Court No. - 16
Case :- WRIT - A No. - 14539 of 2017
Petitioner :- Shiv Chandra Bahadur And 163 Ors.
Respondent :- State Of U.P. And 5 Ors.
Counsel for Petitioner :- Shiv Krishna Bahadur Counsel for Respondent :- C.S.C.,Ayank Mishra,Sunil Kumar Tripathi
Hon'ble Mrs. Sangeeta Chandra,J.
Oral
1. This writ petition has been filed by 164 daily wage / muster roll / work charge employees of the Corporation challenging the order dated 4.1.2017 passed by the respondent no. 5 – Chief Engineer (Distribution) Purvanchal Vidyut Vitaran Nigam Ltd., Allahabad Zone, Allahabad and praying for a writ in the nature of mandamus commanding the respondents to regularise the services of the petitioners in the Corporation with all service benefits as admissible.
2. It has been submitted by the learned counsel for the petitioners that the petitioners have been working continuously as daily wagers in the Electricity Department since before 29.6.1991. The Special Secretary (Finance) Government of U.P., Lucknow issued a letter dated 8.9.2010 communicating the decision of the Government to regularise all daily wage / muster roll employees working since before 29.6.1991 in Government Departments, Local Bodies, Development Authorities and Public Sector Corporation, even if there was a necessity to create supernumerary posts for such regularisation. However, the case of the petitioners was not being considered even for though the Corporation had in principle adopted the Government Order for implementation.
3. When the Hon'ble Chief Minister was approached in the matter, his office wrote a letter to the Chairman / Managing Director of the Corporation on 12.10.2010 to examine the matter of regularisation of its employee. Still no heed was played and a reminder was issued from the office of the Hon'ble Chief Minister on 7.2.2013.
4. In pursuance of such letters, the Chief Engineer (Administration), Varanasi wrote to the Director (Personnel Management and Administration) approving in principle the regularisation of 331 employees of the Corporation.
5. It has been submitted that in pursuance of letter sent by the Chief Engineer (Administration), the exercise for regularisation was initiated, by issuing a letter to the Secretary, Dainik Vetan Vidyut Karmchari Sangh, Allahabad seeking information with regard to 331 daily wage workmen.
6. A meeting was held in the office of the Chief Engineer (Distribution), Allahabad Zone, Allahabad on 30.3.2016 and notices were served upon the 331 daily wage / contract employees to appear in the office personally along with the documents to show that they were working since before 29.6.1991. In pursuance of such letter, 266 applicants approached the respondents and their case was forwarded by Secretary, Dainik Vetan Vidyut Karmchari Sangh, Allahabad.
7. The case of the petitioners who are 164 in number was also forwarded and was included in the claim of the 266 applicants. The documents were verified and the report submitted, but no action was being taken, and therefore the petitioner approached this Court in Writ Petition No. 48774 of 2016 which writ petition was disposed of by this Court on 6.10.2016 with a direction to the respondents to take a final decision in the matter. The decision was directed to be taken in accordance with law. After this writ petition was disposed of on 6.10.2016, the respondent no. 5 has passed the impugned order rejecting the claim for regularisation.
8. It has been submitted by the learned counsel for the petitioners that the rejection has been completely arbitrary and without considering the fact that the petitioners have proof that they have been working since before 29.6.1991 as daily wagers in the Corporation.
9. Learned counsel for the petitioners has referred to the earlier report dated 29.7.2013 sent by the Chief Engineer (Distribution), Allahabad Zone, Allahabad to the Chief Engineer (Administration), Varanasi. In this report, the names of all the petitioners herein are mentioned and their dates of initial engagement and also that they are working in the Corporation till the date of submission of such report.
10. It has been submitted that despite a recommendation being made in favour of the petitioners also by the Chief Engineer (Distribution), Allahabad Zone, Allahabad dated 29.11.2010 filed as Annexure 4 to the writ petition, there case has not been considered in the right perspective by the respondent no. 5.
11. Learned counsel for the respondents Corporation however has referred to his counter affidavit filed in the writ petition wherein paragraph 24 of the writ petition has been specifically denied in paragraph 23 and it has been mentioned that whether the petitioners have worked since 29.6.2001 is a factual dispute that can be adjudicated by considering evidence placed by both parties before the Labour Court.
12. The report of the Regularisation Committee sent through letter dated 28.12.2016 was prepared after giving full opportunity to the petitioners to furnish documentary proof with regard to their continuous working since prior to 29.6.1991, none of the 266 claimants furnished any documentary proof with regard to their working.
13. When the initial report was submitted by the Regularisation Committee, the Chief Engineer asked for a detailed report by his letter dated 4.8.2016. In this letter dated 4.8.2016, the Chief Engineer had given a specific direction to furnish documentary proof regarding entries in the column nos. 11, 12 & 13 of the report submitted earlier by the Regularisation Committee through its letter dated 13.4.2016.
14. The Chairman and Coordinator of the Regularisation Committee by his letter dated 28.12.2016 informed that none of the 262 claimants filed any documentary proof regarding their employment on muster roll or daily wage. In view of the subsequent letter dated 28.12.2016 which fairly admitted that all the information that was given earlier in the 13 column report was on the basis of oral submissions of the 266 claimants, the earlier report carried no meaning.
15. It has been submitted that the order dated 4.1.2017 is a reasoned and speaking order which is self explanatory and has been passed after considering the law settled by the Supreme Court in its Constitution Bench judgment in Secretary, State of Karnataka Vs. Uma Devi 2006 (4) SCC 1.
16. It has further been submitted that there can be no legal right to regularisation as when the petitioners were engaged as daily wagers, the provision of Articles 14 & 16 of the Constitution of India were not followed.
17. It has been submitted that not only the working of the petitioners has been seriously disputed by the Regularisation Committee which has submitted its report saying that no documentary proof was produced by any of the claimants, for example, receipt of daily wages / honorarium / consolidated wages in Form-28 appended to Financial Handbook, nor any photocopy of original muster roll for their engagement was produced by the claimants.
18. Learned counsel for the respondents has also read out the impugned order dated 4.1.2017 and has referred not only to the serious dispute regarding the working of the 266 claimants, but has also referred to the condition mentioned in the Government Order dated 8.9.2010 and later Government Order dated 13.8.2015 that whatever regularisation exercise was to be conducted by the Public Sector Corporation, it had to be done on the basis of its own financial resources and no financial assistance shall be provided by the Government for such liability as is created due to its regularisation.
19. Learned counsel for the respondents has read out paragraphs 11 & 12 of the impugned order which says that a specific query was made to the Director (Finance) Purvanchal Vidyut Vitaran Nigam Ltd, Allahabad with regard to capacity of DISCOM to bare the financial burden and a report was submitted that only Rs. Seven and a half to Eight Crores was being received in the IR of the Company which was insufficient to meet current expenditure at times, therefore there was no possibility for meeting future additional liability.
20. Learned counsel for the respondents has also pointed out that in U.P. Power Corporation Ltd. Vs. Bijli Mazdoor Sangh & others 2007 (5) SCC 755. The Supreme Court had set aside an order passed by this Court dismissing the writ petition filed by the Corporation challenging the Award made by the Industrial Tribunal in Adjudication Case No.168 of 1980.
21. The Supreme Court had observed in paragraphs 4, 5, 6 & 7 that even though in Secretary, State of Karnataka Vs Uma Devi 2006 (4) SCC 1 in paragraph 53 a direction was issued to consider regularisation as a one time measure, such a direction could not have been given either by the Industrial Tribunal or by the High Court. The Supreme Court reiterated the observations otherwise made in the judgment rendered in Uma Devi (supra).
22. Learned counsel for the petitioners on the other hand in rejoinder has submitted that the petitioners were in possession of several documentary evidences to show that they had been continuously working since prior to 29.6.1991 as daily wagers in the Corporation.
23. He has also referred to paragraph 53 of the judgment rendered in Uma Devi (supra) and the observations made by the Supreme Court in State of Karnataka & others Vs. M.L. Kesari & others 2010 (6) AWC 5893.
24. It has been submitted that all the petitioners are well past the age limit prescribed for regular direct recruitment and some of them are even close to the date of their superannuation, they cannot be left to their own devices and a duty was cast upon the Corporation to look after them, after the Government Order dated 8.9.2010 was issued.
25. Learned counsel for the petitioners has placed reliance upon Vice Chancellor, Lucknow University, Lucknow Vs. Akhilesh Kumar Khare & another 2016 (1) SCC 521 where the Supreme Court directed the University to pay compensation of Rs. 4,00,000/- to each of the respondents considering that they had remained as casual labours with the University for one and a half years and there was a judgment in their favour from the Labour Court also.
26. Having considered the arguments raised by the learned counsel for the petitioners and the respondents, I have carefully perused the order impugned and also the judgment cited by the counsel for the parties. It is evident that the petitioners could not produce any documentary evidence of their engagement as daily wagers since before 29.6.1991 before the Committee concerned, not only their working has been disputed, but also the financial capacity of the Corporation to undertake additional liability arising out of regularisation of such daily wagers.
27. The Supreme Court in paragraph 47 of its Constitution Bench judgment in Uma Devi (supra) has observed as follows:-
“47. 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 recognised by the relevant rules or procedure, he is aware of the consequences of the appointment being temporary, casual or contractual in nature. Such a person cannot invoke the theory of legitimate expectation for being confirmed in the post when an appointment to the post could be made only by following a proper procedure for selection and in cases concerned, in consultation with the Public Service Commission. Therefore, the theory of legitimate expectation cannot be successfully advanced by temporary, contractual or casual employees. It cannot also be held that the State has held out any promise while engaging these persons either to continue them where they are or to make them permanent. The State cannot constitutionally make such a promise. It is also obvious that the theory cannot be invoked to seek a positive relief of being made permanent in the post.”
28. In paragraph 53 of the said judgment, an exception to the general principle of law as enunciated, was carved out by the Supreme Court itself. The relevant paragraph 53 is being quoted herein below:-
“53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa (1967) 1 SCR 128, R.N.
Nanjundappa (1972) 1 SCC 409 and B.N. Nagarajan (1979) 4 SCC 507 and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the courts or of tribunals. The question of regularisation of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases abovereferred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularise as a one-time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularisation, if any already made, but not sub judice, need not be reopened based on this judgment, but there should be no further bypassing of the constitutional requirement and regularising or making permanent, those not duly appointed as per the constitutional scheme.”
29. It is true that the petitioners were merely working as daily wagers and they have no vested right for regularisation. The financial capacity of the Corporation being limited, this Court cannot issue any mandamus to the respondents to regularise the services of the petitioners.
30. There is no factual or legal infirmity in the order impugned for this Court to show interference under Article 226 of the Constitution of India.
31. The writ petitions is dismissed.
32. No order as to costs.
Order Date :- 27.11.2018 Arif