CM No.5708 of 2011 and ::1:: CWP No.6636 of 2011 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of decision: 04.05.2011 (i) CM No.5708 of 2011 and CWP No.6636 of 2011 Surinder Pal and others .. Petitioners Versus Union of India and others. .. Respondents (ii) CM No.5713 of 2011 and CWP No.6642 of 2011 Parmod Kumar and others .. Petitioners Versus Union of India and others. .. Respondents CORAM: HON'BLE MR.JUSTICE PERMOD KOHLI. Present:- Mr.R.S. Manhas, Advocate, for the applicants-petitioners. Ms.Anjali Kukar, Advocate, for the respondents. **** PERMOD KOHLI J. (ORAL) CM No. 5708 of 2011 and CM No.5713 of 2011 The applications have been filed for grant of interim directions regarding termination of the services of the petitioners. CM No.5708 of 2011 and ::2:: CWP No.6636 of 2011 Notices of the applications to learned counsel for the respondents. On the asking of the Court, Ms. Anjali Kukar, Advocate for the respondents, who is present in the Court, accepts notice and submits that she does not want to file the reply. Instead of considering the applications, it is appropriate to decide the main writ petitions respectively. CWP No.6636 of 2011 and CWP No.6642 of 2011 This order of mine shall dispose of CWP No.6636 of 2011 and CWP No.6642 of 2011 as common questions of law and facts are involved in both the cases. For reference, the facts are being taken from CWP No.6636 of 2011. The petitioners in both the writ petitions are working as Casual Paid Labourers (some of them are working for the last more than 14 years) posted in various Districts of Punjab (Pathankot and Dhar) and Himachal Pradesh (Dalhousie). It is submitted that the respondent No.5 is the controlling authority of the Labourers and exercises control from Pathankot. The grievance of the petitioners is that vide the impugned signal dated 09.03.2011, respondent No.5 has been asked to release/discharge all the Casual Paid Labourers and to engage their substitutes from other sources (Annexure P-7). A further prayer is made for implementation of the directions of the Hon'ble Supreme Court issued in Civil Appeal Nos. 2129-2130 of 2004 decided on 04.03.2011 and allowed to replace them by fresh Casual Paid Labourers. Admittedly, the petitioners have been engaged by the GREF. Similarly situated persons who were engaged by BRO and posted in low sector filed a writ petition in CM No.5708 of 2011 and ::3:: CWP No.6636 of 2011 the High Court of Gauhati seeking their regularization. The High Court of Gauhati allowed the writ petition and directed the respondents therein to regularize the services of the Casual Paid Labourers who were working for the last number of years. Judgment of the High Court of Gauhati became subject-matter of challenge before the Hon'ble Supreme Court in abovementioned civil appeals. Hon'ble Supreme Court while allowing the Special Leave Petition in respect of the directions of the High Court for their regularization and setting aside the judgment of the High Court of Gauhati issued directions and made further observations. The relevant observations are as under:- “ Before 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 CM No.5708 of 2011 and ::4:: CWP No.6636 of 2011 months at a time. Their services are terminated before completion of six months 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.” 21. Therefore, 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. 22. In 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.” The above directions are applicable in these cases as well as the present petitioners are similarly situated and are also working as Casual Workers. As regards the claim of the petitioners that they should not be substituted by a similar temporary arrangement, it is settled CM No.5708 of 2011 and ::5:: CWP No.6636 of 2011 principle of law that temporary employees cannot be replaced by similar temporary arrangements though the employer has the right to engage regular employees in accordance with the established procedure and in consonance of Articles 14 and 16 of the Constitution of India. Vide the impugned order, the petitioners are sought to be replaced in a most arbitrary manner to prevent them from working for 239 days. The impugned order is just unsustainable in law. For the above reasons, both the writ petitions are disposed of with the following directions:- (i) The impugned signals dated 09.03.2011 are hereby quashed and respondents are restrained from replacing the petitioners by similar temporary arrangements. However, it shall be open to the respondents to make appointments on regular basis, if so desired, in accordance with established procedure and in consonance with the Articles 14 and 16 of the Constitution of India. (ii) The petitioners shall also be considered for regularization/absorption in accordance with the directions of the Hon'ble Supreme court contained in the order dated 04.03.2011. Copy of this order be placed on each connected file. (PERMOD KOHLI) May 4, 2011 JUDGE Sukhpreet