1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR :: 1. S.B. Civil Writ Petition No.3013/2008 Jetha Ram Deora vs ITI Ltd., & Ors. and 2. S.B. Civil Writ Petition No.3014/2008 Shambhu Nath Trigun vs ITI Ltd., & Ors. and 3. S.B. Civil Writ Petition No.3015/2008 Jagdish Sharma vs ITI Ltd., & Ors. UNDER ARTICLE 226 OF THE CONSTITITION OF INDIA Date of Order: 19th August, 2010 PERSENT HON'BLE MR. PRAKASH TATIA,J. REPORTABLE Mr.AK Rajvanshy, for the petitioners. Mr.NS Acharya, for the respondents. <><><> BY THE COURT: - Heard learned counsel for the parties. These writ petitioners are appointees of the year 1986 to 1990 on different posts and are seeking regularization of their services on regular pay scale on the posts which they are holding. The petitioners also sought relief that no other 2 persons be given appointment on the posts which the petitioners are holding. The petitioners also submitted that the persons who have been appointed after petitioners are getting more salary than the petitioners, therefore, they are entitled to equal pay for equal work, which is being discharged by the similarly situated persons. The facts of the writ petition no.3014/2008 will serve the purpose for deciding these writ petitions as all the employees of these writ petitions are admittedly appointed on daily wages and working since 1987 and since 1990. Learned counsel for the petitioners relied upon the judgment of this court delivered in SBCWP No.5002/2004- Ganpat Lal Prajapat Vs. ITI Ltd. & Ors (same respondents) and connected writ petitions decided by the coordinate bench of this court vide judgment dated 10.9.2008 whereby the writ petitions were allowed and the respondents were directed to consider the case of the petitioners in the light of the direction issued by the Hon'ble Supreme Court in the case of State of Karnataka Vs. Smt. Uma Devi for regularization on the post of Technician and to grant regular pay scale of the posts to the petitioners. It is not in dsipute that the judgment dated 10.9.2008 delivered in the case of Ganpat Lal Parjapat (supra) is pending consideration before the Division Bench of this Court in DB Special Appeal preferred by the respondents,but as stated there is no stay against the judgment dated 10.9.2008. Learned counsel for 3 the petitioners also relied upon the judgment of the Hon'ble Supreme Court delivered in the case of Harjinder Singh Vs. Punjab State Warehousing Corporation reported in 2010 AIR SCW 1357 wherein it has been held that the employees are entitled to dignified life. The main argument of learned counsel for the petitioner is the same as has been advanced in the idential writ petitions decided by this court in Ganpat Lal Parajapat's case whereas learned counsel for the respondent vehemently submitted that the learned Single Judge of this Court in Ganpat Lal Parajapat's case did not consider the judgments of this court as well as the subsequent judgment of the Hon'ble Supreme Court in correct perspective wherein the ratio laid down by the Hon'ble Supreme Court in Uma Devi's case has been explained. The respondents in reply submitted that petitioners were appointed on temporary contract basis for a fixed period for the project work undertaken by the respondents during installation and commissioning of communication network for Army on a fixed monthly wages. However, the term of service was extended time to time because the project work was continued for a long period, but yet the appointment of the petitioner remained of temporary nature for a specific work and the life of such project was conterminous with the completion of work. According to learned counsel for the respondents, petitioners again offered fresh appointment 4 vide offer letter dated 10.1.1997 and that too was of temporary nature and petitioners accepted that offer. In substance, again given appointment was also of temporary nature. To meet with the contention of the petitioners that PF was deducted from the petitioners, it is submitted that it is admitted, but according to the respondents that will not confer any right or status of permanent employee. It is also submitted by the respondents in the reply that the domestic telecom scenario changed drastically and 18,000 employees of the company working in all branches of the company were rendered surplus. The company introduced VRS scheme from 1991 and down raised its man power by 13744 employees till date. The respondents also suffered huge losses and now the respondent-company has been declared as sick company by BIFR in Dec., 2004. The accumulated loss of the company as on 30.9.2008 is Rs.2863 crores, therefore, the financial condition of the company is precarious. The respondents specifically took the following pleas: - (i)The petitioner was not appointed under any statutory Rules. (ii)No duly sanction post exist. (iii)No any advertisement was issued for their appointment. (iv)No any pay scale was published. (v)The petitioner was appointed against a project work, which has already been completed and has been handed over to Nation. (vi)At present also they are working on contract basis 5 for fix salary on maintenance work. Their nature of work is purely temporary basis, which come to an end as soon as the contract with the answering respondent is over.” Then the respondents relied upon the judgment of the Hon'ble Supreme Court in support of their plea that since the petitioners were appointed not in terms of any statutory rules and their services were taken by officers only to meet the exigencies of situation and vacancies were not sanctioned or notified and regularization is not the mode of appointment. If any recruitment is made by way of regularization, the same would mean a back door appointment, which does not have legal sanction and further it has been contended that where the project is completed and closed due to non-availability of the funds, the employees have to go along with its closure and the High Court has no right in giving the direction to regularize them or to continue them in other places. It is submitted that no vested right is created in temporary employment and, therefore, direction cannot be given to regularize such employees' services in absence of any existing vacancies nor direction can be given to State to create posts in a non- existent establishment. Learned counsel for the respondent tried to distinguish the judgment of this court though delivered against the respondents itself and by which cases of similar employees were decided and submitted that the coordinate bench (i.e., 6 this bench) may take a different view than the view taken by the coordinate bench in view of the subsequent and even earlier judgments of the Hon'ble Supreme Court taking a view supporting the contentions raised by the respondents as mentioned above. Learned counsel for the respondents further reliedupon the judgments of the Hon'ble Supreme Court delivered in the case of [i] Principal, Mehar Chand Polytechnic & Anr. Vs. Anu Lamba & Ors reported in (2006) 7 SCC 161, [ii] State of MP & Ors Vs. Yogesh Chandra Dubey & Ors (2006) 8 SCC 67, [iii] Punjab Water Supply & Sewerage Board Vs. Ranjodh Singh & Ors (2007) 2 SCC 491 and [iv] State of UP & Ors Vs. Desh Raj (2007) 1 SCC 257 and learned counsel for the respondents also vehemently submitted that the writ petitioners of writ petitions nos. 3013/2008 and 3014/2008 withdrew the writ petitions with liberty to avail the remedy before the appropriate forum as back as on 19th Nov., 1994 and in stead of availing that alternative remedy again preferred the writ petitions which are not maintainable. The writ petitions of other writ petitioners withdrew their writ petitions in the year 1996 without even reserving any right, therefore, the petitioners cannot maintain the writ petition for which they already availed the remedy before this court itself. I considered the submissions of learned counsel for the parties and perused the facts of the case. The respondents 7 after about 20 to 25 years became wise to state that they gave appointment to petitioners without there being statutory rules and against non-existent post and without advertising the post for appointment and without prescribing the pay scale ignoring this fact that that was none of the the fault of the petitioners but can be said to be grave misconduct of the any instrumentality of the State, which amounts to exploitation of the weaker section of the public and clear case of non-application of mind of the employer to foresee their need of employees. The respondents who had too large number of employees and can declare surplus 18000 employees and since 1991 till date they can give voluntary retirement benefits to the 13744 employees continued these poor employees on daily wages even by paying Rs.25/- per day and then started paying monthly salary of rupees upto 4,000/- or more, could not see that how long their work will continue and to what period need of the employees like petitioners for the job which petitioners are doing since last 20 to 25 years will exist. The law framers, to prevent the exploitation of the labour/workman made a provision in the Constitution of India against Begar under Article 23 of the Constitution of India and the same has been over looked by the respondent-employer and the respondents to deny the legitimate claim of their own worker took the plea in para no.9(a) “...while offering public employment, must comply 8 with the constitutional as also statutory requirements. Appointments to the posts must be made in terms of existing rules. Regulations is not mode of appointments. If any recruitment is made by way of regularization the same would mean a back door appointment which does not have legal sanction...” The respondent ignored the issue that who violated the above conditions? The respondents pleaded in a way as though the employer can violate the law laid down by Hon'ble Supreme Court and can continue the poor person in employment for 20 to 25 years and then condemn the poor employee at the time when they will demand right of equality and faire treatment. Keeping a person in such a condition of employment for such a long period, may be in violation to to the provisions of Industrial Disputes Act, which defines unfair labour practice. The petitioners if would have opportunity to better service conditions in any other employment, certainly, they would not have continued in such bad conditions of service, but since they were at receiving end and were oppressed persons and were needy persons and had no alternate except to accept whatever so called instrumentality of the State give them, they continue themselves in such employment. Learned counsel for the respondent heavily relied upon the pleas taken in para no.8 of their reply which if says about any misconduct or a wrong then all those wrongs 9 have been committed by the respondents of non- sanctioning of the posts, not advertising the post, not prescribing the pay scale for the job and further not assessing the nature of work and its continuity period and all those wrongs have been wrongly are being used as shield against their own wrong. All the judgments referred above and relied upon by learned counsel for the respondents made it clear that it is wrong to give back door entry in Government employments and yet the respondents themselves continued the poor persons on job without paying adequate payment. It appears that all the judgments against regularization of the employees are used by the employer to protect their own wrong and are not used, to learn lesson of not indulging in such type of practice of giving appointment without making proper rules and providing appropriate pay scales. The fact situation as is not in dispute is sufficient to show that the respondents were in need of these persons to do the job and the respondents either failed to assess the need of employees for which need will be and not only that but if the respondents initially failed to foresee it then by passing of time, they should have realized long ago that the work will continue for indefinite period running in decades. The contention of the respondents that the petitioners are employed in a project and with the end of the project they should go home is a ground non-existent because of the 10 simple reason that even after litigation in the year 1991 and 1996 when petitioners earlier approached this court even then and even thereafter it is not the case of the respondents that they are not in need of services of the petitioners. Not only this, but even after decades they offered petitioners to sign another contract that too in the year 2005 which petitioner did not sign yet their job was continued by none-else-than the respondents. Therefore, even in the year 2005 the work was in existence for the petitioners. It is submitted by learned counsel for the respondents in the year 2008, the petitioners executed the contract afresh. Today is also not the case of the respondents that they want to remove the petitioners from services even after pleading that the respondents' financial condition became hopelessly bad. Meaning thereby, if the petitioners are not seeking regularization and appropriate salary for their job then the respondents are happy to keep them, meaning thereby, the respondents do not want to pay the appropriate pay scale to the employees in such a big organization where thousands of employees have been given benefit of VRS and thousands of employees have been declared surplus. Even after such conduct of the respondents, the respondents' contention is that the poor employees to whom they gave appointment which was accepted by the petitioners as oppressed person are not entitled to their legitimate dues. The judgments referred 11 above required to be read to mean that what is not permitted by law as declared by the Hon'ble Supreme Court is the duty of the employer to not to do such prohibited things. So far as financial crunch is concerned, the labourers and employees can get what they can get legitimately under law as their rights have been protected by making specific provision in the Companies Act creating the first liability and charge over any receipt of the company even by sale of the company's property, therefore, at this juncture, it is immaterial that from where the company will pay and what its employees will get. It has been also argued vehemently that there is no post available with the respondents where the petitioners can be regularized. This plea has been taken by the respondents after giving specific name of the employment of the petitioners of Technician or Driver and after taking the work from the petitioners for decades. The Hon'ble Supreme Court in the case of Uma Devi clearly held that there is distinction between the illegal appointments and irregular appointment. The respondents fails to demonstrate that the appointment given to the petitioners were illegal in any manner or irregular, however, the appointment was on contract basis and earlier on daily wages basis then monthly basis. The work with respondents was available since last 20 to 25 years and yet available though in different form 12 which is of maintenance for which the services of the petitioners are suitable and therefore, only even in the year 2005 they were offered to sign new contract and which in fact, was signed by the petitioners in the year 2008, which was accepted by the respondents. The Hon'ble Supreme Court in the case of Harjinder Singh (supra) clearly held that while exercising jurisdiction under Articles 226 and/or 227 of the Constitution, the High Courts are duty bound to keep in mind that the Industrial Disputes Act and other similar legislative instruments are social welfare legislations and the same are required to be interpreted keeping in view the goals set out in the preamble of the Constitution and the provisions contained in Part IV of the Constitution of India in general and Articles 38, 39(a) to (e), 43 and 43A in particular, which mandate that the State should secure a social order for the promotion of welfare of the people, ensure equality between men and women and equitable distribution of material resources of the community to sub- serve the common good and also ensure that the workers get their dues. The Hon'ble Supreme Court in the case of Harjinder Singh (supra) considered several earlier judgments of the Hon'ble Supreme Court itself wherein it has been observed that social Justice is a device to ensure life to be meaningful and liveable with human dignity. The State is obliged to provide to workmen facilities to reach minimum standard of health, economic security and civilized 13 living then how a welfare State as employer can take a plea that even after taking job from employee for 20 to 25 years they can refuse to give legitimate emoluments which is just and proper with reference to day in which their employees leaving. This court constrained to observe that what is prohibited for employer is normally used for employer as a shield for employers' created wrong as well as weapon to deny the legitimate claim of the employee. It is unfortunate that what has been prohibited by the Hon'ble Supreme Court in various judgments against giving appointment contrary to rules and without providing the pay scale, there is no effective provision for punishing such employer and poor workers are thrown out because of the misconduct of the employer of keeping these poor person in job for petty amount on the complete unsecured job. The present writ petitions could have been decided following the decision given by the Coordinate bench of this court as I do not find any reason to take different view than the view taken by the coordinate bench in Ganpat Lal Parjapat's case wherein the single bench of this court considered the judgments of the Hon'ble Supreme Court and cited again before this bench by the learned counsel for the respondent specifically dealing with the issue raised by the respondents, but since learned counsel for the respondent argued that this bench (coordinate bench) should re-examine the issue and should take a view 14 contrary to the view taken by the coordinate bench of this court, taken for the similar employees of respondent, therefore, other aspect of the issue has been examined by this bench. In view of the above reasons, the writ petitions are allowed in terms of the judgment delivered in the case of Ganpat Lal Parjapat's case (supra) and the respondents are directed to consider the case of the petitioners in the light of directions issued by the Supreme Court in the case of Uma Devi (supra) for regularization on the posts appropriate to job of the petitioners in these writ petitions upon which they were initially appointed and allowed to work and respondents are further directed to grant regular pay scale of the post to the petitioners. [PRAKASH TATIA], J. cpgoyal/-