[Naman Keswani is a 3rd year B.A., LL.B. (Hons.) student at Hidayatullah National Law University, Raipur. The author would like to thank Dr. Balwinder Kaur for her valuable inputs on the post]
In Union of India v. Ilmo Devi (7 October 2021), the Supreme Court reiterated the fact that a temporary or casual worker in a State-run authority cannot seek parity with the regular employees of the institution. The appeal was filed by Ministry of Communications against directions provided by the Punjab and Haryana High Court for revisiting the scheme of regularization and sanctioning posts for Ilmo Devi and other contingent workers in a phased manner at a post office in Chandigarh.
Background of the Case – Facts & Arguments
Ilmo Devi and several other workers worked as contingent sweepers at a post office in Chandigarh. To remove the contingency and claim a benefit under the principle of ‘equal pay for equal work’, the employees approached the Central Administrative Tribunal, Chandigarh (“CAT”). The CAT directed the post office to introduce a scheme of regularization and sanction posts for these workers. An appeal was preferred by the post office before the Punjab and Haryana High Court, contending that the CAT acted ultra vires while directing the Central Government to sanction posts and introduce the scheme for regularization. However, the High Court too directed the Government to formulate a one-time scheme of regularization, which was duly followed by the Central Government.
Even after the formulation of the scheme of regularization, the workers could not be absorbed in the said post office as a sanctioned post for such workers was absent. The High Court then directed the Government to revisit the scheme of regularization and take a decision to sanction the posts in a phased manner. Aggrieved by the decision of the High Court, the Union of India preferred the present appeal.
The Supreme Court took cognizance of the fact that there were no sanctioned posts for the contingent workers employed as sweepers at the said post office. Moreover, the said scheme of regularization, which was challenged by the workers, was in consonance with the directions of the Supreme Court in Secretary, State of Karnataka v. Umadevi. However, the scheme would not be applicable on Ilmo Devi and others as there were no sanctioned posts for those sweepers. Hence, allowing the appeal sought by the Union of India, the Supreme Court reiterated that a contingent employee cannot seek parity with the regular employees of a Government-run institution as a matter of right.
The Supreme Court also stated that the High Court could not issue writs directing the State to generate employment at a particular institution, as it is beyond the powers provided under Article 226 of the Constitution of India.
Regularization as a Matter of Employment Law
The Supreme Court evolved the concept of regularization through Umadevi. Prior to the case, there were conflicting opinions given by different benches of the Supreme Court and, hence, a larger bench was required to answer the question of law on whether part-time employees can seek regularization as a matter of right from the Government. Employees were seeking arbitrage from such differing opinions, and demanded permanence of their jobs as a matter of right.
The Supreme Court in the case iterated that the State sometimes failed to fulfil the constitutional scheme of employment in public sector institutions. To overcome such deficiency, the bench laid down a set of directions that may be used by the Government to formulate a scheme of regularization of irregularly appointed employees. These directions are as follows:
- There should be a sanctioned post in the institution;
- The workers shall be working at such post for more than ten years;
- The appointment of such employees shall not be illegal, even if it is irregular; and
- The employee shall not be working under the umbrella of any order, permanent of interim, by any court of law in India.
These directions would be applicable for employees of the State, as defined under Article 12 of the Constitution of India.
Further clarifications were made in State of Karnataka v. M.L. Kesari, wherein the Supreme Court held that the service of the employees shall be for ten regular years, which should have been completed on or before 10 April 2006 (i.e., date of the judgment in Umadevi), and that the scheme would be formulated as a one-time scheme.
The scope of judicial review in Ilmo Devi case played a crucial role. The Punjab and Haryana High Court issued a writ of mandamus directing the Central Government to review the scheme of regularization as well as to complete the procedure of selection in a phased manner. However, the High Court misinterpreted the meaning and scope of the power of judicial review provided under Article 226 of the Constitution. Employment by the State is a matter of policy. The Supreme Court, in several cases, has averred that the High Court cannot interfere in a policy decision.
In State of Manipur v. Ksh. Moirangninthou Singh, the Supreme Court was of the view that the High Court cannot direct the Government to formulate a policy for regularization of workers under its power of judicial review provided by Article 226 of the Constitution of India. In Balco Employees’ Union (Regd.) v. Union of India, the Supreme Court held:
In a democracy, it is the prerogative of each elected Government to follow its own policy. Often a change in Government may result in the shift in focus or change in economic policies. Any such change may result in adversely affecting some vested interests. Unless any illegality is committed in the execution of the policy or the same is contrary to law or mala fide, a decision bringing about change cannot per se be interfered with by the Court.
Thus, the Supreme Court overruled the writ of mandamus issued by the Punjab and Haryana High Court, relying on various other judgments.
Due Procedure of Selection
The Supreme Court in Umadevi issued directions for regularization of employees who were appointed without following due process of selection. However, the Court did not elaborate as to what would constitute as due process of selection, save for the fact that it should be under the relevant rules. Here, the Court delved into the constitutional framework for employment by the State under the Articles 14 and 16 of the Constitution of India.
The concept of regularization has been much debated over the years under the labour laws in India. To clarify the concept and settle disputes once and for all, the Supreme Court of India in Umadevi issued directions for formulating the scheme of regularization of workers who are irregularly employed. However, the concept is still under debate and the judiciary witnesses’ numerous cases on the subject. Through the case of Ilmo Devi, the Supreme Court has reiterated that regularization shall be given effect to by the courts only in those cases where the part-time workers have been appointed irregularly against a sanctioned post, and the courts shall be unjustified in directing the State to create posts for the purpose of regularization.
– Naman Keswani