UNION OF INDIA AND ORS. vs ANDAMAN SARVAJANIK NIRMAN VIBHAG MAZDOOR SANGH AND ORS.
- Court
- Calcutta High Court
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
[CIRCUIT BENCH AT PORT BLAIR]
PRESENT: THE HON'BLE JUSTICE SABYASACHI BHATTACHARYYA
AND
THE HON’BLE JUSTICE SMITA DAS DE
MAT/70/2026
IA No.CAN/1/2026, CAN/2/2026
THE UNION OF INDIA AND OTHERS … APPELLANTS
VS.
ANDAMAN SARVAJANIK NIRMAN VIBHAG
MAZDOOR SANGH AND OTHERS … RESPONDENTS
For the appellants : Mr. S.D. Sanjay, ASGI
Mr. Divyam Aggarwal, Adv.
Mr. V.D. Sivabalan, Adv.
For the respondent Nos. 1 & 2 : Mr. Gopala Binnu Kumar, Adv.
Ms. Vinita Devi, Adv.
For the respondent No. 3 : Mr. K. M. Nataraj, ASGI
Ms. Vatsal Joshi, Adv.
Ms. Chidranesh Sharma, Adv.
Mr. Rakesh Kumar, Adv.
Heard on : April 17, 2026, April 21, 2026 and
April 22, 2026
Judgment on : April 28, 2026
SABYASACHI BHATTACHARYYA, J.
1. At the outset, we find that CAN/1/2026, for condonation of the
delay in preferring the appeal, is still pending. Although no arguments
have been advanced on the same by either of the parties, we choose first
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to decide the same before proceeding with the adjudication of the appeal
on merits.
2. There is a conflict as to the limitation period for preferring a Letters
Patent appeal in the Calcutta High Court between the Appellate Side
Rules framed by the Full Court and the Limitation Act, 1963. Whereas
Rule 2 of Chapter VIII of the former provides that every appeal to the
High Court under Clause 15 of the Letters Patent from a judgment of a
Judge sitting singly, on the Appellate Side of the High Court, shall be
presented within 60 days from the date of the judgment appealed from,
Article 117 of the Schedule to the latter stipulates 30 days as the
limitation period for an appeal from a decree or order of any High Court
to the same Court.
3. Going by the Appellate Side Rules, the appeal has been filed within
time; however, as per the Limitation Act, there is a delay of 2 days in
presenting the memorandum of the appeal.
4. Since there is some doubt as to whether the Rules governing the
procedure of this Court can override a statutory bar, we choose to
proceed on the premise that there was a delay of 2 days in preferring the
appeal.
5. Even if it is so, by an Order dated April 13, 2026, the Court had
observed that an arguable case has been raised by the appellant in this
appeal and the private respondents offered to prepare informal paper
books. Thus, it is deemed that the said order tantamounts to admission
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of the appeal and, consequently, deemed condonation of the delay in
preferring the appeal. Even otherwise, we are satisfied from the pleadings
in CAN/1/2026 that sufficient explanation for the miniscule delay of 2
days in preferring the appeal has been furnished. Accordingly,
CAN/1/2026 is allowed without costs, thereby condoning the delay, if
any, in preferring the appeal.
6. The Court now proceeds to adjudicate the appeal on merits.
7. The writ petitioners/respondent nos. 1 and 2 are respectively a
Trade Union representing the interest of the Daily Rated Workers in the
Andaman and Nicobar (A&N) Islands and its President.
8. The genesis of the instant lis is a writ petition filed by the private
respondent Nos. 1 & 2, bearing WPA/268/2018, seeking a direction
upon the Andaman and Nicobar Administration, being the respondent
th
No.3 herein, to grant the benefit of 1/30 pay of the minimum of the
relevant pay scale plus dearness allowances in terms of the Office
Memorandum (for short, “OM”) dated June 07, 1988 issued by the
Ministry of Personnel, Public Grievances and Pensions (Department of
Personnel and Training), Government of India, to all Daily Rated
Employees working under the respondent No.5 therein on and from the
date of their initial engagement.
9. The immediate trigger for the said challenge was the OM dated
September 22, 2017 issued by the respondent No. 3, allegedly in
derogation of the OM dated June 07, 1988, directing payment to be made
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to Daily Rated Workers at the enhanced wages payable with effect from
September 01, 2017. A learned Single Judge of this Court, vide
Judgment dated December 13, 2019, disposed of the writ petition by
observing that the impugned OM dated September 22, 2017 was read to
mean that it would apply to all Daily Rated Casual Workers engaged by
the Administration irrespective of the Department and irrespective of the
fact that the post against which they were discharging duties were
sanctioned or not. The impugned OM was also read to mean that all
Daily Rated Casual Worker engaged by the A&N Administration in any
th
Department will be entitled to 1/30 of the pay at the minimum pay
scale plus dearness allowance for work of 8 hours a day on everyday of
their engagement on and from June 07, 1988.
10. The respondent No.3/Administration preferred an appeal, bearing
MA/9/2020, against the said judgment, which was disposed of by a
coordinate Bench of this Court vide judgment dated December 19, 2022
by modifying the judgment of the learned Single Judge to the extent that
the benefits to the Daily Rated Mazdoors (DRMs) under the Circular
dated September 22, 2017 would accrue only with effect from the date of
the Circular and not before that. The Division Bench upheld the direction
of the learned Single Judge that no distinction should be made between
the DRMs working against the sanctioned posts and DRMs casually
engaged by the State, directing that all DRMs under the Administration
shall be paid and granted the benefit of the Circular dated September 22,
2017 within two months from the said date. It was clarified that all other
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benefits of the DRMs and other persons arising out of the Circular dated
June 07, 1988 remain preserved and undisturbed, to be agitated in the
event they are aggrieved by any Scheme proposed by the Administration
and directed to be framed thereinabove. It is relevant to mention that the
Division Bench had further ordered that the Circular and process of
framing of Scheme for regularisation and every other benefit under the
1988 Circular, duly addressed, would mandatorily and positively be
brought into fore within the next three months from its judgment.
11. No appeal was preferred against the aforementioned decision of the
Division Bench.
12. Subsequently, alleging violation of the said judgment of the
Division Bench, a contempt application bearing CPAN/24/2023 was
filed, in respect of which a Rule was issued by the Division Bench on
July 27, 2023.
13. Vide order dated August 03, 2023 passed in the contempt
application, the Division Bench observed that the purported affidavit of
compliance filed by the Administration said nothing about framing of any
Scheme and flagged the illegal and contumacious distinction sought to
be drawn between DRMs engaged against sanctioned posts and those not
engaged against any sanctioned posts, thereby reopening the issues
decided before the Single Bench and confirmed by the Division Bench,
without challenging the same before the higher forum. Accordingly, the
alleged contemnor No.1, the Lieutenant Governor, Andaman and Nicobar
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Islands, was directed to deposit with the Registrar of the Port Bair Circuit
Bench of the Calcutta High Court a sum of Rs. 5 lakh from his own
funds. The alleged contemnor No.2, the Chief Secretary of the Islands,
was directed to be suspended forthwith and the next senior-most Officer
in the Administration to take over and discharge the functions of the
Chief Secretary. A copy of the order was directed to be sent to the
Ministry of Home Affairs, Ministry of Personnel, Public Grievances and
Pensions (Department of Personnel and Training) and Principal Secretary
to the Government of India at New Delhi.
14. Being aggrieved by such directions, a challenge was preferred
before the Supreme Court, giving rise to Civil Appeal Diary No.
31431/2023. Vide order dated August 04, 2023, the Hon’ble Supreme
Court granted stay of the directions contained in the impugned order
dated August 03, 2023 of the Division Bench.
15. By an additional affidavit verified on August 10, 2023 by the Chief
Secretary, Andaman and Nicobar Administration, it was disclosed before
the Hon’ble Supreme Court that the Administration was in the process of
formulating a Scheme for regularisation of the DRMs in accordance with
the DoP&T OM dated October 07, 2020 regarding regularisation of casual
labour and that such Scheme was required to be in compliance the
directions/stipulations laid down by the Hon’ble Supreme Court and the
Hon’ble High Court.
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16. The matter, in the meantime having been renumbered as Civil
Appeal No. 5014 of 2023, was next taken up by the Hon’ble Supreme
Court on August 14, 2023. The learned Attorney-General for India
appeared on behalf of the appellants, i.e. the Andaman and Nicobar
Administration. The Hon’ble Supreme Court, in its order of even date,
recorded salient portions of the Regularisation Scheme which had been
chalked out by the Administration. It was recorded that the direction
issued by the High Court for the suspension of the Chief Secretary was
grossly disproportionate and was extraneous to the extent of the
contempt jurisdiction and that the direction on the Lieutenant Governor
to deposit Rs. 5 lakh even though the contempt proceeding was still to be
heard finally was plainly unsustainable. More importantly, the Hon’ble
Supreme Court recorded that the Administration had, during the
pendency of the proceedings, taken steps to withdraw the offending
clauses of its order dated May 09, 2023 and that Order 2276 states that
the enhanced wages shall be implemented with effect from September 01,
2017. It was further observed that Order 2276 stipulates that arrears
shall be payable from September 01, 2017 to May 08, 2023 to 4010
DRMs. The Administration, it was observed, had requisitioned funds to
the tune of Rupees Three Hundred Crores under the ‘wages head’ which
was under consideration before the Union Ministry of Home Affairs and it
had been stated that the regularisation scheme would be framed in terms
of the statement which was made before the Division Bench of the High
Court, which had been clarified in the additional affidavit. In such view of
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the matter, the Hon’ble Supreme Court held that the exercise of
contempt jurisdiction would not be warranted and all action in
compliance shall be completed positively by November 30, 2023 and the
contempt proceedings before the High Court shall stand closed. The
appeal was accordingly disposed of.
17. By a subsequent Notification dated August, 2023, bearing No. 45-
576/2023-PW (PF), the Lieutenant Governor of the Islands approved the
“Andaman & Nicobar Casual Labourers/ Daily Rated Mazdoors (DRMs)
(Engagement and Regularization) Scheme 2023”.
18. Vide order dated September 09, 2024 passed in Miscellaneous
Application No. 2531/2023 in Civil Appeal No. 5014 of 2023, the Hon’ble
Supreme Court was pleased to record that the payment of Rupees Three
Hundred Crores, as envisaged in paragraph 11 of the Order dated August
14, 2023, had admittedly been made, which was submitted by the
learned Attorney-General of the India, and not disputed by learned
counsel who appeared for the present respondent Nos. 1 & 2. It was
further observed by the Hon’ble Supreme Court that as regards the issue
of regularisation, it was common ground that the Department of
Personnel and Training of Union of India was not a party to the earlier
proceeding, in which backdrop it was held that all that needed to be
observed at that stage was that if there was any substantive grievance in
regard to the Scheme for regularisation, it would be open to the
respondents therein to pursue their claims in accordance with law.
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19. The next chapter in the litigation started with a writ petition,
bearing WPA/547/2024, being filed before this Court assailing a letter
dated December 13, 2023 issued by the Department of Personnel and
Training, Union of India refusing to grant concurrence to the Scheme for
regularisation referred to above.
20. The concerned learned Single Judge disposed of the writ petition
vide judgment dated February 19, 2026, directing the Department of
Personnel and Training, Union of India, to accord approval to the Scheme
of 2023 as notified in August 2023 by the Administration.
21. The said judgment is the subject matter of challenge in the present
appeal.
22. Mr. S.D. Sanjay, learned Additional Solicitor General of India
(ASGI) appearing for the appellant/Union of India (UoI), argues that the
learned Single Judge traced the roots of the issue of regularisation and
the resultant directions passed in the impugned judgment from the
earlier proceedings arising out of WPA/268/2018 but failed to notice that
regularisation of Daily Rated Workers was never an issue or relief sought
in the said writ petition, and the issue came up only when a direction to
that effect was issued by a Division Bench in MA/9/2020, while dealing
with a completely different issue.
23. It is argued that the appellants/UoI was never a party to any of the
earlier proceedings, either before this Court or in the Hon’ble Supreme
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Court of India and therefore, any directions passed in those proceedings
cannot be said to be binding on the appellants.
24. It is next contended that the Scheme in the present form has not
been approved by the appellants because it is against the principles laid
down by Hon’ble Supreme Court in Secretary, State of Karnataka and
others vs. Umadevi (3) and others , reported at (2006) 4 SCC 1 , since it
allows for regularisation of 7520 DRMs en masse, without considering
whether they were recruited against sanctioned posts or not. Moreover,
the Scheme also provides an arbitrary cut-off date of August 01, 2023 on
the criterion that it will benefit more DRMs.
25. Mr. Sanjay, learned ASGI, further argues that the Scheme is also
against the basic principles governing the regularisation of employees,
such as a difference between ‘irregular’ and ‘illegal’ employees,
recruitment against sanctioned posts as opposed to unsanctioned posts,
lack of inherent right to regularisation merely due to length of service,
1
etc. In this context, learned counsel refers to Umadevi (3) (supra) , State
of Karnataka and Others vs. M. L. Kesari and others , reported at (2010) 9
SCC 247 , State of Rajasthan and others vs. Daya Lall and others ,
reported at (2011) 2 SCC 429 , and Indian Drugs & Pharmaceuticals Ltd .
vs . Workmen , Indian Drugs & Pharmaceuticals Ltd. , reported at (2007) 1
SCC 408.
1
(2006) 4 SCC 1
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11
26. The Scheme, it is argued, carries a specific clause that all steps to
regularise the workers shall be subject to the ratification and
concurrence to the Department of Personnel and Training, UoI, but the
direction of the learned Single Judge to compulsorily accord approval to
the Scheme runs against the discretion of the UoI to consider the merits
of the Scheme and ratify the same accordingly.
27. The Scheme, it is contended, has been formulated by the Andaman
Administration without the consent or input of the UoI and therefore, the
financial burden of the same cannot be thrust upon the appellants, in
whatever form the Scheme has been made. It is argued that when the
financial burden of the Scheme is to be entirely borne by the Union
Government, then a Scheme of the Union Territory cannot be enforced by
a writ of mandamus. In support of such proposition, Mr. Sanjay cites The
State of Bihar and another vs. Sachindra Narayan and others , reported at
(2019) 3 SCC 803.
28. Mr. Sanjay, learned ASGI, next contends that the learned Single
Judge ignored the fact that the exercise of regularisation of employees as
an “one-time measure” was already done by the Andaman Administration
when it regularised 122 DRMs vide Order dated May 21, 2015. The
direction in the impugned judgment has been made without considering
that the implementation of the Scheme would have far-reaching
continuing financial implications for the public exchequer. It is
contended that the learned Single Judge, while exercising writ
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jurisdiction, could not have directed regularisation of such large number
of employees, thereby entering into an Executive decision-making and
policy matter. Such judicial overreach would have huge financial
implications having cascading effect for the appellants.
29. Mr. Sanjay, ASGI cites, apart from Indian Drugs & Pharmaceuticals
2
Ltd.(supra) , Union of India and others vs. Ilmo Devi and another , reported
at (2021) 20 SCC 290, State of Jammu & Kashmir and others vs. District
Bar Association, Bandipora , reported at (2017) 3 SCC 410 , and State of
Maharashtra and another vs. Bhagwan and others , reported at (2022) 4
SCC 193, in support of such contention.
30. Mr. Sanjay, ASGI relies on Hari Nandan Prasad and another vs.
,
Employer I/R to Management of Food Corporation of India and another
reported at (2014) 7 SCC 190 , to contend that the issue of regularisation
is purely within the purview of the Executive and the same has to be
allowed depending upon the individual cases and the eligibility of the
workers concerned, and not en masse through a writ of mandamus.
31. The principles governing the recruitment and regularisation of
contractual/ad hoc employees, it is submitted, have been sufficiently laid
1
down in the case of Umadevi (3) (supra) and any direction of any Court
contrary to the law laid down therein would be denuded of its status as a
precedent.
2
(2007) 1 SCC 408.
1
(2006) 4 SCC 1
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32. Mr. Sanjay, ASGI argues that the recent judgments of the Hon’ble
Supreme Court cited by respondent Nos. 1 & 2, directing regularisation
of employees, are not statements of law but clearly cases distinguishable
on facts and are judgments rendered in those peculiar circumstances.
Further, those have been passed without considering the other earlier
judgments cited by the appellants before this Court and cannot therefore
be said to have a higher weightage than the previously pronounced 2-
Judge Bench decisions or the 5-Judge Bench decision in Umadevi (3)
13
(supra) .
33. Dealing with the argument of the respondent Nos. 1 & 2 that since
a Constitutional position holder like the learned Attorney-General for
India had lent his advisory opinion for the formulation of the Scheme by
the Andaman Administration it implies that it was within the knowledge
of the Union Government and cannot be challenged now, Mr. Sanjay,
ASGI contends that the same is erroneous, since the learned Attorney-
General for India was at that time representing the Andaman & Nicobar
Administration before the Hon’ble Supreme Court and the statements
made by him therein or advisory opinion given there cannot be said to be
binding on the UoI. Thus, the appellants pray for the impugned judgment
dated February 19, 2026 to be set aside.
34. On the other hand, Mr. K.M. Nataraj, learned Additional Solicitor
General of India (ASGI) appearing for the respondent No. 3/Andaman &
3 1
(2006) 4 SCC 1
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Nicobar Administration, contends that the Andaman & Nicobar Islands,
being a Union Territory (UT), are administered and governed in
accordance with the provisions of Articles 239 and 240 of the
Constitution of India. As per Allocation of Business Rules, 1961, the
Ministry of Home Affairs (MHA) has been appointed as the Nodal Ministry
for Legislative Matters, Finance, Budget and Services of UTs. Therefore,
the MHA is the Administrative Controlling Authority of UTs. Further,
under Rule 5 of the Delegations of Financial Power Rules, 2024, it is
provided that no authority shall sanction expenditure of advances
without previous consent of the Finance Ministry if it involves the
introduction of new principles or practices likely to lead to increased
expenditure in future. In view of the above, every proposal sent by UTs
has to be considered by the Central Government. Upon such
consideration, the Central Government can either approve the proposal,
with or without modification, reject the same, or return a proposal for
reconsideration.
35. In the above backdrop, Mr. Nataraj argues that the learned Single
Judge erroneously issued a writ of mandamus in a matter involving
policy decisions of the Central Government, failing to consider that the
Administration had requested for concurrence and ratification of the
Scheme and nothing further could have been done by them as MHA is
the controlling Nodal Authority, which decided not to grant concurrence
to the said policy decision. In this context, it is pointed out that the A&N
Administration filed an additional affidavit before the Hon’ble Supreme
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Court in Civil Appeal No. 5014 of 2023 stating that “it is submitted that
all the above steps to regularise are subject to concurrence and
ratification by the DoP&T”.
36. Mr. Nataraj relies on Union of India v. Namit Sharma reported at
(2013) 10 SCC 359 to argue that the direction issued by the learned
Single Judge on the policy decision is erroneous. In the said report, it
was held that the Court cannot direct the rule-making authority to make
the rules where the Legislature confers discretion on the rule-making
authority to make rules.
37. Mr. Nataraj, ASGI then cites Vivek Krishna vs. Union of India and
others , reported at (2023) 17 SCC 302 , where it was held that a writ of
mandamus cannot be issued to direct the respondents to enact law
and/or to frame Rules even under the wider powers conferred under
Article 226 of Constitution of India. By relying on the said judgment, Mr.
Nataraj lays stress on the proposition that it is not for the Court to decide
which should be the policy of Government and that policy matters are
never interfered with by Courts, unless patently arbitrary, unreasonable
or violative of Article 14 of the Constitution.
38. It is next argued that the prayer made in WPA/268/2018 was only
th
for grant of 1/30 pay of the minimum of the relevant pay scale plus
dearness allowances and there was no prayer in respect of regularisation
or framing of any Scheme for such purpose. The learned Single Judge, in
the said proceeding, allowed the writ petition only to the extent of grant
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th
of such 1/30 pay of the minimum of the relevant pay scale plus
dearness allowances. However, the Division Bench taking up the appeal
against the same preferred by the Administration, observed regarding the
framing of a Scheme without allowing or dismissing the appeal. It is
argued that it is a fundamental principle well established that a decree
passed by a Court without jurisdiction is a nullity and that its invalidity
can be set up whenever and wherever it is sought to be enforced or relied
upon, even at the stage of execution and in collateral proceedings. A
defect of jurisdiction, whether it is pecuniary or territorial, or whether it
is in respect of the subject-matter of the action, strikes at the very
authority of the Court to pass any decree and such a defect cannot be
cured even by consent of parties. In support of such contention, Mr.
Nataraj cites Kiran Singh and others v. Chaman Paswan and others ,
reported at AIR 1954 SC 340 .
39. It is then argued that when an observation or prayer/relief is not
part of the ratio of the judgment, at the most it can be considered as
obiter dictum and cannot be considered as a ratio of the judgment,
binding on the parties. Further, there can be no estoppel against statute.
40. Lastly, Mr. Nataraj submits that the learned Single Judge failed to
consider that the proposal of the A&N Administration for framing of the
Scheme was forwarded to the Central Government to take a call as per
Article 240 of the Constitution, but the learned Single Judge issued a
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mandamus directing the UoI to accord approval, thus touching upon a
policy decision, which is arbitrary and perverse in law.
41. In reply, Mr. Gopala Binnu Kumar, learned counsel appearing for
the respondent Nos. 1 & 2, who represent the DRMs, contends that since
the Andaman & Nicobar Islands is a UT, for the purpose of effective
functional requirements under the Administration, on the requisition
made by the A&N Administration with justification, posts are created by
the Union Government after obtaining concurrence from the Ministry of
Finance upon evaluating the factual aspects. Once the posts are created,
subsequently Recruitment Rules, followed by fund allocation, are made
every successive year.
42. On the basis of the requisition made by the A&N Administration for
allotment of funds to engage Daily Rated Employees, the Government of
India allocates the funds every successive year, on the basis of which the
Administration pays the wages to all the Daily Rated Employees working
in different wings of the Administration. Therefore, the engagement and
continuation of such Daily Rated Employees are with the concurrence of
the Government of India as the Administration does not have any
independent source of revenue.
43. After the issue of regularisation was taken up before this Court,
vide order dated December 19, 2022, this Court directed to frame a
Scheme to regularise the service of the Daily Rated Employees, which
was subsequently framed by the Administration in the month of August
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2023 in terms of the advice of the Attorney-General for India and placed
the same before the Union Government for approval. In the said Scheme,
the modality to consider regularisation was narrated.
44. The Government of India, taking into consideration its OM dated
October 07, 2020, according clarification pertaining to implementation of
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the judgment of Umadevi (3) (supra) and M.L. Kesari (supra) , vide
order dated December 13, 2023 refused to accord approval to the
regularisation Scheme framed by the Administration on the ground that
the same was contrary to the said judgments and that the
Administration already promulgated a Scheme without considering the
modality narrated in the same framed on the advice of the Attorney-
General.
45. It is argued by Mr. Kumar that the order dated December 13, 2023
was passed while ignoring the relevant consideration and materials
placed in the Regularisation Scheme framed by the Administration in
accordance with the advice of the Attorney-General for India. The writ
petitioners/respondent Nos. 1 & 2 had contended that 4245 posts of
Work Charged posts were lying vacant under the Andaman Public Works
Department (APWD) and near about 1000 to 2000 Group C posts were
lying vacant in the other wings of the Administration, which was not
disputed by the Union Government or the Administration. It is submitted
that in the Regularisation Scheme framed, the principles carved out in
4 1
(2006) 4 SCC 1
5 3 (
2007) 9 SCC 247
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16
Umadevi (3) (supra) was taken into account. Moreover, at no point of
time any Scheme was framed by the A&N Administration or the Central
1
Government in terms of the judgment of Umadevi (3) (supra) , as narrated
in the order dated December 13, 2023, for the welfare of Daily Rated
Employees under the A&N Administration.
46. Mr. Kumar argues that the President of India, under Article 239 of
the Constitution, administers the UT through an Administrator, which is
a Constitutional function, and the decision arrived at by the
Constitutional authority on the basis of an order of the Court to
regularise the services of the DRMs, upon obtaining advice of the learned
Attorney-General for India, is not simpliciter an executive order but it
was in terms of the order of the Court; therefore until and unless the said
action of the Administration is arbitrary, the Union Government cannot
reject the approval of the Scheme by exercising its power arbitrarily.
47. Based on the arguments of the parties, the following issues are
framed for adjudication of the instant appeal:
i) Whether the judgment dated December 19, 2022 passed by
the Division Bench in MA/9/2020 in the earlier round of
litigation can be challenged by the A&N Administration;
ii) Whether the judgment dated December 19, 2022 passed by
the Division Bench in MA/9/2020 is binding on the UoI;
6 1
(2006) 4 SCC 1
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1 7
iii) Whether the restrictions imposed in Umadevi (3) (supra) , ,
3
followed by M.L. Kesari (supra) , are exhaustive;
iv) Whether the Court can issue a Writ of Mandamus to the State
in respect of policy decisions; if so, whether the non-approval
of the 2023 Scheme can qualify as a ‘policy decision’;
v) Whether the 2023 Scheme can pass muster on the touchstone
of the prevalent labour jurisprudence.
48. The above issues are decided as follows:
i) Whether the judgment dated December 19, 2022 passed by the
Division Bench in MA/9/2020 in the earlier round of litigation
can be challenged by the A&N Administration
49. Mr. Nataraj, learned ASGI appearing for the A&N Administration,
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relies on Namit Sharma (Supra) and Vivek Krishna (supra) to argue that
the Court cannot direct a rule-making Authority to make Rules or issue
mandamus directing enactment of a law or framing of Rules even under
Article 226 of the Constitution of India where the Legislature confers
discretion on the rule-making authority to make rules and a policy
matter is involved.
1
( 2006) 4 SCC 1
3
( 2010) 9 SCC 247
4
( 2013) 10 SCC 359
5
( 2023) 17 SCC 302
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50. However, in view of the earlier round of litigation, which has
attained finality, the A&N Administration is debarred by the principle of
res judicata from raising such issue. The Division Bench, vide judgment
dated December 19, 2022 passed in MA/9/2020, had inter alia directed
that the A&N Administration, being the appellants therein, shall
implement the Memorandum dated June 07, 1988 and frame a Scheme
of regularisation and every other benefit under the 1988 Circular within
the next three months. Conspicuously, no appeal was preferred against
the said judgment. Thus, it attained finality.
51. Moreover, such direction was passed only on the submission made
by learned Additional Solicitor General (ASG) then appearing for the
Administration that the Administration had already commenced
implementation of the memorandum dated June 07, 1988, in which
context the Division Bench held that “It is therefore ordered that the
circular and process of framing of Scheme for regularisation and every
other benefit under the aforesaid 1988 circular, duly addressed, would
mandatorily and positively be brought into fore within the next three
months”. To this, learned ASG then representing the Administration
offered to use his good offices to prevail upon the Administration in that
regard.
68
52. To get over the said point, Mr. Nataraj cites Kiran Singh (Supra)
where it was held that a decree passed without jurisdiction is a nullity,
8 6
AIR 1954 SC 340
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which can be set up wherever such decree is sought to the enforced,
whether in execution or a collateral proceeding. However, it does not lie
in the mouth of the A&N Administration (respondent No.3 herein) to
challenge the jurisdiction of the Division Bench now, having themselves
invoked its jurisdiction by preferring MA/9/2020. At best, the appellants
could have argued that the judgment dated December 19, 2022 was
erroneous in law. However, the argument that the same was a nullity due
to lack of jurisdiction of the Division Bench is not tenable in the eye of
6 9
law. In Kiran Singh (Supra) , , the Hon’ble Supreme Court was considering
the question of nullity on the ground of lack of jurisdiction, which is not
available to respondent No.3 in respect of the judgment of the Division
Bench. The concerned Division Bench had pecuniary, territorial, as well
as subject-matter jurisdiction to decide the Letters
Patent/Mandamus/intra-Court appeal from the decision of a learned
Single Judge of this Court, being clothed with such determination as per
the roster of the relevant date decided by the Hon’ble the Chief Justice of
the High Court.
53. Mr. Nataraj, ASGI further argues that the direction to frame a
Scheme was de hors the prayer made in the writ petition and was not
argued or fell for consideration before the Division Bench, as such
rendering such direction obiter dictum .
9 6
AIR 1954 SC 340
`
23
54. The concept of obiter dictum is one of the facets of the law of
precedents. It is well-settled that unless an issue is raised and decided
directly, a judgment cannot be a binding precedent on the same. The
binding nature of a judgment passed by a superior or coordinate
Court/forum flows from Article 141 (for the Supreme Court) and under
Article 227, read with Article 215 (for the High Courts) of the
Constitution of India, in consonance with the doctrine of Comity of
Courts, emanating from the cardinal concepts of uniformity of law and
judicial decorum.
55. Such principle, however, does not mitigate the binding effect of a
direction passed by competent Court insofar as the parties to the
proceedings, or their representatives, or parties claiming through them,
are concerned. The present respondent No.3 was itself a party to the
proceeding and was the appellant before the Division Bench in
MA/9/2020; hence, whatever directions were passed therein are squarely
binding on the respondent No. 3, on the principle of res judicata .
56. The primary distinction between the law of precedents and the
principle of res judicata is that whereas the former binds Courts/fora
subordinate or coordinate in appellate hierarchy, the latter operates in
respect of parties to the self-same litigation. The concept of obiter dictum
takes off the sting from the precedential value of a judicial decision and,
thus, is essentially a corollary of the law of precedents; however, it does
not have any manner of application to the principle of res judicata , which
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24
binds the parties to a litigation to all directions or components of a
judicial dictum, whether in the nature of obiter dictum or not, passed in
such litigation.
57. Hence, the reliance of the A&N Administration on the principle of
orbiter dictum is entirely misplaced.
58. Even otherwise, this Court cannot accept the contention of the
A&N Administration that the direction to frame a Scheme was entirely
beyond of the scope of the Division Bench’s jurisdiction. In the relevant
portion of the judgment dated December 19, 2022, the Division Bench
clearly recorded that it was submitted on behalf the Administration itself
that the Administration had already commenced implementation of the
memorandum dated 07 June, 1988. The Division Bench went on to
observe that “it is therefore ordered…” that the circular and process of
framing of the Scheme for regularisation and every other benefit under
the 1988 Circular shall mandatorily and positively be brought into fore
within the next three months. It was further recorded in the Division
Bench judgment that the learned ASG who represented the
Administration at that juncture had offered to use his good offices to
prevail upon the Administration in that regard. Thus, it was the
assurance of the Administration, given through counsel, which was never
disputed subsequently, that was one of the bases of the said direction.
Thus, even apart from res judicata , the respondent no.3/Administration
is also precluded by the principles of estoppel and issue estoppel from
`
25
reagitating the legality of such direction afresh, particularly after having
failed to challenge the same; rather, complying with the same by framing
the 2023 Scheme.
59. Secondly, the plinth of the challenge in the writ petition from
which the appeal was preferred before the Division Bench was rooted in
the OM dated June 07, 1988. In the very first sentence of the judgment
dated December 13, 2019 passed by the learned Single Judge, which was
challenged before the Division Bench, it was recorded that the writ
petitioners had sought a direction upon the authorities to grant the
th
benefit of 1/30 pay of the minimum of the relevant pay scale plus
dearness allowances in terms of the Office Memorandum dated June 07,
1988 to all Daily Rated Employees working under the respondent No.5 on
and from the date of their initial engagement. It was recorded in the body
of the judgment of the learned Single Judge that the OM dated
September 22, 2017, which was challenged in the said writ petition, was
contrary to the OM dated June 07, 1988 , which was the primary ground
of such challenge.
60. The learned Single Judge, while passing the judgment dated
December 13, 2019, which was the subject matter of challenge before the
Division Bench, observed that it would be appropriate to read the
memorandum dated September 22, 2017 so as to conform with the Office
Memorandum dated June 07, 1988 and the principle that there must be
equal pay for equal work.
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26
61. Thus, the anvil on which the impugned OM dated September 22,
2017 was ‘read up’ by the learned Single Judge was the OM dated June
07, 1988. It cannot, thus, be argued that the OM dated June 07, 1988,
which itself was directed to be implemented by framing a Scheme, was
alien to the subject matter of dispute in the earlier round of litigation.
62. The concepts of ‘reading up’ and ‘reading down’ are devices evolved
by Courts to save laws/Executive Circulars/subordinate legislation from
being declared ultra vires by bringing them in harmony with
Constitutional or legal provisions and/or previous subordinate/delegated
legislation or settled principles of law as laid down by Constitutional
Courts. In the event the 2017 OM was not read down by the learned
Single Judge to bring it in consonance with the 1988 OM issued by the
concerned Ministry of the UoI, the obvious fallout would be that it would
have to be set aside by the Court, being violative of the 1988 OM.
63. A brief examination of the said OM dated June 07, 1988, issued by
the Ministry or Personnel, Public Grievances and Pensions (Department
of Personal and Training), Government of India, would be fruitful in such
context. In the preface thereof, it was recorded that the guidelines
stipulated therein in the matter of recruitment of Casual Workers on
daily wages basis was on the premise of an earlier judgment of the
th
Hon’ble Supreme Court delivered on the 17 January, 1986 in a writ
petition filed by one Shri Surender Singh and others vs. Union of India.
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27
64. Clause i) of the OM stipulated that persons on daily wages should
not be recruited for work of regular nature. Clause ii) provided that
recruitment of daily wages may be made only for work which is casual or
seasonal or intermittent in nature or for work which is not of full time
nature, for which regular posts cannot be created.
65. In Clause iv) thereof, it was mentioned that where the nature of
work entrusted to the casual workers and regular employees is the same ,
th
the casual workers may be paid at the rate of 1/30 of the pay at the
minimum of the relevant pay scale plus dearness allowance for work of
eight hours a day.
66. As opposed thereto, Clause v) stated that in cases where the work
done by a casual worker is different from that of a regular employee , the
casual worker may be paid only the minimum wages notified by the
Ministry of Labour or the State Government/Union Territory
Administration, whichever is higher, as per the Minimum Wages Act,
1948.
67. Thus, by ‘reading up’ the OM dated September 22, 2017 in
consonance with the OM dated June 07, 1988, the learned Single Judge
premised his order on the 1988 OM itself.
th
68. Moreover, by directing 1/30 of the pay at the minimum of the
relevant pay scale plus dearness allowance to be paid to the writ
petitioners there, who are the writ petitioners in the present litigation as
well, the learned Single Judge implicitly acknowledged that the
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28
petitioners were discharging duties equivalent to regular employees. We
th
say so because Clause iv) of the 1988 OM recognized 1/30 of the pay at
the minimum of the relevant pay scale plus dearness allowance, which
was granted by the learned Single Judge, only where the nature of work
entrusted to the casual workers and regular employees was the same
and the work was rendered for eight hours a day. Hence, since the relief
granted was in line with Clause iv) of the 1988 OM, it automatically
follows that the writ petitioners qualified under the said clause and were
discharging work of similar nature of work as regular employees for eight
hours a day.
69. The said judgment of the learned Single Judge was affirmed by the
Division Bench, which attained finality due to no further challenge being
taken out against the same.
70. Hence, the Division Bench was perfectly justified and had
jurisdiction to direct a Scheme to the formulated on the premise of the
June 07, 1988 OM, which was issued by none else than the Ministry of
Personnel, Public Grievances and Pensions (Department of Personnel and
Training) of the Government of India.
71. Another ground, which is the common refrain of the
Administration and the UoI in the present appeal, is that purportedly the
Scheme of 2023 was formulated “under the threat of contempt”. With
respect, we fail to understand such argument. If we are to accept the
same, it would be validating the untenable proposition that a judgment
`
29
passed by a competent Constitutional Court is not binding on the parties
and is otherwise liable to be flouted at will by them, unless a proceeding
of contempt is initiated. The State and its instrumentalities are not
favoured litigants and decisions of Courts are equally binding on them as
ordinary citizens. The expression “threat of contempt” does not lend any
validity to the argument that unless there was no such threat the
Administration would be at liberty to flout the direction. Threat of
contempt or no threat, a judgment of a Division Bench of the High Court
is binding on the litigants and the Administration did not do a favour to
the Court by complying with the same. Thus, the victim mentality
ventilated by the Administration to justify their volte-face , after having
permitted the previous Division Bench order to attain finality and having
complied with the same, cannot be given a premium. In fact, it was only
upon such compliance that the respondent No.3/Administration was let
off the hook of contempt by the Hon’ble Supreme Court. Thus, the
Administration cannot now resile from such position and do a complete
U-turn by arguing that such compliance was under some sort of
compulsion and that the order is otherwise not binding on it.
72. In Union of India vs. Iimo Devi , reported at (2020) 20 SCC 290, the
Hon’ble Supreme Court observed that the High Court under Article 226
cannot direct the Government or Department to sanction and create
posts or formulate a particular regularisation policy or frame any issue,
which is the prerogative of the Government and not the function of the
Court.
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30
73. Regularisation policy regarding temporary/casual labour was
stated to be a matter of policy decision in which no mandamus lies.
74. However, the chapter of framing of a Scheme is already a closed
one, having attained finality in the earlier round of litigation. The present
lis, it is not a framing of a Scheme but the implementation of the same
which is sought. Having acceded to the earlier round of litigation and the
judgment of the earlier Division Bench having attained finality, the said
question cannot be reopened by the Administration, which was directed
to frame the Scheme. Accordingly, the ratio regarding framing of Scheme
is no longer res integra inasmuch as the Administration is concerned.
75. In view of the above findings, this issue is decided against the
appellants and the respondent No.3/Administration by holding that the
earlier judgment of the Division Bench dated December 19, 2022 passed
in MA/09/2020 is squarely binding on the respondent No. 3 and it
cannot now resile from such position by challenging the legality of such
judgment and/or deny it after having complied with the same by framing
the 2023 Scheme.
ii) Whether the judgment dated December 19, 2022 passed by the
Division Bench in MA/9/2020 is binding on the UoI
76. Mr. Gopala Binnu Kumar, learned counsel appearing for the writ
petitioners/ respondent nos. 1 & 2, argues that the learned Attorney-
General for India (AGI) had appeared before the Hon’ble Supreme Court
`
31
in the appeal arising out of the contempt proceeding initiated due to the
violation of the order of the Division Bench in the earlier round of
litigation. As such, it is submitted that it is within the knowledge of UoI
as to such direction to frame the Scheme being passed.
77. It is further argued that by a communication dated August 30,
2023 to the Joint Secretary (UT), Ministry of Home Affairs, Government of
India, requesting the concurrence and ratification of the 2023 Scheme,
the Secretary (Personnel/Finance) of the A & N Administration had
categorically sated that in compliance with the order dated August 14,
2023 passed by the Hon’ble Supreme Court in Civil Appeal No. 5014 of
2023, read with the DoPT’s OM dated October 07, 2020, the Scheme was
drafted and was approved in principle by the Lieutenant Governor, A & N
Islands. In the self-same letter, it was mentioned that in response to the
Administration’s letter dated August 06, 2023, which was sent to the
Ministry of Home Affairs (MHA), New Delhi vide the Administration’s
email dated August 07, 2023, the MHA had conveyed vide its email dated
August 07, 2023 that the request of the UT Administration for allocation
of funds of Rs. 300 Crore in RE 2023-2024 for compliance of direction of
the Calcutta High Court had been noted by the Ministry and the same
would be included in the RE/BE proposals to be sent to the Ministry of
Finance (Department of Economic Affairs) for their consideration during
pre-budget discussion with Secretary (Expenditure). Simultaneously,
multiple high level committee meetings were convened under the
chairmanship of the learned Attorney-General for India in his office-cum-
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32
residence in New Delhi on August 07, 2023, August 10, 2023 and August
12, 2023, consequent to which, the learned Attorney-General for India
had advised certain modifications, pursuant to which the A & N
Administration had issued a fresh order, being Order 2276 dated August
10, 2023 in supersession of its earlier Order 1283 dated May 09, 2023 by
introducing such modification.
78. Thus, not only did the Attorney-General for India, a Constitutional
functionary, appeared on behalf of the Administration and was fully
aware of the direction of this Court, high level committee meetings were
held under the aegis of the learned Attorney-General for India and on his
advice, modifications were incorporated and the Scheme was finally
framed. Hence, respondent nos. 1 & 2 argue that the UoI was all along in
the know of the direction of the Court.
79. It is further argued by the writ petitioner/respondent nos. 1 & 2
that the 2023 Scheme was not merely a brain child of the Administration
or an Executive fiat but had a judicial colour in view of the same having
been framed on the basis of the assurance given to the Hon’ble Supreme
Court, as recorded in the several orders passed in the appeal against the
contempt proceeding before the Hon’ble Supreme Court.
80. Per contra, Mr. S. D. Sanjay, ASGI appearing for the UoI, argues
that the Attorney-General appeared in the matter in the capacity of
senior counsel for the Administration and not in his Constitutional
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33
capacity, and, in any event, his advices would at best be precisely that,
only “advices” which not binding on the Central Government.
81. We agree with the submission of Mr. Sanjay, ASGI that mere
appearance of the learned Attorney-General on behalf of the A&N
Administration before the Hon’ble Supreme Court cannot be construed to
be either the knowledge of the UoI or any involvement of the UoI in the
earlier proceeding. However, the chronology of contemporaneous events
is to be seen in proper perspective.
82. In its judgment affirming the order of the learned Single Judge in
the first writ petition, the Division Bench had directed a copy of its order
to be sent to the Ministry of Home Affairs, Ministry of Personnel, Public
Grievances and Pensions (Department of Personnel and Training) and to
the Principal Secretary to the Government of India at New Delhi. Hence,
it cannot be said that the UoI did not have knowledge of the earlier
proceedings when the contempt matter went up before the Hon’ble
Supreme Court. The learned Attorney-General for India appeared for the
first time in the matter on behalf of the A&N Administration before the
Hon’ble Supreme Court in such backdrop.
83. Moreover, in its order dated August 14, 2023, the Hon’ble Supreme
Court was pleased to record the submission of the learned Attorney-
General on behalf of the A&N Administration that the Administration had
requisitioned funds to the tune of Rs. 300 Crore under the ‘wages head’
which was under consideration before the Union Ministry of Home
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34
Affairs. As a follow-up, in the order dated September 09, 2024, it was
recorded by the Hon’ble Supreme Court that “the payment which was
envisaged in paragraph 11 of the order of this Court dated 14 August
2023 has admittedly been made”. The learned Attorney-General’s
statement in that regard was also noted. Thereafter, the Hon’ble Supreme
Court observed that as regards the issue of regularisation, it was
common ground that the Department of Personnel and Training of the
Union of India was not a party to the earlier proceedings and further
that, “in this backdrop”, all that needed to be observed at that stage was
that “if there is any substantive grievance in regard to the scheme for
regularization, it would be open to the respondents to pursue their
claims in accordance with law”, thus keeping it open to the writ
petitioners/respondent nos. 1 and 2 to ventilate their grievance regarding
non-implementation of the Scheme if occasion so arose in the then
future.
84. The entire turn of events as narrated above goes on to show that
the narrative of the Central Government about lack of knowledge and
non-involvement in the earlier round of litigation cannot be accepted for
several reasons.
85. First, the parent judgment of the Division Bench was to be
communicated to the Ministry of Home Affairs, Ministry of Personnel,
Public Grievances and Pensions (Department of Personnel and Training)
and Principal Secretary to the Government of India as per the direction
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35
incorporated in the Division Bench judgment itself. The purpose of such
direction was obviously to inform the concerned Ministry of the
Government of India about the purport of the judgment. Despite having
knowledge thereof, no challenge was preferred by the Government
against the judgment, although law permits even a non-party to prefer an
appeal with leave of the appellate court if aggrieved.
86. Secondly, at the contempt stage, the learned Attorney-General for
India appeared in the Supreme Court, albeit for the A&N Administration.
His role as a Constitutional functionary in the said proceeding is sought
to be discounted by projecting him merely to have acted in the capacity
of counsel for the A&N Administration. It might have been a plausible
proposition if the facts were not otherwise.
87. Apropos such submission of Mr. Sanjay, learned ASGI appearing
for the UoI, the Constitutional functions of the Attorney-General for India
are to be seen in the context of Article 76 of the Constitution of India.
Clause (2) of Article 76 stipulates that it shall be the duty of the
Attorney-General to give advice to the Government of India upon such
legal matters, and to perform such other duties of a legal character, as
may from time to time be referred or assigned to him by the President,
and to discharge the functions conferred on him by or under the
Constitution or any other law for the time being in force.
88. The role of the learned Attorney-General for India in the present
case has to be tested in the backdrop of Article 76(2) of the Constitution.
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36
89. The chronology of events which immediately preceded the Hon’ble
Supreme Court’s order dated August 14, 2023, as disclosed in the
affidavit of the A&N Administration (then represented by the learned
Attorney-General for India), is as follows:
(a) Multiple high level committee meetings were convened under
the chairmanship of the learned Attorney-General for India in
his office-cum-residence in New Delhi on August 07, 2023,
August 10, 2023 and August 12, 2023.
(b) The learned Attorney-General for India advised certain
modifications.
(c) Pursuant to the advice of the learned Attorney-General, the
A&N Administration issued a fresh order, being Order 2276
dated August 10, 2023, in supersession of its earlier Order
1283 dated May 09, 2023, by introducing such modifications.
(d) In Order 2276 dated August 10, 2023, Clause “g” of the
superseded Order 1283 was, inter alia , withdrawn, which stated
that “ the applicant has to submit an Undertaking to the effect
that the enhanced wages to be granted by the department shall
not bestow any right upon him for regularization of service
against any vacant post in future or any additional wages for
any previous period before the date of issue of this
Administration’s Order. ”
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37
(e) In addition to the withdrawal of Clause “g”, another clause, that
is, Clause “h”, which fixed the implementation date to be the
date of the issue of Order 1283, was also withdrawn.
(f) Order 2276 stipulated the date for enhanced wages to be from
September 01, 2017 and, for release of the arrears with effect
from September 07, 2017 to May 08, 2023 in respect of the
then 4010 DRMs, the Administration requisitioned funds to the
tune of approximately Rs. 300 Crore under the ‘wages’ head in
the RE 2023-24.
(g) By a communication dated August 07, 2023, the concerned
Ministry of the Government of India “acknowledged in the
affirmative” the said requisition.
90. The above developments are taken only from the affidavit filed by
the A&N Administration before the Supreme Court, parts of which were
extensively quoted by the Hon’ble Supreme Court in its order dated
August 14, 2023.
91. Admittedly, funds to the tune of Rs. 300 Crore, which was recorded
in the order of the Hon’ble Supreme Court dated August 14, 2023 to have
been requisitioned by the Administration, was duly paid by the
Government of India without demur.
92. The common thread throughout the proceeding, in and outside
Court, was the legal advice of the learned Attorney-General for India.
Such ‘legal advice’ [apropos Article 76 (2), Constitution], in the present
`
38
case, permeated not only to advice to the Administration but governed
the contemporaneous acts of the Government of India as well. We say so
because before the requisition was made, necessary modifications were
made to the Order 1283 dated May 09, 2023 only on the advice of the
learned Attorney-General and, in supersession of Order 1283, Order
2276 dated August 10, 2023 saw the light of day. It is on the strength of
Order 2276 that the requisition of Rs. 300 Crore was made.
93. At least when the requisition for Rs. 300 Crore was made to the
Government of India and thereafter, when it was approved by the
Ministry of Home Affairs and the payment was made to the A&N
Administration, the Ministry of Finance must have been in the loop
before sanctioning the disbursal of such substantial amount. In the
deliberations preceding the approval of the requisition on the part of the
concerned Ministries, Order 2276, which was the very plinth of the
requisition, must have been the cynosure of attention.
94. In Order 2276 itself, Clause “g” of Order 1283 was also withdrawn,
which read: “ the applicant has to submit an Undertaking to the effect that
the enhanced wages to be granted by the department shall not bestow any
right upon him for regularization of service against any vacant post in
future or any additional wages for any previous period before the date of
issue of this Administration’s Order ”.
95. We cannot also lose sight of the fact that the concerned Ministries
of the Government of India acted in hot haste in approving and
`
39
disbursing the amount of Rs. 300 Crore to purge the contempt of the
high functionaries of the A&N Administration by promptly acceding to
the requisition of the Administration on the strength of Order 2276,
which also withdrew the Administration’s insistence upon undertakings
by the DRMs to waive their right of regularization. Such act on the part
of the concerned Ministries of the Government of India amounted to tacit
acceptance of Order 2276 as well.
96. It is the learned Attorney-General for India under whose direct
legal advice, both in and out of court, the entire process of disbursal
materialized, despite the quantum involved being huge by any standard
and also coming from the public exchequer, exhibiting a rare harmony
between the acts of the concerned Ministries of the Government of India
and the A&N Administration. Thus, one cannot be so naïve as to accept
the proposition that the role of the learned Attorney-General for India in
the entire chain of events was restricted merely to the capacity of legal
advisor for the Administration and not the Government of India.
97. In such view of the matter, not only is the Government of India in a
position to feign ignorance of the pith and substance of the issues
involved and orders passed in the earlier round of litigation, including
the component of regularization implicit in the Administration’s
requisition based on Order 2276, but it is also estopped from reopening
the issue after having acted in concert with the Administration to
facilitate compliance of the Division Bench’s judgment passed in the
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40
earlier round of litigation for the purpose of purging the contempt of the
Administration.
98. The standards governing the Union Government have to be judged
on a much higher pedestal than ordinary citizens. Thus, it is cannot
maintain double standards, on the one hand facilitating compliance of a
part of the Division Bench judgment by the A&N Administration to save
the skin of the latter from contempt by disbursing at break-neck speed
the uber-high amount of Rs. 300 Crore from the public exchequer
(thereby in effect acceding to the said judgment), and on the other,
denying to comply with the rest of the judgment on the ground of ‘policy
decision’ and the consequent drain on the public exchequer.
99. If the Union of India, acting through the Central Government, was
aggrieved with the parent Division Bench judgment which gave rise to the
contempt, nothing prevented it from preferring a challenge against the
same before the Supreme Court with leave to prefer such challenge, since
it was not a party to the proceeding. However, despite having definite
knowledge of the proceeding at least at the stage of sanctioning the A&N
Administration’s requisition for Rs. 300 Crore, the Union of India not
only did not challenge the Division Bench judgment, but proactively
acceded to it by according approval to the requisition of the
Administration in pursuance of the Division Bench judgment.
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41
100. Thus, on such count alone, the UoI is bound by the judgment of
the Division Bench passed in the earlier round of litigation, despite not
being a party thereto.
101. Moreover, there is a more fundamental premise to the present
issue than meets the eye.
102. The direction of the Division Bench dated December 19, 2022
passed in MA/9/2020, which has attained finality, was not on a
standalone footing but issued on the specific premise of an OM dated
June 07, 1988 issued by the Ministry of Personnel, Public Grievances
and Pensions, (Department of Personnel & Training), Government of
India, that too on the basis of the Administration’s submission that the
same was being effect to. In the said OM itself, certain guidelines were
given which are also ample indicators of the policy of the Central
Government in respect of the subject matter thereof. As discussed
earlier, the OM categorically mentioned that persons on daily wages
should not be recruited for work of regular nature and that recruitment
of daily wagers may be made only for work which is casual or seasonal or
intermittent in nature or for work which is not of full time nature, for
which regular posts cannot be created.
103. Clause iv) of the OM categorically stipulated that where the nature
of work entrusted to the casual workers and regular employees is the
th
same, they would be paid at the rate of 1/30 of the pay at the
`
42
10
minimum of the relevant pay scale plus dearness allowance for work of
8 hours a day.
104. The policy which is reflected from the said OM is that even in the
perception of the Government of India, daily wagers who were recruited
for work of regular nature would stand on different footing than daily
wagers who had been recruited for work of a casual or seasonal or
intermittent in nature or not a full-time nature, for which regular posts
cannot be created.
105. Thus, this issue cannot be decided in a black-and-white ‘yes’ or
‘no’. As such, we hold that the UoI, though not a party to the earlier
round of litigation, is bound by the judgment of the Division Bench in
that round, having acceded to the same by facilitating compliance of a
part thereof by disbursing Rs. 300 Crore on the basis of the
Administration’s requisition based on its Order 2276 (which also tacitly
legitimized the DRMs’ right to regularisation) and having not preferred
any challenge thereto with leave, thus allowing the same to attain
finality, despite having full knowledge of the same.
1
iii) Whether the restrictions imposed in Umadevi (3) (supra) ,
3
followed by M.L. Kesari (supra) , are exhaustive
1
106. In Umadevi (3) (supra) , the concept of 'equal pay for equal work'
was held to be different from the concept of conferring permanency on
10 1
( 2006) SCC 4 1
`
43
those who have been appointed on ad hoc basis, temporary basis, or
based on no process of selection as envisaged by the Rules. Although it
was recognized that the Hon’ble Supreme Court, in various decisions,
had applied the principle of equal pay for equal work and had laid down
the parameters for the application of that principle, still it was held that
the said decisions are based on the concept of equality enshrined in our
Constitution in the light of the Directive Principles in that behalf. But
that the acceptance of that principle cannot lead to a position where the
Court could direct that appointments to be made without following the
due procedure established by law, be deeming them to be permanent or
issuing directions to treat them as permanent. Doing so, it was held,
would be negation of the principle of equality of opportunity.
107. It was further observed that it is not as if the person who accepts
an engagement, either temporary or casual in nature, is not aware of the
nature of his employment but accepts such employment with open eyes.
It was further held that on the ground of unequal bargaining position
alone, it would be appropriate to jettison the Constitutional scheme of
appointment and to take the view that a person who has temporarily or
casually got employed should be directed to be continued permanently
since by doing so, it will be creating another mode of public appointment
which is not permissible.
….
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44
108. Throughout the said judgment, the underlying tenor was that
persons engaged in temporary or casual employment cannot be equated
with regular employees.
1 11
109. In paragraph 48 of Umadevi (3) (supra) , it was observed that no
right can be founded on an employment on daily wages to claim that
such employee should be treated at par with a regularly recruited
candidate and that there is no fundamental right in those who have been
employed on daily wages or temporarily or on contractual basis to claim
that they have a right to be absorbed in service. That the right to be
treated equally with the other employees employed on daily wages,
cannot be extended to a claim for equal treatment with those who were
regularly employed, since it would be treating unequals as equals. The
financial implication on the State was also taken note of.
1
110. Umadevi (3) (supra) refused the right to employment to be brought
within the concept of right to life or be included as a fundament right in
the context of engagement which happened through backdoor. The plinth
of the said judgment was that the employees who came through the
backdoor route cannot be equated with regular employees, appointed in
terms of the extant rules.
11
1
(2006) 4 SCC 1
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45
312
111. M.L. Kesari (supra) consolidated such position further, however,
1
enumerating the crux of Umadevi (3) in paragraph nos. 7 to 13 thereof,
which are set out below:
“7 . It is evident from the above that there is an exception to the general
principles against “regularisation” enunciated in Umadevi (3) [(2006) 4 SCC
1], if the following conditions are fulfilled:
(i) The employee concerned should have worked for 10 years or more
in duly sanctioned post without the benefit or protection of the
interim order of any court or tribunal. In other words, the State
Government or its instrumentality should have employed the
employee and continued him in service voluntarily and continuously
for more than ten years.
(ii) The appointment of such employee should not be illegal, even if
irregular. Where the appointments are not made or continued
against sanctioned posts or where the persons appointed do not
possess the prescribed minimum qualifications, the appointments
will be considered to be illegal. But where the person employed
possessed the prescribed qualifications and was working against
sanctioned posts, but had been selected without undergoing the
process of open competitive selection, such appointments are
considered to be irregular.
8. Umadevi (3) [(2006) 4 SCC 1] casts a duty upon the Government or
instrumentality concerned, to take steps to regularise the services of those
irregularly appointed employees who had served for more than ten years
without the benefit or protection of any interim orders of courts or
tribunals, as a one-time measure. Umadevi (3) [(2006) 4 SCC 1] directed
that such one-time measure must be set in motion within six months from
the date of its decision (rendered on 10-4-2006).
9. The term “one-time measure” has to be understood in its proper
perspective. This would normally mean that after the decision in Umadevi
(3) [(2006) 4 SCC 1] , each department or each instrumentality should
undertake a one-time exercise and prepare a list of all casual, daily-wage
or ad hoc employees who have been working for more than ten years
without the intervention of courts and tribunals and subject them to a
process verification as to whether they are working against vacant posts
and possess the requisite qualification for the post and if so, regularise
their services.
10. At the end of six months from the date of decision in Umadevi
(3) [(2006) 4 SCC 1] , cases of several daily-wage/ad hoc/casual
12 3
(2010) 9 SCC 247
1
(2006) 4 SCC 1
`
46
employees were still pending before courts. Consequently, several
departments and instrumentalities did not commence the one-time
regularisation process. On the other hand, some government departments
or instrumentalities undertook the one-time exercise excluding several
employees from consideration either on the ground that their cases were
pending in courts or due to sheer oversight. In such circumstances, the
employees who were entitled to be considered in terms of para 53 of the
decision in Umadevi (3) [(2006) 4 SCC 1] , will not lose their right to be
considered for regularisation, merely because the one-time exercise was
completed without considering their cases, or because the six-month period
mentioned in para 53 of Umadevi (3) [(2006) 4 SCC 1] has expired. The
one-time exercise should consider all daily-wage/ad hoc/casual
employees who had put in 10 years of continuous service as on 10-4-2006
without availing the protection of any interim orders of courts or tribunals.
If any employer had held the one-time exercise in terms of para 53
of Umadevi (3) [(2006) 4 SCC 1] , but did not consider the cases of some
employees who were entitled to the benefit of para 53 of Umadevi
(3) [(2006) 4 SCC 1] , the employer concerned should consider their cases
also, as a continuation of the one-time exercise. The one-time exercise will
be concluded only when all the employees who are entitled to be
considered in terms of para 53 of Umadevi (3) [(2006) 4 SCC 1] , are so
considered.
11. The object behind the said direction in para 53 of Umadevi
(3) [(2006) 4 SCC 1] is twofold. First is to ensure that those who have put in
more than ten years of continuous service without the protection of any
interim orders of courts or tribunals, before the date of decision in Umadevi
(3) [(2006) 4 SCC 1] was rendered, are considered for regularisation in
view of their long service. Second is to ensure that the
departments/instrumentalities do not perpetuate the practice of employing
persons on daily-wage/ad hoc/casual basis for long periods and then
periodically regularise them on the ground that they have served for more
than ten years, thereby defeating the constitutional or statutory provisions
relating to recruitment and appointment. The true effect of the direction is
that all persons who have worked for more than ten years as on 10-4-
2006 [the date of decision in Umadevi (3) [(2006) 4 SCC 1] ] without the
protection of any interim order of any court or tribunal, in vacant posts,
possessing the requisite qualification, are entitled to be considered for
regularisation. The fact that the employer has not undertaken such
exercise of regularisation within six months of the decision in Umadevi
(3) [(2006) 4 SCC 1] or that such exercise was undertaken only in regard to
a limited few, will not disentitle such employees, the right to be considered
for regularisation in terms of the above directions in Umadevi (3) [(2006) 4
SCC 1] as a one-time measure.
12. These appeals have been pending for more than four years after the
decision in Umadevi (3) [(2006) 4 SCC 1] . The appellant (Zila Panchayat,
Gadag) has not considered the cases of the respondents for regularisation
within six months of the decision in Umadevi (3) [(2006) 4 SCC 1] or
thereafter.
`
47
13. The Division Bench of the High Court has directed that the cases of
the respondents should be considered in accordance with law. The only
further direction that needs to be given, in view of Umadevi (3) [(2006) 4
SCC 1] , is that the Zila Panchayat, Gadag should now undertake an
exercise within six months, as a general one-time regularisation exercise,
to find out whether there are any daily-wage/casual/ad hoc employees
serving the Zila Panchayat and if so whether such employees (including
the respondents) fulfil the requirements mentioned in para 53 of Umadevi
(3) [(2006) 4 SCC 1] . If they fulfil them, their services have to be
regularised. If such an exercise has already been undertaken by ignoring
or omitting the cases of Respondents 1 to 3 because of the pendency of
these cases, then their cases shall have to be considered in continuation of
the said one-time exercise within three months. It is needless to say that if
the respondents do not fulfil the requirements of para 53 of Umadevi
(3) [(2006) 4 SCC 1], their services need not be regularised. If the
employees who have completed ten years' service do not possess the
educational qualifications prescribed for the post, at the time of their
appointment, they may be considered for regularisation in suitable lower
posts.”
112. A composite reading of the said two judgments makes it clear that
the distinction was drawn between “illegal” and “irregular employees”.
Two tests were laid down for considering an employee to be irregular, as
opposed to illegal, one being that an employee had to be in continuous
service for more than 10 years without the protection of any interim
orders of Courts or Tribunal and the other that the employee ought to
have the prescribed minimum qualifications.
113. However, the law has undergone much evolution post- Umadevi (3)
113
(supra) and the said judgment has been discussed, considered and
explained in several subsequent judgments. The UoI contends that since
the subsequent judgments were delivered by 2-Judge Benches, they
1
cannot dilute the position cemented by Umadevi (3) (supra) . However,
we are unable to accept such argument, since the later Benches did not
13 1
(2006) 4 SCC 1
`
48
114
“dilute”, distinguish or attempted to undermine Umadevi (3) (supra)
but merely elaborated and explained the same in the context of changing
realities of society.
114. In Jaggo vs. Union of India , reported at 2024 SCC OnLine SC 3826 ,
cited by the petitioners/respondent Nos. 1 & 2, the Hon’ble Supreme
1
Court observed that the decision in Umadevi (3) (supra) does not intend
to penalize employees who have rendered long years of service fulfilling
ongoing and necessary functions of the State or its instrumentalities. The
said judgment, it was explained, sought to prevent backdoor entries and
illegal appointments that circumvent Constitutional requirements.
However, where appointments were not illegal but possibly “irregular,”
and where employees had served continuously against the backdrop of
“sanctioned functions” for a considerable period, the need for a fair and
humane resolution becomes paramount.
715
115. The following paragraphs of Jaggo (supra) are germane in the
context.
“20. It is well established that the decision in Umadevi (supra) does not
intend to penalize employees who have rendered long years of service
fulfilling ongoing and necessary functions of the State or its
instrumentalities. The said judgment sought to prevent backdoor entries
and illegal appointments that circumvent constitutional requirements.
However, where appointments were not illegal but possibly “irregular,”
and where employees had served continuously against the backdrop of
sanctioned functions for a considerable period, the need for a fair and
humane resolution becomes paramount. Prolonged, continuous, and
unblemished service performing tasks inherently required on a regular
basis can, over the time, transform what was initially ad-hoc or temporary
into a scenario demanding fair regularization. In a recent judgment of this
14 1
(2006) 4 SCC 1
15 7
2024 SCC OnLine SC 3826
`
49
5
Court in Vinod Kumar v. Union of India , it was held that held that
procedural formalities cannot be used to deny regularization of service to
an employee whose appointment was termed “temporary” but has
performed the same duties as performed by the regular employee over a
considerable period in the capacity of the regular employee. The relevant
paras of this judgment have been reproduced below:
“6. The application of the judgment in Umadevi (supra) by the High
Court does not fit squarely with the facts at hand, given the specific
circumstances under which the appellants were employed and have
continued their service. The reliance on procedural formalities at the
outset cannot be used to perpetually deny substantive rights that have
accrued over a considerable period through continuous service. Their
promotion was based on a specific notification for vacancies and a
subsequent circular, followed by a selection process involving written
tests and interviews, which distinguishes their case from the
appointments through back door entry as discussed in the case
of Umadevi (supra).
7. The judgment in the case Umadevi (supra) also distinguished
between “irregular” and “illegal” appointments underscoring the
importance of considering certain appointments even if were not made
strictly in accordance with the prescribed Rules and Procedure, cannot
be said to have been made illegally if they had followed the procedures
of regular appointments such as conduct of written examinations or
interviews as in the present case…”
21. The High Court placed undue emphasis on the initial label of the
appellants' engagements and the outsourcing decision taken after their
dismissal. Courts must look beyond the surface labels and consider the
realities of employment : continuous, long-term service, indispensable
duties, and absence of any mala fide or illegalities in their appointments.
In that light, refusing regularization simply because their original terms did
not explicitly state so, or because an outsourcing policy was belatedly
introduced, would be contrary to principles of fairness and equity.
22. The pervasive misuse of temporary employment contracts, as
exemplified in this case, reflects a broader systemic issue that adversely
affects workers' rights and job security. In the private sector, the rise of the
gig economy has led to an increase in precarious employment
arrangements, often characterized by lack of benefits, job security, and fair
treatment. Such practices have been criticized for exploiting workers and
undermining labour standards. Government institutions, entrusted with
upholding the principles of fairness and justice, bear an even greater
responsibility to avoid such exploitative employment practices. When public
sector entities engage in misuse of temporary contracts, it not only mirrors
the detrimental trends observed in the gig economy but also sets a
concerning precedent that can erode public trust in governmental
operations.
`
50
23. The International Labour Organization (ILO), of which India is a
founding member, has consistently advocated for employment stability
and the fair treatment of workers. The ILO's Multinational Enterprises
6
Declaration encourages companies to provide stable employment and to
observe obligations concerning employment stability and social security. It
emphasizes that enterprises should assume a leading role in promoting
employment security, particularly in contexts where job discontinuation
could exacerbate long-term unemployment.
24. The landmark judgment of the United State in the case
7
of Vizcaino v. Microsoft Corporation serves as a pertinent example from
the private sector, illustrating the consequences of misclassifying
employees to circumvent providing benefits. In this case, Microsoft
classified certain workers as independent contractors, thereby denying
them employee benefits. The U.S. Court of Appeals for the Ninth Circuit
determined that these workers were, in fact, common-law employees and
were entitled to the same benefits as regular employees. The Court noted
that large Corporations have increasingly adopted the practice of hiring
temporary employees or independent contractors as a means of avoiding
payment of employee benefits, thereby increasing their profits. This
judgment underscores the principle that the nature of the work performed,
rather than the label assigned to the worker, should determine
employment status and the corresponding rights and benefits. It highlights
the judiciary's role in rectifying such misclassifications and ensuring that
workers receive fair treatment.
25. It is a disconcerting reality that temporary employees, particularly in
government institutions, often face multifaceted forms of exploitation. While
the foundational purpose of temporary contracts may have been to
address short-term or seasonal needs, they have increasingly become a
mechanism to evade long-term obligations owed to employees. These
practices manifest in several ways:
• Misuse of “Temporary” Labels: Employees engaged for work that is
essential, recurring, and integral to the functioning of an institution are
often labeled as “temporary” or “contractual,” even when their roles
mirror those of regular employees. Such misclassification deprives
workers of the dignity, security, and benefits that regular employees are
entitled to, despite performing identical tasks.
• Arbitrary Termination: Temporary employees are frequently
dismissed without cause or notice, as seen in the present case. This
practice undermines the principles of natural justice and subjects
workers to a state of constant insecurity, regardless of the quality or
duration of their service.
• Lack of Career Progression: Temporary employees often find
themselves excluded from opportunities for skill development,
promotions, or incremental pay raises. They remain stagnant in their
roles, creating a systemic disparity between them and their regular
counterparts, despite their contributions being equally significant.
`
51
• Using Outsourcing as a Shield: Institutions increasingly resort to
outsourcing roles performed by temporary employees, effectively
replacing one set of exploited workers with another. This practice not
only perpetuates exploitation but also demonstrates a deliberate effort to
bypass the obligation to offer regular employment.
• Denial of Basic Rights and Benefits: Temporary employees are
often denied fundamental benefits such as pension, provident fund,
health insurance, and paid leave, even when their tenure spans
decades. This lack of social security subjects them and their families to
undue hardship, especially in cases of illness, retirement, or unforeseen
circumstances.
26. While the judgment in Umadevi (supra) sought to curtail the practice of
backdoor entries and ensure appointments adhered to constitutional
principles, it is regrettable that its principles are often misinterpreted or
misapplied to deny legitimate claims of long-serving employees. This
judgment aimed to distinguish between “illegal” and “irregular”
appointments. It categorically held that employees in irregular
appointments, who were engaged in duly sanctioned posts and had
served continuously for more than ten years, should be considered for
regularization as a one-time measure. However, the laudable intent of the
judgment is being subverted when institutions rely on its dicta to
indiscriminately reject the claims of employees, even in cases where their
appointments are not illegal, but merely lack adherence to procedural
formalities. Government departments often cite the judgment
in Umadevi (supra) to argue that no vested right to regularization exists for
temporary employees, overlooking the judgment's explicit acknowledgment
of cases where regularization is appropriate. This selective application
distorts the judgment's spirit and purpose, effectively weaponizing it
against employees who have rendered indispensable services over
decades.
27. In light of these considerations, in our opinion, it is imperative for
government departments to lead by example in providing fair and stable
employment. Engaging workers on a temporary basis for extended periods,
especially when their roles are integral to the organization's functioning,
not only contravenes international labour standards but also exposes the
organization to legal challenges and undermines employee morale. By
ensuring fair employment practices, government institutions can reduce the
burden of unnecessary litigation, promote job security, and uphold the
principles of justice and fairness that they are meant to embody. This
approach aligns with international standards and sets a positive
precedent for the private sector to follow, thereby contributing to the overall
betterment of labour practices in the country.”
116. It is evident from the above extract that the Hon’ble Supreme
Court, sitting in a 2-Judge Bench composition, did not criticize or differ
`
52
1 16
from Umadevi (3) (supra) , but merely explained the moot spirit of the
same and flagged the broader systemic issue that in the private sector,
the rise of the gig economy has led to an increase in precarious
employment arrangements, often characterized by lack of benefits, job
security, and fair treatment. Such practices have been criticized for
exploiting workers and undermining labour standards. It was further
observed that Government institutions, entrusted with upholding the
principles of fairness and justice, bear an even greater responsibility to
avoid such exploitative employment practices.
117. Thus, the sheer injustice and denial of basic human rights by dint
of unfair human exploitation of the unorganized labour sector was called
7
out in Jaggo (supra) .
118. The same principle was reiterated in Shripal & Another vs. Nagar
Nigam Gaziabad , reported at (2025 SCC OnLine SC 221 , and followed in
Dharam Singh and others vs. State of UP , reported at 2025 SCC OnLine
SC 1735. In the last above-mentioned decision, the Hon’ble Supreme
1
Court held that Umadevi (3) (supra) draws a distinction between illegal
appointments and irregular engagements and does not endorse the
perpetuation of precarious employment where the work itself is
permanent and the State has failed, for years, to put its house in order. It
was further held, by relying on the previous two judgments referred to
above, that the Hon’ble Supreme Court has emphatically cautioned that
16 1
(2006) 4 SCC 1
7
2024 SCC OnLine SC 3836
`
53
117
Umadevi (3) (supra) cannot be deployed as a shield to justify
exploitation through long-term “ad hocism” the use of outsourcing as a
proxy, or the denial of basic parity where identical duties are exacted
over extended period.
8
119. In Shripal (supra) , the Hon’ble Supreme Court observed that if
certain muster rolls were not produced in full, the employer’s failure to
furnish such records despite directions allows an adverse inference
under well-established labour jurisprudence. Indian labour law, the
Hon’ble Supreme Court held, strongly disfavours perpetual daily-wage or
contractual engagements in circumstances where the work is permanent
in nature.
1
120. In the above triad of post- Umadevi (3) (supra) judgments, the
Hon’ble Supreme Court touched the areas which were not dealt with
1
specifically by the Hon’ble Supreme Court in Umadevi(3) (supra) , in the
1
process adumbrating the core features of Umadevi(3) (supra) .
1
121. We have to take into account the fact that Umadevi (3) (supra) was
dealing with merely some of the species of cases which were eligible for
regularisation, being treated at par with regular workers. In such limited
context, the Hon’ble Supreme Court considered the case those temporary
workers who were engaged against sanctioned posts and had devoted at
least ten years’ continues service without any benefit of an order of court
and met the minimum educational qualifications, and granted the benefit
17 1
(2006) 4 SCC 1
8
2025 SCC OnLine SC 221
`
54
of regularisation to them, labelling their engagements as “irregular”, as
opposed to “illegal”.
818
122. The following extracts from Shripal (supra ) are also relevant in
the context.
“12. The evidence, including documentary material and undisputed facts,
reveals that the Appellant Workmen performed duties integral to the
Respondent Employer's municipal functions specifically the upkeep of
parks, horticultural tasks, and city beautification efforts. Such work is
evidently perennial rather than sporadic or project-based. Reliance on a
general “ban on fresh recruitment” cannot be used to deny labor
protections to long-serving workmen. On the contrary, the acknowledged
shortage of Gardeners in the Ghaziabad Nagar Nigam reinforces the notion
that these positions are essential and ongoing, not intermittent.
… … …
2
14. The Respondent Employer places reliance on Umadevi (supra) to
contend that daily-wage or temporary employees cannot claim permanent
absorption in the absence of statutory rules providing such absorption.
However, as frequently reiterated, Umadevi itself distinguishes between
appointments that are “illegal” and those that are “irregular,” the latter
being eligible for regularization if they meet certain conditions. More
importantly, Umadevi cannot serve as a shield to justify exploitative
engagements persisting for years without the Employer undertaking
legitimate recruitment. Given the record which shows no true contractor-
based arrangement and a consistent need for permanent horticultural staff
the alleged asserted ban on fresh recruitment, though real, cannot justify
indefinite daily-wage status or continued unfair practices.
15. It is manifest that the Appellant Workmen continuously rendered their
services over several years, sometimes spanning more than a decade.
Even if certain muster rolls were not produced in full, the Employer's
failure to furnish such records—despite directions to do so—allows an
adverse inference under well-established labour jurisprudence. Indian
labour law strongly disfavors perpetual daily-wage or contractual
engagements in circumstances where the work is permanent in nature.
Morally and legally, workers who fulfil ongoing municipal requirements
year after year cannot be dismissed summarily as dispensable,
particularly in the absence of a genuine contractor agreement. At this
juncture, it would be appropriate to recall the broader critique of indefinite
“temporary” employment practices as done by a recent judgment of this
3
court in Jaggo v. Union of India in the following paragraphs:
18 8
2025 SCC OnLine SC 221
`
55
“22. The pervasive misuse of temporary employment contracts, as
exemplified in this case, reflects a broader systemic issue that adversely
affects workers' rights and job security. In the private sector, the rise of
the gig economy has led to an increase in precarious employment
arrangements, often characterized by lack of benefits, job security, and
fair treatment. Such practices have been criticized for exploiting workers
and undermining labour standards. Government institutions, entrusted
with upholding the principles of fairness and justice, bear an even
greater responsibility to avoid such exploitative employment practices.
When public sector entities engage in misuse of temporary contracts, it
not only mirrors the detrimental trends observed in the gig economy but
also sets a concerning precedent that can erode public trust in
governmental operations.
………
25. It is a disconcerting reality that temporary employees, particularly in
government institutions, often face multifaceted forms of exploitation.
While the foundational purpose of temporary contracts may have been
to address short-term or seasonal needs, they have increasingly become
a mechanism to evade long-term obligations owed to employees. These
practices manifest in several ways:
• Misuse of “Temporary” Labels : Employees engaged for work that is
essential, recurring, and integral to the functioning of an institution are
often labelled as “temporary” or “contractual,” even when their roles
mirror those of regular employees. Such misclassification deprives
workers of the dignity, security, and benefits that regular employees are
entitled to, despite performing identical tasks.
• Arbitrary Termination : Temporary employees are frequently dismissed
without cause or notice, as seen in the present case. This practice
undermines the principles of natural justice and subjects workers to a
state of constant insecurity, regardless of the quality or duration of their
service.
• Lack of Career Progression : Temporary employees often find
themselves excluded from opportunities for skill development,
promotions, or incremental pay raises. They remain stagnant in their
roles, creating a systemic disparity between them and their regular
counterparts, despite their contributions being equally significant.
• Using Outsourcing as a Shield : Institutions increasingly resort to
outsourcing roles performed by temporary employees, effectively
replacing one set of exploited workers with another. This practice not
only perpetuates exploitation but also demonstrates a deliberate effort to
bypass the obligation to offer regular employment.
• Denial of Basic Rights and Benefits : Temporary employees are often
denied fundamental benefits such as pension, provident fund, health
insurance, and paid leave, even when their tenure spans decades. This
`
56
lack of social security subjects them and their families to undue
hardship, especially in cases of illness, retirement, or unforeseen
circumstances.”.
7 19 820
123. Thus, Jaggo (supra) , Shripal (supra) followed by Dharam Singh
921 122
(supra) were pointers in the direction that Umadevi (3) (supra) cannot
be used as a shield to justify exploitative engagements persisting for
years without regular recruitment.
124. The UoI, in the present appeal, places much reliance on paragraph
1 23
no. 54 of Umadevi (3) (supra) , where it was clarified that those decisions
1 24
which run counter to the principle settled in Umadevi (3) (supra) , or in
which directions running counter to what was held therein, would stand
denuded of their status as precedents.
125. However, the said observation cannot apply prospectively, freezing
the law laid down by the Supreme Court for all time to come, nor was it
specifically held to be so, but can only be applicable to the judgments
which held the field on that date.
126. Judicial opinion, like legislation, evolves over time in consonance
with the lived realities of Society. A cryogenic approach, freezing in time
for ever the law laid down by the Supreme Court in a particular time and
context, cannot be read into the law of precedents. The law of the land
and its interpretations, whether it emanates from legislative or judicial
19 7
2024 SCC OnLine SC 3826
20 8
2025 SCC Online SC 221
21 9
2025 SCC OnLine SC 1735
22 1
(2006) 4 SCC 1
23
24
`
57
sources, cannot form a static monolithic behemoth but must be dynamic,
evolving with the times and the evolving mores of the polity. If the
Constitution of India, which is the grundnorm of the entire body of law in
the country, can be a ‘living document’, there is no reason why
precedents cannot be.
127. Thus, by exploring the grey areas untouched and unforeseen in
1 25
Umadevi (3)(supra) , the Hon’ble Supreme Court only facilitated the
7 26 827
evolution of law in Jaggo (supra) , Shirpal (supra) and Dharam
9 28
Singh(supra) . .
128. Thus, by no stretch of imagination can it be said that the post-
1
Umadevi (3)(supra) judgments, having been delivered by lesser-strength
Benches of the Supreme Court and being contrary to the said judgment,
are bad law.
129. A composite reading of the above triumvirate of judgments amply
1
elucidates the progression of law since Umadevi (3) (supra) in the field.
1
Thus, the proposition laid down in Umadevi (3) (supra) , and M.L.Kesari
29
(supra)3, read in the context of the subsequent explanation given to
them by the Hon’ble Supreme Court, brings us to current position of law
in that regard.
25 1
(2006) 4 SCC 1
26 7
2024 SCC OnLine SC 3826
27 8
2025 SCC OnLine SC 221
28 9
2025 SCC OnLine SC 1735
29 3
2010 9 SCC 247
`
58
1 30
130. Umadevi (3) (supra) , as pointed by the subsequent judgments,
could not have been exhaustive, having dealt with only one of the genres
of irregular appointment. There are certain other situations where daily
rated wagers may also be entitled to similar benefit as given in Umadevi
1
(3)(supra) .
131. The law, as it stands now, in the light of above discussions, may be
summarized as follows:-
(i) Regularisation, per se, is a not a fundamental right; Courts
cannot issue blanket writs of mandamus to the Executive to
regularise all casual/contractual employees;
(ii) As a general proposition governing employment, backdoor
entries are discouraged, particularly in public service, and the
State and its instrumentalities are supposed to adopt fair,
transparent, and inclusive means, adhering to the rules
framed by them, if any, in matters of employment;
(iii) However, the cliché ‘backdoor entry’ cannot by wielded by the
State as a shield to mask perpetual temporary engagement of
a workforce to discharge sanctioned functions of perennial
nature which are integral and essential to the functioning of
the concerned Department/instrumentality of the State;
(iv) “Irregular”, not “illegal”, employees are entitled to
regularisation.
(v) The term “irregular” has been expanded since Umadevi (3)
(supra) by judicial pronouncements of the Hon’ble Supreme
Court, and now includes the following tests:
(a) The employee must possess the prescribed minimum
qualification;
30 1
(2006) 4 SCC 1
`
59
(b) The engagement should be against sanctioned “posts” or
sanctioned “functions”;
(c) The engagement should be for a substantial length of
time in work of a perennial nature.
(d) The works performed, to be eligible for regularisation, has
to be integral and essential to the functioning of the
employer.
th
132. By granting the 1/30 pay minimum pay scale plus dearness
allowance benefits, this Court, in the earlier round of litigation, had
proceeded on the premise of the 1988 OM issued by the Union of India
itself, which recognized the Daily Wage Employees’ entitlement to such
relief on the premise of having done work equivalent to regular employees
for eight hours a day for a continuous period without Court intervention.
Thus, the employees who are represented by the respondent nos. 1 to 2
herein otherwise fulfil the criteria as indicated above to be entitled to
regularisation.
133. Hence, this issue is decided against the appellants and it is held
1 31
that Umadevi (3) (supra) , insofar as it stipulated the criteria for
eligibility to regularisation, was not exhaustive but left it open for other
7 832
categories of persons, as explained in Jaggo (supra) , Shripal (supra)
9 33
and Dharam Singh (supra) , also to be included within the zone of
consideration for such purpose.
31 1
(2006) 4 SCC 1
7
2024 SCC Online SC 3826
32 8
2025 SCC Online SC 221
33 9
2025 SCC Online SC 1735
`
60
iv) Whether the Court can issue a writ of mandamus to the State
in respect of policy decisions; if so, whether the non-approval
of the 2023 Scheme can qualify as a ‘policy decision’
10 34
134. The UoI relies on Bhagwan and others (supra) , in paragraph no.
28 of which it was held that the Court should refrain from interfering
with policy decisions, which might have a cascading effect and financial
implications. It was further observed that whether to grant certain
benefits to the employees is to be left to an expert body.
11 35
135. In State of Bihar and another (Supra) , it was reiterated that there
is no obligation on the part of the State to disburse a grant, which is the
discretion of the State. Such conclusion was arrived at while considering
whether pension could be directed to be given. The Hon’ble Supreme
Court held that pension is a voluntary act and not enforceable by a writ
of mandamus.
136. Other judgments cited on behalf of the UoI on such proposition
reiterate the above position and, as such, are not discussed at length in
order to avoid being unnecessarily repetitive.
137. Thus, under normal circumstances, Courts refrain from passing
directions or issuing writs of mandamus to implement policy decisions of
36
the State.
34 10
(2022) 4 SCC 193
35 11
(2019) 3 SCC 803
36
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61
138. The question which thus arises is whether the non-approval of the
2023 Scheme is actually a policy decision. On a careful scrutiny, we find
5 37
that even in Vivek Krishna (supra) , the Hon’ble Supreme Court
observed that policy matters are never interfered with, unless patently
arbitrary, unreasonable or violative of the Article 14 of the Constitution of
India. (Emphasis supplied).
139. Thus, although a policy decision is generally not interfered with by
the Courts, it is not an absolute bar set in stone and if there is clear
infraction of fundamental or basic rights, in particular the right to
equality enshrined in Article 14 of the Constitution, or the decision is
arbitrary or unreasonable, there is a window of interference by Courts.
140. It has to be kept in mind that merely because financial
implications are involved, each and every decision of the State cannot be
labelled as a “policy decision”, since the implementation of any beneficial
scheme comes with a financial burden on the public exchequer.
141. The one-off grant of sanction to a Scheme cannot be placed on the
high ground of a ‘policy decision’ of the Government. Whenever any
decision is taken or any Scheme is implemented by the Government,
being it on the direction of Court or of its own, some financial implication
is always involved. Thus, mere financial consequence cannot be an
indicator of whether a decision is a matter of policy or not. To be a
‘policy’, there has to be conscious plan of action agreed upon or chosen
37 5
(2023) 17 SCC 302
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by a Government, which has to be of a general nature and not confined
to specific cases.
142. Another aspect of the matter cannot be overlooked. The
Constitution casts certain duties on the Government as the protector of
the fundamental and basic human rights of its citizenry. In such
backdrop, if implementation of a Scheme on the direction of a Court
involves the fulfillment of such duty of the State or enforcement of a
fundamental right or a basic human right of the citizens, the shield of
‘policy decision’ is not available to the Government as a defence against
such implementation.
738
143. In Jaggo (supra ) as discussed above, the Hon’ble Supreme Court
took into consideration the consistent advocacy of the International
Labour Organization (ILO), of which India is a founding member, for
employment stability and the fair treatment of the worker. The Hon’ble
Supreme Court further elaborated that the foundational purpose of
temporary contracts may have been to address short-term or seasonal
needs, but these are increasingly becoming a mechanism to evade long-
term obligations owed to employees. In the present case, the writ
petitioners/respondent nos. 1 and 2 espouse the cause of a section of
th
people who have been given the benefit of 1/30 pay along with dearness
allowance in recognition of the fact, in terms of the 1988 OM of the
Department of Personnel and Training of the Union Government, that
38 7
2024 SCC Online SC 3826
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63
they were not discharging merely casual or seasonal or intermittent
nature of work which is not of a full-time nature for which regular posts
cannot be created, but were working for 8 hours of a day and the nature
of the work entrusted was equivalent to that of regular employees.
7 39
144. As recognised in Jaggo (supra ) , if an employee is consistently
engaged in work equivalent to a regular employee over years, discharging
functions for which, although regular employment could be granted, has
not been so done by the concerned Department, and the work is essential
and integral to be functioning of the Department, such an employee
comes within the purview of the expanded scope of regularisation as laid
down in the triumvirate of post- Umadevi (3) judgments referred to above.
Hence, although a policy decision is not per se justiciable, if there are
involved elements of implementation of fundamental or basic human
rights and/or compliance with the fundamental duties of the State as the
of the citizens, the same transcends the realm of a mere
parens patriae
policy decision and enters into the domain of the mandate of the
Constitutional vision of giving access to justice and equality before the
law for all.
145. The “equal pay for equal work” principle was diluted in Umadevi (3)
1
(supra) in the specific context of the appointments being on purely ad
hoc and temporary basis. However, if the backdoor is the only door open
before the employees in view of the Government and/or its
39 7
2024 SCC Online SC 3826
1
(2006) 4 SCC 1
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64
instrumentalities not engaging regular employees for work equivalent to
that done by regular employees for years together, and continue to renew
the contracts of the Daily Rated Wagers over and over again, the
Government/its instrumentalities cannot take advantage of their own
wrong in refusing regularisation to such employees in the concerned
posts. Hence, although the implementation of the 2023 Scheme will be
attended by certain financial implications on the part of the Government,
it cannot be said that the matter is confined to a mere policy decision.
Thus, the defence of ‘policy decision’ is not applicable in the present
case.
2 40
146. In Indian Drugs (supra) , the Hon’ble Supreme Court deprecated
judicial activism except in extreme and exceptional situations and
observed that the Court cannot arrogate to itself the powers of the
Executive or the Legislature. In paragraph no. 41 of the said report, it
was held that the Supreme Court’s directions for regularisation passed in
certain cases would not operate as precedents unless law was specifically
laid down therein.
7 41 842
147. However, in the trilogy of Jaggo (supra) , Shripal (supra) and
9 43
Dharam Singh (supra) , law has clearly been laid down by the Hon’ble
Supreme Court within the contemplation of Article 141 of the
40 2
(2007) 1 SCC 408
41 7
2024 SCC Online SC 3826 7
42 8
2025 SCC Online SC 221
43 9
2025 SCC Online SC 1735
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65
Constitution of India. The propositions laid down therein are not
confined to the facts of the respective cases but are binding precedents.
148. Hence, it would not be judicial activism for this Court to act in
consonance with the said judgments; rather, it would be judicial
impropriety if those, being subsequent judgments specifically
1 44
considering, elaborating and expanding Umadevi (3) (supra) , are
derogated from.
149. Thus, we hold that although ordinarily the Court cannot issue a
writ of mandamus to implement policy decisions, approval of the 2023
Scheme is not restricted to a ‘policy decision’ but has ramifications in
ensuring the concerned workmen their dues in terms of judicial
pronouncements and their fundamental right of equality with regular
appointees discharging similar functions.
v) Whether the 2023 Scheme can pass muster on the touchstone
of the prevalent labour jurisprudence
150. As discussed above, in view of the section of DRMs who are
represented by the respondent nos. 1 and 2 having discharged work
against sanctioned functions of a perennial nature which are integral and
essential to the functioning of the employer for a substantial length of
time, they cannot be put at par with mere temporary/casual/seasonal
workers but have to be given the status equivalent to regular employees.
44 1
(2006) 4 SCC 1
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For all practical purpose, if an employee has been continued voluntarily
by the Government or its Department in regular service, it cannot be said
that the employee has been working as a mere casual worker. In the
present case, the DRMs concerned have been identified by the
respondent No.3-Administration itself to fulfill the said condition, and, as
such, cannot be denied regularisation. The 2023 Scheme, if granted,
does not pertain to any policy decision of the UoI at all but is in
discharge of the Constitutional obligation of the UoI to fulfill the
Constitutional vision of equality among equals, since the Daily Rated
745
Workers satisfy the tests as recognised in and the line of
Jaggo (supra)
judgments following the same and have also been recognized by the UoI
th
to fulfill such parameters by disbursing their dues of 1/30 of regular
pay and dearness allowance in line with the 1988 OM issued by the
Department of Personnel and Training, Government of India.
151. Hence, the grant of approval of the 2023 Scheme cannot be
labelled merely as a policy decision.
152. Let us now consider the 2023 Scheme itself in the above context.
The Scheme is set out in full hereinbelow:-
“1. Short Title and Commencement -
i. This Scheme shall be called Andaman & Nicobar Islands Casual
and Labourers/Daily Rated Mazdoors (DRMs) (Engagement
Regularization) Scheme-2023.
ii. The Scheme shall come into force from the date of its publication in
the Official Gazette of A&N Administration.
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2. The Casual Labourers/Daily Rated Mazdoors who fulfill the
following criteria are eligible for regularization under this Scheme:-
a. The Casual Labourers/Daily Rated Mazdoors should have put in at
least 10 years of continuous service as on 01.08.2023 without
availing the protection of any interim order of Courts or Tribunals.
b. The initial appointment of such Casual Labourers/Daily Rated
Mazdoors should not be illegal appointment even if irregular.
c. Such Casual Labourers/Daily Rated Mazdoors should possess the
prescribed minimum educational qualification and age as prescribed
in the Recruitment Rules prevalent at the time of his/her
engagement in A&N Administration.
The Department of Personnel & Training, Ministry of Personnel, PG
& Pensions, Govt. of India, New Delhi's vide OM No. 49014/7/2020-
Estt.(C) dated 07.10.2020 has adopted principles for regularization
of Casual Labourers/Daily Rated Mazdoors that "they should have
put in 10 years of continuous service as on 10.04.2006 and
engaged against sanctioned posts”. Hon’ble High Court at Calcutta,
Circuit Bench at Port Blair vide Order dated 19.12.2022 in MA/9 of
2022 has categorically removed the distinction between the DRMs
working against sanctioned post or otherwise.
4. The Personnel Department, A & N Administration shall publish the
Provisional list of Casual Labourers/Daily Rated Mazdoors based
on the data uploaded, in the DRMs Portal by the various
departments and claims/objections shall be invited through their
respective Heads of Departments, within 30 days from the date of
publishing the provisional
lists.
5. Every Casual Labourers/Daily Rated Mazdoors who fulfills the
conditions as stated in clause 2 (a, b & c) above should
"concurrently" file his/her claims and objections to their respective
Head of Departments within 30 days of publishing of the
provisional list as per clause 6 below.
6 List of documents to be submitted by Casual Labourers/ Daily
Rated Mazdoors to the concerned Head of Departments so as to
ensure their eligibility are as under:
a. Self attested / Certified copies of all engagement orders in
chronological order in support of his / her claim about fulfilling
minimum criteria i.e; at least 10 years of continuous service as on
01.08.2023 (starting from 01.08.2013 or earlier).
b. Attested copies of minimum essential educational qualification in
Support of his / her claim about fulfilling minimum educational
qualification as on date of initial engagement as Casual
Labourers/Daily Rated Mazdoors in this U,T. Administration on or
before 01.08.2013.
c. Attested copies of documentary evidence in Support of his/ her date
of birth such as Birth Certificate / PAN / EPIC /Aadhar etc.
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68
d. Attested copies of any other documents in support of his / her claim
or eligibility.
7. The concerned Heads of Department(s) shall verify the educational
qualification, age as on initial engagement as Casual
Labourers/Daily Rated Mazdoors in this U,T Administration, initial
date of engagement with reference to the engagement order / any
valid document and shall certify the eligibility of the claims of each
and every Casual Labourers/Daily Rated Mazdoors before
forwarding it to the Assistant Secretary (Personnel), Secretariat, A &
N Administration.
For the purpose, 3 types of lists shall be prepared by the
concerned Heads of Department(s) as per Annexure I, II & III
(Attachment) within next 15 days i.e; after expiry of stipulated 30
days period of claims and objections as stated above at clause 4.
8. The Personnel Department, A & N Administration after processing
claims and objections, will finalize the list of employees eligible for
regularization with the approval of Hon'ble Lt. Governor, A & N
Islands.
The Personnel Department, A &s N Administration will
prepare another list of Casual Labourers/Daily Rated Mazdoors
who have been provided the benefit of 1/30th of minimum Pay plus
DA but not eligible for regularization in terms of the stipulations of
this scheme stated in clause-2 (a, b & c) above: They will, however,
be provided age relaxation in all future recruitments up to a period
of their engagement as Casual Labourers/Daily Rated Mazdoors, in
A&N Administration.
Those Casual Labourers/Daily Rated Mazdoors available in
the list who fail to get absorbed through regular selection process
may continue as such, depending upon the genuine requirement of
the department for Such engagement.
If the total number of Casual Labourers/Daily Rated
Mazdoors being regularized under the Scheme is more than the
available vacant posts, then equal number of (supernumerary posts
would be created to accommodate all such Casual Labourers/Daily
Rated Mazdoors for regularization, These supernumerary posts will
however be co- terminus with the remaining service of the
regularized Casual Labourers/Daily' Rated Mazdoors and shall
cease to exist thereafter.
The Department of Personnel, A & N Administration will be
the Nodal department for the implementation of this Scheme.
This regularization Scheme shall be implemented only after
seeking concurrence and ratification from Department of Personnel
and Training, Ministry of Personnel, Public Grievances & Pensions,
Govt. of India.
9. Al Departments/Autonomous Bodies under Andaman & Nicobar
Administration shall ensure that there is no more engagement of
Casual Labourers/Daily Rated Mazdoors for attending to work of a
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69
regular nature, failing which accountability will be fixed upon the
concerned official.”
153. Sub-clause (a), (b) and (c) of Clause 2 of the Scheme clearly
stipulate the eligibility criteria for regularisation which are in consonance
1 46
with Umadevi (3) (supra ) . However, the unnumbered paragraph
immediately following sub-clause (c) provides that the distinction
between the DRMs working against sanctioned posts or otherwise has
747
been thereby removed. However, in view of Jaggo (supra) and the string
of judgments of the Hon’ble Supreme Court following the propositions
laid down therein, regularisation is not restricted to employment against
“sanctioned posts”, which is only one of the valid modes as recognised in
1
Umadevi (3) (supra) , but can also happen when the Daily Rated
Workman performs “sanctioned functions” of the employer. Thus, if such
minor clarification is deemed to stand incorporated within the category of
“irregular” engagements, which already features in the 2023 Scheme in
terms of the Umadevi (3) pronouncement, even such slight crease in the
Scheme can easily be ironed out.
154. Even otherwise, sufficient checks and safeguards have been
introduced in the Scheme itself, by incorporating in it a scrutiny
mechanism to assess the eligibility of individual DRMs on a case-to-case
basis. Thus, the Scheme does not provide a blanket mechanism, as
46 1
(2006) 4 SCC 1
47 7
2024 SCC OnLine SC 3826
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70
argued by the UoI, for regularising all and sundry who work as casual
labourers.
155. Thus, the impugned judgment, directing the Department of
Training and Personnel, Government of India, to implement the 2023
Scheme which has been notified in August, 2003, is otherwise tenable in
the eye of law, with the small rider that the Scheme has to be ‘read up’ in
7 48
consonance with the trio of judgments starting from Jaggo (supra) . .
156. Thus, in the event the term “irregular” featuring in Clause 2, sub-
clause (b) of the Scheme is modified to read into it the criteria as
discussed in paragraph no. 131 above, there cannot remain any further
hitch in approving the same.
Conclusion
157. In the light of the above observations, the Court is of the opinion
that the impugned judgment ought to be modified in the context
indicated above, by taking into account the tests formulated in
paragraph no. 131 of the instant judgment.
158. Accordingly, MAT/70/2026 is disposed of by modifying the
impugned judgment dated February 19, 2026 passed in WPA/547/2024
by passing the following direction:
(i) The Appellants, through the Department of Personnel &
Training, Ministry of Personnel, Public Grievances and
Pensions, Government of India (represented in the present
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71
appeal by its Secretary, being appellant no. 2), shall, within
90 (ninety) days from date, accord approval to the Scheme of
2023, as notified by the respondent No. 3 in August, 2023,
by reading up the said Scheme to the extent that
immediately after sub-clause (c) of Clause-2, the following
proviso shall be inserted:
“Provided that the term “irregular appointment” in sub-
clause (b) above shall include employees:
(i) who possess the prescribed minimum qualifications;
(ii) whose appointment shall be against “sanctioned
posts” or “sanctioned functions”;
(iii) whose engagement as DRM (Daily Rated Mazdoor)
has been for a substantial length of time in work of a
perennial nature; and
(iv) the nature of work performed by whom is integral
and essential to the functioning of the employer.”
159. For the sake of clarity, the revised Clause 2 of the 2023 Scheme
shall read as follows:
“2. The Casual Labourers/Daily Rated Mazdoors who fulfill
the following criteria are eligible for regularization under
this Scheme:-
a. The Casual Labourers/Daily Rated Mazdoors should have
put in at least 10 years of continuous service as on
01.08.2023 without availing the protection of any
interim order of Courts or Tribunals.
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2024 SCC Online SC 3826
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b. The initial appointment of such Casual Labourers/Daily
Rated Mazdoors should not be illegal appointment even
if irregular.
c. Such Casual Labourers/Daily Rated Mazdoors should
possess the prescribed minimum educational
qualification and age as prescribed in the Recruitment
Rules prevalent at the time of his/her engagement in
A&N Administration.
Provided that the term “irregular appointment” in sub-
clause (b) above shall include employees:
(i) who possess the prescribed minimum
qualifications;
(ii) whose appointment shall be against “sanctioned
posts” or “sanctioned functions”;
(iii) whose engagement as DRM (Daily Rated Mazdoor)
has been for a substantial length of time in work of
a perennial nature; and
(iv) the nature of work performed by whom is integral
and essential to the functioning of the employer.”
160. CAN/2/2026 is also disposed of consequentially.
161. There will be no order as to costs.
162. Urgent Photostat certified copies of this judgment, if applied for, be
supplied to the parties upon compliance with all requisite formalities.
( SABYASACHI BHATTACHARYYA, J.)
I agree
( SMITA DAS DE, J. )
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