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Judgment
AM Bujor Barua, J
Heard Mr. C. Baruah, learned Senior Counsel for the appellants as well as Mr. R. Dubey, learned counsel for the respondent Indian Oil
Corporation Limited, Assam Oil Division (in short referred as IOC-AOD).
An employment notification dated 07.04.1995 was issued under signature of the ChiefPersonnel Manager (ER&S) of the respondent IOC-AOD for
six vacancies in the post of sweeper. In the notification it was stated that the six vacancies are temporary in nature.
As per the minutes of the Selection Committee held on 30.10.1995 and 31.10.1995 in theOffice of the Chief Personnel Manager, nine persons were
recommended for appointment against the unreserved category, whereas, two candidates were recommended against the SC category, two
candidates against the ST category and four candidates against the OBC category. The Selection Committee further provided that the selected
candidates in order of merit may be offered appointment at the minimum of the pay scale subject to being found medically fit and availability of
vacancy. As per the recommendation of the Selection Committee, the three appellants herein were appointed and joined their respective posts on
13.01.1997, 20.08.1997 and 20.08.1997 respectively.
The appellants made a claim that out of the candidates, who were appointed pursuant to therecommendation of the Selection Committee in its
meeting of 30.10.1995 and 31.10.1995, eleven of the candidates have been confirmed in their services, whereas, the appellants who were also
appointed under similar circumstance and as per the same selection procedure have not been confirmed. Consequently, the appellants made a claim
that they be also regularized/confirmed in the same manner as has been done in case of the eleven other similarly situated candidates.
In furtherance of their claim for being regularized, several representations were made fromtime to time and in consideration thereof, various
communications were made. In one of such communication dated 20.08.1999 of the SPM (ER&S), it is stated that although the temporary employees
do not get all the benefits applicable to the permanent employees, but upon their request being examined, the authorities took the view that as the
appellants are working against the permanent vacancies, therefore, the benefits of casual leave and medical facility be given to them. Another
communication from the Chief H.R. Manager dated 28.03.2006 indicates that the question of regularization of the service of the temporary employees
have been taken up with the competent authority in the Headquarters and that the same has been pursued from time to time. The said two
communications give an indication that the claim of the appellants for being regularized was under consideration of the respondent authorities in the
respondent IOC-AOD.
But, when nothing materialized, the appellants preferred the WP(C) No. 5065/2009, which wasdisposed of by the Judgment and Order dated
22.09.2017, along with the another writ petition.
In the course of hearing of the writ petition, the appellants relied upon the Judgment of theSupreme Court rendered in Peoples Union for
Democratic Rights & Ors â€"vs- Union of India & Ors reported in (1982) 3 SCC 235 to contend that under Article 23 of the Constitution of India,
in the event an employee was paid less than the minimum wages, it would amount to forced labour. Reliance has also been placed on the Judgment of
the Supreme Court rendered in the case of the State of Punjab & Ors â€"vs- Jagjit Singh & Ors. reported in 2017 (1) GLT (SC) 47 and by referring
to paragraph55, it was contended that an employee engaged for the same work cannot be paid less than another employee and it is the duty and
responsibility of a welfare state to ensure payment of appropriate wages. Accordingly, the appellants raised the contention that they are entitled to be
regularized in their services and be paid the same salary and allowances as payable to the regular employees.
On the other hand, it was contended on behalf of the respondent IOC-AOD that theemployment notification of 07.04.1995 indicated that the
recruitment would be in respect of six temporary vacancies and therefore, the appellants having been appointed pursuant to the said notification, they
cannot claim the right of being regularized.
In appreciation thereof, the learned Single Judge by the Judgment and Order dated 22.09.2017had arrived at a conclusion that the claim of the
appellants are covered by the decision of the Supreme Court in Peoples Union for Democratic Rights & Ors(Supra) and Jagjit Singh(Supra) and held
that the appellants are entitled to have their salary at the minimum of the regular pay scale.
Being aggrieved by the non-consideration of the claim for a direction to be regularized inservice, the present appeal has been preferred. It is taken
note of that in paragraph-13 of the writ petition averment has been made that eleven candidates appointed along with the appellants pursuant to the
same selection process have been confirmed by the respondents authorities. In reply thereof, the respondents IOC-AOD had not denied such
averment and on the other hand, in paragraph-19 had admitted that in fact the eleven candidates who were appointed pursuant to the same selection
process, as that of the appellants, have been confirmed in their service. The respondent authorities in their affidavit seeks to justify the same by taking
a stand that the eleven candidates were regularized as they were above the appellants in order of merit in the select list, pursuant to which they were
appointed. The list of the eleven candidates who were so regularized finds place at page 56 of the memo of the appeal which also co   ntains the
name of the applicants by showing that they are not confirmed as yet.
From the employment notification dated 07.04.1995 it is discernible that there is no suchindication that only some of the candidates who are to be
appointed pursuant to the process would be regularized in the due course, as per their order of merit and that the remaining selected and appointed
candidates would not be so regularized. The employment notification uniformly provides that the appointments to be made would be against temporary
vacancies, and although, it refers to six numbers of vacancies, but it is an admitted position that nine unreserved candidates and eight reserved
category candidates were recommended and appointed. It has also an admitted position that out of the same, eleven had been confirmed in service.
In view of such factual situation the provision in the employment notification that therecruitment would be for six temporary vacancies had lost its
relevance and the same itself also cannot be a reason to regularize eleven of the appointed candidates while not regularizing the others.
In the absence of any such provision in the employment notification or in the minutes of theselection that some of the selected candidates would be
regularized while others would be not, the procedure adopted by the respondent authorities to subsequently regularize some of such selected and
appointed candidates, while refusing the same treatment to the others would be arbitrary and discriminatory and the differential treatment given on the
basis of the merit position in the initial select list by itself cannot save such discriminatory conduct. In the absence of any such indication at the time of
recruitment, no intelligible differentia can be noticed between the selected candidates merely on the basis of their merit position in the select list so as
to entail a differential treatment for the purpose of regularizing some of them while refusing others.
Accordingly, it is concluded that the conduct of the respondent authorities inconfirming/regularizing eleven of the similarly situated candidates who
were selected and appointed along with the appellants, while refusing to regularize the service of the appellants in a similar manner, violates Article 14
of the Constitution of India.
The differential treatment on the basis of the position in the select list do not form a reasonable classification for the purpose of regularizing or not
regularizing in the service.
It is further taken note of that the employment notification of 07.04.1995 clearly indicates thatthe appointments were made against sanctioned
vacancies, although they were indicated to be temporary vacancies. But the factual situation is such that all the appointees pursuant to the said
employment notification continues to remain in employment till date i.e. approximately more than 20 years and it by itself is an indication that the
sanctioned vacancies had lost its status to be claimed as a temporary vacancies.
Further it is also taken note of that the recruitment of the appellants were made by following theconstitutional scheme i.e. through an employment
notification and selection, where others have also participated. In paragraph 53 of the judgment rendered in Secretary, State of Karnataka â€"vs-
Umadevi & Ors,. reported in (2006) 4 SCC 1, it was provided that even in cases where appointments are irregular, i.e. without following the
constitutional scheme, but where the appointees continued to remain in service for more than 10 years as of the date of the said judgment without any
aid of any order from any Court but against sanctioned vacant post, are entitled to a consideration for regularization as one time measure. In
comparison thereof, the factual situation of the appellants is much better off, inasmuch as, they were appointed against sanctioned vacant post by
following the procedure of constitutional scheme and therefore, a right of regularization had accrued to them.
Mr. R. Dubey, learned counsel for the respondent IOC-AOD has produced the information thatsome of the candidates who were selected and
appointed along with the appellants were confirmed/regularized on 13.05.1997. The information provided is that Khargadhar Sonowal appointed under
the ST category, Hema Kanta Gogoi and K. Nagbhusan Verma appointed under the OBC category and Bir Bahadur Sonar and A.U. Rao appointed
under the unreserved category, were all regularized/confirmed on 13.05.1997.
As we have already arrived at a conclusion that there does not exist any intelligible differentiabetween the candidates selected and appointed
under the same selection, there cannot be a differential treatment as regards their regularization and confirmation and further such differential
treatment cannot be sustained by stating that it was done on the basis of the order of merit of the selection. Even such stand is unacceptable,
inasmuch as, persons below in the select list have been regularized and confirmed, whereas, those above in the order of merit are yet to be
regularized/confirmed. No other reason has been disclosed by the respondent authorities for meting such differential treatment. In the circumstance,
the only conclusion that can be arrived is that there was discrimination and biasness in effecting the regularization/confirmation and the procedure
adopted by the respondent authorities violates Article 14 of the Constitution of India.
In the circumstance, we are of the considered view that ends of justice will be met, if therespondent authorities in the IOC-AOD regularize the
services of the appellants and that such regularization along with the benefits accrued thereof be given w.e.f. the same date as to when the last of the
eleven candidates was so confirmed or regularized. Accordingly, the respondent authorities are directed to regularize the services of the appellants
from the date when the last of the eleven candidates were confirmed or regularized and all the consequential benefits of being regularized be provided
to them from the said date.
The aforesaid be done within a period of three months from the date of receipt of the certifiedcopy of the order.
   Writ appeal is accordingly disposed of.