REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.    2053        OF 2009 (Arising out of SLP (C) No.12687 of 2003)

Pinaki Chatterjee & Ors. … Appellants

Versus

Central Administrative Tribunal & Ors. … Respondents

J U D G M E N T

S.B. Sinha, J.

1. Leave granted.

2. The right of the appellants herein, if any, to be regularized in Class

‘C’ Services of the Railways is the question involved in this appeal which

arises out of a judgment and order of the High Court of Jharkhand at Ranchi

whereby and whereunder the writ petition filed by the appellants against the

order of the Central Administrative Tribunal, Patna Bench, Circuit Ranchi

passed in OA No.604 of 1997 and OA No.398 of 1998, was dismissed.

3. Appellants were directly appointed in Group ‘C’ posts except serial

No.5 in the Electrical Department of the Railway Electrification Project.  As

despite working for a long time, their services were not regularized, they

filed two original applications before the Central Administrative Tribunal,

Patna, Circuit  Bench, Ranchi,  praying, inter alia, for a direction upon the

respondents to finalise their regular absorption in the services in grade ‘C’

posts against the sanctioned strength which were marked as OA Nos.604 of

1997 and OA No.398 of 1998.  By reason of a judgment and order dated

5.7.2001, the said original applications were allowed, in part, directing :

“In  the  result,  the  applicants’  claim  to  be regularized  in  Group  ‘C’ post  as  asserted  in  the OAs in hand is not acceptable, instead they were required  to  be  regularized  in  feeder  cadre  in Group-‘D’ post by providing pay protection of ‘C’ post.”

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4. Appellants aggrieved thereby filed a writ petition in the High Court of

Jharkhand at Ranchi.  The said writ petition has been dismissed by reason of

the impugned judgment, stating :

“No doubt, the petitioners were casually employed in  Grade-C initially  and thereafter  they acquired temporary  status,  but  the  fact  remains,  and  the finding  of  the  fact  by  the  Tribunal  is,  that  the selections  of  the  petitioners  were  not  regular selections.  It is, no doubt, true that they had taken a  trade  test  when  they  were  recruited,  though casually  in  Grade-C.   But  that  would  not  make their selection regular selection.  In our view, the ratio of the decision of the Supreme Court that in such  promotional  posts,  there  should  not  be regularization and the regularization could only be in the lower grade, is clearly applicable to the case on hand.   We are satisfied that  the Tribunal  has correctly  come  to  the  conclusion  that  the petitioners  in  the  case  on  hand  could  be regularized  only  in  Group-D  posts,  though protecting their pay and not in Grade-C posts.  On going through the order of the Tribunal, we are not satisfied that it suffers from any error apparent on the face of the record justifying our interference. Nor can we accept the argument that the decision is  unjust  since  the  pay  of  the  petitioners  stood protected,  notwithstanding  the  fact  that  they  are sought to be regularized in a lower post.  In this situation, we see no reason to interfere.”

5. Mr. Sanyal, learned senior counsel in appearing support of the appeal,

would contend that keeping in view the facts and circumstances of the case

the services of the appellants should have been directed to be regularized in

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Group ‘C’ posts as they were appointed directly thereto.  It was urged that

the Tribunal and consequently, the High Court committed a serious error in

opining  that  the  posts  in  Group  ‘C’  in  the  Central  Government  were

required  to  be  filled  up  only  through  promotion  and  not  through  direct

recruitment.   The  learned  counsel  would  also  contend  that  from a  letter

dated 25.8.1997, which was issued by way of a representation made by the

appellants  to  the  General  Manager,  Central  Organisation,  Railway

Electrification, Allahabad, it would appear that they had, except one, were

directly appointed in the posts of T.C.M. Electrician Fitter, W/Driver Grade

‘C’ posts.   

Learned counsel would contend that it  is also not a case where the

appellants do not possess the requisite qualification.  They had also passed

the trade  test.   It  was furthermore urged that  the Patna  High Court  in  a

similar situation having granted relief, the Jharkhand High Court committed

a serious error in refusing to grant the same.

6. Mrs. K. Amareswari, learned senior counsel appearing on behalf of

the respondents, on the other hand, supported the impugned judgment.

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7. Indisputably, the vacant posts in the Railway Services are required to

be filled up in terms of the Recruitment Rules.  Respondents in their counter

affidavit, stated :

“In reply to this para, it is submitted that the 50% Direct  Recruitment  quota  meant  for  the  post  of permanent  way  Mistry  25%  vacancies  has  been earmarked  to  be  filled  up  through  limited departmental  Competitive  Examination  from amongst Gang Man/Key Man and Mates with the qualification  of  10+2  with  science  & maths  and having  put  minimum of  3  years  regular  service shortfall  of  any  be  made  good  from  amongst Gangman/Keyman/Mates having the qualification of  matriculation/HSLC  with  three  years  regular service.  Further, shortfall, if any, to be added upto the direct recruitment.”

8. Appellants,  indisputably,  were  appointed  as  daily  rated  casual

labourers for project  work.  The said  project  having been undertaken for

electrification of Railways at Ranchi was a time bound one.  It did not have

its  own cadre.   Engagement  of  any casual  labour  under  the said  project,

therefore,  did not  amount to any regular  recruitment.   It  may be that  the

Railway  Administration  had  committed  serious  illegalities  in  making

recruitment directly to the said posts, the same by itself would not confer

any right upon the appellants for being regularized in Group ‘C’ post.   

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The  question,  however,  which  arises  for  consideration  is  as  to

whether in the peculiar facts and circumstances of this case, the High Court

should have directed regularization of the services of the appellants.

It has not been denied or disputed that Railway Electrification was a

temporary  project.   As  noticed  hereinbefore,  the  posts  held  by  the

appellants, indisputably, were purely on a casual basis and not against any

cadre post.

Appellants furthermore have not been appointed upon compliance of

the provisions of Articles 14 and 16 of the Constitution of India and/or the

recruitment rules framed under the proviso appended to Article 309 of the

Constitution of India.   

Our  attention  has  been drawn to  a  Board circular  dated  11.5.1973

wherein, inter alia, it was laid down :

“(2) When casual labour are engaged in skilled categories,  the  relevant  scale  for  the  purpose  of determining  their  ages  (as  per  orders  regulating wages of Casual labour) will be that applicable to skilled  artisans.   On  attaining  temporary  status they  shall  be  paid  in  that  scale.   Similarly  for Project  Casual  Labour  is  skilled  categories  with 180  days  continuous  service,  consolidated  wage shall  be  at  the  minimum  of  the  scale  of  pay applicable  to  artisans  plus  DA payment  on  this basis will be admissible, however, from the date of

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passing  prescribed  trade  test  if  the same is  later than the date of attaining temporary status or date of  completion  of  180  days,  as  the  case  may be from whichever date is later.  No casual labour in skilled  category  can  be  engaged  without  the approval  of  an authority lower than a Divisional Engineer.

(Board’s No.E(NG)II/84/CL 58 of 20.12.85)

Note:- Past cases decided otherwise than in term of the letters  dated 20.12.1985 cited above or in terms  of  final  orders  of  a  court  of  competent jurisdiction,  shall  not  be  re-opened.   Where, however,  a  person  was  continuing  as  a  casual labour in a skilled category on 20.12.1985 (date of issue of the said letter) his case will be regulated prospectively in terms of the provisions of the said letter (dated 20.12.1985).

(3). Casual  labour  engaged  in  work  charged establishment  of  certain  Departments  who  get promoted  to  semi-skilled,  skilled  and  highly skilled  categories  due  to  non-availability  of regular  departmental  candidates  and  continue  to work as casual employees for a long period, can straightway  be  absorbed  in  regular  vacancies  in skilled  grades  provided  they  have  passed  the requisite  trade  test,  to  the  extent  of  25% of  the vacancies  reserved  for  departmental  promotion from  the  unskilled  and  semi-skilled  categories. These orders also apply to the casual labour when are  recruited  directly in  the  skilled  categories  in work  charged  establishments  after  qualifying  in the trade test.”

9. The said circular letter of the Railway Board which had been issued

long back, however, did not take into consideration the limitation of power

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of a State to make appointments in total disregard of mandatory provisions

of the recruitment rules and/or the constitutional provision.

This  aspect  of  the  matter  has  been  considered  in  A.  Umarani v.

Registrar, Cooperative Societies & Ors. [(2004) 7 SCC 112], holding :

“No regularization is, thus, permissible in exercise of the statutory power conferred under Article 162 of the Constitution if the appointments have been made in contravention of the statutory rules.”

Yet again in a Constitution Bench of this Court in Secretary, State of

Karnataka v.  Umadevi  (3) [(2006)  4  SCC 1],  laid  down  the  law in  the

following terms :

“43. Thus, it is clear that adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution,  a court  would certainly be  disabled  from passing  an  order  upholding  a violation  of  Article  14  or  in  ordering  the overlooking  of  the  need  to  comply  with  the requirements of Article 14 read with Article 16 of the  Constitution.  Therefore,  consistent  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.  If  it  is  a  contractual appointment, the appointment comes to an end at the end of the contract, if it were an engagement or appointment  on  daily  wages  or  casual  basis,  the

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same  would  come  to  an  end  when  it  is discontinued.  Similarly,  a  temporary  employee could  not  claim  to  be  made  permanent  on  the expiry of his term of appointment. It has also to be clarified  that  merely  because  a  temporary employee or a casual wage worker is continued for a  time  beyond  the  term  of  his  appointment,  he would  not  be  entitled  to  be  absorbed  in  regular service or made permanent, merely on the strength of  such  continuance,  if  the  original  appointment was  not  made  by  following  a  due  process  of selection as envisaged by the relevant rules. It is not  open  to  the  court  to  prevent  regular recruitment  at  the  instance  of  temporary employees whose period of employment has come to an end or of ad hoc employees who by the very nature  of  their  appointment,  do  not  acquire  any right. The High Courts acting under Article 226 of the  Constitution,  should  not  ordinarily  issue directions  for  absorption,  regularisation,  or permanent  continuance  unless  the  recruitment itself  was  made  regularly  and  in  terms  of  the constitutional scheme.”  

(Emphasis supplied)

Furthermore,  the  appellants  have  not  produced  their  offers  of

appointment.  If they were appointed only for the project work and that too

in ex-cadre posts, the same would never mean that they had appointed on a

regular basis.  It has not been shown that temporary status either had been or

could be granted to the appellants.

10. We are  not  oblivious  of  the  fact  that  some  Benches  had  taken  a

somewhat contrary view but recently in a Three Judge Bench decision of

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this Court in  Official Liquidator v.  Dayanand & Ors. [(2008) 10 SCC 1],

stated the law, thus :

“90. We  are  distressed  to  note  that  despite several  pronouncements  on  the  subject,  there  is substantial  increase  in  the  number  of  cases involving  violation  of  the  basics  of  judicial discipline. The learned Single Judges and Benches of the High Courts refuse to follow and accept the verdict and law laid down by coordinate and even larger  Benches  by citing  minor  difference  in  the facts as the ground for doing so. Therefore, it has become  necessary  to  reiterate  that  disrespect  to constitutional ethos and breach of discipline have grave  impact  on  the  credibility  of  judicial institution  and  encourages  chance  litigation.  It must  be  remembered  that  predictability  and certainty  is  an  important  hallmark  of  judicial jurisprudence developed in this country in last six decades  and  increase  in  the  frequency  of conflicting  judgments  of  the  superior  judiciary will do incalculable harm to the system inasmuch as the courts at the grass root will not be able to decide as to which of the judgment lay down the correct law and which one should be followed.  

91. We may add that in our constitutional set up every  citizen  is  under  a  duty  to  abide  by  the Constitution and respect its ideals and institutions. Those who have been entrusted with the task of administering  the  system  and  operating  various constituents of the State and who take oath to act in  accordance  with  the  Constitution  and  uphold the  same,  have  to  set  an  example  by  exhibiting total commitment to the Constitutional ideals. This principle  is  required to be observed with greater rigour by the members of judicial  fraternity who have been bestowed with the power to adjudicate upon important constitutional and legal issues and

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protect and preserve rights of the individuals and society as a whole. Discipline is sine qua non for effective and efficient  functioning of the judicial system.  If  the  Courts  command  others  to  act  in accordance with the provisions of the Constitution and rule of law, it is not possible to countenance violation  of  the constitutional  principle  by those who are required to lay down the law.”

11. In the facts and circumstances of this case, as noticed hereinbefore, in

our opinion, the decision of this Court in Union of India v. Moti Lal [(1996)

7 SCC 481] would be applicable wherein regularization on a promotable

post has been held to be impermissible in law, stating :

“9.  So far  as  the  first  question  is  concerned,  on examining the relevant provisions of the rules as well  as  the  administrative  instructions  issued  by the Railway authorities  we are of the considered opinion  that  it  is  not  permissible  to  appoint  a person  directly  as  a  mate  and  it  is  only  a promotional post from Class IV post of gangman and keyman. These gangmen and keymen can be promoted to the post of mate in Class III subject to their  suitability  and  efficiency  being  tested through  trade test.  It  is  no  doubt  true that  these respondents under certain circumstances had been appointed  directly  as  casual  mates  and  they continued  as  such  and  further  by virtue  of  their continuance  they  acquired  temporary  status  but that  by  itself  does  not  entitle  them  to  be regularised as mates since that would be contrary to the rules in force. In our considered opinion the respondents  did  not  acquire  a  right  for regularisation  as  mates  from  mere  fact  of  their continuance  as  casual  mates  for  a  considerable period.”

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12. For the reasons aforementioned, there is no merit in the appeal.  The

same is dismissed accordingly.  No costs.

……………………………….J. [S.B. Sinha]

..…………………………..…J. [Dr. Mukundakam Sharma]

New Delhi; March 31, 2009

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