Babita Rani and ors. Vs. Govt. of Nct of Delhi and anr. - Court Judgment

Excerpt:
constitution - 'authority' - constitution of india, article 12 - tests for determining - petitioners demanded the issuance of a writ, order or direction in the nature of mandamus, to direct the respondents to treat the petitioners at par with regular employees with all monetary consequential benefits i.e. equal pay for equal work, provident fund, gratuity, seniority, the benefits - respondents' contented that the trust was a private institution against which no writ of mandamus could be issued - tests for determining when a corporation could be said to be an instrumentality or agency of government - held, when any citizen or person is wronged the high court will step in to protect him, be that wrong be done by the state, an instrumentality of the state, a company or a co-operative society or association or body of individuals whether incorporated or not, or even an individual - petitions allowed labour - equal pay for equal work - constitution of india articles 14, 19 and 39(d) - petitioners doing the same work, both in quantity and quality, as that in any government service - whether by delivering equal amount of work, petitioners entitled to equal pay? - held, they are entitled for the same amount of pay, as enjoined by directive principles of the state policy and under right to equality enshrined under article 14 of the constitution - petitions allowed service - regularisation of - the petitioners' job is dependent upon the grant and donations by national and international bodies -but, the nature of work of the petitioners is such that the government will have to get the work continued in public interest despite the fact the donations are stopped - whether regularisation justified? - held, regularisation is justified, as the government is under a duty to take steps to eradicate diseases, in which petitioners are involved, irrespective of the fact whether donations are made or not - petitions allowed - - the court also emphasised the fact that the petitioners had cleared interviews, medical test as well as police verification before their `contractual' engagement came into existence. deaths 7 fold and increasing the success rate three times (by 300%). in 1997 the government of india decided to work and implement the strategy through revised national t. is transferred to a corporation, it would be a strong factor supportive of this inference' of the corporation being an instrumentality or agency of government'.if on a consideration of these relevant factors it is found that the corporation is an instrumentality or agency of government, it would, as pointed out in the international airport authority's case, be an 'authority' and, thereforee, state' within the meaning of the expression in article 12. 6. a restatement of the law is readily available in the decision in u. the language of article 226 does not admit of any limitation on the powers of high court for the exercise of jurisdiction there under though by various decisions of this court with varying and divergent views it has been held that jurisdiction under article 226 can be exercised only when body or authority, decision of which is complained, was exercising its pore in the discharge of public duty and that writ is a public law remedy. the amendment to article 226 in 1963 inserting article 226(1-a) reiterates the targets of the writ power as inclusive of any person by the expressive reference to 'the residence of such person'.but it is one thing to affirm the jurisdiction, another to authorize its free exercise like a bull in a china shop. this court has spelt out wise and clear restraints on the use of this extraordinary remedy and high courts will not go beyond those wholesome inhibitions except where the monstrosity of the situation or other exceptional circumstances cry for timely judicial interdict or mandate. if it failed to disclose its reasons to the court, the court would presume that it had no valid reasons to give and its action was, thereforee, arbitrary. any attempt to equate the scope of the power of the high court under article 226 of the constitution with that of the english courts to issue prerogative writs is to introduce the unnecessary procedural restrictions grown over the years in a comparatively small country like england with a unitary form of government into a vast country like india functioning under a federal structure. 52 and onwards). the court then said (1989)iillj324sc :the term 'authority' used in article 226 in the context, must receive a liberal meaning unlike the term in article 12. article 12 is relevant only for the purpose of enforcement of fundamental rights under article 32. article 226 confers power in the high courts to issue writs for enforcement of the fundamental rights as well as non-fundamental, rights. high court does not act like a proverbial `bull in china shop' in the exercise of its jurisdiction under article 226.'7. reliance has been placed on the decision of the central administrative tribunal, principal bench, in the case entitled anita k. lastly, it is not the case of the government that these doctors are not discharging their duties efficiently or meritoriously and, thereforee, they have to be paid less than what the doctors appointed on regular basis are paid. 32 and has asked us to direct the respondents to give him his due, the same as they have given others like him. nor are we concerned with questions required to be dealt with by authorities like the pay commissions such as equation of cadres or determination of parity-differential between different cadres or making a assessment of workloads or qualitative differential based on relevant considerations and such other matters. the tb eradication programme has progressed from at its nascent stages into a robust and palpably permanent project which cannot be discontinued because the scourge of tb is nowhere near eradication. at best the graph is not on the ascendancy. the administration has failed to formalise its recruitment policy, even though decades have elapsed. it is the respondents who are best placed to do so, upon the initial burden shifting to them.vikramajit sen, j.1. the petitioners in these petitions have prayed for regularisation of their services as tb health visitors/laboratory technicians. all of them have been working on so-called contractual terms for several years. in a few cases some of them have been engaged by non-governmental organisations (ngos) other than the delhi tapedik unmulan samiti (dtus), but in the aforementioned job prescription. their consolidated salary has also been paid by the respondents. the prayers made in the petitions are reproduced in juxtaposition:cw no.3568/03 and 5744-71/05cw no.6783-830/05i. direct the respondents to treat the petitioners at par with regular employees with all monetary consequential benefits i.e. equal pay for equal work provident fund, gratuity, seniority the benefits; andii. direct the respondents to not terminate the petitioners till regular appointments are made by the respondents and the petitioners shall be given the benefit of their service in preferential treatment in appointment giving them age relaxation etc.iii. pass such other order or orders as this hon'ble court may deem fit and proper in the facts and circumstances of the present case;i. issue a writ, order or direction in the nature of mandamus to direct the respondents to treat the petitioners at par with regular employees with all monetary consequential benefits i.e. equal pay for equal work provident fund, gratuity, seniority the benefits; andii. direct the respondents to regularise the services of the petitioners.iii. pass such other order or orders, as this hon'ble court may deem fit and proper in the facts and circumstances of the present case;2. the petitioners have also placed reliance on the decision dated 9.2.2005 in wp(c) no. 1929/1998 and 2510-2529/2005 entitled chandra prakash gupta v. mcd where it had been noted that some of the petitioners have been working from 1996 as tb health visitors on a fixed monthly salary of rs.4,000/- per month. their salaries have been paid by the municipal corporation of delhi (mcd)and the petitioners have been assigned to various societies or ngos who were engaged in the eradication of tuberculosis. it had been recorded that the mcd receives funds from various organisations such as the world bank, british overseas development agency, etc. but the alleged temporary nature of the funding had not deterred the court from passing orders regularising the services of the petitioners. the argument that the regularisation of some other tb health visitors would not justify passing similar orders in favor of the petitioners, as no regular vacancies were available, was rejected. the court also emphasised the fact that the petitioners had cleared interviews, medical test as well as police verification before their `contractual' engagement came into existence. the petitions were allowed and a direction was issued to regularise their services and fix their seniority from the date on which they had reported for duty. learned counsel for the respondents have made a futile attempt to distinguish the decision in chandra prakash delhi presently has a population of approximately two crores, with at least a hundred organisations working for the eradication of tb. on the strength of available figures, it appears that there is need for three hundred such organisations. along with the increase in population there will always be an increasing number of tb patients requiring medical assistance. international bodies such as the world bank, justify if not owe their existence to the need to provide finances for large scale activity such as the momentous schemes for the eradication of tuberculosis. there is a global thinking that in combating diseases of this nature, countries and organisations are not extending charity but are only fulfilling their basic obligations to mankind. it will be difficult for any international or national organisation which is funding these projects for the eradication of tb, dengu, malaria, etc. to justify refusal to make any financial allocations in the future. it is, thereforee, a sterile argument that the present activities, in which the petitioners are engaged, are dependent on funding from charities assuming that the world bank or the british overseas development agency stops or reduces its allocation it will always remain the constitutional obligation of the state to continue projects which have the objective of remedying or eradicating highly communicable and contagious diseases. thereforee, it cannot possibly be argued that the requirements of tb health visitors/laboratory technicians is seasonal, or temporary.3. in the rntcp performance report, india fourth quarter, 2004 the director general of health services has stated that rntcp covers 87% (947 million) of india's population, and it is planned that the entire country would be covered by june, 2005. in december, 2003 there was a coverage of 778 million persons and it has increased to 947 million by december, 2004 in the counter affidavit it has been admitted that the hard fact is that tuberculosis remains a big public health problem in india killing more people than hiv, std, malaria, leprosy and tropical diseases combined. india has maximum number of t.b. cases in the world having one third of global burden of t.b. 40% of our population is infected with the t.b. germs causing one death per minute in india. 218 new t.b. cases are added every year in one lac of population, even though the disease is fully curable by taking 3-5 drugs regularly in right dose for a period of 6-8 months. if the drugs are not properly administered during the prescribed period the germs become resistant and the drugs become ineffective.4. the counter affidavit also contains an asseveration to the effect that the world health organisation came out with a breakthrough strategy for tb control called dots (directly observed treatment-short course chemotherapy) which strategy envisages decentralised diagnosis and treatment through standardized algorithms and drugs. the compliance of the treatment is ensured by supervising the intake of drugs by trained workers/community volunteers. the respondents have stated that the pilot project was tested in delhi and another parts of india from 1993-96 with amazing results cutting t.b. deaths 7 fold and increasing the success rate three times (by 300%). in 1997 the government of india decided to work and implement the strategy through revised national t.b. control programme (rntcp) and in order to provide administrative flexibility and greater accountability the procurement and management of resources needed to implement the rntcp was entrusted to specially created independent societies registered under the societies registration act. the dtus was, according to the counter affidavit, constituted in these circumstances in 1997. having made this impressive narration it has been stated, for wholly inexplicable reasons and on unsure foundation that the establishment of new centres and the continuation of the old is required only for a limited period and, thereforee, the services of the petitioners are being hired on contract basis under the world bank assisted project.5. the next argument that respondent no.2 is not amenable to writ jurisdiction deserves to be summarily rejected. respondent no.2 fulfils a pubic function and owes its very existence to this purpose. it receives public funding, through the government acting at least as its monitor. bodies which may themselves not be 'article 12 authorities' who are totally dependent on public/governmental funding object to the exercise of writ jurisdiction in a vain attempt to insulate their unfair if not illegal actions from judicial review. a quarter century ago the law on this subject was laid down in ramana dayaram shetty v. international airport authority 1979 sc 1628. it was further explained in ajay hasia v. khalid mujib, : (1981)illj103sc in these words:9. the tests for determining as to when a corporation can be said to be an instrumentality or agency of government may now be culled out from the judgment in the international airport authority's case : (1979)iillj217sc . these tests are not conclusive or clinching, but they are merely indicative indicia which have to be used with care and caution, because while stressing the necessity of a wide meaning to be placed on the expression 'other authorities', it must be realised that it should not be stretched so far as to bring in every autonomous body which has some nexus with the government with the sweep of the expression. a wide enlargement of the meaning must be tempered by a wise limitation. we may summarise the relevant tests gathered from the decision in the international airport authority's case as follows:(1) 'one thing is clear that if the entire share capital of the corporation is held by government it would go a long way towards indicating that the corporation is an instrumentality or agency of government'.(2) 'where the financial assistance of the state is so much as to meet almost entire expenditure of the corporation, it would afford some indication of the corporation being impregnated with governmental character.'(3) 'it may also be a relevant factor...... whether the corporation enjoys monopoly status which is the state conferred or state protected'.(4) 'existence of 'deep and pervasive state control may afford an indication that the corporation is a state agency or instrumentality'.(5) 'if the functions of the corporation of public importance and closely related to governmental functions, it would be a relevant factor in classifying the corporation as an instrumentality or agency of government. '(6) 'specifically, if a department of govt. is transferred to a corporation, it would be a strong factor supportive of this inference' of the corporation being an instrumentality or agency of government'.if on a consideration of these relevant factors it is found that the corporation is an instrumentality or agency of government, it would, as pointed out in the international airport authority's case, be an 'authority' and, thereforee, 'state' within the meaning of the expression in article 12.6. a restatement of the law is readily available in the decision in u.p. state co-operative land development bank ltd. v. chandra bhan dubey and ors., . it would be most fruitful to reproduce the observations of the hon'ble supreme court in extensio, since an answer to the gravamen of the contention can be found therein:'the language of article 226 does not admit of any limitation on the powers of high court for the exercise of jurisdiction there under though by various decisions of this court with varying and divergent views it has been held that jurisdiction under article 226 can be exercised only when body or authority, decision of which is complained, was exercising its pore in the discharge of public duty and that writ is a public law remedy. in rohtas industries ltd. v. rohtas industries staff union, : (1976)illj274sc it has submitted before the constitution bench that an award under section 10-a of the industrial disputes act, 1947 savours of a private arbitration and was not amenable to correction under article 226 of the constitution. the court said as under (at p. 429 of air):'the expansive and extraordinary power of the high courts under article 226 is as wide as the amplitude of the language used indicates and so can affect any person - even a private individual - and be available for any (other) purpose - even one for which another remedy may exist. the amendment to article 226 in 1963 inserting article 226(1-a) reiterates the targets of the writ power as inclusive of any person by the expressive reference to 'the residence of such person'. but it is one thing to affirm the jurisdiction, another to authorize its free exercise like a bull in a china shop. this court has spelt out wise and clear restraints on the use of this extraordinary remedy and high courts will not go beyond those wholesome inhibitions except where the monstrosity of the situation or other exceptional circumstances cry for timely judicial interdict or mandate. the mentor of law is justice and a potent drug should be judiciously administered. speaking in critical retrospect and portentous prospect, the writ power has, by and large, been the people's sentinel on the qui vive and to cut back on or liquidate that power may cast a peril to human rights. we hold that the award here is not beyond the legal reach of article 226, although this power must be kept in severely judicious leash. many rulings of the high courts, pro and con, were cited before us to show that an award under section 10-a of the act is insulated from interference under article 226 but we respectfully agree with the observations of gajendragadkar, j. (as the then was) in engineering mazdoor sabha, : (1962)iillj760sc which nail the argument against the existence of jurisdiction. the learned judge clarified at p.640 (of scr): (at pp.881-82 of air) `article 226 under which writ of certiorari can be used in an appropriate case, is, in a sense, wider than article 136, because the power conferred on the high courts to issue certain writs is not conditioned or limited by the requirement that the said writs can be issued only against the order of courts or tribunals. under article 226 (1), an appropriate writ can be issued to any person or authority, including in appropriate cases any government, within the territories prescribed. thereforee, even if the arbitrator appointed under section 10-a is not a tribunal under article 136 in a proper case, a writ may lie against his award under article 226`'in life insurance corporation of india v. escorts ltd. : 1986(8)ecc189 another constitution bench had to say as under (at pp.1423 and 1424 of air):'it was, however, urged by the learned counsel for the company that the life insurance corporation was an instrumentality of the state and was, thereforee, debarred by article 14 from acting arbitrarily. it was, thereforee, under an obligation to state to the court its reasons for the resolution once a rule nisi was issued to it. if it failed to disclose its reasons to the court, the court would presume that it had no valid reasons to give and its action was, thereforee, arbitrary. the learned counsel relied on the decisions of this court in sukhdev singh, : (1975)illj399sc : maneka gandhi : [1978]2scr621 ; international airport authority : (1979)iillj217sc and ajay hasia : (1981)illj103sc . the learned attorney general, on the other hand, contended that actions of the state or an instrumentality of the state which do not properly belong to the field of public law but belong to the field of private law are not liable to be subjected to judicial review. he relied on o' reilly v. mackman 1982 (3) all er 1124; davy v. spelthone 1983 (3) all er 278; i congress del partido 1981)(2) all er 1064; r. v. east. berkshire health authority 1984(3)all er 425 and radhakrishna agarwal v. state of bihar : [1977]3scr249 . while we do find considerable force in the contention of the learned attorney general it may not be necessary for us to eter into any lengthy discussion of the topic, as we shall presently see. we also desire to warn ourselves against readily referring to english cases on questions of constitutional law, administrative law and public law as the law in india in these branches has forged ahead of the law in england, guided as we are by our constitution and uninhibited as we are by the technical rules which have hampered the development of the english law. in shri anandi mukta s.m.v.s.s.j.m.s. trust v. v.r. rudani : (1989)iillj324sc a two judge bench of this court was considering the question of 'issue of a writ of mandamus or writ in the nature of mandamus or any other appropriate writ or direction or order directing the appellant-trust and its trustees to pay to the respondents their due salary and allowances etc. in accordance with the rules framed by the university and to pay them compensation under certain ordinance of the university'.the high court before which the issue was raised held in favor of the respondents. this court noted that the essence of the attack on the maintainability of the writ petition under article 226 by the appellant was that it being a trust registered under the bombay public trust act was managing the college where the respondents were employed was not amenable to writ jurisdiction of the high court. in other words, the contention was that trust being a private institution against which no writ of mandamus could be issued. in support of the contention, the appellant referred the decisions of this court: executive committee of vaish degree college shamli v. lakshmi narain (1976) 2 scc 58: air 1976 sc 888 and deepak kumar bids was v. director of public instructions, : (1987)illj516sc . this court, however, distinguished those two decisions and said that the facts before it were different and that there was no plea for specific performance of contractual service by the respondents now in the case before it. respondents were not seeking a declaration that they be continued in service and they were not asking for mandamus to put them back into the college. but they were claiming only the terminal benefits and arrears of salary payable to them. the question thus was whether the trust could be compelled to pay by writ of mandamus? the court noted the observations of subba rao, j. in dwarkanath, huf v..t.o. special circle, kanpur, : [1965]57itr349(sc) as under (at pp.84 and 85 of air):'this article is couched in comprehensive phraseology and it ex facie confers a wide power on the high courts to reach injustice wherever it is found. the constitution designedly by used a wide language in describing the nature of the power, the purpose for which and the person or authority against whom it can be exercised, it can issue writs in the nature of prerogative writs as understood in england: but the scope of those writs also is widened by the use of the expression 'nature', for the said expression does not equate the writs that can be issued in india with those in england, but only draws an analogy from them. that apart, high courts can also issue directions, orders or writs other than the prerogative writs. it enables the high courts to mould the relief's to meet the peculiar and complicated requirements of this country. any attempt to equate the scope of the power of the high court under article 226 of the constitution with that of the english courts to issue prerogative writs is to introduce the unnecessary procedural restrictions grown over the years in a comparatively small country like england with a unitary form of government into a vast country like india functioning under a federal structure. such a construction defeats the purpose of the article itself.'the court also noted the observations of this court in praga tools corporation v. sh.c.a. imanual : (1969)iillj479sc as under (at pp. 1309-1310 of air):'it is, however, not necessary that the person or the authority on whom the statutory duty is imposed need be a public official or an official body. a mandamus can issue, for instance, to an official of a society to compel him to carry out the terms of the statutes under or by which the society is constituted or governed and also to companies or corporations to carry out duties placed on them by the statutes authorising their undertakings. a mandamus would also lie against a company constituted by a statute for the purpose of fulfilling public responsibility. (cf. halsbhury's laws of england, 3 d edn. vol. ii p. 52 and onwards). the court then said : (1989)iillj324sc :'the term 'authority' used in article 226 in the context, must receive a liberal meaning unlike the term in article 12. article 12 is relevant only for the purpose of enforcement of fundamental rights under article 32. article 226 confers power in the high courts to issue writs for enforcement of the fundamental rights as well as non-fundamental, rights. the words 'any person or authority' used in article 226 are, thereforee, not to be confined only to statutory authorities and instrumentalities of the state. they may cover any other person or body performing public duty. the form of the body concerned is not very much relevant. what is relevant is the nature of the duty imposed on the body. the duty must be judged in the light of positive obligation owned by the person or authority to the affected party. no matter by what means the duty is imposed, if a positive obligation exists mandamus cannot be denied.'and finally it said as under : (1989)iillj324sc :'here again we may point out that mandamus cannot be denied on the ground that the duty to be enforced is not imposed by the statute. commenting on the development of this law. professor, de smith states: to be enforceable by mandamus a public duty does not necessarily have to be one imposed by statute. it may be sufficient for the duty to have been imposed by charter, common law, custom or even contract. 'we share this view. the judicial control over the fat expanding maze of bodies affecting the rights of the people should not be pout into watertight compartment. it should remain flexible to meet the requirements of variable circumstances. mandamus is a very wide remedy which must be easily available `to reach injustice wherever it is found'. technicalities should not come in the way of granting that relief under article 226. we, thereforee reject the contention urged for the appellants on the maintainability of the writ petition.'in air india statutory corporation v. united labour union, : (1997)illj1113sc this court speaking through a bench of three-judges said (at p. 469 of air scw):'the public law remedy given by article 226 of the constitution is to issue not only the prerogative writ provided therein but also any order or direction to enforce any of the fundamental rights and 'for any other purpose.' the distinction between public law and private law remedy by judicial adjudication gradually marginalised ad became obliterated. i lic v. escorts ltd. : 1986(8)ecc189 , this court in paragraph 102 had pointed out that the difficulty will lie in demarcating the frontier between the public law domain and the private law field. the question must be decided in each case with reference to the particular action, the activity in which the state or he instrumentality of the state is engaged when performing the action, the public law or private law character of the question and the host of other relevant circumstances. therein, the question was whether the management of lic should record reasons for accepting the purchase of the shares? it was in that fact situation that this court held that there was no need to state reasons when the management of the shareholders by resolution reached the decision. this court equally pointed out in other cases that when the state's power as economic power and economic entrepreneur and allocator of economic benefits is subject to the limitations of fundamental rights, a private corporation under the functional control of the state engaged in an activity hazardous to the health and safety of the community, is imbued with public interest which the state ultimately purposes to regulate exclusively on its industrial policy. it would also be subject to the same limitations as held in m.c. mehta v. union of india, : [1987]1scr819 .'a full bench of the andhra pradesh high court in sri konaseema co-operative central bank ltd. amalapuram v. n. seetharama raju, air 1990 ap 171, was considering the question whether a writ petition lay against a cooperative society and if it does, in what circumstances. after examining various decisions and treatises on the subject it was stated that even if a society could not be characterised as a `state within the meaning of article 12 even so a writ would lie against it to enforce a statutory public duty which an employee is entitled to enforce against the society. in such a case, it is unnecessary to go into the question whether the society is being treated as a `person', or an `authority', within the meaning of article 226 of the constitution. what is material is the nature of the statutory duty placed upon it, and the court is to enforce such statutory public duty.in view of the fact that control of the state government on the appellant is all pervasive and the employees had statutory protection and, thereforee, the appellant being an authority or even instrumentality of the state would be amenable to writ jurisdiction of the high court under article 226 of the constitution. it may not be necessary to examine any further the question if article 226 makes a divide between public law and private law. prima facie from the language of the article 226 there does not appear to exist such a divide. to understand the explicit language of the article it is not necessary for us to rely on the decision of english courts as rightly cautioned by the earlier benches of this court. it does appear to us that article 226 while empowering the high court for issue of orders or directions to any authority or person does not make any such difference between public functions and private functions. it is not necessary for us in this case to go into this question as to what is the nature, scope and amplitude of the writs of habeas corpus, mandamus, prohibition, quo warrantor and certiorari. they are certainly founded on the english system of jurisprudence. article 226 of the constitution also speaks of directions and orders which can be issued to any person or authority including in appropriate cases, any government. under clause (1) of article 367 unless the context otherwise requires, the general clause act, 1897, shall subject to any adaptations and modifications that may be made therein under article 372 apply for the interpretation of the constitution as it applies for the inter relation of an act of the legislature of the dominion of india. 'person' under section 2(42) of the general clauses act shall include any company, or association or body of individuals, whether incorporated or not. constitution is not a statute. it is a fountain head of all the statutes. when the language of article 226 is clear, we cannot put shackles on the high courts to limit their jurisdiction by putting an interpretation on the words which would limit their jurisdiction. when any citizen or person is wronged the high court will step in to protect him be that wrong be done by the state, an instrumentality of the state, a company or a co-operative society or association or body of individuals whether incorporated or not, or even an individual. right that is infringed may be under part iii of the constitution or any other right which the law validly made might confer upon him. but then the power conferred upon the high courts under article 226 of the constitution is so vast, this court has laid down certain guide-lines and self-imposed limitations have been put there subject to which high courts would exercise jurisdiction, but those guide-lines cannot be mandatory in all circumstances. high court does not interfere when an equally efficacious alternative remedy is available or when there is established procedure to remedy a wrong or enforce a right. a party may not be allowed to by-pass the normal channel of civil and criminal litigation. high court does not act like a proverbial `bull in china shop' in the exercise of its jurisdiction under article 226.'7. reliance has been placed on the decision of the central administrative tribunal, principal bench, in the case entitled anita k. bhambhani v. union of india. the dialectic of the tribunal, inter alia, was that if the applicants can be employed in any other company or undertaking in the market because they belong to a skilled category or a professional category they are not entitled to any relief in the absence of the creation of posts. i cannot subscribe to this argument. trained skilled citizens of india are equally entitled to security and continuity of their services. the tribunal was unduly influenced by the obscure possibility of world bank refusing to continue granting 'aid'. it was unduly influenced by the extremely remote possibility to our government declining to allocate funds. the statement that 'simply because work is continuing and performance is satisfactory are no grounds at all for continuing the contract' can also not be accepted. it has been stated on so many occasions that the government must act as a model employer. thereforee, it cannot allow persons to suffer the vagaries of a contractual appointment where there is a continuing need of their services; and employing them through a contract is only a device to perpetuate impermanence in service. the principal bench of the central administrative tribunal had a similar question to consider in dr. j.p. palia v. government of national capital territory of delhi. the tribunal relied on the previous judgment in the case of dr. (mrs.) sangeeta narang v. delhi administration where it held that it would not be just and fair on the part of the government to terminate the services of temporary employee who may have been appointed for specific purpose even though the post has not been filled by regular incumbent but there is a need for manning such posts. it took note of the fact that there were a number of vacancies for doctors. the tribunal granted the same pay scale and allowances and other benefits of leave, increment as were admissible to medical officers appointed on regular basis from the date of their first appointment. respondents were also directed to give age relaxation to the applicants until regular appointments were made. the decision of the tribunal in bhambhai's case is not correct, whereas its decisions in the sangeeta and palia cases are in consonance with law. the government of national capital territory of delhi had filed writ petitions challenging this order of the tribunal which petitions were dismissed by the division bench of this court. the following observations are of importance:7. we may also, at this stage, notice the contention of the government counsel that the relief granted by the central administrative tribunal to the respondents amounts to back door entry into the service. the submission is not correct. the relief granter is confined to parity in salary and emoluments with those payable to the regular doctors. the directions issued to consider relaxation of age for the year of service rendered by the respondents on ad hoc or contract basis, if they happen to be candidates before the union public service commission for selection, cannot be considered as directing regularization or making any back door entry.in order to somehow justify the unequal treatment to the respondents, the learned counsel for the petitioners submitted that the respondent doctors are rejected from the regular selection process and, thereforee, they not claim equal treatment. this contention is totally misconceived and untenable. respondent doctors also possess the same degree and qualifications as those employed on regular basis. besides, the respondent doctors have also been admittedly employed on the basis of selection and scrutiny, though not through the union public service commission. it is the government which invited them to take up job through public advertisement and not vice versa. lastly, it is not the case of the government that these doctors are not discharging their duties efficiently or meritoriously and, thereforee, they have to be paid less than what the doctors appointed on regular basis are paid. it appears that a special leave petition was filed against the decision in dr. palia's case which was dismissed, and a review subsequently preferred was again rejected.8. i had occasion to consider the applicability of the principle of equal pay for equal work applies to contract employees in anil singh v. ndmc 2005 ii ad (delhi) 659. the literary prose of the apex court in randhir singh v. union of india, : (1982)illj344sc is worthy of reproduction time and again:-'equal pay for equal work' is not a mere demagogic slogan. it is a constitutional goal capable of attainment through constitutional remedies, by the enforcement of constitutional rights. so the petitioner claims; so the petitioner asserts. article 39(d) of the constitution proclaims, as a directive principle, the constitutional goal of 'equal pay for equal work for both men and women'. articles 14 and 19 guarantee respectively the fundamental rights to equality before the law and equality of opportunity in the matter of public employment and art. 32 provides the remedy for the enforcement of the fundamental rights. so the petitioner has invoked the jurisdiction of this court under art. 32 and has asked us to direct the respondents to give him his due, the same as they have given others like him. true, he is the merest microbe in the mightily organism of the state, a little clog in a giant wheel. but, the glory of our constitution is that it enables him to directly approach the highest court in the land for redress. it is a matter of no little pride and satisfaction to us that he has done so. hitherto the equality clauses of the constitution, as other articles of the constitution guaranteeing fundamental and other rights, were most often invoked by the privileged classes for their protection and advancement and for a 'fair and satisfactory' distribution of the buttered loaves amongst themselves. now, thanks to the rising social and political consciousness and the expectations roused as a consequence, and the forward looking posture of this court the underprivileged also are clamoring for their rights and are seeking the intervention of the court with touching faith and confidence in the court. the judges of the court have a duty to redeem their constitutional oath and do justice no less to the pavement dweller than to the guest of the five star hotel.the court did not wait for the employees/petitioners who were drivers in the delhi police to prove that they performed the same functions as drivers in the central government and delhi administration. the court took judicial note of a situation which shared everyone in the face. in harbans lal v. state of himachal pradesh, : (1989)iillj466sc the claim of carpenters in government service for parity of pay with carpenters in private companies was rejected.9. an effort should normally be made to ensure that persons doing the same work receive the same emoluments. however, there is a distinction between the services rendered in a work-charged establishment which does not create a right to payment equivalent to regular employees. (see state of maharashtra v. purshottam, : (1996)iillj649sc ; state of haryana v. jasmer singh, : (1997)iillj667sc ; state of haryana v. surinder kumar, : [1997]2scr917 ; state of rajasthan v. kunji raman, : (1997)iillj781sc . the petitioners before this court, however, are not work-charged employees. they have been working for the respondents on a job identical to other persons who have been regularised either by the mcd or pursuant to orders of this court. none of the regularised employees have been employed through the `backdoor', in the teeth of a fixed mode of recruitment; all of them entered service pursuant to contracts and have subsequently been regularised. this is not, thereforee, a case where contractual employees are stealing a march over others or are entering service unscrupulously, deviously or through the backdoor. in state of haryana v. piara singh, : (1993)iillj937sc the hon'ble supreme court had castigated and struck down the action of the state in employing persuade hors the established mode of recruitment by transforming the temporary service into regular service over a period of time., but this critique cannot be advanced in the present case.10. reliance has been placed on jawaharlal nehru technological university v. t. sumalatha : air2003sc3877 in which the temporary appointees under a scheme claimed employment in the government of andhra pradesh, which was negatived by the apex court. however, it had been opined that - 'in one sense the writ petitioners may be regarded as employees of the university as they were appointed by the university and the disciplinary control vests with the university. in another sense, they are protgs of the central government. go 212 has to be understood and applied, having due regard to its tenor and purpose. the government order, no doubt, envisages regularization of the services of the persons appointed on daily wages or consolidated pay who fulfill the conditions laid down therein. but, it is intended to cover the categories of employees working in the state government departments/institutions or bodies controlled or administered by the state government and in respect of whom the state government or such bodies have to bear the financial burden on account of regularization'. the court also declined to pass appropriate orders on the plea for equal pay for equal work because of the absence of details regarding the nature of work done by other employees and the equivalence of the job. it nevertheless expressed its anguish on the consolidated salary remaining static and stagnant. this precedent does not support the stand adopted by the respondent which indubitably who have not manifested any trappings or semblance to a model employer. similarly, the jawahar rojgar yojna scheme had the avowed objective of providing income to unemployed citizens at the very lowest strata of society. such a project could obviously not be compelled to permanently absorb transient beneficiaries. the supreme court observed that were the projects to come to a close, the services of the employees may also come to an end. in m.d., u.p. land dev. corporation. v. amar singh, : (2003)iiillj220sc the court while declining the prayer for regular appointment had noted that appointments had not been made against regularly sanctioned posts and the scheme under which the respondents were appointed had come to an end. these very reasons were expressed in mahendra l. jain v. indore development authority, : (2005)illj578sc for rejecting the hope and aspirations of daily-wagers for regularisation/permanence of their employment. the court opined that where a person had been employed 'for the purpose of a scheme, they do not acquire any vested right to continue after the project is over'. counsel for the respondents have laid store by bhagwan dass v. state of haryana, : [1987]3scr714 which in my view is misplaced, since the observations found therein must be understood in the factual matrix which existed. the petitioners 'had been appointed in the context of a scheme which is by the very nature of things transient and temporary. .... in our opinion, thereforee, the prayer of the petitioners to absorb them as regular employees on a permanent basis from the date of their initial appointment has no justification. that however does not mean that the petitioners should be deprived of the legitimate benefits of being fixed in a pay scale corresponding to the one applicable to respondents 2 to 6 by treating them as employees who have continued from the date of initial appointment by disregarding the breaks which have been given on account of the peculiar nature of the scheme. while, thereforee, the petitioners cannot claim as a matter of right to be absorbed as permanent and regular employees from the inception, they would be justified in claiming pay on the basis of the length of service computed from the ate of their appointment depending on the length of service by disregarding the breaks which have been given for a limited purpose' . on the claim for equal pay for equal work it was observed thus -'13. lastly we have to deal with the contention that the scheme is a temporary scheme and the posts are sanctioned on an year to year basis having regard to the temporary nature of the scheme. we are unable to comprehend how this factor can be invoked for violating 'equal pay for equal work' doctrine. whether appointments are for temporary periods and the schemes are temporary in nature is irrelevant once it is shown that the nature of the duties and functions discharged and the work done similar and the doctrine of equal pay for equal work' is attracted. as regards the effect of the breaks given at the end of every six months, we will deal with this aspect shortly hereafter. that however is no ground for refusing to respect the `equal pay for equal work' doctrine. be it realized that we are concerned with the `equal pay for equal work' doctrine only within the parameters of the found grounds and the fact situation discussed hereinabove. we are not called upon, and we have no need or occasion to consider the applicability or otherwise of the said doctrine outside these parameters. for instance we are not required to express any opinion in the context of employment of similar nature under different employers, or in different cadres under the same or different employers. nor are we concerned with questions required to be dealt with by authorities like the pay commissions such as equation of cadres or determination of parity-differential between different cadres or making a assessment of workloads or qualitative differential based on relevant considerations and such other matters. we are concerned in the present matter with employees of the same employer doing same work of same nature discharged in the same department but appointed on a temporary basis instead of in a regular cadre on a regular basis. we have thereforee decided the questions raised before us in the backdrop of fats of the present case. on the other dimensions of the doctrine we remain silent as there is no need or occasion to speak'.11. it is indeed always a difficult task for the court to adjudicate on the two issues that have arisen g?' firstly, equal pay for equal work and secondly regularisation of service. so far as first prayer is concerned it has not been argued and established that regular employees have been recruited through an established mode of recruitment. in other words, the employment of the petitioners was not illegal or even irregular. at the incipient stage the respondent could not anticipate or predict the development of the scheme and had perforce to resort to contractual appointments. it has also not been argued that the services rendered by the petitioners is anyway different, inferior or less responsible than that of any of the others. the tb eradication programme has progressed from at its nascent stages into a robust and palpably permanent project which cannot be discontinued because the scourge of tb is nowhere near eradication. at best the graph is not on the ascendancy. india is seen as and economic global power where foreign aid for calamities such as tsunami has been politically parried. economic relief has been extended by india to neighboring states. it does not behave the administration to avoid obstruct, deflect and decline relief to its own citizens by discontinuing the treatment of those afflicted by tb, and extending prodigal and discriminatory treatment to those employees working for its eradication for so many years manifesting a permanent need for the scheme, only on the specious grounds of dependency of foreign funding. there is an omnipresent danger of the fragmentation of the globe into irreconcilable group, if poverty and sickness is not combated by a collective effort of every nations. aid from the world bank and the united kingdoms is thus part of this world movement in which they would prefer to remain an integral part. thus tb projects are not time bound efforts. the administration has failed to formalise its recruitment policy, even though decades have elapsed. instead, it has presented a case where its activities are of a temporary nature, dependent on funds from outside agencies, neither of which premises are sustainable.12. in mahendra case the court found that the appointments were illegal in contradistinction to irregular and thereforee did not deserve to be regularised. the appointments were not in compliance with the provisions of the act and rules. the court also observed that the burden of proof for proving parity of employment, or equal pay for equal work, rested on the employees. in the present case there is an apparently obvious parity between the petitioners and others working in the mcd, which the respondents have not even attempted to explain or distinguish. it is the respondents who are best placed to do so, upon the initial burden shifting to them. after giving considerable thought to the matter i am of the opinion that the petitioners are certainly entitled to be paid the same emoluments as other tb health visitors/laboratory technicians. had a regular system of recruitment already been in place it may not have been proper to direct the regularisation of the petitioners other than direct their preferential consideration, including reduction in age bar etc. as and when regular employment is made. this was a decision in anil singh's case.13. these petitions are allowed with directions similar to those passed on 9.2.2005 in wp(c) no. 1929/1998 and 2510-2529/2005, which orders have not been appealed against become final. the service of the petitioners should be regularised and their seniority should be fixed from the date on which they reported for duty in accordance with the service records maintained by the respondents. the effect will be that from the passing of these orders the petitioners shall be entitled to receive pay, emoluments and all other benefits as are being received by regular/persons regularly appointed as tb health visitors/laboratory technicians in the municipal corporation of delhi. in the unlikely event of the tb eradication schemes coming to an end, the services of the petitioner may also come to an end.14. there shall be no orders as to costs.