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Rajasthan High Court · body

2015 DIGILAW 188 (RAJ)

Ramavtar Sharma v. R. S. R. T. C.

2015-01-21

BELA M.TRIVEDI

body2015
JUDGMENT 1. - The petitioners in all petitions have sought directions against the respondent Corporation to formulate the scheme for regularisation of drivers appointed on the contractual basis and to give them benefit of regular pay scale. The petitioners have also prayed for their regularisation on the post of Driver by treating them regular employees of the Corporation with all consequential benefits and further for restraining the respondents from replacing the services of the petitioners by another set of contractual/adhoc/temporary employees till their regularization. 2. For the sake of convenience, the facts of S.B. Civil Writ Petition No.10242 of 2014 are taken. As per the averments made in the petition, the petitioners were appointed by the respondent Corporation at Vaishali Nagar Depot in the years 2010 and 2011 as stated in the petition, and according to them they worked with the RSRTC upto 31/9/2013, and thereafter were appointed by the respondent No.2-the Jaipur City Transport Services Limited, Jaipur and at present they are working under the control of said respondent through the placement agency. It is further averred that the respondent had issued an advertisement for the post of Drivers (Bus-Captain) and Conductor (Bus-co-Captain) on 18/12/2012, and some of the petitioners have also applied for the said posts pursuant to the said advertisement. However, since the petitioners were working on contractual basis for last many years, the respondents were under an obligation to take necessary steps for regularisation of their services. The petitioners also apprehended that they will be discontinued from the services and hence the petition has been filed. 3. The said petition has been resisted by the respondent Corporation by filing the preliminary objections contending interalia that in view of the land mark decision of Apex Court in case of Secretary, State of Karnataka & Ors. v. Umadevi (3) and Ors., (2006) 4 SCC 1 , the petitioners cannot claim regularisation as a matter of right. Even otherwise, the petitions filed by the petitioners are not maintainable and are premature, as they have filed the petitions only on the apprehension of termination of services by employer. 4. It is submitted by the learned counsel Mr. Sunil Kumar Singodiya with Ms. Even otherwise, the petitions filed by the petitioners are not maintainable and are premature, as they have filed the petitions only on the apprehension of termination of services by employer. 4. It is submitted by the learned counsel Mr. Sunil Kumar Singodiya with Ms. Neerja Khanna for the petitioners that the petitioners are working with the respondents since many years, though on contract basis through placement agency, and therefore their services are required to be regularised on their respective post of Drivers in view of the settled legal position, more particularly in case of State of Haryana & Ors. v. Piara Singh & Ors, (1992) 4 SCC 118 . According to them, even as per the decisions in case of Umadevi (supra), and in case of State of Karnataka & Ors. v. M.L. Kesari & Ors, (2010) 9 SCC 247 , if the scheme for regularisation has not been framed by the respondents, they should be directed to frame the scheme, and regularise the services of the petitioners. However, the learned counsels for the respondents have submitted that the petitioners are not the employees of the respondent Corporation and at the most they could be said to be the employees of the placement agency, which was hired by the corporation. They further submitted that the present petitions having been filed merely on the apprehension that the respondents would discontinue the services of the placement agency, the petitions are not maintainable being premature. According to them, the petitioners having been appointed through placement agencies on contractual basis, their services would come to an end with the expiry of term of contract. 5. Having regard to the submissions made by the learned counsels for the parties, and to the documents on record, it appears that the petitioners have not produced any document to show that they were either appointed by the respondent No.1-RSRTC or by the respondent No.2-JCTS. Apart from the fact that as per their own averments in the petitions, they were appointed by the placement agencies from time to time, there is nothing on record to suggest that when and by which placement agencies, they were appointed and for what period. The learned counsel for the petitioners has also failed to point out as to how the services of the petitioners are likely to be terminated and by whom. 6. The learned counsel for the petitioners has also failed to point out as to how the services of the petitioners are likely to be terminated and by whom. 6. At this juncture, a very pertinent observations made by the Apex Court in case of R.K. Panda v. Steel Authority of India Ltd.,1994 - II L.L.N. 378 , are required to be reproduced as under:- "It is true that with the passage of time and purely with a view to safeguard the interests of workers, many principal employers while renewing the contracts have been insisting that the contractor or the new contractor retains the old employees. In fact such a condition is incorporated in the contract itself. However, such a clause in the contract which is benevolently inserted in the contract to protect the continuance of the source of livelihood of the contract labour cannot by itself give rise to a right to regularisation in the employment of the principal employer. Whether the contract labourers have become the employees of the principal employer in course of time and whether the engagement and employment of labourers through a contractor is a mere camouflage and a smokescreen, as has been urged in this case, is a question of fact and has to be established by the contract labourers on the basis of the requisite material. It is not possible for the High Court or this Court, while exercising writ jurisdiction or jurisdiction under Article 136 to decide such questions, only on the basis of the affidavits. It need not to be pointed out that in all such cases, the labourers are initially employed and engaged by the contractors. As such at what point of time a direct link is established between the contract labourers and the principal employer, eliminating the contractor from the scene, is a matter which has to be established on material produced before the court. Normally, the Labour Court and the Industrial Tribunal, under the Industrial Disputes Act are the competent fora to adjudicate such disputes on the basis of the oral and documentary evidence produced before them." 7. So far as the prayer for regularisation of the petitioners on the post of Drivers is concerned, the law is well settled by the Constitution Bench of Apex Court in the land Mark Case of Uma Devi, in which it has been observed as under:- ".......43. So far as the prayer for regularisation of the petitioners on the post of Drivers is concerned, the law is well settled by the Constitution Bench of Apex Court in the land Mark Case of Uma Devi, in which it has been observed as under:- ".......43. Thus, it is clear that adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution, a Court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution. Therefore, consistent with the scheme for public employment, this Court while laying down the law, has necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee. If it is a contractual appointment, the appointment comes to an end at the end of the contract, if it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued. Similarly, a temporary employee could not claim to be made permanent on the expiry of his term of appointment. It has also to be clarified that merely because a temporary employee or a casual wage worker is 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 the original appointment was not made by following a due process of selection as envisaged by the relevant rules. It is not open to the court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad hoc employees who by the very nature of their appointment, do not acquire any right. The High Courts acting under Article 226 of the Constitution, should not ordinarily issue directions for absorption, regularization, or permanent continuance unless the recruitment itself was made regularly and in terms of the constitutional scheme. The High Courts acting under Article 226 of the Constitution, should not ordinarily issue directions for absorption, regularization, or permanent continuance unless the recruitment itself was made regularly and in terms of the constitutional scheme. Merely because, an employee had continued under cover of an order of Court, which we have described as 'litigious employment' in the earlier part of the judgment, he would not be entitled to any right to be absorbed or made permanent in the service. In fact, in such cases, the High Court may not be justified in issuing interim directions, since, after all, if ultimately the employee approaching it is found entitled to relief, it may be possible for it to mould the relief in such a manner that ultimately no prejudice will be caused to him, whereas an interim direction to continue his employment would hold up the regular procedure for selection or impose on the State the burden of paying an employee who is really not required. The courts must be careful in ensuring that they do not interfere unduly with the economic arrangement of its affairs by the State or its instrumentalities or lend themselves the instruments to facilitate the bypassing of the constitutional and statutory mandates. ---------------- 50. It is argued that in a country like India where there is so much poverty and unemployment and there is no equality of bargaining power, the action of the State in not making the employees permanent, would be violative of Article 21 of the Constitution. But the very argument indicates that there are so many waiting for employment and an equal opportunity for competing for employment and it is in that context that the Constitution as one of its basic features, has included Articles 14, 16 and 309 so as to ensure that public employment is given only in a fair and equitable manner by giving all those who are qualified, an opportunity to seek employment. In the guise of upholding rights under Article 21 of the Constitution, a set of persons cannot be preferred over a vast majority of people waiting for an opportunity to compete for State employment. In the guise of upholding rights under Article 21 of the Constitution, a set of persons cannot be preferred over a vast majority of people waiting for an opportunity to compete for State employment. The acceptance of the argument on behalf of the respondents would really negate the rights of the others conferred by Article 21 of the Constitution, assuming that we are in a position to hold that the right to employment is also a right coming within the purview of Article 21 of the Constitution. The argument that Article 23 of the Constitution is breached because the employment on daily wages amounts to forced labour, cannot be accepted. After all, the employees accepted the employment at their own violation and with eyes open as to the nature of their employment. The Governments also revised the minimum wages payable from time to time in the light of all relevant circumstances. It also appears to us that importing of these theories to defeat the basic requirement of public employment would defeat the constitutional scheme and the constitutional goal of equality. 51. The argument that the right to life protected by Article 21 of the Constitution of India would include the right to employment cannot also be accepted at this juncture. The law is dynamic and our Constitution is a living document. May be at some future point of time, the right to employment can also be brought in under the concept of right to life or even included as a fundamental right. The new statute is perhaps a beginning. As things now stand, the acceptance of such a plea at the instance of the employees before us would lead to the consequence of depriving a large number of other aspirants of an opportunity to compete for the post or employment. Their right to employment, if it is a part of right to life, would stand denuded by the preferring of those who have got in casually or those who have come through the back door. The obligation cast on the State under Article 39(a) of the Constitution of India is to ensure that all citizens equally have the right to adequate means of livelihood. The obligation cast on the State under Article 39(a) of the Constitution of India is to ensure that all citizens equally have the right to adequate means of livelihood. It will be more consistent with that policy if the courts recognise that an appointment to a post in Government service or in the service of its instrumentalities, can only be by way of a proper selection in the manner recognised by the relevant legislation in the context of the relevant provisions of the Constitution. In the name of individualizing justice, it is also not possible to shut our eyes to the constitutional scheme and the right of the numerous as against the few who are before the court. The Directive Principles of State Policy have also to be reconciled with the rights available to the citizen under Part III of the Constitution and the obligation of the State to one and all and not to a particular group of citizens. We, therefore, overrule the argument based on Article 21 of the Constitution. 53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa (supra), R.N. Nanjundappa (supra), and B.N. Nagarajan (supra), and referred to in paragraph 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 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 above referred 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 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. The process must be set in motion within six months from this date. We also clarify that regularization, if any already made, but not subjudice, need not be reopened based on this judgment, but there should be no further by-passing of the constitutional requirement and regularising or making permanent, those not duly appointed as per the constitutional scheme. 54. It is also clarified that those decisions which run counter to the principle settled in this decision, or in which directions running counter to what we have held herein, will stand denuded of their status as precedents. 8. The said case of Umadevi has also been further considered by the Apex Court in case of M.L. Kesari (supra) in which it has been observed as under:- "11. The object behind the said direction in para 53 of Umadevi (3) is two- fold. First is to ensure that those who have put in more than ten years of continuous service without the protection of any interim orders of courts or tribunals, before the date of decision in Umadevi was rendered, are considered for regularisation in view of their long service. Second is to ensure that the departments/instrumentalities do not perpetuate the practice of employing persons on daily-wage/ad-hoc/casual basis for long periods and then periodically regularise them on the ground that they have served for more than ten years, thereby defeating the constitutional or statutory provisions relating to recruitment and appointment. The true effect of the direction is that all persons who have worked for more than ten years as on 10.4.2006 (the date of decision in Umadevi) without the protection of any interim order of any court or tribunal, in vacant posts, possessing the requisite qualification, are entitled to be considered for regularization. The fact that the employer has not undertaken such exercise of regularisation within six months of the decision in Umadevi or that such exercise was undertaken only in regard to a limited few, will not disentitle such employees, the right to be considered for regularisation in terms of the above directions in Umadevi as a one-time measure. ". 9. In the instant case, admittedly the petitioners were not appointed by any of the respondents, and they were appointed by the placement agencies. The learned counsel for the petitioners has also failed to point out any legal right muchless fundamental right to get their services regularised by the respondents. ". 9. In the instant case, admittedly the petitioners were not appointed by any of the respondents, and they were appointed by the placement agencies. The learned counsel for the petitioners has also failed to point out any legal right muchless fundamental right to get their services regularised by the respondents. It is also to be noted that similar prayer for regularisation of services has also been not granted by the Coordinate Benches of this Court in case of Ghanshyam & Ors. v. RSRTC, in S.B.Civil Writ Petition No.12002/2011 decided on 10/7/2013 and in case of Sita Ram& Ors. v. RSRTC & Anr, in S.B. Civil Writ Petition No.12489/2011 decided on 6/12/2013 . 10. In that view of the matter, the petitions being devoid of merits are dismissed. By this order, the stay application and any other pending application, if any also stand dismissed. A copy of this order be placed in each connected files.Writ Petition Dismissed. *******