Sarjit Singh S/O Shri Jawant Singh Vs. Union of India (Uoi), Through - Court Judgment

Excerpt:
1. as these oas are founded on identical facts with an identical question of law raised as to whether the casual labourers with temporary status on regularization would have to be regularized from the date of accrual of vacancies or from the date preceding the selection of the concerned after adjudging them suitable as per the recruitment rules (rrs) in consonance with dopt om dated 10.9.1993, all these oas are being disposed by this common order.2. it is trite in the light of constitutional bench decision of the apex court in state of karnataka and ors. v. umadevi that regularization de hors the rules is against the principle of equality enshrined under article 14 of the constitution of india.accordingly, all the courts, below the apex court, are being precluded to issue directions of regularization pertaining to temporary, ad hoc casual or daily wages employees. however, on an exception carved out that those who have been engaged on an irregular appointment having completed ten or more years, as one time measure, their regularization would have to be processed. however, all the decisions, where regularization has been ordered, have been denuded from their precedent value. though the decision of the apex court cannot be interpreted as a statute yet the ratio decidendi could be inferred from what has been decided, which is the principle of interpretation laid down by the apex court. in this view of the matter, right, which has already accrued to a casual labour on grant of temporary status and where regularization has been one of the modes of appointment on substantive post to group `d' based on the directions of the tribunal. once the respondents have taken the applicants back in job, the decision of state of karnataka v.umadevi (supra), which has prospective ruling, would not nullify the outcome arrived as well as the finality arrived at in the case of regularization.3. in the light of above, the trite law is that government in its wisdom, as an administrative authority, despite accrual of vacancies is free not to fill up the posts. however, in a constitutional benchs decision of the apex court in shankarsan das v. uoi , it has been ruled that one who has been selected has no indefeasible right to be appointed but an exception to this is that when non-appointment suffers from discrimination under article 14&16 of the constitution of india or malafide is there by way of victimization, then in such an event, the rule of not filling the vacancies would not be attracted.4. accordingly, the apex court in malik mazhar sultan v uppcs (j) held that vacancies should not be left unfilled for a long time and adherence to the strict time schedule is to be followed by the government. the apex court has also ruled in batia rani bank v.pallab kumar (2004) scc (l&s) 715 that on accrual of vacancies, one does not have indefeasible right of appointment but the government on justifiable grounds can keep the vacancies unfilled.5. in the light of the above, the principle of law settled by the apex court is a binding precedent under article 141 of the constitution of india and when a claim for ante-dating regularization from the date of accrual of vacancies is processed, the respondents are obliged to explain before us in a judicial review their justifiable reasons for not filling the vacancies, which accrued in the past.6. in the present case, though the regularization of applicants, who were casual labourers with temporary status, being bestowed to them as an implication of dopt's om dated 10.9.1993 from the even date, their claims for regularization was processed in 2003 whereas the claim in rejoinder states that vacancies had accrued in june, august, september, 2001 and also in june, 2002. a representation to this effect was made, which culminated into a rejection order. the said order has been impugned in all the cases whereby regularization from date of accrual of vacancies or preponement of date of regularization has been denied only on the ground that this has been correctly processed in the light of instructions of the dopt om dated 10.9.1993.7. as per dopt om dated 10.9.1993, respondents, as a one time measure, to regularize the services of casual workers in the wake of a decision of the tribunal which has attained finality, has promulgated the scheme which provides on completion of three years' service by a casual labour bestowes upon him with the temporary status. it also envisages that as and when the vacancy is accrued and case of such casual worker with temporary status has to be processed on the vacancies accrued, out of every three vacancies one has to be utilized for regularization of casual labour with temporary status but amenable to the eligibility criteria laid down under the rules. in fact, there cannot be a promotion to the lowest rank of group `d' rather it is by way of a direct recruitment. in such view of the matter whatever the process has been envisaged in dopt om dated 10.9.1993, the methodology to be adopted would be of a direct recruitment as the applicants had been engaged on being sponsored through employment exchange and have qualified the written examination conducted by the respondents. they were amenable to the rrs being eligible in all respects.8. now, the question would arise as to whether the vacancies had accrued in 2001 or one vacancy in 2002, as pointed out by the applicant in rejoinder. as the main part of the pleadings do not contain such an averment, the respondents have been deprived of an opportunity to effectively rebut or admit this allegation as to accrual of the vacancies as the dates of accrual were not specific. we find that averment to this effect has been made in the list of dates which does not form part of the pleadings as per the law of pleadings. however, when a fact is averred and have its authenticity, then it is presumed to be in the knowledge of the respondents who are not only the employers but also the keepers of the record, which is confidential in nature. in such an event, the claim of the applicants is rejected for a non-specific ground of non-applicability of om dated 10.9.93. yet, now advancing the arguments by way of counter affidavit as well as similar argument, as a supplementary reasoning, to the effect that the vacancies could not have been ascertained to have accrued and as stated by the applicants that the dpc i.e. selection committee had met immediately after the applicants were regularized, cannot be countenanced in the light of the decision of the apex court in hindustan petroleum corporation v. darius chennai . a clear ruling to the effect that when an order passed by the respondents is silent, any supplementary reasoning would not make good the reasoning in the order and if no reasons are recorded, such a consideration would not be a valid consideration in the eyes of law.10. in the light of above, the supplementary pleadings taken by the respondents, as a ground to justify their action cannot be countenanced in law.11. arbitrary action of the government is an ante thesis to fair play.being modal employer, government should be equitable in approach in consonance with rules and instructions. they should not hesitate to admit what has been a lapse or an infraction to law. in judicial review, our jurisdiction is to examine whether any action of the government, when discretion is vested in them, has been exercised judiciously or not. to ascertain whether the discretion has been exercised judiciously, the reasoning thereof is a reflection of the action taken by the respondents. in such an event, any decision having no reasoning and no justifiable explanation not only causes prejudices to the concerned but also would not be in conformity of model role of an employer to which the government is expected to discharge.12. the issue of applicants regularization from the date when the vacancies accrued has to be seen and examined in the backdrop of the accrual of the vacancies, decision to fill up the vacancies, initiation of process for filling up the vacancies and ultimately when it is found that despite availability of the vacancies, when there is a ban for direct recruitment, the only mode of appointment in group d was nonetheless from persons other than who have been rendered surplus or the casual workers. the respondents are estopped from approbating and reprobating simultaneously because the date of accrual of these five vacancies is yet to be ascertained and authenticated by the respondents. however, there are some vacancies on which applicants have been regularized subsequently. if such a condition is perceived, for not filling of the vacancies by the respondents without giving any reason to justify their action, law shall take its own course and the claim of the applicants would have to be redressed.13. in the light of the above, though filling up of the vacancies is the prerogative of the respondents i.e. the government yet, we find that there is no justified explanation tendered by the respondents. the orders passed cannot be countenanced in law because justice is not only to be done but it is seen to be done. in the facts and circumstances of the case, we remand back the case to the respondents for reconsideration of the request of the applicants for pre-ponement of their regularization by taking into consideration not only law, rules and instructions but our observations as well, and pass a detailed, speaking and reasoned order within a period of three months from the date of receipt of a copy of this order. no costs.

Judgment:
1. As these OAs are founded on identical facts with an identical question of law raised as to whether the casual labourers with temporary status on regularization would have to be regularized from the date of accrual of vacancies or from the date preceding the selection of the concerned after adjudging them suitable as per the Recruitment Rules (RRs) in consonance with DoPT OM dated 10.9.1993, all these OAs are being disposed by this common order.

2. It is trite in the light of Constitutional Bench decision of the Apex Court in State of Karnataka and Ors. v. Umadevi that regularization de hors the rules is against the principle of equality enshrined under Article 14 of the Constitution of India.

Accordingly, all the Courts, below the Apex Court, are being precluded to issue directions of regularization pertaining to temporary, ad hoc casual or daily wages employees. However, on an exception carved out that those who have been engaged on an irregular appointment having completed ten or more years, as one time measure, their regularization would have to be processed. However, all the decisions, where regularization has been ordered, have been denuded from their precedent value. Though the decision of the Apex Court cannot be interpreted as a statute yet the ratio decidendi could be inferred from what has been decided, which is the principle of interpretation laid down by the Apex Court. In this view of the matter, right, which has already accrued to a casual labour on grant of temporary status and where regularization has been one of the modes of appointment on substantive post to Group `D' based on the directions of the Tribunal. Once the respondents have taken the applicants back in job, the decision of State of Karnataka v.Umadevi (supra), which has prospective ruling, would not nullify the outcome arrived as well as the finality arrived at in the case of regularization.

3. In the light of above, the trite law is that Government in its wisdom, as an administrative authority, despite accrual of vacancies is free not to fill up the posts. However, in a Constitutional Benchs decision of the Apex court in Shankarsan Das v. UOI , it has been ruled that one who has been selected has no indefeasible right to be appointed but an exception to this is that when non-appointment suffers from discrimination under Article 14&16 of the Constitution of India or malafide is there by way of victimization, then in such an event, the rule of not filling the vacancies would not be attracted.

4. Accordingly, the Apex Court in Malik Mazhar Sultan v UPPCS (J) held that vacancies should not be left unfilled for a long time and adherence to the strict time schedule is to be followed by the Government. The Apex Court has also ruled in Batia Rani Bank v.Pallab Kumar (2004) SCC (L&S) 715 that on accrual of vacancies, one does not have indefeasible right of appointment but the Government on justifiable grounds can keep the vacancies unfilled.

5. In the light of the above, the principle of law settled by the Apex Court is a binding precedent under Article 141 of the Constitution of India and when a claim for ante-dating regularization from the date of accrual of vacancies is processed, the respondents are obliged to explain before us in a judicial review their justifiable reasons for not filling the vacancies, which accrued in the past.

6. In the present case, though the regularization of applicants, who were casual labourers with temporary status, being bestowed to them as an implication of DoPT's OM dated 10.9.1993 from the even date, their claims for regularization was processed in 2003 whereas the claim in rejoinder states that vacancies had accrued in June, August, September, 2001 and also in June, 2002. A representation to this effect was made, which culminated into a rejection order. The said order has been impugned in all the cases whereby regularization from date of accrual of vacancies or preponement of date of regularization has been denied only on the ground that this has been correctly processed in the light of instructions of the DoPT OM dated 10.9.1993.

7. As per DoPT OM dated 10.9.1993, respondents, as a one time measure, to regularize the services of casual workers in the wake of a decision of the Tribunal which has attained finality, has promulgated the Scheme which provides on completion of three years' service by a casual labour bestowes upon him with the temporary status. It also envisages that as and when the vacancy is accrued and case of such casual worker with temporary status has to be processed on the vacancies accrued, out of every three vacancies one has to be utilized for regularization of casual labour with temporary status but amenable to the eligibility criteria laid down under the Rules. In fact, there cannot be a promotion to the lowest rank of Group `D' rather it is by way of a direct recruitment. In such view of the matter whatever the process has been envisaged in DoPT OM dated 10.9.1993, the methodology to be adopted would be of a direct recruitment as the applicants had been engaged on being sponsored through Employment Exchange and have qualified the written examination conducted by the respondents. They were amenable to the RRs being eligible in all respects.

8. Now, the question would arise as to whether the vacancies had accrued in 2001 or one vacancy in 2002, as pointed out by the applicant in rejoinder. As the main part of the pleadings do not contain such an averment, the respondents have been deprived of an opportunity to effectively rebut or admit this allegation as to accrual of the vacancies as the dates of accrual were not specific. We find that averment to this effect has been made in the List of Dates which does not form part of the pleadings as per the Law of Pleadings. However, when a fact is averred and have its authenticity, then it is presumed to be in the knowledge of the respondents who are not only the employers but also the keepers of the record, which is confidential in nature. In such an event, the claim of the applicants is rejected for a non-specific ground of non-applicability of OM dated 10.9.93. Yet, now advancing the arguments by way of counter affidavit as well as similar argument, as a supplementary reasoning, to the effect that the vacancies could not have been ascertained to have accrued and as stated by the applicants that the DPC i.e. Selection Committee had met immediately after the applicants were regularized, cannot be countenanced in the light of the decision of the Apex Court in Hindustan Petroleum Corporation v. Darius Chennai . A clear ruling to the effect that when an order passed by the respondents is silent, any supplementary reasoning would not make good the reasoning in the order and if no reasons are recorded, such a consideration would not be a valid consideration in the eyes of law.

10. In the light of above, the supplementary pleadings taken by the respondents, as a ground to justify their action cannot be countenanced in law.

11. Arbitrary action of the Government is an ante thesis to fair play.

Being modal employer, Government should be equitable in approach in consonance with rules and instructions. They should not hesitate to admit what has been a lapse or an infraction to law. In judicial review, our jurisdiction is to examine whether any action of the Government, when discretion is vested in them, has been exercised judiciously or not. To ascertain whether the discretion has been exercised judiciously, the reasoning thereof is a reflection of the action taken by the respondents. In such an event, any decision having no reasoning and no justifiable explanation not only causes prejudices to the concerned but also would not be in conformity of model role of an employer to which the Government is expected to discharge.

12. The issue of applicants regularization from the date when the vacancies accrued has to be seen and examined in the backdrop of the accrual of the vacancies, decision to fill up the vacancies, initiation of process for filling up the vacancies and ultimately when it is found that despite availability of the vacancies, when there is a ban for direct recruitment, the only mode of appointment in Group D was nonetheless from persons other than who have been rendered surplus or the casual workers. The respondents are estopped from approbating and reprobating simultaneously because the date of accrual of these five vacancies is yet to be ascertained and authenticated by the respondents. However, there are some vacancies on which applicants have been regularized subsequently. If such a condition is perceived, for not filling of the vacancies by the respondents without giving any reason to justify their action, law shall take its own course and the claim of the applicants would have to be redressed.

13. In the light of the above, though filling up of the vacancies is the prerogative of the respondents i.e. the Government yet, we find that there is no justified explanation tendered by the respondents. The orders passed cannot be countenanced in law because justice is not only to be done but it is seen to be done. In the facts and circumstances of the case, we remand back the case to the respondents for reconsideration of the request of the applicants for pre-ponement of their regularization by taking into consideration not only law, rules and instructions but our observations as well, and pass a detailed, speaking and reasoned order within a period of three months from the date of receipt of a copy of this order. No costs.