Ram Lakhan vs Food Corporation of India

SWP No. 2538 of 2000:

Mr. Dhiraj Singh Thakur, J. - By means of the present petition, the petitioner challenges the order dated 23.2.2000, passed by the respondent

No. 3, whereby his case for regularization of his services against a Class IV post has been rejected on the ground that the petitioner had been

working as a Gardener in the respondent department on part time basis and, therefore, not eligible for regularization.

The case of the petitioner, as set out in the petition is that he came to be appointed as a Gardener in the year 1978, against a regular post

created on account of transfer of one Swami Nath, who was also working as a Gardener.

The further case of the petitioner is that it was a misnomer to call the petitioner as a part-time worker in as much as the petitioner had been

working full hours in both the offices of the Food Corporation of India i.e. Regional office as well as District office at Jammu. With a view to

support and buttress this assertion, counsel for the petitioner placed reliance upon an office order No. Estt-1(8)/86/5739 dated 4.11.1986, copy

whereof has been placed on record as Annexure D, wherein the name of the petitioner figures at Sl. No. 2, in the list of casual labourers who were

working in the Regional office of the respondent department. The petitioner has been shown to be engaged as Mali w.e.f. 1978, on part time basis

@ Rs. 80/- p.m. against a regular post.

Counsel for the petitioner further stated that this assertion of the petitioner had not been specifically controverted in the reply filed by the

respondents that the petitioner had been working in the office of the official respondents rather than as a gardener.

The petitioner has also asserted discrimination qua Madan Lal, who was working as a Canteen Boy but subsequently regularized by the official

respondents. It was urged that there was no post of Canteen Boy in the department yet, on account of his continuous working in the office of the

respondents, he was absorbed in service according to the policy framed by the respondents for such regularization.

In the reply affidavit filed by the respondents, a stand has been taken that the services of the petitioner were availed of as a Mali (Gardener) on

part time basis only and that the said engagement of the petitioner had no connection at all with the post held by the aforementioned Swami Nath,

and further that any vacant post in this regard was required to be filled up in accordance with the procedure prescribed after proper advertisement

and interview. With regard to the regularization of Madan Lal, as Canteen Boy, it was stated that he was performing his duties as a whole-time

casual labourer and hence regularized.

SWP No. 2031 of 12:

In this petition, the petitioner challenges the order dated 10.9.2012, whereby the services of the petitioner as part-time Mali, were brought to an

end on the ground that the petitioner had already been dis-engaged vide order dated 26.09.2001, and that the subsequent order dated 12.6.2012,

by virtue of which the petitioner was held entitled to Rs.7 per day, was issued inadvertently.

Counsel for the petitioner urged that the stand of the respondents that the petitioner stood already dis-engaged vide order dated 26.9.2001,

which order was never challenged, was self contradictory as the respondents had been paying the salary to the petitioner till 31.8.2012, and even

the arrears had been paid to him vide order dated 11.1.2008. It was also urged that the order impugned dated 10.9.2012, to the extent it referred

to the abolition of the post of Gardener vide Delhi Headquarter's order No. 41(4)/2010/OMISS dated 19.10.2010, was in-consequential in as

much as if the post had actually been abolished, there would have been no occasion for the respondents to continue paying the petitioner as such.

Counsel for the petitioner further urged that the petitioner had been continuously working in the department and that the disengagement of the

petitioner was only with a view to wreck vengeance on the petitioner who had already filed a writ petition seeking regularization of his services in

SWP No. 2538/2000 supra.

With a view to further buttress the case of the petitioner, reliance was placed upon the certificates issued for and on behalf of Regional

Manager dated 17.4.1986 (Annexure N), certifying that the petitioner had remained present in the Regional office during the month of March, 86.

Another certificate dated 1.8.1986, to the same extent certified presence of the petitioner during the month of July' 86. Certificate dated

24.4.2012, issued by the Assistant General Manager (CE), Regional Office, Jammu, is a certificate certifying that the petitioner attended his duties

in the Engineering Section for the month of March' 12. Another certificate dated 2.5.2012, issued by the same authority, has also been placed on

record certifying that the petitioner attended his duties in the month of April, 2012, in the Engineering Section of the Regional office.

The effort of the counsel for the petitioner by placing reliance on the aforementioned documents was to show that it was incorrect that the

petitioner's engagement as a part time worker had been cancelled and that he had regularly been attending his duties full time in various

offices/sections of the respondent department.

The issue that arises for consideration in the present case is as to whether the petitioner was engaged on a part-time basis and whether he has a

right of regularization.

RIGHT OF REGULARIZATION OF A PART TIME EMPLOYEE

Right of a part time employee to seek regularization was considered by the Apex Court in State of Rajasthan and ors v. Daya Lal and

others, AIR 2011 SC 1193 What was held by the Apex Court is reproduced hereunder:-

8(i) High Courts, in exercising power under Article 226 of the Constitution will not issue directions for regularization, absorption or permanent

continuance, unless the employees claiming regularization had been appointed in pursuance of a regular recruitment in accordance with relevant

rules in an open competitive process, against sanctioned vacant posts. The equality clause contained in Articles 14 and 16 should be scrupulously

followed and courts should not issue a direction for regularization of services of an employee which would be violative of constitutional scheme.

While something that is irregular for want of compliance with one of the elements in the process of selection which does not go to the root of the

process, can be regularized, back door entries, appointments contrary to the constitutional scheme and/or appointment of ineligible candidates

cannot be regularized.

(ii) Mere continuation of service by an temporary or ad hoc or daily-wage employee, under cover of some interim orders of the court, would not

confer upon him any right to be absorbed into service, as such service would be 'litigious, employment'. Even temporary, ad hoc or daily-wage

service for a long number of years, let alone service for one or two years, will not entitle such employee to claim regularization, if he is not working

against a sanctioned post. Sympathy and sentiment cannot be grounds for passing any order of regularization in the absence of a legal right.

(iii) Even where a scheme is formulated for regularization with a cut off date (that is a scheme providing that persons who had put in a specified

number of years of service and continuing in employment as on the cut off date), it is not possible to others who were appointed subsequent to the

cut off date, to claim or contend that the scheme should be applied to them by extending the cut off date or seek a direction for framing of fresh

schemes providing for successive cut off dates.

(iv) Part-time employees are not entitled to seek regularization as they are not working against any sanctioned posts. There cannot be a direction

for absorption, regularization or permanent continuance of part time temporary employees.

(v) Part time temporary employees in government run institutions cannot claim parity in salary with regular employees of the government on the

principle of equal pay for equal work. Nor can employees in private employment, even if serving full time, seek parity in salary with government

employees. The right to claim a particular salary against the State must arise under a contract or under a statute.

This view was subsequently reiterated in Secretary to Government School Education Department, Chennai v. R. Govindaswamy and

others (2014) 4 SCC 769.

In Union of India and others v. A.S. Pillai and Ors., (2010) 13 SCC 448 relief of regularization of part time employees was refused on the

ground that such part time employees were free to get themselves engaged elsewhere when they were not working for the authority/employer.

From a reading of the aforementioned judgments, it becomes clear that a part time employee is not at all entitled to seek regularization and,

thus, no direction can be issued for either his absorption, regularization or permanent continuance.

In paragraph 8(ii) and (iv) of Daya Lal's case (supra), the only exception carved in favour of a daily wage employee, a temporary or an adhoc

employee for regularization is that he was working against a sanctioned post. Thus, even a daily wager or an adhoc employee can be considered

for regularization if such an employee was working against a sanctioned post.

Two questions that arises for consideration are (a) whether the petitioner was actually engaged as a part time worker or did he discharge his

duties continuously through the day and (b) whether the petitioner was working against a sanctioned post. In this regard, it is pertinent to make a

reference to the document Annexure-A dated 4th of November, 1986 issued by the: office of Regional Manager, Food Corporation of India

wherein the petitioner is shown to have been engaged on part time basis @ Rs. 80 P.M against a regular post as Gardener. The official

respondents, however, failed to satisfy this court that the petitioner had not been engaged against a regular post as any such attempt would be

contradicted by their own communication dated 4th of November, 1986.

Not only this, the fact that there did exist a post of Gardener, which was sought to be abolished by virtue of order of disengagement dated

10th of Sept., 2012 proves that the petitioner was working as such against a clear vacancy. Certificates dated 17.04.1986, 01.08.1986,

24.4.2012 and 2.5.2012 are some of the certificates, which reflect that the petitioner discharged his duties in various sections of the office of the

Food Corporation of India. None of these certificates even remotely suggest that the petitioner had worked for a particular number of hours in a

day, which would negate the assertion of the respondent that the petitioner was not a part time worker with the respondent notwithstanding the fact

that the communication dated 4.11.1986 reflected the petitioner to be engaged on part time basis. None of the certificates on record suggest that

the petitioner was not working full hours with the respondents. This supports the assertion of the petitioner that he was not a part time worker.

Learned counsel for the respondents placed reliance upon Secretary, State of Karnataka and ors v. Uma Devi and Ors., (2006) 4 SCC

1 to emphasize that the petitioner had no right to seek regularization. However, the position of law stands crystallized in Secretary to

Government School Education Department, Chennai v. R. Govindaswamy and ors which has been referred to extensively here in above.

In addition to this, in UP State Electricity Board v. Pooran Chandra Pandey and Ors., 2007(7) Supreme 374 the Apex Court held as

under:

Learned counsel for the appellant has relied upon the decision of this Court in Secretary, State of Karnataka and Ors. v. Uma Devi (3)

and Ors. (2006) 4 SCC 1 and has urged that no direction for regularization can be given by the Court. In our opinion, the decision in Uma Devi's

case (supra) is clearly distinguishable. The said decision cannot be applied to a case where regularization has been sought for in pursuance of

Article 14 of the Constitution.

We may further point out that a seven-Judge Bench decision of this Court in Maneka Gandhi v. Union of India and Anr. AIR 1978 SC

597 has held that reasonableness and non-arbitrariness is part of Article 14 of the Constitution. It follows that the government must act in a

reasonable and non-arbitrary manner otherwise Article 14 of the Constitution would be violated. Maneka Gandhi's case (supra) is a decision of a

seven-Judge Bench, whereas Uma Devi's case (supra) is a decision of a five-Judge Bench of this Court. It is well settled that a smaller bench

decision cannot override a larger bench decision of the Court. No doubt, Maneka Gandhi's case (supra) does not specifically deal with the

question of regularization of government employees, but the principle of reasonableness in executive action and the law which it has laid down, in

our opinion, is of general application.

In the present case also, the petitioner had alleged discrimination qua Madan Lal, who was working as a Canteen Boy, but was subsequently

regularized on account of his continuous service in the office of the respondents. While the regularization of Madan Lal as Canteen Boy is not

denied, the reasoning given to justify his regularization was that he was performing his duties as a whole time casual labourer as against the

petitioner, who is stated to have been working only on a part time basis.

On a question of fact, the respondents have clearly failed to establish that the petitioner was in fact working only on a part time basis and not as

a whole time worker not with standing the Communication dated 04.11.1986.

Be that as it may, the respondents could not have accorded a hostile discrimination to the petitioner as regards regularization qua Madan Lal,

who was so regularized. It is accordingly held that the petitioner is entitled to seek regularization w.e f., the date Madan Lal was so regularized.

The petitioner would be deemed to be in service and given all monetary benefits. Order dated 12.9.2012 would stand quashed.

For the reasons mentioned above, the petitions are accordingly disposed of along with connected application(s), if any.