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2025 DIGILAW 464 (ALL)

Ramashankar Sharma v. Writ (A) No. 14574 of 2021

2025-03-10

AJAY BHANOT

body2025
JUDGMENT : AJAY BHANOT, J. 1. Heard Shri Rampyare Lal Srivastava, learned counsel for the petitioner, learned Standing Counsel for the State-respondents No. 1 and 2 and Shri M. J. Akhtar, learned counsel for the respondents No. 3 and 4. 2. By the impugned order dated 16.08.2021 passed by the respondent No. 4 i.e. Executive Officer, Nagar Palika Parishad Zamania, District Ghazipur the claim of the petitioner for regularization has been declined on the footing that the petitioner is working as an outsourced employee and is not covered by the Uttar Pradesh Regularization of Persons Working on Daily Wages or on Work-Charge or on Contract in Government Departments on 'Group-C' and 'Group-D' Posts (Outside the Purview of the Uttar Pradesh Public Service Commission) Rules, 2016 (hereinafter the 'Regularization Rules'). 3. The petitioner was engaged as a daily wager in the respondent Nagar Palika Parishad as an Electrician w.e.f. 23.01.2001. The services of the petitioner have been uninterrupted and continuous since the date of his appointment. 4. The entitlement of regularization of the petitioner flows from Rule-6 of Regularization Rules is quoted herein under:- "6. (1) Any person who: (i) was directly engaged or employed or deployed or working on daily wages or on work charge or on contract in a Government Department on Group 'C' or Group 'D' post (outside the purview of the Uttar Pradesh Public Service Commission) on or before December 31, 2001 and is still engaged or employed or deployed or working as such on the date of the commencement of these rules; (ii) possessed requisite qualifications prescribed for regular appointment for that post at the time of such engagement or employment or deployment on daily wages or on work charge or on contract, under the relevant service rules and, subject to the provisions of above mentioned rules 2 and 5, shall be considered for regular appointment on Group 'C' or Group 'D' post (outside the purview of the Uttar Pradesh Public Service Commission) in permanent or temporary vacancy as may be available on the date of the commencement of these rules, on the basis of his record and suitability before any regular appointment is made in such vacancy in accordance with the relevant service rules or orders. (2) In making regular appointments under these rules, reservations for the candidates belonging to the Scheduled Castes, Scheduled Tribes, Other Backward Classes and other categories, shall be made in accordance with the Uttar Pradesh Public Services (Reservation for Scheduled Castes, Schedule Tribes and Other Backward Classes) Act, 1994, and the Uttar Pradesh Public Services (Reservation for Physically Handicapped, Dependents of Freedom Fighters and Ex-Servicemen) Act, 1993, as amended from time to time, and the orders of the Government in force at the time of regularisation under these rules. (3) For the purpose of sub-rule (1), the appointing authority shall constitute a Selection Committee in accordance with the relevant provisions of service rules. (4) The appointing authority shall, having regard to the provisions of sub-rule (1), prepare an eligibility list of the candidates, arranged in order of seniority as determined from the date of engagement or employment or deployment on daily wages, on work charge or on contract and, if two or more persons are engaged or employed or deployed together, from the order in which their names are arranged in the said engagement or employment or deployment order. The list shall be placed before the Selection Committee alongwith the character rolls and such other relevant records, pertaining to them, as may be considered necessary to assess their suitability. (5) The Selection Committee shall consider the cases of the candidates on the basis of their records, referred to in sub-rule (4), and if considers necessary, it may interview the candidates also to assess their suitability. (6) The Selection Committee shall prepare a list of selected candidate arranging their names in order of seniority and forward the same to the appointing authority." 5. The continuity of service of the petitioner from the date of his appointment is borne out from the records. It is thus evident that the duties discharged by the petitioner are perennial in nature. Further the record also discloses that there is no dispute about existence of sanctioned post. 6. The Regularization Rules have been made applicable to the employees of Nagar Palika Parishad by means of Government Order dated 03.01.2017. The said Government Order is extracted herein under:- 7. As seen earlier from the exchange of pleadings, these facts are established. 8. The petitioner has been working continuously as a daily wage electrician without break, and since the date of his appointment i.e. on 23.01.2001. The said Government Order is extracted herein under:- 7. As seen earlier from the exchange of pleadings, these facts are established. 8. The petitioner has been working continuously as a daily wage electrician without break, and since the date of his appointment i.e. on 23.01.2001. The petitioner was thus appointed prior to the cut off date for regularization. The case of the petitioner is covered by the Regularization Rules. 9. The agency of the contractor was introduced by the respondents in December 2014. Till that point in time from the date 23.01.2001, the petitioner was being directly engaged as a daily wager by the respondents. It is evident from a perusal of the counter affidavit and the records that the agency has been brought into existence only to defeat the rights of regularization of the petitioner in the instant case. No policy objectives which would justify the engagement of the petitioner through a contractor after 13 years of service has been stated in the counter affidavit. 10. Moreover under the Regularization Rules are also applicable to employees engaged on contract. 11. The reasons cited in the impugned order for denying the petitioner's right for regularization is arbitrary and an instance of exploitative practice adopted by the employer to deny the just dues to a grade-D employee. 12. The Supreme Court in Jaggo Vs. Union of India and others , MANU/SC/1403/2024 noticed the consequences of misclassifying employees to circumvent beneficial provisions created by law for the employees. The relevant paras are quoted hereunder: "24. The landmark judgement of the United State in the case of Vizcaino v. Microsoft Corporation4 serves as a pertinent example from the private sector, illustrating the consequences of misclassifying employees to circumvent providing benefits. In this case, Microsoft classified certain workers as independent contractors, thereby denying them employee benefits. The U.S. Court of Appeals for the Ninth Circuit determined that these workers were, in fact, common-law employees and were entitled to the same benefits as regular employees. The Court noted that large Corporations have increasingly adopted the practice of hiring temporary employees or independent contractors as a means of avoiding payment of employee benefits, thereby increasing their profits. This judgment underscores the principle that the nature of the work performed, rather than the label assigned to the worker, should determine employment status and the corresponding rights and benefits. This judgment underscores the principle that the nature of the work performed, rather than the label assigned to the worker, should determine employment status and the corresponding rights and benefits. It highlights the judiciary's role in rectifying such misclassifications and ensuring that workers receive fair treatment. 25. It is a disconcerting reality that temporary employees, particularly in government institutions, often face multifaceted forms of exploitation. While the foundational purpose of temporary contracts may have been to address short-term or seasonal needs, they have increasingly become a mechanism to evade long-term obligations owed to employees. These practices manifest in several ways: • Misuse of "Temporary" Labels: Employees engaged for work that is essential, recurring, and integral to the functioning of an institution are often labeled as "temporary" or "contractual," even when their roles mirror those of regular employees. Such misclassification deprives workers of the dignity, security, and benefits that regular employees are entitled to, despite performing identical tasks. • Arbitrary Termination: Temporary employees are frequently dismissed without cause or notice, as seen in the present case. This practice undermines the principles of natural justice and subjects workers to a state of constant insecurity, regardless of the quality or duration of their service. • Lack of Career Progression: Temporary employees often find themselves excluded from opportunities for skill development, promotions, or incremental pay raises. They remain stagnant in their roles, creating a systemic disparity between them and their regular counterparts, despite their contributions being equally significant. • Using Outsourcing as a Shield: Institutions increasingly resort to outsourcing roles performed by temporary employees, effectively replacing one set of exploited workers with another. This practice not only perpetuates exploitation but also demonstrates a deliberate effort to bypass the obligation to offer regular employment. • Denial of Basic Rights and Benefits: Temporary employees are often denied fundamental benefits such as pension, provident fund, health insurance, and paid leave, even when their tenure spans decades. This lack of social security subjects them and their families to undue hardship, especially in cases of illness, retirement, or unforeseen circumstances. 26. While the judgment in Uma Devi (supra) sought to curtail the practice of backdoor entries and ensure appointments adhered to constitutional principles, it is regrettable that its principles are often misinterpreted or misapplied to deny legitimate claims of long-serving employees. This judgment aimed to distinguish between "illegal" and "irregular" appointments. 26. While the judgment in Uma Devi (supra) sought to curtail the practice of backdoor entries and ensure appointments adhered to constitutional principles, it is regrettable that its principles are often misinterpreted or misapplied to deny legitimate claims of long-serving employees. This judgment aimed to distinguish between "illegal" and "irregular" appointments. It categorically held that employees in irregular appointments, who were engaged in duly sanctioned posts and had served continuously for more than ten years, should be considered for regularization as a one- time measure. However, the laudable intent of the judgment is being subverted when institutions rely on its dicta to indiscriminately reject the claims of employees, even in cases where their appointments are not illegal, but merely lack adherence to procedural formalities. Government departments often cite the judgment in Uma Devi (supra) to argue that no vested right to regularization exists for temporary employees, overlooking the judgment's explicit acknowledgment of cases where regularization is appropriate. This selective application distorts the judgment's spirit and purpose, effectively weaponizing it against employees who have rendered indispensable services over decades. 27. In light of these considerations, in our opinion, it is imperative for government departments to lead by example in providing fair and stable employment. Engaging workers on a temporary basis for extended periods, especially when their roles are integral to the organization's functioning, not only contravenes international labour standards but also exposes the organization to legal challenges and undermines employee morale. By ensuring fair employment practices, government institutions can reduce the burden of unnecessary litigation, promote job security, and uphold the principles of justice and fairness that they are meant to embody. This approach aligns with international standards and sets a positive precedent for the private sector to follow, thereby contributing to the overall betterment of labour practices in the country." 13. The case of the petitioner is clearly covered by the holding of the Supreme Court. 14. The impugned order dated 16.08.2021 passed by the respondent No. 4 i.e. Executive Officer, Nagar Palika Parishad Zamania, District Ghazipur is hereby quashed. 15. The respondents are directed to pass appropriate orders directing regularisation of the petitioner as per the seniority list of Group-D post who have been engaged on daily wages/contract basis. 16. The writ petition is allowed.