REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL  APPEAL NOS. 2129-2130 OF 2004

UNION OF INDIA & ORS. — APPELLANTS

VERSUS

VARTAK LABOUR UNION — RESPONDENT

J U D G M E N T

D.K. JAIN, J.:

1. Challenge  in  these  appeals,  by  special  leave,  is  to  the  judgments  and  

orders  dated  27th March,  2001 and 22nd January,  2003 delivered  by  a  

Division Bench of the Gauhati High Court at Guwahati in Writ Appeal  

No. 548 of 1996 whereby it has directed appellant No.1 viz. Union of  

India to regularize the services of the members of the respondent Union,  

employed by the Border Roads Organization (for short the “BRO”), as  

postulated in Office Memo No. Sectt. BRDB ID No. BRDB/04(90)/99-

GE-II  dated  2nd February,  2001.  Appellants  No.  2  to  17  are  the  

functionaries of appellant     No. 1.  

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2. Shorn of unnecessary details, the facts essential for adjudication of the  

present appeals may be stated as follows:

The  respondent  is  a  registered  trade  union  comprising  of  casual  

workers employed by the BRO, in terms of paragraph 503 of the Border  

Road Regulations (for short “the Regulations”), some of whom have been  

working  with  the  BRO  for  the  last  thirty  years.  In  the  year  1993,  the  

respondent filed a writ petition before the Gauhati High Court praying for  

issuance  of  a  writ,  inter-alia, directing  appellant  No.1  to  regularize  the  

services of the members of the respondent.  

3. Vide judgment dated 27th August, 1996, the High Court allowed the writ  

petition,  and directed  appellant  No.1  to  regularize  the  services  of  the  

members of the respondent who have been in service for more than five  

years, within six months of the date of order.  

4. Being aggrieved, appellants filed a writ appeal before a Division Bench  

of the Gauhati High Court. The Division Bench, while partly allowing  

the  appeal,  modified  the  order  of  the  Single  Judge  on  the  basis  of  a  

circular dated 25th May, 1988 issued by one Brig. S.K. Mehta, D.D.G.  

(P&V), for and on behalf of the Director General Border Roads, New  

Delhi  to  all  Chief  Engineers  for  consideration  of  regularization  of  

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casually paid labourers employed by the BRO.  The Division Bench held  

that:

“There  shall  be  a  writ  of  mandamus  issued  to  the  appellant  herein with a direction to consider the case of these employees  who  are  working  in  the  above  Organization/Institution  who  have put in more than 5 (five) years and above period of service  for the purpose of regularization of their service in the light of  the  Circular  referred  to  above  keeping  in  view  of  the  requirements  of    Articles  14,  15 and 16 for  the  purpose  of  maintaining  the  reservation  Policy  followed  by  the  Govt.  of  India.

In  so  far  as  the  casual  labourers  working  in  the  organization/Institution  are  concerned,  they  shall  continue  to  work till they attain the eligibility coming within the purview of  the Circular for being considered.”

5. At this  juncture,  it  would  be  expedient  and useful  to  extract  relevant  

portions of the said circular, which read as follows:

“REGULARISATION OF CASUALLY PAID LABOURERS  EMPLOYED  IN  BORDER  ROADS  ORGANIZATION- CONSTITUTION OF BOARD OF OFFICERS TO EXAMINE  THE PROBLEMS.

1.  Border  Roads  Organisation  has  been  employing  a  large  number of Casual Labourers for the past 28 years. There have  been cases where Labour Unions have been formed though not  recognized by us,  as  also there  have been demands for their  regularization. A large number of Court cases are also pending,  connected with this issue.

2. Ministry of Surface Transport (BRDB) has offered a Board  of Officers to examine various aspects. The terms of reference  of the Board are at appendix ‘A’.

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3. Before the Board examines the terms of  reference as also  other  connected  aspects,  certain  data  is  required  from  the  Projects which is discussed in the succeeding paragraphs.

………………………………………………………………… …………………………………………………………………..

7. It may be appreciated that the recommendations of the Board  of  Officers  have far  reaching consequences.  Your views and  suggestions are, therefore should be deliberate and keeping in  view the long term implications of the suggestions made. CEs  are therefore, requested to kindly give personal thought to these  problems and make their recommendations accordingly.

8. We would expect your reply by 30 June 88 positively.”

6. Being aggrieved by the directions of the Division Bench, the appellants  

preferred an appeal, by special leave, before this Court. Vide order dated  

19th February, 1999, this Court, while allowing the appeal and remanding  

the matter back to the Division Bench, observed thus:

“It appears that there was some bona fide misunderstanding by  learned counsel  who appeared before  the  Division Bench on  behalf  of  the  appellants.  Even  that  apart,  the  Circular  dated  25.05.1988  on  which  reliance  was  placed  requires  a  closer  scrutiny of  the  Division Bench of  the  High Court.  This  was  unfortunately  not  done  because  of  the  aforesaid  misunderstanding.  Hence,  without  expressing any opinion on  the merits of the controversy between the parties, we deem it fit  in the interest of justice to allow this appeal and set aside the  order of the Division Bench.”

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7. During the course of fresh hearing of the writ appeal before the Division  

Bench, senior Central Government standing counsel appearing on behalf  

of the appellants stated that pursuant to circular dated 25th May 1988, the  

appellants had framed a scheme vide Office Memo No. Sectt. BRDB ID  

No. BRDB/04(90)/99-GE-II dated 2nd February, 2001, for the welfare of  

casually paid employees.  Upon perusal of the scheme and recording the  

satisfaction of the counsel appearing for the respondent-Union, the Court  

observed  that  the  scheme  had  been  framed  on  a  rational  basis.  

Accordingly, disposing of the writ appeal on the basis of the said office  

memo, the Division Bench directed the appellants to implement the said  

office memo dated 2nd February, 2001.

8. Still being aggrieved, the appellants preferred a review application before  

the High Court. Vide the impugned order, the Division Bench declined to  

entertain the said application.

9. Hence, the present appeals against the main judgment and the order in  

review.  

10.We  have  heard  learned  counsel  for  parties  and  perused  the  

documents/circulars referred to and relied upon by the High Court as also  

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some office notings produced before us by learned counsel appearing for  

the appellants.

11. Mr.  Vivek Tankha,  the  learned  Additional  Solicitor  General  of  India,  

strenuously urged that the High Court committed serious error in law in  

treating  communication  dated  2nd February  2001,  as  a  final  scheme  

framed for regularization of the casual labourers engaged by BRO for a  

maximum  period  of  6  months  at  a  time.   According  to  the  learned  

counsel, it is evident from communication dated 2nd February 2001, that  

as on that date the Border Roads Development Board was still  in the  

process of collecting information from other departments of the Central  

Government,  particularly  from  the  Railways  for  the  purpose  of  

examining if  any of  such schemes could be adopted in  the  BRO.  In  

support of his stand that so far no scheme for absorption or regularization  

of casual labourers had been devised, learned counsel placed before us  

some correspondence exchanged between the Headquarters of the Border  

Roads Development Board and the office of the Director General Border  

Roads, which shows that in view of the guidelines issued by the DOPT, it  

has not been possible to frame and implement any policy or scheme for  

regularization  of  muster  roll  working  in  BRO.   It  was  asserted  that  

circular dated 25th May 1988, on which emphasis is laid on behalf of the  

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respondent, was merely a proposal which has been misconstrued by the  

High Court as a scheme.  It was urged that the proposals or suggestions  

by the field officers in favour of the respondent Union did not result in  

creating any enforceable right in their favour.  Placing reliance on the  

decision  of  this  Court  in  Indian  Drugs  &  Pharmaceuticals  Ltd.  Vs.   

Workmen,  Indian  Drugs  &  Pharmaceuticals  Ltd.1,  learned  counsel  

submitted  that  formulation  of  any  scheme  for  regularization  being  a  

matter  of  policy,  it  is  not  within  the  domain  of  the  court  to  direct  

regularization  of  temporary  appointees  in  the  absence  or  dehors the  

recruitment rules.

12. Per contra, Dr. K.S. Chauhan, in his written submissions, has submitted  

that even if it is assumed that there is no approved proposal or scheme for  

regularization of the casual labourers, on the touchstone of Articles 14,  

16  and  21  of  the  Constitution  of  India,  this  Court  is  empowered  to  

examine whether the action of the appellants is not opposed to principles  

of  reasonableness  evolved by this  Court,  as  the casual  labourers  have  

been working with BRO for the last twenty to thirty years.  It is alleged  

that  the  appellants  are  intentionally  withholding  the  scheme dated  2nd  

February  2001  and,  therefore,  an  adverse  inference  must  be  drawn  

1 (2007) 1 SCC 408

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against  them.   In  support  of  his  submission  that  there  is  clear  

discrimination  between  the  members  of  the  Union  and  the  General  

Reserve  Engineering  Force  (GREF),  who  have  been  declared  to  be  

members of the Armed Forces in R. Viswan & Ors. Vs. Union of India  

& Ors.2, it is pointed out that the members of the respondent Union are  

facilitating the GREF in hard positions and dangerous locations in hilly  

areas to perform their  functions.   It  is  thus,  argued that  the directions  

issued by the High Court are fully justified and should be implemented.

13. We are of the opinion that  there is  force in the contentions  urged on  

behalf of the appellants and these must prevail.  We are convinced that  

the Division Bench has erroneously construed the Office memo dated 2nd  

February, 2001 as an approved scheme for absorption and regularization  

of the casual workers.   It  is  manifest  from a bare reading of the said  

memo  that  it  was  merely  in  the  nature  of  an  inter-department  

communication  between  the  Border  Roads  Development  Board  

headquarters and its officials.  We do not find any substance in the stand  

of learned counsel for the respondent that the appellants are withholding  

the approved scheme from this Court.  This plea of the respondent that a  

final scheme did come into existence on 2nd February 2001, stands belied  

2 (1983) 3 SCC 401

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from the letter of the Border Roads Development Board dated 22nd July  

2002.  It would be useful to extract the relevant portion of the said letter,  

which reads:

“In the year 1993, a Labour Welfare Scheme i.e. Scheme for  Grant  of  Temporary  Status  and  Regularisation  of  Casual  Workers was formulated.  Thus, when we approached DOPT  for approval to the scheme proposed by DGBP, they did not  support our proposal and advised us that if we felt that there are  sufficient grounds to formulate a separate scheme which is at  variance  with  the  scheme  of  DOPT,  we  may  approach  the  Cabinet for approval of such scheme.  The Secretariat delved  into the issue at length and came to the conclusion that there is  not sufficient justification for going to the Cabinet for approval  of  a  separate  scheme.   This  decision  has  already  been  communicated  to  the  Dte  GBR  vide  our  letter  No.BRDB/04(129)/2000-GE.II dated 24th June, 2002.”

14. It  is  trite  that  inter-departmental  communications  and  notings  in  

departmental  files  do not  have  the  sanction of  law,  creating  a  legally  

enforceable  right.  In  Sethi  Auto  Service  Station  &  Anr. Vs.  Delhi   

Development  Authority  &  Ors.3,  a  Division  Bench  of  this  Court,  in  

which one of us (D.K. Jain, J.) was a member has observed thus:

“Needless to add that internal notings are not meant for outside  exposure. Notings in the file culminate into an executable order,  affecting the rights of the parties, only when it reaches the final  decision-making authority in the department, gets his approval  and the final order is communicated to the person concerned.”  

3 (2009) 1 SCC 180

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15. Similar views are echoed in Jasbir Singh Chhabra & Ors. Vs. State of   

Punjab & Ors.4.  This Court has observed that:

“It must always be remembered that in a democratic polity like  ours,  the  functions  of  the  Government  are  carried  out  by  different individuals at different levels. The issues and policy  matters which are required to be decided by the Government  are  dealt  with  by  several  functionaries  some  of  whom may  record  notings  on  the  files  favouring  a  particular  person  or  group of  persons.  Someone  may  suggest  a  particular  line  of  action,  which  may  not  be  conducive  to  public  interest  and  others  may  suggest  adoption  of  a  different  mode  in  larger  public  interest.  However,  the final  decision is  required to be  taken by the designated authority  keeping in  view the larger  public interest.”

16. We  are  of  the  opinion  that  the  respondent  Union’s  claim  for  

regularization of its members merely because they have been working for  

BRO for  a  considerable  period  of  time cannot  be  granted  in  light  of  

several decisions of this Court, wherein it has been consistently held that  

casual  employment  terminates  when  the  same  is  discontinued,  and  

merely because a temporary or casual worker has been engaged beyond  

the period of his employment, he would not be entitled to be absorbed in  

regular service or made permanent, if the original appointment was not in  

terms of  the process envisaged by the relevant  rules.  (See:  Secretary,   

4 (2010) 4 SCC 192

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State of Karnataka & Ors. Vs. Umadevi (3) & Ors.5; Official Liquidator   

Vs.  Dayanand  &  Ors.6;  State  of  Karnataka  &  Ors.  Vs.  Ganapathi   

Chaya Nayak & Ors.7;  Union of  India & Anr.  Vs.  Kartick Chandra  

Mondal & Anr.; Satya Prakash & Ors. Vs. State of Bihar & Ors.8 and  

Rameshwar Dayal Vs. Indian Railway Construction Company Limited  

& Ors.9.)

17. In Umadevi (3) (supra), a Constitution Bench of this Court had observed  

that:

“It  was then contended that the rights of the employees thus  appointed,  under  Articles  14 and 16 of  the  Constitution,  are  violated.  It  is  stated that  the State  has treated the employees  unfairly by employing them on less than minimum wages and  extracting  work  from  them  for  a  pretty  long  period  in  comparison with those directly recruited who are getting more  wages or salaries for doing similar work. The employees before  us were engaged on daily wages in the department concerned  on a wage that was made known to them. There is no case that  the  wage  agreed  upon  was  not  being  paid.  Those  who  are  working  on daily  wages  formed  a  class  by  themselves,  they  cannot claim that they are discriminated as against those who  have been regularly recruited on the basis of the relevant rules.  No right can be founded on an employment on daily wages to  claim that  such employee should  be treated  on a  par  with  a  regularly  recruited  candidate,  and  made  permanent  in  employment, even assuming that the principle could be invoked  for  claiming  equal  wages  for  equal  work.  There  is  no  

5 (2006) 4 SCC 1 6 (2008) 10 SCC 1 7 (2010) 3 SCC 115 8 (2010)  4 SCC 179 9 (2010) 11 SCC 733

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fundamental right in those who have been employed on daily  wages or temporarily or on contractual basis, to claim that they  have a right to be absorbed in service. As has been held by this  Court,  they  cannot  be  said  to  be  holders  of  a  post,  since,  a  regular  appointment  could  be  made  only  by  making  appointments consistent  with the requirements of  Articles  14  and 16 of the Constitution. The right to be treated equally with  the  other  employees  employed  on  daily  wages,  cannot  be  extended to a claim for equal treatment with those who were  regularly employed. That would be treating unequals as equals.  It cannot also be relied on to claim a right to be absorbed in  service even though they have never been selected in terms of  the relevant recruitment rules. The arguments based on Articles  14 and 16 of the Constitution are therefore overruled.”

18. Explaining  the  dictum  laid  down  in  Umadevi  (supra),  a  three  judge  

Bench in Official Liquidator (supra) has observed that:

“In State of Karnataka v. Umadevi (3), the Constitution Bench  again  considered  the  question  whether  the  State  can  frame  scheme  for  regularisation  of  the  services  of  ad  hoc/temporary/daily  wager  appointed  in  violation  of  the  doctrine of equality or the one appointed with a clear stipulation  that such appointment will not confer any right on the appointee  to  seek regularisation  or  absorption  in  the  regular  cadre  and  whether  the  Court  can  issue  mandamus  for  regularisation  or  absorption  of  such  appointee  and  answered  the  same  in  negative.”

19.In light of the settled legal position and on a conspectus of the factual  

scenario noted above, the impugned directions by the High Court cannot  

be sustained.  These are set aside accordingly.

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20. Before  parting  with  the  case,  we  are  constrained  to  observe  that  the  

conduct of the appellants in engaging casual workers for a period of less  

than six months, and giving them artificial breaks so as to ensure that  

they do not become eligible for permanent status, as evidenced from the  

additional affidavit dated 23rd April, 2010 does not behove the Union of  

India  and  its  instrumentalities,  which  are  supposed  to  be  model  

employers. With anguish, we extract the relevant paragraph of the said  

affidavit:

“Relying  upon the  provisions  contained  in  Paragraph  501 to  518  of  the  Regulation,  it  was  contended  that  the  casual  labourers are mustered on daily or monthly basis. If on monthly  rates, the period of engagement shall be for a minimum period  of six months. It is a fact that large number of casual labourers  have worked with Project Vartak for number of years but their  period of  engagement  at  no  stage  has  existed  more  than  six  months  at  a  time.  Their  services  are  terminated  before  completion  of  six  month  and  as  per  requirement  they  are  recruited afresh by publishing Part II order by Mustering Unit.  Due  to  the  fact  that  they  have  not  been  in  continuous  engagement for more than six months they do not get the status  of permanent employee and accordingly as per Paragraph 503  of the Regulation referred to above, the casual personnel are not  eligible  for  any  other  privileges  for  continued  employment  under the Government.”

(Emphasis supplied by us)

21.Therefore,  in  the  facts  and  circumstances  of  the  instant  case,  where  

members of the respondent Union have been employed in terms of the  

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Regulations and have been consistently engaged in service for the past  

thirty to forty years, of course with short breaks, we feel, the Union of  

India  would  consider  enacting  an  appropriate  regulation/scheme  for  

absorption  and  regularization  of  the  services  of  the  casual  workers  

engaged by BRO for execution of its on-going projects.

22.In  the  final  analysis,  the  appeals  are  allowed,  and  the  impugned  

judgments and orders are set aside.  However, in the circumstances of the  

case, the parties are left to bear their own costs.

.……………………………………               (D.K. JAIN, J.)  

                             .…………………………………….              (H.L. DATTU, J.)

NEW DELHI; March 4, 2011. ARS

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