A two-judge Bench of Justice MR Shah and Justice AS Bopanna has held that the High Court, in exercise of power under Article 226 of the Constitution, cannot issue Mandamus and/or direct to create and sanction the posts or to frame regularization policy.
The Court has also held that part-time employees are not entitled to seek regularization as they are not working against any sanctioned post and there cannot be any permanent continuance of part-time employees.
An appeal was preferred by the Union of India before the Supreme Court against the judgment of Punjab and Haryana High Court which had modified the judgment and order passed by the Central Administrative Tribunal (CAT) and directed the Appellants to reformulate their regularization policy and take a decision to sanction the posts in a phased manner.
In this case, the Respondents (Safai Karamcharies) who were working as contingent paid time-time sweepers in a Post Office at Chandigarh had sought the regularization of their service. The Respondents had approached the CAT and sought directions to frame regularization policy for regularizing their service. However, the Tribunal rejected the claim of the Respondents with a direction that the Appellants shall advertise the post to appoint regular Safaiwala through the proper process of selection within three months.
Pursuant to High Court's contempt notice issued against the Government, the Department formulated a policy for regularization of casual labourers considering the observations made by the Court in the case of Secretary, State of Karnataka & Ors. Vs. Umadevi.
The High Court subsequently directed the Appellants to reconsider the claim of the Respondents as per the new policy formulated. However, the Authorities rejected the claim of the Respondents for the reasons – i) there were no sanctioned posts, ii) employees did not complete 10 years of service.
The Appellant contended that in the absence of sanctioned posts in the Post Office where the Respondents were working as part-time labourers, their services could not be regularized. Further, it was argued that High Court's directions to sanction the post was a policy decision and therefore, the High Court was not justified in issuing Mandamus to create and sanction posts.
The Apex Court, after considering the contentions of the parties at length, held that some of the observations of the High Court were based on surmises and conjectures.
The Court held, "Even the observations made that they have worked continuously and for the whole day are also without any basis and for which there is no supporting evidence."
"There are no sanctioned posts in the Post Office in which the respondents were working, therefore, the directions issued by the High Court in the impugned judgment and order are not permissible in the judicial review under Article 226 of the Constitution," the Bench opined.
"The High Court, in exercise of the powers under Article 226 of the Constitution, also cannot direct the Government and/or the Department to formulate a particular regularization policy. Framing of any scheme is no function of the Court and is the sole prerogative of the Government. Even the creation and/or sanction of the posts is also the sole prerogative of the Government and the High Court, in exercise of the power under Article 226 of the Constitution, cannot issue Mandamus and/or direct to create and sanction the posts," the Court asserted.
The Court held that the regularization policy for employees working on temporary status or are casual labourers is a policy decision and the Court cannot issue Mandamus to do so.
The Bench further held, "Part-time temporary employees in a Government run institution cannot claim parity in salary with regular employees of the Government on the principle of equal pay for equal work."
The Court was of the view that the policy formulated by the Government would not apply to part-time workers who do not work on the sanctioned post.
It was held that nobody can claim regularization as a matter of right dehors the regularization policy.
In the light of these observations, the Court held that the Respondents were not entitled to the benefit of regularization under the regularization policy formulated. The Court allowed the appeals and set aside and quashed the impugned judgment of the High Court in part, while it did not disturb the direction for granting minimum basic pay of Group 'D' posts from a particular date to those who have completed 20 years of part-time daily wage service. The Court did so despite finding that the said direction is also unsustainable, only because of the interim order passed by the Court earlier in the matter.