Pinaki Chatterjee
& Ors. Vs. Union of India & Ors. [2009] INSC 669 (31 March 2009)
Judgment
IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 2053 OF 2009 (Arising
out of SLP (C) No.12687 of 2003) Pinaki Chatterjee & Ors. ... Appellants
Versus Central Administrative Tribunal & Ors. ... Respondents
S.B. Sinha, J.
1.
Leave
granted.
2.
The
right of the appellants herein, if any, to be regularized in Class `C' Services
of the Railways is the question involved in this appeal which arises out of a
judgment and order of the High Court of Jharkhand at Ranchi whereby and
whereunder the writ petition filed by the appellants against the order of the
Central Administrative Tribunal, Patna Bench, Circuit Ranchi passed in OA No.604
of 1997 and OA No.398 of 1998, was dismissed.
3.
Appellants
were directly appointed in Group `C' posts except serial No.5 in the Electrical
Department of the Railway Electrification Project. As despite working for a
long time, their services were not regularized, they filed two original
applications before the Central Administrative Tribunal, Patna, Circuit Bench,
Ranchi, praying, inter alia, for a direction upon the respondents to finalise
their regular absorption in the services in grade `C' posts against the
sanctioned strength which were marked as OA Nos.604 of 1997 and OA No.398 of
1998. By reason of a judgment and order dated 5.7.2001, the said original
applications were allowed, in part, directing :
"In the result,
the applicants' claim to be regularized in Group `C' post as asserted in the
OAs in hand is not acceptable, instead they were required to be regularized in
feeder cadre in Group-`D' post by providing pay protection of `C' post."
4.
Appellants
aggrieved thereby filed a writ petition in the High Court of Jharkhand at
Ranchi. The said writ petition has been dismissed by reason of the impugned
judgment, stating :
"No doubt, the
petitioners were casually employed in Grade-C initially and thereafter they
acquired temporary status, but the fact remains, and the finding of the fact by
the Tribunal is, that the selections of the petitioners were not regular
selections. It is, no doubt, true that they had taken a trade test when they
were recruited, though casually in Grade-C. But that would not make their
selection regular selection. In our view, the ratio of the decision of the
Supreme Court that in such promotional posts, there should not be
regularization and the regularization could only be in the lower grade, is
clearly applicable to the case on hand. We are satisfied that the Tribunal has
correctly come to the conclusion that the petitioners in the case on hand could
be regularized only in Group-D posts, though protecting their pay and not in
Grade-C posts. On going through the order of the Tribunal, we are not satisfied
that it suffers from any error apparent on the face of the record justifying
our interference.
Nor can we accept the
argument that the decision is unjust since the pay of the petitioners stood
protected, notwithstanding the fact that they are sought to be regularized in a
lower post. In this situation, we see no reason to interfere."
5.
Mr.
Sanyal, learned senior counsel in appearing support of the appeal, would
contend that keeping in view the facts and circumstances of the case the
services of the appellants should have been directed to be regularized in 4
Group `C' posts as they were appointed directly thereto. It was urged that the
Tribunal and consequently, the High Court committed a serious error in opining
that the posts in Group `C' in the Central Government were required to be
filled up only through promotion and not through direct recruitment. The
learned counsel would also contend that from a letter dated 25.8.1997, which
was issued by way of a representation made by the appellants to the General
Manager, Central Organisation, Railway Electrification, Allahabad, it would
appear that they had, except one, were directly appointed in the posts of
T.C.M. Electrician Fitter, W/Driver Grade `C' posts.
Learned counsel would
contend that it is also not a case where the appellants do not possess the
requisite qualification. They had also passed the trade test. It was
furthermore urged that the Patna High Court in a similar situation having
granted relief, the Jharkhand High Court committed a serious error in refusing
to grant the same.
6.
Mrs.
K. Amareswari, learned senior counsel appearing on behalf of the respondents,
on the other hand, supported the impugned judgment.
7.
Indisputably,
the vacant posts in the Railway Services are required to be filled up in terms
of the Recruitment Rules. Respondents in their counter affidavit, stated :
"In reply to
this para, it is submitted that the 50% Direct Recruitment quota meant for the
post of permanent way Mistry 25% vacancies has been earmarked to be filled up
through limited departmental Competitive Examination from amongst Gang Man/Key
Man and Mates with the qualification of 10+2 with science & maths and
having put minimum of 3 years regular service shortfall of any be made good
from amongst Gangman/Keyman/Mates having the qualification of
matriculation/HSLC with three years regular service. Further, shortfall, if
any, to be added upto the direct recruitment."
8.
Appellants,
indisputably, were appointed as daily rated casual labourers for project work.
The said project having been undertaken for electrification of Railways at
Ranchi was a time bound one. It did not have its own cadre. Engagement of any
casual labour under the said project, therefore, did not amount to any regular
recruitment. It may be that the Railway Administration had committed serious
illegalities in making recruitment directly to the said posts, the same by
itself would not confer any right upon the appellants for being regularized in
Group `C' post.
6 The question,
however, which arises for consideration is as to whether in the peculiar facts
and circumstances of this case, the High Court should have directed
regularization of the services of the appellants.
It has not been
denied or disputed that Railway Electrification was a temporary project. As
noticed hereinbefore, the posts held by the appellants, indisputably, were
purely on a casual basis and not against any cadre post.
Appellants
furthermore have not been appointed upon compliance of the provisions of
Articles 14 and 16 of the Constitution of India and/or the recruitment rules
framed under the proviso appended to Article 309 of the Constitution of India.
Our attention has
been drawn to a Board circular dated 11.5.1973 wherein, inter alia, it was laid
down :
"(2) When casual
labour are engaged in skilled categories, the relevant scale for the purpose of
determining their ages (as per orders regulating wages of Casual labour) will
be that applicable to skilled artisans. On attaining temporary status they
shall be paid in that scale. Similarly for Project Casual Labour is skilled
categories with 180 days continuous service, consolidated wage shall be at the
minimum of the scale of pay applicable to artisans plus DA payment on this
basis will be admissible, however, from the date of 7 passing prescribed trade
test if the same is later than the date of attaining temporary status or date
of completion of 180 days, as the case may be from whichever date is later. No
casual labour in skilled category can be engaged without the approval of an
authority lower than a Divisional Engineer.
(Board's
No.E(NG)II/84/CL 58 of 20.12.85) Note:- Past cases decided otherwise than in
term of the letters dated 20.12.1985 cited above or in terms of final orders of
a court of competent jurisdiction, shall not be re-opened. Where, however, a
person was continuing as a casual labour in a skilled category on 20.12.1985
(date of issue of the said letter) his case will be regulated prospectively in
terms of the provisions of the said letter (dated 20.12.1985).
(3). Casual labour
engaged in work charged establishment of certain Departments who get promoted
to semi-skilled, skilled and highly skilled categories due to non-availability
of regular departmental candidates and continue to work as casual employees for
a long period, can straightway be absorbed in regular vacancies in skilled
grades provided they have passed the requisite trade test, to the extent of 25%
of the vacancies reserved for departmental promotion from the unskilled and
semi-skilled categories.
These orders also
apply to the casual labour when are recruited directly in the skilled
categories in work charged establishments after qualifying in the trade
test."
9.
The
said circular letter of the Railway Board which had been issued long back,
however, did not take into consideration the limitation of power of a State to
make appointments in total disregard of mandatory provisions of the recruitment
rules and/or the constitutional provision.
This aspect of the
matter has been considered in A. Umarani v. Registrar, Cooperative Societies
& Ors. [(2004) 7 SCC 112], holding :
"No
regularization is, thus, permissible in exercise of the statutory power
conferred under Article 162 of the Constitution if the appointments have been
made in contravention of the statutory rules."
Yet again in a
Constitution Bench of this Court in Secretary, State of Karnataka v. Umadevi
(3) [(2006) 4 SCC 1], laid down the law in the following terms :
"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 9 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, regularisation, or permanent continuance unless the recruitment
itself was made regularly and in terms of the constitutional scheme."
(Emphasis supplied)
Furthermore, the appellants have not produced their offers of appointment. If
they were appointed only for the project work and that too in ex-cadre posts,
the same would never mean that they had appointed on a regular basis. It has
not been shown that temporary status either had been or could be granted to the
appellants.
10.
We
are not oblivious of the fact that some Benches had taken a somewhat contrary
view but recently in a Three Judge Bench decision of 10 this Court in Official
Liquidator v. Dayanand & Ors. [(2008) 10 SCC 1], stated the law, thus :
"90. We are
distressed to note that despite several pronouncements on the subject, there is
substantial increase in the number of cases involving violation of the basics
of judicial discipline. The learned Single Judges and Benches of the High
Courts refuse to follow and accept the verdict and law laid down by coordinate
and even larger Benches by citing minor difference in the facts as the ground
for doing so. Therefore, it has become necessary to reiterate that disrespect
to constitutional ethos and breach of discipline have grave impact on the
credibility of judicial institution and encourages chance litigation. It must
be remembered that predictability and certainty is an important hallmark of
judicial jurisprudence developed in this country in last six decades and
increase in the frequency of conflicting judgments of the superior judiciary
will do incalculable harm to the system inasmuch as the courts at the grass
root will not be able to decide as to which of the judgment lay down the
correct law and which one should be followed.
91. We may add that
in our constitutional set up every citizen is under a duty to abide by the
Constitution and respect its ideals and institutions.
Those who have been
entrusted with the task of administering the system and operating various
constituents of the State and who take oath to act in accordance with the
Constitution and uphold the same, have to set an example by exhibiting total
commitment to the Constitutional ideals. This principle is required to be
observed with greater rigour by the members of judicial fraternity who have
been bestowed with the power to adjudicate upon important constitutional and
legal issues and 11 protect and preserve rights of the individuals and society
as a whole. Discipline is sine qua non for effective and efficient functioning
of the judicial system. If the Courts command others to act in accordance with
the provisions of the Constitution and rule of law, it is not possible to
countenance violation of the constitutional principle by those who are required
to lay down the law."
11.
In
the facts and circumstances of this case, as noticed hereinbefore, in our
opinion, the decision of this Court in Union of India v. Moti Lal [(1996) 7 SCC
481] would be applicable wherein regularization on a promotable post has been
held to be impermissible in law, stating :
"9. So far as
the first question is concerned, on examining the relevant provisions of the
rules as well as the administrative instructions issued by the Railway
authorities we are of the considered opinion that it is not permissible to
appoint a person directly as a mate and it is only a promotional post from
Class IV post of gangman and keyman. These gangmen and keymen can be promoted
to the post of mate in Class III subject to their suitability and efficiency
being tested through trade test. It is no doubt true that these respondents
under certain circumstances had been appointed directly as casual mates and they
continued as such and further by virtue of their continuance they acquired
temporary status but that by itself does not entitle them to be regularised as
mates since that would be contrary to the rules in force. In our considered
opinion the respondents did not acquire a right for regularisation as mates
from mere fact of their continuance as casual mates for a considerable
period."
12.
For
the reasons aforementioned, there is no merit in the appeal. The same is
dismissed accordingly. No costs.
.....................................J.
[S.B. Sinha]
.....................................J.
[Dr. Mukundakam Sharma]
New
Delhi;
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