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Judgment
O.P. Sharma, J.—The petitioner claims to be the President of the Security Staff (Exservicemen) Association who are working in SMGS
Hospital, Jammu. How the Security guards came to be appointed in the Medical College and SMGS Hospital is discernible from the copies of
different orders issued by the Principal, Govt. Medical College, Jammu which have been placed on record by the petitioner. Petitioner Babu Ram
came to be engaged as a Security Officer on monthly consolidated salary of Rs. 1500/ vide order dated 3.9.1991. Four other persons were
appointed on the same date as Security Supervisors. By another order of the same date, 30 persons were engaged as Security guards on a
monthly consolidated pay of Rs. 950/.
All these engagements were made on the basis of recommendation dated 30.8.1991 made by the Medical Suptd. SMGS Hospital, Jammu who
alongwith Administrative Officer Associated Hospital and the then Secretary Zila Sainik Board, Jammu after interview selected one Security
Officer, four security supervisors and 30 security guards. Although the security guards were initially engaged only for a period of one year, but the
period of their engagement continued to be extended from time to time.
The petitioner had earlier filed SWP No. 76/97 which was decided by a learned Single Judge of this Court on 13.8.1998. The case of the
petitioner is that although judgment dated 13.8.1998 has been implemented vide order dated 28.10.1999, but the respondents have decided to
disengage them from ending March 2000. The petitioners have thus challenged the order dated 28.10.1999 in so far as it directs (i) that the
petitioners shall not be continued after March 2000, (ii) in so far as it is silent about the grant of salary retrospectively from the date they were
appointed, and (iii) to direct the respondents to regularise the petitioners on the posts they have been working.
The stand of the respondents is that earlier judgment has been implemented and since the petitioners were engaged on contract basis and not on
any post, they cannot be regularised. Since the term of their engagement was extended only upto ending March 2000, they cannot be allowed to
continue.
In support of the plea for regularisation Mr. Rania placed reliance on the judgment in Secretary, Haryana State Electricity Board v. Suresh &
Ors., 1999(2) SCT 600 (SC) : AIR 1999 SC 1160 , and the decision of the High Court of Orissa in Bijay Kumar Jena v. Union of India, 2000(2)
SCT 730 (Orissa)(DB) : 2000 LLR 143. He has also placed on record a photo copy of the judgment dated 29.9.1997 of the High Court of Delhi
in case Delhi Multistoreyed Building Employees Congress v. Union of India & Ors. Mr. Rania was, however, unable to show how these judgments
are relevant in this case when the petitioners have not been engaged through any contractor, but directly by the Principal of the Medical College. It
is thus not a case of contract labour contemplated under the Contract Labour Act. In the case of Suresh (supra) their Lordships held that :
Under these circumstances, it has to be held that factually there was no genuine contract system prevailing at the relevant time wherein the Board
could have acted as only the Principal employer and Kashmir Singh as a licensed contractor employing labour on his own account. It is also
pertinent to note that nothing was brought on record to indicate that even the Board at the relevant time was registered as principal employer under
the Contract Labour Regulation and Abolition Act. Once the Board was not a principal employer and the socalled contractor Kashmir Singh was
not a licensed contractor under the Act, the inevitable conclusion that had to be reached was to the effect that the so called contract system was a
mere camouflage, smoke and a screen and disguised in almost a transparent veil which could easily be pierced and the real contractual relationship
between the Board, on the one hand, and the employees, on the other, could be clearly visualised.
Since the petitioners were appointed on consolidated basis, it does not follow that the provisions of Contract Labour Act are attracted.
Similarly, the decision in the case of Jena (supra) Government of Orissa vide notification dated 9.4.1991 issued under Section 10 of the Contract
Labour Act had abolished employment of contract labour is security services in NALCO. Despite this, respondents had engaged security
personnel through labour contract. It was for this reason that the petition was allowed. Similarly the judgment of High Court of Delhi (supra), is not
relevant because in that case persons were employed through a contractor.
Let us now examine Section 10(1) of the Contract Labour Act. It reads as under :
Prohibition of employment of contract labour. (1) Notwithstanding anything contained in this Act, the appropriate Government may, after
consultation with the Central Board or, as the case may be, a State Board prohibit, by notification in the Official Gazette, employment of contract
labour in any process, operation or other work in any establishment.
So a notification abolishing employment of labour through contractor is a sinequanon for application of the Act. The Govt. of Inida has issued
notification No. S.O.779(E) dated 9.12.1976 abolishing contract labour in the establishments in respect of which the appropriate Government
under the said Act is the Central Government. However, as the petitioners are employed in any such establishment for such service which is
prohibited, the notification dated 9.12.1976 is not applicable. This notification reads as under :
S.O.779(E). In exercise of the power conferred by subsection (1) of Section 10 of the Contract Labour (Regulation & Abolition) Act, 1970 (37
of 1970) the Central Government after consultation with the Central Advisory Contract Labour Board, hereby prohibits employment of contract
labour on and from the Ist March, 1977 for sweeping, cleaning, dusting and watching of buildings owned or occupied by establishments in respect
of which the appropriate Government under the said Act is the Central Government.
Obviously it is not applicable to the State Government or its establishments. The reference to the provisions of the Contract Labour Act was not
called for but since Mr. Raina has raised it, therefore, it has been adverted to. The scope of Section 10 of this Act was analysed by their Lordships
in Air India Statutory Corporation & Ors. v. United Labour Union and Ors., 1997(9) SCC 377, by observing as under :
Section 10 prohibits employment of contract labour with a non obstante clause. The appropriate Government, after consultation with the
Central Advisory Board or, as the case may be, State Board, prohibit, by notification published in the Official Gazette, employment of contract
Labour in any process, operation or other work in any establishment. Before issue of any such notification, the appropriate government is enjoined
to have regard to the conditions of work and benefits provided for the contract labour in the establishment and other relevant factors, such as (a)
whether the process, operation or other work is incidental to, or necessary for the industry, trade business, manufacture or occupation that is
carried on in the establishment; (b) whether it is of perennial nature, that is to say, it is of sufficient duration having regard to the nature of industry,
trade, business, manufacture or occupation carried on in that establishment; (c) whether it is done ordinarily through regular workmen in that
establishment or an establishment similar thereto; and (d) whether it is sufficient to employ considerable number of wholetime workmen.
It is neither a case of industry or trade, business or occupation which is being carried by the respondents in the hospital. The Act, therefore, is
not even distantly applicable and the reference to the judgements made by Mr. Raina is wholly irrelevant.
The next question is what is the right of the petitioners who admittedly were engaged on a consolidated wages for a fixed term, time and again
considered by the Apex Court. In Ram Nayan Shukla v. District Basic Education Officer, 1999 SCC (L&S) 631, the appointment was for a fixed
term, it was extended from time to time as in this case. Their Lordships held that the appointment stood lapsed on expiry of last term and no right
accrued in favour of the appellant to the continued beyond that by observing as under :
The learned counsel appearing for the appellant in this Court urged that since posts were available and the appellant has been given
appointment though on tenure basis for different periods right from 1974, the appellant should have been allowed to continue in the post. We are
unable to persuade ourselves to accept this contention. In view of the fixed tenure appointment of the appellant which stood ousted on the last date
of the tenure indicated in the letter of appointment, that is 30.6.1978 on the terms and conditions of the letter of appointment, no right accrues in
favour of the appellant to be continued in service beyond 30.6.1978. The High Court was, therefore, fully justified in directing that the appellant
would be entitled to salary from 31.5.1978 till 30.6.1978. We see no infirmity with the judgment of the High Court to be interfered with by us in
this appeal.
Moreover, since the petitioners are not holding any civil post, they cannot claim either regularisation or further continuation as they were
appointed only for a fixed term. It is settled law that while a post is an employment, but every employment is not a post. In State of Assam v.
Kanak Chandra Dutta, AIR 1967 SC 884, their Lordships held as under :
In the context of Articles 309, 310 and 311, a post denotes an office. A person who holds a civil post under a State holds ""office"" during the
pleasure of the Governor of the State, except as expressly provided by the Constitution, see Article 310. A post under the State is an office or a
position to which duties in connection with the affairs of the State are attached, an office or a position to which a person is appointed and which
may exist apart from and independently of the holder of the post. Article 310(2) contemplates that a post may be abolished and a person holding a
post may be required to vacate the post, and it emphasised the idea of a post existing apart from the holder of the post. A post may be created
before the appointment or simultaneously with it. A post is an employment, but every employment is not a post. A causal labourer is not the holder
of a post. A post under the State means a post under the administrative control of the State. The State may create or abolish the post and may
regulate the conditions of service of persons appointed to the post.
So the petitioners have no enforceable right in view of their contractual appointment. In this view of the matter there is no substance in this
petition which is dismissed.