JUDGMENT Rakesh Tiwari, J.
1. Heard learned counsel for the parties and perused the record. In these two writ petitions, common questions of law and facts are involved, as such they are being decided by this common judgment.
FACTS OF WRIT PETITION NO. 52316 Of 2005
2. In Writ Petition No. 52316 Of 2005 the petitioners claim to be appointed as Drivers in the New Okhla Industrial Development Authority (hereinafter referred to as the NOIDA), Gautam Budh Nagar. They also claim to be working continuously from the year shown against their names as under:
4. The case of the petitioners is that they have worked for a considerable period in the service of NOIDA @ Rs. 100/- per month as daily wagers and have become over age for other Government job; that they are eligible for the post of Driver and are entitled to be appointed as such on permanent basis in the pay scale of Rs. 3050 - 4590.
5. An advertisement dated 30.6.2005 was published for filling up one post in the pay scale of Rs. 3050 - 4590.
6. Subsequently NOIDA Authority vide resolution dated 5.7.1999 sent a proposal subject to approval of the State Government, for creation of 64 additional posts of drivers under covering letter dated 4.8.1999 of the Chief Executive Officer, NOIDA.
7. The petitioners also made representations to the Chief Executive Officer, NOIDA for requesting the State Government to take action in the matter and in these circumstances when the matter remained unactioned the petitioners filed Writ Petition No. 44838 of 2001 for the following main reliefs:
(a) Issue a writ, order or direction in the nature of mandamus commanding the respondent No. 2 to take decision on the proposal sent by the respondent No. 3 vide letter dated 4.8.1999 for creation of 64 more posts of drivers in the NOIDA.
(b) Issue a writ, order of direction in the nature of mandamus commanding the respondents to regularize the services of the petitioner drivers in the New Okhla Industrial Development Authority.
(c) Issue a writ, order or direction in the nature of mandamus commanding the respondents to pay the same salary to the petitioners as is permissible under the law to the drivers employed on sanctioned posts.
(d) Issue a writ, order or direction in the nature of mandamus commanding the respondent No. 3 not to terminate the services of the petitioners."
8. The Project Engineer also made a recommendation that the services of the drivers working on contract basis be regularized only after taking sanction from the State Government.
9. It also appears from the record that the matter was kept pending and the State Government did not sanction 64 posts of drivers, rather issued advertisement dated 17.10.2004 inviting fresh applications for appointment on 8 posts of drivers.
10. The writ petition was disposed of on 17.9.2002 with the following directions:
"In view of the aforesaid, so far the relief as prayed in this petition regarding regularization of the services and direction for payment of regular salary, requires no examination at this stage. So far as the prayer as made for a direction to the respondent No. 2 for taking the decision on the proposal sent by the respondent No. 1 dated 4.8.1999, copy of which has been appended as Annexure Nos. 11 to 13 to the writ petition, suffice it to say that in the event the matter is still pending decision before respondent No. 2 it will be appropriate for that authority to take appropriate decision by means of a reasoned order in that respect within a reasonable time which this Court feels, period of three months will be sufficient.
In view of the aforesaid, this Court without going into the merits of the case/claim of the petitioners which has been placed before this Court either way, this petition is being disposed of in terms of the directions as contained aforesaid.
In the light of the aforesaid, writ petition stands disposed of.
Sd/- S.K.Singh, J.
17.9.2002"
SUBMISSIONS
11. The counsel for the petitioners submits that the petitioners have a legal right in view of law declared by the Hon'ble Supreme Court in the case of Steel Authority of India Ltd. v. National Union Waterfront Workers and Ors., . According to him the apex court in the aforesaid decision has held that the contract workman shall have preferential right of appointment on the posts which are sought to be filled up by regular appointment and as such the advertisement for filling up the post(s) of driver(s) without considering the rights of the petitioner(s) is illegal, arbitrary and is liable to be quashed.
12. It is urged that the similarly situated drivers along with petitioner No. 1 challenged the advertisement aforesaid in Civil Misc. Writ Petition No. 48390 of 2004 before this Court which was decided vide judgment dated 18.2.2005 whereby respondents 3 and 4 were restrained to make appointments in pursuance of the advertisement dated 17.10.2004. It is further urged that after hearing the learned counsel for the parties in Writ Petition No. 48390 of 2004 the Court passed the following order:
"After having examined the contention of the parties and perused the records as well as the order passed by this Court referred to herein above, it is evident that the respondent-authority ought to have considered the claim of the petitioners in the light of the representations made by them. As per the advertisement which is impugned in the present writ petition, it is clear that the appointing authority is the Chief Executive Officer, NOIDA, Gautam Budh Nagar, i.e., the respondent No. 3. The question as to whether there is an employee-employer relationship, ought to have been at least attended to, qua the petitioners keeping in view their length of services rendered as drivers to the respondent-NOIDA authority. In absence of any such consideration, this Court is of the opinion that the respondent No. 3 shall consider the claims of the petitioners in the light of the decisions of the Apex Court referred to in this judgment and in particular keeping in view paras 71 to 77, 88, 97, 101 to 107 and 125 of the judgment of the Apex Court rendered in Steel Authority of India (supra). The respondent-authority will also consider the judgment relied upon by the respondents as well and take a decision in the matter accordingly. It is expected that the respondent No. 3 shall endeavour to take a decision preferably within a period of 3 months from the date of presentation of the certified copy of this order. In case the petitioners are not satisfied with any such decision, the remedy available to them is to approach the industrial/labour court in accordance with the Industrial Disputes Act as held by the Apex Court and as directed by this Court in its judgment dated 17.09.2002.
In view of the aforesaid facts and circumstances and in view of the fact that the petitioners are yet to establish their status in order to claim preference, it would not be appropriate for this Court to interfere with the selection process undertaken by the respondent at this stage. It is, however, observed that the selections pursuant to the impugned advertisements and the appointments which the respondent Nos. 3 and 4 would proceed to make, shall be subject to any adjudication made in favour of the petitioners.
With the aforesaid observations, the writ petition is disposed of.
Sd/-A.P.Sahi, J.
18.2.2005 "
13. The petitioner-workmen aggrieved by the judgment dated 18.2.2005 aforesaid filed Special Leave Petition C.C. No. 3924 of 2005 which was later on dismissed as withdrawn. The Hon'ble Supreme Court vide order dated 11.4.2005 while dismissing the writ petition granted liberty to the appellants to approach appropriate court. The petitioners have now come up in this writ petition for the following relief:
"(a) quash the advertisement published on 30.6.2005 (Annexure P-7) by the NOIDA to the extent it relates to the posts of driver, declaring the same to be violative of Articles 14 and 16 and also in contravention of the direction given by the Hon'ble Supreme Court in para 125 (6) of the Steel Authority of India case (2001) 7 S.C.C.
(b) direct the NOIDA to fill the vacancy of the driver only from amongst the petitioners and similarly situated employees.
(c) pass such other or further direction or appropriate writ or order as this Hon'ble Court may deem fit and proper."
FACTS OF WRIT PETITION NO. 54320 OF 2005
14. In Writ Petition No. 54320 of 2005, the petitioners have claimed that they are regularly working as Junior Engineers in NOIDA and have become over age for any other job; that they possess requisite qualifications for the post of Junior Engineers but are paid less salary though they perform the same functions which a regularly appointed Junior Engineer performs on permanent post. It is also their case that though they are employees of NOIDA but are being shown to have been engaged through the contractor which is nothing but a mere camouflage. It is further claimed that an incorrect statement has been made by NOIDA that they have no record of the petitioners which is established from Annexures P 3 to P 7. It is urged that from these documents it is established that the petitioners are transferred from one place to another by the NOIDA Authority without any reference to the alleged contract and various inspection reports are signed by the petitioners as officers of the Authority. It is also the case of the petitioners in the writ petition that they have been given an assurance that whenever vacancies would be available the petitioners would be regularized, but this has proved to be a false assurance.
SUBMISSIONS
15. The learned counsel for the petitioners on the legal aspect of the matter has submitted that in terms of paragraph 125 of the judgment rendered in Steel Authority of India (supra) in the case of genuine contract of the principal employer in the event of filling the posts by regular appointments, shall have to give preferential appointment to the erstwhile contractual employees. It is submitted that the reasoning for the judgment is very just and fair in the sense that the contract employment on the post which are meant to perform regular and perennial work should not be rule and such post should be filled by regular recruitments but if contractual employees have been made to work on those post for substantive period prior to filling up of the post by regular recruitment then in that event erstwhile contractual employees should be given preferential appointment. It is further submitted that as there is no disputed question of facts to be determined writ is maintainable. The petitioners are seeking enforcement of their legal right of preferential appointment in accordance with the law enunciated by the Hon'ble Supreme Court in Steel Authority's case (Supra) and the High Court can issue a writ of mandamus directing the Authority to give the preferential appointment to the petitioners under Article 226 of the Constitution in given facts and circumstances of a case.
16. Sri U.S.Awasthi, learned counsel for the respondents, has raised a preliminary objection that the writ petition is not maintainable as it pertains to contract labours working through a licensed contractor. He submits that the petitioners are not employees of NOIDA Authority at all; that it is well-settled law that the remedy for contract labours is before the Industrial Tribunal/Labour Court; that they are only hired labours supplied by the licensed contractor on day-to-day need basis. It is further submitted that the petitioners have no direct link with NOIDA and they have failed to establish any relationship of employees with the respondent by any adjudication as observed by the Court in the judgment dated 18.2.2005 in Writ Petition No. 48390 of 2004 (Ram Kumar and Ors. v. State of U.P. and Ors.) while dismissing the writ petition. He also submits that after the Special Leave Petition was dismissed by the Hon'ble Supreme Court with liberty to approach the appropriate court the petitioners filed Special Appeal No. 247 of 2005 (defective) which is pending disposal before this Court. He has vehemently urged that the petitioners and the like contract workers are not paid wages by NOIDA Authority directly but are paid by the licensed contractor who is their employer. It is further urged by him that no decision has been taken by the State Government on the proposal for creation of posts sent by NOIDA Authority, as such the petitioners cannot be treated as regular employees as there is no sanctioned post; that the so-called representations dated 7.11.2002 and 8.1.2004 said to be submitted by the petitioners is false and have not been received by the NOIDA.
17. It is lastly submitted by Sri Awasthi that since the relationship of employer and employees itself is a disputed question of fact, which requires adjudication of facts on the basis of evidence, it can only be decided by an adjudicating authority.
18. The learned counsel for the petitioners in rebuttal submits that it is an admitted position that the petitioners have been working since long as contract workmen and hence in terms of the Constitution Bench judgment delivered by the Hon'ble Supreme Court in Steel Authority of India case they have a preferential right to appointment in the event the same posts are being filled up by regular appointment.
19. Having considered the arguments advanced by the learned counsel for the parties in support of their case at length and after going through the record, the undisputed facts which emerge are that the petitioners had come in Writ Petition No. 44838 of 2001 for direction to the State Government to take decision on the proposal sent by the respondent-NOIDA for creation of posts and further to regularize the petitioners on the said posts. It is also undisputed that the Hon'ble Supreme Court in the case of Steel Authority of India Ltd. (Supra) has held that in order to ascertain the status of a person claiming regularization or absorption the appropriate authority is the Industrial Tribunal or Labour Court which can go into such issues and adjudicate upon the matter. In this case the petitioners have also placed reliance on the judgment rendered in Steel Authority of India (Supra) in Writ Petition No. 44838 of 2001, wherein the Hon'ble Supreme Court in paragraph 125 (5) held:
"If the contract is found to be not genuine but a mere camouflage, the so-called contract labour will have to be treated as employees of the principal employer who shall be directed to regularize the services of the contract labour in the establishment concerned subject to the conditions as may be specified by it for that purpose in the light of para 6 hereunder."
20. Thereafter the apex court in the very next paragraph, i.e., paragraph 126 has made it clear that: -
"We have used the expression "industrial adjudicator" by design as determination of the questions aforementioned requires enquiry into disputed questions of facts which cannot conveniently be made by High Court in exercise of jurisdiction under Article 226 of the Constitution. Therefore, in such cases the appropriate authority to go into those issues will be the Industrial Tribunal/Court whose determination will be amenable to judicial review."
21. Admittedly, the State Government sanctioned only 1 post and not 64 posts for which advertisement dated 30.6.2005 has been issued. Five of the petitioners have claimed the relief of preferential appointment and whose claim is better cannot be adjudicated upon by this Court as this has to be adjudicated by an 'industrial adjudicator'. In view of the fact that the petitioners are working as drivers having been appointed through a licensed contractor, they do not have a legal right to claim regularization in NOIDA Authority which is not their employer. Regularization can only be claimed against sanctioned vacant post against which an employee is appointed or is working in the organization of the employer and not in the organization where he is sent to work by his employer. Thus, it has to be seen as to who is the employer before deciding regularization of an employee. Even otherwise regularization cannot be ordered by the High Court in view of State of Punjab v. Sardara Singh (1998) 9 S.C.C. 709, wherein it has been held:
"We find merit in the said contention. The High Court could not direct for regularisation of the respondent but could only direct the appellants to frame a scheme for the said regularisation and since the scheme has already been framed, the regularisation can only be made in accordance with the said scheme."
22. The parties also do not dispute that contractual appointments have not been abolished in NOIDA under Section 10 of the Contract Labour and Abolition Act and as such they can approach the appropriate court in this regard. The admission of the fact by the petitioners that they are contract workers is also corroborated from Annexure 6 to the writ petition which is their representation wherein it has been stated by them that they are working in the NOIDA as drivers on "contract basis" for the last several years.
23. The posts of drivers are not in existence, as the State Government has not sanctioned the same, hence it is wholly fallacious to claim regularization by the petitioners against the non-existing posts.
24. It is apparent from the order and judgment dated 18.2.2005 that the petitioners were yet to establish first their status of workers of respondent-Authority in order to claim preference, which can only be decided by a Labour Court after adjudicating the matter on facts and evidence and the Court had in no circumstances observed that selection would proceed subject to adjudication in favour of the petitioner.
25. The petitioners have neither placed their appointment letters issued either by the contractors or by the NOIDA Authority (as they claim to be employees of NOIDA). The contract between the licensed contractor and NOIDA Authority has also not been placed. In fact the petitioners in reply to the counter affidavit in Writ Petition No. 48390 of 2004 have not denied the averment that they are contract workers and do not dispute the genuineness of the contract.
26. Admittedly, in Writ Petition No. 48390 of 2004 also the petitioners had placed reliance upon paragraph 125 of the judgment rendered in Steel Authority of India (supra) like the present wherein also the petitioners are basing their claim upon the observations given in paragraph 125, which has been disposed of with finding that the petitioner has to approach industrial adjudicator, hence this petition is barred by principles of res judicata.
27. The petitioners admittedly also had withdrawn the Special Leave Petition C.C. No. 3924 of 2005 filed before the Hon'ble Supreme Court against the judgment and order dated 18.2.2005 and the Special Appeal filed against the judgment and order dated 18.2.2005 passed in Writ Petition No. 48390 of 2004 is pending as a defective Special Appeal. It appears that the Special Appeal has been deliberately filed as defective with the sole motive to keep the matter alive so that a stand may be taken that the Special Appeal is pending decision. The petitioners are filing successive writ petition after another on the same grounds which can safely be said to be abuse of process of law on same law point which had earlier been considered and decided by the Court between the parties. Special Appeal is not the proper forum as it is in continuation of the writ petition itself. In the writ petition the Court had directed the petitioner to raise the matter before Industrial Court/Tribunal and the Hon'ble Supreme Court had also dismissed the Special Leave Petition of the petitioner as withdrawn with observation to approach the proper forum i.e. Industrial Adjudicator which has not been done by the petitioner and not only he filed Special Appeal No. 247 of 2005 (defective) but also the present writ petition again on same grounds.
28. In so far as the question of preferential rights is concerned, the case of the petitioners is not like that of Apprentices appointed under the Apprenticeship Act, 1961 where the employer spends considerable amount of time, money and energy in imparting training to the apprentices in various trades. The petitioners have given service to NOIDA Authority through licensed contractors and have received remuneration from the contractors for their services. The question of preference may arise only after the petitioners are selected on merits along with other candidates for the post who have not worked with NOIDA Authority and their performance is equal but not otherwise.
29. The learned counsel for the petitioners has tried to point out minor mistakes in the photo copies of the documents filed in Writ Petition No. 54320 of 2005 to establish a case against the respondents, such as that copy of Annexure P 4 at page 31 is not endorsed to any contractor; the name of Sri Shyam shown along with other employees working as contract labour is not a Junior Engineer but a Computer Operator. Similar mistakes have been pointed out in Annexure P 5 wherein it is claimed that the inspection report is signed by the petitioners as the signatures of NOIDA Officer. Annexure P 7 is said to have been signed by one of the employees as Incharge showing loading and unloading of vehicles. These discrepancies emphasized by the petitioners are irrelevant. Relationship of master and servant between the petitioners and NOIDA Authority cannot be decided on photocopies of stray documents which may have typographical or clerical errors. Such mistakes will not create the relationship. The burden of proof has to be discharged before the adjudicating authority. The documents have to be proved as has rightly been held by the courts by oral evidence as it is pure question of fact which cannot be decided in writ petition merely on the basis of photocopies of some documents filed for the first time before the High Court. The NOIDA Authority has not denied the engagement of the petitioners through contract labour, hence even if the petitioners have signed the inspection report etc. the same does not support their case. What really matters is the nature of their appointment and who has appointed them.
30. I have already dealt with other legal contention of the learned counsel for the petitioners in this judgment which are common in both the petitions and need not be repeated.
31. For the reasons stated above, these writ petitions are dismissed. No order as to costs.