Rehabilitation Officer & Ors Vs. Jay Kishore Maity & Ors  Insc 789
(10 November 2006)
Sinha & Dalveer Bhandari
Appeal Nos. 4313-4319 of 2003 S.B. Sinha, J.
of India filed a Scheme for Rehabilitation of the disabled people. The project
started with financial assistance of Central Government/Union of India. The full financial assistance was
extended till 1993, whereafter only 50% of financial assistance was provided
for by the Central Government. The Union of India, however, took up the entire
financial burden for the project with effect from 31.1.1998.
projects were started under which centres were established in several States of
the country with a view to identify the services required by the disabled
population, to assist the man power required for delivering those services to
them or to work out the modalities for the types of man power etc. One of such centres
was established in Kharagpur in the State of West Bengal and another in the district of Mysore in the State of Karnataka.
the purpose of execution of the said projects, a Project Coordination Committee
was constituted. A set of detailed guidelines were circulated.
Project Coordinator would be the main agency to implement the Project and would
function through Member Secretary of the State Level Advisory Committee. The
Scheme dated 3.1.1983 was circulated with the concerned State Governments by
the Joint Secretary of the Union of India. The total package of services for
the disabled starting with awareness in the community and ending with their
economic rehabilitation was to contain with the following elements:-
Creation of community awareness about the disabled population in order to seek
community participation in the measures for the welfare of the disabled.
parent counseling about the home care and management of the disabled child.
dissemination of information on prevention, early detection and possibilities
of treatment of the disabled.
for screening of disabilities and early referrals.
for physical rehabilitation including medical or surgical intervention.
of disabled children in normal schools schedule and establishment or special
schools wherever necessary.
of vocational training for the disabled.
guidance and placement services both in integrated as well as sheltered
conditions of the disabled."
of employees found suitable for recruitment for the project were: (i) Community
Health Workers; and (2) Anganwari Workers.
Scheme envisaged that the Pilot Scheme with the infrastructure provided should
be utilized by the State Governments with an intent to continue the project.
The infrastructures created for these pilot projects was expected to prove to
be useful for training the required manpower for future pilot projects and
similar centres which the State Governments may like to establish. The Project
Coordinators of the Rehabilitation Centres were the officers of the State
Governments of States of West Bengal and Karnataka.
selected the employees for the said Rehabilitation Centres. The employees were
offered a salary of Rs. 660/- in the scale of Rs.660-60-1100- 50-5600.
Indisputably they have been working for a long time. Initially as noticed
hereinbefore, although funds were provided by an outside agency, the same have
been taken over by the Central Government. Terms and conditions of service of
the employees appointed were governed by the rules applicable to the employees of
the State Governments. The pay-scales applicable to employees of the State
Government were also applied to their case. The employees, however, filed
Original Applications before the Central Administrative Tribunal, Calcutta as also Karnataka at Bangalore, inter alia, contending that they
being the employees of the Central Government, the terms and conditions of
services applicable to the Central Government should apply in their case also.
A preliminary objection was taken as regards of the jurisdiction of the
Tribunal on the premise that the applicants were the employees of the State
Governments. By a judgment and order dated 14.7.2000, the Tribunal held:-
"12...So we are, therefore, of the clear opinion that applicants were
appointed by the Project Officer for and on behalf of the Central Government
and the Central Government had direct control over the DRC and fund is being
provided by Central Government and we are satisfied from facts that the prima
facie it is for determination of the relationship between the employer and the
employee which is in existence in this case;
Government is employer of the applicants and the employees are entitled to
claim to be employees of the Central Government. In view of the aforesaid
circumstances, we find that there cannot be any dispute in this case that the
Tribunal has no jurisdiction to adjudicate the grievance of the applicants who
were directly appointed and being controlled by the Central Government. It is
true that the aforesaid applicants are getting the pay and allowances as per
rate prescribed by the Govt. of West Bengal. It is found that the scale
prescribed by the government of West Bengal has been adopted by the concerned authorities under the scheme.
were adoption of the scale of the State Government does not disentitle the
applicants the right of status of the Central Government employees under the
view of the aforesaid circumstances we are of the view that the applicants are
the employees of the Central Government though their salary is being paid as
per scale of the State Government. Under the circumstances stated above, we
allow the application with a direction upon the respondents to treat the
aforesaid applicants as employees of the Central Government and to grant the
relief's to the applicants in accordance with the rules in respect of salary,
provident fund etc. with immediate effect. No cost." A writ petition filed
thereagainst by Appellants herein has been dismissed by a Division Bench of the
Calcutta High Court by reason of the impugned order. The Division Bench
although noticed the pleadings of the parties as also the submissions made at
the bar at great details, but merely held:- "We have carefully considered
the submissions made on behalf of the respective parties and we are inclined to
agree with the findings of the learned Tribunal regarding the status of the
private respondents herein. The Scheme for setting up the Pilot Projects for
the District Rehabilitation Centres amply demonstrate that the same was a
Scheme of the Ministry of Social Welfare, Government of India, and the State
Government was merely the implementing agency through its officers of the
Social Welfare Directorate. The entire funding and recruitment process and the
manner of functioning, as provided for in the Scheme, is under the direct
control of the Central Government, and even the State Level Advisory Committee,
which was to be chaired by the Secretary of the Social Welfare Department, was
required to send periodical reports of the functioning of the District
Rehabilitation Centre to the Central Government." Mr. Doabia, the learned
Senior Counsel appearing on behalf of Appellant, inter alia, contended that
keeping in view the scheme floated by the Central Government, the manner in
which the funds were secured and implementation of the scheme that took place,
it is evident that Respondents were the employees of the State of West Bengal
and State of Karnataka respectively. It was submitted that in any event as the
project has been wound up from 1st April, 2006
and no budgetary provisions therefor having been made for payment of salaries
to the employees, this Court should pass an appropriate order. It was urged
that the Central Administrative Tribunal as also the High Court applied wrong
tests in determining the relationship of `Employer and Employee and failed to
consider that effective control over the employees was with the State
Governments and not the Central Government. Mr. Doabia has also pointed out
that some of the State Governments e.g. State of Chhattisgarh, Rajasthan and Tamil Nadu have taken similar projects on
Gupta and Mr. P. Vishwanath Shetty, learned Senior Counsel appearing on behalf
of the State of West
Bengal and State of Karnataka, on the other hand, supported the
moreover, appealed that having regard to the number of years Respondents had
served in the projects, the Scheme should either be directed to be continued or
the employees be directed to be absorbed either by the Central Government or by
the State Governments of West Bengal Karnataka, as the case may be.
order dated 13.9.2006, we recorded as under:- "A statement has been made
by Mr. T.S. Doabia, learned senior counsel appearing on behalf of the Union
that the Central Government has stopped releasing any fund from 1.4.2006. On a
query made by us in that behalf it was stated at the Bar that so far as the
employees of the State of West Bengal are concerned, they have been paid salary
up to July 2006 and so far as the employees working in the State of Karnataka
are concerned, they have been paid their salary up to August 2006. We have been
given to understand that the salary to the respondents herein could be
disbursed by the Council only from the excess fund available with it from the
last years' budget and the amount now stands exhausted in view of stoppage of
the grant by the Central Government.
direct the State of Karnataka as also the State of West Bengal to state on oath as to whether they
would like to continue with the projects in lieu of the scheme as has been done
by the States of Chhattisgarh, Rajasthan and Tamil Nadu. Learned counsel for
the Central Government shall hand over a copy of the project adopted by the
State of Tamil Nadu, Rajasthan or Chhattisgarh, as the case may be, to Mr. Tapash
Ray, learned senior counsel appearing on behalf of the State of West Bengal and
Mr. Sanjay Hegde, learned counsel appearing on behalf of the State of Karnataka
so as to enable them to seek instructions as to whether their States are
prepared to continue with the said projects on the terms adopted by the said
would also direct the Government of India to file an affidavit as to what
steps, if any, are feasible to be taken by it for continuation of the project
at least for some time more so that solution of the problem may be found out by
this Court in the meanwhile in the event the States express their inability to
continue with the existing project. We also direct the respondents to file
affidavit(s) stating as to whether they are ready and willing to serve other
projects run by the Central Government, in the event the Government of West
Bengal and Government on the other are not ready and willing to continue with
directors of Social Welfare Department of the State of West Bengal as also the State of Karnataka would also file a status report as
regards the project by 26.9.2006." Pursuant to the said direction, the
Director of Social Welfare as also the Secretaries of the Social Welfare
Departments of the States of West Bengal and Karnataka have filed their
respective status reports. According to the respective State Governments, they
are not in a position to take over the project. It was urged that the State
Governments run other projects and also provide adequate funds to
Non-Governmental Organisations which have been working in the field and the
projects should, thus, be directed to be continued by the Central Government
counter-affidavit, the State of West Bengal, inter alia, contended that the Central Government has been
running four other projects in the District of Midnapore. The State Governments
has other projects for which budgetary provisions to the extent of Rs. 6 crores
per annum have been made and thus in view of the acute financial constraints,
continuation of the projects like the present one would not serve any purpose.
An affidavit has also been filed by the State of Karnataka almost to the same effect.
Parliament enacted the Persons with Disabilities (Equal Opportunities,
Protection of Rights and Full Participation) Act, 1995. The Act was enacted to
give effect to the proclamation on the full participation and equality of
people with disabilities on both Central and State Governments. Implementation
of its provisions is the primary responsibility of the State Governments. The
projects were started at different centres in different States by the Central
Governments by way of a Scheme. The funds for the said projects initially came
from the Central Government. The purpose of a pilot project has been noticed by
us hereinbefore. The control of the Rehabilitation Centres for the benefit of
the people for whom the same were started was with the concerned State
employees do not become the employees of the Central Government only because
the project was conceived by it or it used to give directions from time to
time. The tests which are determinative for ascertaining the relationship of
`Employer and Employee' are well known viz. functional test or control test or organisational
test etc. For determination of relationship of the employer and the employees,
separate tests may have to be applied having regard to the factual matrix
involved in each case. The parties did not adduce any oral evidence before the
Central Administrative Tribunal. The Central Administrative Tribunal although
referred to some of the decisions of this Court, but without applying them,
opined that Respondents are the employees of the Central Government. No reason
has been assigned therefor. No analysis of the available materials was made.
question has been considered by this Court in Workmen of Nilgiri Coop. Mkt.
Society v. State of T.N. and Others [(2004) 3 SCC 514], wherein it has been
held:- "Determination of the vexed questions as to whether a contract is a
contract of service or contract for service and whether the employees concerned
are employees of the contractors has never been an easy task. No decision of
this Court has laid down any hard and fast rule nor is it possible to do so.
The question in each case has to be answered having regard to the fact involved
therein. No single test be it control test, be it organization or any other
test has been held to be the determinative factor for determining the jural
relationship of employer and employee." [See also Haldia Refinery Canteen
Employees Union and Others v. Indian Oil Corporation Ltd. and Others 2005 (5)
State of Karnataka and Others v. KGSD Canteen Empoyees' Welfare Assn. and
Others [(2006) 1 SCC 567], this Court held:- "We, however, intend to point
out that in a case of this nature even an industrial adjudicator may have some
difficulty in coming to the conclusion that employees of a canteen for all
intent and purport are employees of the principal employer." We,
therefore, with respect, are unable to agree with the findings of the Central
Administrative Tribunal as also the Division Bench of the High Court.
question has arisen as to whether the employees are the employees of the State
of West Bengal or the District Rehabilitation Centres.
In view of the order proposed to be passed by us, it may not be adverted to at
this state as we are of the opinion that the projects should be continued by
the State of West
Bengal and the State
of Karnataka as the case may be. Even if the
States think it fit to close down the project, the services of the employees
working in the rehabilitation centres should be continued.
case of this nature, however, we think it expedient to invoke our jurisdiction
under Article 142 of the Constitution of India. The Central Government has
categorically stated that those employees who would opt for employment under
the Central Government may be accommodated in its ongoing projects. Pursuant
thereto or in furtherance thereof, the concerned employees who have affirmed
affidavits showing inclination to serve any project under the Central
Government, may be absorbed by it. Services of those employees may be utilized
by the Central Government in any of its project. They would, however, be continued
to be paid salaries on the same scale of pay. Their experience may also be
considered for the purpose of determination of their seniority, subject of
course to any rule which is in operation in the field. All other financial
benefits including those of superannuatory benefits should be protected. It is,
however, clarified that such employment under the Central Government would be
temporary and personal posts which would come to an end with the retirement of
the concerned employees.
those Respondents who have opted for their employment with the State of West Bengal or the State of Karnataka, as the case may be would be
absorbed by the States of West Bengal and Karnataka, as the case may be, on the
same terms and conditions as referred to hereinbefore.
in view the nature of order passed by us, it is clarified that the same shall
not be treated as a precedent. We also make it clear that these orders have
been passed by us keeping the stand taken by the parties. These appeals are
disposed of with the aforementioned directions. There shall be no order as to