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Judgment
Ali Mohammad Magrey, J
By the present writ petition, the petitioners are challenging and seeking setting aside of the order dated 10th May, 2019, hereinafter to be referred as ‘impugned order’ passed by the Central Administrative Tribunal, Chandigarh Bench, for short Tribunal, in OA no. 062/0004 of 2016 titled Saif-ud-din Lone & others v. Union of India and others and in consequence whereof to dismiss the OA of the respondents, on the grounds taken in the memo of petition.
The Tribunal while deciding the OA, in terms of the impugned order, has held that the action of the respondents/ petitioners herein in not regularizing the services of the applicants in the order of seniority and to the extent of vacancies available was uncalled for, and therefore, the respondents were directed to delink the regularization of casuals in Kashmir from the casuals engaged in the rest of the country and regularize the services of the applicants in the order of seniority w.e.f. 2003 against the post of Production Assistant to the extent of available vacancies with all consequential benefits. It has further been directed that the relevant exercise must be carried out within three months.
It is stated in the memo of writ petition that the direction for regularization in favour of the respondents/ petitioners therein, apart from being contrary to law is also prejudicial to the interests of the petitioners as it has the effect of getting the demands of all the casual engagees all over the country for similar benefit. Given the nature and functions of the petitioners, it requires to engage Anchors and Presenters on short term basis so that fresh faces are inducted on contractual basis and if the direction of the Tribunal is allowed to operate, it will, result in claims for regularization from all Anchors, Presenters, Producers which would affect the interests of the petitioners.
It is further stated that the respondents have been engaged from time to time by the Regional News Unit, Doordarshan Kendra, Srinagar. Respondent no. 1, namely Sh Saif-ud-din Lone is stated to have been engaged initially in November, 1991 to render assistance in Scenic section. Respondent no. 2, Mubashir K. Fazili, is shown to have been engaged as Casual Typist in July, 1993. Respondent no. 3, Sh. Sayid Zaffar Islam Indrabi has been engaged as Casual Copyist in January, 1994. Respondent No. 4, Sh. Zulfikar Hamid, has been engaged to provide Assistance in News in March, 1995 and the Respondent no. 5, Ms Tahira Wahid has been shown to have been engaged as Casual Copyist in RNU in August, 1996. None of the respondents is stated to have the functional requirement at the time of their initial engagement for the post of Production Assistant. The engagement of the petitioners/ respondents herein was not made on the basis of any regular selection process but were engaged for a short period of 89 days or till regular selections against the said posts were made by the Staff Selection Commission whichever was earlier.
The respondents had filed the OA No. 633-JK-2013 before the Tribunal seeking the relief of regularization which was clubbed with TA No. 59-JK-2013 filed by the adhoc clerks of the All India Radio, Srinagar. The OA no. 633-JK-2013 filed by the respondents herein was disposed of by the Tribunal in terms of order dated 7th July, 2015 in the following terms:
“The respondents in OA No. 633-JK-2013 are also directed to take a view on the claim of the applicants in light of observations made hereinabove as also the recommendations made by the authorities in favour of the applicants and considering that their colleagues stand regularized as both the institutions are under the same command of Ministry of Information and Broadcasting more so when the case of the applicants in this OA has not even been considered by the authorities till date.”
The petitioners challenged the said order of the Tribunal by the medium of a writ petition, SWP no. 2499/2015 which came to be dismissed by the Writ Court in terms of Order dated 30.11.2015 holding that since there is no order passed by the Tribunal asking the petitioners to pass a particular order in a certain manner in favour of the respondents, therefore, the petitioners cannot be said to be aggrieved of the order.
The matter was subsequently considered by the Director General of Doordarshan in detail and the claim of the respondents was rejected in terms of order dated 20th January, 2016 which came to be challenged by the respondents before the Tribunal by filing OA no. 062/00004/2016. The claim made by the respondents in the OA was resisted by the petitioners by filing counter affidavit and taking all the grounds which formed basis for rejection of the claim. The Tribunal during the course of hearing on the said OA passed an order dated 11.01.2018 directing the Ministry of Information & Broadcasting to take a final call in the matter as to whether the services of the respondents were to be regularized in view of the recommendations of the Standing Committee or not and in compliance whereof, the petitioners issued a speaking order dated 16th March, 2018, rejecting the claim of the respondents in the following terms:
“NOW THEREFORE, in the light of above, the recommendations of the Standing Committee on Labour for regularization of casual workers/ artists of Radio Kashmir, CBS Radio Kashmir and Doordarshan Kendra, Srinagar have been considered in this Ministry at the level of Hon’ble Minister for Information & Broadcasting and it has been decided not to accept the recommendations. The decision of this Ministry has been conveyed to the Standing Committee on Labour.”
Since the order of rejection supra, came to be issued during the pendency of the OA, therefore, the respondents felt constrained to challenge the order of rejection as well by seeking amendment to the OA which was allowed.
After considering the rival submissions and the material placed before it, the Tribunal passed the impugned order. The order as such is challenged on the grounds taken note of hereinbefore.
We have heard learned counsel for the parties.
Before the submissions made by the learned counsel for the parties are appreciated, a brief relook at the controversy is desired to be noted down in the first instance.
The petitioners have employed the respondents somewhere in 1990’s and they worked according to the order of their engagement as casual assignees; however, their services were not till 2013 when they first approached the Tribunal with OA no. 633-JK-2013 seeking regularization of their services. Their case before the Tribunal was that despite having worked in most difficult of times when nobody was willing to run the programmes of the petitioners, owing to threats to their lives and having been promised of regularization if they continue to discharge their duties, have not been regularized.
The Tribunal being convinced of the case having been made out by the petitioners/ respondents herein, granted relief in their favour in the following terms:
“In the light of the above observations, action of the respondents in not regularizing the services of the applicants in the order of seniority and to the extent of vacancies available was uncalled for. Hence, we direct the respondents to delink the regularization of casuals in Kashmir from the casuals engaged in the rest of the country and regularize the services of the applicants in the order of seniority w.e.f. 2003 against the post of Production Assistant to the extent of available vacancies with all consequential benefits. The relevant exercise must be carried out within three months. Mas, pending any, are also disposed of accordingly.
While passing this order, we would say that the relief given in this OA is not one to be acted as a precedent in other matters of regularization of civilian employees in the country as this case which relates to the State of Kashmir is treated on a different footing from casual employees in the rest of the country.”
Aggrieved of the order of the Tribunal, the petitioners challenge the same inter alia on the ground that the respondents cannot be treated to be a different class and delinked from those working in other parts of the country as there is no such provision, policy, rule or scheme that favours such concession. That course is said to open a flood gate for voluminous litigation across the country.
Mr S. N. Rattanpuri, learned counsel for the petitioners, submits that on the respondents had been engaged on short term basis to perform certain duties and such engagement was not made against clear vacancies as the posts held by the respondents are public posts which required to be filled up through a proper selection process.
The learned counsel further submits that in absence of any support from the Rules, scheme, statute or any provision of law, the claim of the petitioners cannot be exceeded to and the Tribunal has grossly erred in law to direct the petitioners to regularize the services of the respondents who are not engaged against substantive posts.
Learned counsel for the petitioners submits that this Court in a somewhat similar matter titled Director General, All India Radio & Anr v. Casual Labour Employees Association, Radio Kashmir, Srinagar, bearing LPAOW No. 03/2019 decided on 24th February, 2022, has set-aside the judgment of the Writ Court as also the order of the Tribunal granting relief in favour of the respondents before the writ court.
Learned counsel for the petitioners denied to have made any assurances to the respondents for their permanent absorption because the petitioners have their laid-out policy governing engagement and payment to the casual assignees. He submits that the petitioners engage number of casual assignees in Prasar Bharti (AIR/DD) for several years and the petitioners being a Media organization its requirement is to engage casual assignees to cater to the requirement of variety of viewers/ audience by way of generating the suitable contents. He submits that if at all these works are taken from the regular employees, then the petitioners run the risk of limited content or a large work force which is neither desirable nor economically viable.
Learned counsel for the petitioners submits that the recommendations of the Standing Committee of Parliament on Labour were examined by the respondents in the given facts and circumstances and the administrative, financial implications along with Pan-India ramifications were evaluated. Learned counsel submits that on such evaluation the petitioners felt that in the absence of a regular and continuous need of a particular category of casual assignee in a Kendra/ RNU, the very idea of appointing a person on whole time regular basis and that too by sourcing the vacant posts from other Kendras where there are similar casual assignees working for years, is neither functionally justified nor based on equity and fairness.
On the other hand, Mr R. A. Jan, learned Senior Counsel, submits that the order of the Tribunal to grant the relief in favour of the respondents is essentially and primarily passed while considering the fact that the respondents make a distinct class for having worked in difficult situation and in recognition of such service, they deserved the relief granted by the Tribunal.
The learned senior counsel further submits that this Writ Court being the court of justice has to bear in mind the peculiar facts of the case to come to the rescue of the respondents who have been made to suffer by the wrong doings of the petitioners.
The learned senior counsel furthermore submits that it was obligatory on the part of the petitioners to have adhered to the promises made by them to the respondents for regularization of their services moreso in view of the recommendations of the Standing Committee on Labour, (2015-2016) Ministry of Information and Broadcasting, Government of India, which, while taking into consideration the vast experience and dedicated service rendered by the respondents in hostile conditions, urged that they may be considered for regularization for the rest of their service period and such relaxation, may be made as a onetime appreciable gesture so that they get all the financial benefits available to regular employees and are able to lead a peaceful retired life.
The learned senior counsel submits that there are numerous communications made on the subject by the petitioners inter-se which reflect their positive approach in seeking regularization of the respondents.
The learned senior counsel further submits that the respondents expected that petitioners would reward them for the exceptional services rendered by them in the department in the hostile circumstances, but they were miserably disappointed on coming to know that the petitioners backtracked from their promises as reflected in the various communications addressed by them in this behalf.
Mr Jan, learned senior counsel, further submits that the denial of the benefit to the respondents by the petitioners amounts to negating their very own stand as also the recommendations of the Standing Labour Committee. Mr Jan, learned Senior Counsel vehemently argued and reiterated the stand taken in the OA before the Tribunal that the Standing Committee on Labour had made recommendation for regularization of the respondents on proper examination and evaluation of the merit. Mr Jan, learned Senior counsel, made reference to these recommendations as also the Action Taken Report of the Government of India dated 26.05.2016 in this behalf to lend force to his submission that the respondents were in fact entitled for regularization.
In rebuttal Mr S. N. Rattanpuri, learned counsel for the petitioners, submits that the recommendations of the Standing Labour Committee have no binding force under law and are only working as a guidance to the Government and the nature of such recommendations make it liable for acceptance or rejection by the Government. The Learned counsel further submits that it is solely the discretion of the Government to act upon such recommendations or turn it down for some reasons. The learned counsel further submits that respondent, Union of India, has already, on proper examination of the recommendations of the Standing Labour Committee, not accepted the same which is reflected in the decision notified vide order No. 16.03.2018 impugned in the OA.
We have considered the submissions made.
There is absolutely no dispute over certain facets of the case viz. the respondents have been engaged by the petitioners as casual assignees on different dates in 1990’s for short periods; they performed the assigned duties; upon having not been absorbed on permanent establishment they filed OA before the Tribunal; the Tribunal granted them the relief on exceptional circumstances; there being no Policy, Scheme, Rule, Statute that envisages their absorption on permanent establishment even in exceptional circumstances so on and so forth.
In the above background, the court is left with one question to answer, i.e. Whether the Tribunal was justified to grant the ordered relief in favour of the respondents in absence of any Policy, Scheme, Rule, Statute or any other provision of law, or not?
True it is that the respondents have rendered their services for the petitioners in most hostile circumstances and they have successfully managed to run the show for the petitioners probably in lieu of the promises extended by the petitioners for their permanent absorption against the posts held by them and this makes them class a part. But, does it confer upon them a special privilege, being the members of such distinct class, to be granted the relief as awarded by the Tribunal?
The respondents do not point out any single instance that indicates that the petitioners have violated any principle of law, or a statute or even a scheme or policy that provided for any concession in exceptional cases in favour of those casual employees who dare to perform their duties in hostile conditions and make a distinct class. In-fact the respondents do not even claim so.
On the respondents own showing their very engagement is but a casual assignment for a definite duration, therefore, not made against a post in any manner whatsoever.
This Court, in case titled Director General, All India Radio & Anr v. Casual Labour Employees Association, Radio Kashmir, Srinagar bearing LPAOW no. 03/2019 decided on 24th February, 2022, of which incidentally, I am the author, has laid down a principle that it is not open for the Tribunals or the Writ Courts to confer travel beyond what is expressly provided by law, rule or scheme and the eligibility clause, nor should it confer a jurisdiction upon such forums/ courts/ tribunals to help in stretching the same beyond what is expressly provided by law. While relying upon judgment of the Supreme Court laid down in case titled Anurag Kumar Singh v. State of Uttrakhand (2016)9 SCC 426, this Court has held that courts cannot give any direction contrary to the Statue or Rules made thereunder in exercise of judicial discretion. Taking cue from the judgment of the Hon’ble Apex Court Supra, it is held therein that where there is one lawful option, the discretion does not exist as the discretion assumes the freedom to choose among several lawful alternatives.
The contention of Mr R. A. Jan, learned senior counsel, that a right has accrued to the respondents for claiming regularization on the basis of the recommendations of the Standing Labour Committee is not well founded as the Standing Labour Committee recommendation cannot be a substitute for the Policy in the shape of Rule or law governing such regularization. Therefore, the contention having no substance, merits rejection. The regularization of services could be recognized under a particular Rule/ Policy of the Government and not otherwise. There is absolutely no scope for two opinions over it.
In the above background the writ petition succeeds and is allowed as such. The impugned order is set-aside and in consequence whereof the OA filed by the respondents is also dismissed. It goes without saying that nothing observed in this judgment shall prevent the petitioners from considering the case of the respondents in terms of the policy presently in operation notified in terms of Circular dated 5th September, 2019, which provides for a mechanism for their permanent absorption in the department. The eligibility criteria, in such, eventuality, shall not form an impediment for the authorities to take a view favorable to the respondents.
The writ petition is accordingly disposed of on the above lines.