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2018 DIGILAW 907 (GAU)

NETRA MOHAN SAIKIA v. INDIAN OIL CORPORATION LTD.

2018-06-06

ACHINTYA MALLA BUJOR BARUA, AJIT SINGH

body2018
JUDGMENT/ORDER : AM Bujor Barua, J. Heard Mr. C. Baruah, learned Senior Counsel for the appellants as well as Mr. R. Dubey, learned counsel for the respondent Indian Oil Corporation Limited, Assam Oil Division (in short referred as IOC-AOD). 2. An employment notification dated 07.04.1995 was issued under signature of the Chief Personnel Manager (ER&S) of the respondent IOC-AOD for six vacancies in the post of sweeper. In the notification it was stated that the six vacancies are temporary in nature. 3. As per the minutes of the Selection Committee held on 30.10.1995 and 31.10.1995 in the Office of the Chief Personnel Manager, nine persons were recommended for appointment against the unreserved category, whereas, two candidates were recommended against the SC category, two candidates against the ST category and four candidates against the OBC category. The Selection Committee further provided that the selected candidates in order of merit may be offered appointment at the minimum of the pay scale subject to being found medically fit and availability of vacancy. As per the recommendation of the Selection Committee, the three appellants herein were appointed and joined their respective posts on 13.01.1997, 20.08.1997 and 20.08.1997 respectively. 4. The appellants made a claim that out of the candidates, who were appointed pursuant to the recommendation of the Selection Committee in its meeting of 30.10.1995 and 31.10.1995, eleven of the candidates have been confirmed in their services, whereas, the appellants who were also appointed under similar circumstance and as per the same selection procedure have not been confirmed. Consequently, the appellants made a claim that they be also regularized/confirmed in the same manner as has been done in case of the eleven other similarly situated candidates. 5. In furtherance of their claim for being regularized, several representations were made from time to time and in consideration thereof, various communications were made. In one of such communication dated 20.08.1999 of the SPM (ER&S), it is stated that although the temporary employees do not get all the benefits applicable to the permanent employees, but upon their request being examined, the authorities took the view that as the appellants are working against the permanent vacancies, therefore, the benefits of casual leave and medical facility be given to them. Another communication from the Chief H.R. Manager dated 28.03.2006 indicates that the question of regularization of the service of the temporary employees have been taken up with the competent authority in the Headquarters and that the same has been pursued from time to time. The said two communications give an indication that the claim of the appellants for being regularized was under consideration of the respondent authorities in the respondent IOC-AOD. 6. But, when nothing materialized, the appellants preferred the WP(C) No. 5065/2009, which was disposed of by the Judgment and Order dated 22.09.2017, along with the another writ petition. 7. In the course of hearing of the writ petition, the appellants relied upon the Judgment of the Supreme Court rendered in Peoples Union for Democratic Rights & Ors v. Union of India & Ors reported in (1982) 3 SCC 235 to contend that under Article 23 of the Constitution of India, in the event an employee was paid less than the minimum wages, it would amount to forced labour. Reliance has also been placed on the Judgment of the Supreme Court rendered in the case of the State of Punjab & Ors v. Jagjit Singh & Ors. reported in 2017 (1) GLT (SC) 47 and by referring to paragraph- 55, it was contended that an employee engaged for the same work cannot be paid less than another employee and it is the duty and responsibility of a welfare state to ensure payment of appropriate wages. Accordingly, the appellants raised the contention that they are entitled to be regularized in their services and be paid the same salary and allowances as payable to the regular employees. 8. On the other hand, it was contended on behalf of the respondent IOC-AOD that the employment notification of 07.04.1995 indicated that the recruitment would be in respect of six temporary vacancies and therefore, the appellants having been appointed pursuant to the said notification, they cannot claim the right of being regularized. 9. In appreciation thereof, the learned Single Judge by the Judgment and Order dated 22.09.2017 had arrived at a conclusion that the claim of the appellants are covered by the decision of the Supreme Court in Peoples Union for Democratic Rights & Ors(Supra) and Jagjit Singh(Supra) and held that the appellants are entitled to have their salary at the minimum of the regular pay scale. 10. 10. Being aggrieved by the non-consideration of the claim for a direction to be regularized in service, the present appeal has been preferred. It is taken note of that in paragraph-13 of the writ petition averment has been made that eleven candidates appointed along with the appellants pursuant to the same selection process have been confirmed by the respondents authorities. In reply thereof, the respondents IOC-AOD had not denied such averment and on the other hand, in paragraph-19 had admitted that in fact the eleven candidates who were appointed pursuant to the same selection process, as that of the appellants, have been confirmed in their service. The respondent authorities in their affidavit seeks to justify the same by taking a stand that the eleven candidates were regularized as they were above the appellants in order of merit in the select list, pursuant to which they were appointed. The list of the eleven candidates who were so regularized finds place at page 56 of the memo of the appeal which also contains the name of the applicants by showing that they are not confirmed as yet. 11. From the employment notification dated 07.04.1995 it is discernible that there is no such indication that only some of the candidates who are to be appointed pursuant to the process would be regularized in the due course, as per their order of merit and that the remaining selected and appointed candidates would not be so regularized. The employment notification uniformly provides that the appointments to be made would be against temporary vacancies, and although, it refers to six numbers of vacancies, but it is an admitted position that nine unreserved candidates and eight reserved category candidates were recommended and appointed. It has also an admitted position that out of the same, eleven had been confirmed in service. 12. In view of such factual situation the provision in the employment notification that the recruitment would be for six temporary vacancies had lost its relevance and the same itself also cannot be a reason to regularize eleven of the appointed candidates while not regularizing the others. 13. 12. In view of such factual situation the provision in the employment notification that the recruitment would be for six temporary vacancies had lost its relevance and the same itself also cannot be a reason to regularize eleven of the appointed candidates while not regularizing the others. 13. In the absence of any such provision in the employment notification or in the minutes of the selection that some of the selected candidates would be regularized while others would be not, the procedure adopted by the respondent authorities to subsequently regularize some of such selected and appointed candidates, while refusing the same treatment to the others would be arbitrary and discriminatory and the differential treatment given on the basis of the merit position in the initial select list by itself cannot save such discriminatory conduct. In the absence of any such indication at the time of recruitment, no intelligible differentia can be noticed between the selected candidates merely on the basis of their merit position in the select list so as to entail a differential treatment for the purpose of regularizing some of them while refusing others. 14. Accordingly, it is concluded that the conduct of the respondent authorities in confirming/regularizing eleven of the similarly situated candidates who were selected and appointed along with the appellants, while refusing to regularize the service of the appellants in a similar manner, violates Article 14 of the Constitution of India. The differential treatment on the basis of the position in the select list do not form a reasonable classification for the purpose of regularizing or not regularizing in the service. 15. It is further taken note of that the employment notification of 07.04.1995 clearly indicates that the appointments were made against sanctioned vacancies, although they were indicated to be temporary vacancies. But the factual situation is such that all the appointees pursuant to the said employment notification continues to remain in employment till date i.e. approximately more than 20 years and it by itself is an indication that the sanctioned vacancies had lost its status to be claimed as a temporary vacancies. 16. Further it is also taken note of that the recruitment of the appellants were made by following the constitutional scheme i.e. through an employment notification and selection, where others have also participated. In paragraph 53 of the judgment rendered in Secretary, State of Karnataka v. Umadevi & Ors,. 16. Further it is also taken note of that the recruitment of the appellants were made by following the constitutional scheme i.e. through an employment notification and selection, where others have also participated. In paragraph 53 of the judgment rendered in Secretary, State of Karnataka v. Umadevi & Ors,. reported in (2006) 4 SCC 1 , it was provided that even in cases where appointments are irregular, i.e. without following the constitutional scheme, but where the appointees continued to remain in service for more than 10 years as of the date of the said judgment without any aid of any order from any Court but against sanctioned vacant post, are entitled to a consideration for regularization as one time measure. In comparison thereof, the factual situation of the appellants is much better off, inasmuch as, they were appointed against sanctioned vacant post by following the procedure of constitutional scheme and therefore, a right of regularization had accrued to them. 17. Mr. R. Dubey, learned counsel for the respondent IOC-AOD has produced the information that some of the candidates who were selected and appointed along with the appellants were confirmed/regularized on 13.05.1997. The information provided is that Khargadhar Sonowal appointed under the ST category, Hema Kanta Gogoi and K. Nagbhusan Verma appointed under the OBC category and Bir Bahadur Sonar and A.U. Rao appointed under the unreserved category, were all regularized/confirmed on 13.05.1997. 18. As we have already arrived at a conclusion that there does not exist any intelligible differentia between the candidates selected and appointed under the same selection, there cannot be a differential treatment as regards their regularization and confirmation and further such differential treatment cannot be sustained by stating that it was done on the basis of the order of merit of the selection. Even such stand is unacceptable, inasmuch as, persons below in the select list have been regularized and confirmed, whereas, those above in the order of merit are yet to be regularized/confirmed. No other reason has been disclosed by the respondent authorities for meting such differential treatment. In the circumstance, the only conclusion that can be arrived is that there was discrimination and biasness in effecting the regularization/confirmation and the procedure adopted by the respondent authorities violates Article 14 of the Constitution of India. 19. No other reason has been disclosed by the respondent authorities for meting such differential treatment. In the circumstance, the only conclusion that can be arrived is that there was discrimination and biasness in effecting the regularization/confirmation and the procedure adopted by the respondent authorities violates Article 14 of the Constitution of India. 19. In the circumstance, we are of the considered view that ends of justice will be met, if the respondent authorities in the IOC-AOD regularize the services of the appellants and that such regularization along with the benefits accrued thereof be given w.e.f. the same date as to when the last of the eleven candidates was so confirmed or regularized. Accordingly, the respondent authorities are directed to regularize the services of the appellants from the date when the last of the eleven candidates were confirmed or regularized and all the consequential benefits of being regularized be provided to them from the said date. 20. The aforesaid be done within a period of three months from the date of receipt of the certified copy of the order. 21. Writ appeal is accordingly disposed of.