Case: UNION OF INDIA &amp; ORS Vs. ILMO DEVI &amp; ANR

2. That the respondents herein are/were working as contingent paid part-time Sweepers (Safai Karamcharies working for less than five hours a day) in a Post Office at Sector-14, Chandigarh. That the respondents approached the Central Administrative Tribunal being O.A. No.886/CH/2005 seeking directions to frame a regularization/absorption policy for regularization of their service. Alternatively, a direction for grant of temporary status w.e.f. 19.11.1989. The said O.A. was opposed by the department. Written statement was filed stating that the respondents -original applicants are contingent paid Safaiwalas working for less than five hours and, therefore, are not entitled for temporary status. It was further stated that there is no regular sanctioned post of Safaiwala in that particular Post Office in Chandigarh.2.1 An O.M. dated 11.12.2006 was issued by the Ministry of Personnel, Public Grievances & Pensions (DoPT), Government of India by which regularization of qualified workers appointed against sanctioned posts in irregular manner was declared. A regularization policy was framed considering the decision of this Court in the case of Secretary, State of Karnataka & Ors. Vs. Umadevi (3) and Ors., (2006) 4 SCC 1.  It provided 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 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. As the respondents - original applicants were serving as part-time employees working for five hours a day and there were no regular sanctioned posts in the particular Post Office and so they were not granted the benefit of the said O.M. dated 11.12.2006. By the judgment and order dated 17.01.2007, the learned Tribunal disposed of the said O.A. rejecting the claim of the respondents for their regularization. However, the learned Tribunal observed that since the Department need the continuous service of Safaiwalas, they shall advertise this post to appoint regular Safaiwala through proper process of selection positively within three months. The learned Tribunal also further directed that the respondents herein may also be considered for such selection after providing age relaxation to them under the relevant rules keeping in view that they have been working for last so many years without interruption. Learned Tribunal also observed that till then they are at liberty to allow the respondents to continue to perform their duties with the present status (as part-time). Learned Tribunal also observed that in case a one-time scheme is formulated by the Department/Government in exercise of the directions of this Court in the case of Umadevi (supra), the respondents cases may also be considered for regularization, if they fulfill the required conditions as prescribed in the said scheme.2.2 Feeling aggrieved and dissatisfied with the judgment and order passed by the learned Tribunal dated 17.01.2007 passed in O.A. No. 886/CH/2005 both, the Union of India and the respondents herein – part- time employees filed their respective writ petitions before the High Court being CWP Nos. 9167 of 2007 and 6854 of 2008. At this stage, it is required to be noted that pursuant to the judgment and order passed by the learned Tribunal, the Department/Government was required to formulate the regularization scheme, which was not formulated and, therefore, the contempt proceedings were initiated. By its order dated 19.05.2014, the High Court issued a notice in the contempt proceedings to the Secretary (Post) and directed to place the scheme before the Court by 04.07.2014. In view of the abovesaid directions dated 19.05.2014, the Department formulated a policy for regularization of casual labourers considering the observations made by this Court in the case of Umadevi (supra) and subsequent to the O.M. of DoPT dated 11.12.2006 (referred to hereinabove) for the welfare of the casual labourers.2.3 That by order dated 06.08.2014, the High Court directed the appellants to reconsider the claim of the respondents as per the new policy dated 30.06.2014. The authorities rejected the claim by order dated 11.09.2014 for the reasons that; (i) there are no sanctioned posts and (ii) employees have not completed 10 years of service as on 10.04.2006 namely, the date of decision of this Court in Umadevi (supra).2.4 By the impugned common judgment and order, the High Court has disposed of the aforesaid writ petitions with the following directions:-[22] We, thus, direct the petitioner-authorities to re-visit the whole issue in its right perspective and complete the exercise to re-formulate their policy and take a decision to sanction the posts in phased manner within a specified time schedule. Let such a decision be taken within a period of six months from the date of receiving a certified copy of this order.[23] Till the exercise as directed above, is undertaken, the respondents shall continue in service with their current status but those of them who have completed 20 years as part-time daily wagers, shall be granted minimum basic pay of Group D post(s) w.e.f. 1.4.2015 and/or the date of completion of 20 years contractual service, whichever is later.2.5 Feeling aggrieved and dissatisfied with the impugned common judgment and order passed by the High Court, the Union of India and others have preferred the present appeals.3. At this stage, it is required to be noted that while issuing notice in the present appeals on 22.07.2016, this Court passed the following order:-On hearing Mr. Ranjit Kumar, learned Solicitor General appearing on behalf of the petitioners, we are not inclined to interfere with the directions of the High Court in paragraph 23 for granting minimum basic pay to Group D posts from a particular date to those who have completed 20 years of part-time daily wage service. The petitioners should carry out that direction.Insofar as the directions of the High Court to re-visit the whole issue of sanction of posts etc. and re- formulation of policy are concerned, there appears some merits in the submission that the High Court should not have interfered in policy matters.Issue notice on the special leave petition in that respect as well as on the application for condonation of delay.The direction contained in paragraph 22 of the impugned order shall remain stayed until further orders.

Reasoning:
8. At the outset, it is required to be noted that the respondents- original applicants were working as contingent paid part-time sweepers (Safai Karamcharies working for less than five hours a day) in a Post Office at Chandigarh. It is not in dispute and cannot be disputed that there are no sanctioned posts of Safaiwalas in the Post Office in which the respondents were working. There is no documentary evidence on record to establish and prove that the respondents were working continuously. Even otherwise as observed hereinabove, they were working as contingent paid part-time sweepers. Even it is not the case on behalf of the respondents that their appointment was done after following due procedure of selection and to that extent, it cannot be said that their appointments were irregular. As such in the absence of any sanctioned posts in the Post Office in which the respondents were working, there was no question of appointing the respondents after following due procedure. In light of the above, the directions issued by the High Court in the impugned judgment and order are required to be considered.8.4 The observations made in paragraph 9 are on surmises and conjunctures. Even the observations made that they have worked continuously and for the whole day are also without any basis and for which there is no supporting evidence. In any case, the fact remains that the respondents served as part-time employees and were contingent paid staff. 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 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 exercise of the power under Article 226 of the Constitution, cannot issue Mandamus and/or direct to create and sanction the posts.8.6 In the case of Daya Lal & Ors. (supra) in paragraph 12, it is observed and held as under:-12. We may at the outset refer to the following well- settled principles relating to regularisation and parity in pay, relevant in the context of these appeals:(i) The High Courts, in exercising power under Article 226 of the Constitution will not issue directions for regularisation, absorption or permanent continuance, unless the employees claiming regularisation had been appointed in pursuance of a regular recruitment in accordance with relevant rules in an open competitive process, against sanctioned vacant posts. The equality clause contained in Articles 14 and 16 should be scrupulously followed and Courts should not issue a direction for regularisation of services of an employee which would be violative of the constitutional scheme. While something that is irregular for want of compliance with one of the elements in the process of selection which does not go to the root of the process, can be regularised, back door entries, appointments contrary to the constitutional scheme and/or appointment of ineligible candidates cannot be regularised.(ii) Mere continuation of service by a temporary or ad hoc or daily-wage employee, under cover of some interim orders of the court, would not confer upon him any right to be absorbed into service, as such service would be litigious employment. Even temporary, ad hoc or daily-wage service for a long number of years, let alone service for one or two years, will not entitle such employee to claim regularisation, if he is not working against a sanctioned post. Sympathy and sentiment cannot be grounds for passing any order of regularisation in the absence of a legal right.(iii) Even where a scheme is formulated for regularisation with a cut-off date (that is a scheme providing that persons who had put in a specified number of years of service and continuing in employment as on the cut-off date), it is not possible to others who were appointed subsequent to the cut-off date, to claim or contend that the scheme should be applied to them by extending the cut-off date or seek a direction for framing of fresh schemes providing for successive cut-off dates.(iv) Part-time employees are not entitled to seek regularisation as they are not working against any sanctioned posts. There cannot be a direction for absorption, regularisation or permanent continuance of part-time temporary employees.(v) Part-time temporary employees in government-run institutions cannot claim parity in salary with regular employees of the Government on the principle of equal pay for equal work. Nor can employees in private employment, even if serving full time, seek parity in salary with government employees. The right to claim a particular salary against the State must arise under a contract or under a statute.[See State of Karnataka v. Umadevi (3) [(2006) 4 SCC 1] , M. Raja v. CEERI Educational Society [(2006) 12 SCC 636] , S.C. Chandra v. State of Jharkhand [(2007) 8 SCC 279] , Kurukshetra Central Coop. Bank Ltd. v. Mehar Chand [(2007) 15 SCC 680] and Official Liquidator v. Dayanand [(2008) 10 SCC 1 .]8.7 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. 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.8.8 Applying the law laid down by this court in the aforesaid decisions, the directions issued by the High Court in the impugned judgment and order, more particularly, directions in paragraphs 22 and 23 are unsustainable and beyond the power of the judicial review of the High Court in exercise of the power under Article 226 of the Constitution. Even otherwise, it is required to be noted that in the present case, the Union of India/Department subsequently came out with a regularization policy dated 30.06.2014, which is absolutely in consonance with the law laid down by this Court in the case of Umadevi (supra), which does not apply to the part-time workers who do not work on the sanctioned post. As per the settled preposition of law, 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. Therefore, 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 30.06.2014.8.9 Though, we are of the opinion that even the direction contained in paragraph 23 for granting minimum basic pay of Group D posts from a particular date to those, who have completed 20 years of part-time daily wage service also is unsustainable as the part-time wagers, who are working for four to five hours a day and cannot claim the parity with other Group D posts. However, in view of the order passed by this Court dated 22.07.2016 while issuing notice in the present appeals, we are not quashing and setting aside the directions contained in paragraph 23 in the impugned judgment and order so far as the respondents employees are concerned.