Common judgment dismissing two CPs seeking regularization of services and incidental benefits for physical education lecturers. Court held petitioners were on temporary/outsourced basis against no sanctioned post, thus no right to regularization or parity.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA
CWP No. 1280 of 2022 a/w CWP No. 1398 of 2022.
th Reserved on: 4 October, 2023.
Date of decision: 11th October, 2023.
| 1. CWP No. 1280 of 2022. | |
|---|---|
| Smt. Chetna Kumari Versus |
...Petitioner. |
| Bhakra Beas Management Board & Ors. | ....Respondents. |
| 2. CWP No. 1398 of 2022. | |
| Vipan Kumar vs. |
…...Petitioner. |
| Bhakra Beas Management Board & Others | ….Respondents. |
Coram:
The Hon’ble Mr. Justice Satyen Vaidya, Judge. Whether approved for reporting?1 No. For the Petitioner(s): Mr. A.K. Gupta, Advocate. For the Respondents: Mr. N.K. Sood, Senior Advocate, with Mr. Aman Sood, Advocate.
Satyen Vaidya, Judge.
Both these petitions are being decided by a common judgment as common questions of facts and law are
involved.
1 Whether reporters of the local papers may be allowed to see the judgment?
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2. Petitioners have prayed for following substantive
relief: -
“That the respondents may be ordered to regularize services of the petitioner(s) as a Lecturer Physical Education with all benefits incidental thereof, from the due date.”
them are qualified Physical Education Lecturers. Initially, respondent No.1 engaged the services of petitioners through process of out sourcing in the year 2015 and later in the year 2016, their engagement was made on temporary basis and is continuing thereafter from year to year. In the year 2016, the engagement of petitioners was on the fixed honorarium of Rs. 15,495/- each, which with the passage of time has increased to Rs.30,189/- each per month.
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5. Respondents have contested the claim of the
petitioners. It has been submitted that the petitioners are bound by the terms of their employment. The respondents have no sanctioned posts of Lecturer Physical Education. The engagement of petitioners is only by way of interim measure. It has been submitted that respondent No.1 had conveyed its approval to outsource the services of two number Physical Education Lecturers for its schools at ‘Pandoh’ and ‘Slapper’ against the vacant posts of lecturers on the available minimum rates of wages fixed by the Deputy Commissioner, Chandigarh as interim measure. It was further desired that in due course the vacant surplus posts of lecturers may be got converted to Physical Education Lecturer and the efforts be made to fill up posts from the partner states as per the sharing quota. As per the respondents, the State of Punjab, Haryana, Himachal Pradesh and Rajasthan have sharing quota in the workforce of respondent No.1.
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of its legal duties. In order to succeed in the relief as prayed by the petitioners, by way of instant petition, they are liable to establish their legal right of regularization and corresponding duty vested in the respondents, which the petitioners have failed to establish.
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establish that the respondents have regularised the services of similarly situated persons. Noticeably, the respondents have specifically denied such allegations.
“25. The observations made in paragraph 9 are on surmises and conjunctures. Even the observations made that they have worked continuously and for the whole day are also without any basis and for which there is no supporting evidence. In any case, the fact remains that the respondents served as part-time employees and were contingent paid staff. As
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observed above, there are no sanctioned posts in the Post Office in which the respondents were working, therefore, the directions issued by the High Court in the impugned judgment and order are not permissible in the judicial review under Article 226 of the Constitution. The High Court cannot, in exercise of the power under Article 226, issue a Mandamus to direct the Department to sanction and create the posts. The High Court, in exercise of the powers under Article 226 of the Constitution, also cannot direct the Government and/or the Department to formulate a particular regularization policy. Framing of any scheme is no function of the Court and is the sole prerogative of the Government. Even the creation and/or sanction of the posts is also the sole prerogative of the Government and the High Court, in exercise of the power under Article 226 of the Constitution, cannot issue Mandamus and/or direct to create and sanction the posts.
26. Even the regularization policy to regularize the services of the employees working on temporary status and/or casual labourers is a policy decision and in judicial review the Court cannot issue Mandamus and/or issue mandatory directions to do so. In the case of R.S. Bhonde (supra), it is observed and held by this Court that the status of permanency cannot be granted when there is no post. It is further observed that mere continuance every year of seasonal work during the period when work was available does not constitute a permanent status unless there exists a post and regularization is done.
27. In the case of Daya Lal (supra) in paragraph 12, it is observed and held as under:—
“12. We may at the outset refer to the following wellsettled principles relating to regularisation and parity in pay, relevant in the context of these appeals:
(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
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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 cutoff 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 cannot 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.
[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) 10 SCC 1.]
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28. Thus, as per the law laid down by this Court in the aforesaid decisions part-time employees are not entitled to seek regularization as they are not working against any sanctioned post and there cannot be any permanent continuance of part-time temporary employees as held. Part-time temporary employees in a Government run institution cannot claim parity in salary with regular employees of the Government on the principle of equal pay for equal work.
29. Applying the law laid down by this court in the aforesaid decisions, the directions issued by the High Court in the impugned judgment and order, more particularly, directions in paragraphs 22 and 23 are unsustainable and beyond the power of the judicial review of the High 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, the Union of India/Department subsequently came out with a regularization policy dated 30.06.2014, which is absolutely in consonance with the law laid down by this Court in the case of Umadevi (supra), which does not apply to the part-time workers who do not work on the sanctioned post. As per the settled preposition of law, the regularization can be only as per the regularization policy declared by the State/Government and nobody can claim the regularization as a matter of right dehors the regularization policy. Therefore, in absence of any sanctioned post and considering the fact that the respondents were serving as a contingent paid parttime Safai Karamcharies, even otherwise, they were not entitled for the benefit of regularization under the regularization policy dated 30.06.2014.
30. Though, we are of the opinion that even the direction contained in paragraph 23 for granting minimum basic pay of Group ‘D’ posts from a 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 a day and cannot claim the parity with other Group ‘D’ posts. However, in view of the order passed by this Court dated 22.07.2016 while issuing notice in the present appeals, we are not quashing and setting aside the directions contained in paragraph 23 in the impugned judgment and order so far as the respondents' employees are concerned.”
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(Satyen Vaidya) Judge
11th October, 2023. (jai)
3 issues framed by the court
Whether petitioners employed on temporary basis without sanctioned posts are entitled to regularization.
Whether High Court can issue mandamus to create sanctioned posts or formulate regularization policies.
Whether part-time temporary employees can claim parity in salary with regular government employees.
Smt. Chetna Kumari
Vipan Kumar
Bhakra Beas Management Board
Satyen Vaidya
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
