Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 2053 OF 2009
(Arising out of SLP (C) No.12687 of 2003)
Pinaki Chatterjee & Ors. … Appellants
Versus
Central Administrative Tribunal & Ors. … Respondents
J U D G M E N T
S.B. Sinha, J.
1. Leave granted.
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2. The right of the appellants herein, if any, to be regularized in Class
‘C’ Services of the Railways is the question involved in this appeal which
arises out of a judgment and order of the High Court of Jharkhand at Ranchi
whereby and whereunder the writ petition filed by the appellants against the
order of the Central Administrative Tribunal, Patna Bench, Circuit Ranchi
passed in OA No.604 of 1997 and OA No.398 of 1998, was dismissed.
3. Appellants were directly appointed in Group ‘C’ posts except serial
No.5 in the Electrical Department of the Railway Electrification Project. As
despite working for a long time, their services were not regularized, they
filed two original applications before the Central Administrative Tribunal,
Patna, Circuit Bench, Ranchi, praying, inter alia, for a direction upon the
respondents to finalise their regular absorption in the services in grade ‘C’
posts against the sanctioned strength which were marked as OA Nos.604 of
1997 and OA No.398 of 1998. By reason of a judgment and order dated
5.7.2001, the said original applications were allowed, in part, directing :
“In the result, the applicants’ claim to be
regularized in Group ‘C’ post as asserted in the
OAs in hand is not acceptable, instead they were
required to be regularized in feeder cadre in
Group-‘D’ post by providing pay protection of ‘C’
post.”
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4. Appellants aggrieved thereby filed a writ petition in the High Court of
Jharkhand at Ranchi. The said writ petition has been dismissed by reason of
the impugned judgment, stating :
“No doubt, the petitioners were casually employed
in Grade-C initially and thereafter they acquired
temporary status, but the fact remains, and the
finding of the fact by the Tribunal is, that the
selections of the petitioners were not regular
selections. It is, no doubt, true that they had taken
a trade test when they were recruited, though
casually in Grade-C. But that would not make
their selection regular selection. In our view, the
ratio of the decision of the Supreme Court that in
such promotional posts, there should not be
regularization and the regularization could only be
in the lower grade, is clearly applicable to the case
on hand. We are satisfied that the Tribunal has
correctly come to the conclusion that the
petitioners in the case on hand could be
regularized only in Group-D posts, though
protecting their pay and not in Grade-C posts. On
going through the order of the Tribunal, we are not
satisfied that it suffers from any error apparent on
the face of the record justifying our interference.
Nor can we accept the argument that the decision
is unjust since the pay of the petitioners stood
protected, notwithstanding the fact that they are
sought to be regularized in a lower post. In this
situation, we see no reason to interfere.”
5. Mr. Sanyal, learned senior counsel in appearing support of the appeal,
would contend that keeping in view the facts and circumstances of the case
the services of the appellants should have been directed to be regularized in
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Group ‘C’ posts as they were appointed directly thereto. It was urged that
the Tribunal and consequently, the High Court committed a serious error in
opining that the posts in Group ‘C’ in the Central Government were
required to be filled up only through promotion and not through direct
recruitment. The learned counsel would also contend that from a letter
dated 25.8.1997, which was issued by way of a representation made by the
appellants to the General Manager, Central Organisation, Railway
Electrification, Allahabad, it would appear that they had, except one, were
directly appointed in the posts of T.C.M. Electrician Fitter, W/Driver Grade
‘C’ posts.
Learned counsel would contend that it is also not a case where the
appellants do not possess the requisite qualification. They had also passed
the trade test. It was furthermore urged that the Patna High Court in a
similar situation having granted relief, the Jharkhand High Court committed
a serious error in refusing to grant the same.
6. Mrs. K. Amareswari, learned senior counsel appearing on behalf of
the respondents, on the other hand, supported the impugned judgment.
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7. Indisputably, the vacant posts in the Railway Services are required to
be filled up in terms of the Recruitment Rules. Respondents in their counter
affidavit, stated :
“In reply to this para, it is submitted that the 50%
Direct Recruitment quota meant for the post of
permanent way Mistry 25% vacancies has been
earmarked to be filled up through limited
departmental Competitive Examination from
amongst Gang Man/Key Man and Mates with the
qualification of 10+2 with science & maths and
having put minimum of 3 years regular service
shortfall of any be made good from amongst
Gangman/Keyman/Mates having the qualification
of matriculation/HSLC with three years regular
service. Further, shortfall, if any, to be added upto
the direct recruitment.”
8. Appellants, indisputably, were appointed as daily rated casual
labourers for project work. The said project having been undertaken for
electrification of Railways at Ranchi was a time bound one. It did not have
its own cadre. Engagement of any casual labour under the said project,
therefore, did not amount to any regular recruitment. It may be that the
Railway Administration had committed serious illegalities in making
recruitment directly to the said posts, the same by itself would not confer
any right upon the appellants for being regularized in Group ‘C’ post.
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The question, however, which arises for consideration is as to
whether in the peculiar facts and circumstances of this case, the High Court
should have directed regularization of the services of the appellants.
It has not been denied or disputed that Railway Electrification was a
temporary project. As noticed hereinbefore, the posts held by the
appellants, indisputably, were purely on a casual basis and not against any
cadre post.
Appellants furthermore have not been appointed upon compliance of
the provisions of Articles 14 and 16 of the Constitution of India and/or the
recruitment rules framed under the proviso appended to Article 309 of the
Constitution of India.
Our attention has been drawn to a Board circular dated 11.5.1973
wherein, inter alia, it was laid down :
“(2) When casual labour are engaged in skilled
categories, the relevant scale for the purpose of
determining their ages (as per orders regulating
wages of Casual labour) will be that applicable to
skilled artisans. On attaining temporary status
they shall be paid in that scale. Similarly for
Project Casual Labour is skilled categories with
180 days continuous service, consolidated wage
shall be at the minimum of the scale of pay
applicable to artisans plus DA payment on this
basis will be admissible, however, from the date of
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passing prescribed trade test if the same is later
than the date of attaining temporary status or date
of completion of 180 days, as the case may be
from whichever date is later. No casual labour in
skilled category can be engaged without the
approval of an authority lower than a Divisional
Engineer.
(Board’s No.E(NG)II/84/CL 58 of 20.12.85)
Note:- Past cases decided otherwise than in term
of the letters dated 20.12.1985 cited above or in
terms of final orders of a court of competent
jurisdiction, shall not be re-opened. Where,
however, a person was continuing as a casual
labour in a skilled category on 20.12.1985 (date of
issue of the said letter) his case will be regulated
prospectively in terms of the provisions of the said
letter (dated 20.12.1985).
(3). Casual labour engaged in work charged
establishment of certain Departments who get
promoted to semi-skilled, skilled and highly
skilled categories due to non-availability of
regular departmental candidates and continue to
work as casual employees for a long period, can
straightway be absorbed in regular vacancies in
skilled grades provided they have passed the
requisite trade test, to the extent of 25% of the
vacancies reserved for departmental promotion
from the unskilled and semi-skilled categories.
These orders also apply to the casual labour when
are recruited directly in the skilled categories in
work charged establishments after qualifying in
the trade test.”
9. The said circular letter of the Railway Board which had been issued
long back, however, did not take into consideration the limitation of power
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of a State to make appointments in total disregard of mandatory provisions
of the recruitment rules and/or the constitutional provision.
This aspect of the matter has been considered in A. Umarani v.
Registrar, Cooperative Societies & Ors. [(2004) 7 SCC 112], holding :
“No regularization is, thus, permissible in exercise
of the statutory power conferred under Article 162
of the Constitution if the appointments have been
made in contravention of the statutory rules.”
Yet again in a Constitution Bench of this Court in Secretary, State of
Karnataka v. Umadevi (3) [(2006) 4 SCC 1], laid down the law in the
following terms :
“ 43. Thus, it is clear that adherence to the rule of
equality in public employment is a basic feature of
our Constitution and since the rule of law is the
core of our Constitution, a court would certainly
be disabled from passing an order upholding a
violation of Article 14 or in ordering the
overlooking of the need to comply with the
requirements of Article 14 read with Article 16 of
the Constitution. Therefore, consistent with the
scheme for public employment, this Court while
laying down the law, has necessarily to hold that
unless the appointment is in terms of the relevant
rules and after a proper competition among
qualified persons, the same would not confer any
right on the appointee. If it is a contractual
appointment, the appointment comes to an end at
the end of the contract, if it were an engagement or
appointment on daily wages or casual basis, the
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same would come to an end when it is
discontinued. Similarly, a temporary employee
could not claim to be made permanent on the
expiry of his term of appointment. It has also to be
clarified that merely because a temporary
employee or a casual wage worker is continued for
a time beyond the term of his appointment, he
would not be entitled to be absorbed in regular
service or made permanent, merely on the strength
of such continuance, if the original appointment
was not made by following a due process of
selection as envisaged by the relevant rules. It is
not open to the court to prevent regular
recruitment at the instance of temporary
employees whose period of employment has come
to an end or of ad hoc employees who by the very
nature of their appointment, do not acquire any
right. The High Courts acting under Article 226 of
the Constitution, should not ordinarily issue
directions for absorption, regularisation, or
permanent continuance unless the recruitment
itself was made regularly and in terms of the
constitutional scheme.”
(Emphasis supplied)
Furthermore, the appellants have not produced their offers of
appointment. If they were appointed only for the project work and that too
in ex-cadre posts, the same would never mean that they had appointed on a
regular basis. It has not been shown that temporary status either had been or
could be granted to the appellants.
10. We are not oblivious of the fact that some Benches had taken a
somewhat contrary view but recently in a Three Judge Bench decision of
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this Court in Official Liquidator v. Dayanand & Ors. [(2008) 10 SCC 1],
stated the law, thus :
“90. We are distressed to note that despite
several pronouncements on the subject, there is
substantial increase in the number of cases
involving violation of the basics of judicial
discipline. The learned Single Judges and Benches
of the High Courts refuse to follow and accept the
verdict and law laid down by coordinate and even
larger Benches by citing minor difference in the
facts as the ground for doing so. Therefore, it has
become necessary to reiterate that disrespect to
constitutional ethos and breach of discipline have
grave impact on the credibility of judicial
institution and encourages chance litigation. It
must be remembered that predictability and
certainty is an important hallmark of judicial
jurisprudence developed in this country in last six
decades and increase in the frequency of
conflicting judgments of the superior judiciary
will do incalculable harm to the system inasmuch
as the courts at the grass root will not be able to
decide as to which of the judgment lay down the
correct law and which one should be followed.
91. We may add that in our constitutional set up
every citizen is under a duty to abide by the
Constitution and respect its ideals and institutions.
Those who have been entrusted with the task of
administering the system and operating various
constituents of the State and who take oath to act
in accordance with the Constitution and uphold
the same, have to set an example by exhibiting
total commitment to the Constitutional ideals. This
principle is required to be observed with greater
rigour by the members of judicial fraternity who
have been bestowed with the power to adjudicate
upon important constitutional and legal issues and
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protect and preserve rights of the individuals and
society as a whole. Discipline is sine qua non for
effective and efficient functioning of the judicial
system. If the Courts command others to act in
accordance with the provisions of the Constitution
and rule of law, it is not possible to countenance
violation of the constitutional principle by those
who are required to lay down the law.”
11. In the facts and circumstances of this case, as noticed hereinbefore, in
our opinion, the decision of this Court in Union of India v. Moti Lal [(1996)
7 SCC 481] would be applicable wherein regularization on a promotable
post has been held to be impermissible in law, stating :
“ 9. So far as the first question is concerned, on
examining the relevant provisions of the rules as
well as the administrative instructions issued by
the Railway authorities we are of the considered
opinion that it is not permissible to appoint a
person directly as a mate and it is only a
promotional post from Class IV post of gangman
and keyman. These gangmen and keymen can be
promoted to the post of mate in Class III subject to
their suitability and efficiency being tested
through trade test. It is no doubt true that these
respondents under certain circumstances had been
appointed directly as casual mates and they
continued as such and further by virtue of their
continuance they acquired temporary status but
that by itself does not entitle them to be
regularised as mates since that would be contrary
to the rules in force. In our considered opinion the
respondents did not acquire a right for
regularisation as mates from mere fact of their
continuance as casual mates for a considerable
period.”
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12. For the reasons aforementioned, there is no merit in the appeal. The
same is dismissed accordingly. No costs.
……………………………….J.
[S.B. Sinha]
..…………………………..…J.
[Dr. Mukundakam Sharma]
New Delhi;
March 31, 2009