Head Notes:
- There is no fundamental right in those who have been employed on daily wages or temporarily or on contractual basis, to claim that they have a right to be absorbed in service. As has been held by this Court, they cannot be said to be holders of a post, since, a regular appointment could be made only by making appointments consistent with the requirements of Articles 14 and 16 of the Constitution. The right to be treated equally with the other employees employed on daily wages, cannot be extended to a claim for equal treatment with those who were regularly employed. That would be treating unequals as equals. It cannot also be relied on to claim a right to be absorbed in service even though they have never been selected in terms of the relevant recruitment rules.
- Mere continuation of service by a temporary or ad hoc or daily-wage employee, under cover of some interim orders of the court, would not confer upon him any right to be absorbed into service, as such service would be “litigious employment”. Even temporary, ad hoc or daily-wage service for a long number of years, let alone service for one or two years, will not entitle such employee to claim regularisation, if he is not working against a sanctioned post. Sympathy and sentiment cannot be grounds for passing any order of regularisation in the absence of a legal right.
- Part-time employees are not entitled
to seek regularisation as they are not working against any sanctioned
posts. There can not be a direction for absorption, regularisation or
permanent continuance of part-time temporary employees.
- Part-time temporary employees in
government run institutions cannot claim parity in salary with regular
employees of the Government on the principle of equal pay for equal work.
Nor can employees in private employment, even if serving full time, seek
parity in salary with government employees. The right to claim a particular
salary against the State must arise under a contract or under a statute.
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOs. 2726-2729 OF
2014
(Arising out of SLP (C) Nos.
5681-5684/2014)
@ CC. 19326-19329/2013)
Secretary to Government, School Education Department,
Chennai
… Appellant
Versus
Thiru R. Govindaswamy & Ors. …Respondents
WITH
CIVIL APPEAL NOs. 2730-2731 OF
2014
(Arising out of SLP (C) Nos.
5686-5687/2014)
@ CC. 19982-19983/2013)
O R D E R : Dr. B.S. CHAUHAN, J.
1. These appeals have
been preferred against the impugned judgments and orders dated 21.11.2012 and
16.11.2012 in Writ Appeal Nos. 2402, 2403 2404, 2405 of 2012 and 2555, 2556 of
2012 passed by the High Court of Madras, by which the High Court has regularised
the services of part-time sweepers (respondents herein).
2. Facts and
circumstances giving rise to these appeals are that:
The respondents had been appointed as part-time sweepers by appellant
from 1987 till 1993 as their initial appointments had been issued to the
respondents and others on 1.12.1987, 2.5.1991, 1.4.1993, 10.4.1993, 27.5.1999
and 19.1.2001. As the respondents and others had been working for more than 10
years, they filed Writ Petition Nos. 17468, 17470, 17472, 17473, 17469 and
17471 of 2012 before the High Court of Madras for seeking regularisation of
their services. The said Writ Petitions were allowed by the common judgment and
order dated 23.7.2012 with the direction to regularise the services of the
respondents on full time basis based on the individual representation after
verifying their service particulars from the date of completion of 10 years of
service with time scale of pay.
Aggrieved, the appellant preferred the writ appeals which
were dismissed.
Hence, these appeals.
3. Shri P.P. Rao,
learned senior counsel appearing for the appellant has submitted that a
direction to regularise the part-time employees itself is contrary to law and
the said direction could not have been issued. It has further been submitted
that as the impugned judgments and orders had been complied with and the
appellant is not going to disturb any of the respondents and others, the law
should be clarified on the issue so that in future the High Court may not use
the impugned judgment as a precedent.
4. Per contra, Shri P.R.
Kovilan P, learned counsel appearing for the respondents has submitted that as
the respondents had been working as part-time sweepers for a very long time and
not regularising their services would tantamount to exploitation.
Therefore, no interference is called for in these appeals.
5. The issue involved
here remains restricted as to whether the services of the part-time sweepers
could have been directed by the High Court to be regularized. The issue is no
more res integra.
In State of Karnataka & Ors. v.
Umadevi & Ors., AIR 2006 SC 1806, this Court held as
under:
“There is no fundamental right in those
who have been employed on daily wages or temporarily or on contractual basis,
to claim that they have a right to be absorbed in service. As has been held by
this Court, they cannot be said to be holders of a post, since, a regular appointment
could be made only by making appointments consistent with the requirements of
Articles 14 and 16 of the Constitution. The right to be treated equally with
the other employees employed on daily wages, cannot be extended to a claim for
equal treatment with those who were regularly employed. That would be treating
unequals as equals. It cannot also be relied on to claim a right to be absorbed
in service even though they have never been selected in terms of the relevant recruitment
rules.”
6. In Union of India & Ors. v. A.S. Pillai & Ors., (2010) 13 SCC 448, this Court dealt with the issue of
regularisation of part-time employees and the court refused the relief on the
ground that parttimers are free to get themselves engaged elsewhere and they
are not restrained from working elsewhere when they are not working for the authority/employer.
Being the part-time employees, they are not subject to service rules or other
regulations which govern and control the regularly appointed staff of the
department. Therefore, the question of giving them equal pay for equal work or
considering their case for regularisation would not arise.
7. This Court in State of Rajasthan & Ors. v. Daya Lal & Ors., AIR 2011 SC 1193, has considered the scope of
regularisation of irregular or part-time appointments in all possible
eventualities and laid down well-settled principles relating to regularisation
and parity in pay relevant in the context of the issues involved therein. The
same are as under:
“8(i) The High Courts, in exercising power under Article 226 of
the Constitution will not issue directions for regularisation, absorption or
permanent continuance, unless the employees claiming regularisation had been appointed
in pursuance of a regular recruitment in accordance with relevant rules in an
open competitive process, against sanctioned vacant posts. The equality clause
contained in Articles 14 and 16 should be scrupulously followed and Courts
should not issue a direction for regularisation of services of an employee which
would be violative of the constitutional scheme. While something that is
irregular for want of compliance with one of the elements in the process of
selection which does not go to the root of the process, can be regularised,
back door entries, appointments contrary to the constitutional scheme and/or
appointment of ineligible candidates cannot be regularised.
(ii) Mere continuation of service by a temporary or ad hoc or
daily-wage employee, under cover of some interim orders of the court, would not
confer upon him any right to be absorbed into service, as such service would be
“litigious employment”. Even temporary, ad hoc or daily-wage service for a long
number of years, let alone service for one or two years, will not entitle such employee
to claim regularisation, if he is not
working against a sanctioned post. Sympathy and sentiment cannot be grounds for
passing any order of regularisation in the
absence of a legal right.
(iii) Even where a scheme is formulated for regularisation with
a cut-off date (that is a scheme providing that persons who had put in a
specified number of years of service and continuing in employment as on the
cut-off date), it is not possible to others who were appointed subsequent to
the cut-off date, to claim or contend that the scheme should be applied to them
by extending the cut-off date or seek a direction for framing of fresh schemes
providing for successive cut-off dates.
(iv) Part-time employees are not
entitled to seek regularisation as they
are not working against any sanctioned posts. There can not be a direction for absorption,
regularisation or permanent continuance of part-time temporary employees.
(v) Part-time temporary employees in
government run institutions cannot claim parity in salary with regular employees of the Government on the principle of
equal pay for equal work. Nor can employees in private employment, even if serving
full time, seek parity in salary with government employees. The right to claim
a particular salary against the State must arise under a contract or under a
statute.” (Emphasis
added)
8. The present appeals
are squarely covered by clauses (ii), (iv) and (v) of the aforesaid judgment.
Therefore, the appeals are allowed. However, in light of the facts and
circumstances of the case as Shri P.P. Rao, learned senior counsel has
submitted that the appellant has already implemented the impugned judgments and
does not want to disturb the services of the respondents, the services of the
respondents which stood regularised should not be affected.
With the
aforesaid observations, the appeals stand disposed of accordingly. No order as
to costs.
…………………………….J.
(Dr. B.S. CHAUHAN
………………………………...J.
(A.K. SIKRI)
New Delhi,
February 21, 2014
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