Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 2129-2130 OF 2004
UNION OF INDIA & ORS. — APPELLANTS
VERSUS
VARTAK LABOUR UNION — RESPONDENT
J U D G M E N T
D.K. JAIN, J.:
1. Challenge in these appeals, by special leave, is to the judgments and
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orders dated 27 March, 2001 and 22 January, 2003 delivered by a
Division Bench of the Gauhati High Court at Guwahati in Writ Appeal
No. 548 of 1996 whereby it has directed appellant No.1 viz. Union of
India to regularize the services of the members of the respondent Union,
employed by the Border Roads Organization (for short the “BRO”), as
postulated in Office Memo No. Sectt. BRDB ID No. BRDB/04(90)/99-
nd
GE-II dated 2 February, 2001. Appellants No. 2 to 17 are the
functionaries of appellant No. 1.
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2. Shorn of unnecessary details, the facts essential for adjudication of the
present appeals may be stated as follows:
The respondent is a registered trade union comprising of casual
workers employed by the BRO, in terms of paragraph 503 of the Border
Road Regulations (for short “the Regulations”), some of whom have been
working with the BRO for the last thirty years. In the year 1993, the
respondent filed a writ petition before the Gauhati High Court praying for
issuance of a writ, inter-alia, directing appellant No.1 to regularize the
services of the members of the respondent.
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3. Vide judgment dated 27 August, 1996, the High Court allowed the writ
petition, and directed appellant No.1 to regularize the services of the
members of the respondent who have been in service for more than five
years, within six months of the date of order.
4. Being aggrieved, appellants filed a writ appeal before a Division Bench
of the Gauhati High Court. The Division Bench, while partly allowing
the appeal, modified the order of the Single Judge on the basis of a
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circular dated 25 May, 1988 issued by one Brig. S.K. Mehta, D.D.G.
(P&V), for and on behalf of the Director General Border Roads, New
Delhi to all Chief Engineers for consideration of regularization of
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casually paid labourers employed by the BRO. The Division Bench held
that:
“There shall be a writ of mandamus issued to the appellant
herein with a direction to consider the case of these employees
who are working in the above Organization/Institution who
have put in more than 5 (five) years and above period of service
for the purpose of regularization of their service in the light of
the Circular referred to above keeping in view of the
requirements of Articles 14, 15 and 16 for the purpose of
maintaining the reservation Policy followed by the Govt. of
India.
In so far as the casual labourers working in the
organization/Institution are concerned, they shall continue to
work till they attain the eligibility coming within the purview of
the Circular for being considered.”
5. At this juncture, it would be expedient and useful to extract relevant
portions of the said circular, which read as follows:
“REGULARISATION OF CASUALLY PAID LABOURERS
EMPLOYED IN BORDER ROADS ORGANIZATION-
CONSTITUTION OF BOARD OF OFFICERS TO EXAMINE
THE PROBLEMS.
1. Border Roads Organisation has been employing a large
number of Casual Labourers for the past 28 years. There have
been cases where Labour Unions have been formed though not
recognized by us, as also there have been demands for their
regularization. A large number of Court cases are also pending,
connected with this issue.
2. Ministry of Surface Transport (BRDB) has offered a Board
of Officers to examine various aspects. The terms of reference
of the Board are at appendix ‘A’.
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3. Before the Board examines the terms of reference as also
other connected aspects, certain data is required from the
Projects which is discussed in the succeeding paragraphs.
…………………………………………………………………
…………………………………………………………………..
7. It may be appreciated that the recommendations of the Board
of Officers have far reaching consequences. Your views and
suggestions are, therefore should be deliberate and keeping in
view the long term implications of the suggestions made. CEs
are therefore, requested to kindly give personal thought to these
problems and make their recommendations accordingly.
8. We would expect your reply by 30 June 88 positively.”
6.
Being aggrieved by the directions of the Division Bench, the appellants
preferred an appeal, by special leave, before this Court. Vide order dated
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19 February, 1999, this Court, while allowing the appeal and remanding
the matter back to the Division Bench, observed thus:
“It appears that there was some bona fide misunderstanding by
learned counsel who appeared before the Division Bench on
behalf of the appellants. Even that apart, the Circular dated
25.05.1988 on which reliance was placed requires a closer
scrutiny of the Division Bench of the High Court. This was
unfortunately not done because of the aforesaid
misunderstanding. Hence, without expressing any opinion on
the merits of the controversy between the parties, we deem it fit
in the interest of justice to allow this appeal and set aside the
order of the Division Bench.”
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7. During the course of fresh hearing of the writ appeal before the Division
Bench, senior Central Government standing counsel appearing on behalf
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of the appellants stated that pursuant to circular dated 25 May 1988, the
appellants had framed a scheme vide Office Memo No. Sectt. BRDB ID
nd
No. BRDB/04(90)/99-GE-II dated 2 February, 2001, for the welfare of
casually paid employees. Upon perusal of the scheme and recording the
satisfaction of the counsel appearing for the respondent-Union, the Court
observed that the scheme had been framed on a rational basis.
Accordingly, disposing of the writ appeal on the basis of the said office
memo, the Division Bench directed the appellants to implement the said
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office memo dated 2 February, 2001.
8. Still being aggrieved, the appellants preferred a review application before
the High Court. Vide the impugned order, the Division Bench declined to
entertain the said application.
9. Hence, the present appeals against the main judgment and the order in
review.
10. We have heard learned counsel for parties and perused the
documents/circulars referred to and relied upon by the High Court as also
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some office notings produced before us by learned counsel appearing for
the appellants.
11. Mr. Vivek Tankha, the learned Additional Solicitor General of India,
strenuously urged that the High Court committed serious error in law in
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treating communication dated 2 February 2001, as a final scheme
framed for regularization of the casual labourers engaged by BRO for a
maximum period of 6 months at a time. According to the learned
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counsel, it is evident from communication dated 2 February 2001, that
as on that date the Border Roads Development Board was still in the
process of collecting information from other departments of the Central
Government, particularly from the Railways for the purpose of
examining if any of such schemes could be adopted in the BRO. In
support of his stand that so far no scheme for absorption or regularization
of casual labourers had been devised, learned counsel placed before us
some correspondence exchanged between the Headquarters of the Border
Roads Development Board and the office of the Director General Border
Roads, which shows that in view of the guidelines issued by the DOPT, it
has not been possible to frame and implement any policy or scheme for
regularization of muster roll working in BRO. It was asserted that
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circular dated 25 May 1988, on which emphasis is laid on behalf of the
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respondent, was merely a proposal which has been misconstrued by the
High Court as a scheme. It was urged that the proposals or suggestions
by the field officers in favour of the respondent Union did not result in
creating any enforceable right in their favour. Placing reliance on the
decision of this Court in Indian Drugs & Pharmaceuticals Ltd. Vs.
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Workmen, Indian Drugs & Pharmaceuticals Ltd. , learned counsel
submitted that formulation of any scheme for regularization being a
matter of policy, it is not within the domain of the court to direct
regularization of temporary appointees in the absence or dehors the
recruitment rules.
12. Per contra, Dr. K.S. Chauhan, in his written submissions, has submitted
that even if it is assumed that there is no approved proposal or scheme for
regularization of the casual labourers, on the touchstone of Articles 14,
16 and 21 of the Constitution of India, this Court is empowered to
examine whether the action of the appellants is not opposed to principles
of reasonableness evolved by this Court, as the casual labourers have
been working with BRO for the last twenty to thirty years. It is alleged
nd
that the appellants are intentionally withholding the scheme dated 2
February 2001 and, therefore, an adverse inference must be drawn
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(2007) 1 SCC 408
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against them. In support of his submission that there is clear
discrimination between the members of the Union and the General
Reserve Engineering Force (GREF), who have been declared to be
members of the Armed Forces in R. Viswan & Ors. Vs. Union of India
2
& Ors. , it is pointed out that the members of the respondent Union are
facilitating the GREF in hard positions and dangerous locations in hilly
areas to perform their functions. It is thus, argued that the directions
issued by the High Court are fully justified and should be implemented.
13. We are of the opinion that there is force in the contentions urged on
behalf of the appellants and these must prevail. We are convinced that
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the Division Bench has erroneously construed the Office memo dated 2
February, 2001 as an approved scheme for absorption and regularization
of the casual workers. It is manifest from a bare reading of the said
memo that it was merely in the nature of an inter-department
communication between the Border Roads Development Board
headquarters and its officials. We do not find any substance in the stand
of learned counsel for the respondent that the appellants are withholding
the approved scheme from this Court. This plea of the respondent that a
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final scheme did come into existence on 2 February 2001, stands belied
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(1983) 3 SCC 401
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from the letter of the Border Roads Development Board dated 22 July
2002. It would be useful to extract the relevant portion of the said letter,
which reads:
“In the year 1993, a Labour Welfare Scheme i.e. Scheme for
Grant of Temporary Status and Regularisation of Casual
Workers was formulated. Thus, when we approached DOPT
for approval to the scheme proposed by DGBP, they did not
support our proposal and advised us that if we felt that there are
sufficient grounds to formulate a separate scheme which is at
variance with the scheme of DOPT, we may approach the
Cabinet for approval of such scheme. The Secretariat delved
into the issue at length and came to the conclusion that there is
not sufficient justification for going to the Cabinet for approval
of a separate scheme. This decision has already been
communicated to the Dte GBR vide our letter
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No.BRDB/04(129)/2000-GE.II dated 24 June, 2002.”
14. It is trite that inter-departmental communications and notings in
departmental files do not have the sanction of law, creating a legally
enforceable right. In Sethi Auto Service Station & Anr. Vs. Delhi
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Development Authority & Ors. , a Division Bench of this Court, in
which one of us (D.K. Jain, J.) was a member has observed thus:
“Needless to add that internal notings are not meant for outside
exposure. Notings in the file culminate into an executable order,
affecting the rights of the parties, only when it reaches the final
decision-making authority in the department, gets his approval
and the final order is communicated to the person concerned.”
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(2009) 1 SCC 180
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15. Similar views are echoed in Jasbir Singh Chhabra & Ors. Vs. State of
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Punjab & Ors. . This Court has observed that:
“It must always be remembered that in a democratic polity like
ours, the functions of the Government are carried out by
different individuals at different levels. The issues and policy
matters which are required to be decided by the Government
are dealt with by several functionaries some of whom may
record notings on the files favouring a particular person or
group of persons. Someone may suggest a particular line of
action, which may not be conducive to public interest and
others may suggest adoption of a different mode in larger
public interest. However, the final decision is required to be
taken by the designated authority keeping in view the larger
public interest.”
16. We are of the opinion that the respondent Union’s claim for
regularization of its members merely because they have been working for
BRO for a considerable period of time cannot be granted in light of
several decisions of this Court, wherein it has been consistently held that
casual employment terminates when the same is discontinued, and
merely because a temporary or casual worker has been engaged beyond
the period of his employment, he would not be entitled to be absorbed in
regular service or made permanent, if the original appointment was not in
terms of the process envisaged by the relevant rules. (See: Secretary,
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(2010) 4 SCC 192
10
5
State of Karnataka & Ors. Vs. Umadevi (3) & Ors. ; Official Liquidator
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Vs. Dayanand & Ors. ; State of Karnataka & Ors. Vs. Ganapathi
7
Chaya Nayak & Ors. ; Union of India & Anr. Vs. Kartick Chandra
8
Mondal & Anr.; Satya Prakash & Ors. Vs. State of Bihar & Ors. and
Rameshwar Dayal Vs. Indian Railway Construction Company Limited
9
& Ors. . )
17.
In Umadevi (3) (supra), a Constitution Bench of this Court had observed
that:
“It was then contended that the rights of the employees thus
appointed, under Articles 14 and 16 of the Constitution, are
violated. It is stated that the State has treated the employees
unfairly by employing them on less than minimum wages and
extracting work from them for a pretty long period in
comparison with those directly recruited who are getting more
wages or salaries for doing similar work. The employees before
us were engaged on daily wages in the department concerned
on a wage that was made known to them. There is no case that
the wage agreed upon was not being paid. Those who are
working on daily wages formed a class by themselves, they
cannot claim that they are discriminated as against those who
have been regularly recruited on the basis of the relevant rules.
No right can be founded on an employment on daily wages to
claim that such employee should be treated on a par with a
regularly recruited candidate, and made permanent in
employment, even assuming that the principle could be invoked
for claiming equal wages for equal work. There is no
5
(2006) 4 SCC 1
6
(2008) 10 SCC 1
7
(2010) 3 SCC 115
8
(2010) 4 SCC 179
9
(2010) 11 SCC 733
11
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. As has been held by this
Court, they cannot be said to be holders of a post, since, a
regular appointment could be made only by making
appointments consistent with the requirements of Articles 14
and 16 of the Constitution. 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. That would be treating unequals as equals.
It cannot also be relied on to claim a right to be absorbed in
service even though they have never been selected in terms of
the relevant recruitment rules. The arguments based on Articles
14 and 16 of the Constitution are therefore overruled.”
18. Explaining the dictum laid down in Umadevi (supra), a three judge
Bench in Official Liquidator (supra) has observed that:
“In State of Karnataka v. Umadevi (3) , the Constitution Bench
again considered the question whether the State can frame
scheme for regularisation of the services of ad
hoc/temporary/daily wager appointed in violation of the
doctrine of equality or the one appointed with a clear stipulation
that such appointment will not confer any right on the appointee
to seek regularisation or absorption in the regular cadre and
whether the Court can issue mandamus for regularisation or
absorption of such appointee and answered the same in
negative.”
19. In light of the settled legal position and on a conspectus of the factual
scenario noted above, the impugned directions by the High Court cannot
be sustained. These are set aside accordingly.
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20. Before parting with the case, we are constrained to observe that the
conduct of the appellants in engaging casual workers for a period of less
than six months, and giving them artificial breaks so as to ensure that
they do not become eligible for permanent status, as evidenced from the
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additional affidavit dated 23 April, 2010 does not behove the Union of
India and its instrumentalities, which are supposed to be model
employers. With anguish, we extract the relevant paragraph of the said
affidavit:
“Relying upon the provisions contained in Paragraph 501 to
518 of the Regulation, it was contended that the casual
labourers are mustered on daily or monthly basis. If on monthly
rates, the period of engagement shall be for a minimum period
of six months. It is a fact that large number of casual labourers
have worked with Project Vartak for number of years but their
period of engagement at no stage has existed more than six
months at a time. Their services are terminated before
completion of six month and as per requirement they are
recruited afresh by publishing Part II order by Mustering Unit.
Due to the fact that they have not been in continuous
engagement for more than six months they do not get the status
of permanent employee and accordingly as per Paragraph 503
of the Regulation referred to above, the casual personnel are not
eligible for any other privileges for continued employment
under the Government.”
(Emphasis supplied by us)
21. Therefore, in the facts and circumstances of the instant case, where
members of the respondent Union have been employed in terms of the
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Regulations and have been consistently engaged in service for the past
thirty to forty years, of course with short breaks, we feel, the Union of
India would consider enacting an appropriate regulation/scheme for
absorption and regularization of the services of the casual workers
engaged by BRO for execution of its on-going projects.
22. In the final analysis, the appeals are allowed, and the impugned
judgments and orders are set aside. However, in the circumstances of the
case, the parties are left to bear their own costs.
.……………………………………
(D.K. JAIN, J.)
.…………………………………….
(H.L. DATTU, J.)
NEW DELHI;
March 4, 2011.
ARS
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