UNION OF INDIA & ORS. versus ILMO DEVI & ANR.

[2021] 6 S.C.R. 1158

[2021] 6 S.C.R.

UNION OF INDIA & ORS.

ILMO DEVI & ANR.

(Civil Appeal Nos. 5689-5690 of 2021)

OCTOBER 07, 2021

[M.R. SHAH AND A.S. BOPANNA, JJ.]

Service Law – Regularization – Respondents-part timeemployees sought regularization – Claim rejected by CentralAdministrative Tribunal, though with certain directions – WritCpetitions filed by both the parties – High Court inter alia directed theappellants to reformulate regularization policy and to take decisionto sanction the post in phased manner – On appeal, held:Respondents were working as contingent paid part-time sweepers(Safai Karamcharies working for less than five hours day) in aPost Office – There are no sanctioned posts of Safaiwalas in theDPost Office in which the respondents were working – Nodocumentary evidence is on record to prove that the respondentsworked continuously – Directions issued by the High Court arebeyond the power of the judicial review – Further, respondents arenot entitled for the benefit of regularization even under theEDepartment’s regularization policy dtd. 30.06.14 which though isin consonance with the law laid down in Secretary, State of Karnataka& Ors. Vs. Umadevi and Ors. reported as [2006] 3 SCR 953, but doesnot apply to the part-time workers who do not work on the sanctionedpost – Nobody can claim regularization as matter of right dehorsthe regularization policy – Impugned judgment set aside –FConstitution of India – Art.226.

Constitution of India – Art.226 – Judicial Review –Regularization – Held: Regularization policy to regularize theservices of the employees working on temporary status and/or casuallabourers is policy decision – Court cannot issue mandamus and/Gor issue mandatory directions in judicial review to do so.

Service Law – Government Institution – Part-time employees,parity with regular employees – Held: Part-time temporaryemployees in Government run institution cannot claim parity insalary with regular employees of the Government on the principle

Hof equal pay for equal work.

Allowing the appeals, the Court

HELD: 1.1 The respondents-original applicants wereworking as contingent paid part-time sweepers (SafaiKaramcharies working for less than five hours day) in PostOffice at Chandigarh. There are no sanctioned posts of Safaiwalasin the Post Office in which the respondents were working. Thereis no documentary evidence on record to establish and provethat the respondents were working continuously. Even it is notthe case on behalf of the respondents that their appointment wasdone after following due procedure of selection and to that extent,it cannot be said that their appointments were irregular. As suchin the absence of any sanctioned posts in the Post Office in whichthe respondents were working, there was no question ofappointing the respondents after following due procedure.Pursuant to the order passed by the Tribunal and the order passedin the contempt proceedings, the appellants came out with aregularization policy dated 30.06.2014. The aforesaidregularization policy has been framed considering the decisionof this Court in the case of Umadevi. That thereafter pursuant tothe interim order passed by the High Court dated 06.08.2014,the appellant authorities reconsidered the claim of therespondents herein as per the regularization policy dated30.06.2014 and the same came to be rejected vide communicationdated 11.09.2014 mainly on the ground that there are nosanctioned posts and the employees have not completed tenyears of service as on 10.04.2006. [Paras 8-8.2][1168-C-E, F;1169-C-D]

Secretary, State of Karnataka & Ors. Vs. Umadevi andOrs., (2006) 4 SCC 1: [2006] 3 SCR 953 – referred to.

1.2 The respondents served as part-time employees andwere contingent paid staff. There are no sanctioned posts in thePost Office in which the respondents were working, therefore,the directions issued by the High Court in the impugned judgmentand order are not permissible in the judicial review under Article226 of the Constitution. The High Court cannot, in exercise ofthe power under Article 226, issue Mandamus to direct theDepartment to sanction and create the posts. The High Court, inexercise of the powers under Article 226 of the Constitution,

Aalso cannot direct the Government and/or the Department toformulate particular regularization policy. Framing of any schemeis no function of the Court and is the sole prerogative of theGovernment. Even the creation and/or sanction of the posts isalso the sole prerogative of the Government and the High Court,in exercise of the power under Article 226 of the Constitution,Bcannot issue Mandamus and/or direct to create and sanction theposts. Even the regularization policy to regularize the servicesof the employees working on temporary status and/or casuallabourers is policy decision and in judicial review the Courtcannot issue Mandamus and/or issue mandatory directions to doCso. [Paras 8.4, 8.5][1172-C-G]

State of Maharashtra & Anr. Vs. R.S. Bhonde & Ors.,(2005) 6 SCC 751 : [2005] 2 Suppl. SCR 763; State ofRajasthan and Ors. Vs. Daya Lal and Ors., (2011) 2SCC 429 : [ 2011] 1 SCR 707 – relied on.

Part-time employees are not entitled to seek regularizationas they are not working against any sanctioned post and therecannot be any permanent continuance of part-time temporaryemployees. Part-time temporary employees in Government runinstitution cannot claim parity in salary with regular employeesEof the Government on the principle of equal pay for equal work.The directions issued by the High Court in the impugned judgmentand order, more particularly, directions in paragraphs 22 and 23are unsustainable and beyond the power of the judicial review ofthe High Court in exercise of the power under Article 226 of theConstitution. Even otherwise, the Union of India/DepartmentFsubsequently came out with regularization policy dated30.06.2014, which is absolutely in consonance with the law laiddown by this Court in the case of Umadevi, which does not applyto the part-time workers who do not work on the sanctioned post.The regularization can be only as per the regularization policyGdeclared by the State/Government and nobody can claim theregularization as matter of right dehors the regularization policy.Therefore, in absence of any sanctioned post and consideringthe fact that the respondents were serving as contingent paidpart-time Safai Karamcharies, even otherwise, they were not

entitled for the benefit of regularization under the regularizationpolicy dated 30.06.2014. [Paras 8.7, 8.8][1174-E, F-H; 1175-A]

The impugned judgment and order passed by the HighCourt and, more particularly, the directions contained inparagraphs 22 and 23 in the impugned judgment and order arequashed and set aside. However, quashing and setting aside thedirections issued in terms of paragraph 23 in the impugnedjudgment and order shall not affect the case of the respondentsand they shall be entitled to the reliefs as per paragraph 23 ofthe impugned judgment and order passed by the High Court.[Para 9][1175-D-E]

Union of India and Ors. Vs. A.S. Pillai and Ors., (2010)13 SCC 448; Secretary, Ministry of Communicationsand Ors. Vs. Sakkubai and Anr. (1997) 11 SCC 224;Dr. Ashwani Kumar Vs. Union of India and Anr., (2020)13 SCC 581; State of Karnataka and Anr. Vs. Dr.Praveen Bhai Thogadia, (2004) 4 SCC 684 : [2004] 3SCR 652; Anuradha Bhasin Vs. Union of India andOrs., (2020) 3 SCC 637: (2020) AIR 1308; Oil andNatural Gas Corporation Vs. Krishan Gopal & Ors.,(2020) SCC Online SC 150; Mineral ExplorationCorpn. Employees’ Union Vs. Mineral ExplorationCorpn. Ltd. and Anr., (2006) 6 SCC 310 : [2006] 4Suppl. SCR 87 – referred to.

Case Law Reference

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos.5689-5690 of 2021.

From the Judgment and Order dated 02.03.2015 of the High Courtof Punjab and Haryana at Chandigarh in C.W.P. Nos.9167-CAT of 2007and 6854-CAT of 2008.

AMs. Madhvi Divan, ASG, Gurmeet Singh Makker, Ms. Ruchi Kohli,Ms. Priyanka Das, Ms. Meenakshi Grover, Advs. for the Appellants.

Rahul Gupta, Adv. for the Respondents.

The Judgment of the Court was delivered by

M. R. SHAH, J.B

1. Feeling aggrieved and dissatisfied with the impugned judgmentand order passed by the High Court of Punjab & Haryana at Chandigarhin CWP No. 9167 of 2007 and CWP No.6854 of 2008 by which the HighCourt has modified the judgment and order passed by the learned CentralAdministrative Tribunal in O.A. No.886/CH/2005 and consequently hasCdirected the appellants to revisit the whole issue, complete the exerciseto reformulate their regularization/absorption policy and take decisionto sanction the posts in phased manner, the Union of India and othershave preferred the present appeal.

The High Court has further directed that till the exercise, as directedDabove, is undertaken, the appellants shall continue the employees inservice with their current status but to those of them who have completed20 years as part-time daily wagers shall be granted “minimum” basicpay of Group ‘D’ posts w.e.f. 01.04.2015 and/or the date of completionof 20 years contractual service, whichever is later.

E2. That the respondents herein are/were working as contingentpaid part-time Sweepers (Safai Karamcharies working for less than fivehours day) in Post Office at Sector-14, Chandigarh. That therespondents approached the Central Administrative Tribunal being O.A.No.886/CH/2005 seeking directions to frame regularization/absorptionpolicy for regularization of their service. Alternatively, direction forFgrant of temporary status w.e.f. 19.11.1989. The said O.A. was opposedby the department. Written statement was filed stating that therespondents -original applicants are contingent paid Safaiwalas workingfor less than five hours and, therefore, are not entitled for temporarystatus. It was further stated that there is no regular sanctioned post ofGSafaiwala in that particular Post Office in Chandigarh.

2.1 An O.M. dated 11.12.2006 was issued by the Ministry ofPersonnel, Public Grievances & Pensions (DoPT), Government of India

by which regularization of qualified workers appointed against sanctionedposts in irregular manner was declared. regularization policy was framedconsidering the decision of this Court in the case of Secretary, State ofKarnataka & Ors. Vs. Umadevi (3) and Ors., (2006) 4 SCC 1. Itprovided that the Union of India, the State Governments and theirinstrumentalities should take steps to regularize as one-time measurethe services of such irregularly appointed, qualified persons, in terms ofthe statutory requirement of the Rules for the posts, who have workedfor ten years or more in duly sanctioned posts but not under cover oforders of the courts or of tribunals. As the respondents - original applicantswere serving as part-time employees working for five hours day andthere were no regular sanctioned posts in the particular Post Office andso they were not granted the benefit of the said O.M. dated 11.12.2006.By the judgment and order dated 17.01.2007, the learned Tribunaldisposed of the said O.A. rejecting the claim of the respondents for theirregularization. However, the learned Tribunal observed that since theDepartment need the continuous service of Safaiwalas, they shall advertisethis post to appoint regular Safaiwala through proper process of selectionpositively within three months. The learned Tribunal also further directedthat the respondents herein may also be considered for such selectionafter providing age relaxation to them under the relevant rules keepingin view that they have been working for last so many years withoutinterruption. Learned Tribunal also observed that till then they are atliberty to allow the respondents to continue to perform their duties withthe present status (as part-time). Learned Tribunal also observed that incase one-time scheme is formulated by the Department/Governmentin exercise of the directions of this Court in the case of Umadevi (supra),the respondents’ cases may also be considered for regularization, if theyfulfill the required conditions as prescribed in the said scheme.

2.2 Feeling aggrieved and dissatisfied with the judgment and orderpassed by the learned Tribunal dated 17.01.2007 passed in O.A. No.886/CH/2005 both, the Union of India and the respondents herein –part- time employees filed their respective writ petitions before the HighCourt being CWP Nos. 9167 of 2007 and 6854 of 2008. At this stage, itis required to be noted that pursuant to the judgment and order passedby the learned Tribunal, the Department/Government was required toformulate the regularization scheme, which was not formulated and,therefore, the contempt proceedings were initiated. By its order dated19.05.2014, the High Court issued notice in the contempt proceedings

Ato the Secretary (Post) and directed to place the scheme before theCourt by 04.07.2014. In view of the abovesaid directions dated 19.05.2014,the Department formulated policy for regularization of casual labourersconsidering the observations made by this Court in the case of Umadevi(supra) and subsequent to the O.M. of DoPT dated 11.12.2006 (referredto hereinabove) for the welfare of the casual labourers.B

2.3 That by order dated 06.08.2014, the High Court directed theappellants to reconsider the claim of the respondents as per the newpolicy dated 30.06.2014. The authorities rejected the claim by order dated11.09.2014 for the reasons that; (i) there are no sanctioned posts and (ii)employees have not completed 10 years of service as on 10.04.2006Cnamely, the date of decision of this Court in Umadevi (supra).

2.4 By the impugned common judgment and order, the High Courthas disposed of the aforesaid writ petitions with the following directions:-

“[22] We, thus, direct the petitioner-authorities to re-visit the wholeDissue in its right perspective and complete the exercise to re-formulate their policy and take decision to sanction the posts inphased manner within specified time schedule. Let such adecision be taken within period of six months from the date ofreceiving certified copy of this order.

E[23] Till the exercise as directed above, is undertaken, therespondents shall continue in service with their current status butthose of them who have completed 20 years as part-time dailywagers, shall be granted ‘minimum’ basic pay of Group ‘D’ post(s)w.e.f. 1.4.2015 and/or the date of completion of 20 yearscontractual service, whichever is later.”F2.5 Feeling aggrieved and dissatisfied with the impugned commonjudgment and order passed by the High Court, the Union of India andothers have preferred the present appeals.

3. At this stage, it is required to be noted that while issuing noticein the present appeals on 22.07.2016, this Court passed the followingGorder:-

“On hearing Mr. Ranjit Kumar, learned Solicitor General appearingon behalf of the petitioners, we are not inclined to interfere withthe directions of the High Court in paragraph 23 for grantingminimum basic pay to Group ‘D’ posts from particular date toH

those who have completed 20 years of part-time daily wageservice. The petitioners should carry out that direction.

Insofar as the directions of the High Court to re-visit the wholeissue of sanction of posts etc. and re- formulation of policy areconcerned, there appears some merits in the submission that theHigh Court should not have interfered in policy matters.

Issue notice on the special leave petition in that respect as well ason the application for condonation of delay.

The direction contained in paragraph 22 of the impugned ordershall remain stayed until further orders.”

4. Ms. Madhvi Divan, learned ASG has appeared on behalf of theappellants and Shri Rahul Gupta, learned counsel has appeared on behalfof the respondents.

5. Ms. Madhvi Divan, learned ASG has vehemently submittedthat the High Court has not properly appreciated the facts that in thePost Office where the respondents were working, there are no sanctionedposts and that the respondents were serving as part-time contingentSafaiwalas for five hours day and their wages were paid even fromthe contingent fund. It is submitted that neither the O.M. dated 11.12.2006nor the subsequent regularization policy dated 30.06.2014 shall beapplicable to the facts of the case at hand.

5.1 It is further submitted that even in the impugned judgmentalso, the High Court has observed that the respondents were working aspart-time daily wages sweepers. It is submitted, therefore, in absence ofthe sanctioned posts in the Post Office where the respondents wereworking as part-time Safaiwalas, there services cannot be regularized.

5.2 It is further submitted that the directions issued by the HighCourt to sanction the posts can be said to be policy decision, and,therefore, the High Court is not justified in issuing the Mandamus and/ordirection to create and sanction the posts. It is submitted that the HighCourt has not properly appreciated the facts that even the O.M. dated11.12.2006 and subsequent regularization policy dated 30.06.2014 wereabsolutely in consonance with the decision of this Court in the case ofUmadevi (supra). It is submitted that in the case of Umadevi (supra)it has been specifically observed that the High Court, in exercise ofjurisdiction under Article 226 of the Constitution of India, should not

[2021] 6 S.C.R.

Aordinarily issue direction for absorption, regularization or permanentcontinuance unless the recruitment was itself done regularly and in termsof constitutional scheme.

5.3 It is submitted that as per the dictum of this Court in the caseof Umadevi (supra), the services of only those employees are to beBregularized as one-time measure, who are irregularly appointed andotherwise who are duly qualified persons in terms of the statutoryrequirement rules for the post and who have worked for 10 years ormore in duly sanctioned posts but not under cover of the orders of courtsor tribunals. It is submitted that, thereafter, the Department came outwith the regularization policy dated 30.06.2014. It is submitted that evenCthe High Court has also in the impugned judgment observed that thereare no sanctioned posts in the office where the respondents were working.It is submitted further that the High Court has directed to create andsanction the posts, which is beyond the jurisdiction of the High Court inexercise of power under Article 226 of the Constitution.D

5.4 It is further submitted that the High Court has not taken noteof the Recruitment Rules, 2002, which were replaced by 2010 Rules,however, the same shall not be applicable to the Postal Department asspecifically mentioned in the said rules. It is further submitted that eventhe High Court has observed that it is no doubt true that part-timeEemployee cannot seek parity with full-time worker but despite the samethe High Court has observed that whatever benefits, authorities decideto confer on the full-timers, the same can be extended to part-timers aswell, of course, on such additional and stringent conditions like doublethe length of contingent service and/or other reasonable and fair conditionswhich the authorities may deem fit. It is submitted that the aforesaidFobservations are also beyond the scope and ambit of exercise of thepower under Article 226 of the Constitution.

5.5 It is further submitted that even the High Court has alsomaterially erred in observing that though the respondents are workingfor four to five hours as part-time daily wagers, they must have workedGfor full day. It is submitted that aforesaid is absolutely without any basisand the same is not supported by any evidence. It is further submittedthat even the observations made by the High Court in paragraph 9 that itis true that these employees are working on “part-time basis only”, theground realities of which Court can take judicial notice, leave no roomHto doubt that once the respondents come to their respective work place

to perform duties, may be for four to five hours, it is nearly impossiblefor them to secure another job for the rest of the day. It is submitted thatthe aforesaid observation is on surmises and conjunctures only. It issubmitted that the entire observations made in paragraph 9, thus, are onsurmises and conjunctures, which has no factual basis at all.

5.6 Ms. Madhvi Divan, learned ASG has relied upon the decisionsof this Court in the cases of Union of India and Ors. Vs. A.S. Pillaiand Ors., (2010) 13 SCC 448; State of Rajasthan and Ors. Vs.Daya Lal and Ors., (2011) 2 SCC 429 and Secretary, Ministry ofCommunications and Ors. Vs. Sakkubai and Anr. (1997) 11 SCC224 in support of her submission that services of part-time workerworking on the post of full-time worker cannot be regularized. She hasalso relied upon the decision of this Court in the cases of Dr. AshwaniKumar Vs. Union of India and Anr., (2020) 13 SCC 581; State ofKarnataka and Anr. Vs. Dr. Praveen Bhai Thogadia, (2004) 4 SCC684; Anuradha Bhasin Vs. Union of India and Ors., (2020) 3 SCC637; Oil and Natural Gas Corporation Vs. Krishan Gopal & Ors.,(2020) SCC Online SC 150; State of Maharashtra & Anr. Vs. R.S.Bhonde & Ors., (2005) 6 SCC 751 in support of her submission thatin judicial review, Court has no right to direct the Government to reviewthe policy of appointment; in judicial review the Court cannot interfere inthe administrative matters and that in the absence of regular sanctionedpost, the Court cannot direct to create one.

6. Present appeals are opposed by Shri Rahul Gupta, learnedcounsel appearing on behalf of the respondents. It is submitted that bythe impugned judgment and order the High Court has decided as manyas nine petitions, however, two out of nine are being challenged beforethis Court. It is submitted, therefore, that qua other seven writ petitions,the Union of India has accepted the verdict and it has become final asthe same have not been challenged. It is further submitted that whileissuing notice in the present appeals on 22.07.2016, this Hon’ble Courtmade it clear that it was not inclined to interfere with the directions ofthe High Court in paragraph 23 of the judgment and, therefore, the scopeof present case now confines to the directions contained in paragraph22 of the impugned judgment. It is submitted that in the present case, therespondent No.1 – Ilmo Devi, who was working continuously since 1982as sweeper has already attained the age of retirement and the otherrespondent Babli, who was working continuously since 1991 as sweeperis of around 53 years of age and, therefore, this Court may not interfere

Awith the impugned judgment and order passed by the High Court and thepresent appeals be dismissed keeping the question of law open.

6.1 On merits, Shri Gupta, learned counsel has relied upon thedecision of this Court in the case of Umadevi (supra) and in the caseof Mineral Exploration Corpn. Employees’ Union Vs. MineralBExploration Corpn. Ltd. and Anr., (2006) 6 SCC 310.

7. Heard the learned counsel for the respective parties at length.

8. At the outset, it is required to be noted that the respondents-original applicants were working as contingent paid part-time sweepers(Safai Karamcharies working for less than five hours day) in PostCOffice at Chandigarh. It is not in dispute and cannot be disputed thatthere are no sanctioned posts of Safaiwalas in the Post Office in whichthe respondents were working. There is no documentary evidence onrecord to establish and prove that the respondents were workingcontinuously. Even otherwise as observed hereinabove, they were workingDas contingent paid part-time sweepers. Even it is not the case on behalfof the respondents that their appointment was done after following dueprocedure of selection and to that extent, it cannot be said that theirappointments were irregular. As such in the absence of any sanctionedposts in the Post Office in which the respondents were working, therewas no question of appointing the respondents after following dueEprocedure. In light of the above, the directions issued by the High Courtin the impugned judgment and order are required to be considered.

8.1 In the present case, pursuant to the order passed by the learnedTribunal and the order passed in the contempt proceedings, the appellantscame out with regularization policy dated 30.06.2014. In the saidFregularization policy, it has been provided as under:-

“(i)Regularization of all the Casual Labourers, who have beenirregularly appointed, but are duly qualified persons in termsof statutory requirement rules for the post and was engagedagainst sanctioned post, shall be done if they have workedGfor 10 years or more but not under the covers of orders ofcourts or tribunals as on the date of Hon’ble Apex Court’sibid judgment, i.e., 10.04.2006.

(ii)A temporary contractual, casual or daily wage worker shallnot have legal right to be made permanent unless he/sheHfulfills the above criteria.

(iii)A Casual Labourer engaged without following the dueprocess or the rules relating to appointment and does notmeet the above criteria shall not be considered for theirabsorption, regularization, permanency in the Department.

(iv)If Casual Labourer was engaged in infraction of the rulesor if his engagement is in violation of the provisions of theBConstitution, the said illegal engagement shall not beregularized.”

8.2 The aforesaid regularization policy has been framed consideringthe decision of this Court in the case of Umadevi (supra). That thereafterpursuant to the interim order passed by the High Court dated 06.08.2014,the appellant authorities reconsidered the claim of the respondents hereinas per the regularization policy dated 30.06.2014 and the same came tobe rejected vide communication dated 11.09.2014 mainly on the groundthat there are no sanctioned posts and the employees have not completedten years of service as on 10.04.2006.

8.3 By the impugned judgment and order, the High Court hasdirected to reformulate the regularization policy and to take decision tosanction the post in phased manner. While issuing the aforesaiddirections, the High Court made certain observations, relevantobservations, which are necessary for the purpose of present appealsare as under:-

“[8]The respondents in all these cases have worked for morethan 10 to 20 years as contingent employeesand some ofthem (like in the lead case) have served for about 30 years.A few of them are obviously nearing retirement age asprescribed under the Central/State Service Rules.

‘-[9]It is true that these employees are working on parttime basis’ only. The ground realities of which Court cantake judicial notice, leave no room to doubt that once therespondents come to their respective work place to performduties, may be for 4 to 5 hours, it is nearly impossible forthem to secure another job for the rest of the day. Thepetitioner-authorities cannot be oblivious of the fact thatwhere supply of manual labour is more than the demand,the market forces won’t permit the private- respondents tohave the choice of getting another and alternative

1170SUPREME COURT REPORTS

Aemployment for the remainder of the day after they arerelieved of their duties by the postal authorities.

‘’[12]It is no doubt true that part-time employee cannotseek parity with ‘full time’ workerbut then the petitioner-authorities can also draw no mileage out of their undueBfavour shown to those who are engaged for 7 to 8 hoursand total neglect of the others who are ‘part-time’ due to 4to 5 hours engagement. It appears to us that whateverbenefits authorities decide to confer on the full-timers, thesame can be extended to part-timers as well, of course, onsuch additional and stringent conditions like double the lengthCof contingent service and/or other reasonable and fairconditions which the authorities may deem fit.

[13]While we refrain from suggesting any policy module as suchan exercise falls within the domain of the Executive only,the authorities ought to be cautioned that the policy, soDframed, must reflect the due application of mind as well astheir conscious decision to reject or accept the claim of anyclass or category of contractual employees.

[15]Be that as it may, now the Department of Postal andMinistry of Communication and I.T. has issued policycircular dated 30.06.2014 for the welfare of casual labourers.EThe above-stated policy is said to have been issued incompliance to the directions issued in Uma Devi’s case(supra). The salient feature of the aforesaid policy are tothe following effect.

“(i)Regularization of all the casual Labourers, who haveFbeen irregularly appointed, but are duly qualifiedpersons in terms of statutory recruitment rules forthe post and was engaged against sanctioned post,shall be done if they worked for 10 years or morebut not under the covers of orders of courts ortribunals as on the date of Hon’ble Apex Court’s ibidGjudgment i.e. 10.04.2006 (Secretary State ofKarnataka and others versus Uma Devi and othersin Civil Appeal No.3595- 3612/1999).

(ii)A Temporary, Contractual, Casual or Daily wageworker shall not have legal right to be madeHpermanent unless he/she fulfills the above criteria.

(iii)A casual Labourer engaged without following the dueAprocess or the rules relating to appointment and doesnot meet the above criteria shall not be consideredfor their absorption, regularization, permanency in theDepartment.

(iv)If casual Labourer was engaged in Infraction ofthe rules or if his engagement is in violation of theprovision of the Constitution, the said illegalengagement shall not be egularized.

“(emphasis applied)

[18] We have given our thoughtful consideration to both thereasons assigned by the petitioner-authorities, who havefurther stated that as of now, fresh engagements oncontingent or daily wage basis have been completelystopped. If that is so, it can be safely inferred that only asmall group of daily wage part-time employees engagedbefore 10.04.2006 are still working. If their eligibility of 10years daily wage service is determined in the year 2014-15on the basis of cut off date of 10.04.2006, such policywould be an exercise in futility. The petitioners themselveshave taken more than 8 years in giving effect to one of thedirections in Uma Devi’s case (supra), hence, they cannotreject the claim of daily-wage employees with an ante-datecut off date as the compliance of such an eligibility conditionis nearly impossible. This would render the policy totallyineffective and brutum fulmen without percolating even adrop of benefit to those for whom it has been formulated.

[20] Surely, the respondents cannot be made regular in theabsence of sanctioned posts, but then what is the publicpurpose sought to be achieved through the policy dated30.06.2014? The Executive who has authored the policy isalso competent to create or sanction the posts. DependingGupon the total expenditure now being incurred on theretention of respondents, we have no reason to doubt thatthe petitioners can rationalize their resources and sanctionsome regular posts every year so that the respondents canbe adjusted on regular basis without any unbearableadditional financial burden on the Department, but beforeH

Athey leave the department on attaining the age ofsuperannuation.

[21]The petitioners might have incurred huge expenditure indefending multiple litigation initiated by contractualemployees who are now diminishing cadre. This is forBthe petitioners to take pragmatic view and divert thisunproductive expenditure towards sanctioning the posts ina phased manner for adjusting the respondents.”

8.4 The observations made in paragraph 9 are on surmises andconjunctures. Even the observations made that they have workedCcontinuously and for the whole day are also without any basis and forwhich there is no supporting evidence. In any case, the fact remains thatthe respondents served as part-time employees and were contingentpaid staff. As observed above, there are no sanctioned posts in the PostOffice in which the respondents were working, therefore, the directionsissued by the High Court in the impugned judgment and order are notDpermissible in the judicial review under Article 226 of the Constitution.The High Court cannot, in exercise of the power under Article 226,issue Mandamus to direct the Department to sanction and create theposts. The High Court, in exercise of the powers under Article 226 ofthe Constitution, also cannot direct the Government and/or theEDepartment to formulate particular regularization policy. Framing ofany scheme is no function of the Court and is the sole prerogative of theGovernment. Even the creation and/or sanction of the posts is also thesole prerogative of the Government and the High Court, in exercise ofthe power under Article 226 of the Constitution, cannot issue Mandamusand/or direct to create and sanction the posts.F8.5 Even the regularization policy to regularize the services of theemployees working on temporary status and/or casual labourers is apolicy decision and in judicial review the Court cannot issue Mandamusand/or issue mandatory directions to do so. In the case of R.S. Bhondeand Ors. (supra), it is observed and held by this Court that the status ofGpermanency cannot be granted when there is no post. It is furtherobserved that mere continuance every year of seasonal work during theperiod when work was available does not constitute permanent statusunless there exists post and regularization is done.

8.6 In the case of Daya Lal & Ors. (supra) in paragraph 12, it isHobserved and held as under:-

“12. We may at the outset refer to the following well- settledprinciples relating to regularisation and parity in pay, relevant inthe context of these appeals:

(i) The High Courts, in exercising power under Article226 of the Constitution will not issue directions for regularisation,absorption or permanent continuance, unless the employeesclaiming regularisation had been appointed in pursuance of aregular recruitment in accordance with relevant rules in anopen competitive process, against sanctioned vacant posts. Theequality clause contained in Articles 14 and 16 should bescrupulously followed and Courts should not issue directionfor regularisation of services of an employee which would beviolative of the constitutional scheme. While something that isirregular for want of compliance with one of the elements inthe process of selection which does not go to the root of theprocess, can be regularised, back door entries, appointmentscontrary to the constitutional scheme and/or appointment ofineligible candidates cannot be regularised.

(ii) Mere continuation of service by temporary or adhoc or daily-wage employee, under cover of some interimorders of the court, would not confer upon him any right to beabsorbed into service, as such service would be “litigiousemployment”. Even temporary, ad hoc or daily-wage servicefor long number of years, let alone service for one or twoyears, will not entitle such employee to claim regularisation, ifhe is not working against sanctioned post. Sympathy andsentiment cannot be grounds for passing any order ofregularisation in the absence of legal right.

(iii) Even where scheme is formulated for regularisationwith cut-off date (that is scheme providing that personswho had put in specified number of years of service andcontinuing in employment as on the cut-off date), it is notpossible to others who were appointed subsequent to the cut-off date, to claim or contend that the scheme should be appliedto them by extending the cut-off date or seek direction forframing of fresh schemes providing for successive cut-offdates.

(iv) Part-time employees are not entitled to seekregularisation as they are not working against any sanctionedposts. There cannot be direction for absorption, regularisationor permanent continuance of part-time temporary employees.

(v) Part-time temporary employees in government-runBinstitutions cannot claim parity in salary with regular employeesof the Government on the principle of equal pay for equal work.Nor can employees in private employment, even if serving fulltime, seek parity in salary with government employees. Theright to claim particular salary against the State must ariseunder contract or under statute.C

[See State of Karnataka v. Umadevi (3) [(2006) 4 SCC 1], M.Raja v. CEERI Educational Society [(2006) 12 SCC 636], S.C.Chandra v. State of Jharkhand [(2007) 8 SCC 279],Kurukshetra Central Coop. Bank Ltd. v. Mehar Chand [(2007)15 SCC 680] and Official Liquidator v. Dayanand [(2008) 10DSCC 1.]

8.7 Thus, as per the law laid down by this Court in the aforesaiddecisions part-time employees are not entitled to seek regularization asthey are not working against any sanctioned post and there cannot beany permanent continuance of part-time temporary employees as held.EPart-time temporary employees in Government run institution cannotclaim parity in salary with regular employees of the Government on theprinciple of equal pay for equal work.

8.8 Applying the law laid down by this court in the aforesaiddecisions, the directions issued by the High Court in the impugnedFjudgment and order, more particularly, directions in paragraphs 22 and23 are unsustainable and beyond the power of the judicial review of theHigh Court in exercise of the power under Article 226 of the Constitution.Even otherwise, it is required to be noted that in the present case, theUnion of India/Department subsequently came out with regularizationGpolicy dated 30.06.2014, which is absolutely in consonance with the lawlaid down by this Court in the case of Umadevi (supra), which doesnot apply to the part-time workers who do not work on the sanctionedpost. As per the settled preposition of law, the regularization can be onlyas per the regularization policy declared by the State/Government andnobody can claim the regularization as matter of right dehors theHregularization policy. Therefore, in absence of any sanctioned post and

considering the fact that the respondents were serving as contingentpaid part-time Safai Karamcharies, even otherwise, they were not entitledfor the benefit of regularization under the regularization policy dated30.06.2014.

8.9 Though, we are of the opinion that even the direction containedin paragraph 23 for granting minimum basic pay of Group ‘D’ postsfrom particular date to those, who have completed 20 years of part-time daily wage service also is unsustainable as the part-time wagers,who are working for four to five hours day and cannot claim the paritywith other Group ‘D’ posts. However, in view of the order passed bythis Court dated 22.07.2016 while issuing notice in the present appeals,we are not quashing and setting aside the directions contained inparagraph 23 in the impugned judgment and order so far as therespondents’ employees are concerned.

9. In view of the above and for the reasons stated above, both theappeals succeed. The impugned judgment and order passed by the HighCourt and, more particularly, the directions contained in paragraphs 22and 23 in the impugned judgment and order are hereby quashed and setaside. However, it is observed that quashing and setting aside thedirections issued in terms of paragraph 23 in the impugned judgment andorder shall not affect the case of the respondents and they shall beentitled to the reliefs as per paragraph 23 of the impugned judgment andorder passed by the High Court.

With these observations, both the appeals are allowed and in thefacts and circumstances of the case, there shall be no order as to costs.

Divya Pandey

Appeals allowed.