Full Judgment Text
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PETITIONER:
DELHI DEVELOPMENT HORTICULTURE EMPLOYEES’ UNION
Vs.
RESPONDENT:
DELHI ADMINISTRATION, DELHI AND ORS.
DATE OF JUDGMENT04/02/1992
BENCH:
SAWANT, P.B.
BENCH:
SAWANT, P.B.
JEEVAN REDDY, B.P. (J)
CITATION:
1992 AIR 789 1992 SCR (1) 565
1992 SCC (4) 99 JT 1992 (1) 394
1992 SCALE (1)294
CITATOR INFO :
RF 1992 SC2130 (20)
ACT:
Constitution of India, 1950: Articles 14, 16, 19, 21,
41-‘Jawahar Rozgar Yojna’-Temporary Scheme to provide daily
wage employment to rural poor and landless labourers during
lean periods-Daily wage workers-Right to be absorbed as
regular employees-Consideration to be taken into account.
Right to work and livelihood-Whether included in right
to life-Whether recognised as a fundamental right.
Labour Law: Daily wage workers-Recruitment-
Regularisation-Factors for consideration.
Employment Exchanges (Compulsory Notification of
Vacancies) Act, 1959.
Employment Exchange-Registration for employment-
Recruitment through employment exchanges-Necessity for.
HEADNOTE:
The Government of India, during the 5th and 6th Five
Year Plans, formulated various schemes, such as "food for
work", "National Rural Employment Programme", "Rural
Landless Employment Guarantee Programme" etc., to provide
wage employment to agricultural and landless labourers in
the country during lean periods. These programmes included
plantation of trees under social forestry scheme in the
rural areas. The entire work was done by providing daily
wage employment to rural workers of local areas without
reference to any Employment Exchange.
In the Union Territory of Delhi, the plantation work
was monitored by the District Rural Development Agency
(DRDA). Since the work involved knowledge of plantation and
agricultural practices, some unemployed Agricultural
Graduates/Diploma-holders, including the petitioners,
approached the DRDA and were given daily wage employment
under the said programme. They were called Supervisors/
Work Assis-
566
tants, and were paid higher daily wages compared to those
paid to the unskilled workers. At no stage any regular
posts were created under the DRDA either for the Supervisors
etc. or for the labourers, since the schemes were financed
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by the Government of India and the DRDA was only the
implementing machinery.
In 1988-90 the Government of India announced a new
scheme, called "Jawahar Lal Nehru Rozgar Yojna", for
intensive employment in backward districts where acute
poverty and unemployment prevailed. Later on, all the
Schemes were merged in one known as "Jawahar Rozgar Yojna".
Under this programme, the monetary assistance received from
the Central Government and the State Government/Union
Territories was given directly to the village Panchayats
which exclusively made the choice of work and employed the
work-force. The DRDA ceased, w.e.f. 31.7.1989, to be the
machinery in these respects and was no longer directly
concerned with the payment of wages to the workers.
The petitioners filed the writ petitions before this
Court for the difference in wages paid to them and those
paid to the regular employees as also for their absorption
in the Development Department of the Delhi Administration
and for injunction prohibiting the termination of their
services. It was contended that they were employed by and
were working under the DRDA which was a department either of
the Central Government or the Delhi administration and was
not an autonomous body, and that the DRDA continues to be
the employing agency because the tenure of the Pradhans of
Village Panchayats under the Union Territory of Delhi
expired and the administration of the Panchayats was
carried on by the Block Development Officers.
Dismissing the writ petitions, this Court,
HELD: 1.1. The schemes under which the petitioners were
given employment were evolved with the limited resources at
the disposal of the State to provide income for those rural
poor who were below the poverty line and particularly during
the periods when they were without any source of livelihood
and, therefore, without any income whatsoever. The object
was not to provide the right to work a such even to the
rural poor-much less to the unemployed in general. Those
employed under the scheme, therefore, could not ask for more
than what the scheme intended to give them.
567
To get an employment under the scheme and claim on the basis
of the said employment, a right to regularisation, is to
frustrate the scheme itself. No Court can be a party to
such exercise. [578H; 579A; E-F]
1.2. It is wrong to approach the problems of those
employed under the schemes with a view to providing them
with full employment and guaranteeing equal pay for equal
work. These concepts in the context of such schemes are
both unwarranted and misplaced. They will do more harm than
good by depriving the many of the little income that they
may get to keep them from starvation. They would benefit a
few at the cost of the starving poor for whom the schemes
were meant. That would also force the State to wind up the
existing schemes and forbid them from introducing the new
ones, for want of resources - the Central Government has
decided to discontinue Jawahar Rozgar Yojna in the Union
Territory of Delhi w.e.f. 1.1.92. This is not to say that
the problems of the unemployed deserve no consideration or
sympathy, but only to emphasise that even among the
unemployed a distinction exists between those who live below
and above the poverty line, those in need of partial and
those in need of full employment, the educated and
uneducated, the rural and urban unemployed etc. [579F-H;
577H; 578A; 580A]
2.1 For regularisation, there must be regular and
permanent posts or it must be established that although the
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work is of regular and permanent nature, the device of
appointing and keeping the workers on ad hoc or temporary
basis has been resorted to, to deny them the legitimate
benefits of permanent employment. [p. 577A-B]
Shri Niader & Anr. v. Delhi Administration & Anr.,
(Writ Petition Nos. 9609-10/83) and Rattan Lal & Ors. etc.
v. Lt. Governor & Ors. etc. (Writ Petition Nos. 98, 99, 216,
938, 940/88) decided on 29.9.88 & 6.3.1990 respectively.
2.2. In the instant case, there was no scope for
regularisation of workers since there were no sanctioned
posts or the sanctioned strength of workers. The Delhi
Administration had at no stage engaged any of the
petitioners for its work. The DRDA which was an
implementing machinery of the Jawahar Rozgar Yojna had
engaged the petitioners on daily wage basis. The Yojna has
not and cannot have any sanctioned strength of posts or
workers. The works by their very nature had to be
undertaken on daily wage basis and as soon as the works at
particular sites were over, the
568
workers were required to be shifted to other sites. The
workers were engaged from the areas concerned and those like
the petitioners who were willing to go to the sites where
the work was available, were also given the employment under
the scheme. In the circumstances, neither the DRDA nor the
panchayats could be asked either to ensure work to the
petitioners every day or to regularise them. [p. 577B-G]
3.1 Broadly interpreted and a necessary logical
corollary, right to life would include the right to
livelihood and, therefore, right to work.
[p. 578C]
Olga Tellis & Ors. v. Bombay Municipal Corporation &
Ors., AIR 1986 SC 180), referred to.
3.2 The country has so far not found it feasible to
incorporate the right to livelihood as a fundamental right
in the Constitution. This is because the country has so far
not attained the capacity to guarantee it, and not because
it considers it any the less fundamental to life. Advisedly,
therefore, it has been placed in the Chapter on Directive
Principles, Article 41 of which enjoins upon the State to
make effective provision for securing the same "within the
limits of its economic capacity and development". Thus even
while giving the direction to the State to ensure the right
to work, the Constitution-makers thought it prudent not to
do so without qualifying it. [p. 578E-G]
4.1. The District Rural Development Agency, Delhi is an
autonomous body registered as a Society under the Societies
Registration Act. It is neither a department of the Delhi
Administration nor the Central Government. It only
implements policies of the Central Government under the
supervision of the Delhi Administration. It has no funds of
its own. For the implementation of the programmes of
employment, the funds were always placed at its disposal by
the Central Government and it had to spend them as per the
prescribed guidelines. [p. 572F-H]
4.2. The employment programme under Jawahar Rozgar
Yojna has since been transferred to the village Panchayats.
The Block Development Officers are administering the affairs
of the Panchayats till such time as fresh elections are not
held. The vesting of administration of the panchayats in
the Block Development Officers during the intervening period
does not change the fact that it is the village Panchayats,
which are
569
allotted the funds for the Rural Employment Programme under
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the Jawahar Rozgar Yojna and it is they who choose the works
to be carried out and the necessary work-force to be
employed. Hence they are the implementing agencies. [pp.
572H; 573G-H; 574A]
5. If an order passed by this Court in a writ petition
had proceeded on the assumption of wrong facts in the
absence of the appearance by the respondent-DRDA and if
under the pain of contempt proceedings the workers involved
in that petition were employed by the DRDA, the petitioners
in the instant petition cannot rely upon their employment in
such circumstances to plead discrimination against them.
[p. 576G-H; 577A]
Vijay Pal Sharma & Ors. v. Delhi Administration & Ors.
(W.P. No. 818/89 decided on 12.3.90) distinguished.
6. The pernicious consequences to which the direction
for regularisation of workmen on the only ground that they
have put in work for 240 or more days, has been leading to,
has also to be taken note of. [p. 580B-C]
It has become a common practice to ignore the
Employment Exchange and the persons registered therein, and
to employ and get employed directly those who are either not
registered with the Employment Exchange or who though
registered are lower in the long waiting list in the
Employment Register. The courts can take judicial notice of
the fact that such employment is sought and given directly
for various illegal considerations including money. [p. 580
C-D]
7. The respondents cannot be directed to regularise
petitioners’ services. However, the respondent-Delhi
Administration shall keep the petitioners on a panel and, if
they are registered with the Employment Exchange and are
qualified to be appointed on the relevant posts shall give
them a preference in employment whenever there occurs a
vacancy in the regular posts. [pp. 581A-B]
JUDGMENT:
ORIGINAL JURISDICTION : Writ Petition No. 323 of 1989.
(Under Article 32 of the Constitution of India)
WITH
Writ Petition Nos. 324-25 of 1989.
570
R.K. Jain and Bhal Singh Malik for the Petitioners.
K.T.S. Tulsi, Addl. Solicitor General, V.C. Mahajan,
T.C. Sharma, P. Parmeshwaran, Hemant Sharma and G.K. Bansal
for the Respondents.
The Judgment of the Court was delivered by
SAWANT, J. The petitioner-workmen who were employed on
daily wages have filed these petitions for their absorption
as regular employees in the Development Department of the
Delhi Administration and for injunction prohibiting the
termination of their services and also for the difference in
wages paid to them and those paid to the regular employees.
The petitions are resisted on behalf of the respondents
contending that there is no scope for the absorption of the
petitioners as they were employed on daily wages with a
clear understanding that the schemes under which they were
employed had no provision for regularisation of any workman.
2. To understand the controversy between the parties,
it is necessary to refer to the facts with regard to the
employment of the petitioners as brought on record by the
respondents.
3. During the 5th Five Year Plan, the Central
Government had formulated various schemes to provide wage-
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employment to agricultural and landless labourers during
lean periods. One such scheme was "Food for work". Under
this scheme, employment was given to the poorer sections of
the population in the rural areas partly for food and partly
for cash payment. During the 6th Five Year Plan, the
objective of the programme was enlarged to include
alleviation of rural poverty by distribution of income in
favour of the poor and the needy population in the rural
areas by providing employment opportunities to them. With
this view, a new programme called the National Rural
Employment Programme was started in October 1980 replacing
the "Food for work" programme. During the period of the
same Plan, another scheme called "Rural Landless Employment
Guarantee Programme" was launched on August 15, 1983 with
the same objective of generating additional employment in
the rural areas particularly for the land less workers.
Under these programmes, works in rural area resulting in
durable community assets, social forestry, village roads
etc. were taken up. Pursuant to them, a scheme for
plantation of
571
trees was taken up at various sites in the rural areas of
Delhi. The entire said work was done by providing daily
wage employment to rural workers including the present
petitioners. The labour was employed at these sites
depending upon their availability in rural areas and without
reference to any Employment Exchange either in the Union
Territory of Delhi or anywhere else. Since the Social
Forestry Programme involved knowledge of plantation and
agricultural practices, some unemployed agricultural
graduates/diploma-holders who were ready to work on daily
wage employment and had approached the District Rural
Development Agency (‘DRDA’ for short) through various
officials and non-officials, were also given daily wage
employment under the said programmes.
4. For providing periodical daily wage employment, the
officials of the DRDA made assessments with reference to
particular sites. The number of workers who could be
provided employment in the succeeding month was finalised in
the last week of the preceding month. Since the schemes
themselves were meant only to provide daily wage employment,
the workers were paid only for actual working days. The
educated workers like the petitioners were employed to
guide unskilled workers in actual plantation work and were
paid higher daily wages compared to those paid to the
unskilled workers. However, the wages conformed to the
minimum wages as notified by the Delhi Administration for
different categories. To identify the educated workers from
the uneducated and unskilled workers and to facilitate
payment of the wages, the educated workers were called
Supervisors/Work Assistants etc. and others were known as
labourers. At no stage any regular posts were created under
the DRDA either for the Supervisors etc. or for the
labourers, as it was not possible to do so since the schemes
were financed by the Government of India, and the DRDA was
only the implementing machinery for the employment programme
under the said schemes.
5. In 1988-90 the Central Government announced a new
scheme for intensive employment in backward districts where
acute poverty and unemployment prevailed. In all 120
districts were identified for the purpose and the new scheme
was named as "Jawaharlal Nehru Rozgar Yojna". The Government
of the India then decided to merge Rural Employment
Programme and Rural Landless Employment Guarantee Programme
as well as the Jawaharlal Nehru Rozgar Yojna into one rural
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employment
572
programme to be known as "Jawahar Rozgar Yojna". Under this
programme, the assistance received from the Central
Government as well as the State Governments/Union
Territories was required to be given to the village
panchayats to increase the coverage of the programme and to
ensure fuller participation of the people in its
implementation.
6. In view of the transfer of the responsibility to
implement the programme to village panchayats from the DRDA,
the latter ceased to be the machinery for employing either
the Supervisors or the unskilled labourers and for choosing
the works to be implemented and for distributing the funds,
since the funds were thereafter placed by the Central
Government directly in the hands of the village panchayats.
The DRDA thus ceased to be the implementing machinery w.e.f.
July 31, 1989.
7. The Union Territory of Delhi has 191 panchayats. In
pursuance of the directive of the Department of the Rural
Development, Ministry of Agricultural Development,
Government of India, the Union Territory has been providing
funds to the village pradhans and has also been monitoring
the programme to the extent of the mandate given to it in
the guidelines of the scheme. However, as stated earlier,
the choice of work and of the work-force which was hitherto
made by the DRDA is now made by the panchayats taking into
consideration the funds allotted to the panchayats and
within the overall guidelines issued by the Central
Government. The works taken up by the panchayats also
include the Social Forestry works. Thus the DRDA was no
longer directly concerned with the Social Forestry work or
the employment under it or with the payment of wages to the
workers which is exclusively left to village panchayats.
8. It is necessary in this connection to note two more
facts. The DRDA, Delhi is an autonomous body registered as
a Society under the Societies Registration Act. It is
neither a department of the Delhi Administration nor of the
Central Government. It only implements policies of the
Central Government under the supervision of the Delhi
Administration. It has no funds of its own. For the
implementation of the programmes of employment, the funds
were always placed at its disposal by the Central Government
and it had to spend them as per the prescribed guidelines.
As stated earlier, the employment programme under
Jawahar Rozgar Yojna has since been transferred to the
Panchayats. On behalf of the petitioners,
573
it was contended that DRDA was a department either of the
Central Government or of the Delhi Administration and was
not an autonomous body much less was it registered under the
Societies Registration Act. In view of what is stated in
paragraph 4 of the affidavit filed by the Director, Rural
Development-cum-Project Director, DRDA in May 1990, we are
of the view that the fact that DRDA is registered as a
Society and is an autonomous body cannot be disputed. In
one of the affidavits filed by Shri Tej Pal Singh on behalf
of the petitioners, it was accepted that the DRDA was an
autonomous body. However, the contention was that it was
under Delhi Administration. The history of the registration
of the DRDA as a Society speaks for itself. In 1971, it was
named as "Marginal Farmers and Agricultural Labourers
Development Agency" registered as a Society under
registration No. 4940 dated 8-2-1971. As per the by-laws of
the Society, the Development Commissioner of Delhi
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Administration was nominated as Chairman of the Society.
Ever since then the Society continued to function as such
with the Governing body of the Society taking major policy
decisions and with the Project Officer acting as Chief
Executive to run the affairs of the Society. In May 1976,
the name of the Society was changed to "Small Farmers
Development Agency". The changed name was duly communicated
to the Registrar of firms and Societies. The name underwent
yet another change in 1981 and the Society was given the
present name - the "District Rural Development Agency".
This change was also duly communicated to the Registrar of
Firms and Societies. All these changes are borne out by the
minutes of the meetings of the Governing body of the
Society.
It was also sought to be contended on behalf of the
petitioners that the DRDA continues to be the employing
agency because the tenure of the Pradhans of the village
panchayats in the Delhi region has expired and at present
the administration of the Panchayats is carried on by the
Block Development Officers. We are not impressed by this
contention, for the simple reason that village panchayats
continue as legal entities. The Block Development Officers
are administering the affairs of the Panchayats till such
time as fresh election are not held. The vesting of
administration of the panchayats in the Block Development
Officers during the intervening period does not change the
fact that it is the village panchayats (and at present the
Block Development Officers on their behalf), which are
allotted the funds for the Rural Employment programme under
the Jawahar
574
Rozgar Yojna and it is they who choose the works to be
carried out and the necessary work-force to be employed.
Hence, they are the implementing agencies. The DRDA is not
re-vested with the powers of implementing the employment
programme.
The next important fact which requires to be borne in
mind is that the Horticulture Department of the Delhi
Administration and the workers employed by the Delhi
Administration in the said department, have nothing to do
with the Jawahar Rozgar Yojna and its predecessor schemes
and the workers employed on daily wages basis by the DRDA
under the said schemes. It has become necessary to stress
this aspect because we notice from certain order passed by
this Court and produced before us that a good deal of
confusion between the two sets of workers has been
responsible for some of them. The Orders in question are :-
(i) Order dated September 29, 1988 in Shri Niader & Anr. v.
Delhi Administration & Anr. in Writ Petition Nos. 9609-
10/83, (ii) Order dated March 12, 1990 in Vijay Pal Sharma &
Ors. v. Delhi Administration & Ors. in Writ Petition No.
818/89, (iii) Order dated 31st October, 1990 in Delhi
Administration & Ors. v. Vijay Pal Sharma in Review Petition
No. 562/90 in Writ Petition No. 818/89 (iv) Orders dated 8-
8-91 and 13-9-91 in Contempt Petition No. 262/90 in Writ
Petition No. 818/89, and (v) Order dated March 6, 1990 in
Rattan Lal & Ors. etc. v. Lt. Governor & Ors. etc. in Writ
Petition Nos. 98, 99, 216, 938, 940/88. It is the Delhi
Administration and DRDA which are mainly responsible for
this confusion. They failed to put in appearance at the
proper time and present the correct facts before the Court.
Writ Petition Nos. 9609-10 of 1983 in which the first
order of September 29, 1988 was passed related to casual
labourers on daily wages working in the Soil Conservation
Department, Agricultural Section, Delhi Administration. They
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were working in the said Department for nearly 20 years as
causal labourers. On these facts, this Court had directed
the Delhi Administration to prepare a scheme for absorbing
the casual labourers who had worked for one or more years in
the Soil Conservation Department, as regular employees with
in six months from the date of the order and to absorb all
such casual labourers who were found fit to be regularised
under the scheme to be so prepared. The Court had also
directed that until they were so absorbed, the Delhi
Administration should pay w.e.f. 1.10.1988 to each of the
said casual labourers working in the Soil Conservation
Depart-
575
ment the salary or wages at the rate equivalent to the
minimum salary paid to a regular employee in the comparable
post in the said Department.
In Writ Petition Nos. 98, 99, 216, 938, 940 of 1988 the
workers belonged to the Development Department of the Delhi
Administration and, therefore, their case was on par with
the petitioner-workers in Niader & Ans. v. Delhi
Administration & Anr. in W.P. Nos. 9609-10 of 1983 decided
on 29th September, 1988.
In Writ Petition No. 818 of 1989 [Vijay Pal Sharma &
Ors. v. Delhi Administration & Ors. ] decided on March 12,
1990 the petitioners were casual daily wage workers employed
under the Jawahar Rozgar Yojna. They were not employed in
the Horticulture Department of the Delhi Administration. It
appears from the record that an application for interim
relief, viz., I.A. No. 2 of 1990 was filed in the said
petition for directing the respondents therein who, among
others, were the Delhi Administration and the DRDA, to pay
to the petitioners the same salary as paid to the regular
employees in the Horticulture Department. Although the main
petition was served on the DRDA, the interlocutory
application was not served on them. The result was that at
the hearing of the interim application, the DRDA was not
present. It further appears that the Court at the time of
the disposal of the interim application also disposed of the
main petition and on the basis of the earlier decision
referred to above in Writ Petition Nos. 9609-10 of 1983
decided on 29th September, 1988 directed the Delhi
Administration to absorb the petitioner-workers under the
scheme which had been made effective by the earlier decision
from 1st October, 1988 and gave identical directions as were
given in the earlier case for paying to the workers the
minimum salary paid to regular employees in the Horticulture
Department. Unfortunately the Review Petition filed against
the said decision, viz., Review Petition No. 562 of 1990
came to be dismissed on 31st October, 1990. In the Contempt
Petition No. 262 of 1990 decided on 8th August, 1991 again
there was no discussion on the subject and the
Administration was given time to comply with the orders
passed by this Court on 12th March, 1990. The Contempt
Petition was adjourned by two weeks for enabling the Delhi
Administration to comply with the directions given on 12th
March, 1990. The Contempt Petition again came up for
hearing on September 13, 1991 and the Court required the
Delhi Administration to submit compliance report
576
within two weeks with regard to the "treatment meted out to
the petitioners similar to that meted out to 1200 employees
who were covered under the scheme". The matter was directed
to be placed on Board after two weeks.
It may be mentioned in this connection that the present
writ petitions were filed on March 14, 1989 whereas the
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order in Writ Petition Nos. 98, 99, 216, 938, 940 of 1988
was made on March 6, 1990 and the order in Writ Petition No.
818 of 1989 was made on March 12, 1990. The Subsequent
order in Review Petition No. 562 of 1990 was passed on 31st
October, 1990 whereas the orders in contempt petition
arising out of Writ Petition No. 818 of 1989 were passed,
as stated above, on 8th August, 1991 and 13th September,
1991.
We may also mention here that the decision dated March
10, 1988 in Writ Petition No. 1351 of 1987 (R.K. Soni &
Ors., v. Delhi Administration) on which the petitioners have
placed reliance related to workers employed in the
departments of the Delhi Administration and they were
working in the said departments for more than 4 to 5 years.
In that case this Court had directed the absorption of the
workers on regular basis. They were first to be absorbed
against Group ‘D’ posts and as and when promotion
opportunities arose they were to be considered for promotion
in Group ‘C’ posts. Similarly, it appears that SLP No. 7660
of 1989 [Delhi Administration v. Yoginder Singh & Ors.] is
directed against the order of the Labour Court in LCA Nos.
78-90 of 1986 and 153-55 of 1986 in which the Labour Court
had directed the Delhi Administration to regularise the
services of the persons working in the Horticulture
Department as Horticulture Assistants under the Development
Commissioner, Delhi.
9. The aforesaid review of the orders passed by this
Court in various petitions shows that the order passed by
this Court in W.P. No. 818 of 1989 had proceeded on the
assumption of wrong facts in the absence of the appearance
by the DRDA. Unfortunately, as stated above, the Review
Petition filed against the said order was also dismissed on
31st October, 1990. We are not aware as to how many workers
were involved in the said petition but we will say no more
on the subject. We are informed that under the pain of
contempt proceedings the workers involved in that petition
have since been employed by the DRDA. The petitioners in
the present petition
577
cannot rely upon their employment in such circumstances to
plead discrimination against them. For regularisation,
there must be regular and permanent posts or it must be
established that although the work is of regular and
permanent nature, the device of appointing and keeping the
workers on ad hoc or temporary basis has been resorted to,
to deny them the legitimate benefits of permanent
employment.
10. The situation that emerges out of the facts which
we have narrated above, however, is that the Delhi
Administration had at no stage engaged any of the present
petitioners for its work. It is the DRDA which as an
implementing machinery of the Jawahar Rozgar Yojna had
given to the present petitioners work on daily wage basis
under the said Yojna. The Yojna has not and cannot have by
its very nature any sanctioned strength of posts or workers.
Even when the DRDA was implementing the said Yojna they were
being funded by the Central Government directly for the
purpose of giving employment under the said Yojna. They had
to decide the rural works which they would undertake in the
next month and for that purpose to estimate in the last week
of the preceding month the number of workers required for
the same. The works by their very nature had to be
undertaken on daily wage basis and as soon as the works at
particular sites were over, the workers were required to be
shifted to other sites. The workers were engaged from the
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areas concerned and those like the petitioners who were
willing to go to the sites where the work was available,were
also given the employment under the scheme. Even that
responsibility of the implementation of the Yojna was
transferred by the Central Government from the DRDA to the
panchayats directly who, as stated above, were the only
agencies which could choose the works to be carried out as
well as the work-force to be employed for the works. The
finance was also directly given to the panchayats for the
purpose. The only task that was entrusted to the DRDA was
to monitor the working of the scheme by the panchayats. In
the circumstances, by the very nature of things neither the
DRDA nor the panchayats could be asked either to ensure work
to the petitioners every day or to regularise them. There
was no scope for regularisation since there were no
sanctioned posts or the sanctioned strength of workers.
11. It further appears from the annexures to the
written submissions filed by the petitioners and the
respondent-Union of India that the Central
578
Government decided to discontinue even the Jawahar Rozgar
Yojna in the Union Territory of Delhi w.e.f. 1.1.1992 and
the Development Commissioner-cum-Chairman, DRDA has been
asked by the Government under their letter dated 26.11.1991
addressed by the Joint Secretary, Government of India,
Ministry of Rural Development to take steps to wind up the
employment programme under the said Yojna.
12. In view of the aforesaid facts reliance placed on
behalf of the petitioners on the decisions of this Court
where regularisation has been directed, is misplaced and the
contentions based on them are misconceived.
13. There is no doubt that broadly interpreted and as
a necessary logical corollary, right to life would include
the right to livelihood and, therefore, right to work. It
is for this reason that this Court in Olga Tellis & Ors. v.
Bombay Municipal Corporation & Ors., AIR 1986 SC 180, while
considering the consequences of eviction of the pavement
dwellers had pointed out that in that case the eviction not
merely resulted in deprivation of shelter but also
deprivation of livelihood inasmuch as the pavement dwellers
were employed in the vicinity of their dwellings. The Court
had, therefore, emphasised that the problem of eviction of
the pavement dwellers had to be viewed also in that context.
This was, however, in the context of Article 21 which seeks
to protect persons against the deprivation of their life
except according to procedure established by law. This
country has so far not found it feasible to incorporate the
right to livelihood as a fundamental right in the
Constitution. This is because the country has so far not
attained the capacity to guarantee it, and not because it
considers it any the less fundamental to life. Advisedly,
therefore, it has been placed in the Chapter on Directive
Principles Article 41 of which enjoins upon the State to
make effective provision for securing the same "within the
limits of its economic capacity and development". Thus even
while giving the direction to the State to ensure the right
to work, the Constitution-makers thought it prudent not to
do so without qualifying it.
14. Viewed in the context of the facts of the present
case it is apparent that the schemes under which the
petitioners were given employment have been evolved to
provide income for those who are below the poverty line and
particularly during the periods when they are without any
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source of livelihood and, therefore, without any income
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whatsoever. The schemes were further meant for the rural
poor, for the object of the schemes was to start tackling
the problem of poverty from that end. The object was not to
provide the right to work as such even to the rural poor-
much less to the unemployed in general. As has been pointed
out by the Union of India in their additional affidavit, in
1987-88, 33 per cent of the total rural population was below
the poverty line. This meant about 35 million families. To
eliminate poverty and to generate full employment 2500-3000
million mandays of work in a year, was necessary. As
against that, the Jawahar Rozgar Yojna could provide only
870 million mandays of employment on intermittent basis in
neighborhood projects. Within the available resources of
Rs. 2600 crores, in all 3.10 million people alone could be
provided with permanent employment, if they were to be
provided work for 273 days in a year on minimum wages.
However, under the scheme meant for providing work for only
80-90 days work could be provided to 9.30 million people.
The above figures show that if the resources used for
the Jawahar Rozgar Yojna were in their entirety to be used
for providing full employment throughout the year, they
would have given employment only to a small percentage of
the population in need of income, the remaining vast
majority being left with no income whatsoever. No fault
could, therefore, be found with the limited object of the
scheme given the limited resources at the disposal of the
State. Those employed under the scheme, therefore, could
not ask for more than what the scheme intended to give them.
To get an employment under such scheme and to claim on the
basis of the said employment, a right to regularisation, is
to frustrate the scheme itself. No court can be a party to
such exercise. It is wrong to approach. the problems of
those employed under such schemes with a view to providing
them with full employment and guaranteeing equal pay for
equal work. These concepts, in the context of such schemes
are both unwarranted and misplaced. They will do more harm
than good by depriving the many of the little income that
they may get to keep them from starvation. They would
benefit a few at the cost of the many starving poor for whom
the schemes are meant. That would also force the state to
wind up the existing schemes and forbid them from
introducing the new ones, for want of resources. This is
not to say that the problems of the unemployed deserve no
consideration or sympathy. This is only to emphasise that
even among
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the unemployed a distinction exists between those who live
below and above the poverty line, those in need of partial
and those in need of full employment, the educated and
uneducated, the rural and urban unemployed etc.
15. Apart from the fact that the petitioners cannot be
directed to be regularised for the reasons given above, we
may take note of the pernicious consequences to which the
direction for regularisation of workmen on the only ground
that they have put in work for 240 or more days, has been
leading. Although there is Employment Exchange Act which
requires recruitment on the basis of registration in the
Employment Exchange, it has become a common practice to
ignore the Employment Exchange and the persons registered in
the Employment Exchanges, and to employ and get employed
directly those who are either not registered with the
Employment Exchange or who though registered are lower in
the long waiting list in the Employment Register. The
courts can take judical notice of the fact that such
employment is sought and given directly for various illegal
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considerations including money. The employment is given
first for temporary periods with technical breaks to
circumvent the relevant rules, and is continued for 240 or
more days with a view to give the benefit of regularisation
knowing the judicial trend that those who have completed 240
or more days are directed to be automatically regularised.
A good deal of illegal employment market has developed
resulting in a new source of corruption and frustration of
those who are waiting at the Employment Exchanges for years.
Not all those who gain such back-door entry in the
employment are in need of the particular jobs. Though
already employed elsewhere, they join the jobs for better
and secured prospects. That is why most of the cases which
come to the courts are of employment in Government
Departments, Public Undertakings or Agencies. Ultimately it
is the people who bear the heavy burden of the surplus
labour. The other equally injurious effect of
indiscriminate regularisation has been that many of the
agencies have stopped undertaking casual or temporary works
though they are urgent and essential for fear that if those
who are employed on such works are required to be continued
for 240 or more days have to be absorbed as regular
employees although the works are time-bound and there is no
need of the workmen beyond the completion of the works
undertaken. The public interests are thus jeopardised on
both counts.
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16. In the circumstances, it is not possible to accede
to the request of the petitioners that the respondents be
directed to regularise them. The most that can be done for
them is to direct the respondent Delhi Administration to
keep them on a panel and if they are registered with the
Employment Exchange and are qualified to be appointed on the
relevant posts, give them a preference in employment
whenever there occurs a vacancy in the regular posts, which
direction we give hereby.
With the above recommendation, we dismiss the petition
with no order as to costs.
R.P. Petitions dismissed.
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