A. Subramaniam vs Lieutenant Governor And Others

Sabyasachi Bhattacharyya, J

The brief facts of the case are as follows:-

The writ petitioner was appointed as Chowkidar on consolidated pay on November 1, 1995 under the Pradhan, Garacharma-II Gram Panchayat (currently Ward No. 18 under the respondent No. 3-Municipal Council). Thereafter, despite the petitioner working continuously from the date of appointment, the Pradhan, Garacharma-II Gram Panchayat terminated the service of the petitioner on January 5, 2001 without following the mandatory provisions of the Industrial Disputes Act, 1947. Being thus aggrieved, the petitioner filed a conciliation proceeding before the Conciliation Officer, which end in failure to compelling the reference of the dispute by the appropriate Government by the Labour Court, giving rise to I.D. Case No. 19 of 2004.

Upon contested contrary, the Labour Court passed an awarded dated July 30, 2008, holding petitioner's termination illegal and held that the petitioner was entitled to be reinstated into service as Chowkidar, subject to his opportunity against regular vacancy, on usual scale of pay, subject to further benefits of emolument to be fixed from time to time by the Administration. The Labour Court further held that the period of disengagement of the petitioner was to be taken notionally as period of employment for continuing in service without any monetary benefits.

In the year 2012, the petitioner filed a writ petition before this Court, bearing WP No. 025 of 2012, seeking regularization to the post of Peon-cum-Chowkidar against regular vacancy. On July 10, 2012, the writ petition was disposed of with the direction that, in the event, any scheme be formulated in future, wherein the petitioner may be entitled to be absorbed, the case of petitioner may be considered in accordance with law.

Thereafter a second writ petition bearing W.P. No. 183 of 2013, filed by the petitioner, was disposed of on July 12, 2013 by passing a direction on the respondent authorities therein that, in the event any scheme is framed in future, the petitioner may be considered for absorption in accordance with law and in the event any vacancy notification is published, the petitioner shall be entitled to apply for the post, provided he is otherwise eligible for the post.

The petitioner preferred a Mandamus Appeal against such order, being MAT No. 018 of 2013, which was disposed of by a Division Bench of this Court on August 27, 2013, modifying the order of the Single Bench to the extent that the respondents would be free to frame a scheme within a period of six months.

On December 15, 2014, the Under Secretary to the Government of India, Ministry of Home Affairs, wrote a letter to the respondent No. 1 requesting the said respondent no. 1 to send the status of the Daily Rated Mazdoors employed under the Andaman and Nicobar Administration, including those who worked for more than 10 years.

On January 14, 2015, contrary to the direction of this Court, the respondent No. 2, that is, the Chief Secretary, Andaman and Nicobar Administration, rejected the petitioner's prayer for regularization of service of the petitioner. Vide order dated August 11, 2015, a Coordinate Bench of this Court dismissed the writ petition of the petitioner against such decision of the respondent No. 2. In the said order dated August 11, 2015, the factual scenario was taken into consideration, being that no scheme had been framed by the Administration, and accordingly the writ petition was dismissed.

In the month of April, 2015, the respondent No. 1 brought six Panchayats, including the Gram Panchayat, Garacharma II, within the limits of the Port Blair Municipal Council, which is the respondent No. 3 herein. Subsequently the petitioner and other similar Daily Rated Mazdoors (DRMs) started working under the respondent No. 3 and have been working till date on daily wages.

The respondent No. 3 adopted a resolution in a meeting held on November 24, 2015, wherein it was unanimously decided that those daily wage workers who are in employment for years together in the newly included six wards shall be protected and will be allowed to work continuously under the respondent No. 3.

On the strength of a resolution vide order No. 111 dated January 8, 2016, the petitioner was engaged on muster roll under the administrative branch of the respondent No. 3 with immediate effect and till date has been performing his duties and responsibilities as a muster roll worker. A copy of such order dated January 08, 2016 is annexed at page 48 (Annexure P-8) of the present writ petition. The petitioner subsequently made a representation before the respondent Nos. 1 and 3 to consider his length of service and to regularize his service.

Several such representations made by the petitioner on July 23, 2016, April 18, 2017 and December 15, 2017 are annexed to the writ petition as Annexure P-12 collectively.

However, such representations were not considered, for which the petitioner took out another writ petition bearing W.P. No. 144 of 2018. The said writ petition was disposed of by a Coordinate Bench on August 16, 2018, directing the respondent No. 4 therein to consider and dispose of the representations of the petitioner and to pass a reasoned order after giving him an opportunity of hearing within four weeks from the date of communication of the order and to communicate a copy of the decision to the petitioner at the earliest. The petitioner was further giving liberty to raise before the authorities the issue that similarly circumstanced people had already been absorbed, but the petitioner's case had not been considered at par with those persons. If such an issue was raised before the authority, the authority was given the liberty to decide the same.

Subsequently, on November 14, 2018, the respondent No. 3 passed an order, thereby rejecting the petitioner's claim for being made permanent.

Challenging the said order dated November 14, 2018, the present writ petition has been filed.

It is argued by learned counsel for the petitioner that, by an order dated May 10, 2011, 176 daily wages Mazdoors, who were working under the respondent No. 3 earlier for years together, had been regularized by the respondent No. 3. As such, the petitioner, being similarly placed and circumstanced, ought to have been regularized as well. Learned counsel relies on the principal of legitimate expectation on the premise of Article 14 of the Constitution of India.

It is further argued that the previous direction of this Court dated August 16, 2018 was not complied with by the respondent No. 3, since the impugned order speaks in general terms of the difficulties in regularizing the appointment of the petitioner and quotes a judgment of the Hon'ble Supreme Court, but does not deal at all with the individual case of the petitioner. As such, the order dated November 14, 2018 is in complete violation of the said direction given by the coordinate Bench. As such, it is argued, the said order should be struck down and the petitioner ought to be absorbed as a regular worker upon regularization of his service.

It is argued that the period of service of the petitioner as a Daily Rated Mazdoor with the Panchayat since 1995 ought to be taken into account while calculating the service tenure of the petitioner.

Learned counsel appearing for the respondents, on the other hand, argues that the Hon'ble Supreme Court judgment referred to by the respondent No. 3, being that of Secretary, State of Karnataka & Ors. vs. Umadevi and Ors., reported at AIR 2006 SC 1806, also at (2006) 4 SCC 1, squarely debars the respondent no. 3 from making the petitioner a permanent worker.

It is argued that since the petitioner, knowing fully well the consequences, joined as a daily wage Mazdoor, he cannot claim any right of regularization on the strength of such appointment.

It is further argued that the petitioner has been habitually filing litigations and this is one of the several rounds of attempts made by the petitioner for regularization. Having failed on the earlier occasions, the prayer of the petitioner cannot now be permitted.

It is further submitted on behalf of the respondents that the regularization claimed by the petitioner is within the domain of the respondent No. 3 and the Court ought not to interfere in such administrative decisions. It is argued that there are 1190 casual Mazdoors working with the respondent No. 3 and in the event the petitioner is allowed to be regularized and made permanent, a floodgate will be opened, which would be impossible for the respondent No. 3 to meet, since all the 1190 casual Mazdoors cannot be accommodated as regular employees, not only due lack of vacancy but also due to the entailing huge financial burden, particularly contrary to Umadevi (supra).

It is further argued that the decision to regularize 176 casual workers was taken in the year 2011 by the Administration. The petitioner, in the year 2016, and thereafter in 2017, could not take advantage of such a one-time decision, having no precendential value, to claim a right of regularization.

As such, it is argued by the respondents that the writ petition ought to be dismissed.

Several questions crop up in the instant case. First, whether the petitioner has lost his right to pray for regularization after the order dated August 11, 2015 dismissing the writ petition filed by the petitioner on similar score.

It is seen from a plain and meaningful reading of the said order, annexed to the instant writ petition, that the same was not passed on the merits of the petitioner's claim but was merely a reiteration of the factual matrix that no scheme had been framed as of that date by the Administration. Moreover, the said judgment was superseded by the subsequent order dated August 16, 2018 passed by the coordinate Bench of this Court in W.P. No. 144 of 2018, whereby the respondent No. 4 therein was directed to consider and dispose of the writ petition of the petitioner and to pass a reasoned order after giving him an opportunity of hearing. The petitioner was, by the said order, given the liberty to raise before the authorities the issue that similarly circumstanced people have already been absorbed, but the petitioner's case has not been considered at par with those persons.

The argument of the respondents, that the petitioner cannot take advantage of a 2011 decision, does not hold water, simply because the petitioner was absorbed by the respondent No. 3 only in the year 2015 and started giving representations in that regard from the next year, that is, 2016. It was impossible for the petitioner to have approached the respondent No. 3 immediately after 2011, since the petitioner was then working with the Panchayat, which was in charge of the region at that juncture.

As far as the question of the applicability of Umadevi (supra) is concerned, there are several distinguishing features between the said judgment and the present case.

In Umadevi (supra), the proposition laid down revolved around the question whether Daily Rated Mazdoors could, on the strength of their casual employment, claim to be regularized as permanent employees. In the said case, the Hon'ble Supreme Court pitted the rights of such daily wagers against regular recruits and held that the two were not on an equal footing.

However, in the present case the petitioner's claim is not merely on the strength of his casual employment at the inception, but on the legitimate expectation that Article 14 of the Constitution of India would be adhered to in the present case, since 176 other Daily Rated Mazdoors, who were similarly circumstanced and situated as the present petitioner, were regularized on the ground that they had been working for more than 12-13 years and would have no future otherwise. Although it was a one-time relaxation of age/ qualification, it was a relaxation all the same, that too in respect of Daily Rated Mazdoors, who stood on a similar footing as the present petitioner.

In fact, taking into account the total period of service rendered by the petitioner, from 1995 with the Panchayat and thereafter from 2015 with the respondent No. 3, that total tenure of service of the petitioner would come to about 24 years, which is double that of the 176 DRMs who were regularized in the year 2011 by the respondent No. 3 itself.

Moreover, in Umadevi's case it was held that a direction, that all casual employees be made permanent, creates a heavy financial burden on the public sector undertaking-in-question, which might cause the said undertaking to collapse under its own weight.

However, as distinguished from the said reported judgment, the present writ petitioner is not claiming that any and every casual employee be made permanent, but claims only on the strength of his exceptionally long tenure of service, claiming an equal right as the similarly circumstanced 176 DRMs who were regularized by the respondent No. 3. The said logic also takes care of the flimsy argument of the respondent No. 3 that 1190 casual mazdoors were working with the respondent No. 3 and all of them could not be absorbed or made permanent due to the financial burden accompanying it. It is undisclosed by the respondents as to how many of such 1190 mazdoors had a similary service tenure as the present petitioner and as such the said reasoning is not acceptable.

The other question which may arise is, whether the petitioner's service with the Panchayat since 1995 can be taken into consideration for regularizing the petitioner, or merely his service with the respondent No. 3 is to be looked into, which would denude the petitioner of the very basis of his claim of regularization, that is, his long service tenure.

However, the moment the respondent No. 3 took over the Administration of the area-in-question from the local Panchayat, it is obvious that the respondent No. 3 took on all the duties and responsibilities of such Panchayat as well, along with the necessary consequences thereof. The said proposition was vindicated by the respondent No. 3 itself by consciously absorbing the petitioner and others, who were engaged on the Muster Roll vide order No. 111 dated January 8, 2016, being annexure P-8 at page 48 of the instant writ petition.

In such view of the matter, the petitioner's service tenure for the purpose of regularization is on the same, if not better, footing as the 176 Daily Rated Mazdoors similarly made permanent in 2011, by considering the petitioner's service tenure with the Panchayat as well, taking the tenure to about double the number of years of service of the said 176 persons, who were regularized.

Since the petitioner was initially employed, although on a temporary basis, by virtue of a regular resolution taken by the Panchayat-in-question, having all requisite qualifications for the said post of Chowkidar, it cannot be held that such employment of the petitioner was a "back-door entry", as contemplated in Umadevi's case.

Hence, in view of the aforesaid several distinguishing features between the factual matrix of Umadevi (supra) and the present case, the proposition laid down therein is not attracted at all to the present case.

In view of the petitioner having otherwise proved his eligibility at the time of entry to service and having put in 24 years of service, the legitimate expectation of the petitioner is founded on the Constitutional guarantee of equality embodied in Article 14 of the Constitution of India. Thus, there is no reason for this Court to relegate the petitioner to a further consideration by the respondent No. 3-authority, since such an exercise was already completed pursuant to the direction dated August 16, 2018. The respondent No. 3 clearly expressed its views by the impugned order dated November 14, 2018, however, without considering the merits of the petitioner's own case at all but on a general conspectus. As such, a further relegation of the petitioner to the same authority would result in an injustice to the petitioner and would waste further valuable time for the petitioner to get the benefits he is entitled to.

Thus, in view of the discussions made above, the petitioner has been amply able to proof his entitlement on the ground of legitimate exception as well as the right to equality, as enshrined in Article 14 of the Constitution of India, with the similarly circumstanced 176 Mazdoors who were regularized and made permanent by order no. 2213 dated May 10, 2011 taken by the respondent No. 3 (annexure P-9 to the instant writ petition).

Accordingly, W.P. No. 293 of 2018 is allowed, thereby directing the respondent No. 3 to regularize the service of the petitioner in the same or similar cadre in which he is working as a Daily Rated Mazdoor, as a regular worker on permanent basis, on or before January 10, 2020. However, service benefits other than retirement would accrue to the petitioner taking his date of joining from the date of regularization/being made permanent and/or from January 11, 2020, whichever is earlier.

It is, however, made clear that in the special facts and circumstances of this case, an exception is carved out of the proposition expounded in Umadevi's case for the petitioner

Such exception is evident from the facts and circumstances peculiar to this case and distinguishes it from the general principle laid down in Umadevi (supra). However, the present judgment shall not be construed as a precedence contrary to the principle laid down in Umadevi (supra), which holds the field as far as the proposition therein is concerned.

There will be no order as to costs.

Urgent certified copy of this order, if applied for, be supplied to the parties upon compliance of usual formalities.