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PETITIONER: DELHI DEVELOPMENT HORTICULTURE EMPLOYEES’ UNION

       Vs.

RESPONDENT: DELHI ADMINISTRATION, DELHI AND ORS.

DATE OF JUDGMENT04/02/1992

BENCH: SAWANT, P.B. BENCH: SAWANT, P.B. JEEVAN REDDY, B.P. (J)

CITATION:  1992 AIR  789            1992 SCR  (1) 565  1992 SCC  (4)  99        JT 1992 (1)   394  1992 SCALE  (1)294  CITATOR INFO :  RF         1992 SC2130  (20)

ACT:      Constitution  of India, 1950: Articles 14, 16, 19,  21, 41-‘Jawahar Rozgar Yojna’-Temporary Scheme to provide  daily wage employment to rural poor and landless labourers  during lean  periods-Daily  wage workers-Right to  be  absorbed  as regular employees-Consideration to be taken into account.      Right to work and livelihood-Whether included in  right to life-Whether recognised as a fundamental right.      Labour    Law:    Daily    wage    workers-Recruitment- Regularisation-Factors for consideration.      Employment   Exchanges  (Compulsory   Notification   of Vacancies) Act, 1959.      Employment   Exchange-Registration   for    employment- Recruitment through employment exchanges-Necessity for.

HEADNOTE:      The  Government of India, during the 5th and  6th  Five Year  Plans, formulated various schemes, such as  "food  for work",   "National  Rural  Employment   Programme",   "Rural Landless  Employment Guarantee Programme" etc.,  to  provide wage  employment to agricultural and landless  labourers  in the  country during lean periods. These programmes  included plantation  of  trees under social forestry  scheme  in  the rural  areas.  The entire work was done by  providing  daily wage  employment  to rural workers of  local  areas  without reference to any Employment Exchange.      In  the Union Territory of Delhi, the  plantation  work was  monitored  by  the District  Rural  Development  Agency (DRDA).  Since the work involved knowledge of plantation and agricultural   practices,   some   unemployed   Agricultural Graduates/Diploma-holders,   including   the    petitioners, approached  the  DRDA and were given daily  wage  employment under  the  said programme.  They were  called  Supervisors/ Work Assis-                                                        566 tants,  and were paid higher daily wages compared  to  those paid  to  the unskilled workers.  At no  stage  any  regular posts were created under the DRDA either for the Supervisors etc.  or for the labourers, since the schemes were  financed

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by  the  Government  of  India and the  DRDA  was  only  the implementing machinery.      In  1988-90  the Government of India  announced  a  new scheme,  called  "Jawahar  Lal  Nehru  Rozgar  Yojna",   for intensive  employment  in  backward  districts  where  acute poverty  and  unemployment  prevailed.  Later  on,  all  the Schemes were merged in one known as "Jawahar Rozgar  Yojna". Under this programme, the monetary assistance received  from the  Central  Government  and  the  State   Government/Union Territories  was  given directly to the  village  Panchayats which  exclusively made the choice of work and employed  the work-force.   The DRDA ceased, w.e.f. 31.7.1989, to  be  the machinery  in  these  respects and was  no  longer  directly concerned with the payment of wages to the workers.      The  petitioners filed the writ petitions  before  this Court  for  the difference in wages paid to them  and  those paid  to the regular employees as also for their  absorption in  the Development Department of the  Delhi  Administration and  for  injunction prohibiting the  termination  of  their services.   It was contended that they were employed by  and were working under the DRDA which was a department either of the  Central Government or the Delhi administration and  was not  an autonomous body, and that the DRDA continues  to  be the  employing agency because the tenure of the Pradhans  of Village  Panchayats  under  the  Union  Territory  of  Delhi expired  and  the  administration   of  the  Panchayats  was carried on by the Block Development Officers.      Dismissing the writ petitions, this Court,      HELD: 1.1. The schemes under which the petitioners were given employment were evolved with the limited resources  at the disposal of the State to provide income for those  rural poor who were below the poverty line and particularly during the periods when they were without any source of  livelihood and,  therefore, without any income whatsoever.  The  object was  not  to provide the right to work a such  even  to  the rural  poor-much less to the unemployed in  general.   Those employed under the scheme, therefore, could not ask for more than what the scheme intended to give them.                                                        567 To get an employment under the scheme and claim on the basis of  the  said employment, a right to regularisation,  is  to frustrate  the  scheme itself.  No Court can be a  party  to such exercise.  [578H; 579A; E-F]      1.2.  It  is wrong to approach the  problems  of  those employed  under  the schemes with a view to  providing  them with  full employment and guaranteeing equal pay  for  equal work.   These  concepts in the context of such  schemes  are both unwarranted and misplaced.  They will do more harm than good  by depriving the many of the little income  that  they may get to keep them from starvation.  They would benefit  a few  at the cost of the starving poor for whom  the  schemes were meant.  That would also force the State to wind up  the existing  schemes and forbid them from introducing  the  new ones,  for  want of resources - the Central  Government  has decided  to  discontinue Jawahar Rozgar Yojna in  the  Union Territory  of Delhi w.e.f. 1.1.92.  This is not to say  that the  problems of the unemployed deserve no consideration  or sympathy,  but  only  to  emphasise  that  even  among   the unemployed a distinction exists between those who live below and  above  the poverty line, those in need of  partial  and those   in  need  of  full  employment,  the  educated   and uneducated,  the rural and urban unemployed  etc.   [579F-H; 577H; 578A; 580A]      2.1  For  regularisation,  there must  be  regular  and permanent posts or it must be established that although  the

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work  is  of  regular and permanent nature,  the  device  of appointing  and  keeping the workers on ad hoc or  temporary basis  has  been resorted to, to deny  them  the  legitimate benefits of permanent employment. [p. 577A-B]      Shri  Niader  & Anr. v. Delhi  Administration  &  Anr., (Writ  Petition Nos. 9609-10/83) and Rattan Lal & Ors.  etc. v. Lt. Governor & Ors. etc. (Writ Petition Nos. 98, 99, 216, 938, 940/88) decided on 29.9.88 & 6.3.1990 respectively.      2.2.  In  the  instant case, there  was  no  scope  for regularisation  of  workers since there were  no  sanctioned posts  or  the  sanctioned strength of  workers.  The  Delhi Administration   had  at  no  stage  engaged  any   of   the petitioners   for   its  work.   The  DRDA  which   was   an implementing  machinery  of  the Jawahar  Rozgar  Yojna  had engaged the petitioners on daily wage basis.  The Yojna  has not  and  cannot have any sanctioned strength  of  posts  or workers.   The  works  by  their  very  nature  had  to   be undertaken  on daily wage basis and as soon as the works  at particular sites were over, the                                                        568 workers  were  required to be shifted to other  sites.   The workers were engaged from the areas concerned and those like the  petitioners who were willing to go to the  sites  where the work was available, were also given the employment under the scheme.  In the circumstances, neither the DRDA nor  the panchayats  could  be  asked either to ensure  work  to  the petitioners every day or to regularise them.  [p. 577B-G]      3.1   Broadly  interpreted  and  a  necessary   logical corollary,  right  to  life  would  include  the  right   to livelihood and, therefore, right to work.                                                    [p. 578C]      Olga  Tellis & Ors. v. Bombay Municipal  Corporation  & Ors.,  AIR 1986 SC 180), referred to.      3.2   The country has so far not found it  feasible  to incorporate  the right to livelihood as a fundamental  right in the Constitution.  This is because the country has so far not  attained the capacity to guarantee it, and not  because it considers it any the less fundamental to life. Advisedly, therefore,  it has been placed in the Chapter  on  Directive Principles,  Article 41 of which enjoins upon the  State  to make  effective provision for securing the same "within  the limits of its economic capacity and development".  Thus even while giving the direction to the State to ensure the  right to  work, the Constitution-makers thought it prudent not  to do so without qualifying it. [p. 578E-G]      4.1. The District Rural Development Agency, Delhi is an autonomous body registered as a Society under the  Societies Registration  Act.  It is neither a department of the  Delhi Administration   nor  the  Central  Government.    It   only implements  policies  of the Central  Government  under  the supervision of the Delhi Administration.  It has no funds of its  own.   For  the implementation of  the  programmes   of employment, the funds were always placed at its disposal  by the  Central Government and it had to spend them as per  the prescribed guidelines.  [p. 572F-H]      4.2.  The  employment programme  under  Jawahar  Rozgar Yojna has since been transferred to the village  Panchayats. The Block Development Officers are administering the affairs of the Panchayats till such time as fresh elections are  not held.   The vesting of administration of the  panchayats  in the Block Development Officers during the intervening period does not change the fact that it is the village  Panchayats, which are                                                        569 allotted the funds for the Rural Employment Programme  under

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the Jawahar Rozgar Yojna and it is they who choose the works to  be  carried  out  and the  necessary  work-force  to  be employed.   Hence they are the implementing  agencies.  [pp. 572H; 573G-H; 574A]      5.  If an order passed by this Court in a writ petition had  proceeded  on  the assumption of  wrong  facts  in  the absence  of  the appearance by the  respondent-DRDA  and  if under the pain of contempt proceedings the workers  involved in that petition were employed by the DRDA, the  petitioners in the instant petition cannot rely upon their employment in such  circumstances  to plead discrimination  against  them. [p. 576G-H; 577A]      Vijay Pal Sharma & Ors. v. Delhi Administration &  Ors. (W.P. No. 818/89 decided on 12.3.90) distinguished.      6.  The pernicious consequences to which the  direction for  regularisation of workmen on the only ground that  they have put in work for 240 or more days, has been leading  to, has also to be taken note of.  [p. 580B-C]      It   has  become  a  common  practice  to  ignore   the Employment Exchange and the persons registered therein,  and to employ and get employed directly those who are either not registered  with  the  Employment  Exchange  or  who  though registered  are  lower  in  the long  waiting  list  in  the Employment Register.  The courts can take judicial notice of the  fact that such employment is sought and given  directly for various illegal considerations including money. [p.  580 C-D]      7.  The  respondents cannot be directed  to  regularise petitioners’   services.   However,   the   respondent-Delhi Administration shall keep the petitioners on a panel and, if they  are  registered with the Employment Exchange  and  are qualified to be appointed on the relevant posts shall   give them  a  preference in employment whenever  there  occurs  a vacancy  in the regular posts. [pp. 581A-B]

JUDGMENT:      ORIGINAL JURISDICTION : Writ Petition No. 323 of 1989.      (Under Article 32 of the Constitution  of India)                             WITH                Writ Petition Nos. 324-25 of 1989.                                                        570      R.K. Jain and Bhal Singh Malik for the Petitioners.      K.T.S.   Tulsi, Addl. Solicitor General, V.C.  Mahajan, T.C. Sharma, P. Parmeshwaran, Hemant Sharma and G.K.  Bansal for the Respondents.      The Judgment of the Court was delivered by      SAWANT, J. The petitioner-workmen who were employed  on daily wages have filed these petitions for their  absorption as  regular employees in the Development Department  of  the Delhi  Administration  and for  injunction  prohibiting  the termination of their services and also for the difference in wages paid to them and those paid to the regular  employees. The  petitions  are resisted on behalf  of  the  respondents contending that there is no scope for the absorption of  the petitioners  as  they were employed on daily  wages  with  a clear  understanding that the schemes under which they  were employed had no provision for regularisation of any workman.      2.  To understand the controversy between the  parties, it  is  necessary to refer to the facts with regard  to  the employment  of the petitioners as brought on record  by  the respondents.      3.   During  the  5th  Five  Year  Plan,  the   Central Government  had formulated various schemes to provide  wage-

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employment  to  agricultural and landless  labourers  during lean  periods.  One such scheme was "Food for work".   Under this scheme, employment was given to the poorer sections  of the population in the rural areas partly for food and partly for  cash  payment.   During the 6th  Five  Year  Plan,  the objective   of  the  programme  was  enlarged   to   include alleviation  of rural poverty by distribution of  income  in favour  of  the poor and the needy population in  the  rural areas  by providing employment opportunities to them.   With this  view,  a  new  programme  called  the  National  Rural Employment  Programme was started in October 1980  replacing the  "Food  for work" programme. During the  period  of  the same Plan, another scheme called "Rural Landless  Employment Guarantee  Programme" was launched on August 15,  1983  with the  same objective of generating additional  employment  in the  rural  areas particularly for the  land  less  workers. Under  these  programmes, works in rural area  resulting  in durable  community  assets, social forestry,  village  roads etc.  were  taken  up.   Pursuant  to  them,  a  scheme  for plantation of                                                        571 trees  was taken up at various sites in the rural  areas  of Delhi.   The  entire said work was done by  providing  daily wage  employment  to  rural workers  including  the  present petitioners.   The  labour  was  employed  at  these   sites depending upon their availability in rural areas and without reference  to  any Employment Exchange either in  the  Union Territory  of  Delhi  or anywhere else.   Since  the  Social Forestry  Programme  involved knowledge  of  plantation  and agricultural   practices,   some   unemployed   agricultural graduates/diploma-holders  who were ready to work  on  daily wage  employment  and  had  approached  the  District  Rural Development  Agency  (‘DRDA’  for  short)  through   various officials  and  non-officials, were also  given  daily  wage employment under the said programmes.      4. For providing periodical daily wage employment,  the officials  of  the DRDA made assessments with  reference  to particular  sites.   The  number of  workers  who  could  be provided employment in the succeeding month was finalised in the  last  week of the preceding month.  Since  the  schemes themselves were meant only to provide daily wage employment, the  workers  were paid only for actual working  days.   The educated  workers  like  the petitioners  were  employed  to guide  unskilled workers in actual plantation work and  were paid  higher  daily  wages compared to  those  paid  to  the unskilled  workers.  However,  the wages  conformed  to  the minimum  wages as notified by the Delhi  Administration  for different categories.  To identify the educated workers from the  uneducated  and  unskilled workers  and  to  facilitate payment  of  the  wages, the educated  workers  were  called Supervisors/Work  Assistants etc. and others were  known  as labourers.  At no stage any regular posts were created under the  DRDA  either  for  the  Supervisors  etc.  or  for  the labourers, as it was not possible to do so since the schemes were  financed by the Government of India, and the DRDA  was only the implementing machinery for the employment programme under the said schemes.      5.  In 1988-90 the Central Government announced  a  new scheme for intensive employment in backward districts  where acute  poverty  and  unemployment  prevailed.  In  all   120 districts were identified for the purpose and the new scheme was named as "Jawaharlal Nehru Rozgar Yojna". The Government of  the  India  then  decided  to   merge  Rural  Employment Programme and Rural Landless Employment Guarantee  Programme as well as the Jawaharlal Nehru Rozgar Yojna into one  rural

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employment                                                        572 programme to be known as "Jawahar Rozgar Yojna".  Under this programme,   the  assistance  received  from   the   Central Government   as   well  as   the   State   Governments/Union Territories  was  required  to  be  given  to  the   village panchayats to increase the coverage of the programme and  to ensure   fuller   participation  of  the   people   in   its implementation.      6.  In  view of the transfer of the  responsibility  to implement the programme to village panchayats from the DRDA, the  latter ceased to be the machinery for employing  either the Supervisors or the unskilled labourers and for  choosing the works to be implemented and for distributing the  funds, since  the  funds  were thereafter  placed  by  the  Central Government directly in the hands of the village  panchayats. The DRDA thus ceased to be the implementing machinery w.e.f. July 31, 1989.      7. The Union Territory of Delhi has 191 panchayats.  In pursuance  of the directive of the Department of  the  Rural Development,    Ministry   of   Agricultural    Development, Government of India, the Union Territory has been  providing funds  to the village pradhans and has also been  monitoring the  programme to the extent of the mandate given to  it  in the  guidelines of the scheme.  However, as stated  earlier, the choice of work and of the work-force which was  hitherto made  by the DRDA is now made by the panchayats taking  into consideration  the  funds  allotted to  the  panchayats  and within   the  overall  guidelines  issued  by  the   Central Government.   The  works  taken up by  the  panchayats  also include  the  Social Forestry works.  Thus the DRDA  was  no longer  directly concerned with the Social Forestry work  or the employment under it or with the payment of wages to  the workers which is exclusively left to village panchayats.      8. It is necessary in this connection to note two  more facts.  The DRDA, Delhi is an autonomous body registered  as a  Society  under  the Societies  Registration  Act.  It  is neither a department of the Delhi Administration nor of  the Central  Government.   It only implements  policies  of  the Central  Government  under  the  supervision  of  the  Delhi Administration.   It  has  no funds of  its  own.   For  the implementation  of the programmes of employment,  the  funds were always placed at its disposal by the Central Government and  it had to spend them as per the prescribed  guidelines. As   stated   earlier,  the   employment   programme   under Jawahar  Rozgar  Yojna  has since been  transferred  to  the Panchayats.  On behalf of the petitioners,                                                        573 it  was contended that DRDA was a department either  of  the Central  Government or of the Delhi Administration  and  was not an autonomous body much less was it registered under the Societies  Registration Act.  In  view of what is stated  in paragraph  4 of the affidavit filed by the  Director,  Rural Development-cum-Project  Director, DRDA in May 1990, we  are of  the  view  that the fact that DRDA is  registered  as  a Society  and is an autonomous body cannot be  disputed.   In one of the affidavits filed by Shri Tej Pal Singh on  behalf of  the petitioners, it was accepted that the DRDA   was  an autonomous  body.  However, the contention was that  it  was under Delhi Administration.  The history of the registration of the DRDA as a Society speaks for itself.  In 1971, it was named  as  "Marginal  Farmers  and  Agricultural   Labourers Development   Agency"   registered  as   a   Society   under registration No. 4940 dated 8-2-1971.  As per the by-laws of the   Society,  the  Development   Commissioner   of   Delhi

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Administration  was  nominated as Chairman of  the  Society. Ever  since then the Society continued to function  as  such with  the Governing body of the Society taking major  policy decisions  and  with  the Project Officer  acting  as  Chief Executive  to run the affairs of the Society.  In May  1976, the  name  of  the Society was  changed  to  "Small  Farmers Development Agency".  The changed name was duly communicated to the Registrar of firms and Societies.  The name underwent yet  another  change in 1981 and the Society was  given  the present  name  - the "District  Rural  Development  Agency". This  change was also duly communicated to the Registrar  of Firms and Societies.  All these changes are borne out by the minutes  of  the  meetings  of the  Governing  body  of  the Society.      It  was  also sought to be contended on behalf  of  the petitioners  that  the DRDA continues to  be  the  employing agency  because  the tenure of the Pradhans of  the  village panchayats  in the Delhi region has expired and  at  present the  administration of the Panchayats is carried on  by  the Block  Development Officers.  We are not impressed  by  this contention,  for the simple reason that  village  panchayats continue as legal entities.  The Block Development  Officers are  administering the affairs of the Panchayats  till  such time  as  fresh  election  are not  held.   The  vesting  of administration  of the panchayats in the  Block  Development Officers  during the intervening period does not change  the fact  that it is the village panchayats (and at present  the Block  Development  Officers  on their  behalf),  which  are allotted the funds for the Rural Employment programme  under the Jawahar                                                        574 Rozgar  Yojna  and  it is they who choose the  works  to  be carried  out  and the necessary work-force to  be  employed. Hence, they are the implementing agencies.  The DRDA is  not re-vested  with  the powers of implementing  the  employment programme.      The  next important fact which requires to be borne  in mind  is  that  the Horticulture  Department  of  the  Delhi Administration  and  the  workers  employed  by  the   Delhi Administration  in the said department, have nothing  to  do with  the Jawahar Rozgar Yojna and its  predecessor  schemes and  the workers employed on daily wages basis by  the  DRDA under  the said schemes. It has become necessary  to  stress this  aspect because we notice from certain order passed  by this  Court  and  produced before us that  a  good  deal  of confusion   between  the  two  sets  of  workers  has   been responsible for some of them.  The Orders in question are :- (i) Order dated September 29, 1988 in Shri Niader & Anr.  v. Delhi  Administration  &  Anr. in Writ Petition  Nos.  9609- 10/83, (ii) Order dated March 12, 1990 in Vijay Pal Sharma & Ors.  v.  Delhi Administration & Ors. in Writ  Petition  No. 818/89,  (iii)  Order  dated 31st  October,  1990  in  Delhi Administration & Ors. v. Vijay Pal Sharma in Review Petition No. 562/90 in Writ Petition No. 818/89 (iv) Orders dated  8- 8-91  and  13-9-91 in Contempt Petition No. 262/90  in  Writ Petition  No. 818/89, and (v) Order dated March 6,  1990  in Rattan  Lal & Ors. etc. v. Lt. Governor & Ors. etc. in  Writ Petition  Nos.  98, 99, 216, 938, 940/88.  It is  the  Delhi Administration  and  DRDA which are mainly  responsible  for this  confusion.  They failed to put in appearance  at   the proper time and present the correct facts before the Court.      Writ  Petition Nos. 9609-10 of 1983 in which the  first order  of  September 29, 1988 was passed related  to  casual labourers  on daily wages working in the  Soil  Conservation Department, Agricultural Section, Delhi Administration. They

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were  working in the said Department for nearly 20 years  as causal  labourers.  On these facts, this Court had  directed the  Delhi Administration to prepare a scheme for  absorbing the casual labourers who had worked for one or more years in the Soil Conservation Department, as regular employees  with in  six months from the date of the order and to absorb  all such  casual labourers who were found fit to be  regularised under  the  scheme to be so prepared.  The  Court  had  also directed  that  until  they  were  so  absorbed,  the  Delhi Administration  should pay w.e.f.  1.10.1988 to each of  the said  casual  labourers  working in  the  Soil  Conservation Depart-                                                        575 ment  the  salary  or wages at the rate  equivalent  to  the minimum salary paid to a regular employee in the  comparable post in the said Department.      In Writ Petition Nos. 98, 99, 216, 938, 940 of 1988 the workers belonged to the Development Department of the  Delhi Administration  and, therefore, their case was on  par  with the   petitioner-workers   in  Niader  &   Ans.   v.   Delhi Administration  & Anr. in W.P. Nos. 9609-10 of 1983  decided on 29th September, 1988.      In  Writ Petition No. 818 of 1989 [Vijay Pal  Sharma  & Ors.  v. Delhi Administration & Ors. ] decided on March  12, 1990 the petitioners were casual daily wage workers employed under  the Jawahar Rozgar Yojna.  They were not employed  in the Horticulture Department of the Delhi Administration.  It appears  from  the record that an  application  for  interim relief,  viz.,  I.A.  No. 2 of 1990 was filed  in  the  said petition  for directing the respondents therein  who,  among others,  were the Delhi Administration and the DRDA, to  pay to  the petitioners the same salary as paid to  the  regular employees in the Horticulture Department.  Although the main petition   was  served  on  the  DRDA,   the   interlocutory application  was not served on them. The result was that  at the  hearing  of the interim application, the DRDA  was  not present.   It further appears that the Court at the time  of the disposal of the interim application also disposed of the main  petition  and  on the basis of  the  earlier  decision referred  to  above in Writ Petition Nos.  9609-10  of  1983 decided   on  29th  September,  1988  directed   the   Delhi Administration  to absorb the petitioner-workers  under  the scheme which had been made effective by the earlier decision from 1st October, 1988 and gave identical directions as were given  in  the earlier case for paying to  the  workers  the minimum salary paid to regular employees in the Horticulture Department.  Unfortunately the Review Petition filed against the  said  decision, viz., Review Petition No. 562  of  1990 came to be dismissed on 31st October, 1990. In the  Contempt Petition  No. 262 of 1990 decided on 8th August, 1991  again there   was   no   discussion  on  the   subject   and   the Administration  was  given time to comply  with  the  orders passed  by  this Court on 12th March,  1990.   The  Contempt Petition  was adjourned by two weeks for enabling the  Delhi Administration  to comply with the directions given on  12th March,  1990.   The  Contempt Petition  again  came  up  for hearing  on  September 13, 1991 and the Court  required  the Delhi Administration to submit compliance report                                                        576 within two weeks with regard to the "treatment meted out  to the petitioners similar to that meted out to 1200  employees who were covered under the scheme".  The matter was directed to be placed on Board after two weeks.      It may be mentioned in this connection that the present writ  petitions  were filed on March 14,  1989  whereas  the

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order  in Writ Petition Nos. 98, 99, 216, 938, 940  of  1988 was made on March 6, 1990 and the order in Writ Petition No. 818  of  1989 was made on March 12,  1990.   The  Subsequent order in Review Petition No. 562 of 1990 was passed on  31st October,  1990  whereas  the  orders  in  contempt  petition arising  out of Writ Petition No. 818 of 1989  were  passed, as  stated  above, on 8th August, 1991 and  13th  September, 1991.      We may also mention here that the decision dated  March 10,  1988  in Writ Petition No. 1351 of 1987  (R.K.  Soni  & Ors., v. Delhi Administration) on which the petitioners have placed   reliance  related  to  workers  employed   in   the departments  of  the  Delhi  Administration  and  they  were working in the said departments for more than 4 to 5  years. In  that case this Court had directed the absorption of  the workers  on regular basis.  They were first to  be  absorbed against   Group  ‘D’  posts  and  as  and   when   promotion opportunities arose they were to be considered for promotion in Group ‘C’ posts.  Similarly, it appears that SLP No. 7660 of  1989 [Delhi Administration v. Yoginder Singh & Ors.]  is directed  against the order of the Labour Court in LCA  Nos. 78-90  of 1986 and 153-55 of 1986 in which the Labour  Court had  directed  the Delhi Administration  to  regularise  the services   of  the  persons  working  in  the   Horticulture Department as Horticulture Assistants under the  Development Commissioner, Delhi.      9.  The aforesaid review of the orders passed  by  this Court  in various petitions shows that the order  passed  by this  Court  in W.P. No. 818 of 1989 had  proceeded  on  the assumption  of wrong facts in the absence of the  appearance by  the  DRDA.  Unfortunately, as stated above,  the  Review Petition filed against the said order was also dismissed  on 31st October, 1990.  We are not aware as to how many workers were  involved in the said petition but we will say no  more on  the  subject.  We are informed that under  the  pain  of contempt  proceedings the workers involved in that  petition have  since been employed by the DRDA.  The  petitioners  in the present petition                                                        577 cannot  rely upon their employment in such circumstances  to plead  discrimination  against  them.   For  regularisation, there  must  be regular and permanent posts or  it  must  be established  that  although  the  work  is  of  regular  and permanent  nature, the device of appointing and keeping  the workers on  ad hoc or temporary basis has been resorted  to, to   deny   them  the  legitimate  benefits   of   permanent employment.      10.  The situation that emerges out of the facts  which we   have  narrated  above,  however,  is  that  the   Delhi Administration  had at no stage engaged any of  the  present petitioners  for  its  work.  It is the  DRDA  which  as  an implementing  machinery  of  the Jawahar  Rozgar  Yojna  had given  to the present petitioners work on daily  wage  basis under the said Yojna.  The Yojna has not and cannot have  by its very nature any sanctioned strength of posts or workers. Even when the DRDA was implementing the said Yojna they were being  funded  by the Central Government  directly  for  the purpose of giving employment under the said Yojna.  They had to decide the rural works which they would undertake in  the next month and for that purpose to estimate in the last week of  the preceding month the number of workers  required  for the  same.   The  works  by their  very  nature  had  to  be undertaken  on daily wage basis and as soon as the works  at particular sites were over, the  workers were required to be shifted  to other sites.  The workers were engaged from  the

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areas  concerned  and those like the  petitioners  who  were willing to go to the sites where the work was available,were also  given  the  employment under the  scheme.   Even  that responsibility  of  the  implementation  of  the  Yojna  was transferred  by the Central Government from the DRDA to  the panchayats  directly  who, as stated above,  were  the  only agencies  which could choose the works to be carried out  as well  as  the work-force to be employed for the  works.  The finance  was also directly given to the panchayats  for  the purpose.   The only task that was entrusted to the DRDA  was to  monitor the working of the scheme by the panchayats.  In the circumstances, by the very nature of things neither  the DRDA nor the panchayats could be asked either to ensure work to  the petitioners every day or to regularise them.   There was  no  scope  for  regularisation  since  there  were   no sanctioned posts or the sanctioned strength of workers.      11.  It  further  appears from  the  annexures  to  the written  submissions  filed  by  the  petitioners  and   the respondent-Union of India that the Central                                                        578 Government  decided to discontinue even the  Jawahar  Rozgar Yojna  in the Union Territory of Delhi w.e.f.  1.1.1992  and the  Development  Commissioner-cum-Chairman, DRDA  has  been asked by the Government under their letter dated  26.11.1991 addressed  by  the  Joint Secretary,  Government  of  India, Ministry  of Rural Development to take steps to wind up  the employment programme under the said Yojna.      12.  In view of the aforesaid facts reliance placed  on behalf  of  the petitioners on the decisions of  this  Court where regularisation has been directed, is misplaced and the contentions based on them are misconceived.      13.  There is no doubt that broadly interpreted and  as a  necessary logical corollary, right to life would  include the  right to livelihood and, therefore, right to work.   It is for this reason that this Court in Olga Tellis & Ors.  v. Bombay Municipal Corporation & Ors., AIR 1986 SC 180,  while considering  the  consequences of eviction of  the  pavement dwellers had pointed out that in that case the eviction  not merely   resulted  in  deprivation  of  shelter   but   also deprivation of livelihood inasmuch as the pavement  dwellers were employed in the vicinity of their dwellings.  The Court had,  therefore, emphasised that the problem of eviction  of the pavement dwellers had to be viewed also in that context. This was, however, in the context of Article 21 which  seeks to  protect  persons against the deprivation of  their  life except  according  to procedure established  by  law.   This country has so far not found it feasible to incorporate  the right   to  livelihood  as  a  fundamental  right   in   the Constitution.   This is because the country has so  far  not attained  the capacity to guarantee it, and not  because  it considers  it any the less fundamental to life.   Advisedly, therefore,  it has been placed in the Chapter  on  Directive Principles  Article  41 of which enjoins upon the  State  to make  effective provision for securing the same "within  the limits of its economic capacity and development". Thus  even while giving the direction to the State to ensure the  right to  work, the Constitution-makers thought it prudent not  to do so without qualifying it.      14.  Viewed in the context of the facts of the  present case  it  is  apparent  that the  schemes  under  which  the petitioners  were  given  employment have  been  evolved  to provide income for those who are below the poverty line  and particularly during the periods when they are without any                                                        579 source  of  livelihood and, therefore,  without  any  income

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whatsoever.   The schemes were further meant for  the  rural poor,  for the object of the schemes was to  start  tackling the problem of poverty from that end.  The object was not to provide  the right to work as such even to the  rural  poor- much less to the unemployed in general.  As has been pointed out by the Union of India in their additional affidavit,  in 1987-88, 33 per cent of the total rural population was below the poverty line.  This meant about 35 million families.  To eliminate poverty and to generate full employment  2500-3000 million  mandays  of  work in a  year,  was  necessary.   As against  that, the Jawahar Rozgar Yojna could  provide  only 870  million mandays of employment on intermittent basis  in neighborhood  projects.  Within the available  resources  of Rs.  2600 crores, in all 3.10 million people alone could  be provided  with  permanent  employment, if they  were  to  be provided  work  for  273 days in a year  on  minimum  wages. However, under the scheme meant for providing work for  only 80-90 days work could be provided to 9.30 million people.      The  above figures show that if the resources used  for the  Jawahar Rozgar Yojna were in their entirety to be  used for  providing  full employment throughout  the  year,  they would  have given employment only to a small  percentage  of the  population  in  need  of  income,  the  remaining  vast majority  being  left with no income whatsoever.   No  fault could,  therefore, be found with the limited object  of  the scheme  given the limited resources at the disposal  of  the State.   Those employed under the scheme,  therefore,  could not ask for more than what the scheme intended to give them. To  get an employment under such scheme and to claim on  the basis of the said employment, a right to regularisation,  is to frustrate the scheme itself.  No court can be a party  to such  exercise.   It is wrong to approach. the  problems  of those  employed under such schemes with a view to  providing them  with  full employment and guaranteeing equal  pay  for equal work.  These concepts, in the context of such  schemes are both unwarranted and misplaced.  They will do more  harm than  good by depriving the many of the little  income  that they  may  get  to keep them from  starvation.   They  would benefit a few at the cost of the many starving poor for whom the  schemes are meant.  That would also force the state  to wind   up  the  existing  schemes  and  forbid   them   from introducing  the new ones, for want of resources.   This  is not  to say that the problems of the unemployed  deserve  no consideration  or sympathy.  This is only to emphasise  that even among                                                        580 the  unemployed a distinction exists between those who  live below  and above the poverty line, those in need of  partial and  those  in  need of full employment,  the  educated  and uneducated, the rural and urban unemployed etc.      15. Apart from the fact that the petitioners cannot  be directed  to be regularised for the reasons given above,  we may  take note of the pernicious consequences to  which  the direction  for regularisation of workmen on the only  ground that  they have put in work for 240 or more days,  has  been leading.   Although there is Employment Exchange  Act  which requires  recruitment  on the basis of registration  in  the Employment  Exchange,  it has become a  common  practice  to ignore the Employment Exchange and the persons registered in the  Employment  Exchanges, and to employ and  get  employed directly  those  who  are either  not  registered  with  the Employment  Exchange or who though registered are  lower  in the  long  waiting  list in the  Employment  Register.   The courts  can  take  judical  notice of  the  fact  that  such employment is sought and given directly for various  illegal

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considerations  including  money.  The employment  is  given first  for  temporary  periods  with  technical  breaks   to circumvent  the relevant rules, and is continued for 240  or more days with a view to give the benefit of  regularisation knowing the judicial trend that those who have completed 240 or  more days are directed to be automatically  regularised. A  good  deal  of illegal employment  market  has  developed resulting  in a new source of corruption and frustration  of those who are waiting at the Employment Exchanges for years. Not  all  those  who  gain  such  back-door  entry  in   the employment  are  in  need of the  particular  jobs.   Though already  employed elsewhere, they join the jobs  for  better and secured prospects.  That is why most of the cases  which come   to  the  courts  are  of  employment  in   Government Departments, Public Undertakings or Agencies.  Ultimately it is  the  people  who bear the heavy burden  of  the  surplus labour.     The   other   equally   injurious   effect    of indiscriminate  regularisation  has been that  many  of  the agencies have stopped undertaking casual or temporary  works though they are urgent and essential for fear that if  those who are employed on such works are required to be  continued for  240  or  more  days have  to  be  absorbed  as  regular employees although the works are time-bound and there is  no need  of  the  workmen beyond the completion  of  the  works undertaken.   The public interests are thus  jeopardised  on both counts.                                                        581      16. In the circumstances, it is not possible to  accede to  the request of the petitioners that the  respondents  be directed to regularise them.  The most that can be done  for them  is  to direct the respondent Delhi  Administration  to keep  them  on a panel and if they are registered  with  the Employment Exchange and are qualified to be appointed on the relevant  posts,  give  them  a  preference  in   employment whenever there occurs a vacancy in the regular posts,  which direction we give hereby.      With the above recommendation, we dismiss the  petition with no order as to costs.  R.P.                                   Petitions dismissed.                                                        582