(1) Ganpat Lal Prajapat Vs. ITI Ltd. & Others IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR : O R D E R : 1. S.B. Civil Writ Petition No.5002/2004. (Ganpat Lal Prajapat Vs. ITI Ltd. & Others) 2. S.B. Civil Writ Petition No.785/2005. (Mahesh Kumar Vs. ITI Ltd. & Others) 3. S.B. Civil Writ Petition No.786/2005. (Kailash Chandra Vs. ITI Ltd. & Others) 4. S.B. Civil Writ Petition No.1275/2002. (Moda Ram Bishnoi Vs. ITI Ltd. & Others) 5. S.B. Civil Writ Petition No.3406/2002. (Mool Chand Dadhich Vs. ITI Ltd. & Others) DATE OF ORDER : September 10th, 2008 P R E S E N T Hon'ble Mr. Justice Gopal Krishan Vyas _______________________________ Mr. A.K. Rajvanshi for the petitioners. Mr. N.S. Acharya for the respondent(s). BY THE COURT : All the above writ petitions have been filed by the petitioners for seeking direction to the respondents to treat them (2) Ganpat Lal Prajapat Vs. ITI Ltd. & Others regular employees (Technicians) with effect from 04.05.1989. Further, it is prayed that the respondents may be directed to grant regular pay-scale of Technician with effect from the date of initial appointment and, so also, all facilities as are available to the regular employees regarding allowances and leave etc. It is also prayed by the petitioners that the respondents may be restrained from giving appointment to any fresh candidate in pursuance of letter dated 06.03.2004 or otherwise on the post of Technician without regularizing the services of the petitioners on the post of Technician. All these five writ petitions involve identical question of law and facts, therefore, they are being disposed of by this common order. The facts of the case, taken from S.B. Civil Writ Petition No.4002/2004 for the sake of convenience, are that the respondent ITI Ltd. is an undertaking of the Union of India, therefore, it is State within the meaning of Article 12 of the Constitution of India because the over-all control of the Company is vested in the Union of India. The petitioner is having the National Trade Certificate in Radio & T.V. Mechanic trade from the National Council for Vocational Training and has also done the apprenticeship training from Instrumentation Ltd., Kota in (3) Ganpat Lal Prajapat Vs. ITI Ltd. & Others Electronics Mechanic besides further having an experience of four months of Radio Mechanic from the Rajasthan Communication Ltd., Jaipur. The petitioner has also the academic qualification of Higher Secondary Examination with Physics and Mathematics, therefore, the petitioner is qualified for appointment on the posts of Technician. The petitioner's case is that name of the petitioner was sponsored for appointment to the post of Technician as per requisition sent by the respondent to the District Employment Exchange, Jodhpur and, in pursuance of that, the name of the petitioner was sponsored for the said appointment and the petitioner was called for interview for the said post of Technician. After due selection for appointment on the post of Technician for a period of one year on consolidated salary of Rs.900/-, the petitioner was deployed in the installation work to be undertaken in Punjab, Rajasthan and Jammu. The petitioner has placed on record appointment order as Annex.-1 dated 29.04.1989. As per the petitioner, his term of appointment was extended from time to time which is evident from the record. The case of the petitioner is that on 10.01.1997, a letter was issued by the Personnel Manager (NS), respondent No.4, in which it was written that the engagement of the petitioner was (4) Ganpat Lal Prajapat Vs. ITI Ltd. & Others purely on contractual basis for a specific period, therefore, it does not confer any right for regular appointment and absorption. Thereafter, vide Annex.-3, term of appointment of the petitioner was further extended for five years, however, thereafter no order was issued and petitioner is still continuing as temporary employee. Vide aforesaid communication Annex.-3 it was, however, informed to the petitioner that he was engaged by the Company on temporary basis for the project work undertaken by the Company during the installation and commissioning of Communication Network for the Army. The Network has since been commissioned and as the annual maintenance contract has been awarded to the Company for a period of five years from 05.11.1996. Therefore, the Company offered the petitioner the post of Technician B on temporary basis from 01.01.1997 for the duration of the maintenance contract i.e., upto 01.11.2001. In the writ petition, it is mentioned by the writ petitioner that he was allowed annual grade-increments upto the year 2000 and, thereafter, the respondents did not grant annual grade-increment since March 2000 and the petitioner was allowed fixed salary of Rs.4050/- per month. The petitioner is serving as Technician in the Indian Telephone Industries (ITI) (5) Ganpat Lal Prajapat Vs. ITI Ltd. & Others ASCON (Army Static Communication Network) since 1989 and his work has been satisfactory, therefore, a certificate was issued to the petitioner by the Major, Command No.1 on 11.08.2004 in which the work of the petitioner was appreciated by the Deputy General Manager, ASCON vide letter dated 21.06.1999 also. Both these certificates have been placed on record as Annex.-4 and 5. The case of the petitioner is that he has completed more than fifteen years of service; but, still, he has not been fixed in the regular pay-scale of Technician and has not been regularized nor he has been declared permanent on the post on which he was appointed and all the service benefits are not allowed to the petitioner. It is submitted by the petitioner that the petitioner was allowed only 18 days' earned leave in one calendar year but the regular employees are getting 30 days' P.L. and 12 days' C.L. in one calendar year. It is submitted by the petitioner that from April 1997, a pension scheme was introduced and accordingly the share of employer of P.F. is reduced and rest of the share of the employer is to be utilized for the provision of pension. It is submitted that the share of employer is equal to the P.F. amount reduced from the salary of the petitioner while from the P.F. (6) Ganpat Lal Prajapat Vs. ITI Ltd. & Others account slip dated 26.04.1997 it is clear that the share (contribution) of employer has been reduced which is evident from Annex.-9, P.F. account slip dated 11.05.2004; meaning thereby, the petitioner is getting fixed salary but the respondents are deducting CPF but not granting regular pay-scale of the post of Technician which is violative of Article 39(d) of the Constitution of India. So also, the claim of the petitioner for regularization has also been denied by the respondents. Therefore, the petitioners have prayed for the aforesaid relief in these writ petitions. In the year 1992, a writ petition was filed by the petitioner Ganpat Lal Prajapat (in S.B. Civil Writ Petition No.5002/2004) and the same was registered as S.B. Civil Writ Petition No.2173/1992 but the same was dismissed while reserving liberty to the petitioner to take such proceedings for the above grievance before the forum as may be appropriately provided by the statute. After dismissal of the said writ petition, the petitioner approached the respondents by way of filing representation and, according to him, number of representations have been filed by the petitioner; but, still the respondents have not allowed the regular pay-scale and, so also, the benefit of regularization although other persons viz., Gaje Singh Bhati and (7) Ganpat Lal Prajapat Vs. ITI Ltd. & Others Jetha Ram Prajapat have been appointed subsequently on fixed salary of Rs.6000/- per month but the petitioner was allowed fixed pay of Rs.4050/-. Learned counsel for the petitioners vehemently argued that although the petitioner is working since 1989 but still he is getting fixed wages though he has completed near-about 18 years of service, therefore, the respondents' action is violative of the provisions of Articles 14, 16 and 21 of the Constitution of India. The respondent authorities are under obligation to consider the case of the petitioner for providing relief of regularization and regular pay scale because for years together the respondents cannot treat the appointment of the petitioner on temporary basis more so the initial appointment was made through the Employment Exchange which is the procedure provided under the rules for appointment on the post of Technician, therefore, their appointment was irregular. In this view of the matter, the petitioners are seeking direction from this Court for regularization of their services and, so also, other service benefits to which they are legally entitled. Learned counsel for the petitioner invited attention of this Court towards recent judgment of Hon'ble Apex Court in case of Secretary, State of Karnataka vs. Uma Devi reported in (2006) 4 (8) Ganpat Lal Prajapat Vs. ITI Ltd. & Others SCC 1, in which the Hon'ble Supreme Court has observed that efforts should be made for regularisation of those employees who are working from last 10-15 years and for the same State Government shall frame a scheme. It was held in para 53, 54 and 55 as under:- “53. One aspect needs to be clarified. There may be cases of irregular appointments (not illegal appointments) as explained in S.V.Narayanappa, R.N.Nanjundappa and B.N.Nagarajan and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the courts or of tribunals. The question of regularization of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularize as a one-time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within a six months from this date. We also clarify that regularization, if any already made, but no sub judice, need not be reopened based on this judgment, but there should be no further bypassing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the (9) Ganpat Lal Prajapat Vs. ITI Ltd. & Others constitutional scheme. 54. It is also clarified that those decisions which run counter to the principle settled in this decision, or in which directions running counter to what we have held herein, will stand denuded of their status as precedents. 55. In cases relating to service in the commercial taxes department, the High Court has directed that those engaged on daily wages, be paid wages equal to the salary and allowances that are being paid to the regular employees of their cadre in government service, with effect from the dates from which they were respectively appointed. The objection taken was to the direction for payment from the dates of engagement. We find that the High Court had clearly gone wrong in directing that these employees be paid salary equal to the salary and allowances that are being paid to the regular employees of their cadre in government service, with effect from the dates from which they were respectively engaged or appointed. It was not open to the High Court to impose such an obligation on the State when the very question before the High Court in the case was whether these employees were entitled to have equal pay for equal work so called and were entitled to any other benefit. They had also been engaged in the teeth of directions not to do so. We are, therefore, of the view that, at best, the Division Bench of the High Court should have directed that wages equal to the salary that are being paid to regular employees be paid to these daily wage employees with effect from the date of its judgment. Hence, that part of the direction of the Division Bench is modified and it is directed that these daily wage earners be paid wages equal to the salary at the lowest grade of employees of their cadre in the Commercial Taxes Department in government service, from the date of the judgment of the Division Bench of the High Court. Since, they are only daily wage earners, there would be no question of other allowances being paid to them. In view of our conclusion, that (10) Ganpat Lal Prajapat Vs. ITI Ltd. & Others Courts are not expected to issue directions for making such persons permanent in service, we set aside that part of the direction of the High Court directing the Government to consider their cases for regularization. We also notice that the High Court has not adverted to the aspect as to whether it was regularization or it was giving permanency that was being directed by the High Court. In such a situation, the direction in that regard will stand deleted and the appeals filed by the State would stand allowed to that extent. If sanctioned posts are vacant (they are said to be vacant) the State will take immediate steps for filling those posts by a regular process of selection. But when regular recruitment is undertaken, the respondents in C.A. No. 3595- 3612 and those in the Commercial Taxes Department similarly situated, will be allowed to compete, waiving the age restriction imposed for the recruitment and giving some weightage for their having been engaged for work in the Department for a significant period of time. That would be the extent of the exercise of power by this Court under Article 142 of the Constitution to do justice to them.” On the strength of the aforesaid law laid down by the Hon'ble apex Court, learned counsel for the petitioner prayed that the respondents are under obligation to consider the candidature of the petitioner for relief sought for. Per contra, by way of filing reply, it is vehemently contended by learned counsel for the respondents that in the writ petition filed by the petitioner Ganpat Lal Prajapat in 1992 while dismissing the writ petition on 03.04.1995 it was ordered that the petitioner can prefer proceedings in such forum as may (11) Ganpat Lal Prajapat Vs. ITI Ltd. & Others be appropriately provided by the statute; and, while observing the same, the writ petition filed by the petitioner was dismissed, therefore, now the petitioner cannot be permitted to seek the same remedy again. Learned counsel for the respondents vehemently argued that the petitioner is not entitled for the regular pay-scale or regularization on the post of Technician because admittedly he was initially appointed purely on temporary contractual basis and though his term of appointment was extended from time to time but in the year 1997 he was offered fresh appointment upto 04.11.2001 against the maintenance work and the said work was temporary in nature and was for a fixed period. At the time of offer, the petitioner accepted the appointment for such period but this fact is not disclosed by the petitioner in the facts. It is also submitted by learned counsel for the respondent that the petitioner was earlier working for a project for establishing the Communication Network and after completion of this work he is working against the maintenance work. Since the job of the petitioner is temporary in nature, therefore, the petitioner is not entitled for any benefit of regular employment. The petitioner who has accepted the contractual appointment cannot claim the benefit contrary to the terms and conditions of the contract. (12) Ganpat Lal Prajapat Vs. ITI Ltd. & Others With regard to deduction of the CPF amount, it is admitted that CPF was deducted but assertion of the petitioner with regard to the benefit under the pension scheme introduced with effect from April 1997 it is submitted that the said scheme is not applicable to the casual or temporary staff appointed for a fixed period against project work on contractual basis, therefore, there is no question of violation of the provisions of Article 14 of the Constitution of India and, so also, the petitioner being temporary employee appointed in the maintenance work cannot claim regularization because there is no regular post on which the petitioner can be adjusted or regularized. The terms and conditions imposed by the Army are relevant in this case and the project in which the petitioner was appointed is temporary in nature, therefore, holding any qualification does not create any right for appointment on regular basis. With regard to appointment of one Ravi Kumar, it is submitted by learned counsel for the respondents that he was holding Diploma qualification and was appointed in another project. Learned counsel for the respondents took additional plea that under Rule 3(a) of the I.T.I.L. Conduct, Discipline and Appeal Rules, 1975 (in short, referred to hereinafter as “the Rules of 1975”) lays down that an “employee” means any person (13) Ganpat Lal Prajapat Vs. ITI Ltd. & Others employed in the Company other than the persons engaged on casual basis and those covered under the Standing Orders framed under the Industrial Employment Standing Orders Act, 1946 as amended from time to time. According to Rule 3(b) of the Rules of 1975, “Company” means the Indian Telephone Industries Ltd. to further include all its factories, head office and other administrative offices as well as sales and service offices, sub-offices and branches, now in existence and those which may be established in future and wherever situated. Thus, the I. & M. Unit, Jodhpur was a constituent unit of the I.T.I.L. And was engaged for the installation work to be undertaken in Punjab, Rajasthan and Jammu against a turn-key project. The said project also included civil works like constructions of buildings, towers foundation, sanitary and road work for micro-wave stations, besides the installation of telecommunication machineries. Thus, the I. & M. Unit at Jodhpur was an independent unit of the I.T.I.L. Because the work undertaken by it was installation of micro-wave stations and execution of the aforementioned civil works. Therefore, the petitioner cannot be treated as a direct employee of the respondent Company but he was appointed for a particular project given to the respondent Company for executing certain works. Therefore, the (14) Ganpat Lal Prajapat Vs. ITI Ltd. & Others petitioner's claim is totally unfounded, and, accordingly, the writ petition deserves to be dismissed. Learned counsel for the respondents further contended that the petitioner's case is not covered under the adjudication made in Umadevi's case (supra) because, after the judgment in the case of Umadevi, 4 other cases were decided by the apex Court in which it has been held that without any basis there is no question of regularization. He has cited the following judgments : 1. 2006 (8) SCC 67 2. 2007 (1) SCC 257 3. 2007 (2) SCC 491 4. 2006 (7) SCC 161, 488. While citing the above judgments, it is vehemently argued by learned counsel for the respondents that the petitioner even though working since 1989 in a project for executing a particular work on urgent/temporary basis is not entitled to be regularized on the post of Technician and, therefore, this writ petition is devoid of any merit. I have carefully considered the rival submissions and perused the material on record. Some significant facts and circumstances of the case which (15) Ganpat Lal Prajapat Vs. ITI Ltd. & Others are not in dispute are that, - (i) the date and mode of appointment of the petitioner through the Employment Exchange is not disputed; (ii) it is nowhere disputed by the respondents that there is any break in service, however, only assertion is made that the petitioner was appointed on urgent/temporary basis and his services were extended from time to time and, in the year 1998, an order was issued for appointment for five years retrospectively with effect from 10.01.1997; (iii) the respondents do not dispute the work performance of the petitioner right from the initial appointment in the year 1989 but contended that the petitioner was appointed on urgent/temporary contractual basis and he is continuing in a particular project. The aforesaid admitted facts clearly speak that the petitioner is still working under the control of respondent since 1989. The mode of appointment was changed as per availability of the work with the respondents but the fact remains that since last more than 15 years the petitioner is employee of the respondent establishment. So also, his work has throughout been found satisfactory, more so it is admitted that the petitioner is working in a project of the Army and certificates (16) Ganpat Lal Prajapat Vs. ITI Ltd. & Others have been issued showing his satisfactory work performance; meaning thereby, it has to be adjudicated whether a person whose services have been found to be satisfactory for years together is entitled for regularization or not. In this connection, first of all, the claim of the petitioner is to be examined in the light of the judgment of the Supreme Court rendered in the case of Umadevi. In the case of Secretary, State of Karnataka vs. Uma Devi reported in (2006) 4 SCC 1, the Constitution Bench of the Hon'ble apex Court while considering almost all the judgments rendered by the Supreme Court in past, held that there may be cases of irregular appointments (not illegal appointments) of duly qualified persons in duly sanctioned vacant posts which might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the courts or of tribunals, the question of regularization of the services of such employees may have to be considered on merit in the light of the principles settled by the Court in the cases earlier decided and in the light of this judgment. The Supreme Court, in that context, held that the Union of India, the State Governments and their instrumentalities should take steps to regularize as a one-time measure, the services of such (17) Ganpat Lal Prajapat Vs. ITI Ltd. & Others irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within a period of six months. The above adjudication made by the Supreme Court clearly lays down that even if an irregular appointment is made upon a sanctioned post, then, it is required to be regularized upon the employee having continued for ten or more years in the service. Here, in the present case, the respondents are objecting that the petitioner was not appointed on any of the sanctioned posts and, more so, he was appointed on contractual basis in a project. In this connection, assertion made in para 4 of the writ petition is required to be seen. In para 4, it is specifically mentioned by the petitioner that in order to fill up the temporary posts of Technician the respondents had made a request to the District Employment Officer, Employment Exchange, Jodhpur to send the names of qualified persons. This assertion has been admitted in the reply to the said para by the respondents. It is specifically stated in the reply to para 4 by the respondents that the (18) Ganpat Lal Prajapat Vs. ITI Ltd. & Others contents of the para are not disputed. Upon perusal of the appointment order it goes to show that it is nowhere stated that the post upon which