of his term of appointment. It has also to be clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules. It is not open to the court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad hoc employees who by the very nature of their appointment, do not acquire any right....

While directing that appointments, temporary or casual, be regularized or made permanent, courts are swayed by the fact that the concerned person has worked for some time and in some cases for a considerable length of time. It is not as if the person who accepts an engagement either temporary or casual in nature, is not aware of the nature of his employment. He accepts the employment with eyes open. It may be true that he is not in a position to bargain -- not at arms length --since he might have been searching for some employment so as to eke out his livelihood and accepts whatever he gets. ...

[Emphasis supplied]

Thus in view of the settled position of law no direction as prayed for can be issued in favour of the petitioners.

I have not specifically gone into the question whether provisions of Contract Labour (Regulation and Abolition) Act, 1970 are applicable to the petitioners or not. Their eligibility, entitlement and benefits under the Act, in any event is a question which needs to be considered by the appropriate/competent authority and not by this Court in a writ jurisdiction under Article 226 of the Constitution of India.

Consequently, present petition without any merit is dismissed. Pending application(s), if any, also stands disposed of.