Surendra Singh Rathore vs Union Of India & Ors.

“i.

To issue a suitable order/direction the respondents department to release the pension of the applicant treating him regular employee of the department.

i a. Issue an order or direction in the suitable nature quashing the order impugned dated 17.10.2013 passed by the respondent no.2 (Annexure no.6 of the OA)

ii.

To issue a suitable order/direction direct the respondents to pay the arrears of the pension alongwith market rate of interest within a stipulated period of time.

iii.

To issue any order or direction, which this Hon’ble Tribunal may deem fit and proper in the facts and circumstances of the case.

iv.

To award the cost of the application to the applicant.”

18.

The Apex Court in the case of Bholanath Versus State of Jharkhand and others3 , expressed their disapproval on the mechanical application of precedents without engaging with the core constitutional issues involved, thereby reducing the dispute to one of the acceptance of contractual terms, divorced from its larger constitutional context. In the facts of the said case, the contention before the Apex Court was that, the appellants therein were appointed by the respondent-State, against sanctioned post, which were contractual in nature and extendable after end of the contract period; which was also granted from time to time; and referring to the judgment by the Constitutional Bench in Basheshar Nath vs. Commissioner Income Tax⁴ , reiterated the principle that fundamental rights guaranteed under the Constitution are incapable of waiver and consequently, if the action of the respondent-State is found to be in violation of Article 14 of the Constitution of India, the mere fact that the incumbents’ engagement was governed by contractual terms and conditions, cannot constitute as a waiver of their fundamental rights.

19.

The principle deducible was that Article 14 is intended to secure social and economic justice and conforms to the mandate of the great equality clause in Article 14.

20.

The petitioner with a bona fide believe that his appointment is against a sanctioned post, went through the rigors of the selection process and was even given an appointment letter; and as such he has every legitimate expectation that the State would recognize the services as permanent; and thereafter for an inherent defect of their own decision, the petitioner after rendering a long tenure in service, cannot be pushed into a dilemma and uncertainty, after serving for almost 30 years; without being given the benefit of the long service tenure of almost thirty years.

21.

The legitimate expectation operates in the realm of public law, i.e., a plea of legitimate action can be taken when the public authority breaches a promise or deviates from a consistent past practice, without any reasonable cause; and as such for no fault of the petitioner, the court cannot close its eyes to the long service rendered by the petitioner and thus depriving him of the consequential benefits. The Court is also duty bound to balance the equities between the parties. Now after the retirement, the question of ‘Post’ will lose it’s importance; and the examination, is to be confined to the right of the Petitioner, to the retirement benefits, which he claims by virtue of the service rendered by him, un-disputedly.

22.

The accrual of the right to the retirement benefit is by virtue of the length of service and it is not attached to the post; and as such after taking service for almost 30 years, the denial to the retirement benefit, will be in-equitable; and as such this Court has no hesitation, in molding the relief, in order to do substantial justice between the parties, for the grant of retirement benefit, to the Petitioner.

23.

In view of the aforesaid, this Court is of the opinion that now since the petitioner on the verge of retirement, after having served for almost thirty years, without there being any complaint against his discharge of duties; and since this Court also exercises it’s powers under Article 226 of the Constitution of India, while deciding the intra-court appeal; therefor accordingly, in exercise of the said extraordinary powers, direct the respondent authorities to calculate the retirement benefits of the petitioner including the pension, gratuity, etc., which is normally admissible to a Government employee; and release the same within a period of thirty days from the date of service of certified copy of this order and consequentially the order of the learned Single Judge dated 31.08.2012, is hereby set aside.

24.

With the aforesaid observation and direction the Special Appeal stands allowed.”

“13.6.

This Court has, on several occasions, deprecated the practice adopted by States of engaging employees under the nominal labels of “part-time”, “contractual” or “temporary” in perpetuity and thereby exploiting them by not regularizing their positions. In Jaggo v. Union of India,¹⁰ this Court underscored that government departments must lead by example in ensuring fair and stable employment, and evolved the test of examining whether the duties performed by such temporary employees are integral to the day-to-day functioning of the organization.

13.7.

In Shripal v. Nagar Nigam, ¹¹ and Vinod Kumar v. Union of India, ¹² this Court cautioned against a mechanical and blind reliance on Umadevi (supra) to deny regularization to temporary employees in the absence of statutory rules. It was held that Umadevi (supra) cannot be employed as a shield to legitimise exploitative engagements continued for years without undertaking regular recruitment. The Court further clarified that Umadevi itself draws a distinction between appointments that are “illegal” and those that are merely “irregular”, the latter being amenable to regularization upon fulfilment of the prescribed conditions.

13.8.

In Dharam Singh v. State of U.P.¹³ , this Court strongly deprecated the culture of “ad-hocism” adopted by States in their capacity as employers. The Court criticised the practice of outsourcing or informalizing recruitment as a means to evade regular employment obligations, observing that such measures perpetuate precarious working conditions while circumventing fair and lawful engagement practices.

13.9.

The State must remain conscious that part-time employees, such as the appellants, constitute an integral part of the edifice upon which the machinery of the State continues to function. They are not merely ancillary to the system, but form essential components thereof. The equality mandate of our Constitution, therefore, requires that their service be reciprocated in a manner free from arbitrariness, ensuring that decisions of the State affecting the careers and livelihood of such part-time and contractual employees are guided by fairness and reason.

13.10.

In the aforesaid backdrop, we are unable to persuade ourselves to accept the respondent-State’s contention that the mere contractual nomenclature of the appellants’ engagement denudes them of constitutional protection. The State, having availed of the appellants’ services on sanctioned posts for over a decade pursuant to a due process of selection and having consistently acknowledged their satisfactory performance, cannot, in the absence of cogent reasons or a speaking decision, abruptly discontinue such engagement by taking refuge behind formal contractual clauses. Such action is manifestly arbitrary, inconsistent with the obligation of the State to act as a model employer, and fails to withstand scrutiny under Article 14 of the Constitution.

FINAL CONCLUSION:

14.

In light of our discussion, in the foregoing paragraphs, we summarize our conclusions as follows:

I. The respondent-State was not justified in continuing the appellants on sanctioned vacant posts for over a decade under the nomenclature of contractual engagement and thereafter denying them consideration for regularization.

II. Abrupt discontinuance of such long-standing engagement solely on the basis of contractual nomenclature, without either recording cogent reasons or passing a speaking order, is manifestly arbitrary and violative of Article 14 of the Constitution.

III. Contractual stipulations purporting to bar claims for regularization cannot override constitutional guarantees. Acceptance of contractual terms does not amount to waiver of fundamental rights, and contractual stipulations cannot immunize arbitrary State action from constitutional scrutiny.

IV. The State, as a model employer, cannot rely on contractual labels or mechanical application of Umadevi (supra) to justify prolonged ad-hocism or to discard long-serving employees in a manner inconsistent with fairness, dignity and constitutional governance.

V. In view of the foregoing discussion, we direct the respondent-State to forthwith regularize the services of all the appellants against the sanctioned posts to which they were initially appointed. The appellants shall be entitled to all consequential service benefits accruing from the date of this judgment.

15.

Accordingly, the present appeals are disposed of and all writ petitions are allowed and the judgments dated 17th September, 2024, 15th October, 2024 and 2nd December, 2024, in LPA Nos. 390 of 2024, 356 of 2024 and 368 of 2024, respectively, passed by the High Court of Jharkhand at Ranchi are set aside.

16.

Pending application(s), if any, shall stand disposed of.”

“39.

In the backdrop of these circumstances and the submissions advanced for our consideration, the irresistible and legitimate conclusion is that when casual labourer has served for requisite period continuously, he has to be treated temporary, in other words, he is a `temporary railway servant'. This is incidence of statutory provisions and judicial pronouncements. Having acquired this status, he is entitled to pension and other consequential benefits on superannuation, and on his demise in harness or after superannuation his widow becomes entitled to family pension. Regularisation against a permanent post made on availability or creation of a permanent post, may be there, but pensionary right do not depend on regularisation/confirmation, of course, whether such posts are available or not, employee should be deemed to have become permanent, since laxity in this regard on the part of the employer should not militate against the right of the employee. Describing of an employee `casual/temporary status' and depriving him pension and his/her widow/widower family pension amounts to negation of his statutory and Constitutional rights under Articles 14, 16, 21, 41/42. Therefore, having become `temporary railway employee', he should be considered for appointment against permanent post along with colleagues as per seniority in the Department, which, he is deemed to be appointed against the available post. Circular dated September 11, 1986 is against decision of Apex Court in Inder Pal Yadav case (supra), therefore, illegal, and cannot be given effect to by the Railways changing the position of `casual labour' from `temporary casual labour' to `casual labour with temporary status'.

40.

Substitutes, if absorbed against regular posts, would be entitled to pensionary benefits. In case they were holding temporary status before appointment as substitutes, they shall be treated `temporary railway servants'. The period spent by them as casual labour, before appointment as substitute, shall be counted for acquiring status of `temporary railway servant', thereby, becoming at par with other temporary railway servants for pensionary benefits and his widow to family pension. The contentions advanced by learned counsel for the petitioners are accepted and those of the respondents rejected. The casual workers attain the status of `temporary railway servant' and are further entitled to regularisation against available posts as per seniority, however, non-regularisation against permanent posts would not deprive them of retiral pension. Their widows/widowers, on his/her demise, whether during service or after superannuation, would be entitled to family pension, same would be the position of substitute, in the circumstances discussed above.

42.

No other point was urged by the parties. Accordingly, all the Petitions are allowed in terms aforesaid. Respondents are directed to pay family pension to the petitioners from the date of death of the concerned employee within a period of two months. Parties shall bear their own costs. Rule is made absolute.”