Narain Lal Sharma and Others vs State of Rajasthan and Others

Bela M. Trivedi, J.—The petitioners have filed the present set of petitions seeking direction against the respondent Corporation not to take any action on the office order dated 3/4/2014 by replacing the existing contractual persons with another set of contractual persons against the 200 vacant posts and prayed to regularize their services against the vacant posts. They have also sought to quash and set aside the notice inviting tender/advertisement dated 27/5/2012 and to stop the E-Tendering process started by the respondent Corporation.

For the sake of convenience, the facts of petition No. 6888 of 2014 are taken. As per the averments made in the said petition, the petitioners were appointed as Security Guards during the period 2002-2006 as mentioned therein and are working with the respondent Corporation since then. According to them, the appointments of the petitioners were initially made through a Security Agency, namely, M/s. Super Ex-serviceman Welfare Cooperative Society, however they were working under the control of the respondent Corporation. It has been further stated that the respondents earlier had passed the orders for replacing the existing Guards working on contractual basis by another set of Guards on contractual basis, by issuing the Circular dated 4/2/2011, which was challenged by some of the petitioners, by filing the petitions being No. 6884/2011 and others. The said petitions were disposed of by the Court vide order dated 10/10/2011, whereby the Court directed the respondents not to replace the petitioners of those petitions by another set of contractual employees, however permitted the respondents to implement the order dated 4/2/2011 and subsequent order dated 1/4/2011 to engage the ex-servicemen. According to the petitioners, the respondent has now issued the office order dated 27/5/2014 for filling up 200 vacant posts of security guards by appointing Ex-servicemen on contractual basis with an intention to replace the petitioners and therefore, the petitions have been filed.

The said petitions have been resisted by the respondents by filing the reply contending inter alia that the petitions having been filed only on apprehension, the same are premature and not maintainable in the eye of law. It has been further contended that the respondent Corporation had initiated the process of engaging 200 additional security guards possessing requisite qualification under the Rules, from Ex-servicemen Societies and the petitioners have no right to challenge the said order. It is also contended that the petitioners were not the employees of the Corporation, but were engaged by the placement agency for fixed tenure, whose employment being not in accordance with the Rules and Regulations, their services cannot be regularized in view of the law settled by the Apex Court in various decisions and more particularly in case of Secretary, State of Karnataka and Others Vs. Umadevi and Others, AIR 2006 SC 1806 : (2006) 6 CompLJ 1 : (2006) 4 JT 420 : (2006) 2 LLJ 722 : (2006) 4 SCALE 197 : (2006) 4 SCC 1 : (2006) 3 SLJ 1 : (2006) AIRSCW 1991 : (2006) 3 Supreme 415 .

It is submitted by the learned counsel Ms. Neerja Khanna for the petitioners that the petitioners are working with the respondents since many years, though on contract basis, and therefore they are entitled to be regularized on their respective post of Security Guards in view of the settled legal position, more particularly in case of State of Haryana and others Vs. Piara Singh and others etc. etc., AIR 1992 SC 2130 : (1992) 5 JT 179 : (1993) 2 LLJ 937 : (1992) 102 PLR 547 : (1992) 2 SCALE 384 : (1992) 4 SCC 118 : (1992) 3 SCR 826 : (1992) 3 SLJ 34 : (1992) 2 UJ 692 . According to her, even as per the decisions in case of Umadevi (supra), and in case of State of Karnataka and Others Vs. M.L. Kesari and Others, AIR 2010 SC 2587 : (2011) 111 CLT 209 : (2010) 127 FLR 12 : (2010) 8 JT 96 : (2010) 4 LLJ 583 : (2010) 9 SCC 247 , if the scheme for regularization has not been framed by the respondents, they should be directed to frame the scheme, and regularize the services of the petitioners. However, the learned counsels for the respondents have submitted that the petitioners are not the employees of the respondent Corporation and at the most they could be said to be employees of the placement agency, which was hired by the corporation. They further submitted that the present petitions having been filed merely on the apprehension that the respondents would discontinue the services of the placement agency, the petitions are not maintainable being premature. According to them, the petitioners having been appointed through placement agencies on contractual basis, their services would come to an end with the expiry of term of contract.

Having regard to the submissions made by the learned counsels for the parties, and to the documents on record, it appears that the petitioners have not produced any document to show that they were either appointed by the respondent. Apart from the fact that as per their own averments in the petitions, they were appointed by the placement agencies from time to time, there is nothing on record to suggest that when and by which placement agencies, they were appointed and for what period. The learned counsel for the petitioners has also failed to point out as to how the services of the petitioners are likely to be terminated and by whom. Though much reliance has been placed by the learned counsel for the petitioners on the decision of the learned Single Bench in case of Praveen Singh Deora in S.B. Civil Writ Petition No. 6447/11 (Annex.2), the same is not helpful to the petitioners in as much as there is no direction given in the said judgment to the respondents to regularize the services of the petitioners. On the contrary, the Court had permitted the respondents to engage ex-service personnel, and to implement order dated 4/2/2011, by which the respondent corporation had taken the decision not to extend the term of Security Guards appointed on contractual basis through placement agencies. As transpiring from the reply filed by the respondents, pursuant to the said order only the respondents had passed the order for filling up the posts through ex-servicemen on contractual basis.

At this juncture, a very pertinent observations made by the Apex Court in case of R.K. Panda and Others Vs. Steel Authority of India and Others, (1994) 4 JT 151 : (1994) 2 SCALE 910 : (1994) 5 SCC 304 : (1987) SCC 314 Supp : (1994) 3 SCR 1034 : (1994) 3 SLJ 227 , are required to be reproduced as under:--

"It is true that with the passage of time and purely with a view to safeguard the interests of workers, many principal employers while renewing the contracts have been insisting that the contractor or the new contractor retains the old employees. In fact such a condition is incorporated in the contract itself. However, such a clause in the contract which is benevolently inserted in the contract to protect the continuance of the source of livelihood of the contract labour cannot by itself give rise to a right to regularisation in the employment of the principal employer. Whether the contract labourers have become the employees of the principal employer in course of time and whether the engagement and employment of labourers through a contractor is a mere camouflage and a smokescreen, as has been urged in this case, is a question of fact and has to be established by the contract labourers on the basis of the requisite material. It is not possible for the High Court or this Court, while exercising writ jurisdiction or jurisdiction under Article 136 to decide such questions, only on the basis of the affidavits. It need not to be pointed out that in all such cases, the labourers are initially employed and engaged by the contractors. As such at what point of time a direct link is established between the contract labourers and the principal employer, eliminating the contractor from the scene, is a matter which has to be established on material produced before the court. Normally, the Labour Court and the Industrial Tribunal, under the Industrial Disputes Act are the competent fora to adjudicate such disputes on the basis of the oral and documentary evidence produced before them."

So far as the prayer for regularization of the petitioners on the post of Security Guards is concerned, the law is well settled by the Constitution Bench of Apex Court in the land Mark Case of Uma Devi, in which it has been observed as under:--

".......43. 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. The High Courts acting under Article 226 of the Constitution, should not ordinarily issue directions for absorption, regularization, or permanent continuance unless the recruitment itself was made regularly and in terms of the constitutional scheme. Merely because, an employee had continued under cover of an order of Court, which we have described as ''litigious employment'' in the earlier part of the judgment, he would not be entitled to any right to be absorbed or made permanent in the service. In fact, in such cases, the High Court may not be justified in issuing interim directions, since, after all, if ultimately the employee approaching it is found entitled to relief, it may be possible for it to mould the relief in such a manner that ultimately no prejudice will be caused to him, whereas an interim direction to continue his employment would hold up the regular procedure for selection or impose on the State the burden of paying an employee who is really not required. The courts must be careful in ensuring that they do not interfere unduly with the economic arrangement of its affairs by the State or its instrumentalities or lend themselves the instruments to facilitate the bypassing of the constitutional and statutory mandates.

-------------- 50. 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, 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 violation 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.

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 sub-judice, 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."

The said case of Umadevi has also been further considered by the Apex Court in case of M.L. Kesari (supra) in which it has been observed as under:

"11. The object behind the said direction in para 53 of Umadevi (3) is two- fold. First is to ensure that those who have put in more than ten years of continuous service without the protection of any interim orders of courts or tribunals, before the date of decision in Umadevi was rendered, are considered for regularization in view of their long service. Second is to ensure that the departments/instrumentalities do not perpetuate the practice of employing persons on daily-wage/ad-hoc/casual basis for long periods and then periodically regularize them on the ground that they have served for more than ten years, thereby defeating the constitutional or statutory provisions relating to recruitment and appointment. The true effect of the direction is that all persons who have worked for more than ten years as on 10.4.2006 (the date of decision in Umadevi) without the protection of any interim order of any court or tribunal, in vacant posts, possessing the requisite qualification, are entitled to be considered for regularization. The fact that the employer has not undertaken such exercise of regularization within six months of the decision in Umadevi or that such exercise was undertaken only in regard to a limited few, will not disentitle such employees, the right to be considered for regularization in terms of the above directions in Umadevi as a one-time measure."

In the instant case, admittedly the petitioners were not appointed by any of the respondents, and they were appointed by the placement agencies. The learned counsel for the petitioners has also failed to point out any legal right muchless fundamental right to get their services regularised by the respondents. It is also to be noted that similar prayer for regularization of services has also been not granted by the Coordinate Benches of this Court in case of Ghanshyam and Ors. v. RSRTC, in S.B. Civil Writ Petition No. 12002/2011 decided on 10/7/2013 and in case of Sita Ram& Ors. v. RSRTC and Anr, in S.B. Civil Writ Petition No. 12489/2011 decided on 6/12/2013.

In that view of the matter, the petitions being devoid of merits are dismissed. By this order, the stay application and any other pending application, if any also stand dismissed. A copy of this order be placed in each connected files.