1. Heard Sri R.C. Saxena, learned counsel for the petitioners. None has appeared on behalf of respondents though counter and supplementary counter affidavit have been filed. I have also perused the record and the relevant judicial precedents.
2. In all these five writ petitions, facts and questions of law involved are similar, therefore, the same have been dealt with together and are being decided by this common judgment. Sri R.C. Saxena has addressed this Court treating writ petition no. 6608 of 2005 (hereinafter referred to as "first petition") as leading case and pleadings from the same have been referred only, stating that these facts and legal arguments advanced by him would govern all other matters, which involve similar issues. This Court, therefore, has taken facts from the pleadings of the first writ petition for brevity.
3. The two petitioners Anil Kumar and Arvind Pratap Singh in the first petition claimed to have been engaged as casual Helper on 27.3.2001 and 22.5.2003 respectively. Though petitioners claim to have been working continuously from the date of their engagement till alleged oral termination on 12.10.2005, but this fact has been disputed by respondents. However, for the purpose of present case, I proceed on the premise that petitioners, from the date of their initial engagement as Casual Labour, till they have been disengaged orally, have continuously worked, so as to find out whether despite this factual position, the petitioners are entitled to any relief as claimed, and only if answer, would go in favour of the petitioners, the occasion will arise to consider the disputed fact, whether they had actually continued to work or not which would be seen later on, if necessary.
4. The petitioners have sought three prime reliefs:
(i)To quash/declare oral termination dated 12.10.2005 illegal and as a consequence thereof, allow petitioners to continue to work as casual labour/Helper.
(ii)Consider petitioners for regularization and regularize on the post of Helper, with all consequential benefits.
(iii)To pay salary at the minimum of regular pay scale applicable to regularly appointed Helpers in the employment of respondents organization i.e. Indian Airlines Ltd. (hereinafter referred to as "IAL")
5. The fact, as set out in the writ petition, may be narrated in brief, as under:
6. Both the petitioners were employed as Helper on casual basis on 27.3.2001 and 22.5.2003, respectively. No order/letter of appointment has been issued to petitioners but since they were employed to work as Helper at Airport, which is a protected reserved area, therefore, for security purposes, they were issued daily Permit by Bureau of Civil Aviation Security, Government of India, which was initially for limited period but extended from time to time.
7. Counsel for petitioners drew my attention to paras 3 and 4 of the writ petition, stating that such Permit is issued after verification of antecedents of incumbents concerned, by Police and District Administration, which is necessary for the purpose of security of the Establishment. Whenever high dignitaries visited Airport, special passes are issued. During the visit of Prime Minister, Vice President etc., such passes were issued to petitioners also in the year 2004-05, which have been placed on record.
8. The petitioners were paid wages @ Rs.60/- per day. For last several years, respondents have not made any regular appointment on the post of Helper, despite surge at Amausi Airport, in their aviation operation to various domestic and international destinations. They also did not regularize petitioners. Several regular appointees have retired, still neither regular recruitment has been made nor casual employees like petitioners were regularized. T
9. It is also pleaded that the principle of equal pay for equal work is applicable. The petitioners are entitled to salary at par with minimum of pay scale applicable to Helpers, working in regular cadre.
10. With respect to termination, it is said, whether petitioners are treated casual or pure ad hoc or temporary, they could not have been terminated without assigning any reason, without giving any opportunity, without complying with bare minimal requirement of principles of natural justice, therefore their oral termination is patently illegal. The termination has resulted in denying right to earn livelihood enshrined under Article 21 and therefore, violative of Articles 14 and 21 of the Constitution. The respondent have employed subsequently ad hoc, temporary or casual hands but no regular appointment has been made. This is nothing but an arbitrary policy/practice followed by respondents. In effect, it may be termed as exploitation of poor labours, having no bargaining terms, therefore, termination of petitioners is illegal. Reliance has been placed on the decision in Smt. Meneka Gandhi Vs. Union of India and Anr., AIR 1978 SC 597; D.K.Yadav Vs. J.M.A. Industries Ltd., 1993 SCC (L & S) 723, Dr. A.K.Jain & Ors. Vs. Union of India & Ors., 1988 SCC (L & S) 222; and State of Haryana and others Vs Piara Singh and others - 1992 (4) SCC 118. It is also pointed out in respect of casual daily wage employees, Delhi High Court in C.W.P. No.4113 of 1994 (Sushil Kumar Saini Vs. Indian Airlines & Ors.) connected with others decided on 9.5.1997 by a Division Bench, has given a decision which should be followed in the case of petitioners also. This Court also passed a direction with respect to equal pay for equal work and regularisation in Writ Petition No.3848 of 1996 (Madhusudan Tripathi & 14 Ors. Vs. Indian Airlines Ltd. & Ors.) vide judgment dated 31.1.1996 and the petitioners are also entitled to similar treatment.
11. On behalf of the respondents, a counter affidavit, titled as 'short counter affidavit', sworn by Sri Sujeet Kumar, posted as Station Manager, IAL, Lucknow, impleaded as respondent no.3, has been filed. The case set up by respondents is that for cleansing, loading, unloading of flights, respondents Airline has deployed regular Helpers at each Airport Station. These Helpers are appointed after holding a selection, subject to availability of regular vacancies, an,d in accordance with law. To meet casual requirements and eventualities, some casual Helpers, after police verification, are employed, who are given gate passes for entry in Airport premises. Such engagement is a stand-by position, per shift, to cleanse, do loading and unloading of flights, at the rate of Rs.60/- per flight, if so required. No regular vacancy of Helper is available. Appointment of Helper, even otherwise, is banned by competent authority. The Casual Helper's requirement is assessed by Station Manager and approval for the same is obtained from Regional Director of IAL and then such engagement is made.
12. The petitioners' wages are @ Rs.60/- per flight loaded and unloaded by them, and not as pleaded by them. They are free to come or not to come on any day or days or to keep themselves in stand-by position, for loading and unloading of flights. They are not employees of IAL. There is no relationship of master and servant between Airlines and petitioners. They are not discharging duties similar to that of regular cadre Helpers. The question of regular appointment of petitioners does not arise unless vacancies of Helper are available. If available, the same are to be advertised and petitioners, if apply along with other eligible persons, would be considered and selected in accordance with law. No surreptitious regular appointment can be made by IAL. By means of granting Entry Permits to petitioners, they have been allowed to enter Airport premises and avail job of loading and unloading flights, arriving at Lucknow Airport, on job rate basis. There is no employment relationship as such between petitioners and IAL. Mr. Nath, is said to have retired from the post of Helper, is wrong. This fact has been stated in the petition falsely since since he was Operator in Ground Support Department, Northern Region, IAL. He was performing very highly skilled job, operating Ground Support equipment. After his retirement, he has been re-engaged on contract basis in the same department. His case has no parity with Helpers. Petitioners' contention otherwise, is incorrect. Neither petitioners have been engaged on daily wage basis nor through any Contractor. There is no vacancy of regular Helper at Amausi Airport at Lucknow. Four regular Helpers have recently joined from Khajuraho, on transfer, and there is no need of any further Helper at Lucknow.
13. In the rejoinder affidavit filed by petitioners to the said short counter affidavit, termed as 'supplementary rejoinder affidavit', they have basically reiterated what has been said in writ petition, with further fact that termination has been given effect to, when petitioners claim regularization and that is to victimize them.
14. Though various factual aspects are in dispute but there are three direct legal issues involved. In my view, it would be appropriate to consider those legal issues, first, for the reason, if these issues are decided in one or other way, it may be possible not to look into other aspects of the matter. It is only when these issues are decided in favour of petitioners, investigation into factual dispute would become necessary necessary and then that would be dealt with accordingly. These issues which require straight answer are:
I.Whether alleged termination is invalid?
II.Whether principle of 'equal pay for equal work' is attracted in the case so as to entitle petitioners to claim salary at the minimum of pay scale applicable to the Helpers appointed on regular basis in IAL?
III.Whether petitioners' claim for regularization has any sanction of law and is it permissible to this Court to grant such relief.
15. Before delving in the aforesaid issues, it would be appropriate to discuss about nature of appointment of petitioners. It is admitted by them that no letter of appointment has been issued to them. They have never been appointed after following procedure of recruitment which is consistent with Article 14 and 16 of Constitution of India, i.e. advertisement of vacancy and giving opportunity to all eligible persons to compete for such employment. Neither any procedure of recruitment was followed nor petitioners underwent such recruitment, nor they have been appointed by an order of appointment issued by competent authority. What is on record is an Entry Pass whereby petitioners got authorization to enter airport premises and then permission of airport authorities to discharge job of loading, unloading etc. What were terms and conditions and what duties petitioners were actually supposed to perform are not in black and white and on record. It is also not the case of petitioners that they were governed by any provision of discipline, control and were liable for disciplinary action by respondents, if they commit any misconduct in discharge of duties.
16. Respondents have pleaded that engagement of petitioners was purely casual and there was no relationship of employer and employee but this much is not in dispute that petitioners were performing certain duties which could have been performed by employees of the respondents employed as Helper. Therefore, for the purpose of considering the issues aforesaid, this can simply be held that petitioners, though were engaged without undergoing any process of recruitment, consistent with Articles 14 and 16 of Constitution, yet had been discharging duties, which were being performed by staff engaged by respondents on regular basis, called 'Helper'. Whether entire duties which a Helper engaged on regular basis was supposed to be discharged by petitioners, is not on record since what the duties of a Helper are, have not been pleaded and it is not shown that petitioners, for all practical purposes, were discharging all duties which could be discharged by a person, holding regular cadre of Helper. Further, accuracy, efficiency, level of dependability, precision etc. in the functioning of petitioners and regular employees is also not demonstrated to show that the same are identical or similar. It is in this background, I proceed to consider the above three issues.
17. Now I proceed to consider first question, whether alleged termination is invalid. As already said, casual employment of petitioners to discharge certain duties which were being performed by Helpers of IAL and their disengagement with effect from a particular point of time, which according to petitioners is 12.10.2005, orally, is the basic foundation of petitioners' case to contend that oral termination is palpably illegal, being arbitrary and in violation of principles of natural justice. The entire argument is founded on certain observations made in Smt. Maneka Gandhi Vs. Union of India and another AIR 1978 SC 597. It is argued that the Apex Court has given a new meaning to the fundamental rights guaranteed under Article 21 of Constitution of India and looking to the right of petitioners, in that context, it cannot be doubted that once they are employed, in whatever manner, their right to livelihood still vests in them which cannot be divested personally and in any case, the respondents have to comply maxim of audi alterm partem. Sri Saxena, learned counsel has also argued that before denying right to earn livelihood, a fundamental right conferred on petitioners, employer has to disclose valid reason therefor, and cannot deny such right of employment arbitrarily or without disclosing any reason.
18. The argument advanced and reliance placed on Maneka Gandhi (supra) is patently misconceived, being looked into bereft of the question whether petitioners have any right, whatsoever. In employment matters, a right flows, when a person is conferred certain position, status in accordance with law and/or statutory provision, if any, which confers such entitlement. The employer thereafter is prohibited to do or not to do anything without following certain procedure. In a casual or stop gap arrangement, a daily wager does not possess any such right where the matter is governed by labour welfare legislation. No such claim has been placed before this Court. By a sheer pick and choose method, petitioners were allowed to perform the work of loading and unloading, cleansing etc, at the airport and their wages were paid vis a vis duties they performed on daily basis or job basis, as the case may be. It is not in dispute that IAL is an autonomous statutory body and a 'State' within the definition of Article 12 of the Constitution. Therefore, it is bound to comply with Article 16 of the Constitution by providing equal opportunity of employment to all. The posts vacant in the office of respondents cannot be filled in arbitrarily unless vacancy(ies) is/are advertised and thereafter selection is made from amongst all eligible incumbents who apply pursuant to such advertisement. No such procedure was followed. The petitioners were not appointed against any existing vacancy, after undergoing any process of recruitment. Therefore, to claim that a casual/daily basis engagement conferred a right upon petitioners, either to hold the post or to claim salary regularly. The argument otherwise is palpably misconceived and unfounded.
19. A Constitution Bench in State of Karnataka & others Vs. Uma Devi & others, reported in 2006 (4) SCC 1, that unless an appointment is in terms of relevant rules and after a proper competition amongst qualified persons, the same would not confer any right on the appointee. Merely because a temporary employee or a casual daily wage worker has 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 original appointment was not made by following a due process of selection, as envisaged by the relevant Rules. It was further held that a person having accepted appointment on temporary or casual basis, with open eyes, cannot subsequently claim absorption, merely on the basis of such engagement. Even the doctrine of legitimate expectation would have no application in such case. There is no fundamental right of those, who have been employed surreptitiously, on daily wages or temporary or on contractual basis to claim for regularization or absorption in service. A regular appointment is permissible only by making appointment consistent with the requirement of Articles 14 & 16 of the Constitution.
20. When the petitioners have no right to hold the post or claim regular salary, the question of principles of natural justice does not arise. The decision in Maneka Gandhi (Supra) would apply only when any of the rights of petitioners is being infringed. Right to earn livelihood under Article 21 of the Constitution has been recognized when a person hold a right to hold the post and claim salary and not otherwise. Therefore, the aforesaid judgment has no application to the facts of the instant case.
21. Another judgment relied upon by petitioners is D.K. Yadav Vs. J.M.A. Industries Ltd., 1993 SCC (L&S) 723. That was not a case of daily wager, or casual employee. Sri D.K. Yadav, according to management, absented himself for more than eight days continuously, and, therefore, the management, placing reliance on clause 13(2)(iv) of Certified Standing Orders, terminated him by letter dated 12.12.1980. Clause 13(2)(iv) states that it was applicable to all the workmen who had a lien on his appointment, meaning thereby who are substantially and regularly appointed in service. Clause 13(2)(iv) as quoted in the judgment in para-2 reads as under:
"If a workman remains absent without sanctioned leave or beyond the period of leave originally granted or subsequently extended, he shall lose his lien on his appointment unless
(a) he returns within 3 calendar days of the commencement of the absence of the expiry of leave originally granted or subsequently extended as the case may be; and
(b) explains to the satisfaction of the manager/management the reason of his absence or his inability to return on the expiry of the leave, as the case may. The workman not reporting for duty within 8 calendar days as mentioned above, shall be deemed to have automatically abandoned the services and lost his lien on his appointment. His name shall be struck off from the Muster Rolls in such an eventuality."
22. Since the employee was a regular workman, he lost his service and lien on just remaining absent from service for eight days, continuously, and the management struck off his name from his muster roll. This is how, Standing Orders read and also observed by the Court, as is evident from the following:
"On completion of eight calander days' absence from duty he shall be deemed to have abandoned the services and lost his lien on his appointment. Thereafter the management has been empowered to strike off the name from the Muster Rolls."
23. The above fact makes it evident undoubtedly that the incumbent D.K. Yadav had a right to the post. The Standing Orders contemplated loss of such right on mere absence of eight continuous days. The question was "whether such termination is per se illegal and amounts to retrenchment". The Court held that such a termination without any inquiry or notice is arbitrary and held accordingly. From the facts discussed above, even the aforesaid decision also lends no help to the petitioners and reliance placed thereon is misconceived.
24. Third decision relied on is (Dr) A.K. Jain and others vs. Union of India and others, 1988 SCC (L & S) 222. There also I find that the Court has not laid down any principle of law and considering peculiar facts and circumstances of the case had passed order in certain manner which does not lay down any precedent as such. It nowhere says that disengagement of casual/stop gap arrangement or daily wager, per se would be illegal, in case, no opportunity or show cause notice was given to such person.
25. It is not the case of petitioners that they had certain kind of right under Industrial Laws which has been violated. Necessary pleadings in this regard are also absent. Probably petitioners did not plead anything in this regard, apprehending that else they may not avail opportunity to invoke jurisdiction under Article 226 of Constitution since would have an alternative remedy under Industrial Disputes Act 1947 and in that case, a preliminary issue may be raised raised on behalf of respondents that the petitioner having alternative remedy of raising an industrial dispute, hence, the writ petition should be dismissed on the ground of alternative remedy.
26. Moreover, the alleged disengagement/termination of petitioners also does not suffer from any invalidity by applying principle of legitimate expectation and there also I find that the said principle does not help them.
27. In University of Rajasthan and another Vs. Prem Lata Agarwal, 2013(3) SCC 705 after referring to the dictum in Uma Devi (supra), the court observed that when a person enters a temporary employment or gets engagement as a contractual or casual worker and the engagement is not based on a proper selection as recognized by relevant rules/procedure, he is aware of the consequences of appointment being temporary, casual or contractual in nature. Such a person cannot invoke the theory of legitimate expectation for being confirmed on a post when an appointment on the post could be made only by following proper procedure.
28. The doctrine of legitimate expectation is now considered to be a part of principles of natural justice. If in the light of existing state of affairs, a party is given to understand that the other party shall not take away the benefit without complying with the principles of natural justice the said doctrine would be attracted in such a case and executive order visiting civil consequences would be liable to be assailed if the other party fails to observe such principles. The only exception which is recognised against the application of legitimate expectation is where the legislation is otherwise. In Southern Petrochemical Industries Co. Ltd. Vs. Electricity Inspector, ETIO and others, AIR 2007 SC 1984, in para 147 of the judgment the Court observed as under:
" Legitimate expectation is now considered to be a part of principles of natural justice. If by reason of the existing state of affairs, a party is given to understand that the other party shall not take away the benefit without complying with the principles of natural justice, the said doctrine would be applicable."
29. In Kuldeep Singh Vs. Government of N.C.T. of New Delhi , 2006 (5) SCC 702, the Apex Court held that the doctrine of legitimate expectation operates both in procedural and substantive matters.
30. In Poonam Verma and others Vs. Delhi Development Authority, J.T. 2007(13) SC 604, the Apex Court observed that legitimate expectation has a positive concept and an endeavour should be made to invoke the same wherever it is found that a practice was prevailing which is sought to be deviated without any reason. Legitimate expectation, of course, is not a legal right. It is an expectation of a benefit, relief or remedy that may ordinarily flow from a promise or established practice. It refers to a regular, consistent, practicable and certain process or activity of the decision making authority. What is required is that expectation ought to be legitimate, i.e., reasonable, logical and valid. Any expectation which is based on sporadic or casual or random acts, or which is unreasonable, illogical or invalid, cannot be a legitimate expectation. On its own not being a right, it may not be enforceable as such, but it is a concept recognised by the courts for judicial review of administrative action. It is procedural in character based on requirement of a higher degree of fairness in administrative action, as consequence of promise made or promise established. Briefly, it can be said that a person is said to have legitimate expectation of a particular treatment if any right or promise is made by a party, either expressly or impliedly or if regular and consistent past practice of the authority had given room for such expectation in normal course. As a ground for relief the efficacy of this doctrine though vague, as it may be positioned just above "fairness in action" but far below the "promissory estoppel". However, it may entitle an expectation of an opportunity to show cause before the expectation is dashed or to an explanation as to the cause for denial. In appropriate cases, the Court may direct the decision making authority to follow such procedure before taking an action otherwise. In the present case, as we have already noticed, after expiry of last extended period of 2006, i.e., 7.4.2006, the respondents have not been able to show that any notice or opportunity was given to the petitioner before passing the impugned orders.
31. The aforesaid authorities have also been considered and followed by a Division Bench of this Court (of which I was also a member) in M/s Microcomm India Ltd. Vs. Union of India 2008(5)ADJ 437 (DB).
32. It is in these circumstances, I do not find that the alleged disengagement/termination of the petitioners can be said to be bad in any manner. Question no.1 is, therefore, answered against him.
33. Now I proceed to consider question no.2. Certain facts which are evident from record, relevant to answer question no.2 straightaway at the pain of repetition, may be noted hereinbelow.
I.The number of hours of working of petitioners and their conditions as applicable to the regular Helpers, whether are same, is not stated. No pleading in this regard.
II.It is not the case of petitioners in the entire writ petition that they are subject to disciplinary control of respondents.
34. The mere fact that some indicia of work, performed by a casually employed person, is similar to another person, who has been appointed after undergoing rigorous selection in accordance with and consistent with Articles 14 and 16(1) of Constitution. Whether sufficient to attract doctrine of equal pay for equal work is incidental to this issue.
35. The quality of work to be performed by regular Helpers vis a vis the petitioners, is whether same or not, is not pleaded. Helpers are supposed to perform only that much work which has been performed by petitioners or something more, is also not clear from the petition. What they are claiming is that they are discharging certain duties which are being performed by Helpers but whether these are only duties and responsibilities and none else, on this aspect, pleadings are silent. Even otherwise, no material has been placed on record throwing light on this aspect. In these facts and circumstances, can it be said that doctrine of equal pay for equal work can be applied in such a case. In my view, unhesitantly, answer shall be a big 'no'. This can be demonstrated by delving into the concept of "equal pay for equal work" which is not res integra, having been discussed and explained in a catena of decisions, some of which , it would be fruitful to refer hereunder.
36. In Randhir Singh v. Union of India and Ors., (1982) 1 SCC 618, Apex Court considering principle of equal pay for equal work held that it is not an abstract doctrine but one of substance. Construing Articles 14 and 16 in the light of Preamble and Article 39(d) of the Constitution, Apex Court held that principle of equal pay for equal work is deducible from those Articles and may be properly applied to cases of unequal scales of pay based on no classification or irrational classification though those drawing different scales of pay do identical work under the same employer. However it was also held -
"It is well known that there can be and there are different grades in a service, with varying qualifications for entry into a particular grade, the higher grade often being a promotional, avenue for officers of the lower grade. The higher qualifications for the higher grade, which may be either academic qualifications or experience based on length of service, reasonably sustain the classification of the officers into two grades with different scales of pay. The principle of 'equal pay for equal work' would be an abstract doctrine not attracting Article 14 if sought to be applied to them..."
37. In R.D. Gupta and Ors. v. Lt. Governor, Delhi Administration and Ors. (1987) 3 SCC 505, the Apex Court applying principle of equal pay for equal work, in para 20 of the judgment, considered correctness of defence taken by employer justifying non application of said principle, and held -
"the ministerial staff in the NDMC constitute a unified cadre. The recruitment policy for the selection of the ministerial staff is a common one and the recruitment is also done by a common agency. They are governed by a common seniority list. The ministerial posts in the three wings of the BDNC viz, the general wing, the electricity wing and the waterworks wing are interchangeable posts and the postings an made from the common pool according to administrative convenience and exigencies of service and not on the basis of any distinct policy or special qualifications. Therefore, it would be futile to say that merely because a member of the ministerial staff had been given a posting in the electricity wing, either due to force of circumstances or due to voluntary preferment, he stands on a better or higher footing or in a more advantageous position than his counterparts in the general wing. It is not the cast of the respondents that the ministerial staff in the electricity wing perform more onerous or more exacting duties than the ministerial staff in the general wing. It therefore follows that all sections of the ministerial staff should be treated alike and all of them held entitled to the same scales of pay for the work of equal nature done by them." (para 20) (emphasis added)
38. In Federation of All India Customs and Central excise Stenographers and Ors. v. Union of India and Ors., (1988) 3 SCC 91, it was held :
"there may be qualitative difference as regards reliability and responsibility justifying different pay scale. Functions may be the same but the responsibilities make a difference. One cannot deny that often the difference is a mater of degree and that there is an element of value judgment by those who are charged with the administration in fixing the scales of pay and other conditions of service. So long as such value judgment is made bonafide, reasonably on an intelligible criterion which has a rational nexus with the object of differentiation, such differentiation will not amount to discrimination" (Para 7) (emphasis added)
39. It was further observed that-
"the same amount of physical work may entail different quality of work, some more sensitive, some requiring more tact, some less, it varies from nature and culture of employment," (para 11) (emphasis added)
40. In Jaipal and Ors. v. State of Haryana and Ors., (1988) 3 SCC 354, the Apex Court held :
"The doctrine of equal work equal pay would apply on the premise of similar work, hut it does not mean that there should be complete identity in all respects. If the two classes of persons do same work under the same employer, with similar responsibility, under similar working conditions the doctrine of 'equal work equal pay would apply and It would not be open to the State to discriminate one class with the other in paying salary. The State is under a constitutional obligation to ensure that equal pay is paid for equal work." (para 6) (emphasis added)
41. In State of U.P. and Ors. v. J.P. Chaurasia and Ors. (1989)1 SCC 121, the Apex Court while considering justification of two pay scales of Bench Secretaries of the High Court, observed :
"Entitlement to the pay scale similar would not depend upon either the nature of work or volume of work done by Bench Secretaries. Primarily it requires among others, evaluation of duties and responsibilities of the respective posts. More often functions of two posts may appear to be the same or similar, but there may be difference in degrees in the performance. The quantity of work may be the same, but quality may be different that cannot be determined by relying upon averments in affidavits of Interested parties. The equation of posts or equation of pay must be left to the executive Government. It must be determined by expert bodies like Pay commission. They would be the best judge to evaluate the nature of duties and responsibilities of posts. If there is any such determination by a Commission or Committee, the court should normally accept it. The Court should not try to linker with such equivalence unless it is shown that it was made with extraneous consideration" (para 18) (emphasis added)
42. In Grih Kalyan Kendra Workers' Union v. Union of India and Ors. JT 1991 (1) SC 60, it was observed :
"the question of parity in pay scale cannot be determined by applying mathematical formula. It depends upon several factors namely nature of work, performance of duties, qualifications, the quality of work performed by them. It is also permissible to have classification in services based on hierarchy of posts, pay scale, value of work and responsibility and experience. The classification must, however, have a reasonable relation to the object sought to be achieved." (para 7) (emphasis added)
43. In The Secretary, Finance Department and Ors. v. West Bengal Registration Service Association and Ors. JT 1992 (2) SC 27, the Apex Court observed :
"job valuation is both a difficult and time consuming task which even expert bodies having the assistance of staff with requisite expertise have found difficult to undertake sometimes on account of want of relevant data and scales for evaluating performances of different groups of employees. The factors which may have to be kept in view for job evaluation may include (1) the work programme of his department (ii) the nature of contribution expected of him (iii) the extent of his responsibility and accountability in the discharge of his diverse duties and functions (iv) the extent and nature of freedoms/limitations available or imposed on him in the discharge of his duties (v) the extent of powers vested In him (vi) the extent of his dependence on superiors for the exercise of his powers (vii) the need to coordinate with other departments etc. It was further observed that normally a pay structure is evolved keeping in mind several factors e.g., ((i) method of recruitment, (ii) level at which recruitment is made, (in) the hierarchy of service in a given cadre, (iv) minimum educational/technical qualifications required, (v) avenues of promotion (vi) the nature of duties and responsibilities, (vii) the horizontal and vertical relativities with similar jobs, (viii) public dealings, (ix) satisfaction level, (x) employer 's capacity to pay. Etc. (para 12) (emphasis added).
44. In Jaghnath v. Union of India and Anr., AIR 1992 SC 126, the Court, following its earlier judgments observed:
"classification of officers into two grades with different, scales of pay based either on academic qualification or experience, or length of service is sustainable. Apart from that, higher pay scale to avoid stagnation or resultant frustration for lack of promotional avenues is very common in career service. There is selection grade for District Judges. There is senior time scute in Indian Administrative Service. There is suppertime scale in other like services. The entitlement to these higher pay scales depends upon seniority-cum-merit or merit-cum-seniority. The differentiation so made in the same cadre will not amount to discrimination. The classification based on experience is a reasonable classification. It has a rational nexus with the object thereof. To hold otherwise, it would be detrimental to the Interest of the service itself." (para 7)
45. In Secretary, Finance Department and others Vs. West Bengal Registration Service Association and others, AIR 1992 SC 1203 the Court held that equation of posts and determination of pay scales is the primary function of the executive and not the judiciary and, therefore, ordinarily Courts will not enter upon the task of job evaluation which is generally left to expert bodies like the Pay Commissions, etc. It does not mean that the Court has no jurisdiction and the aggrieved employees have no remedy if they are unjustly treated by arbitrary State action or inaction. Courts must, however, realise that job evaluation is both a difficult and time consuming task which even expert bodies having the assistance of staff with requisite expertise have found difficult to undertake, sometimes on account of want of relevant data and scales for evaluating performance of different groups of employees. This would call for a constant study of the external comparisons and internal relativities on account of the changing nature of job requirements. Some of the factors which have to be kept in view for job evaluation may include (i) the work programme of his department, (ii) the nature of contribution expected of him (iii) the extent of his responsibility and accountability in the discharge of his diverse duties and functions, (iv) the extent and nature of freedoms/limitations available or imposed on him in the discharge of his duties, (v) the extent of powers vested in him, (vi) the extent of his dependence on superiors for the exercise of his powers,, (vii) the need to coordinate with other departments, etc.
46. The Court further says that a pay structure is evolved normally keeping in mind several factors, like, (i) method of recruitment, (ii) level at which recruitment is made, (iii) the hierarchy of service in a given cadre, (iv) minimum educational/technical qualifications required, (v) avenues of promotion, (vi) the nature of duties and responsibilities, (vii) the horizontal and vertical relativities with similar jobs, (viii) public dealings, (ix) satisfaction level, (x) employer's capacity to pay, etc. The list is not exhaustive but illustrative.
47. In State of Madhya Pradesh and Anr. v. Pramod Bhartiya and Ors. (1993) 1 SCC 539, the Court held as under-
"It would he evident from this definition that the stress is upon the similarity of skill, effort and responsibility when performed under similar conditions. Further, as pointed out by Mukharji, J. (as he then was) in Federation of All India Customs and Excise Stenographers the quality of work may vary from post to post. It may vary from institution to institution We cannot ignore or overlook this reality. It is not a matter of assumption but one of proof. The respondents (original petitioners) have failed to establish that their duties, responsibilities and functions are similar to those of the non-technical lecturers in Technical Colleges. They have also failed to establish that the distinction between their scale of pay and that of non technical lecturers working in Technical Schools is either irrational and that it has no basis, or that it is vitiated by mala fides, either in law or in fact (see the approach adopted in Federation case). It must be remembered that since the plea of equal pay for equal work has to be examined with reference to Article 14. the burden is upon the petitioners to establish their right to equal pay, or the plea of discrimination, as the case may be This burden the original petitioners (respondents herein) have failed to discharge."
(para 13)
48. In Shyam Babu Verma and Ors. v. Union of India and Ors. (1994) 2 SCC 521, the Court observed :
"the principle of equal pay for equal work should not be applied in a mechanical or casual manner. Inequality of the men in different groups excludes applicability of the principle of equal pay for equal work to them. Unless it is established that there is no reasonable basis to treat them separately in matters of payment of wages or salary, the Court should not Interfere holding different pay scale as discriminatory"(para 9)
49. In Sher Singh and Ors. v. Union of India and Ors. (1995)6 SCC 515, the Court rejected the claim of Library staff of Delhi University and its constituent colleges regarding parity in pay with the teaching staff on the ground that the nature of duties, work load, experience and responsibilities of the two sets of employees in question are totally different from each other.
50. In Union of India and Ors. v. Delhi Judicial Service Assn. and Anr. JT 1995 (2) SC 578, the Court, reversing the judgment of High Court which allowed same scale of pay to all officers of Higher Judicial Services, held :
"We think that the high Court was not right in giving selection grade scale of pay to all the officers on the principle of equal pay for equal work. If that be so the Dist. Munsif (Junior civil Judge, Junior subordinate Judge) etc. lowest officer in judicial hierarchy is entitled to the pay of the Senior most super-time scale district Judge as all of hem are discharging judicial duty. The marginal difference principle also is equally inappropriate. Similarly of posts or scale of pay in different services are not relevant. The nature of the duty, nature of the responsibility and degree of accountability etc. are relevant and germane considerations Grant of selection grade, suppertime scale etc. would be akin to a promotion. The result of the impugned direction would wipe out the distinction between the time Scale and Selection grade officers. The learned Counsel for the Union of India, pursuant to our order, has placed before us the service conditions prevailing in the Higher Judicial Services in other States in the country. Except Gujrat which had wiped out the distinction after the judgment in all India Judges Association's case, all other States maintained the distinction between the Grade I and tirade II Higher Judicial offices or Time Scale and Selection Grade or Suppertime scales etc. In fact this distinction is absolutely necessary to inculcate hard work, to maintain character, to improve efficiency, to encourage honesty and integrity among the officers and accountability. Such distinctions would not only be necessary in the Higher Judicial Service but also, indeed in all services under the State and at every stage." (para 5)
51. In Sita Devi and Ors. v. State of Haryana and Ors. JT 1996 (7 SC 438, the Court upheld different pay scales on the basis of qualification, relying on its earlier judgments in The State of Mysore and Anr. v. P. Narasinga Rao, AIR 1968 SC 349; State of Jammu and Kashmir v. Triloki Nath Khosa, AIR 1974 SC 1 and P. Murugesan and Ors. v. State of Tamil Nadu, 1993 (2) SCC 340.
52. In State of Haryana v. Jasmer Singh and Ors. AIR 1997 SC 1788:1997 (1) AWC2.145 (SC)(NOC), the Court justified different pay scales, on various factors, observing as under:
"It is therefore, clear that the quality of work performed by different sets of persons holding different Jobs will have to be evaluated There may be differences in educational or technical qualifications which may have a bearing on the stills which the holders bring to their job although the designation of the job may be the same. There may also be other considerations which have relevance to efficiency in service which may justify differences in pay scales on the basis of criteria such as experience and seniority, or a need to prevent stagnation in the cadre, so that good performance can be elicited from persons who have reached the top of the pay scale. There may be various other similar considerations which may have a hearing on efficient performance in a job. This Court has repeatedly observed that evaluation of such jobs for the purposes of pay scale must be left to expert bodies and, unless there are any mala fides, its evaluation should be accepted." (para 8)
53. In Garhwal Jal Sansthan Karmachari Union and Anr. v. State of U.P. and Ors. (1997) SCC 24, the Court, in para 8 of the Judgment, rejected the claim of pay parity, between employees of Jal Nigam and Jal Sansthan, on the ground of qualitative difference in the duties, function and responsibilities in the two organizations.
54. Considering difference in mode of recruitment and different service rules, in State of Rajasthan v. Kunji Raman, AIR 1997 SC 693, the Court upheld different pay scale for work charged employees and those employed in regular establishment.
55. In Union of India and Ors. v. Pradip Kumar Dey (2000) 8 SCC 580 : 2001 (1) AWC 176(SC), question of parity of pay scale of Naik, Radio Operator in CRPF and employees working as Radio Operator in Directorate of Coordination Police Wireless came up for consideration on the principle of equal pay for equal work and the Court negated parity, observing that different pay scale prescribed taking into account hierarchy in service and other relevant factors, cannot be interfered, as it would disturb entire chain of hierarchy.
56. In State of Orissa and Ors. v. Balaram Sahu and Ors. (2003) 1 SCC 250 : 2003 (1) AWC 273 (SC), Court observed as under:
"Though "equal pay for equal work" is considered to be a concomitant of Article 14 as much as "equal pay for unequal work" will also be a negation of that right, equal pay would depend upon not only the nature or the volume of work, tint also on the qualitative difference as regards reliability and responsibility as well and though the functions may be the same, but the responsibilities do make a real and substantial difference." (para 11)
57. In State of Haryana and Anr. v. Haryana Civil Secretariat Personal Staff Association, (2002) 6 SCC 72 : 2002 (3) AWC 2477 (SC), it was held in para 10 -
"It is to be kept in mind that the claim of equal pay for equal work is not a fundamental right vested in any employee though it is a constitutional goal to be achieved by the Government. Fixation of pay and determination of parity in duties and responsibilities is a complex matter which is for the executive to discharge, While taking a decision in the matter, several relevant factors, some of which have been noted by this Court in the decided case, are to be considered keeping in view the prevailing financial position and capacity of the State Government to hear the additional liability of a revised scale of pay. It is also to be kept in mind that the priority given to different types of posts under the prevailing policies of the Slate Government is also a relevant factor for consideration by the State Government. In the context of the complex nature of issues involved, the far-reaching consequences of a decision in the matter and its impact on the administration of the State Government, courts have taken the view that ordinarily courts should not try to delve deep into administrative decisions pertaining to pay fixation and pay parity. That is not to say that the matter is not Justiciable or that the courts cannot entertain any proceeding against such administrative decision taken by the Government. The courts should approach such matters with restraint and interfere only when they are satisfied that the decision of the Government is patently irrational, unjust and prejudicial to a section of employees and the Government while taking the decision has ignored factors which are material and relevant for a decision in the matter..." (Para 10)
58. In State Bank of India and Anr. v. M.R. Ganesh Babu and Ors. (2002) 4 SCC 556, the Court observed in para 16-
"The principle of equal pay for equal work has been considered and applied in may reported decisions of this Court. The principle has been adequately explained and crystallized and sufficiently reiterated in a catena of decisions of this Court. It is well settled that equal pay must depend upon the nature of work done. It cannot he judged by the mere volume of work; there may be qualitative difference as regards reliability and responsibility Functions may be the same but the responsibilities make a difference. One cannot deny that often the difference is a matter of degree and that there is an element of value judgment by those who are charged with the administration in fixing the scales of pay and other conditions of service. So long as value judgment is made bona fide, reasonably on an intelligible criterion which has a rational nexus with the object of differentiation, such differentiation will not amount to discrimination. The principle is not always easy to apply as there are inherent difficulties in comparing and evaluating the work done by different persons in different organizations, or even in the same organization. Differentiation in pay scales of persons holding same posts and performing similar work on the basis of difference in the degree of responsibility, reliability and confidentiality would be a valid differentiation. The judgment of administrative authorities concerning the responsibilities which attach to the post, and the degree of reliability expected of an incumbent, would be a value judgment of the authorities concerned which, if arrived at bona fide, reasonably and rationally, was not open to interference by the court."
59. The difference in pay scale and wages for work charge employees and those engaged in regular establishment has been upheld in State of Punjab and others Vs. Gurdeep Kumar Uppal and others, AIR 2001 SC 2691, State of Punjab and others Vs. Ishar Singh and others, AIR 2002 SC 2422 and Punjab State Electricity Board and others Vs. Jagjiwan Ram and others, JT 2009 (3) SC 400.
60. In Deb Narayan Shyam and others Vs. State of West Bengal and others, 2005(2) SCC 286, the Court summarized as to when doctrine of equal pay for equal work would apply in the light of exposition of law laid down in catena of its earlier decisions and said:
"Large number of decisions have been cited before us with regard to the principle of 'equal pay for equal work' by both sides. We need not deal with the said decisions to overburden this judgment. Suffice it to say that the principle is settled that if the two categories of posts perform the same duties and function and carry the same qualification, then there should not be any distinction in pay scale between the two categories of posts similarly situated. But when they are different and perform different duties and qualifications for recruitment being different, then they cannot be said to be equated so as to qualify for equal pay for equal work."
61. The above dictum has been followed in Union of India and Another Vs. Mahajabeen Akhtar, AIR 2008 SC 435.
62. In Haryana State Electricity Board and another Vs. Gulshan Lal and others, JT 2009(9) SC 95 the Court observed that same or similar nature of work, by itself, does not entitle an employee to invoke doctrine of equal pay for equal work. Qualification, experience and other factors would be relevant for the said purpose.
63. A three Judge Bench of Apex Court in State of Haryana and others Vs. Charanjit Singh and others, AIR 2006 SC 161 said that the principle of "equal pay for equal work" has no mechanical application in every case. Article 14 permits reasonable classification based on qualities or characteristics of persons recruited and grouped together, as against those who were left out. Of course the qualities and characteristics must have a reasonable relation to the object sought to be achieved. In service matters merit or experience can be a proper basis for classification for the purposes of pay in order to promote efficiency in administration. A higher pay scale to avoid stagnation or resultant frustration for lack of promotional avenues is also an acceptable reason for pay differentiation. The very fact that a person has not gone through the process of recruitment in certain cases make a difference. If the the educational qualifications are different then also the doctrine may have no application. Even though persons may do the same work, their quality of work may differ. Where persons are selected by a Selection Committee on the basis of merit with due regard to seniority a higher pay scale granted to such persons who are evaluated by competent authority cannot be challenged. A classification based on difference in educational qualifications justify a difference in pay scales. The earlier nomenclature designating a person as a carpenter or a craftsman is not enough to come to the conclusion that he was doing the same work as another carpenter or craftsmen in regular service. The quality of work which is produced may be different and even the nature of work assigned may be different. It is not just a comparison of physical activity. The application of the principle of "equal pay for equal work" requires consideration of various dimensions of a given job. The accuracy required and the dexterity that the job may entail may differ from job to job. It cannot be judged by mere volume of work. There may be qualitative difference as regards reliability and responsibility.
64. The above view has been followed in Union of India and others Vs. Dineshan K. K., AIR 2008 SC 1026, Haryana State Minor Irrigation Tubewells Corporation and others Vs. G.S. Uppal and others, AIR 2008 SC 2152 and Food Corporation of India and others Vs. Ashish Kumar Ganguli and others, 2009(8) SCALE 218.
65. Recently in State of Punjab and another Vs. Surjit Singh and others, 2009(11) SCALE 149, after referring to its earlier judgments, the Court has summarized dictum, in the following manner:
"In our opinion fixing pay scales by courts by applying the principle of equal pay for equal work upsets the high constitutional principle of separation of powers between the three organs of the State. Realising this, this Court has in recent years avoided applying the principle of equal pay for equal work, unless there is complete and wholesale identity between the two groups (and there too the matter should be sent for examination by an Expert Committee appointed by the government instead of the court itself granting higher pay)."
66. It further says that grant of benefit of doctrine of "equal pay for equal work" depends upon a large number of factors including equal work, equal value, source and manner of appointment, equal identity of group and wholesale or complete identity. The Apex Court in Surjit Singh (supra) also stressed upon that the principle has undergone a sea change and the matter should be examined strictly on the basis of the pleadings and proof available before the Court to find out whether the distinction between two based on any relevant factor or not. The onus to prove lie on the person who alleges discrimination and claims enforcement of the doctrine of equal pay for equal work.
67. In State of Madhya Pradesh and others Vs. Ramesh Chandra Bajpai, 2009(11) SCALE 619 the Court said that it is well settled that the doctrine of equal pay for equal work can be invoked only when the employees are similarly situated. Similarity in designation or nature or equation of work is not determinative for equality in the matter of pay scales. The Court has to consider the factors like the source and mode of recruitment/appointment, qualifications, nature of work, the value thereof, responsibility, reliability, experience, confidentiality, functional need, etc. In other words the equality clause can be invoked in the matter of pay scale only when there is a whole sale identity between the two posts.
68. In State of Punjab Vs. Surjit Singh (2009) 9 SCC 514, the Court said that Article 14 permits reasonable classification based on qualities or characteristics of persons recruited and grouped together, as against those, who are left out, of course, qualities or characteristics must have a reasonable relation to the object sought to be achieved. In service matters, merit or experience can be a proper basis for classification for the purposes of pay. A mere nomenclature designating a person say a carpenter or a craftsman is not enough to come to the conclusion that he is doing the same work as another carpenter or craftsman in regular service. The quality of work which is produced may be different and even the nature of work assigned may be different. It is not just a comparison of physical activity. The application of the principle of 'equal pay for equal work' requires consideration of various dimensions of a given job. The accuracy required and the dexterity that the job may entail may differ from job to job. It cannot be judged by the mere volume of work. There may be qualitative difference as regards reliability and responsibility. Functions may be the same but the responsibilities make a difference. A party who claims equal pay for equal work has to make necessary averments and prove that all things are equal.
69. In State of Madhya Pradesh and Ors. Vs. Ramesh Chandra Bajpai, 2009(13) SCC 635, the Court said that doctrine of equal pay for equal work can be invoked only when the employees are similarly situated and that similarity of the designation or nature or quantum of work is not determinative of equality in the matter of pay scales and that the Court has to consider several factors and only when there was wholesale identity between the holders of two posts, equality clause can be invoked and not otherwise.
70. In A.K.Behra Vs. Union of India & Anr., JT 2010 (5) SC 290, the Court, in paras 84 and 85, said:
"84. The principle underlying the guarantee of Article 14 is not that the same rules of law should be applicable to all persons within the Indian territory or that the same remedies should be made available to them irrespective of differences of circumstances. It only means that all persons similarly circumstanced shall be treated alike both in privileges conferred and liabilities imposed.
85. The law can make and set apart the classes according to the needs and exigencies of the society and as suggested by experience. It can recognize even degree of evil, but the classification should never be arbitrary, artificial or evasive."
71. In State of Rajasthan & Ors. Vs. Daya Lal & Ors., 2011 (2) SCC 429, the Court culled down following principles:
"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."
72. This decision has been followed in Union Territory Administration, Chandigarh and Ors. v. Mrs. Manju Mathur and Anr., JT 2011 (3) SC 179.
73. In Hukam Chand Gupta vs. Director General, I.C.A.R. and Ors. AIR 2013 SC 547, the Court observed that in order to attract doctrine of "equal pay for equal work", assessment of the nature and quality of duties performed and responsibilities shouldered by the incumbents is necessary. Even if, the two persons are working on two posts having same nomenclature, it would not lead to the necessary inference that the posts are identical in every manner.
74. Thus the persons, who have not been engaged after undergoing process of recruitment, consistent with Articles 14 and 16 of the Constitution and are governed by different sets of terms and conditions, they cannot claim parity with those who have undergone such process.
75. Looking to the principles and exposition of law, as discussed above, I find that petitioners cannot claim to be similarly situated and placed as regularly appointed Helpers. The petitioners have not faced regular selection /competition in the matter of public employment, as enshrined under Articles 14 and 16 of the Constitution. The vacancies were never advertised, no process of selection has undergone and it is also not the case of petitioners that they have faced any process of selection conducted by respondents or any other authority before their alleged casual engagement. No letter of appointment has been issued to petitioners like other regular employees. Petitioners are under no obligation, responsibility etc. as those who were regularly worked and subject to disciplinary proceedings also. The degree of responsibilities of regularly appointed persons and petitioners obviously are different. The petitioners cannot said to be appointed in the same manner as that regularly appointees are. The petitioners have not been appointed in accordance with law, they may be performing work relating to Helper, which may or may not be same, which may be performed by regular Helpers but cannot justify parity with regular Helpers for various reasons, as detailed herein above. In short, what comes to be centralized is that petitioners cannot claim parity with regular employees and therefore doctrine of 'equal pay for equal work' is not attracted. This issue is answered against petitioners and relief with respect to payment of salary at par with regular employees is hereby rejected.
76. Then comes the third question regarding "regularization". In this regard some of the relevant facts, emerging from pleadings in writ petition are:
(I) IAL is an authority and therefore, State, as defined under Article 12 of the Constitution of India is bound to observe fundamental rights, as guaranteed under Articles 14 and 16(1) of the Constitution.
(II) No vacancy was ever advertised whereagainst petitioners have applied or could have applied.
(III) Before engagement of petitioners as casual Helper, they did not face any selection process, never compete with any person eligible and entitled to be considered for employment with IAL and on the contrary, just by pick and choose method, petitioners were engaged as casual.
(IV) No letter of appointment /contract of appointment has been issued or executed and petitioners' engagement, is at the best, oral.
77. It is clear that none of the petitioners have been appointed by respondents as no letter of appointment is on record. An appointment commences with letter of appointment but in the present case no such order is on record. In fact, it is admitted by counsel for petitioners, during course of arguments that petitioners were never engaged or appointed by issuing any letter of appointment. The petitioners had discharged certain duties at Airports regarding loading, unloading. Can such a continuance or function be treated to be a valid appointment or would create some kind of right upon petitioners to claim continuance of their employment so much so, as to claim regularization as well.
78. In order to hold an office or appointment in State, or where the funds are being released from State Exchequer for payment of salary to the appointees, it goes without saying that State has to make appointments following the process of open recruitment, giving equal opportunity of consideration to all concerned. In other words, an appointment has to be made in such a case by State or its authority following procedure, which is consistent with Article 16(1) of the Constitution. It includes advertisement of vacancies i.e. notifying to the Employment Exchange, advertisement in newspaper and/or other means.
79. In State of Orissa and Anr Vs. Mamata Mohanty, 2011 (3) SCC 436, the Court said:
"....some appropriate method consistent with the requirements of Article 16 should be followed. In other words there must be a notice published in the appropriate manner calling for applications and all those who apply in response thereto should be considered fairly. Even if the names of candidates are requisitioned from Employment Exchange, in addition thereto it is mandatory on the part of the employer to invite applications from all eligible candidates from the open market by advertising the vacancies in newspapers having wide circulation or by announcement in Radio and Television ...."
80. The Court further said that no person can be appointed even on temporary or ad hoc basis without inviting applications from all eligible candidates. In that case, appointments were made after notifying vacancies to Employment Exchange and putting a note on the notice board. The Court condemned it and said:
"If any appointment is made by merely inviting names from the Employment Exchange or putting a note on the Notice Board etc. that will not meet the requirement of Articles 14 and 16 of the Constitution. Such a course violates the mandates of Articles 14 and 16 of the Constitution of India as it deprives the candidates who are eligible for the post, from being considered."
81. The Court went on to observe that a person appointed illegally or not employed after following procedure consistent with Articles 14 and 16, shall not be entitled for salary. The Court said:
"A person employed in violation of these provisions is not entitled to any relief including salary. For a valid and legal appointment mandatory compliance of the said Constitutional requirement is to be fulfilled. The equality clause enshrined in Article 16 requires that every such appointment be made by an open advertisement as to enable all eligible persons to compete on merit."
82. It is interesting to notice that in State of Orissa and Anr Vs. Mamata Mohanty (supra), the Court also observed that if a person has continued to work, that by itself will not confer any right upon him since principle of holding over or concept of adverse possession is not applicable in service jurisprudence. Relying on its earlier decision in Dr. M.S. Patil Vs. Gulbarga University and Ors., AIR 2010 SC 3783, the Court said:
"The concept of adverse possession of lien on post or holding over are not applicable in service jurisprudence. Therefore, continuation of a person wrongly appointed on post does not create any right in his favour."
83. The above observations are attracted with full force in the case in hand where none of the petitioners have even been appointed by respondents and there is no compliance of Articles 14 and 16 of Constitution. Since petitioners are simply continuing to discharge certain duties, on that basis alone, they cannot claim any right, legally or constitutionally, else, it would be directly infringing constitutional mandate of Articles 14 and 16 of Constitution. An interpretation and a consequence, which may infringe a fundamental right and per se unconstitutional, cannot be conceived by Court. I cannot take a view, which would confer an illegal and unconstitutional benefit upon petitioners.
84. In order to claim regularization, it has to be kept in mind as to what is the concept of regularization. In other words, what are the necessary constituents or indicias, which must exist so as to entitle a person to claim regularization in employment having not been appointed in accordance with law.
85. The appointments in public services are made in various ways. The purest form of appointment is one which is made following the procedure laid down in statute consistent with Article 16 of the Constitution of India. When a vacancy on a civil/public post is available, it is made known to every one, eligible and willing, to apply therefor, so as to be considered thereagainst. It conforms the fundamental right of equal opportunity of employment to all qualified and willing persons for such employment. When this opportunity is given and appointment is made after following procedure prescribed in statute, the appointment is absolutely just, valid and called the purest form of appointment.
86. Then comes an appointment, where vacancies are advertised, consideration for employment is afforded to all qualified and willing but in the process of selection and appointment there is some procedural defect which may not affect the very appointment at its root. Such an appointment at the best can be an irregular appointment which would confer a right upon the appointee to continue and hold the post subject to subsequent rectification or validation by competent authority, expressly or impliedly.
87. Then comes an appointment, fortuitous in nature, made in certain exigencies. For example, a short term, stop gap, officiating, daily wage etc. appointments, which normally is opted when requirement and tenure is precarious and by the time, procedure is followed, very purpose would stand frustrated. Such appointments are made normally by pick and choose method, i.e., whosoever come and apply, whether after getting knowledge on his own or otherwise, is given opportunity to serve for the limited purpose and tenure, which is called, sudden requirement and exigency of situation. Such appointments do not confer any right upon the appointee, either to hold post for a long time or to get the post in substantive manner. Above exception has been pleaded and allowed though it deprives right of equal opportunity of consideration to all eligible and willing persons by advertising the vacancy etc. only for the reason that requirement is sudden, tenure precarious and delay shall cause greater public loss. Otherwise, such appointments, in other words, comes in the category of illegal when tested on the anvil of Article 14 and 16 of the Constitution. One can say that applying doctrine of reasonable classification and considering fortuitous nature of requirement and process followed for its achievement, per se it may not be termed as illegal so long as that requirement is there but in case it is extended so as to confer a benefit more than such requirement, it will cross the dotted line of validity and will entered in the realm of illegality. Such appointments have been held void ab initio and not entitled to confer any right upon appointee so as to claim a substantive right on the post in his holding, in whatever capacity, whether daily wager, officiating, ad hoc etc.
88. The maxim 'dura lex, sed lex', which means "law is hard but it is the law", in my view, aptly applies in the cases where incumbents have come to an office not following procedure consistent with constitutional requirement of Article 16(1) but otherwise and thereafter claim equitable and other consideration for sustaining their entry and occupancy of the office for all times to come. In Raghunath Rai Bareja and another Vs. Punjab National Bank and others, 2007(2) SCC 230 it is said:
"When there is a conflict between law and equity, it is the law which has to prevail . . . . . Equity can only supplement the law, but it cannot supplant or override it."
89. It has been followed in State of Uttaranchal and Anr. Vs. Rajendra Singh Kandwal 2011(5) AWC 5075 (SC).
90. The Constitution Bench in Secretary, State of Karnataka Vs. Uma Devi 2006 (4) SCC 1 has held that illegal appointments cannot be asked to be regularized as that would amount to violating the fundamental right of equal opportunity of employment to those who have been denied such opportunity. The Constitution Bench decision has overruled dozens of earlier decisions taking a view otherwise so as to show sympathy in favour of those who got or managed their appointments illegally, i.e., without complying the requirement of equal opportunity of employment to all others, came to the office on account of their individual resources and managing continuance for quite some time or long time, and then claim a substantive right on the basis of long tenure, they have managed to continue. In other words, the incumbent comes to the office by virtue of a pick and choose method, usurps office by back door or whatever other term one may use, despite obviously it being short of compliance of requirement of Article 16(1) of the Constitution, but having maintained such benefit to continue for quite some time which normally has the support of appointing authorities also, the beneficiary comes to claim a sense of sympathy on the basis of such long continued usurpation of office. In other words, a violator of law claims a substantive right for having violated law continuously for quite a long time with regard to a public office.
91. In the matter of appointment there is no principle of adverse possession but a plea somewhat similar thereto many a times is raised that since one has continued to work for quite long time, now he should be allowed to stay in the office for rest of tenure otherwise his family would suffer. A situation is created where sympathy is sought not in favour of victims, i.e., those who were denied right of equal opportunity of employment but in favour of those who have violated law, contravened it, breached it with impunity, and, have continued to do so for quite some time, and now, boldly and blatantly claim a kind of right to retain such benefit of breach of law, for all times to come, and, for that purpose, various pleas in the name of equity, sympathy, compassion etc. are raised and pleaded. Many a times, find favour in the Courts of Law. Fortunately, the Constitution Bench, after having a retrospect of all earlier authorities, has taken a clear stand against such kind of favour shown to those who have come in public office, by denying right of equal opportunity to others. The Court in unequivocal terms has observed that any favour shown to such violators would be a misplaced sympathy.
92. Regularisation Rules, if any, is an attempt to give a cover to such illegal appointments and, therefore, may have to be tested on the anvil of constitutional validity under Article 14 and 16(1) of the Constitution. However in the present case, no such Rule exists. It exists, every requirement entitling a persons to be considered for regularization must be held to be mandatory and any deviation therefrom will either disentitle the claimant from such benefit or any attempt by executive otherwise would render such action of even executive authority, ultra vires.
93. After Uma Devi (supra) there is a chain of authorities wherein the above view has been followed and some of the authorities which tried to take a different view, subsequently, even have been overruled and clarified. Some of the recent authorities, in this regard, just to recapitulate and remind the exposition of law with regard to regularization may be referred to hereat.
94. Commenting upon one time scheme of regularization, in State of Rajasthan and others Vs. Daya Lal & others, 2011(2) SCC 429, the Court in para 12 of the judgment said:
"12. The decision relied upon by the High Court namely the decision in Anshkalin Samaj Kalyan Sangh of the High Court no doubt directed the state government to frame a scheme for regularization of part-time cooks and chowkidars. It is clear from the said decision, that such scheme was intended to be an one-time measure. Further said decision was rendered by the High Court prior to Uma Devi, relying upon the decision of this Court in Daily Rated Casual Labour v. Union of India 1988 (1) SCC 122, Bhagwati Prasad v. Delhi State Mineral Development Corporation 1990 (1) SCC 361 and Dharwad District PWD Literate Dalit Wage Employees Association v. State of Karnataka 1990 (2) SCC 396. These directions were considered, explained and in fact, overruled by the Constitution Bench in Uma Devi. The decision in Anshkalin Samay Kalyan Singh is no longer good law. At all events, even if there was an one time scheme for regularisation of those who were in service prior to 1.5.1995, there cannot obviously be successive directions for scheme after scheme for regularization of irregular or part-time appointments. Therefore the said decision is of no assistance."
95. In Union of India and others Vs. Vartak Labour Union, 2011(4) SCC 200 in para 16 of the judgment the Court said:
"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, State of Karnataka and Ors. v. Umadevi (3) and Ors. (2006) 4 SCC 1; Official Liquidator v. Dayanand and Ors. (2008) 10 SCC 1; State of Karnataka and Ors. v. Ganapathi Chaya Nayak and Ors. (2010) 3 SCC 115; Union of India and Anr. v. Kartick Chandra Mondal and Anr.; Satya Prakash and Ors. v. State of Bihar and Ors. (2010) 4 SCC 179 and Rameshwar Dayal v. Indian Railway Construction Company Limited and Ors. 2010) 11 SCC 733." (emphasis added)
96. In Brij Mohan Lal Vs. Union of India and others, 2012(6) SCC 502, dealing with Fast Track Courts, the Court referred to the Constitution Bench decision in Uma Devi (supra) and said that therein the principle has been laid down that in matters of public employment, absorption, regularization or permanent continuance of temporary, contractual or casual daily wage or ad hoc employees appointed and continued for long in such public employment would be de hors the constitutional scheme of public employment and would be improper.
97. In University of Rajasthan and another Vs. Prem Lata Agarwal, 2013(3) SCC 705 after referring to the dictum in Uma Devi (supra), the court observed that when a person enters a temporary employment or gets engagement as a contractual or casual worker and the engagement is not based on a proper selection as recognized by relevant rules/procedure, he is aware of the consequences of appointment being temporary, casual or contractual in nature. Such a person cannot invoke the theory of legitimate expectation for being confirmed on a post when an appointment on the post could be made only by following proper procedure.
98. Recently in Amarendra Kumar Mohapatra and Ors. vs. State of Orissa and Ors., 2014(2) SCALE 589; Nand Kumar Vs. State of Bihar & Ors., 2014 (3) AWC 2378 (SC); Secretary to Government, School Education Department, Chennai & Ors. Vs. Thiru R. Govindaswamy and Ors. (2014) 4 SCC 769 and Director, Printing and Stationary Department, U.P. Government Press & Ors. Vs. Moti Lal and Ors., (2014)2UPLBEC1193, the Court reiterated and followed Constitution Bench decision in Secretary, State of Karnataka and Ors. Vs. Umadevi (3) and Ors., 2006 (4) SCC 1;
99. In Nand Kumar Vs. State of Bihar (supra), referring to Uma Devi (supra), the Court said that the daily wagers are not appointees in the strict sense of the term 'appointment'. They do not hold a post. They cannot therefore claim any benefit of regularization. The Court observed:
"Appointment on daily wage basis is not an appointment to a post according to the rules. Usually, the projects in which the daily wagers were engaged, having come to an end, their appointment is necessarily terminated for want of work. Therefore, the status and rights of daily wagers of a Government concern are not equivalent to that of a Government servant and his claim to permanency has to be adjudged differently." (emphasis added)
100. In the present case, it is not argued by learned counsel for the petitioners that they are entitled to be considered for regularization under some statutory provision or there is any scheme enforceable in law, formulated by respondent IAL which entitled petitioners to claim regularization.
101. In view of the above discussion, claim set up by respondents for regularization must fail. I answer the issue accordingly and against petitioners.
102. Since all the three issues have been answered in negative and against the petitioners, I do not find that any other issue needs be looked into, since the petitioners ex facie are not entitled to any relief, sought for, and the writ petition deserves to be dismissed with costs.
103. All the writ petitions are dismissed with costs of Rs. Ten Thousand only in each set.
Order Date :- 12.8.2014 KA/AKN Court No. - 27 Case :- SERVICE SINGLE No. - 6608 of 2005 Petitioner :- Anil Kumar And Another Respondent :- India Airlines Through Chairman And 3 Others Counsel for Petitioner :- Asif Hasan,N.K Seth,R.C. Saxena, Sarvesh Kumar Shukla Counsel for Respondent :- S.R. Gupta Hon'ble Sudhir Agarwal, J.
Dismissed. For details see my judgment of date passed on separate sheets (52 in number).
Order Date :- 12.8.2014 KA/AKN