Dev Prakash & Ors vs Union Of India & Ors

Dr. Sanjiv Kumar, Member (A)

By way of the instant original application filed under section 19 of Administrative Tribunals Act 1985, the applicants have prayed for quashing the impugned order dated 18.03.2021 passed by respondent no. 3 and to direct the respondents to regularize them in the light of existing rules with all consequential benefits. Prayer has also been made to direct the respondents to pay their back wages from February 2012 up till now with admissible interest.

The facts of the case of the applicants, in brief, are that this is third round of litigation. Earlier, the applicants filed OA No. 1611/2012 which was disposed off vide order dated 02.11.2017 and in compliance thereto the respondents passed order dated 12.01.2018 rejecting the claim of the applicants. The applicant challenged this order in OA No. 197/2018 which was decided vide order dated 06.11.2020 and in compliance thereto the respondents issued order dated 18.03.2021 against which the present OA has been filed. The applicants have referred to DOPT OM dated 07.06.1998 with regard to eligibility for time scale and regularization of those daily wagers, who have completed one year of service. They further referred to DOPT OM dated 10.09.1993 regarding grant of temporary status and regularization of daily wagers at the strength of the department on completion of one year of service and stated that many daily wagers have been granted temporary status based on this circular but it is not implemented in letter and spirit for the applicants. The applicants further relied upon the judgment of Hon’ble Apex Court in the case of Secretary, State of Karnataka Vs. Uma Devi – 2006 (4) SCC 1 and state that the Hon’ble Apex Court had directed for regularization of the employees who had rendered ten years of service with the government. Thereafter, the Ministry of Finance, Department Revenue and the Central Board of Direct Taxes issued letter dated 21.10.2015 for regularization of daily wagers in accordance with decision of Hon’ble Apex Court in the case of Uma Devi (Supra).

Learned counsel for the applicants submitted that the applicants were appointed as Farrash on daily wages basis in the office of Principal Commissioner of Income Tax, Moradabad in the August 2008 and vide order dated 22.09.2010 passed by respondent no. 4, the applicants were directed to discharge their duties at the residence of respondent no. 3. The applicants were paid their wages month to month regularly but it was stopped from February 2012. However, as per the register maintained by the respondents, a copy of which has been enclosed at Annexure A-7, the applicants are discharging their duties w.e.f. 01.04.2010. Learned counsel for the applicants further stated that a committee was constituted to submit report on the facts of their case and the said Committee submitted its report on 03.03.2021 based on verification of attendance sheet and other records, which shows that the applicants had worked as daily wager in the department since 2008 till 2012. It is further stated that the applicant no. 1 had worked for 298 days in the year 2010 and 298 days in the year 2011 whereas the applicant no. 2 had worked for 295 days in the year 2010 and 298 days in the year 2011 and it is more than 240 days. Hence, the applicants are eligible to be considered for regularization and prayed that the impugned order dated 18.03.2021 may be set aside and to direct the respondents to regularize their services.

The respondents have requested to rely on the counter affidavit filed on 10.01.2023. In the said counter affidavit, the respondents have stated that the applicants were never appointed in the department and they were only engaged for one day from 8.00 p.m. to 6.00 am on 24.09.2010 by the then Commissioner of Income Tax, Moradabad and no appointment letter was issued to them. It is stated that in the year 2011, the Chief Commissioner of Income Tax, Bareilly had removed excess workers from the department, who were working as a daily wager, but due to availability of work, some casual labourers were re-engaged vide order dated 08.12.2012, but the applicants were not engaged. The applicant no. 1 vide letter dated 10.07.2017 submitted before ITO 1(1), Moradabad claimed wages from February 2012 and further requested for reinstatement as daily wager. The applicant no. 2 also submitted similar application on 14.07.2012 before the Commissioner of Income Tax, Moradabad, which was sent to the office of Chief Commissioner, Income Tax, Bareilly on 10.09.2012 for appropriate order and the Chief Commissioner, Income Tax, Bareilly vide letter dated 24.09.2012 informed that after consideration, the applications of the applicants have been rejected and only those who were eligible for regularization, such cases were forwarded to the office of Chief Commissioner of Income Tax, Bareilly.

The respondents further say that the applicants’ claim is not acceptable as they did not fulfill the condition of regularization in accordance with O.M. dated 10.09.1993. The respondents further stated that the Hon’ble Apex Court vide judgment dated 10.04.2006 in Civil Appeal No. 3595-3612/1999 in case of Secretary, State of Karnataka and others Vs. Uma Devi & Ors directed the Union of India to take steps to regularize as a onetime measure, the service of such irregularly appointed persons who duly qualified in terms of statutory recruitment rules for the post and who have worked for 10 years or more in duly sanctioned posts. In the said judgment, Hon’ble Apex Court also clarified that if such appointment itself is infraction of the rules or if it is in violation of the provisions of the Constitution, illegality cannot be regularized. As the applicants had not worked for 10 years in any duly sanctioned post, they cannot be regularized as per the above judgment. Hence, the respondents say that there is no case for the applicants and the OA should be dismissed.

The applicants have filed detailed rejoinder where they reiterate the facts of their OA. However, they have attached and relied upon the judgment of Hon’ble Supreme Court dated 13.03.2018 passed in Civil Appeal No(s). 2795-2796/2018 (arising out of SLP (C) Nos. 33258-33259/2015) – Ravi Verma and ors. Vs. Union of India & Ors and state that their case is also covered by the above judgment. The applicants also relied upon the order dated 23.12.2022 passed by this Tribunal in OA No. 111/2019 – Jai Veer Singh & Ors. Vs. UOI & Ors and order dated 10.05.2022 passed in OA No. 896/2013 – Hukum Singh Vs. UOI & Ors and claimed that their case is identical to the said cases. The applicant further state that the order dated 10.05.2022 passed in the case of Hukum Singh was challenged by the respondents before Hon’ble High Court through Writ (A) No. 18696/2022, which was dismissed vide judgment dated 07.12.2022, hence, submitted that as their case is covered by the above cited judgments, the OA may be allowed and the respondents may be directed to regularize their services.

The case came up for final hearing on 26.05.2023. Shri Sunil, learned counsel for the applicants and Shri Chakrapani Vatsyayan, learned counsel for the respondents were present and both were heard. I have carefully gone through the entire record, and considered the rival contentions.

From the pleadings of the applicants, it appears that they claim that for the first time, they were engaged as Farrash in August 2008. Although the respondents in their counter say that the applicants were engaged for one day on 24.09.2010. Even if the contention of the applicants that they were engaged for the first time in August 2008 is agreed, it would be appropriate to examine this case with the judgment of Hon’ble Supreme Court dated 10.04.2006 passed in Appeal (civil) 3595-3612 of 1999 in case of Secretary, State of Karnataka and others Vs. Uma Devi & Ors., as the said date is quite relevant notwithstanding any other facts of this case. In the above judgment, Hon’ble Apex Court has dealt as under: -

“41. It is argued that in a country like India where there is so much poverty and unemployment and there is no equality of bargaining power, the action of the State in not making the employees permanent, would be violative of Article 21 of the Constitution. But the very argument indicates that there are so many waiting for employment and an equal opportunity for competing for employment and it is in that context that the Constitution as one of its basic features, has included Articles 14, 16 and 309 so as to ensure that public employment is given only in a fair and equitable manner by giving all those who are qualified, an opportunity to seek employment. In the guise of upholding rights under Article 21 of the Constitution of India, a set of persons cannot be preferred over a vast majority of people waiting for an opportunity to compete for State employment. The acceptance of the argument on behalf of the respondents would really negate the rights of the others conferred by Article 21 of the Constitution, assuming that we are in a position to hold that the right to employment is also a right coming within the purview of Article 21 of the Constitution. The argument that Article 23 of the Constitution is breached because the employment on daily wages amounts to forced labour, cannot be accepted. After all, the employees accepted the employment at their own volition and with eyes open as to the nature of their employment. The Governments also revised the minimum wages payable from time to time in the light of all relevant circumstances. It also appears to us that importing of these theories to defeat the basic requirement of public employment would defeat the constitutional scheme and the constitutional goal of equality.

The argument that the right to life protected by Article 21 of the Constitution of India would include the right to employment cannot also be accepted at this juncture. The law is dynamic and our Constitution is a living document. May be at some future point of time, the right to employment can also be brought in under the concept of right to life or even included as a fundamental right. The new statute is perhaps a beginning. As things now stand, the acceptance of such a plea at the instance of the employees before us would lead to the consequence of depriving a large number of other aspirants of an opportunity to compete for the post or employment. Their right to employment, if it is a part of right to life, would stand denuded by the preferring of those who have got in casually or those who have come through the back door. The obligation cast on the State under Article 39(a) of the Constitution of India is to ensure that all citizens equally have the right to adequate means of livelihood. It will be more consistent with that policy if the courts recognize that an appointment to a post in government service or in the service of its instrumentalities, can only be by way of a proper selection in the manner recognized by the relevant legislation in the context of the relevant provisions of the Constitution. In the name of individualizing justice, it is also not possible to shut our eyes to the constitutional scheme and the right of the numerous as against the few who are before the court. The Directive Principles of State Policy have also to be reconciled with the rights available to the citizen under Part III of the Constitution and the obligation of the State to one and all and not to a particular group of citizens. We, therefore, overrule the argument based on Article 21 of the Constitution.

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One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. NARAYANAPPA (supra), R.N. NANJUNDAPPA (supra), and B.N. NAGARAJAN (supra), and referred to in paragraph 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of courts or of tribunals. The question of regularization of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularize as a one time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularization, if any already made, but not subjudice, need not be reopened based on this judgment, but there should be no further by-passing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme.

It is also clarified that those decisions which run counter to the principle settled in this decision, or in which directions running counter to what we have held herein, will stand denuded of their status as precedents.

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Coming to Civil Appeal Nos. 1861-2063 of 2001, in view of our conclusion on the questions referred to, no relief can be granted, that too to an indeterminate number of members of the association. These appointments or engagements were also made in the teeth of directions of the Government not to make such appointments and it is impermissible to recognize such appointments made in the teeth of directions issued by the Government in that regard. We have also held that they are not legally entitled to any such relief. Granting of the relief claimed would mean paying a premium for defiance and insubordination by those concerned who engaged these persons against the interdict in that behalf. Thus, on the whole, the appellants in these appeals are found to be not entitled to any relief. These appeals have, therefore, to be dismissed.”

If I carefully examine the above quoted paragraphs and try to understand for its purport, it is very clear that this judgment completely prohibits any such casual appointments which are dealt by the said case prospectively and it clearly directed the government to make a scheme as one time measure to give relief of regularization to certain type of employees who had already completed certain number of years of qualifying casual service. As such the Hon’ble Apex Court was of the firm opinion that the casual employments deprived a large number of aspirants of an opportunity to compete for the post or employment in an open manner and such casual appointment was an aberration and back door entry which should be discontinued forthwith. The Hon’ble Apex Court clearly ruled that the right to employment of large multitude, if it is a part of right to life, would stand denuded by the preferring of those who have got in casually or those who have come through the back door. The Hon’ble Apex Court emphasized that the obligation cast on the State under Article 39(a) of the Constitution of India is to ensure that all citizens equally have the right to adequate means of livelihood. It will be more consistent with that policy if the courts recognize that an appointment to a post in government service or in the service of its instrumentalities, can only be by way of a proper selection in the manner recognized by the relevant legislation in the context of the relevant provisions of the Constitution. In the name of individualizing justice, it is also not possible to shut eyes to the constitutional scheme and the right of the numerous as against the few who are before the court. The Hon’ble Apex Court clarified the Directive Principles of State Policy have also to be reconciled with the rights available to the citizen under Part III of the Constitution and the obligation of the State to one and all and not to a particular group of citizens and hence, they overruled the argument based on Article 21 of the Constitution and held that the State Governments and their instrumentalities should take steps to regularize as a one time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed and that the process must be set in motion within six months from that date. In para 45, the Hon’ble Apex Court has also clarified that those decisions which run counter to the principle settled in that decision, or in which directions running counter to what they had held herein, will stand denuded of their status as precedents. The Hon’ble Apex Court further held that if someone is irregularly granting relief to them would mean paying a premium for defiance and insubordination by those concerned who engaged these persons against the interdict in that behalf.

In view of the above settled position, the present case also goes counter to the grain of constitution scheme of public employment and no one, who started his irregular public employment as casual after the date of the decision of Hon’ble Apex Court dated 10.04.2006 (Uma Devi-Supra), can claim any right whatsoever of regularization or continuation or asking for any relief from any court of law in India, who are bound by the directions of the Hon’ble Supreme Court, under any pretext in public employment. All irregular new appointments after that date are in clear contravention of the Hon’ble Supreme Court’s judgment or in direct contempt of the said judgment, if the authorities in 2008 or 2010 or later have effected any such irregular casual employment, as is alleged in this case by the applicants, those are in clear contravention of the decision of Hon’ble Apex Court in the case of Secretary, State of Karnataka & Ors. Vs. Uma Devi & Ors (Supra), and hence the present applicants also do not have any subsisting right against public employment which can be sought as relief of regularization before this Tribunal. If at all, any right subsists, it only remains a case for taking disciplinary action against those officers, who committed such irregularities of taking casuals on illegitimately in the teeth of orders of Hon’ble Apex Court (in Uma Devi – Supra), and the applicants could only claim private relief, if any, in a civil suit against such defaulting officers and certainly not the government for public employment.

In view of the judgment dated 10.04.2006 passed by the Hon’ble Apex Court in the case of Secretary, State of Karnataka (Supra), no official can employ irregularly and no one being employed so irregularly can claim any benefit of public employment or regularization of public employment, which essentially has to be in the constitutional scheme of things by proper vacancies advertisement and through the process laid down with basic requirement of public employment. Hence, at this stage, I do not find any need to examine any other facts of this case which are irrelevant for the purpose of granting any relief to the applicants.

If the case laws referred by the applicants in OA No. 111/2019 – Jai Veer Singh (Supra) and OA No. 896/2013 Hukum Singh (Supra) are examined, it can easily be seen that in OA No. 111/2019, the applicants were engaged in the respondents department during the period 1992 to 1997 and in OA No. 896/2013, the applicant was engaged in the year 1993. Similarly, the Hon’ble Apex Court in its judgment passed in Civil Appeal No(s) 2795 – 2796 /2018, in para 4, it is mentioned that the appellants were appointed as casual employees in the Income Tax Department in the year 1993-94. Hence, those all cases starting dates of casual employment pre-dated the judgment dated 10.04.2006 passed in Secretary, State of Karnataka (Supra) and are on a different footing and not relevant to the present case before me.

In view of the foregoing discussions, I do not find any ground for the applicants to get any relief of regularization in public employment or any other claim to public employment and the present original application is liable to be dismissed. Accordingly, the original application is dismissed. Respondents may take necessary action to inquire, how and under what circumstances their officials were still employing casual labours even long after the Hon’ble Apex Court judgment dated 10.04.2006 in the case of Secretary, State of Karnataka & Ors (Supra), as alleged by the applicants, and take immediate corrective action to ensure no claim to public employment is against the grain of constitutional scheme of things as ruled.

All pending associated MAs stand disposed off.

No order as to costs.