TaxTMI 
TaxTMI 
2008 (11) TMI 679
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....others in Calcutta High Court, Writ Petition No. 2728 of 2001 filed by Smt. Daya Dua and others in Delhi High Court, the record of these appeals and documents filed/produced by the learned counsel for the parties during the pendency of the appeals. These are: (i) There are two categories of employees in the offices of the Official Liquidators attached to different High Courts. The first category comprises of the employees who are appointed against the posts sanctioned by the Government of India, Department of Company Affairs. They are recruited in accordance with the procedure prescribed in the rules framed under proviso to Article 309 of the Constitution and the doctrine of equality enshrined in Articles 14 and 16 and are paid salaries and allowances from the Consolidated Fund of India. The second category comprises of the persons employed/engaged by the Official Liquidators pursuant to the sanction accorded by the concerned Court under Rule 308 of the 1959 Rules. The employees falling in this category are described as company paid staff. They are paid salaries and allowances from the fund created by disposal of the assets of the companies in liquidation. (ii) Fo....
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....led writ petition claiming parity with the government employees appointed in the office of the Official Liquidator. The Division Bench of that High Court took cognizance of the fact that there were two sets of employees under the Official Liquidator - (1) employees appointed by the Central Government, and (2) employees (14 in number) appointed by the Official Liquidator between 1980 and 1989 under Rule 308 of the 1959 Rules; that all the employees were doing the same work but were being paid different salaries and held that there was no rational basis for according unequal treatment to similarly situated employees. The Division Bench then referred to the 1978 Scheme, judgments of this Court in Narender Chadha vs. Union of India [1986 (2) SCC 157], Dhirendra Chamoli vs. State of U.P. [1986 (1) SCC 637], Surinder Singh and Another vs. Engineer-in-Chief, CPWD and Others [1986 (1) SCC 639], H.C. Puttaswamy vs. Hon'ble Chief Justice of Karnataka High Court, Bangalore [1991 (2) Supp. SCC 421], Bhagwati Prasad vs. Delhi State Mineral Development Corporation [1990 (1) SCC 361], Jacob M. Puthuparambil vs. Kerala Water Authority [1991 (1) SCC 28], Delhi Development Horticulture Employees....
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....Kerala High Court to amicably settle the issue ultimately has shown an unsympathetic attitude and that in the light of the several judgments of the Supreme Court, the appointees are entitled to regularisation and salaries as paid to the regular employees in the office of the Official Liquidator at least from three years prior to the date of the judgment of the Single Judge of the Calcutta High Court and in the Kerala cases from the date of appointment. On the other hand, Mr. Malhotra, learned Senior Counsel appearing for the Union of India submitted that the appointees were not appointed by the Government and they were not paid salaries from the consolidated fund. On the other hand, they were paid salaries from the companies concerned under liquidation. In certain High Courts, there are Official Liquidators and Court Liquidators appointed under Section 38-A of Banking (Regulation) Act. The banking companies under liquidation originally were 75, now only there are 32 banking companies under liquidation. The appointment under court orders are not for a permanent department like Official Liquidator's office and, therefore, the appointees cannot demand regularization and p....
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....s. 9. Although, the Government of India indicated its preference for option Nos. 2 and 3, this Court did not approve either of them and dismissed the appeals. The transferred writ petition was allowed in similar terms - Govt. of India and others vs. Court Liquidator's Employees Association and others [1999 (8) SCC 560]. Paragraphs 21 to 24 of the judgment which have bearing on these cases read as under: 21. In view of the peculiar facts of these cases and the positive findings of the High Courts with which we concur, we are unable to agree with the contention of the learned Senior Counsel for the appellants that the company-paid staff cannot be absorbed/regularised as they were not employed by the Government in accordance with the rules; that they knew their appointments were only temporary and that their pay was not from the consolidated fund. 22. Undoubtedly, counsel on both sides cited numerous authorities of this Court on earlier occasions sustaining the orders of absorption and setting aside the orders of absorption. We do not consider it necessary to refer to those decisions inasmuch as the facts presented before us and the findings rendered by the Hi....
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....ncies in direct recruitment quota and also issued letter dated 1.10.1999 containing guidelines for implementation of the same. That letter reads as under:- "To The Regional Director Department of Company Affairs Mumbai/Calcutta/Chennai/Kanpur. Sub: Absorption of company paid staff of the offices of Official Liquidators against Group C posts in the subordinate offices of the Department of Company Affairs on the lines of scheme devised in 1978 - Supreme Court's judgment - regarding. I am directed to refer to the Hon'ble Supreme Court's Judgment dated 27.08.99 (copy enclosed) on the subject mentioned above and to say that further action in the matter of absorption of the Company Paid Staff in regular Government service may please be taken on the following lines:- (i) Only such Company Paid Staff of the offices of the Official Liquidators shall be eligible for regular absorption: (a) Who were in position as on 27.08.99 and (b) Who possess the requisite educational qualification laid down in the recruitment rules for the post against which they are to be absorbed. The Regional Directors....
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....invited indicating separately the existing vacancies and the vacancies which may occur by 31.12.2000 and making it clear that the question of absorbing be persons recommended for the anticipated vacancies will arise only if the vacancies actually occur by 31.12.2000 and that mere recommendation of the Selection Committee will not confer any right on any Company Paid Staff for being appointed in Government service. 3. A quarterly report beginning with the quarter ended 31.12.99 may be sent to the Headquarters indicating the extent to which the Company Paid Staff has been absorbed in regular Government service." 12. Thereafter, the concerned authorities undertook exercise for absorption of the company paid staff in the regular cadres of the Department of Company Affairs. As a result of this, 295 out of 399 company paid staff who were in position on 27.8.1999 were adjudged suitable. of them 130 have been absorbed and 141 are awaiting orders. 104 were not recommended for absorption. 23 of the company paid staff either refused absorption or resigned or retired from service. 13. In the meanwhile, the company paid staff working under the Official Liquidators of Calcutta and....
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.... and every year of their service in the office of the Official Liquidator. 6. Although your petitioners are entitled to regularization of their service in terms of the Central Government employees, but the respondents and each of them neglected to give the petitioners all the service benefits as compared to a Central Government employee. 7. Although your petitioners have all requisite qualifications, experience, your petitioners were denied their right to work with utmost dignity and compelled to work in the office of respondent No. 3 with a temporary status, without any service benefits as admissible to a Central Government employee in similarly situated conditions. In a society, where unemployment is curse, your petitioners have had no other alternative but to accept the terms of service, as dictated by the respondents from time to time for running their office through your petitioners. 18. Your petitioners state that they were not a party in the said proceedings, before the Hon'ble Supreme Court of India, hence the aforesaid order of the Hon'ble Supreme Court of India, is not applicable to your petitioners. Your petitioners further state that t....
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....the Official Liquidator. They pleaded that their work is of perennial nature and their duties and functions are identical to those of regular employees, but they are not being paid salary in the regular pay scale. They further pleaded that the direction given by the Supreme Court was not limited to the absorption of any particular category of company paid staff, but the 1999 Scheme is confined to Group C' posts and the employees who are eligible for absorption against Group D' posts are being discriminated. Another plea taken by the petitioners was that only 11 of company paid staff have been absorbed/regularized against Group C' posts and others have been left out in lurch. Clauses (a), (b) and (c) of the prayer clause of Writ Petition No. 2728 of 2001 read as under:- "a) regularize the service of the petitioners in Group C' Central Government posts from the date of their initial appointment; b) without prejudice to prayer (a) above, in the alternate, frame Scheme as directed by the Hon'ble Supreme Court for absorption of all the petitioners in Group C' Central government posts giving therein due regard to their seniority as Group C' c....
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.... W.P. No. 13871/2001 (Calcutta High Court) 19. The learned Single Judge briefly referred to the pleadings of the parties and held that relief deserves to be granted to the petitioners because the findings and conclusions recorded by Calcutta and Kerala High Courts in the earlier round of litigation were approved by the Supreme Court. in Govt. of India and others vs. Court Liquidator's Employees Association and others (supra), the learned Single Judge then prepared a comparative table of the two schemes and held that the 1999 Scheme is illusory because all the company paid staff cannot be absorbed against 50% vacancies of the direct recruitment quota. On the issue of absorption of the company paid staff against Group D' posts, the learned Single Judge observed that there is no rational reason to confine the benefit of the 1999 Scheme qua Group C' posts. He also delved into the legality of the absorption of respondent Nos. 5 to 26 and held that the recommendations made by the Selection Committee de hors the seniority of the company paid staff has the effect of vitiating the selection. He, however, declined to nullify the absorption of the private respondents on the gro....
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....r the purpose of absorption, their cases shall not be considered." 20. The Division Bench dismissed the appeal preferred by the appellants herein by recording the following observations: "Since the matter regarding the right of the company paid staff of the office of the official liquidators has been decided and confirmed upto the Hon'ble Supreme Court, all that needs to be worked out is that manner in which such employees are to be absorbed in the offices of the different Official Liquidators of the different High Courts. We are in agreement with the sentiments expressed by the learned Single Judge that no a section but all the company paid staff working in the office of the Official Liquidator upto the cut off date as provided in the 1999 Scheme are to be absorbed in the office of the Official Liquidator, High Court at Calcutta, even if it means by creation of supernumerary post as observed by the learned Single Judge. Needless to say, such posts will be personal to those appointed and will cease to be in existence upon the incumbent attaining the age of superannuation." W.P. No. 2728/2001 (Delhi High Court) 21. The learned Single Judge referred to ....
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....er law. I issue a writ of mandamus to the respondents to absorb the petitioners in their appropriate scales with all benefits such as fitment and promotions, if any, even if posts have to be created for the petitioners. Illegality and discrimination cannot be allowed to perpetuate indefinitely. They will also be entitled to pension, provident fund, gratuity and all benefits which are to be computed on the basis of their length of service. The petitioners shall be entitled to arrears of three years which shall be paid by the respondents to the petitioners within a period of six months." [Emphasis supplied] 22. Letters Patent Appeals preferred by the appellants were dismissed by the different Division Benches of the High Court. While deciding LPA No. 808 and 809/2003, the Division Bench took cognizance of the fact that during the pendency of contempt case filed in Calcutta High Court with the complaint that order dated 26.3.2001 passed by the Single Judge of that High Court in W.P. No. 211/2001 has not been complied with, the Central Government created 51 posts of Group B', C' and D' and absorbed the staff working in the office of the Court Liquidator with eff....
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....ssed by Delhi High Court filed I.A. (unnumbered) in S.L.P. (C) No. 12798/2005 for placing on record the following documents:- (i) Copy of the details of posts with office of Official Liquidator of High Court of Bombay filed on 18.7.2008 along with tables consisting of names of the company paid staff and the date of absorption and table containing names of the 26 company paid staff from Group C' and Group D'. (ii) Letter No. 12011/3/2003-Admn.II dated 2nd September, 2005 sent by Under Secretary to the Government of India, Ministry of Company Affairs to the Regional Directors of Ministry of Company Affairs of Noida, Kolkata, Mumbai and Chennai in the matter of optimization of direct recruitment to civilian posts of Group C' and D' posts in the Ministry for the years 2001-2002, 2002-2003 and 2003-2004 and abolition/filling up of some such posts. (iii) Letter No. OL/24/Staff/Part VII/1875/G dated 30th June, 2008 sent by the Official Liquidator of Calcutta High Court to the Regional Director, Eastern Region, Kolkata reiterating the need for increase of manpower. (iv) Copy of order dated 19.9.2005 passed by the Division Bench of Delhi H....
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....submitted that even though this Court approved the reasoning and conclusions of Calcutta and Kerala High Courts, orders passed by those Courts were rendered ineffective because operation and implementation thereof was stayed for six months and in terms of opportunity given to it, the Government of India not only framed the 1999 Scheme for absorption of the company paid staff, but also implemented the same. Shri Malhotra argued that High Court committed serious error by issuing direction for absorption of all the company paid staff in the regular cadres ignoring the fact that the 1999 Scheme was confined to Group C posts and that too upto 50% vacancies in the direct recruitment quota. Learned counsel emphasized that the 1999 Scheme was modeled on the 1978 Scheme and argued that the same cannot be faulted on the ground that due to abolition of posts in the Department of Company Affairs, large number of company paid staff may not get absorbed in the regular cadres till their retirement. Shri Malhotra pointed out that as early as in 2001, the Government of India had taken a policy decision to substantially reduce direct recruitment to all the cadres and recommendations made by the Scre....
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....es A-D) and 30.6.2008 written by the Official Liquidator and Assistant Director (Inspection), Kolkata as also letter dated 2.9.2005 written by the Under Secretary to the Government of India, Ministry of Company Affairs to the Regional Directors, NOIDA/Kolkata/Mumbai/Chennai on the subject of Optimization of Direct Recruitment to Civilian Posts in Group C and D and submitted that even though in the assessment of officers at the ground level, there is a dire need for increasing the strength of different cadres, the Government of India has in the garb of implementing the policy decision taken in 2001, abolished large number of posts in the direct recruitment quota, which became available in 2001-02 to 2003-04 and, in this manner, the 1999 Scheme has been made redundant. Shri Gupta invited our attention to the charts and details produced by him to show that even after being recommended by the Selection Committee as many as 141 of the company paid staff, who were in position on 27.8.1999, have not been absorbed till this day. He submitted that the Government of India cannot sit tight over the matter and frustrate the right of the company paid staff to be absorbed in the regular cadres d....
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....ff who have not been absorbed even after 20 years service. She pointed out that the Official Liquidator of Delhi High Court employed/engaged company paid staff after due advertisement and selection and argued that non-availability of sanctioned posts cannot justify wholesale denial of the right to equality guaranteed to the respondents under Articles 14 and 16 of the Constitution. Learned counsel heavily relied on the observations made by the Division Bench of Kerala High Court in O.P. No. 9732 of 1990 decided on 27.8.1993 and vehemently argued that in view unequivocal approval of that order in Government of India and others vs. Court Liquidator's Employees Association and Ors. (supra), the learned Single Judge of the Delhi High Court had no choice but to issue mandamus for regularization of the services of the respondents herein with consequential benefits. Learned counsel invited the Court's attention to order dated 26.3.2001 passed by the Calcutta High Court in Writ Petition No. 211 of 2001 and submitted that after having sanctioned 51 posts for absorption of the staff working under the Court Liquidator of Calcutta High Court, it is not open to the Central Government to ....
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....ctive and inoperative and the respondents cannot derive any benefit from those orders and direction. 33. Now on merits. Rules 308 and 309 of 1959 Rules, which were framed by this Court under Section 643 of the Companies Act, 1956 to facilitate employment of special or additional staff in any liquidation and payment of salaries and allowances to such staff read as under:- 308. Employment of additional or special staff - Where the Official Liquidator is of opinion that the employment of any special or additional staff is necessary in any liquidation, he shall apply to the Court for sanction, and the Court may sanction such staff as it thinks fit on such salaries and allowances as to the Court may seem appropriate. 309. Apportionment of expenses of common staff - Where any staff is employed to attend to the work of more than one liquidation, or any establishment or other charges are incurred for more than one liquidation, the expenses incurred on such staff and the common establishment and other charges, shall be apportioned by the Official Liquidator between the several liquidations concerned in such proportions as he may think fit, subject to the directions of t....
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....ion that they shall not be entitled to seek regularization or absorption in the regular cadre against the sanctioned post. Those who applied in response to the advertisements issued by the Official Liquidators must have been aware of the fact that they were being engaged/employed pursuant to the sanction accorded by the Court under Rule 308 of the 1959 Rules in connection with liquidation proceedings; that their appointments will not be against the posts sanctioned by the Government; that they will have no right to claim absorption in the regular cadre and that they will be paid salaries and allowances which may be fixed by the Court. They must have accepted the appointment/engagement knowing fully well that they will have fixed tenure without any right to continue in service or to seek absorption against the sanctioned posts. It was neither the pleaded case of the respondents before the High Courts nor Shri Bhaskar P. Gupta and other learned counsel appearing on their behalf argued before this Court that their clients were lured into accepting employment as company paid staff by the Official Liquidators by promising absorption in future against the sanctioned posts or that they we....
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....he Government of India to frame a scheme modeled on the 1978 Scheme but also stayed implementation of the orders impugned in the appeal and the one passed by itself in the transferred writ petition. If the Court intended that all members of the company paid staff working on the date of judgment i.e. 27.8.1999 should be absorbed in the regular cadres against Group C' and D' posts, then a simple direction to that effect would have been sufficient and there was no occasion to stay the implementation of the orders of the High Courts for six months with liberty to the Government of India to frame a new scheme within the same period. The absence of such a direction shows that the Court was very much conscious of the fact that recruitment to the regular cadres is governed by the rules framed under Article 309 of the Constitution and it would be highly detrimental to public interest to issue direction for wholesale absorption/regularization of the company paid staff and thereby abrogate/stultify opportunity of competition to younger generation comprising more meritorious persons who may be waiting for a chance to apply for direct recruitment. Obviously, the Court did not want to sa....
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....mployed in Government departments. The position of the company paid staff of Delhi High Court is different. The details furnished by Ms. Jyoti Mendiratta show that 27 of the company paid staff have been absorbed under the 1999 Scheme. of the remaining 26 company paid staff, all except 1 had worked for more than 10 years as on 27.8.1999. 9 of the company paid staff had worked for 20 years or more. However, they could not be absorbed due to abolition of posts in furtherance of the policy decision taken by the Government of India. 39. The additional documents produced by Shri Malhotra show that in the year 2001, the Government of India had taken a policy decision to reduce the strength of civilian staff in all the cadres. This was reflected in the speech made by the Finance Minister, Government of India, while presenting the budget for 2001-02. He stated that all requirements of recruitment will be scrutinized to ensure that fresh recruitment is limited to 1% of total civilian staff strength and there will be reduction in manpower by 2% per annum, achieving a reduction of 10% in 5 years. Thereafter, OM No. 2/8/2001-PIC dated 16.5.2001 was issued by the Government of India. Paragrap....
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....cleared by the Screening Committee will not be filled up by promotion or otherwise and these posts will stand abolished." 40. For implementation of the aforementioned decision, the Screening Committee met sometime in March, 2005 and decided to reduce the number of posts in the regular cadres of the Department of Company Affairs. The background note circulated to the members of the Screening Committee vide Office Memo No. A.12011/3/2003-Ad.II dated 14.3.2005 made a clear mention of the orders passed by the Calcutta and Delhi High Courts in favour of the company paid staff, dismissal of the appeal by the Division Bench of Calcutta High Court, pendency of similar appeals before the Division Bench of Delhi High Court and the Government's decision to process the matter for filing SLP against the orders of Calcutta High Court. The Screening Committee which met on 16.3.2005 considered and approved abolition of the direct recruitment quota posts for the years 2001-2002, 2002-2003 and 2003-2004. The decision of the Screening Committee was circulated to various offices of the Ministry of Company Affairs vide letter No. A.12011/3/2003-Admn.II dated 2.9.2005. This exercise was in conson....
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....and abolition of posts are all decided by the Government in the interest of administration and general public; (e) the court would be the least competent in the face of scanty material to decide whether the Government acted honestly in creating a post or refusing to create a post or its decision suffers from mala fides, legal or factual; (f) as long as the decision to abolish the post is taken in good faith in the absence of material, interference by the court is not warranted." 43. In Secretary, State of Karnataka vs. Uma Devi (supra), the Constitution Bench adverted its attention to financial implications of creation of extra posts and held that the Courts should not pass orders which impose unwarranted burden on the State and its instrumentalities by directing creation of particular number of posts for absorption of employees appointed on ad hoc or temporary basis or as daily wagers. 44. In Divisional Manager, Aravali Golf Club and another vs. Chander Hass and another [(2008) 1 SCC 683] also, a two-Judges Bench considered the issue relating to creation of post and held:- "15. The court cannot direct the creation of posts. Creation and sanction of....
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....ect matter of debate and adjudication in several cases. 49. The judgments of 1980s and early 1990s - Dhirendra Chamoli vs. State of U.P. [1986 (1) SCC 637], Surinder Singh and Another vs. Engineer-in-Chief, CPWD and Others [1986 (1) SCC 639], Daily Rated Casual Labour vs. Union of India [1988 (1) SCC 122], Dharwad District P.W.D. Literate Daily Wage Employees' Association vs. State of Karnataka [1990 (2) SCC 396], Bhagwati Prasad vs. Delhi State Mineral Development Corporation (supra), State of Haryana vs. Piara Singh (supra) are representative of an era when this Court enthusiastically endeavored to expand the meaning of equality clause enshrined in the Constitution and ordained that employees appointed on temporary/ad hoc/daily wage basis should be treated at par with regular employees in the matter of payment of salaries and allowances and that their services be regularized. In several cases, the schemes framed by the governments and public employer for regularization of temporary/ad-hoc/daily wag/casual employees irrespective of the source and mode of their appointment/ engagement were also approved. In some cases, the courts also directed the State and its instrumentali....
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....nt Horticulture Employees Union vs. Delhi Administration, Delhi and others [1992 (4) SCC 99] in the following words: "23. Apart from the fact that the petitioners cannot be directed to be regularised for the reasons given above, we may take note of the pernicious consequences to which the direction for regularisation of workmen on the only ground that they have put in work for 240 or more days, has been leading. Although there is an Employment Exchange Act which requires recruitment on the basis of registration in the Employment Exchange, it has become a common practice to ignore the Employment Exchange and the persons registered in the Employment Exchanges, and to employ and get employed directly those who are either not registered with the Employment Exchange or who though registered are lower in the long waiting list in the Employment Register. The courts can take judicial notice of the fact that such employment is sought and given directly for various illegal considerations including money. The employment is given first for temporary periods with technical breaks to circumvent the relevant rules, and is continued for 240 or more days with a view to give the benefit of ....
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.... of Pondicherry and Others [1997 (1) SCC 350], Ashwani Kumar and Others vs. State of Bihar and Others [1997 (2) SCC 1], Santosh Kumar Verma and Others vs. State of Bihar and Others [1997 (2) SCC 713], State of U.P. and Others vs. Ajay [1997 (4) SCC 88], Patna University vs. Dr. Amita Tiwari [1997 (7) SCC 198] and Madhyamik Shiksha Parishad vs. Anil Kumar Mishra [2005 (5) SCC 122]. 52. The shift in the Court's approach became more prominent in A. Umarani vs. Registrar, Cooperative Societies [2004 (7) SCC 112], decided by a three-Judges Bench, wherein it was held that the State cannot invoke Article 162 of the Constitution for regularization of the appointments made in violation of the mandatory statutory provisions. In Secretary, State of Karnataka vs. Uma Devi (supra), the Constitution Bench again considered the question whether the State can frame scheme for regularization 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 regularization or absorption in the regular cadre and whether the Court can issue mandam....
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....n 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 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 Articl....
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....ion to make permanent--the distinction between regularisation and making permanent, was not emphasized here--can only encourage the State, the model employer, to flout its own rules and would confer undue benefits on a few at the cost of many waiting to compete. With respect, the direction made in para 50 (of SCC) of Piara Singh is to some extent inconsistent with the conclusion in para 45 (of SCC) therein. With great respect, it appears to us that the last of the directions clearly runs counter to the constitutional scheme of employment recognised in the earlier part of the decision. Really, it cannot be said that this decision has laid down the law that all ad hoc, temporary or casual employees engaged without following the regular recruitment procedure should be made permanent." 54. In paragraph 54, the Constitution Bench clarified that the earlier decisions which run counter to the principles settled by it will stand denuded of their status as precedents. 55. In Jawaharlal Nehru Technological University vs. T. Sumalatha (Smt.) and others [2003 (10) SCC 405], a two-Judges Bench considered an issue somewhat similar to the one being considered in these appeals. The facts of ....
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....overnment or to the University to regularize the services of Respondents 1 to 5, if necessary, by creating additional posts." 56. After rejecting the plea of the respondents for regularization of service, this Court adverted to the issue of increase in their salary and held: "9. Though the plea of regularization in respect of any of the fifth respondents cannot be countenanced, the respondent employees should have a fair deal consistent with the guarantee enshrined in Articles 21 and 14 of the Constitution. They should not be made to work on a meager salary for years together. It would be unfair and unreasonable to extract work from the employees who have been associated with the nodal centre almost from its inception by paying them remuneration which, by any objective standards, is grossly low. The Central Government itself has rightly realized the need to revise the consolidated salary and accordingly enhanced the grant on that account on two occasions. That revision was made more than six years back. It is high time that another revision is made. It is therefore imperative that the Ministry concerned of the Union of India should take expeditious steps to increase the....
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....-Judges Bench in Maneka Gandhi vs. Union of India [1978 (1) SCC 248]. 58. The facts of U.P. SEB vs. Pooran Chand Pandey (supra) were that the respondents (34 in number) were employed as daily wage employees by the Cooperative Electricity Supply Society in 1985. The Society was taken over by Uttar Pradesh Electricity Supply Board in 1997 along with daily wage employees. Earlier to this, the Electricity Board had taken a policy decision on 28.11.1996 to regularize the services of its employees working on daily wages from before 4.5.1990, subject to their passing the examination. The respondents moved the High Court claiming benefit of the policy decision dated 28.11.1996. The learned Single Judge of the High Court held that once the employees of the society became employees of the Electricity Board, there was no valid ground to discriminate them in the matter of regularization of service. The Division Bench approved the order of the Single Bench. A two-Judges Bench of this Court dismissed the appeal of the Electricity Board. In para 11 of its judgment, the two-Judges Bench distinguished Secretary, State of Karnataka vs. Uma Devi (supra) by observing that the ratio of that judgment....
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....olicy decision taken by the Board and whether the High Court committed an error by invoking Article 14 of the Constitution for granting relief to the writ petitioners. The question whether the Electricity Board could frame such a policy was neither raised nor considered by the High Court and this Court. The High Court simply adverted to the facts of the case and held that once the daily wage employees of the society became employees of the Electricity Board, they could not be discriminated in the matter of implementation of the policy of regularization. Therefore, the two-Judges Bench had no occasion to make any adverse comment on the binding character of the Constitution Bench judgment in Secretary, State of Karnataka vs. Uma Devi (supra). 60. There have been several instances of different Benches of the High Courts not following the judgments/orders of coordinate and even larger Benches. In some cases, the High Courts have gone to the extent of ignoring the law laid down by this Court without any tangible reason. Likewise, there have been instances in which smaller Benches of this Court have either ignored or bypassed the ratio of the judgments of the larger Benches including ....
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....s in following words: "The doctrine of binding precedent has the merit of promoting a certainty and consistency in judicial decisions, and enables an organic development of law, besides providing assurance to the individual as to the consequence of transaction forming part of his daily affairs. and, therefore, the need for a clear and consistent enunciation of legal principle in the decisions of a court." 63. In Sundarjas Kanyalal Bhatija and others vs. Collector, Thane [1989 (3) SCC 396], a two-Judges Bench observed as under: "In our system of judicial review which is a part of our constitutional scheme, we hold it to be the duty of judges of superior courts and tribunals to make the law more predictable. The question of law directly arising in the case should not be dealt with apologetic approaches. The law must be made more effective as a guide to behaviour. It must be determined with reasons which carry convictions within the courts, profession and public. Otherwise, the lawyers would be in a predicament and would not know how to advise their clients. Sub-ordinate courts would find themselves in an embarrassing position to choose between the conflicting opi....
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....three learned Judges. 5. The learned Attorney-General submitted that a Constitution Bench judgment of this Court was binding on smaller Benches and a judgment of three learned Judges was binding on Benches of two learned Judges - a proposition that learned counsel for the appellants did not dispute. The learned Attorney-General drew our attention to the judgment of a Constitution Bench in Sub-Committee of Judicial Accountability v. Union of India (1992 (4) SCC 97) where it has been said that "no coordinate Bench of this Court can even comment upon, let alone sit in judgment over, the discretion exercised or judgment rendered in a cause or matter before another coordinate Bench" (SCC p. 98, para 5). The learned Attorney-General submitted that the appropriate course for the Bench of two learned Judges to have adopted, if it felt so strongly that the judgment in Nityananda Kar (1991 Supp. (2) SCC 506) was incorrect, was to make a reference to a Bench of three learned Judges. That Bench of three learned Judges, if it also took the same view of Nityananda Kar, could have referred the case to a Bench of five learned Judges. 6. In the present case the Bench of two learne....
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.... its contemporary status - both would be immediate casualty" 67. In State of U.P. and others vs. Jeet S. Bisht and another [2007 (6) SCC 586], when one of the Hon'ble Judges (Katju, J.) constituting the Bench criticized the orders passed by various Benches in the same case, the other Hon'ble Judge (Sinha, J.) expressed himself in the following words: "100. For the views been taken herein, I regret to express my inability to agree with Brother Katju, J. in regard to the criticisms of various orders passed in this case itself by other Benches. I am of the opinion that it is wholly inappropriate to do so. One Bench of this Court, it is trite, does not sit in appeal over the other Bench particularly when it is a coordinate Bench. It is equally inappropriate for us to express total disagreement in the same matter as also in similar matters with the directions and observations made by the larger Bench. Doctrine of judicial restraint, in my opinion, applies even in this realm. We should not forget other doctrines which are equally developed viz. Judicial Discipline and respect for the Brother Judges." 68. In U.P. Gram Panchayat Adhikari Sangh vs. Daya Ram Saroj [200....
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....ss root will not be able to decide as to which of the judgment lay down the correct law and which one should be followed. We may add that in our constitutional set up every citizen is under a duty to abide by the Constitution and respect its ideals and institutions. Those who have been entrusted with the task of administering the system and operating various constituents of the State and who take oath to act in accordance with the Constitution and uphold the same, have to set an example by exhibiting total commitment to the Constitutional ideals. This principle is required to be observed with greater rigour by the members of judicial fraternity who have been bestowed with the power to adjudicate upon important constitutional and legal issues and protect and preserve rights of the individuals and society as a whole. Discipline is sine qua non for effective and efficient functioning of the judicial system. If the Courts command others to act in accordance with the provisions of the Constitution and rule of law, it is not possible to countenance violation of the constitutional principle by those who are required to lay down the law. 71. In the light of what has been stated above, w....
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....ral Excise Stenographers (Recognized) Union vs. Union of India [1988 (3) SCC 91], Mewa Ram Kanojia vs. A.I.I.M.S. [1989 (2) SCC 235], V. Markandeya vs. State of A.P. [1989 (3) SCC 191], Harbans Lal and others vs. State of Himachal Pradesh and others [1989 (4) SCC 459], State of U.P. and others vs. J.P. Chaurasia and others [1989 (1) SCC 121], Griha Kalyan Workers' Union vs. Union of India [1991 (1) SCC 619], Ghaziabad Development Authority vs. Vikram Chaudhary [1995 (5) SCC 210], State of Haryana and others vs. Jasmer Singh and others [1996 (11) SCC 77], State of Haryana vs. Surinder Kumar [1997 (3) SCC 633], Union of India vs. K.V. Baby [1998 (9) SCC 252], State of Orissa vs. Balram Sahu [2003 (1) SCC 250], Utkal University vs. Jyotirmayee Nayak [2003 (4) SCC 760], State of Haryana and another vs. Tilak Raj and others [2003 (6) SCC 123], Union of India vs. Tarit Ranjan Das [2003 (11) SCC 658], Apangshu Mohan Lodh vs. State of Tripura [2004 (1) SCC 119], State of Haryana vs. Charanjit Singh [2006 (9) SCC 321], Hindustan Aeronautics Ltd. vs. Dan Bahadur Singh (supra), Kendriya Vidyalaya Sangathan vs. L.V. Subramanyeswara (supra) and Canteen Mazdoor Sabha vs. Metallurgical and En....
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....nd Engineering Consultants (India) Ltd. (supra), another two-Judges Bench held that simply because some employees of a contractor of the alleged head employer are performing the task or duties similar to the employees of the head employer, it will not entitle such employees to claim parity. 76. As mentioned earlier, the respondents were employed/engaged by the Official Liquidators pursuant to the sanction accorded by the Court under Rule 308 of the 1959 Rules and they are paid salaries and allowances from the company fund. They were neither appointed against sanctioned posts nor they were paid out from the Consolidated Fund of India. Therefore, the mere fact that they were doing work similar to the regular employees of the office of the Official Liquidators cannot be treated as sufficient for applying the principle of equal pay for equal work. Any such direction will compel the Government to sanction additional posts in the offices of the Official Liquidators so as to facilitate payment of salaries and allowances to the company paid staff in the regular pay scale from the Consolidate Fund of India and in view of our finding that the policy decision taken by the Government of Ind....
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....n cannot be invoked for sustaining the directions given by the High Courts for absorption of all company paid staff with consequential benefits or for nullifying the policy decision taken by the Government to gradually reduce the direct recruitment quota. 78. The concept of "due process of law" has played a major role in the development of administrative law. It ensures fairness in public administration. The administrative authorities who are entrusted with the task of deciding lis between the parties or adjudicating upon the rights of the individuals are duty bound to comply with the rules of natural justice, which are multifaceted. The absence of bias in the decision making process and compliance of audi alteram partem are two of these facets. The doctrine of legitimate expectation is a nacent addition to the rules of natural justice. It goes beyond statutory rights by serving as another device for rendering justice. At the root of the principle of legitimate expectation is the constitutional principle of rule of law, which requires regularity, predictability and certainty in government's dealings with the public - J. Raz, The Authority of Law [(1979) Ch. 11]. The legal ce....
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....ht not to act to defeat the legitimate expectation' without some overriding reason of public policy to justify its doing so. In a case of legitimate expectation' if the authority proposes to defeat a person's legitimate expectation' it should afford him an opportunity to make representations in the matter. In this connection reference may be made to the discussions on legitimate expectation' at page 151 of Volume 1(1) of Halsbury's Laws of England - Fourth Edition (re-issue). We may also refer to a decision of the House of Lords in Council of Civil Service Unions v. Minister for the Civil Service. It has been held in the said decision that an aggrieved person was entitled to judicial review if he could show that a decision of the public authority affected him of some benefit or advantage which in the past he had been permitted to enjoy and which he legitimately expected to be permitted to continue to enjoy either until he was given reasons for withdrawal and the opportunity to comment on such reasons. It may be indicated here that the doctrine of legitimate expectation' imposes in essence a duty on public authority to act fairly by taking into c....
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....arbitrary, and this is how the requirement of due consideration of a legitimate expectation forms part of the principle of non-arbitrariness, a necessary concomitant of the rule of law. Every legitimate expectation is a relevant factor requiring due consideration in a fair decision-making process. Whether the expectation of the claimant is reasonable or legitimate in the context is a question of fact in each case. Whenever the question arises, it is to be determined not according to the claimant's perception but in larger public interest wherein other more important considerations may outweigh what would otherwise have been the legitimate expectation of the claimant. A bona fide decision of the public authority reached in this manner would satisfy the requirement of non-arbitrariness and withstand judicial scrutiny. The doctrine of legitimate expectation gets assimilated in the rule of law and operates in our legal system in this manner and to this context." [Emphasis supplied] 83. In Union of India and others vs. Hindustan Development Corporation and others [1993 (3) SCC 499] this Court considered the doctrine of legitimate expectation and held: "For legal purposes....
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.... invoke the doctrine of legitimate expectation in favour of the appellant who claimed compensation of pre-mature termination of the contractual appointment as Judicial Member of the Rajasthan Taxation Appellate Tribunal. 86. In Dr. Chanchal Goyal (Mrs.) vs. State of Rajasthan [2003 (3) SCC 485], the appellants claim for absorption in the regular cadre/regularization of service was rejected by the High Court. While approving the orders of the Single and Division Benches of the High Court, this Court observed: "23. On the facts of the case delineated above, the principle of legitimate expectation has no application. It has not been shown as to how any act was done by the authorities which created an impression that the conditions attached in the original appointment order were waived. Mere continuance does not imply such waiver. No legitimate expectation can be founded on such unfounded impressions. It was not even indicated as to who, if any, and with what authority created such impression. No waiver which would be against requisite compliances can be countenanced. Whether an expectation exists is, self-evidently, a question of fact. Clear statutory words override any ex....
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.... should be legitimate, that is, reasonable, logical and valid. Any expectation which is based on sporadic or casual or random acts, or which is unreasonable, illogical or invalid cannot be a legitimate expectation. Not being a right, it is not enforceable as such. It is a concept fashioned by the courts, for judicial review of administrative action. It is procedural in character based on the requirement of a higher degree of fairness in administrative action, as a consequence of the promise made, or practice established. In short, a person can be said to have a "legitimate expectation" of a particular treatment, if any representation or promise is made by an authority, either expressly or impliedly, or if the regular and consistent past practice of the authority gives room for such expectation in the normal course. As a ground for relief, the efficacy of the doctrine is rather weak as its slot is just above "fairness in action" but far below "promissory estoppel". It may only entitle an expectant: (a) to an opportunity to show cause before the expectation is dashed; or (b) to an explanation as to the cause for denial. In appropriate cases, the courts may grant a direction requiring....
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....id staff against the sanctioned posts to the extent of 50% vacancies in the direct recruitment quota. These schemes cannot be read as a charter for legitimating the claim of company paid staff to be absorbed in the Government service de hors availability of vacancies, more so when the Government has taken a rational policy decision to reduce direct recruitment to various services in a phased manner. In our opinion, any direction by the Court for absorption of all company paid staff would be detrimental to public interest in more than one ways. Firstly, it will compel the Government to abandon the policy decision of reducing the direct recruitment to various services. Secondly, this will be virtual abrogation of the statutory rules which envisages appointment to different cadres by direct recruitment. 91. Before parting, we consider it necessary to take cognizance of the fact that in compliance of order passed by Calcutta High Court in Writ Petition No. 211 of 2001, the Government of India created 51 posts for absorption of staff employed by the Court Liquidator. However, that cannot be made basis for granting relief to the respondents because creation of those posts was clouded ....