This article is written by Vanya Verma from Alliance University, Bengaluru. This article talks about the case of Sri Basudeb Debnath and others v. Union of India and others in detail along with reference to other relevant cases.
Table of Contents
It is not uncommon to find a large number of people, mainly at lower levels, working in various government offices on a casual, temporary, or contractual basis. Even if the type of work performed by both classes of employees is the same or similar, such employees are frequently paid less and do not receive any perks or benefits when compared to employees in regular positions within the same government department. If you stay in a government guest home, visit a national park, or are aware of the classification of employees in any given government department, you will see their misery and grievances. Several of these employees have worked for the government as contractual or ad-hoc appointees/workers for decades.
In this article, we will be reading about the workers claim for regularisation with respect to the case of Sri Basudeb Debnath and others v. Union of India (2021) which was presided by a two-judge bench comprising of Hon’ble Chief Justice, Mr. Akil Kureshi and Hon’ble Mr. Justice S.G. Chattopadhyay of the Tripura High Court. Let us further study the facts and judgment of the case.
Facts of the case
For numerous years, petitioners in WP(C) No.1162 of 2018 have worked as casual labourers at the office of the Accountant General (Audit), Tripura, on the job of Multi Tasking Staff (MTS). They were paid a fixed monthly wage. They claim that some of them have been working for more than 20 years continuously. Many of them have served in this service for more than ten years. Few of them had lately been engaged. The petitioners provided a chart showing their year of initial engagement and cumulative length of service as of 17.01.2017.
The petitioners assert, there is no serious dispute that in the department there are 34 sanctioned posts of MTS. Many of these positions have been vacant for a long time. Due to a huge number of vacancies in the cadre, the department was forced to hire temporary workers like the petitioners to do crucial jobs like cleaning and driving the official car. The petitioners have presented a letter dated 11.10.2010 addressed by the Sr. Deputy Accountant General (Audit) to the Comptroller & Auditor General of India, stating that only 19 positions in the MTS cadre were filled out of a sanctioned strength of 34. Maintaining cleanliness, upkeep of the sections, sanitation work of the building and office premises, cleaning, dusting, watch and ward, delivery, and other MTS activities were therefore tough to manage. As a result, he had to hire 9 people on a casual basis.
The petitioners also produced another such letter dated 12.10.2012 from the Accountant General (Audit) to the Principal Director (Staff), Office of the Comptroller & Auditor General of India, in which it is stated that the office has not made any recruitments to the post of MTS and that day-to-day work is managed by engaging casual workers. The petitioners also produced a letter dated 20.03.2017 from the Deputy Accountant General/Administration in response to the queries raised on their behalf under the Right to Information Act (RTI). It was mentioned in this letter that there are currently 34 casual workers competing for the same type of work.
The respondents sent the contested communication on January 20, 2017. It was a letter from the Assistant Comptroller and Auditor General to all Heads of Department in the North East, stating that, as of April 1, 2017, no funds will be allocated under the heading “Wages” except in exceptional circumstances, and that, if necessary, proposals for the outsourcing of staff in various categories to fill vacant posts will be furnished. All petitions would be terminated if these standards were followed. As a result, these petitioners filed WP(C) No.353 of 2017 and related petitions. In the abovementioned petition, the Single Judge of this Court directed the respondents to maintain the status quo on June 5, 2017.
A uniform ruling dated September 25, 2017, was used to dismiss all of the petitions. The Court held that the issues should be determined by the Central Administrative Tribunal and that a writ petition could not be brought in the first instance. The Court prolonged the interim ruling by 15 days while allowing the petitioners to appeal to the Central Administrative Tribunal. Following that, the petitioners filed Original Application No.283 of 2017 with the Central Administrative Tribunal’s Guwahati Bench. This Original Application was dismissed by the impugned judgment of 05.09.2018, which directed the department to dismiss the petitioners’ representation within four months of receiving a copy of the ruling, providing the petitioners with a chance to be heard, and issuing a reasoned order. The petitioners then filed the current petition, which resulted in a new interim injunction preventing their termination.
The petitioners were employed on a part-time basis at the Audit Wing of the Accountant General’s Office in Agartala, Tripura, against sanctioned MTS positions. They had not specified the length of their engagement in their cases. However, they have been told that they’ve all been working together since 2010.
Points raised by the petitioners
In light of these facts, learned counsel for the petitioners raised the following points:
- All of the petitioners were hired to fill clear gaps. All of the petitioners have a Higher Secondary School pass, which is required by the recruitment guidelines for the position in question. In light of the Supreme Court’s decision explaining the Constitution Bench ruling in the matter of Secretary, State of Karnataka and others v. Umadevi and others (2006), the petitioners must be awarded regularisation after years of casual employment.
- The petitioners have the right to claim remuneration in the minimum of the scale granted for regular incumbents after multiple years;
- In any situation, the petitioners’ services cannot be terminated due to outsourcing of the task. Any attempt by the department to do so would be a violation of the principle that one informal engagement cannot be substituted by another.
The opposition of petitioners argument
- On the other hand, experienced counsel for the Attorney General’s office opposed the petitioners, arguing that the petitioners could not seek regularisation in service because of the Supreme Court’s ruling in the matter of Umadevi. Without any sort of selection or open competition, all of the petitioners were hired. The department intended to outsource the task to increase efficiency. Their involvement is still ongoing as a result of interim orders issued by the courts.
- In the matter of Umadevi, the Supreme Court’s Constitution Bench considered the common practice of hiring casual workers in government organisations and enterprises, keeping them for a long time, and then regularising them. Such behaviour was widely condemned, with the argument that all public jobs must be subjected to the norms of equality enshrined in Articles 14 and 16 of the Constitution. Any interaction that does not involve an open competition will violate these rules.
- The following was observed: “As a result, it is clear that adherence to the rule of equality in public employment is a fundamental feature of our Constitution, and since the rule of law is at the heart of our Constitution, a court would be disabled to uphold a violation of Article 14 or order the disregard of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution. As a result, in accordance with the scheme for public employment, this Court while laying down the law, has necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee.”
- Further, it stated that “they cannot be considered to be holders of a post, as this Court has held because a regular appointment could only be made by making appointments consistent with the criteria of Articles 14 and 16 of the Constitution”. The right to be treated similarly with other daily wage employees cannot be extended to a demand for equal treatment with individuals who are employed regularly. That would be treating unequals on a level playing field. It cannot also be relied upon to assert a right to be absorbed in service even though they were never picked under the relevant recruitment procedures. As a result, the arguments based on Articles 14 and 16 of the Constitution are overruled.
Observations made by the Hon’ble Supreme Court
Having said that, a small window for consideration of regularization was kept open when the Supreme Court made the following observations:
“One aspect should be clarified. There may be cases where irregular appointments (not illegal appointments) of duly qualified persons in duly sanctioned vacant posts have been made, as explained in S.V. Narayanappa (1966), R.N. Nanjundappa (1971) and B.N. Nagarajan (1979) and the employees have continued to work for ten years or more without the intervention of orders of the courts or tribunals. The merits of regularising the services of such employees may have to be assessed in light of the principles established by this Court in the judgments referred above, as well as in the light of this judgment. In this context, the Union of India, State Governments, and their instrumentalities should take steps to regularise the services of such irregularly appointed persons who have worked for ten years or more in duly sanctioned posts but not under the cover of orders of courts or tribunals, as a one-time measure, and should also ensure that regular recruitments are undertaken to fill that vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. Within six months of this date, the process must be started. We also clarify that any regularizations that have already been made but are not currently under appeal do not need to be reopened as a result of this judgment, but there should be no further bypassing of the constitutional requirement by regularising or making permanent those who have not been duly appointed as per the constitutional scheme.”
As stated in the said section of the judgment, if an employee’s employment has lasted more than 10 years without the intervention of court orders, the regularisation of such employees’ services must be considered as long as the initial engagement was irregular but not illegal, and such engagement was against sanctioned posts. This was also referred to as a one-time action. The Supreme Court in Umadevi did not specify which types of engagements would be considered irregular and which would be considered illegal. According to the tenor of the decision, any engagement signed without open competition and hence without conforming to the equality standards derived from Articles 14 and 16 of the Constitution would be unconstitutional.
State of Karnataka and others v. M.L. Kesari and others
The matter was regarded slightly differently in the State of Karnataka and others v. M.L. Kesari and others, (2010). We can trace the facts before considering the Supreme Court’s important observations in the case. It was a case in which the initial petitioners were employed on a daily basis by Zila Panchayats in various capacities between 1985 and 1987. Without the involvement of the Court, they were kept on daily wages for another 15 years. They filed writ petitions with the Karnataka High Court in 2002. In a writ appeal decided on July 28, 2004, the Division Bench found that these petitioners were entitled to regularisation, subject to certain restrictions. The State of Karnataka took the case to the Supreme Court to overturn this decision. After the Constitution Bench decision in the case of Umadevi, the Supreme Court decided the State of Karnataka’s appeal. The ratio in the Umadevi case (supra) was explained as under:
“It is clear from the foregoing that there is an exception to Umadevi (2006)’s general guidelines against “regularisation” provided the following conditions are met:
- The employee in question must have worked in a lawfully sanctioned position for at least ten years without the benefit or protection of any court or tribunal interim order. In other words, the State Government or its instrumentality should have hired the person and kept him in service for more than ten years voluntarily and continuously.
- Even if irregular, the appointment of such an employee should not be illegal. The appointments will be regarded as illegal if they are not made or continued against sanctioned postings, or if the people appointed do not have the required minimum qualifications. However, where the individual hired had the required qualifications and was working in a sanctioned position, but was hired without going through an open competitive selection procedure, such appointments are regarded as irregular.
The true effect of the direction is that all persons who have worked in vacant positions for more than ten years as of 10-4-2006 (the date of the Umadevi decision), without the protection of any interim order of any court or tribunal, and who have the required qualifications, are eligible to be considered for regularisation. The fact that the employer did not carry out such a regularisation exercise within six months of the decision in Umadevi, or that such an exercise was carried out only concerning a small number of employees, does not preclude such employees from being considered for regularisation in accordance with the above directions in Umadevi as a one-time measure.
Amarkant Rai v. State of Bihar
As previously stated, there is no elaboration in the case of Umadevi as to which types of appointments should be treated as illegal and which as irregular, and thus the observation that even an engagement made without competition with qualified candidates would be an irregular appointment must be regarded as the Court’s observations in the said case of Kesari. The Court referred to the decisions in the cases of Umadevi and Kesari and gave the following directions in the case of Amarkant Rai v. State of Bihar (2015):
“In our opinion, the exception carved out in the Umadevi case applies to the facts of the present case. The respondents have not produced any evidence that the appellant lacked any qualifications or had a blemished record during his employment of more than two decades. It’s worth noting that the services of similarly situated people on daily wages, such as Yatindra Kumar Mishra, who was hired on a daily rate to work as a clerk, have been regularised since 1987. Despite working for an unsanctioned post at first, the appellant has been working for a sanctioned post constantly from 3-1-2002. We are inclined to award monetary benefits to be paid beginning January 1, 2010, because there is no material on record regarding the details of whether any other night guard was appointed against the sanctioned post. In the facts and circumstances of the case, we are inclined to award monetary benefits to be paid beginning January 1, 2010.”
Narendra Kumar Tiwari and others v. Jharkhand State and Others
The last decision in the line that has to be referred to and that is significant in the light of our circumstances is one in the case of Narendra Kumar Tiwari and others v. Jharkhand State and Others (2018). It was a case in which a significant number of daily rated or contractual workers employed by the Jharkhand government petitioned the High Court to have their services regularised. The High Court refused to award the relief because of the state of Jharkhand’s regularisation laws, which they had challenged in the Supreme Court.
It was contended that none of these people had completed ten years of service on the day the decision in Umadevi was handed down, and hence could not be regularised. While allowing their appeal, it was noted that the judgment in Umadevi was meant to put an end to the destructive practices of appointing daily wage workers irregularly or unlawfully and keeping them on permanently. For this reason, the notions of one-time measure and cut-off date were developed in the hopes that the State would stop making irregular and illegal appointments and start making them regularly. After referring to the judgment in the case of Kesari, the Supreme Court made the following observations:
Following that, after referring to the Supreme Court’s use of the term “one-time measure” in the case of Umadevi, it was noted that the purpose of Umadevi’s direction was twofold. The first was to ensure that those who have served for more than 10 years without being protected by any interim decisions issued by courts or tribunals before the date of the decision in Umadevi are considered for regularisation due to their long service. Second, departments/instrumentalities must ensure that they do not continue to employ people on a daily wage/ad hoc/casual basis for long periods and then regularise them on the basis that they have served for more than ten years, thus circumventing the constitutional or statutory provisions governing recruitment and appointment.
Irregular appointments in respect to Umadevi judgment
The fact that the State of Jharkhand continued with irregular appointments for nearly a decade after the Umadevi decision shows that it believes it is acceptable to continue with irregular appointments and, when necessary, terminate the services of irregularly appointed employees based on their irregular appointment. This is nothing more than the exploitation of employees, as they are denied regularisation benefits and have the sword of Damocles hanging over their heads.
This is exactly what the cases of Umadevi and Kesari were attempting to avoid. The aforesaid cases lead to the conclusion that the directives in the case of Umadevi cannot be interpreted as establishing a fixed cut-off date for applying the concept of 10 years from the date of completion of the engagement without the intervention of the Court. By invoking the Supreme Court’s cut-off date in the case of Umadevi, any such argument would give the State and its authorities complete authority to continue to engage citizens on a casual basis and fail to acknowledge any of their rights even after decades of such interaction.
The Supreme Court has stated this in the cases of Kesari and Narendra Kumar Tiwari. Many of the petitioners in the current case were working against sanctioned posts and clear vacancies long before the ruling in the matter of Umadevi. Even after the Constitution Bench’s decision in the matter of Umadevi, these engagements continued until June 2017, with no intervention from the courts. As a result, casual engagements lasted in certain situations for more than a decade following the judgment in the case of Umadevi. If the Government argued that such agreements could not be regularized because of the decision in Umadevi, it would be a contradiction in terms of the State creating new engagements on an ad hoc basis even after the judgment in Umadevi was given. These petitioners would be eligible for regularization if they met the standards outlined in Umadevi, as explained in subsequent decisions in Kesari and Narendra Kumar Tiwari.
Even people who may not be eligible for regularisation cannot be dismissed after soliciting work from them for years by invoking a policy change stating that such work would be outsourced in the future. It may be possible for the government to outsource some of its activities, but not by disengaging people who have been employed for a long time, especially when the vacancies for which such engagements were made are still open. As the petitioners’ counsel properly pointed out, the Supreme Court had stated in Hargurpratap Singh v. State of Punjab and others, (2007):
“We have carefully examined the High Court’s ruling as well as the additional pleadings that have been presented to this Court. It is obvious that, while the appellants may not be eligible for a regular appointment, they are entitled to the minimum pay scale and should be retained until permanent incumbents are appointed. The High Court’s approach is to replace one ad hoc arrangement with another, which is in no way appropriate for these individuals who have obtained expertise that will be more valuable and useful to the institutions concerned, rather than appointing people again on an ad hoc basis. As a result, we reverse the High Court’s instructions to the degree that they deny the appellants’ claim to a minimum pay scale and continued employment until regular incumbents are appointed. We direct that they remain in service until regular appointments on the minimum wage range are made. As a result, the appeals will be partially granted.”
It was also not open for the State to continue to pay fixed wages to these workers for decades together when:
- Their engagement was against sanctioned posts;
- They have been continued for a long period;
- They fulfil the educational qualifications prescribed for the post;
- The work is perennial;
- They have been engaged virtually continuously throughout since their initial engagements and
- They are doing the same work which regular staff members are doing.
They may not be treated in the same way as normal government employees in terms of salary and benefits, but they are covered under the principle of “equal pay for equal work,” as detailed in the case of the State of Punjab and others v. Jagjit Singh and others (2017), they are entitled to daily salaries based on the lowest of the scales provided for the post in question, minus other allowances.
The following is a relevant portion of the Supreme Court’s decision in the matter of Jagjit Singh:
“In our opinion, establishing artificial restrictions to reject the results of labour is erroneous. An employee hired for the same job who fulfils the same duties and obligations cannot be paid less. In a welfare state, of course not. This behaviour is not only degrading, but it also goes against the basic foundations of human decency. Anyone who is forced to labour for a lower wage is not doing it willingly. He does so to provide food and shelter for his family, even if it means sacrificing his self-respect and decency, his self-worth, and his integrity. He understands that if he does not take the lower wage, his dependents will suffer greatly. Any act of exploitative enslavement that arises from a dominant position is defined as paying less salaries than others in a similar situation. As it forces involuntary subordination, the behaviour is unquestionably repressive, suppressive, and coercive.”
The Tribunal should not have referred the petitioners to the departmental authorities, in our opinion. The agency had made it plain that none of the petitioners has any claim to any rights beyond those that have been given to them. In other words, not only did the department oppose their regularisation, but it also believed that their services should be terminated. In these circumstances, it would be pointless to ask the department to issue a speaking order on their behalf.
Outcome of the case
In this case, applications are dismissed with the following instructions:
- The respondents shall appoint a committee to review the petitioners’ petitions for regularisation. Regularization will be granted to petitioners who meet the following criteria:
- Those petitioners who held necessary educational qualifications at the time of their initial engagement.
- They had completed more than 10 years of engagement before the High Court granted them protection against termination for the first time;
- None of the petitioners will be fired as a result of the work being outsourced. However, the department would be free to make appointments regularly, and the petitioners would be required to relinquish their positions if they were not qualified for regularisation. It is also possible that the department will terminate the positions, in which disengagement will occur according to the principle of last come, first served.
- Until any of these petitioners are regularised, and until those petitioners who do not qualify for regularisation but continue to work in the same capacity are regularised, they shall be paid daily wages at the minimum scale of pay prescribed for the post in question, without attendant allowances;
- The revised wages shall be paid from the date of the judgment; and
- The regularisation process shall be completed within six months of the date of the judgement.
Petitions were dismissed as a result. If there are any pending applications, they will be discarded as well.
In this case, the petition was subsequently dismissed and it was also held that if there was any pending application then that also stands disposed of.
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