10 Oct 2021 5:07 AM GMT
The Supreme Court observed that part-time temporary employees in a Government-run institution cannot claim parity in salary with regular employees of the Government on the principle of equal pay for equal work. The bench of Justices MR Shah and AS Bopanna in the present matter was dealing with an appeal filed by the Centre assailing order passed by the Punjab and Haryana...
The Supreme Court observed that part-time temporary employees in a Government-run institution cannot claim parity in salary with regular employees of the Government on the principle of equal pay for equal work.
The bench of Justices MR Shah and AS Bopanna in the present matter was dealing with an appeal filed by the Centre assailing order passed by the Punjab and Haryana High Court wherein the Court had directed the Centre to revisit the whole issue related to regularisation policy, complete the exercise to reformulate their regularization/absorption policy and take a decision to sanction the posts in a phased manner.
Bench while setting aside the High Court's judgement observed:
"Thus, as per the law laid down by this Court in the aforesaid decisions, part-time employees are not entitled to seek regularization as they are not working against any sanctioned post and there cannot be any permanent continuance of part-time temporary employees as held. The regularization can be only as per the regularization policy declared by the State/Government and nobody can claim the regularization as a matter of right dehors the regularization policy."
Respondents (working as contingent paid part-time Sweepers ) approached the Central Administrative Tribunal ("CAT") seeking directions to frame a regularization/absorption policy for regularization of their service.
The Tribunal on November 19, 1989, granted temporary status.
Opposing the OA, the department argued that the applicants were contingent paid Safaiwalas working for less than five hours and, therefore, were not entitled for temporary status. It was also averred that there was no regular sanctioned post of Safaiwala in that particular Post Office in Chandigarh.
The Ministry of Personnel, Public Grievances & Pensions (DoPT), Government of India on December 11, 2006, issued an OM declaring regularisation of qualified workers appointed against sanctioned posts in an irregular manner.
The Department also framed a regularisation policy as per which Union of India, the State Governments and their instrumentalities were directed to take steps to regularize as a one-time measure the services of such irregularly appointed, qualified persons, in terms of the statutory requirement of the Rules for the posts, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals.
On January 17, 2007, CAT while dismissing the respondent's application observed that since the Department needed the continuous service of Safaiwalas, they should advertise this post to appoint regular Safaiwala through the proper process of selection positively within three months. The tribunal also directed for considering the respondents for such selection after providing age relaxation to them under the relevant rules keeping in view they working for so many years without interruption. Directions were also issued to allow the Respondents to continue performing their duties with present status as part-time.
Case Before High Court
The High Court directed the Centre to revisit the whole issue, complete the exercise to reformulate their regularization/absorption policy and take a decision to sanction the posts in a phased manner. Directions were also issued to Union for allowing the employees to continue in service with their current status till framing of the policy and to grant minimum basic pay of Group 'D' posts from a particular date to those, who have completed 20 years of part-time daily wage service
Aggrieved, the Centre approached the Top Court.
Appearing for the Union, ASG Madhvi Divan submitted that the directions issued by the High Court to sanction the posts could be said to be a policy decision, and, therefore, the High Court was not justified in issuing the Mandamus and/or direction to create and sanction the posts.
Emphasising on the fact that even the High Court had observed that there were no sanctioned posts in the impugned judgement, ASG submitted that High Court, in the exercise of jurisdiction under Article 226 of the Constitution of India, should not ordinarily issue direction for absorption, regularization or permanent continuance unless the recruitment was itself done regularly and in terms of the constitutional scheme.
Relying on the judgements in Union of India and Ors. Vs. A.S. Pillai and Ors., (2010) 13 SCC 448; State of Rajasthan and Ors. Vs. Daya Lal and Ors., (2011) 2 SCC 429 and Secretary, Ministry of Communications and Ors. Vs. Sakkubai and Anr. (1997) 11 SCC 224, ASG submitted that services of a part-time worker working on the post of a full-time worker cannot be regularized.
Referring to Dr. Ashwani Kumar Vs. Union of India and Anr., (2020) 13 SCC 581; State of Karnataka and Anr. Vs. Dr. Praveen Bhai Thogadia, (2004) 4 SCC 684; Anuradha Bhasin Vs. Union of India and Ors., (2020) 3 SCC 637; Oil and Natural Gas Corporation Vs. Krishan Gopal & Ors., (2020) SCC Online SC 150; State of Maharashtra & Anr. Vs. R.S. Bhonde & Ors., (2005) 6 SCC 751, ASG submitted that judicial review, a Court had no right to direct the Government to review the policy of appointment; in judicial review, the Court could not interfere in the administrative matters and that in the absence of a regular sanctioned post, the Court could not direct to create one.
Appearing for the respondents, Advocate Rahul Gupta on merits relied on the Top Court's judgement in Secretary, State of Karnataka & Ors. Vs. Umadevi (3) and Ors., (2006) 4 SCC 1 and Mineral Exploration Corpn. Employees' Union Vs. Mineral Exploration Corpn. Ltd. and Anr., (2006) 6 SCC 310.
Supreme Court's Analysis
Considering that the respondents served as part-time employees, were contingent paid staff and that there were no sanctioned posts in the Post Office where respondents were working, the bench in the judgement authored by Justice MR Shah observed that the High Court, under Article 226 of the Constitution cannot direct the Government and/or the Department to formulate a particular regularization policy.
"As observed above, there are no sanctioned posts in the Post Office in which the respondents were working, therefore, the directions issued by the High Court in the impugned judgment and order are not permissible in the judicial review under Article 226 of the Constitution. The High Court cannot, in the exercise of the power under Article 226, issue a Mandamus to direct the Department to sanction and create the posts. The High Court, in exercise of the powers under Article 226 of the Constitution, also cannot direct the Government and/or the Department to formulate a particular regularization policy. Framing of any scheme is no function of the Court and is the sole prerogative of the Government. Even the creation and/or sanction of the posts is also the sole prerogative of the Government and the High Court, in the exercise of the power under Article 226 of the Constitution, cannot issue Mandamus and/or direct to create and sanction the posts," Court said.
"Even the regularization policy to regularize the services of the employees working on the temporary status and/or casual labourers is a policy decision and in judicial review the Court cannot issue Mandamus and/or issue mandatory directions to do so," Bench further added.
Noting that the Union of India/Department subsequently came out with a regularization policy dated 30.06.2014, which was absolutely in consonance with the law laid down by this Court in the case of Umadevi (supra), which did not apply to the part-time workers who did not work on the sanctioned post, the bench said that,
"In absence of any sanctioned post and considering the fact that the respondents were serving as a contingent paid part-time Safai Karamcharies, even otherwise, they were not entitled for the benefit of regularization under the regularization policy dated June 30, 2014."
Case Title: Union of India and Ors v Ilmo Devi and Anr| Civil Appeal No 5689 of 2021
Coram: Justices MR Shah and AS Bopanna
Citation : LL 2021 SC 561
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