UNION OF INDIA & ORS.versusILMO DEVI & ANR.

1158                      [2021]REPORTS
                SUPREME COURT   6 S.C.R. 1158                 [2021] 6 S.C.R.


 A                          UNION OF INDIA & ORS.
                                          v.
                               ILMO DEVI & ANR.
                       (Civil Appeal Nos. 5689-5690 of 2021)
 B                              OCTOBER 07, 2021
                    [M.R. SHAH AND A.S. BOPANNA, JJ.]
              Service Law – Regularization – Respondents-part time
       employees sought regularization – Claim rejected by Central
       Administrative Tribunal, though with certain directions – Writ
 C     petitions filed by both the parties – High Court inter alia directed the
       appellants to reformulate regularization policy and to take a decision
       to sanction the post in a phased manner – On appeal, held:
       Respondents were working as contingent paid part-time sweepers
       (Safai Karamcharies working for less than five hours a day) in a
       Post Office – There are no sanctioned posts of Safaiwalas in the
 D     Post Office in which the respondents were working – No
       documentary evidence is on record to prove that the respondents
       worked continuously – Directions issued by the High Court are
       beyond the power of the judicial review – Further, respondents are
       not entitled for the benefit of regularization even under the
 E     Department’s regularization policy dtd. 30.06.14 which though is
       in consonance with the law laid down in Secretary, State of Karnataka
       & Ors. Vs. Umadevi and Ors. reported as [2006] 3 SCR 953, but does
       not apply to the part-time workers who do not work on the sanctioned
       post – Nobody can claim regularization as a matter of right dehors
       the regularization policy – Impugned judgment set aside –
 F     Constitution of India – Art.226.
             Constitution of India – Art.226 – Judicial Review –
       Regularization – Held: Regularization policy to regularize the
       services of the employees working on temporary status and/or casual
       labourers is a policy decision – Court cannot issue mandamus and/
 G     or issue mandatory directions in judicial review to do so.
             Service Law – Government Institution – Part-time employees,
       parity with regular employees – Held: Part-time temporary
       employees in a Government run institution cannot claim parity in
       salary with regular employees of the Government on the principle
 H     of equal pay for equal work.
                                        1158
         UNION OF INDIA & ORS. v. ILMO DEVI & ANR.                    1159


      Allowing the appeals, the Court                                 A
       HELD: 1.1 The respondents-original applicants were
working as contingent paid part-time sweepers (Safai
Karamcharies working for less than five hours a day) in a Post
Office at Chandigarh. There are no sanctioned posts of Safaiwalas
in the Post Office in which the respondents were working. There       B
is no documentary evidence on record to establish and prove
that the respondents were working continuously. Even it is not
the case on behalf of the respondents that their appointment was
done after following due procedure of selection and to that extent,
it cannot be said that their appointments were irregular. As such
in the absence of any sanctioned posts in the Post Office in which    C
the respondents were working, there was no question of
appointing the respondents after following due procedure.
Pursuant to the order passed by the Tribunal and the order passed
in the contempt proceedings, the appellants came out with a
regularization policy dated 30.06.2014. The aforesaid                 D
regularization policy has been framed considering the decision
of this Court in the case of Umadevi. That thereafter pursuant to
the interim order passed by the High Court dated 06.08.2014,
the appellant authorities reconsidered the claim of the
respondents herein as per the regularization policy dated
30.06.2014 and the same came to be rejected vide communication        E
dated 11.09.2014 mainly on the ground that there are no
sanctioned posts and the employees have not completed ten
years of service as on 10.04.2006. [Paras 8-8.2][1168-C-E, F;
1169-C-D]
      Secretary, State of Karnataka & Ors. Vs. Umadevi and            F
      Ors., (2006) 4 SCC 1: [2006] 3 SCR 953 – referred to.
      1.2 The respondents served as part-time employees and
were contingent paid staff. 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      G
and order are not permissible in the judicial review under Article
226 of the Constitution. The High Court cannot, in exercise of
the power under Article 226, issue a Mandamus to direct the
Department to sanction and create the posts. The High Court, in
exercise of the powers under Article 226 of the Constitution,         H
1160            SUPREME COURT REPORTS                      [2021] 6 S.C.R.


 A     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,
 B
       cannot issue Mandamus and/or direct to create and sanction the
       posts. Even the regularization policy to regularize the services
       of the employees working on temporary status and/or casual
       labourers is a policy decision and in judicial review the Court
       cannot issue Mandamus and/or issue mandatory directions to do
 C     so. [Paras 8.4, 8.5][1172-C-G]
             State of Maharashtra & Anr. Vs. R.S. Bhonde & Ors.,
             (2005) 6 SCC 751 : [2005] 2 Suppl. SCR 763; State of
             Rajasthan and Ors. Vs. Daya Lal and Ors., (2011) 2
             SCC 429 : [ 2011] 1 SCR 707 – relied on.
 D            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 temporary
       employees. Part-time temporary employees in a Government run
       institution cannot claim parity in salary with regular employees
 E     of the Government on the principle of equal pay for equal work.
       The directions issued by the High Court in the impugned judgment
       and order, more particularly, directions in paragraphs 22 and 23
       are unsustainable and beyond the power of the judicial review of
       the High Court in exercise of the power under Article 226 of the
       Constitution. Even otherwise, the Union of India/Department
 F     subsequently came out with a regularization policy dated
       30.06.2014, which is absolutely in consonance with the law laid
       down by this Court in the case of Umadevi, which does not apply
       to the part-time workers who do not work on the sanctioned post.
       The regularization can be only as per the regularization policy
 G     declared by the State/Government and nobody can claim the
       regularization as a matter of right dehors the regularization policy.
       Therefore, in absence of any sanctioned post and considering
       the fact that the respondents were serving as a contingent paid
       part-time Safai Karamcharies, even otherwise, they were not

 H
         UNION OF INDIA & ORS. v. ILMO DEVI & ANR.                     1161


entitled for the benefit of regularization under the regularization    A
policy dated 30.06.2014. [Paras 8.7, 8.8][1174-E, F-H; 1175-A]
      The impugned judgment and order passed by the High
Court and, more particularly, the directions contained in
paragraphs 22 and 23 in the impugned judgment and order are
quashed and set aside. However, quashing and setting aside the         B
directions issued in terms of paragraph 23 in the impugned
judgment and order shall not affect the case of the respondents
and they shall be entitled to the reliefs as per paragraph 23 of
the impugned judgment and order passed by the High Court.
[Para 9][1175-D-E]
                                                                       C
      Union of India and Ors. Vs. A.S. Pillai and Ors., (2010)
      13 SCC 448; Secretary, Ministry of Communications
      and Ors. Vs. Sakkubai and Anr. (1997) 11 SCC 224;
      Dr. Ashwani Kumar Vs. Union of India and Anr., (2020)
      13 SCC 581; State of Karnataka and Anr. Vs. Dr.
      Praveen Bhai Thogadia, (2004) 4 SCC 684 : [2004] 3               D
      SCR 652; Anuradha Bhasin Vs. Union of India and
      Ors., (2020) 3 SCC 637: (2020) AIR 1308; Oil and
      Natural Gas Corporation Vs. Krishan Gopal & Ors.,
      (2020) SCC Online SC 150; Mineral Exploration
      Corpn. Employees’ Union Vs. Mineral Exploration                  E
      Corpn. Ltd. and Anr., (2006) 6 SCC 310 : [2006] 4
      Suppl. SCR 87 – referred to.
                      Case Law Reference
[2006] 3 SCR 953              referred to            Para 2.1
[2011] 1 SCR 707              relied on              Para 5.6          F
[2004] 3 SCR 652              referred to            Para 5.6
[2005] 2 Suppl. SCR 763       relied on              Para 5.6
[2006] 4 Suppl. SCR 87        referred to            Para 6.1
      CIVIL APPELLATE JURISDICTION: Civil Appeal Nos.5689-             G
5690 of 2021.
      From the Judgment and Order dated 02.03.2015 of the High Court
of Punjab and Haryana at Chandigarh in C.W.P. Nos.9167-CAT of 2007
and 6854-CAT of 2008.
                                                                       H
1162             SUPREME COURT REPORTS                            [2021] 6 S.C.R.


 A           Ms. Madhvi Divan, ASG, Gurmeet Singh Makker, Ms. Ruchi Kohli,
       Ms. Priyanka Das, Ms. Meenakshi Grover, Advs. for the Appellants.
             Rahul Gupta, Adv. for the Respondents.
             The Judgment of the Court was delivered by
             M. R. SHAH, J.
 B
              1. Feeling aggrieved and dissatisfied with the impugned judgment
       and order passed by the High Court of Punjab & Haryana at Chandigarh
       in CWP No. 9167 of 2007 and CWP No.6854 of 2008 by which the High
       Court has modified the judgment and order passed by the learned Central
       Administrative Tribunal in O.A. No.886/CH/2005 and consequently has
 C     directed the appellants to revisit the whole issue, complete the exercise
       to reformulate their regularization/absorption policy and take a decision
       to sanction the posts in a phased manner, the Union of India and others
       have preferred the present appeal.
             The High Court has further directed that till the exercise, as directed
 D     above, is undertaken, the appellants shall continue the employees in
       service with their current status but to those of them who have completed
       20 years as part-time daily wagers shall be granted “minimum” basic
       pay of Group ‘D’ posts w.e.f. 01.04.2015 and/or the date of completion
       of 20 years contractual service, whichever is later.
 E            2. That the respondents herein are/were working as contingent
       paid part-time Sweepers (Safai Karamcharies working for less than five
       hours a day) in a Post Office at Sector-14, Chandigarh. That the
       respondents approached the Central Administrative Tribunal being O.A.
       No.886/CH/2005 seeking directions to frame a regularization/absorption
       policy for regularization of their service. Alternatively, a direction for
 F     grant of temporary status w.e.f. 19.11.1989. The said O.A. was opposed
       by the department. Written statement was filed stating that the
       respondents -original applicants are contingent paid Safaiwalas working
       for less than five hours and, therefore, are not entitled for temporary
       status. It was further stated that there is no regular sanctioned post of
 G     Safaiwala in that particular Post Office in Chandigarh.
             2.1 An O.M. dated 11.12.2006 was issued by the Ministry of
       Personnel, Public Grievances & Pensions (DoPT), Government of India



 H
          UNION OF INDIA & ORS. v. ILMO DEVI & ANR.                              1163
                       [M. R. SHAH, J.]

by which regularization of qualified workers appointed against sanctioned        A
posts in irregular manner was declared. A regularization policy was framed
considering the decision of this Court in the case of Secretary, State of
Karnataka & Ors. Vs. Umadevi (3) and Ors., (2006) 4 SCC 1. It
provided that the Union of India, the State Governments and their
instrumentalities should take steps to regularize as a one-time measure
                                                                                 B
the services of such irregularly appointed, qualified persons, in terms of
the statutory requirement of the Rules for the posts, who have worked
for ten years or more in duly sanctioned posts but not under cover of
orders of the courts or of tribunals. As the respondents - original applicants
were serving as part-time employees working for five hours a day and
there were no regular sanctioned posts in the particular Post Office and         C
so they were not granted the benefit of the said O.M. dated 11.12.2006.
By the judgment and order dated 17.01.2007, the learned Tribunal
disposed of the said O.A. rejecting the claim of the respondents for their
regularization. However, the learned Tribunal observed that since the
Department need the continuous service of Safaiwalas, they shall advertise
                                                                                 D
this post to appoint regular Safaiwala through proper process of selection
positively within three months. The learned Tribunal also further directed
that the respondents herein may also be considered for such selection
after providing age relaxation to them under the relevant rules keeping
in view that they have been working for last so many years without
interruption. Learned Tribunal also observed that till then they are at          E
liberty to allow the respondents to continue to perform their duties with
the present status (as part-time). Learned Tribunal also observed that in
case a one-time scheme is formulated by the Department/Government
in exercise of the directions of this Court in the case of Umadevi (supra),
the respondents’ cases may also be considered for regularization, if they
                                                                                 F
fulfill the required conditions as prescribed in the said scheme.
        2.2 Feeling aggrieved and dissatisfied with the judgment and order
passed by the learned Tribunal dated 17.01.2007 passed in O.A. No.
886/CH/2005 both, the Union of India and the respondents herein –
part- time employees filed their respective writ petitions before the High
Court being CWP Nos. 9167 of 2007 and 6854 of 2008. At this stage, it            G
is required to be noted that pursuant to the judgment and order passed
by the learned Tribunal, the Department/Government was required to
formulate the regularization scheme, which was not formulated and,
therefore, the contempt proceedings were initiated. By its order dated
19.05.2014, the High Court issued a notice in the contempt proceedings           H
1164             SUPREME COURT REPORTS                            [2021] 6 S.C.R.


 A     to the Secretary (Post) and directed to place the scheme before the
       Court by 04.07.2014. In view of the abovesaid directions dated 19.05.2014,
       the Department formulated a policy for regularization of casual labourers
       considering the observations made by this Court in the case of Umadevi
       (supra) and subsequent to the O.M. of DoPT dated 11.12.2006 (referred
       to hereinabove) for the welfare of the casual labourers.
 B
              2.3 That by order dated 06.08.2014, the High Court directed the
       appellants to reconsider the claim of the respondents as per the new
       policy dated 30.06.2014. The authorities rejected the claim by order dated
       11.09.2014 for the reasons that; (i) there are no sanctioned posts and (ii)
       employees have not completed 10 years of service as on 10.04.2006
 C     namely, the date of decision of this Court in Umadevi (supra).
              2.4 By the impugned common judgment and order, the High Court
       has disposed of the aforesaid writ petitions with the following directions:-
             “[22] We, thus, direct the petitioner-authorities to re-visit the whole
 D           issue in its right perspective and complete the exercise to re-
             formulate their policy and take a decision to sanction the posts in
             phased manner within a specified time schedule. Let such a
             decision be taken within a period of six months from the date of
             receiving a certified copy of this order.

 E           [23] Till the exercise as directed above, is undertaken, the
             respondents shall continue in service with their current status but
             those of them who have completed 20 years as part-time daily
             wagers, shall be granted ‘minimum’ basic pay of Group ‘D’ post(s)
             w.e.f. 1.4.2015 and/or the date of completion of 20 years
             contractual service, whichever is later.”
 F
             2.5 Feeling aggrieved and dissatisfied with the impugned common
       judgment and order passed by the High Court, the Union of India and
       others have preferred the present appeals.
              3. At this stage, it is required to be noted that while issuing notice
       in the present appeals on 22.07.2016, this Court passed the following
 G
       order:-
             “On hearing Mr. Ranjit Kumar, learned Solicitor General appearing
             on behalf of the petitioners, we are not inclined to interfere with
             the directions of the High Court in paragraph 23 for granting
             minimum basic pay to Group ‘D’ posts from a particular date to
 H
          UNION OF INDIA & ORS. v. ILMO DEVI & ANR.                           1165
                       [M. R. SHAH, J.]

      those who have completed 20 years of part-time daily wage               A
      service. The petitioners should carry out that direction.
      Insofar as the directions of the High Court to re-visit the whole
      issue of sanction of posts etc. and re- formulation of policy are
      concerned, there appears some merits in the submission that the
      High Court should not have interfered in policy matters.                B
      Issue notice on the special leave petition in that respect as well as
      on the application for condonation of delay.
      The direction contained in paragraph 22 of the impugned order
      shall remain stayed until further orders.”
                                                                              C
       4. Ms. Madhvi Divan, learned ASG has appeared on behalf of the
appellants and Shri Rahul Gupta, learned counsel has appeared on behalf
of the respondents.
       5. Ms. Madhvi Divan, learned ASG has vehemently submitted
that the High Court has not properly appreciated the facts that in the        D
Post Office where the respondents were working, there are no sanctioned
posts and that the respondents were serving as part-time contingent
Safaiwalas for five hours a day and their wages were paid even from
the contingent fund. It is submitted that neither the O.M. dated 11.12.2006
nor the subsequent regularization policy dated 30.06.2014 shall be
applicable to the facts of the case at hand.                                  E
       5.1 It is further submitted that even in the impugned judgment
also, the High Court has observed that the respondents were working as
part-time daily wages sweepers. It is submitted, therefore, in absence of
the sanctioned posts in the Post Office where the respondents were
working as part-time Safaiwalas, there services cannot be regularized.        F
       5.2 It is further submitted that the directions issued by the High
Court to sanction the posts can be said to be a policy decision, and,
therefore, the High Court is not justified in issuing the Mandamus and/or
direction to create and sanction the posts. It is submitted that the High
Court has not properly appreciated the facts that even the O.M. dated         G
11.12.2006 and subsequent regularization policy dated 30.06.2014 were
absolutely in consonance with the decision of this Court in the case of
Umadevi (supra). It is submitted that in the case of Umadevi (supra)
it has been specifically observed that the High Court, in exercise of
jurisdiction under Article 226 of the Constitution of India, should not
                                                                              H
1166             SUPREME COURT REPORTS                           [2021] 6 S.C.R.


 A     ordinarily issue direction for absorption, regularization or permanent
       continuance unless the recruitment was itself done regularly and in terms
       of constitutional scheme.
               5.3 It is submitted that as per the dictum of this Court in the case
       of Umadevi (supra), the services of only those employees are to be
 B     regularized as a one-time measure, who are irregularly appointed and
       otherwise who are duly qualified persons in terms of the statutory
       requirement rules for the post and who have worked for 10 years or
       more in duly sanctioned posts but not under cover of the orders of courts
       or tribunals. It is submitted that, thereafter, the Department came out
       with the regularization policy dated 30.06.2014. It is submitted that even
 C     the High Court has also in the impugned judgment observed that there
       are no sanctioned posts in the office where the respondents were working.
       It is submitted further that the High Court has directed to create and
       sanction the posts, which is beyond the jurisdiction of the High Court in
       exercise of power under Article 226 of the Constitution.
 D            5.4 It is further submitted that the High Court has not taken note
       of the Recruitment Rules, 2002, which were replaced by 2010 Rules,
       however, the same shall not be applicable to the Postal Department as
       specifically mentioned in the said rules. It is further submitted that even
       the High Court has observed that it is no doubt true that a part-time
 E     employee cannot seek parity with full-time worker but despite the same
       the High Court has observed that whatever benefits, authorities decide
       to confer on the full-timers, the same can be extended to part-timers as
       well, of course, on such additional and stringent conditions like double
       the length of contingent service and/or other reasonable and fair conditions
       which the authorities may deem fit. It is submitted that the aforesaid
 F     observations are also beyond the scope and ambit of exercise of the
       power under Article 226 of the Constitution.
              5.5 It is further submitted that even the High Court has also
       materially erred in observing that though the respondents are working
       for four to five hours as part-time daily wagers, they must have worked
 G     for full day. It is submitted that aforesaid is absolutely without any basis
       and the same is not supported by any evidence. It is further submitted
       that even the observations made by the High Court in paragraph 9 that it
       is true that these employees are working on “part-time basis only”, the
       ground realities of which a Court can take judicial notice, leave no room
 H     to doubt that once the respondents come to their respective work place
          UNION OF INDIA & ORS. v. ILMO DEVI & ANR.                            1167
                       [M. R. SHAH, J.]

to perform duties, may be for four to five hours, it is nearly impossible      A
for them to secure another job for the rest of the day. It is submitted that
the aforesaid observation is on surmises and conjunctures only. It is
submitted that the entire observations made in paragraph 9, thus, are on
surmises and conjunctures, which has no factual basis at all.
       5.6 Ms. Madhvi Divan, learned ASG has relied upon the decisions         B
of this Court in the cases of Union of India and Ors. Vs. A.S. Pillai
and Ors., (2010) 13 SCC 448; State of Rajasthan and Ors. Vs.
Daya Lal and Ors., (2011) 2 SCC 429 and Secretary, Ministry of
Communications and Ors. Vs. Sakkubai and Anr. (1997) 11 SCC
224 in support of her submission that services of a part-time worker
working on the post of a full-time worker cannot be regularized. She has       C
also relied upon the decision of this Court in the cases of Dr. Ashwani
Kumar Vs. Union of India and Anr., (2020) 13 SCC 581; State of
Karnataka and Anr. Vs. Dr. Praveen Bhai Thogadia, (2004) 4 SCC
684; Anuradha Bhasin Vs. Union of India and Ors., (2020) 3 SCC
637; Oil and Natural Gas Corporation Vs. Krishan Gopal & Ors.,                 D
(2020) SCC Online SC 150; State of Maharashtra & Anr. Vs. R.S.
Bhonde & Ors., (2005) 6 SCC 751 in support of her submission that
in judicial review, a Court has no right to direct the Government to review
the policy of appointment; in judicial review the Court cannot interfere in
the administrative matters and that in the absence of a regular sanctioned
post, the Court cannot direct to create one.                                   E

        6. Present appeals are opposed by Shri Rahul Gupta, learned
counsel appearing on behalf of the respondents. It is submitted that by
the impugned judgment and order the High Court has decided as many
as nine petitions, however, two out of nine are being challenged before
this Court. It is submitted, therefore, that qua other seven writ petitions,   F
the Union of India has accepted the verdict and it has become final as
the same have not been challenged. It is further submitted that while
issuing notice in the present appeals on 22.07.2016, this Hon’ble Court
made it clear that it was not inclined to interfere with the directions of
the High Court in paragraph 23 of the judgment and, therefore, the scope       G
of present case now confines to the directions contained in paragraph
22 of the impugned judgment. It is submitted that in the present case, the
respondent No.1 – Ilmo Devi, who was working continuously since 1982
as a sweeper has already attained the age of retirement and the other
respondent Babli, who was working continuously since 1991 as a sweeper
is of around 53 years of age and, therefore, this Court may not interfere      H
1168                SUPREME COURT REPORTS                         [2021] 6 S.C.R.


 A     with the impugned judgment and order passed by the High Court and the
       present appeals be dismissed keeping the question of law open.
             6.1 On merits, Shri Gupta, learned counsel has relied upon the
       decision of this Court in the case of Umadevi (supra) and in the case
       of Mineral Exploration Corpn. Employees’ Union Vs. Mineral
 B     Exploration Corpn. Ltd. and Anr., (2006) 6 SCC 310.
             7. Heard the learned counsel for the respective parties at length.
              8. At the outset, it is required to be noted that the respondents-
       original applicants were working as contingent paid part-time sweepers
       (Safai Karamcharies working for less than five hours a day) in a Post
 C     Office at Chandigarh. It is not in dispute and cannot be disputed that
       there are no sanctioned posts of Safaiwalas in the Post Office in which
       the respondents were working. There is no documentary evidence on
       record to establish and prove that the respondents were working
       continuously. Even otherwise as observed hereinabove, they were working
 D     as contingent paid part-time sweepers. Even it is not the case on behalf
       of the respondents that their appointment was done after following due
       procedure of selection and to that extent, it cannot be said that their
       appointments were irregular. As such in the absence of any sanctioned
       posts in the Post Office in which the respondents were working, there
       was no question of appointing the respondents after following due
 E     procedure. In light of the above, the directions issued by the High Court
       in the impugned judgment and order are required to be considered.
             8.1 In the present case, pursuant to the order passed by the learned
       Tribunal and the order passed in the contempt proceedings, the appellants
       came out with a regularization policy dated 30.06.2014. In the said
 F     regularization policy, it has been provided as under:-
             “(i)     Regularization of all the Casual Labourers, who have been
                      irregularly appointed, but are duly qualified persons in terms
                      of statutory requirement rules for the post and was engaged
                      against a sanctioned post, shall be done if they have worked
 G                    for 10 years or more but not under the covers of orders of
                      courts or tribunals as on the date of Hon’ble Apex Court’s
                      ibid judgment, i.e., 10.04.2006.
             (ii)     A temporary contractual, casual or daily wage worker shall
                      not have a legal right to be made permanent unless he/she
 H                    fulfills the above criteria.
              UNION OF INDIA & ORS. v. ILMO DEVI & ANR.                         1169
                           [M. R. SHAH, J.]

      (iii)     A Casual Labourer engaged without following the due             A
                process or the rules relating to appointment and does not
                meet the above criteria shall not be considered for their
                absorption, regularization, permanency in the Department.
      (iv)      If a Casual Labourer was engaged in infraction of the rules
                or if his engagement is in violation of the provisions of the   B
                Constitution, the said illegal engagement shall not be
                regularized.”
       8.2 The aforesaid regularization policy has been framed considering
the decision of this Court in the case of Umadevi (supra). That thereafter
pursuant to the interim order passed by the High Court dated 06.08.2014,        C
the appellant authorities reconsidered the claim of the respondents herein
as per the regularization policy dated 30.06.2014 and the same came to
be rejected vide communication dated 11.09.2014 mainly on the ground
that there are no sanctioned posts and the employees have not completed
ten years of service as on 10.04.2006.
                                                                                D
       8.3 By the impugned judgment and order, the High Court has
directed to reformulate the regularization policy and to take a decision to
sanction the post in a phased manner. While issuing the aforesaid
directions, the High Court made certain observations, relevant
observations, which are necessary for the purpose of present appeals
are as under:-                                                                  E

      “[8] The respondents in all these cases have worked for more
           than 10 to 20 years as contingent employees and some of
           them (like in the lead case) have served for about 30 years.
           A few of them are obviously nearing retirement age as
           prescribed under the Central/State Service Rules.                    F
      [9]       It is true that these employees are working on ‘part-
                time basis’ only. The ground realities of which a Court can
                take judicial notice, leave no room to doubt that once the
                respondents come to their respective work place to perform
                duties, may be for 4 to 5 hours, it is nearly impossible for    G
                them to secure another job for the rest of the day. The
                petitioner-authorities cannot be oblivious of the fact that
                where supply of manual labour is more than the demand,
                the market forces won’t permit the private- respondents to
                have the choice of getting another and alternative
                                                                                H
1170      SUPREME COURT REPORTS                          [2021] 6 S.C.R.


 A          employment for the remainder of the day after they are
            relieved of their duties by the postal authorities.
       [12] It is no doubt true that a ‘part-time’ employee cannot
            seek parity with a ‘full time’ worker but then the petitioner-
            authorities can also draw no mileage out of their undue
 B          favour shown to those who are engaged for 7 to 8 hours
            and total neglect of the others who are ‘part-time’ due to 4
            to 5 hours engagement. It appears to us that whatever
            benefits authorities decide to confer on the full-timers, the
            same can be extended to part-timers as well, of course, on
            such additional and stringent conditions like double the length
 C          of contingent service and/or other reasonable and fair
            conditions which the authorities may deem fit.
       [13] While we refrain from suggesting any policy module as such
            an exercise falls within the domain of the Executive only,
            the authorities ought to be cautioned that the policy, so
 D          framed, must reflect the due application of mind as well as
            their conscious decision to reject or accept the claim of any
            class or category of contractual employees.
       [15] Be that as it may, now the Department of Postal and
            Ministry of Communication and I.T. has issued a policy
            circular dated 30.06.2014 for the welfare of casual labourers.
 E          The above-stated policy is said to have been issued in
            compliance to the directions issued in Uma Devi’s case
            (supra). The salient feature of the aforesaid policy are to
            the following effect.
            “(i) Regularization of all the casual Labourers, who have
 F                 been irregularly appointed, but are duly qualified
                   persons in terms of statutory recruitment rules for
                   the post and was engaged against a sanctioned post,
                   shall be done if they worked for 10 years or more
                   but not under the covers of orders of courts or
                   tribunals as on the date of Hon’ble Apex Court’s ibid
 G
                   judgment i.e. 10.04.2006 (Secretary State of
                   Karnataka and others versus Uma Devi and others
                   in Civil Appeal No.3595- 3612/1999).
            (ii) A Temporary, Contractual, Casual or Daily wage
                   worker shall not have a legal right to be made
 H                 permanent unless he/she fulfills the above criteria.
   UNION OF INDIA & ORS. v. ILMO DEVI & ANR.                            1171
                [M. R. SHAH, J.]

      (iii)   A casual Labourer engaged without following the due       A
              process or the rules relating to appointment and does
              not meet the above criteria shall not be considered
              for their absorption, regularization, permanency in the
              Department.
      (iv)    If a casual Labourer was engaged in Infraction of         B
              the rules or if his engagement is in violation of the
              provision of the Constitution, the said illegal
              engagement shall not be egularized.
                                                “(emphasis applied)
[18] We have given our thoughtful consideration to both the             C
     reasons assigned by the petitioner-authorities, who have
     further stated that as of now, fresh engagements on
     contingent or daily wage basis have been completely
     stopped. If that is so, it can be safely inferred that only a
     small group of daily wage part-time employees engaged              D
     before 10.04.2006 are still working. If their eligibility of 10
     years daily wage service is determined in the year 2014-15
     on the basis of cut off date of 10.04.2006, such a policy
     would be an exercise in futility. The petitioners themselves
     have taken more than 8 years in giving effect to one of the
     directions in Uma Devi’s case (supra), hence, they cannot          E
     reject the claim of daily-wage employees with an ante-date
     cut off date as the compliance of such an eligibility condition
     is nearly impossible. This would render the policy totally
     ineffective and a brutum fulmen without percolating even a
     drop of benefit to those for whom it has been formulated.          F
[20] Surely, the respondents cannot be made regular in the
     absence of sanctioned posts, but then what is the public
     purpose sought to be achieved through the policy dated
     30.06.2014? The Executive who has authored the policy is
     also competent to create or sanction the posts. Depending          G
     upon the total expenditure now being incurred on the
     retention of respondents, we have no reason to doubt that
     the petitioners can rationalize their resources and sanction
     some regular posts every year so that the respondents can
     be adjusted on regular basis without any unbearable
     additional financial burden on the Department, but before          H
1172            SUPREME COURT REPORTS                          [2021] 6 S.C.R.


 A                  they leave the department on attaining the age of
                    superannuation.
             [21] The petitioners might have incurred huge expenditure in
                  defending multiple litigation initiated by contractual
                  employees who are now a diminishing cadre. This is for
 B                the petitioners to take a pragmatic view and divert this
                  unproductive expenditure towards sanctioning the posts in
                  a phased manner for adjusting the respondents.”
              8.4 The observations made in paragraph 9 are on surmises and
       conjunctures. Even the observations made that they have worked
 C     continuously and for the whole day are also without any basis and for
       which there is no supporting evidence. In any case, the fact remains that
       the respondents served as part-time employees and were contingent
       paid staff. As observed above, 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
 D     permissible in the judicial review under Article 226 of the Constitution.
       The High Court cannot, in exercise of the power under Article 226,
       issue a Mandamus to direct the Department to sanction and create the
       posts. The High Court, in exercise of the powers under Article 226 of
       the Constitution, also cannot direct the Government and/or the
 E     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.
 F
             8.5 Even the regularization policy to regularize the services of the
       employees working on temporary status and/or casual labourers is a
       policy decision and in judicial review the Court cannot issue Mandamus
       and/or issue mandatory directions to do so. In the case of R.S. Bhonde
       and Ors. (supra), it is observed and held by this Court that the status of
 G     permanency cannot be granted when there is no post. It is further
       observed that mere continuance every year of seasonal work during the
       period when work was available does not constitute a permanent status
       unless there exists a post and regularization is done.
             8.6 In the case of Daya Lal & Ors. (supra) in paragraph 12, it is
 H     observed and held as under:-
   UNION OF INDIA & ORS. v. ILMO DEVI & ANR.                               1173
                [M. R. SHAH, J.]

“12. We may at the outset refer to the following well- settled             A
principles relating to regularisation and parity in pay, relevant in
the context of these appeals:
          (i) The High Courts, in exercising power under Article
   226 of the Constitution will not issue directions for regularisation,
   absorption or permanent continuance, unless the employees               B
   claiming regularisation had been appointed in pursuance of a
   regular recruitment in accordance with relevant rules in an
   open competitive process, against sanctioned vacant posts. The
   equality clause contained in Articles 14 and 16 should be
   scrupulously followed and Courts should not issue a direction
                                                                           C
   for regularisation of services of an employee which would be
   violative of the constitutional scheme. While something that is
   irregular for want of compliance with one of the elements in
   the process of selection which does not go to the root of the
   process, can be regularised, back door entries, appointments
   contrary to the constitutional scheme and/or appointment of             D
   ineligible candidates cannot be regularised.
          (ii) Mere continuation of service by a temporary or ad
   hoc or daily-wage employee, under cover of some interim
   orders of the court, would not confer upon him any right to be
   absorbed into service, as such service would be “litigious              E
   employment”. Even temporary, ad hoc or daily-wage service
   for a long number of years, let alone service for one or two
   years, will not entitle such employee to claim regularisation, if
   he is not working against a sanctioned post. Sympathy and
   sentiment cannot be grounds for passing any order of
                                                                           F
   regularisation in the absence of a legal right.
          (iii) Even where a scheme is formulated for regularisation
   with a cut-off date (that is a scheme providing that persons
   who had put in a specified number of years of service and
   continuing in employment as on the cut-off date), it is not
                                                                           G
   possible to others who were appointed subsequent to the cut-
   off date, to claim or contend that the scheme should be applied
   to them by extending the cut-off date or seek a direction for
   framing of fresh schemes providing for successive cut-off
   dates.
                                                                           H
1174            SUPREME COURT REPORTS                           [2021] 6 S.C.R.


 A                      (iv) Part-time employees are not entitled to seek
                 regularisation as they are not working against any sanctioned
                 posts. There cannot be a direction for absorption, regularisation
                 or permanent continuance of part-time temporary employees.
                         (v) Part-time temporary employees in government-run
 B               institutions cannot claim parity in salary with regular employees
                 of the Government on the principle of equal pay for equal work.
                 Nor can employees in private employment, even if serving full
                 time, seek parity in salary with government employees. The
                 right to claim a particular salary against the State must arise
                 under a contract or under a statute.
 C
             [See State of Karnataka v. Umadevi (3) [(2006) 4 SCC 1], M.
             Raja v. CEERI Educational Society [(2006) 12 SCC 636], S.C.
             Chandra v. State of Jharkhand [(2007) 8 SCC 279],
             Kurukshetra Central Coop. Bank Ltd. v. Mehar Chand [(2007)
             15 SCC 680] and Official Liquidator v. Dayanand [(2008) 10
 D           SCC 1.]
              8.7 Thus, as per the law laid down by this Court in the aforesaid
       decisions 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 temporary employees as held.
 E     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.
              8.8 Applying the law laid down by this court in the aforesaid
       decisions, the directions issued by the High Court in the impugned
 F     judgment and order, more particularly, directions in paragraphs 22 and
       23 are unsustainable and beyond the power of the judicial review of the
       High Court in exercise of the power under Article 226 of the Constitution.
       Even otherwise, it is required to be noted that in the present case, the
       Union of India/Department subsequently came out with a regularization
 G     policy dated 30.06.2014, which is absolutely in consonance with the law
       laid down by this Court in the case of Umadevi (supra), which does
       not apply to the part-time workers who do not work on the sanctioned
       post. As per the settled preposition of law, the regularization can be only
       as per the regularization policy declared by the State/Government and
       nobody can claim the regularization as a matter of right dehors the
 H     regularization policy. Therefore, in absence of any sanctioned post and
          UNION OF INDIA & ORS. v. ILMO DEVI & ANR.                           1175
                       [M. R. SHAH, J.]

considering the fact that the respondents were serving as a contingent        A
paid part-time Safai Karamcharies, even otherwise, they were not entitled
for the benefit of regularization under the regularization policy dated
30.06.2014.
      8.9 Though, we are of the opinion that even the direction contained
in paragraph 23 for granting minimum basic pay of Group ‘D’ posts             B
from a particular date to those, who have completed 20 years of part-
time daily wage service also is unsustainable as the part-time wagers,
who are working for four to five hours a day and cannot claim the parity
with other Group ‘D’ posts. However, in view of the order passed by
this Court dated 22.07.2016 while issuing notice in the present appeals,
we are not quashing and setting aside the directions contained in             C
paragraph 23 in the impugned judgment and order so far as the
respondents’ employees are concerned.
       9. In view of the above and for the reasons stated above, both the
appeals succeed. The impugned judgment and order passed by the High
Court and, more particularly, the directions contained in paragraphs 22       D
and 23 in the impugned judgment and order are hereby quashed and set
aside. However, it is observed that quashing and setting aside the
directions issued in terms of paragraph 23 in the impugned judgment and
order shall not affect the case of the respondents and they shall be
entitled to the reliefs as per paragraph 23 of the impugned judgment and      E
order passed by the High Court.
       With these observations, both the appeals are allowed and in the
facts and circumstances of the case, there shall be no order as to costs.


Divya Pandey                                               Appeals allowed.   F




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