Service Law – Regularization – Respondents-part time employees sought regularization – Claim rejected by Central Administrative Tribunal, though with certain directions – Writ petitions filed by both the parties – High Court inter alia directed the appellants to reformulate regularization policy and to take a decision to sanction the post in a phased manner – On appeal, held: Respondents were working as contingent paid part-time sweepers (Safai Karamcharies working for less than five hours a day) in a Post Office – There are no sanctioned posts of Safaiwalas in the Post Office in which the respondents were working – No documentary evidence is on record to prove that the respondents worked continuously – Directions issued by the High Court are beyond the power of the judicial review – Further, respondents are not entitled for the benefit of regularization even under the Department’s regularization policy dtd. 30.06.14 which though is in consonance with the law laid down in Secretary, State of Karnataka & Ors. Vs. Umadevi and Ors. reported as [2006] 3 SCR 953, but does not apply to the part-time workers who do not work on the sanctioned post – Nobody can claim regularization as a matter of right dehors the regularization policy – Impugned judgment set aside – Constitution of India – Art.226.
Constitution of India – Art.226 – Judicial Review – Regularization – Held: Regularization policy to regularize the services of the employees working on temporary status and/or casual labourers is a policy decision – Court cannot issue mandamus and/or issue mandatory directions in judicial review to do so.
Service Law – Government Institution – Part-time employees, parity with regular employees – Held: Part-time temporary employees in a Government run institution cannot claim parity in salary with regular employees of the Government on the principle of equal pay for equal work.
Allowing the appeals, the Court
HELD: 1.1 The respondents-original applicants were working as contingent paid part-time sweepers (Safai Karamcharies working for less than five hours a day) in a Post Office at Chandigarh. There are no sanctioned posts of Safaiwalas in the Post Office in which the respondents were working. There is no documentary evidence on record to establish and prove that the respondents were working continuously. Even it is not the case on behalf of the respondents that their appointment was done after following due procedure of selection and to that extent, it cannot be said that their appointments were irregular. As such in the absence of any sanctioned posts in the Post Office in which the respondents were working, there was no question of appointing the respondents after following due procedure. Pursuant to the order passed by the Tribunal and the order passed in the contempt proceedings, the appellants came out with a regularization policy dated 30.06.2014. The aforesaid regularization policy has been framed considering the decision of this Court in the case of Umadevi. That thereafter pursuant to the interim order passed by the High Court dated 06.08.2014, the appellant authorities reconsidered the claim of the respondents herein as per the regularization policy dated 30.06.2014 and the same came to be rejected vide communication dated 11.09.2014 mainly on the ground that there are no sanctioned posts and the employees have not completed ten years of service as on 10.04.2006. [Paras 8-8.2][1168-C-E, F; 1169-C-D]
Secretary, State of Karnataka & Ors. Vs. Umadevi and Ors., (2006) 4 SCC 1: [2006] 3 SCR 953 – referred to.
1.2 The respondents served as part-time employees and were contingent paid staff. There are no sanctioned posts in the Post Office in which the respondents were working, therefore, the directions issued by the High Court in the impugned judgment and order are not permissible in the judicial review under Article
226 of the Constitution. The High Court cannot, in exercise of the power under Article 226, issue a Mandamus to direct the Department to sanction and create the posts. The High Court, in exercise of the powers under Article 226 of the Constitution, also cannot direct the Government and/or the Department to formulate a particular regularization policy. Framing of any scheme is no function of the Court and is the sole prerogative of the Government. Even the creation and/or sanction of the posts is also the sole prerogative of the Government and the High Court, in exercise of the power under Article 226 of the Constitution, cannot issue Mandamus and/or direct to create and sanction the posts. Even the regularization policy to regularize the services of the employees working on temporary status and/or casual labourers is a policy decision and in judicial review the Court cannot issue Mandamus and/or issue mandatory directions to do so. [Paras 8.4, 8.5][1172-C-G]
State of Maharashtra & Anr. Vs. R.S. Bhonde & Ors., (2005) 6 SCC 751 : [2005] 2 Suppl. SCR 763; State of Rajasthan and Ors. Vs. Daya Lal and Ors., (2011) 2 SCC 429 : [ 2011] 1 SCR 707 – relied on.
Part-time employees are not entitled to seek regularization as they are not working against any sanctioned post and there cannot be any permanent continuance of part-time temporary employees. Part-time temporary employees in a Government run institution cannot claim parity in salary with regular employees of the Government on the principle of equal pay for equal work. The directions issued by the High Court in the impugned judgment and order, more particularly, directions in paragraphs 22 and 23 are unsustainable and beyond the power of the judicial review of the High Court in exercise of the power under Article 226 of the Constitution. Even otherwise, the Union of India/Department subsequently came out with a regularization policy dated 30.06.2014, which is absolutely in consonance with the law laid down by this Court in the case of Umadevi, which does not apply to the part-time workers who do not work on the sanctioned post. The regularization can be only as per the regularization policy declared by the State/Government and nobody can claim the regularization as a matter of right dehors the regularization policy. Therefore, in absence of any sanctioned post and considering the fact that the respondents were serving as a contingent paid part-time Safai Karamcharies, even otherwise, they were not entitled for the benefit of regularization under the regularization policy dated 30.06.2014. [Paras 8.7, 8.8][1174-E, F-H; 1175-A]
The impugned judgment and order passed by the High Court and, more particularly, the directions contained in paragraphs 22 and 23 in the impugned judgment and order are quashed and set aside. However, quashing and setting aside the directions issued in terms of paragraph 23 in the impugned judgment and order shall not affect the case of the respondents and they shall be entitled to the reliefs as per paragraph 23 of the impugned judgment and order passed by the High Court. [Para 9][1175-D-E]
Union of India and Ors. Vs. A.S. Pillai and Ors., (2010)
13 SCC 448; Secretary, Ministry of Communications and Ors. Vs. Sakkubai and Anr. (1997) 11 SCC 224; Dr. Ashwani Kumar Vs. Union of India and Anr., (2020)
13 SCC 581; State of Karnataka and Anr. Vs. Dr. Praveen Bhai Thogadia, (2004) 4 SCC 684 : [2004] 3 SCR 652; Anuradha Bhasin Vs. Union of India and Ors., (2020) 3 SCC 637: (2020) AIR 1308; Oil and Natural Gas Corporation Vs. Krishan Gopal & Ors., (2020) SCC Online SC 150; Mineral Exploration Corpn. Employees’ Union Vs. Mineral Exploration Corpn. Ltd. and Anr., (2006) 6 SCC 310 : [2006] 4 Suppl. SCR 87 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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