Court No. - 16
Case :- WRIT - A No. - 67849 of 2013
Petitioner :- Ashok Kumar And 30 Others Respondent :- State Of U.P. & 2 Others Counsel for Petitioner :- Ashok Khare,Amit Krishna,Siddharth Khare
Counsel for Respondent :- C.S.C.,Bhanu Bhushan Jauhari,Nisheeth Yadav
Hon'ble Mrs. Sangeeta Chandra,J.
Oral
1. Heard the learned Senior Counsel, Mr. Ashok Khare appearing for the petitioners assisted by Sri Anshul Bhatnagar and Sri Bhanu Bhushan Jauhari for the Greater Noida.
2. It is the case of the petitioners that they have been working continuously, from the year 1999 onwards, details of their engagements have been given in Annexure 8 to the writ petition, they had initially filed one writ petition before this Court, namely Writ-A No. 61127 of 2012 (Ashok Kumar & others Vs. State of U.P. & others) which was disposed of by this Court on 26.11.2012 directing the Chief Executive Officer, Greater Noida Authority to take an appropriate decision on the representation of the petitioners in accordance with law. It was thereafter that the impugned order dated 8.7.2013 has been passed by the Chief Executive Officer, Greater Noida.
3. It has been submitted in the writ petition that the respondents have not disputed the continuous engagement of the petitioners for long periods of time to do work of the respondents, but their regularisation has been refused only on the ground that their engagement was through a contractor / placement agency and not by the respondent Authority itself directly.
4. Sri Ashok Khare, learned Senior Counsel has also referred to a Government Order issued by Vitt Vetan Aayog Anubhag-2 dated 24.2.2016 by which the Government has permitted regularisation of all those employees who were engaged either on daily wage or on work charge, or on contractual basis upto 31.12.2005, it has been submitted that under this Government Order also, the respondents can consider the claim of the petitioners for regularisation as it permits regularisation of even contractual employees.
5. Sri Ashok Khare has referred to the supplementary affidavits filed by the petitioners in 2013 and 2014 bringing on record the matter of one Naresh Kumar, who had been identically placed as the petitioner and who was regularised ignoring the fact that his services were contractual in nature and later on when Naresh Kumar died in 2014, his son was also given compassionate appointment.
6. It has also been submitted that besides Naresh Kumar, eleven other drivers engaged through contractors / placement agency whose names were mentioned in paragraph 10 of the second supplementary affidavit have been regularised after sanction was sought for thirteen posts of drivers by the Chief Executive Officer from the State Government.
7. It has been submitted that the aforesaid eleven persons had filed a Writ Petition No. 27553 of 2005 (Rajkiya Vahan Chalak Mahasangh, Greater Noida Authority Vs. State of U.P. & others) which was finally disposed of on 21.4.2011 by this Court directing the respondents to consider the claim of such persons. The said judgment was affirmed in Appeal and the Special Leave Petition was also dismissed on 6.2.2012. The Greater Noida thereafter proceeded to consider all the aforesaid eleven persons and regularised them in its 92nd meeting of the Board of Directors.
8. Learned counsel for the respondents on the other hand has pointed out that the case of the members of the Sangh was directed to be considered by the Supreme Court in Special Leave Petition strictly in accordance with 1993 Rules framed by the Greater Noida Authority for its employees. Now however, the U.P. Industrial Development Authority Centralised Service Rules, 2018 have been notified on 23.6.2018, there is a provision for engagement of clerical / ministerial staff, but a Selection Committee has to be constituted in accordance with the Centralised Service Rules. The Selection Committee is infact a Reference to an appropriate Commission as designated for the said purpose by the State Government. It is not open for the Chief Executive Officer of Greater Noida to consider the case of the petitioners on his own.
9. Learned counsel for the respondents has also pointed out that all those engagements that have been referred to by the petitioners of contractual employees who had been regularised by Greater Noida was with reference to Rule 16 of the Greater Noida Service Rules of 1993, which permitted engagement on contractual basis also.
10. Under these Rules of 1993, persons appointed on contract under Rule 16 are covered by the Government Order dated 24.2.2016, and by earlier Scheme of regularisation framed for the purpose duly approved by the Government. It is the case of the respondents that the petitioners being outside the scope of such Rule 16, cannot be considered at all as has been mentioned in the order impugned.
11. Having heard the learned counsel for the parties this Court finds that in the impugned order, it has been mentioned that the petitioners were given an oral hearing and the records were carefully perused and it was evident that the petitioners were never engaged by the Authority directly on contract basis. Rather, certain works were awarded on contract basis to a contractor and they worked for that contractor. Payment against the work performed was made to the contractor. The petitioners were never on the rolls of the Authority either directly recruited through regular selection, or on a contract basis, they were never appointed against any permanent post.
12. The twenty seven other employees that the petitioners were referring to as having been regularised were benefited under a Scheme framed by the Authority as a onetime measure in the peculiar facts of the said twenty seven employees. In the case of the petitioners, the Scheme cannot be extended as it had been admitted by the petitioners that they had been working through the contractor.
13. It has also been mentioned in the order impugned that during the course of engagement of the petitioners for several years, the Authority had invited applications for appointment against regular sanctioned posts. If the petitioners ever felt that they were qualified and eligible, they could have applied against various advertisements that were issued by the Authoriy on different dates for the posts on which the petitioners were claiming to be eligible, and praying for regularisation.
14. By the order impugned, the Chief Executive Officer has referred to the Service Regulations permitting contractual arrangement, but it also states that such contractual arrangement is governed by the nature of conditions mentioned therein and it is terminable by its very contractual nature by efflux of time.
15. This order has been challenged by the petitioners saying that the grounds taken for rejection of the case of the petitioners is fallacious. The petitioners were engaged and discharging work against existing permanent requirement of work. This engagement of the petitioners was in pursuance of specific permission accorded by the State Government for filling up different categories of posts in the respondent Authorities through contract, the Greater Noida Industrial Development Authority Services Regulation, 1993 also permit engagement on contract.
Moreover, even if the petitioners were engaged through a contractor whatever payment had been made to the petitioners had been made after verification of their work by Officers of the Greater Noida Authority. The work of the petitioners being directly supervised by the Officers of the Greater Noida Authority, they should be treated as directly employed by the said Authority. In the impugned order, the Reference to a placement agency is a mere subterfuge to deny the rightful claim of the petitioners.
16. From a perusal of the contents of the supplementary affidavit filed in 2014, it is evident that the Writ Petition No. 27553 of 2005 of Vahan Chalak Mahasangh was disposed of by this Court on 21.4.2011 only with a direction to the respondents to consider the case of the petitioners for regularisation on the post of driver within a period of three months. This was on the basis of statement made by the learned counsel for the petitioners therein that earlier their regularisation was refused as no vacancies were available, now vacancies had become available, and the respondents cannot resile from their stand.
17. Against the order passed by the Hon'ble Single Judge, Greater Noida Authority filed a Special Leave Petition directly before the Supreme Court as Contempt Petition was pending in the High Court and the Supreme Court observed that the Greater Noida Authority shall immediately undertake exercise of recruitment on the posts of drivers strictly as per the procedure prescribed under the Greater Noida Industrial Development Authority Services Regulation, 1993. Till such process is completed, the service of the members of the respondent Sangh shall not be terminated and since the said drivers had been working with the Authority for quite sometime, they shall participate in the selection process and the Selection Committee were to consider granting age relaxation to these eleven candidates, if need be.
18. In the regularisation order that was passed with respect to these eleven writ petitioners, members of the Sangh, it has been mentioned that there were twenty five posts of drivers sanctioned for Greater Noida Authority as against which twelve posts were filled up. Against the thirteen posts that were left vacant, the writ petitioners i.e. eleven writ petitioners who were respondents in Special Leave Petition can be considered for regularisation under the provisions of the Service Rules of 1993 by the Chief Executive Officer.
19. This Court finds from a perusal of the record that although there is an aberration with respect to one Naresh Kumar, that has been pointed out in the supplementary affidavit filed by the petitioners, as he was also engaged by a service provider as driver; more or less what has been said by the respondent Authority in the order impugned is a correct narration of the facts and the law. If the petitioners are aggrieved by any alleged "unfair labour practice" being employed by the respondent Authority in changing the contractors whereas keeping the employees of such contractors in continuous engagement, this Court has no wherewithal to consider the specific cases as pointed out as they all relate to disputed questions of fact.
20. Sri Ashok Khare has argued that the distinction that has been sought to be made by the respondent Authority with regard to contractual employees that were engaged directly by Greater Noida and those contractual employees who were engaged through service provider, is a perverse distinction and this Court should take notice of the same and reject the stand of the respondents regarding the ineligibility of the petitioners for being regularised.
21. This argument has been raised by making a Reference to similarly situated contractual employees engaged by service provider / placement agency being regularised as mentioned in the supplementary affidavit filed by the petitioners, however, this Court feels that if an illegality has been committed in some particular case by Greater Noida, the benefit of the same cannot be granted to the petitioners. Artical 14 is a positive concept and there cannot be any parity granted in an illegality.
22. This Court therefore does not consider the question raised by the petitioners herein as one that can be answered by this Court with regard to unfairness of the respondents in continuing them for years together, although the service providers changed in the meantime. It shall be open for the petitioners to approach the Labour Court, if any such "unfair labour practice" is being adopted by the respondent Authority.
23. A Constitution Bench of the Hon'ble Supreme Court in Secretary, State of Karnataka & others Vs. Umadevi & others 2006 (4) SCC 1 observed in paragraph 49 thus:-
"49. It is contended that the State action in not regularizing the employees was not fair within the framework of the rule of law. The rule of law compels the State to make appointments as envisaged by the Constitution and in the manner we have indicated earlier. In most of these cases, no doubt, the employees had worked for some length of time but this has also been brought about by the pendency of proceedings in Tribunals and courts initiated at the instance of the employees. Moreover, accepting an argument of this nature would mean that the State would be permitted to perpetuate an illegality in the matter of public employment and that would be a negation of the constitutional scheme adopted by us, the people of India. It is therefore not possible to accept the argument that there must be a direction to make permanent all the persons employed on daily wages. When the court is approached for relief by way of a writ, the court has necessarily to ask itself whether the person before it had any legal right to be enforced. Considered in the light of the very clear constitutional scheme, it cannot be said that the employees have been able to establish a legal right to be made permanent even though they have never been appointed in terms of the relevant rules or in adherence of Articles 14 and 16 of the Constitution."
(emphasis supplied)
24. The Supreme Court in paragraph 53 of the said judgment permitted regularisation of irregular appointments in relation to duly qualified persons in duly sanctioned vacant posts, who had continued for ten years or more, but without intervention of the orders of the Courts or of tribunals. Such a process of regularisation would only be for the persons, who were engaged on regular duly sanctioned vacant posts, but without following due procedure prescribed by the Authorities concerned. It was not meant for regularisation of such employees as the petitioners herein who have been made available by the service provider. Under the new scheme of things, the Government does not engage persons directly on daily wage or on a contractual basis, service providers are engaged for the purpose of providing manpower and payment is made to the service provider on the basis of agreement / contract. It is the service provider who disburses wages of such employees like the petitioners. The contractual employees who get engaged in such manner are not selected on the basis of following regular procedure as prescribed under the Rules.
25. This Court is bound by the law settled by the Hon'ble Supreme Court in the case of Secretary, State of Karnataka Vs. Uma Devi 2006 (4) SCC 1 in so far as muster roll, daily wage and contractual engagements are concerned. No mandamus can be issued for regularisation of such persons after the law has been settled by the Constitution Bench of Hon'ble Supreme Court as aforesaid.
26. This Court does not find any factual or legal infirmity in the order impugned to exercise its jurisdiction under Article 226 of the Constitution.
27. The writ petition is dismissed. No order as to costs.
Order Date :- 26.7.2018 Arif