Geeta Devi & Ors. v. Export Inspection Council & Ors.

8. Aggrieved by no replies/ action taken against the said representation of the petitioners, the petitioner filed the instant petition.

9. Learned counsel appearing on behalf of the petitioners submitted that the respondents’ organization falls under of pensionable department by virtue of CCS (Pension) Rules,1972 and entitled leave under CCS (Leaved) Rules,1972 read with S.O. 2922 dated 24th October, 1981.

10. It is submitted that as per GI MF O.M. No. F.12 (I)-EV/68 dated 14th May, 1968 and OM No. 12011/1/85-Estt.

(C) dated 10th March, 1986 read with per Rule 14 of the CCS (Pension) Rules,1972, the petitioners became eligible for half service as casual workers to taken into account for the purpose of terminal benefits.

11. It is contended that the petitioner nos. 1, 2 and 4 to 6 becomes eligible for full counting of contract service for Pension as per the provisions of Rule 17 of CCS (Pension) Rules. However, the respondent has arbitrarily put them under New Pension Scheme w.e.f. from dated 1st January, 2004.

12. It is submitted that the respondent intentionally and with ulterior motives, put the petitioners in New Pension Scheme, and resulted to be bad in law. In addition, the respondent nos. 1 to 5 failed to act bonafide thereby refused to consider the petitioners various representations so far submitted.

13. It is submitted that the petitioner no. 3 by virtue of DOPT OM NO. 510106/2/90 Estt.

(C) dated 10th September 1993, becomes eligible for 50% service rendered under Temporary status for the purpose of retirement benefits as well as one day leaves for ten days of work.

14. It is contended by the petitioners that the respondents in its reply to the representation of the petitioner no. 5 dated 24th December, 2014, pertaining to petitioner's representation seeking consideration of past service,was wrongly rejected on the ground that the same is covered by the judgment of the Hon’ble Supreme Court in Secretary State of Karnataka v. Umadevi, (2006) 4 SCC 1.

15. In light of the aforementioned submissions, the petitioner prays that the instant petition may be allowed and the reliefs as claimed by the petitioner may be granted.

16. Per Contra, the respondent vehemently opposed the instant petition and submitted that the same is not maintainable, hence, on account of delay and latches the petition is liable to be dismissed. It was further contented that the instant petition has been filed by the wife of an ex-employee, and his terminal dues were duly settled by the employer and same has been accepted by his legal heirs.

17. It is submitted that the reliefs as sought by the petitioner in their favour, is irrelevant, misleading and misconceived and therefore, strongly denied. The petitioners are not eligible for the pension in terms of the CCS (Pension) Rules and are eligible for New Pension Scheme w.e.f. 1st January 2004, which has been duly granted to them.

18. It is vehemently submitted that the petitioners were not engaged against a sanctioned post/ vacancy by a competent authority to make such appointments. They were appointed on daily wages, ad-hoc or contract basis as and when required for a short interval of time. Hence, they could not be equated to a regular employee who is appointed against a vacancy by the competent authority.

19. It is further submitted that in case of the petitioner no. 3, who was working as an electrician, a post of Gestetner Operator was converted into that of a Dispatch Rider to accommodate him for making regular appointment.

20. It is contended that as per the offers of appointment of the petitioners it was specifically mentioned that the petitioners services will have effect from the date of their joining and that they will be governed by the New Pension Scheme as applicable to employees of Central Government.

21. It is further contended that the petitioners had duly accepted the offer of appointment and had joined their respective posts.

22. Hence, in view of the foregoing submissions, the respondent seeks that this Court may be pleased to dismiss this revision petition, thereby, upholding the impugned order.

23. Heard both the parties at length.

24. This Court has perused the material on record.

25. The petitioners were appointed to work as casual employees during the period of November 1985 to April 1992 and were subsequently regularized in the period of February 2007 to January 2009. It is the case of the petitioners’ that they are seeking regularization from the date of appointment as casual employees and not from the date when they were regularized alongwith the benefits of retirement under CCS (Pesnion) Rules and not as per New Pension Scheme.

26. The respondent has contended in this regard that as per the law laid down in the judgment of Uma Devi (Supra) by the Hon’ble Supreme Court as well as the offer letters of the petitioners, the employees which have been appointed as casual employees cannot seek regularization on the basis that they have been working with them for a long period of time. Such long period of working does not vest any right for regularization of the employees.

27. Hence, the petitioners will be considered regular employees from the date they were appointed as regular employees and not prior thereto. Furthermore, as per the rules of the respondent, the New Pension Scheme is applicable on the petitioners.

28. Before delving into merits of the case, it is pertinent to enunciate the law on whether there is a vested right of the employees for regularization of the services of the employees working for a long period in the organization.

29. The regularization of the employment cannot be claimed as a matter of right. The employees who were working on contract basis, if regularized, then the same would be considered from the date on which they are employed as regular employee and not from the date of joining the organization, since the said vacancy was not in existence when the said contractual employees were working on contractual position.

30. Therefore, merely because the contractual employee was working in the organization from a long time, if subsequently regularized, it would not entitling the employee to claim benefits from the date of appointment as contractual employee, and instead it will be from the date when the said employee is employed on the regular basis.

31. The aforesaid principle has been discussed by the Hon’ble Supreme Court in the judgment of Ganesh Digambar Jambhrunkar V. State of Maharashtra, SLP (C) No. 2543/20230 dated 12th September 2023 held as follows: “The issue with which we are concerned in this petition is as to whether by working for a long period of time on contractual basis, the petitioners have acquired any vested legal right to be appointed in the respective posts on regular basis. We appreciate the argument of the petitioners that they have given best part of their life for the said college but so far as law is concerned, we do not find their continuous working has created any legal right in their favour to be absorbed. In the event there was any scheme for such regularization, they could have availed of such scheme but in this case, there seems to be none. We are also apprised that some of the petitioners have applied for appointment through the current recruitment process. The High Court has rejected their claim mainly on the 5 ground that they have no right to seek regularization of their service. We do not think any different view can be taken”

32. Furthermore, this Court will now reiterate the principles enunciated by the Constitution Bench in the judgment of Secretary State of Karnataka v. Umadevi, (2006) 4 SCC 1, wherein it held as follows:

44. The concept of “equal pay for equal work” is different from the concept of conferring permanency on those who have been appointed on ad hoc basis, temporary basis, or based on no process of selection as envisaged by the rules. This Court has in various decisions applied the principle of equal pay for equal work and has laid down the parameters for the application of that principle. The decisions are rested on the concept of equality enshrined in our Constitution in the light of the directive principles in that behalf. But the acceptance of that principle cannot lead to a position where the court could direct that appointments made without following the due procedure established by law, be deemed permanent or issue directions to treat them as permanent. Doing so, would be negation of the principle of equality of opportunity. The power to make an order as is necessary for doing complete justice in any cause or matter pending before this Court, would not normally be used for giving the go-by to the procedure established by law in the matter of public employment. Take the situation arising in the cases before us from the State of Karnataka. Therein, after Dharwad decision [(1990) 2 SCC 396: 1990 SCC (L&S) 274: (1990) 12 ATC 902: (1990) 1 SCR 544] the Government had issued repeated directions and mandatory orders that no temporary or ad hoc employment or engagement be given. Some of the authorities and departments had ignored those directions or defied those directions and had continued to give employment, specifically interdicted by the orders issued by the executive. Some of the appointing officers have even been punished for their defiance. It would not be just or proper to pass an order in exercise of jurisdiction under Article 226 or 32 of the Constitution or in exercise of power under Article 142 of the Constitution permitting those persons engaged, to be absorbed or to be made permanent, based on their appointments or engagements. Complete justice would be justice according to law and though it would be open to this Court to mould the relief, this Court would not grant a relief which would amount to perpetuating an illegality.

45. While directing that appointments, temporary or casual, be regularised or made permanent, the courts are swayed by the fact that the person concerned has worked for some time and in some cases for a considerable length of time. It is not as if the person who accepts an engagement either temporary or casual in nature, is not aware of the nature of his employment. He accepts the employment with open eyes. It may be true that he is not in a position to bargain—not at arm's length—since he might have been searching for some employment so as to eke out his livelihood and accepts whatever he gets. But on that ground alone, it would not be appropriate to jettison the constitutional scheme of appointment and to take the view that a person who has temporarily or casually got employed should be directed to be continued permanently. By doing so, it will be creating another mode of public appointment which is not permissible. If the court were to void a contractual employment of this nature on the ground that the parties were not having equal bargaining power, that too would not enable the court to grant any relief to that employee. A total embargo on such casual or temporary employment is not possible, given the exigencies of administration and if imposed, would only mean that some people who at least get employment temporarily, contractually or casually, would not be getting even that employment when securing of such employment brings at least some succour to them. After all, innumerable citizens of our vast country are in search of employment and one is not compelled to accept a casual or temporary employment if one is not inclined to go in for such an employment. It is in that context that one has to proceed on the basis that the employment was accepted fully knowing the nature of it and the consequences flowing from it. In other words, even while accepting the employment, the person concerned knows the nature of his employment. It is not an appointment to a post in the real sense of the term. The claim acquired by him in the post in which he is temporarily employed or the interest in that post cannot be considered to be of such a magnitude as to enable the giving up of the procedure established, for making regular appointments to available posts in the services of the State. The argument that since one has been working for some time in the post, it will not be just to discontinue him, even though he was aware of the nature of the employment when he first took it up, is not one that would enable the jettisoning of the procedure established by law for public employment and would have to fail when tested on the touchstone of constitutionality and equality of opportunity enshrined in Article 14 of the Constitution.

47. When a person enters a temporary employment or gets engagement as a contractual or casual worker and the engagement is not based on a proper selection as recognised by the relevant rules or procedure, he is aware of the consequences of the appointment being temporary, casual or contractual in nature. Such a person cannot invoke the theory of legitimate expectation for being confirmed in the post when an appointment to the post could be made only by following a proper procedure for selection and in cases concerned, in consultation with the Public Service Commission. Therefore, the theory of legitimate expectation cannot be successfully advanced by temporary, contractual or casual employees. It cannot also be held that the State has held out any promise while engaging these persons either to continue them where they are or to make them permanent. The State cannot constitutionally make such a promise. It is also obvious that the theory cannot be invoked to seek a positive relief of being made permanent in the post.”

33. The said principle was further enunciated in the case of State Of Manipur And Anr vs Ksh. Moirangninthou Singh, (2007) 10 SCC 544, and the following was observed by the Hon’ble Supreme Court therein: “6- The Division Bench held that the learned Single Judge had no power to direct amendment of the Act and the Rules, and we fully agree with this view since the Act can be amended only by the Legislature and the Rules can only be amended by the State Government, or the empowered under the Manipur Home Guards Act, 1947. However, the Division Bench upheld the other directions given in the Judgment of the learned Single Judge. 7- We are of the opinion that in view of the Constitution Bench Judgment of this Court in Secretary, State of Karnataka and Ors. v. Uma Devi and Ors., [2006] 4 SCC 1, this Court cannot direct regularization in service. Since the Court has no power to direct regularization, it also follows that it has no power to direct grant of benefits payable to the regular employees.”

34. Now for the purpose of the adjudication of the instant matter it is pertinent to reproduce the appointment letters of the petitioner nos. 3 to 6. Clause 1 which is common in all the offer letter is mentioned as follow:

35. Upon bare perusal of the said Clause of the offer letter, it is clearly established that the regularized appointment of the employees will be in effect from the date when the same was regularized and not from the date when they were appointed as causal employees with the respondent no.1.

36. Moreover, the as per Clause 6 of the said appointment letters, it is evident that the New Pension Scheme will applicable upon the petitioners and the same has been reproduced herein below:

37. As per the above said Clause, the offer letter clearly prescribes that the petitioner shall be governed by the New Pension Scheme.

38. It is pertinent to note that the said terms and conditions of the offer letters were being accepted by the petitioners. Moreover, the offer letter also states that the employment of the petitioners to the said posts is fresh employment. Therefore, no previous record employment is taken into account.

39. This Court is of the view that the petitioners’ despite acceding to the terms and conditions of their offer letter cannot later claim regularization from a past date. Similarly, with regards to their claims of the pension, they cannot claim pension as per CCS (Pension) Rules since, as per the offer letter, they have acceded to being governed by the New Pension Scheme.

40. The petitioners have misued the remedy of writ petition by filing the instant petition due to the reason that, the petitioners after consenting to the terms and conditions of their employment cannot go back on the same.

41. This Court is of the considered view that there is no violation of any rights of the petitioners. The respondent no. 1 is acting as per its statutory rules and accordingly, has provided the benefits to the petitioners’ as are applicable to them.

42. Furthermore, the petitioner cannot claim regularization from the date of their appointment as a casual employee having a vested right since the regularized employees are appointed on a vacant post by the competent authority unlike a casual employee, which the authorities may appoint as and when the need arises for the same.

43. The petitioner in the instant case is seeking writ of mandamus which cannot be demanded ex debito justiatiae, it may be issued by the Court’s discretion. The Courts under Article 226 must refrain from issuing a writ of mandamus in cases where there is no such illegality in the functioning of the statutory authorities against which the writ has been preferred.

44. The Court should exercise its power under Article 226 very cautiously and sparingly in exceptional circumstances only in a case where it is demonstrated that there is something palpably erroneous in the process of recruitment by the statutory authority.

45. In the instant case, there is no such circumstance which merits the interference of this Court. The petitioners do not have a legal right of claiming regularization from the date of its appointment as a casual employee and moreover, they are not entitled to any such pension claims as pleaded by them.

46. In view of the discussion in the foregoing paragraphs, I do not find any merit in the instant petition and the same is liable to be dismissed.

47. Accordingly, the instant petition stands dismissed along with pending applications, if any.

48. The order be uploaded on the website forthwith.