Avinash Chandra Bhateja & Ors. v. UOI & Ors.

1. Petitioners were appointed in different posts with respondent no.3/Central Technical Committee-Integrated Mother and Child Development (in short „CTC-IMCD‟). Respondent no.3 actually was a modality for implementing a scheme/policy of the Union of India- Respondent no.1. Respondent no.3 was working from the funds which were being provided by the respondent no.1. An Integrated Child Development Scheme was launched by the respondent no.2-All India Institute of Medical Sciences (AIIMS) and this scheme was approved by the department of Social Welfare as per the petition. Petitioners were appointed at different 2013:DHC:5116 posts with respondent no.3 and are said to have served the respondent no.3 for very very long periods even running well over a decade. The services of the petitioners were terminated in terms of the impugned orders and sample order is one dated 1.12.1998 and which reads as under:- “CTC F2/Admn/96 Dated the 1st December, 1998 To, Sh. A.K.Gupta Sr. Investigator CTC/MCD R.K.Puram New Delhi SUB: OFFICE ORDER-TERMINATION OF SERVICES FROM 31ST

OF DECEMBER OF THE STAFF OF CTC- 1MCD DUE TO NON-AVAILABILITY OF FUNDS AND RESOLUTION OF THE GOVERNING BODY) You are hereby informed that your services stand terminated from 31st of December, 1998 (afternoon). This office order should be considered as one month‟s notice period. The Governing body of CTC-IMCD has resolved that the CTC- IMCD, due to non-availability of the funds from Department of Women and Child Development, Govt. of India, which had been the only grant giving agency for CTC-IMCD staff and activity, should be dissolved. The Governing Body has strongly recommended that the staff of CTC-IMCD should be absorbed in the alternative system which is being established for CTC activity by Deptt. of Women & Child Development, Govt. of India. All efforts will be made with the Government to accept this recommendation so that the staff working in CTC-IMCD find job in the alternative arrangement. The Deptt. of Women & Child Development has been assuring the availability of funds to continue the work of the CTC IMCD. If the funds are released early to continue the work till alternative system is established, then this termination order will stand cancelled.

SUPERVISOR ADMINISTRATOR ON BEHALF OF GOVERNING BODY.CTC-IMCD”

2. By this writ petition, petitioners essentially have prayed for quashing of the termination orders dated 1.12.1998 and directions for absorption of the petitioners in government service. Prayer is made for directing the respondent no.1 to allocate adequate funds to the respondent no.3 including by making it part of the respondent no.2/AIIMS.

3. A Constitution Bench judgment of the Supreme Court in the case of Secretary, State Bank of Karnataka & Ors. Vs. Umadevi (3) and Ors. (2006) 4 SCC 1 has laid down the following ratio:- “(I) The questions to be asked before regularization are:- (a)(i) Was there a sanctioned post (court cannot order creation of posts because finances of the state may go haywire), (ii) is there a vacancy, (iii) are the persons qualified persons and (iv) are the appointments through regular recruitment process of (b) A court can condone an irregularity in the appointment procedure only if the irregularity does not go to the root of the matter.

(II) For sanctioned posts having vacancies, such posts have to be filled by regular recruitment process of prescribed procedure otherwise, the constitutional mandate flowing from Articles 14,16,309, 315, 320 etc is violated.

(III) In case of existence of necessary circumstances the government has a right to appoint contract employees or casual labour or employees for a project, but, such persons form a class in themselves and they cannot claim equality(except possibly for equal pay for equal work) with regular employees who form a separate class. Such temporary employees cannot claim legitimate expectation of absorption/regularization as they knew when they were appointed that they were temporary inasmuch as the government did not give and nor could have given an assurance of regularization without the regular recruitment process being followed. Such irregularly appointed persons cannot claim to be regularized alleging violation of Article 21. Also the equity in favour of the millions who await public employment through the regular recruitment process outweighs the equity in favour of the limited number of irregularly appointed persons who claim regularization.

(IV) Once there are vacancies in sanctioned posts such vacancies cannot be filled in except without regular recruitment process, and thus neither the court nor the executive can frame a scheme to absorb or regularize persons appointed to such posts without following the regular recruitment process.

(V) At the instance of persons irregularly appointed the process of regular recruitment shall not be stopped. Courts should not pass interim orders to continue employment of such irregularly appointed persons because the same will result in stoppage of recruitment through regular appointment procedure.

(VI) If there are sanctioned posts with vacancies, and qualified persons were appointed without a regular recruitment process, then, such persons who when the judgment of Uma Devi is passed have worked for over 10 years without court orders, such persons be regularized under schemes to be framed by the concerned organization.

(VII) The aforesaid law which applies to the Union and the

4. Some of the relevant paras of the judgment in Umadevi’s case (supra) stating the above ratio read as under:- “10. In addition to the equality clause represented by Article 14 of the Constitution, Article 16 has specifically provided for equality of opportunity in matters of public employment. Buttressing these fundamental rights, Article309 provides that subject to the provisions of the Constitution, Acts of the legislature may regulate the recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or of a State. In view of the interpretation placed on Article 12 of the Constitution by this Court, obviously, these principles also govern the instrumentalities that come within the purview of Article 12 of the Constitution. With a view to make the procedure for selection fair, the Constitution by Article 315 has also created a Public Service Commission for the Union and Public Service Commissions for the States. Article 320deals with the functions of Public Service Commissions and mandates consultation with the Commission on all matters relating to methods of recruitment to civil services and for civil posts and other related matters. As a part of the affirmative action recognized by Article 16 of the Constitution, Article 335 provides for special consideration in the matter of claims of the members of the scheduled castes and scheduled tribes for employment. The States have made Acts, Rules or Regulations for implementing the above constitutional guarantees and any recruitment to the service in the State or in the Union is governed by such Acts, Rules and Regulations. The Constitution does not envisage any employment outside this constitutional scheme and without following the requirements set down therein.

17. We have already indicated the constitutional scheme of public employment in this country, and the executive, or for that matter the Court, in appropriate cases, would have only the right to regularize an appointment made after following the due procedure, even though a nonfundamental element of that process or procedure has not been followed. This right of the executive and that of the court, would not extend to the executive or the court being in a position to direct that an appointment made in clear violation of the constitutional scheme, and the statutory rules made in that behalf, can be treated as permanent or can be directed to be treated as permanent.

19. In Dharwad case, this Court was actually dealing with the question of 'equal pay for equal work' and had directed the State of Karnataka to frame a scheme in that behalf. In paragraph 17 of the judgment, this Court stated that the precedents obliged the State of Karnataka to regularize the services of the casual or daily/monthly rated employees and to make them the same payment as regular employees were getting. Actually, this Court took note of the argument of counsel for the State that in reality and as a matter of statecraft, implementation of such a direction was an economic impossibility and at best only a scheme could be framed. Thus a scheme for absorption of casual/daily rated employees appointed on or before 1.7.1984 was framed and accepted. The economic consequences of its direction were taken note of by this Court in the following words. “We are alive to the position that the scheme which we have finalized is not the ideal one but as we have already stated, it is the obligation of the court to individualize justice to suit a given situation in a set of facts that are placed before it. Under the scheme of the Constitution, the purse remains in the hands of the executive. The legislature of the State controls the Consolidated Fund out of which the expenditure to be incurred, in giving effect to the scheme, will have to be met. The flow into the Consolidated Fund depends upon the policy of taxation depending perhaps on the capacity of the payer. Therefore, unduly burdening the State for implementing the constitutional obligation forthwith would create problems which the State may not be able to stand. We have, therefore, made our directions with judicious restraint with the hope and trust that both parties would appreciate and understand the situation. The instrumentality of the State must realize that it is charged with a big trust. The money that flows into the Consolidated Fund and constitutes the resources of the State comes from the people and the welfare expenditure that is meted out goes from the same Fund back to the people. May be that in every situation the same tax payer is not the beneficiary. That is an incident of taxation and a necessary concomitant of living within a welfare society.” With respect, it appears to us that the question whether the jettisoning of the constitutional scheme of appointment can be approved, was not considered or decided. The distinction emphasized in R.N. Nanjundappav. T. Thimmiah and Anr. (supra), was also not kept in mind. The Court appears to have been dealing with a scheme for 'equal pay for equal work' and in the process, without an actual discussion of the question, had approved a scheme put forward by the State, prepared obviously at the direction of the Court, to order permanent absorption of such daily rated workers. With respect to the learned judges, the decision cannot be said to lay down any law, that all those engaged on daily wages, casually, temporarily, or when no sanctioned post or vacancy existed and without following the rules of selection, should be absorbed or made permanent though not at a stretch, but gradually. If that were the ratio, with respect, we have to disagree with it.

33. In the earlier decision in Indra Sawhney v. Union of India 1992 Supp. (2) S.C.R. 454, B.P. Jeevan Reddy, J. speaking for the majority, while acknowledging that equality and equal opportunity is a basic feature of our Constitution, has explained the exultant position of Articles 14 and 16 of the Constitution of India in the scheme of things. His Lordship stated:-