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Supreme Court of India
Union Of India vs Ilmo Devi . on 7 October, 2021Author: M.R. Shah
Bench: M.R. Shah, A.S. Bopanna
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 5689-5690 OF 2021
UNION OF INDIA & ORS. …Appellant(s)
Versus
ILMO DEVI & ANR. …Respondent(s)
JUDGMENT
M.R. SHAH, J.
1. Feeling aggrieved and dissatisfied with the impugned judgment
and order passed by the High Court of Punjab & Haryana at Chandigarh
in CWP No. 9167 of 2007 and CWP No.6854 of 2008 by which the High
Court has modified the judgment and order passed by the learned
Central Administrative Tribunal in O.A. No.886/CH/2005 and
consequently has directed the appellants to revisit the whole issue,
complete the exercise to reformulate their regularization/absorption
policy and take a decision to sanction the posts in a phased manner, the
Union of India and others have preferred the present appeal.
Signature Not Verified
Digitally signed by R
Natarajan
Date: 2021.10.07
16:34:47 IST
Reason:
1
The High Court has further directed that till the exercise, as
directed above, is undertaken, the appellants shall continue the
employees in service with their current status but to those of them who
have completed 20 years as part-time daily wagers shall be granted
“minimum” basic pay of Group ‘D’ posts w.e.f. 01.04.2015 and/or the
date of completion of 20 years contractual service, whichever is later.
2. That the respondents herein are/were working as contingent paid
part-time Sweepers (Safai Karamcharies working for less than five hours
a day) in a Post Office at Sector-14, Chandigarh. That the respondents
approached the Central Administrative Tribunal being O.A.
No.886/CH/2005 seeking directions to frame a regularization/absorption
policy for regularization of their service. Alternatively, a direction for
grant of temporary status w.e.f. 19.11.1989. The said O.A. was opposed
by the department. Written statement was filed stating that the
respondents -original applicants are contingent paid Safaiwalas working
for less than five hours and, therefore, are not entitled for temporary
status. It was further stated that there is no regular sanctioned post of
Safaiwala in that particular Post Office in Chandigarh.
2.1 An O.M. dated 11.12.2006 was issued by the Ministry of
Personnel, Public Grievances & Pensions (DoPT), Government of India
by which regularization of qualified workers appointed against
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sanctioned posts in irregular manner was declared. A regularization
policy was framed considering the decision of this Court in the case of
Secretary, State of Karnataka & Ors. Vs. Umadevi (3) and Ors.,
(2006) 4 SCC 1. It provided that the Union of India, the State
Governments and their instrumentalities should take steps to regularize
as a one-time measure the services of such irregularly appointed,
qualified persons, in terms of the statutory requirement of the Rules for
the posts, who have worked for ten years or more in duly sanctioned
posts but not under cover of orders of the courts or of tribunals. As the
respondents – original applicants were serving as part-time employees
working for five hours a day and there were no regular sanctioned posts
in the particular Post Office and so they were not granted the benefit of
the said O.M. dated 11.12.2006. By the judgment and order dated
17.01.2007, the learned Tribunal disposed of the said O.A. rejecting the
claim of the respondents for their regularization. However, the learned
Tribunal observed that since the Department need the continuous
service of Safaiwalas, they shall advertise this post to appoint regular
Safaiwala through proper process of selection positively within three
months. The learned Tribunal also further directed that the respondents
herein may also be considered for such selection after providing age
relaxation to them under the relevant rules keeping in view that they
have been working for last so many years without interruption. Learned
Tribunal also observed that till then they are at liberty to allow the
3
respondents to continue to perform their duties with the present status
(as part-time). Learned Tribunal also observed that in case a one-time
scheme is formulated by the Department/Government in exercise of the
directions of this Court in the case of Umadevi (supra), the respondents’
cases may also be considered for regularization, if they fulfill the
required conditions as prescribed in the said scheme.
2.2 Feeling aggrieved and dissatisfied with the judgment and order
passed by the learned Tribunal dated 17.01.2007 passed in O.A. No.
886/CH/2005 both, the Union of India and the respondents herein – part-
time employees filed their respective writ petitions before the High Court
being CWP Nos. 9167 of 2007 and 6854 of 2008. At this stage, it is
required to be noted that pursuant to the judgment and order passed by
the learned Tribunal, the Department/Government was required to
formulate the regularization scheme, which was not formulated and,
therefore, the contempt proceedings were initiated. By its order dated
19.05.2014, the High Court issued a notice in the contempt proceedings
to the Secretary (Post) and directed to place the scheme before the
Court by 04.07.2014. In view of the abovesaid directions dated
19.05.2014, the Department formulated a policy for regularization of
casual labourers considering the observations made by this Court in the
case of Umadevi (supra) and subsequent to the O.M. of DoPT dated
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11.12.2006 (referred to hereinabove) for the welfare of the casual
labourers.
2.3 That by order dated 06.08.2014, the High Court directed the
appellants to reconsider the claim of the respondents as per the new
policy dated 30.06.2014. The authorities rejected the claim by order
dated 11.09.2014 for the reasons that; (i) there are no sanctioned posts
and (ii) employees have not completed 10 years of service as on
10.04.2006 namely, the date of decision of this Court in Umadevi
(supra).
2.4 By the impugned common judgment and order, the High Court has
disposed of the aforesaid writ petitions with the following directions:-
“[22] We, thus, direct the petitioner-authorities to re-visit
the whole issue in its right perspective and complete the
exercise to re-formulate their policy and take a decision to
sanction the posts in phased manner within a specified
time schedule. Let such a decision be taken within a
period of six months from the date of receiving a certified
copy of this order.
[23] Till the exercise as directed above, is undertaken, the
respondents shall continue in service with their current
status but those of them who have completed 20 years as
part-time daily wagers, shall be granted ‘minimum’ basic
pay of Group ‘D’ post(s) w.e.f. 1.4.2015 and/or the date of
completion of 20 years contractual service, whichever is
later.”
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2.5 Feeling aggrieved and dissatisfied with the impugned common
judgment and order passed by the High Court, the Union of India and
others have preferred the present appeals.
3. At this stage, it is required to be noted that while issuing notice in
the present appeals on 22.07.2016, this Court passed the following
order:-
“On hearing Mr. Ranjit Kumar, learned Solicitor
General appearing on behalf of the petitioners, we are not
inclined to interfere with the directions of the High Court in
paragraph 23 for granting minimum basic pay to Group ‘D’
posts from a particular date to those who have completed
20 years of part-time daily wage service. The petitioners
should carry out that direction.
Insofar as the directions of the High Court to re-visit
the whole issue of sanction of posts etc. and re-
formulation of policy are concerned, there appears some
merits in the submission that the High Court should not
have interfered in policy matters.
Issue notice on the special leave petition in that
respect as well as on the application for condonation of
delay.
The direction contained in paragraph 22 of the
impugned order shall remain stayed until further orders.”
4. Ms. Madhvi Divan, learned ASG has appeared on behalf of the
appellants and Shri Rahul Gupta, learned counsel has appeared on
behalf of the respondents.
6
5. Ms. Madhvi Divan, learned ASG has vehemently submitted that
the High Court has not properly appreciated the facts that in the Post
Office where the respondents were working, there are no sanctioned
posts and that the respondents were serving as part-time contingent
Safaiwalas for five hours a day and their wages were paid even from the
contingent fund. It is submitted that neither the O.M. dated 11.12.2006
nor the subsequent regularization policy dated 30.06.2014 shall be
applicable to the facts of the case at hand.
5.1 It is further submitted that even in the impugned judgment also, the
High Court has observed that the respondents were working as part-time
daily wages sweepers. It is submitted, therefore, in absence of the
sanctioned posts in the Post Office where the respondents were working
as part-time Safaiwalas, there services cannot be regularized.
5.2 It is further submitted that the directions issued by the High Court
to sanction the posts can be said to be a policy decision, and, therefore,
the High Court is not justified in issuing the Mandamus and/or direction
to create and sanction the posts. It is submitted that the High Court has
not properly appreciated the facts that even the O.M. dated 11.12.2006
and subsequent regularization policy dated 30.06.2014 were absolutely
in consonance with the decision of this Court in the case of Umadevi
(supra). It is submitted that in the case of Umadevi (supra) it has been
7
specifically observed that the High Court, in exercise of jurisdiction under
Article 226 of the Constitution of India, should not ordinarily issue
direction for absorption, regularization or permanent continuance unless
the recruitment was itself done regularly and in terms of constitutional
scheme.
5.3 It is submitted that as per the dictum of this Court in the case of
Umadevi (supra), the services of only those employees are to be
regularized as a one-time measure, who are irregularly appointed and
otherwise who are duly qualified persons in terms of the statutory
requirement rules for the post and who have worked for 10 years or
more in duly sanctioned posts but not under cover of the orders of courts
or tribunals. It is submitted that, thereafter, the Department came out
with the regularization policy dated 30.06.2014. It is submitted that even
the High Court has also in the impugned judgment observed that there
are no sanctioned posts in the office where the respondents were
working. It is submitted further that the High Court has directed to create
and sanction the posts, which is beyond the jurisdiction of the High Court
in exercise of power under Article 226 of the Constitution.
5.4 It is further submitted that the High Court has not taken note of the
Recruitment Rules, 2002, which were replaced by 2010 Rules, however,
the same shall not be applicable to the Postal Department as specifically
8
mentioned in the said rules. It is further submitted that even the High
Court has observed that it is no doubt true that a part-time employee
cannot seek parity with full-time worker but despite the same the High
Court has observed that whatever benefits, authorities decide to confer
on the full-timers, the same can be extended to part-timers as well, of
course, on such additional and stringent conditions like double the length
of contingent service and/or other reasonable and fair conditions which
the authorities may deem fit. It is submitted that the aforesaid
observations are also beyond the scope and ambit of exercise of the
power under Article 226 of the Constitution.
5.5 It is further submitted that even the High Court has also materially
erred in observing that though the respondents are working for four to
five hours as part-time daily wagers, they must have worked for full day.
It is submitted that aforesaid is absolutely without any basis and the
same is not supported by any evidence. It is further submitted that even
the observations made by the High Court in paragraph 9 that it is true
that these employees are working on “part-time basis only”, the ground
realities of which a Court can take judicial notice, leave no room to doubt
that once the respondents come to their respective work place to
perform duties, may be for four to five hours, it is nearly impossible for
them to secure another job for the rest of the day. It is submitted that the
aforesaid observation is on surmises and conjunctures only. It is
9
submitted that the entire observations made in paragraph 9, thus, are on
surmises and conjunctures, which has no factual basis at all.
5.6 Ms. Madhvi Divan, learned ASG has relied upon the decisions of
this Court in the cases of Union of India and Ors. Vs. A.S. Pillai and
Ors., (2010) 13 SCC 448; State of Rajasthan and Ors. Vs. Daya Lal
and Ors., (2011) 2 SCC 429 and Secretary, Ministry of
Communications and Ors. Vs. Sakkubai and Anr. (1997) 11 SCC 224
in support of her submission that services of a part-time worker working
on the post of a full-time worker cannot be regularized. She has also
relied upon the decision of this Court in the cases of 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; Anuradha Bhasin Vs. Union of India and Ors., (2020) 3 SCC
637; Oil and Natural Gas Corporation Vs. Krishan Gopal & Ors.,
(2020) SCC Online SC 150; State of Maharashtra & Anr. Vs. R.S.
Bhonde & Ors., (2005) 6 SCC 751 in support of her submission that in
judicial review, a Court has no right to direct the Government to review
the policy of appointment; in judicial review the Court cannot interfere in
the administrative matters and that in the absence of a regular
sanctioned post, the Court cannot direct to create one.
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6. Present appeals are opposed by Shri Rahul Gupta, learned
counsel appearing on behalf of the respondents. It is submitted that by
the impugned judgment and order the High Court has decided as many
as nine petitions, however, two out of nine are being challenged before
this Court. It is submitted, therefore, that qua other seven writ petitions,
the Union of India has accepted the verdict and it has become final as
the same have not been challenged. It is further submitted that while
issuing notice in the present appeals on 22.07.2016, this Hon’ble Court
made it clear that it was not inclined to interfere with the directions of the
High Court in paragraph 23 of the judgment and, therefore, the scope of
present case now confines to the directions contained in paragraph 22 of
the impugned judgment. It is submitted that in the present case, the
respondent No.1 – Ilmo Devi, who was working continuously since 1982
as a sweeper has already attained the age of retirement and the other
respondent Babli, who was working continuously since 1991 as a
sweeper is of around 53 years of age and, therefore, this Court may not
interfere with the impugned judgment and order passed by the High
Court and the present appeals be dismissed keeping the question of law
open.
6.1 On merits, Shri Gupta, learned counsel has relied upon the
decision of this Court in the case of Umadevi (supra) and in the case of
11
Mineral Exploration Corpn. Employees’ Union Vs. Mineral
Exploration Corpn. Ltd. and Anr., (2006) 6 SCC 310.
7. Heard the learned counsel for the respective parties at length.
8. At the outset, it is required to be noted that 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. It is not in dispute and cannot be disputed that
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 otherwise as observed hereinabove, they were
working as contingent paid part-time sweepers. 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. In light of the above, the directions issued by
the High Court in the impugned judgment and order are required to be
considered.
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8.1 In the present case, pursuant to the order passed by the learned
Tribunal and the order passed in the contempt proceedings, the
appellants came out with a regularization policy dated 30.06.2014. In
the said regularization policy, it has been provided as under:-
“(i) Regularization of all the Casual Labourers, who
have been irregularly appointed, but are duly
qualified persons in terms of statutory requirement
rules for the post and was engaged against a
sanctioned post, shall be done if they have worked
for 10 years or more but not under the covers of
orders of courts or tribunals as on the date of
Hon’ble Apex Court’s ibid judgment, i.e.,
10.04.2006.
(ii) A temporary contractual, casual or daily wage
worker shall not have a legal right to be made
permanent unless he/she fulfills the above criteria.
(iii) A Casual Labourer engaged without following the
due process or the rules relating to appointment and
does not meet the above criteria shall not be
considered for their absorption, regularization,
permanency in the Department.
(iv) If a Casual Labourer was engaged in infraction of
the rules or if his engagement is in violation of the
provisions of the Constitution, the said illegal
engagement shall not be regularized.”
8.2 The aforesaid regularization policy has been framed considering
the decision of this Court in the case of Umadevi (supra). That
thereafter pursuant to the interim order passed by the High Court dated
06.08.2014, the appellant authorities reconsidered the claim of the
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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.
8.3 By the impugned judgment and order, the High Court has directed
to reformulate the regularization policy and to take a decision to sanction
the post in a phased manner. While issuing the aforesaid directions, the
High Court made certain observations, relevant observations, which are
necessary for the purpose of present appeals are as under:-
“[8] The respondents in all these cases have worked for
more than 10 to 20 years as contingent employees
and some of them (like in the lead case) have
served for about 30 years. A few of them are
obviously nearing retirement age as prescribed
under the Central/State Service Rules.
[9] It is true that these employees are working on ‘part-
time basis’ only. The ground realities of which a
Court can take judicial notice, leave no room to
doubt that once the respondents come to their
respective work place to perform duties, may be for
4 to 5 hours, it is nearly impossible for them to
secure another job for the rest of the day. The
petitioner-authorities cannot be oblivious of the fact
that where supply of manual labour is more than the
demand, the market forces won’t permit the private-
respondents to have the choice of getting another
and alternative employment for the remainder of the
day after they are relieved of their duties by the
postal authorities.
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[12] It is no doubt true that a ‘part-time’ employee cannot
seek parity with a ‘full time’ worker but then the
petitioner-authorities can also draw no mileage out
of their undue favour shown to those who are
engaged for 7 to 8 hours and total neglect of the
others who are ‘part-time’ due to 4 to 5 hours
engagement. It appears to us that whatever benefits
authorities decide to confer on the full-timers, the
same can be extended to part-timers as well, of
course, on such additional and stringent conditions
like double the length of contingent service and/or
other reasonable and fair conditions which the
authorities may deem fit.
[13] While we refrain from suggesting any policy module
as such an exercise falls within the domain of the
Executive only, the authorities ought to be cautioned
that the policy, so framed, must reflect the due
application of mind as well as their conscious
decision to reject or accept the claim of any class or
category of contractual employees.
[15] Be that as it may, now the Department of Postal and
Ministry of Communication and I.T. has issued a
policy circular dated 30.06.2014 for the welfare of
casual labourers. The above-stated policy is said to
have been issued in compliance to the directions
issued in Uma Devi’s case (supra). The salient
feature of the aforesaid policy are to the following
effect.
“(i) Regularization of all the casual
Labourers, who have been
irregularly appointed, but are duly
qualified persons in terms of
statutory recruitment rules for the
post and was engaged against a
sanctioned post, shall be done if
they worked for 10 years or more
but not under the covers of orders
of courts or tribunals as on the
date of Hon’ble Apex Court’s ibid
judgment i.e. 10.04.2006
(Secretary State of Karnataka and
others versus Uma Devi and
15
others in Civil Appeal No.3595-
3612/1999).
(ii) A Temporary, Contractual, Casual
or Daily wage worker shall not
have a legal right to be made
permanent unless he/she fulfills
the above criteria.
(iii) A casual Labourer engaged
without following the due process
or the rules relating to
appointment and does not meet
the above criteria shall not be
considered for their absorption,
regularization, permanency in the
Department.
(iv) If a casual Labourer was engaged
in Infraction of the rules or if his
engagement is in violation of the
provision of the Constitution, the
said illegal engagement shall not
be regularized….”(emphasis
applied)
[18] We have given our thoughtful consideration to both
the reasons assigned by the petitioner-authorities,
who have further stated that as of now, fresh
engagements on contingent or daily wage basis
have been completely stopped. If that is so, it can
be safely inferred that only a small group of daily
wage part-time employees engaged before
10.04.2006 are still working. If their eligibility of 10
years daily wage service is determined in the year
2014-15 on the basis of cut off date of 10.04.2006,
such a policy would be an exercise in futility. The
petitioners themselves have taken more than 8
years in giving effect to one of the directions in Uma
Devi’s case (supra), hence, they cannot reject the
claim of daily-wage employees with an ante-date
cut off date as the compliance of such an eligibility
condition is nearly impossible. This would render
the policy totally ineffective and a brutum fulmen
without percolating even a drop of benefit to those
for whom it has been formulated.
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[20] Surely, the respondents cannot be made regular in
the absence of sanctioned posts, but then what is
the public purpose sought to be achieved through
the policy dated 30.06.2014? The Executive who
has authored the policy is also competent to create
or sanction the posts. Depending upon the total
expenditure now being incurred on the retention of
respondents, we have no reason to doubt that the
petitioners can rationalize their resources and
sanction some regular posts every year so that the
respondents can be adjusted on regular basis
without any unbearable additional financial burden
on the Department, but before they leave the
department on attaining the age of superannuation.
[21] The petitioners might have incurred huge
expenditure in defending multiple litigation initiated
by contractual employees who are now a
diminishing cadre. This is for the petitioners to take
a pragmatic view and divert this unproductive
expenditure towards sanctioning the posts in a
phased manner for adjusting the respondents.”
8.4 The observations made in paragraph 9 are on surmises and
conjunctures. Even the observations made that they have worked
continuously and for the whole day are also without any basis and for
which there is no supporting evidence. In any case, the fact remains
that the respondents served as part-time employees and were
contingent paid staff. As observed above, 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
17
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.
8.5 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. In the case of R.S. Bhonde
and Ors. (supra), it is observed and held by this Court that the status of
permanency cannot be granted when there is no post. It is further
observed that mere continuance every year of seasonal work during the
period when work was available does not constitute a permanent status
unless there exists a post and regularization is done.
8.6 In the case of Daya Lal & Ors. (supra) in paragraph 12, it is
observed and held as under:-
“12. We may at the outset refer to the following well-
settled principles relating to regularisation and parity in
pay, relevant in the context of these appeals:
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(i) The High Courts, in exercising power
under Article 226 of the Constitution will not
issue directions for regularisation, absorption
or permanent continuance, unless the
employees claiming regularisation had been
appointed in pursuance of a regular
recruitment in accordance with relevant rules
in an open competitive process, against
sanctioned vacant posts. The equality clause
contained in Articles 14 and 16 should be
scrupulously followed and Courts should not
issue a direction for regularisation of services
of an employee which would be violative of
the constitutional scheme. While something
that is irregular for want of compliance with
one of the elements in the process of
selection which does not go to the root of the
process, can be regularised, back door
entries, appointments contrary to the
constitutional scheme and/or appointment of
ineligible candidates cannot be regularised.
(ii) Mere continuation of service by a
temporary or ad hoc or daily-wage employee,
under cover of some interim orders of the
court, would not confer upon him any right to
be absorbed into service, as such service
would be “litigious employment”. Even
temporary, ad hoc or daily-wage service for a
long number of years, let alone service for one
or two years, will not entitle such employee to
claim regularisation, if he is not working
against a sanctioned post. Sympathy and
sentiment cannot be grounds for passing any
order of regularisation in the absence of a
legal right.
(iii) Even where a scheme is formulated for
regularisation with a cut-off date (that is a
scheme providing that persons who had put in
a specified number of years of service and
continuing in employment as on the cut-off
date), it is not possible to others who were
appointed subsequent to the cut-off date, to
19
claim or contend that the scheme should be
applied to them by extending the cut-off date
or seek a direction for framing of fresh
schemes providing for successive cut-off
dates.
(iv) Part-time employees are not entitled to
seek regularisation as they are not working
against any sanctioned posts. There cannot
be a direction for absorption, regularisation or
permanent continuance of part-time temporary
employees.
(v) Part-time temporary employees in
government-run institutions cannot claim
parity in salary with regular employees of the
Government on the principle of equal pay for
equal work. Nor can employees in private
employment, even if serving full time, seek
parity in salary with government employees.
The right to claim a particular salary against
the State must arise under a contract or under
a statute.
[See State of Karnataka v. Umadevi (3) [(2006) 4 SCC
1], M. Raja v. CEERI Educational Society [(2006) 12 SCC
636], S.C. Chandra v. State of Jharkhand [(2007) 8 SCC
279], Kurukshetra Central Coop. Bank Ltd. v. Mehar
Chand [(2007) 15 SCC 680] and Official
Liquidator v. Dayanand [(2008) 10 SCC 1.]
8.7 Thus, as per the law laid down by this Court in the aforesaid
decisions 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 as 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.
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8.8 Applying the law laid down by this court in the aforesaid decisions,
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, it is required to be noted that in the present case, 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 (supra), which does not
apply to the part-time workers who do not work on the sanctioned post.
As per the settled preposition of law, 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.
8.9 Though, we are of the opinion that even the direction contained in
paragraph 23 for granting minimum basic pay of Group ‘D’ posts from a
particular date to those, who have completed 20 years of part-time daily
wage service also is unsustainable as the part-time wagers, who are
21
working for four to five hours a day and cannot claim the parity with other
Group ‘D’ posts. However, in view of the order passed by this Court
dated 22.07.2016 while issuing notice in the present appeals, we are not
quashing and setting aside the directions contained in paragraph 23 in
the impugned judgment and order so far as the respondents’ employees
are concerned.
9. In view of the above and for the reasons stated above, both the
appeals succeed. 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 hereby quashed and
set aside. However, it is observed that 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.
With these observations, both the appeals are allowed and in the
facts and circumstances of the case, there shall be no order as to costs.
………………………………….J. [M.R. SHAH]
NEW DELHI; ………………………………….J.
OCTOBER 07, 2021. [A.S. BOPANNA]
22
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