Union of India &
Ors. Vs Vartak Labour Union
J U D G M E N T
D.K. JAIN, J.:
in these appeals, by special leave, is to the judgments and orders dated 27th March,
2001 and 22nd January, 2003 delivered by a Division Bench of the Gauhati High
Court at Guwahati in Writ Appeal No. 548 of 1996 whereby it has directed appellant
No.1 viz. Union of India to regularize the services of the members of the
respondent Union, employed by the Border Roads Organization (for short the "BRO"),
as postulated in Office Memo No. Sectt. BRDB ID No. BRDB/04(90)/99- GE-II dated
2nd February, 2001. Appellants No. 2 to 17 are the functionaries of appellant No.
of unnecessary details, the facts essential for adjudication of the present
appeals may be stated as follows: The respondent is a registered trade union comprising
of casual workers employed by the BRO, in terms of paragraph 503 of the Border
Road Regulations (for short "the Regulations"), some of whom have
been working with the BRO for the last thirty years. In the year 1993, the
respondent filed a writ petition before the Gauhati High Court praying for
issuance of a writ, inter-alia, directing appellant No.1 to regularize the
services of the members of the respondent.
judgment dated 27th August, 1996, the High Court allowed the writ petition, and
directed appellant No.1 to regularize the services of the members of the
respondent who have been in service for more than five years, within six months
of the date of order.
aggrieved, appellants filed a writ appeal before a Division Bench of the Gauhati
High Court. The Division Bench, while partly allowing the appeal, modified the order
of the Single Judge on the basis of a circular dated 25th May, 1988 issued by one
Brig. S.K. Mehta, D.D.G. (P&V), for and on behalf of the Director General Border
Roads, New Delhi to all Chief Engineers for consideration of regularization of casually
paid labourers employed by the BRO. The Division Bench held that:
"There shall be
a writ of mandamus issued to the appellant herein with a direction to consider
the case of these employees who are working in the above Organization/Institution
who have put in more than 5 (five) years and above period of service for the
purpose of regularization of their service in the light of the Circular referred
to above keeping in view of the requirements of Articles 14, 15 and 16 for the purpose
of maintaining the reservation Policy followed by the Govt. of India. In so far
as the casual labourers working in the organization/Institution are concerned, they
shall continue to work till they attain the eligibility coming within the
purview of the Circular for being considered.
this juncture, it would be expedient and useful to extract relevant portions of
the said circular, which read as follows:
OF CASUALLY PAID LABOURERS EMPLOYED IN BORDER ROADS ORGANIZATION- CONSTITUTION
OF BOARD OF OFFICERS TO EXAMINE THE PROBLEMS.
a. Border Roads Organisation
has been employing a large number of Casual Labourers for the past 28 years.
There have been cases where Labour Unions have been formed though not recognized
by us, as also there have been demands for their regularization. A large number
of Court cases are also pending, connected with this issue.
b. Ministry of Surface
Transport (BRDB) has offered a Board of Officers to examine various aspects.
The terms of reference of the Board are at appendix `A'.
c. Before the Board examines
the terms of reference as also other connected aspects, certain data is required
from the Projects which is discussed in the succeeding paragraphs.
It may be appreciated
that the recommendations of the Board of Officers have far reaching consequences.
Your views and suggestions are, therefore should be deliberate and keeping in view
the long term implications of the suggestions made. CEs are therefore,
requested to kindly give personal thought to these problems and make their
recommendations accordingly. We would expect your reply by 30 June 88
aggrieved by the directions of the Division Bench, the appellants preferred an
appeal, by special leave, before this Court. Vide order dated 19th February,
1999, this Court, while allowing the appeal and remanding the matter back to
the Division Bench, observed thus: "It appears that there was some bona
fide misunderstanding by learned counsel who appeared before the Division Bench
on behalf of the appellants. Even that apart, the Circular dated 25.05.1988 on which
reliance was placed requires a closer scrutiny of the Division Bench of the High
Court. This was unfortunately not done because of the aforesaid misunderstanding.
Hence, without expressing any opinion on the merits of the controversy between
the parties, we deem it fit in the interest of justice to allow this appeal and
set aside the order of the Division Bench."
the course of fresh hearing of the writ appeal before the Division Bench,
senior Central Government standing counsel appearing on behalf of the
appellants stated that pursuant to circular dated 25th May 1988, the appellants
had framed a scheme vide Office Memo No. Sectt. BRDB ID No. BRDB/04(90)/99-GE-II
dated 2nd February, 2001, for the welfare of casually paid employees. Upon
perusal of the scheme and recording the satisfaction of the counsel appearing
for the respondent-Union, the Court observed that the scheme had been framed on
a rational basis. Accordingly, disposing of the writ appeal on the basis of the
said office memo, the Division Bench directed the appellants to implement the
said office memo dated 2nd February, 2001.
being aggrieved, the appellants preferred a review application before the High
Court. Vide the impugned order, the Division Bench declined to entertain the
the present appeals against the main judgment and the order in review.
have heard learned counsel for parties and perused the documents/circulars
referred to and relied upon by the High Court as also some office notings
produced before us by learned counsel appearing for the appellants.
Vivek Tankha, the learned Additional Solicitor General of India, strenuously
urged that the High Court committed serious error in law in treating communication
dated 2nd February 2001, as a final scheme framed for regularization of the
casual labourers engaged by BRO for a maximum period of 6 months at a time. According
to the learned counsel, it is evident from communication dated 2nd February
2001, that as on that date the Border Roads Development Board was still in the process
of collecting information from other departments of the Central Government, particularly
from the Railways for the purpose of examining if any of such schemes could be adopted
in the BRO.
In support of his
stand that so far no scheme for absorption or regularization of casual labourers
had been devised, learned counsel placed before us some correspondence
exchanged between the Headquarters of the Border Roads Development Board and
the office of the Director General Border Roads, which shows that in view of
the guidelines issued by the DOPT, it has not been possible to frame and
implement any policy or scheme for regularization of muster roll working in BRO.
It was asserted that circular dated 25th May 1988, on which emphasis is laid on
behalf of the respondent, was merely a proposal which has been misconstrued by
the High Court as a scheme.
It was urged that the
proposals or suggestions by the field officers in favour of the respondent
Union did not result in creating any enforceable right in their favour. Placing
reliance on the decision of this Court in Indian Drugs & Pharmaceuticals Ltd.
Vs. Workmen, Indian Drugs & Pharmaceuticals Ltd.1, learned counsel submitted
that formulation of any scheme for regularization being a matter of policy, it is
not within the domain of the court to direct regularization of temporary appointees
in the absence or dehors the recruitment rules.
contra, Dr. K.S. Chauhan, in his written submissions, has submitted that even
if it is assumed that there is no approved proposal or scheme for regularization
of the casual labourers, on the touchstone of Articles 14, 16 and 21 of the Constitution
of India, this Court is empowered to examine whether the action of the
appellants is not opposed to principles of reasonableness evolved by this Court,
as the casual labourers have been working with BRO for the last twenty to thirty
years. It is alleged that the appellants are intentionally withholding the scheme
dated 2nd February 2001 and, therefore, an adverse inference must be drawn 1
(2007) 1 SCC 408 7 against them. In support of his submission that there is clear
discrimination between the members of the Union and the General Reserve Engineering
Force (GREF), who have been declared to be members of the Armed Forces in R.
Viswan & Ors. Vs. Union of India & Ors.2, it is pointed out that the
members of the respondent Union are facilitating the GREF in hard positions and
dangerous locations in hilly areas to perform their functions. It is thus, argued
that the directions issued by the High Court are fully justified and should be
are of the opinion that there is force in the contentions urged on behalf of
the appellants and these must prevail. We are convinced that the Division Bench
has erroneously construed the Office memo dated 2nd February, 2001 as an
approved scheme for absorption and regularization of the casual workers. It is manifest
from a bare reading of the said memo that it was merely in the nature of an inter-department
communication between the Border Roads Development Board headquarters and its
officials. We do not find any substance in the stand of learned counsel for the
respondent that the appellants are withholding the approved scheme from this
This plea of the
respondent that a final scheme did come into existence on 2nd February 2001,
stands belied 2 (1983) 3 SCC 401 8 from the letter of the Border Roads
Development Board dated 22nd July 2002. It would be useful to extract the
relevant portion of the said letter, which reads: "In the year 1993, a Labour
Welfare Scheme i.e. Scheme for Grant of Temporary Status and Regularisation of Casual
Workers was formulated. Thus, when we approached DOPT for approval to the scheme
proposed by DGBP, they did not support our proposal and advised us that if we
felt that there are sufficient grounds to formulate a separate scheme which is at
variance with the scheme of DOPT, we may approach the Cabinet for approval of such
scheme. The Secretariat delved into the issue at length and came to the
conclusion that there is not sufficient justification for going to the Cabinet
for approval of a separate scheme. This decision has already been communicated to
the Dte GBR vide our letter No.BRDB/04(129)/2000-GE.II dated 24th June,
is trite that inter-departmental communications and notings in departmental files
do not have the sanction of law, creating a legally enforceable right. In Sethi
Auto Service Station & Anr. Vs. Delhi Development Authority & Ors.3, a Division
Bench of this Court, in which one of us (D.K. Jain, J.) was a member has
observed thus: "Needless to add that internal notings are not meant for
outside exposure. Notings in the file culminate into an executable order, affecting
the rights of the parties, only when it reaches the final decision-making
authority in the department, gets his approval and the final order is
communicated to the person concerned." 3 (2009) 1 SCC 180
views are echoed in Jasbir Singh Chhabra & Ors. Vs. State of Punjab &
Ors.4. This Court has observed that: "It must always be remembered that in
a democratic polity like ours, the functions of the Government are carried out by
different individuals at different levels. The issues and policy matters which are
required to be decided by the Government are dealt with by several functionaries
some of whom may record notings on the files favouring a particular person or group
of persons. Someone may suggest a particular line of action, which may not be conducive
to public interest and others may suggest adoption of a different mode in larger
public interest. However, the final decision is required to be taken by the designated
authority keeping in view the larger public interest."
are of the opinion that the respondent Union's claim for regularization of its
members merely because they have been working for BRO for a considerable period
of time cannot be granted in light of several decisions of this Court, wherein
it has been consistently held that casual employment terminates when the same is
discontinued, and merely because a temporary or casual worker has been engaged
beyond the period of his employment, he would not be entitled to be absorbed in
regular service or made permanent, if the original appointment was not in terms
of the process envisaged by the relevant rules. (See: Secretary, 4 (2010) 4 SCC
192 10 State of Karnataka & Ors. Vs. Umadevi (3) & Ors.5; Official
Liquidator Vs. Dayanand & Ors.6; State of Karnataka & Ors. Vs. Ganapathi
Chaya Nayak & Ors.7; Union of India & Anr. Vs. Kartick Chandra Mondal
& Anr.; Satya Prakash & Ors. Vs. State of Bihar & Ors.8 and Rameshwar
Dayal Vs. Indian Railway Construction Company Limited & Ors.9.)
Umadevi (3) (supra), a Constitution Bench of this Court had observed that:
"It was then contended
that the rights of the employees thus appointed, under Articles 14 and 16 of the
Constitution, are violated. It is stated that the State has treated the employees
unfairly by employing them on less than minimum wages and extracting work from them
for a pretty long period in comparison with those directly recruited who are
getting more wages or salaries for doing similar work. The employees before us were
engaged on daily wages in the department concerned on a wage that was made
known to them. There is no case that the wage agreed upon was not being paid.
Those who are working
on daily wages formed a class by themselves, they cannot claim that they are discriminated
as against those who have been regularly recruited on the basis of the relevant
rules. No right can be founded on an employment on daily wages to claim that such
employee should be treated on a par with a regularly recruited candidate, and made
permanent in employment, even assuming that the principle could be invoked for claiming
equal wages for equal work.
There is no 5 (2006)
4 SCC 16 (2008) 10 SCC 17 (2010) 3 SCC 1158 (2010) 4 SCC 1799 (2010) 11 SCC 733
fundamental right in those who have been employed on daily wages or temporarily
or on contractual basis, to claim that they have a right to be absorbed in
service. As has been held by this Court, they cannot be said to be holders of a
post, since, a regular appointment could be made only by making appointments consistent
with the requirements of Articles 14 and 16 of the Constitution. The right to
be treated equally with the other employees employed on daily wages, cannot be extended
to a claim for equal treatment with those who were regularly employed. That
would be treating unequals as equals. It cannot also be relied on to claim a right
to be absorbed in service even though they have never been selected in terms of
the relevant recruitment rules. The arguments based on Articles 14 and 16 of
the Constitution are therefore overruled."
the dictum laid down in Umadevi (supra), a three judge Bench in Official
Liquidator (supra) has observed that:
"In State of
Karnataka v. Umadevi (3), the Constitution Bench again considered the question whether
the State can frame scheme for regularisation of the services of ad hoc/temporary/daily
wager appointed in violation of the doctrine of equality or the one appointed
with a clear stipulation that such appointment will not confer any right on the
appointee to seek regularisation or absorption in the regular cadre and whether
the Court can issue mandamus for regularisation or absorption of such appointee
and answered the same in negative."
light of the settled legal position and on a conspectus of the factual scenario
noted above, the impugned directions by the High Court cannot be sustained. These
are set aside accordingly.
parting with the case, we are constrained to observe that the conduct of the
appellants in engaging casual workers for a period of less than six months, and
giving them artificial breaks so as to ensure that they do not become eligible
for permanent status, as evidenced from the additional affidavit dated 23rd April,
2010 does not behove the Union of India and its instrumentalities, which are supposed
to be model employers. With anguish, we extract the relevant paragraph of the said
affidavit: "Relying upon the provisions contained in Paragraph 501 to 518 of
the Regulation, it was contended that the casual labourers are mustered on
daily or monthly basis. If on monthly rates, the period of engagement shall be
for a minimum period of six months.
It is a fact that
large number of casual labourers have worked with Project Vartak for number of
years but their period of engagement at no stage has existed more than six months
at a time. Their services are terminated before completion of six month and as per
requirement they are recruited afresh by publishing Part II order by Mustering
Unit. Due to the fact that they have not been in continuous engagement for more
than six months they do not get the status of permanent employee and
accordingly as per Paragraph 503 of the Regulation referred to above, the
casual personnel are not eligible for any other privileges for continued employment
under the Government." (Emphasis supplied by us)
in the facts and circumstances of the instant case, where members of the
respondent Union have been employed in terms of the Regulations and have been consistently
engaged in service for the past thirty to forty years, of course with short
breaks, we feel, the Union of India would consider enacting an appropriate regulation/scheme
for absorption and regularization of the services of the casual workers engaged
by BRO for execution of its on-going projects.
the final analysis, the appeals are allowed, and the impugned judgments and
orders are set aside. However, in the circumstances of the case, the parties
are left to bear their own costs.
J. (D.K. JAIN)
J. (H.L. DATTU)