B.K. Sharma, J.@mdashBoth the writ petitions under same set of facts have been heard together and are being disposed of by this common judgment and order.
2. For convenience sake and as agreed to by the learned Counsel for the parties, the facts stated in the writ petition being W.P. (C) No. 118/2006 are primarily discussed. Both the writ petitioners are with educational qualification of B.A. and B.Ed. They responded to the employment notice issued by the respondent-Corporation and published in the issue of "The Assam Tribune" dated 20.10.1997 inviting applications from intending candidates for the post of teacher, primary school (English medium) against the permanent vacancies. As per the advertisement, the pay scale for the post was indicated as Rs. 2366 4521 plus other allowances as admissible under the Rules. It was also indicated that the appointed teachers would be entitled to Corporation''s housing accommodation, C.P.F., Group Insurance, Leave Travel Concession, Gratuity, Medical facilities, productivity Linked Bonus, Group Savings Linked Insurance etc. as per Corporation''s rules. Although in the advertisement, the number of vacancies was indicated as two, but by the time the selection was held, another post fell vacant and accordingly, the selection was conducted for three posts.
3. Accepting the candidatures offered by both the petitioners, they were called upon to appear in the written test on 27.11.1997. The petitioners appeared in the written test along with other candidates. Thereafter, by letter dated 28.11.1997, issued by the Chief Personnel Manager of the Corporation, they were asked to report in the office on 12.12.1997 at 7 AM for class room teaching test and interviews (viva voce). By the said letter, the petitioners were also directed to bring with them all original certificates, mark sheets, testimonials etc.
4. Pursuant to the said letter dated 28.11.1997 issued individually to the petitioners, they appeared for class room teaching test and interview on 12.12.1997. Both the petitioners came out successful in the selection and the Chief Personnel Manager by his telegram dated 20.12.1997 directed both the petitioners to report in empty stomach on 26.12.1997 at 7 AM in the office with all testimonials and passport size photographs for medical examination.
5. Pursuant to the direction contained in the said telegram, both the petitioners appeared in the office for medical test etc. and the petitioners along with one Smti. Sultana Begum Borah were selected. While the petitioners were selected against two advertised posts, said Smti. Borah was selected against the 3rd post which fell vacant subsequently.
6. Although the petitioners were selected against the advertised vacancies with the assurance and promises made in the advertisement, the petitioners came to be appointed firstly by engagement advice dated 1.1.1998 and 2.1.1998 respectively as teachers for less than 45 days with the basic pay of Rs. 2366/- per month. In the engagement advice, their occupation code, grade code, token code and registration No. were indicated as 346/04/T and 37026/37027 respectively. The Receiving Department was indicated as 068 and Job No. /Title was indicated as Teacher, Pry School (Eng Med.).
7. Their such initial appointment/engagement on less-than-45 days- basis continued with the issuance of time to time engagement advice like the ones dated 20.5.1999, 12.5.2000, 25.5.2001, 8.11.2002, 24.1.2003, 21.6.2004, 8.11.2005, 26.12.2005 etc. At the time of filing the writ petition, the rate of payment to the petitioners raised up to Rs. 5400/- per month. Such time to time engagements of the petitioners are with artificial break for one/two days.
8. The petitioners being aggrieved by the contrary action on the part of the respondent-Corporation in not appointing them as per the promises made out in the advertisement, they made time to time representations. By one of such representations dated 9.1.2001, the petitioners urged upon the Deputy General Manager of the Corporation to look into the matter and to regularize them in their services in terms of the conditions stipulated in the advertisement. In the representation, they had indicated about the selection strictly in conformity with the advertisement and as to how other teachers working at par with the petitioners had been receiving the benefits indicated in the advertisement only to the deprivation of the petitioners.
9. It is the case of the petitioners that since they were selected against the permanent posts, the authority could not have taken recourse to the kind of appointment indicated above and that they are entitled to get all the benefits including the salary in the Time Scale of Pay, as was indicated in the advertisement. The petitioners made further representation dated 24.8.2001 urging the authority to provide them with the benefits since they were appointed pursuant to the advertisement followed by the selection in terms of the said advertisement. According to the petitioners, whenever they had approached the authority towards redressal of their grievance, they were assured of doing the needful in the matter without, however, any materialization of such assurance.
10. In paragraph-11 of the writ petition, the petitioners have named Shri Dipsekhar Borah, Shri Pradip Kumar Borthakur and Smt. Manju Baruah working in the particular department of the Corporation, who were also initially appointed on 45 days-basis like that of the petitioners. According to the petitioners, the said three persons have been regularized in their services on 21.1.1999, 21.1999 and 31.1.1999 respectively. Therefore, the petitioners again on 11.11.2002 submitted another representation urging for similar treatment. The petitioner in the first writ petition i.e. WP(C) No. 118/2006 made two applications on 25.6.2003 and 25.9.2003 urging the officials of the respondent-Corporation to grant her maternity leave from 3rd week of October, 2003 as she was expecting a baby. Be it stated here that after the appointment of the petitioner in the services of the Corporation, she got married. Her prayer for maternity leave was rejected on the ground that such leave was applicable only to regular employees. Such rejection was made by Annexure-L letter dated 15.10.2003.
11. The petitioners made further representation dated 3.8.2004 in continuation of their earlier representations urging for service benefits like that of any other regular employee. In response to the said representation dated 3.8.2004, the Chief H.R. Manager of the Corporation by his letter dated 25.8.2004 (Annexure-N) intimated the petitioners that sincere efforts were being made since the year 2001 to regularize the services of the petitioners. For a ready reference, the said letter dated 25.8.2004 is quoted below:
Ref.ERS.5/15(EMPL)-171Date 25.8.2004
Ms Anima Gogoi,
Emp. No. 37027 &
Other Signatories of the
Joint Petition dtd.3.8.04
Thro DM(MS & HR)
Dear Madam,
Non-Regularization of Service.
We refer to your joint petition dtd. 3.8.2004 requesting for regularization of your service in the Corporation.
In this regard, Management constraints in regularizing your service have been already clarified to you by our Ms R. Goswami, DM(MS&HR) on 13.8.2004. Sincere efforts have been made by AOD Management in this regard since the year 2001 and efforts are continuing.
Meanwhile the possibility of extending certain facilities to you and your dependents are being looked into.
Yours faithfully,
Indian Oil Corporation Ltd.
(Assam Oil Division)
Sd/-
(W.R. Borbora)
CHIEF HR MANAGER
12. In spite of the said letter issued on 25.8.2004 with the kind of assurance indicated therein, the respondents having not done anything in the matter, the petitioners have invoked the writ jurisdiction of this Court by filing the writ petitions.
13. The respondents have filed their counter affidavit. While not denying the basic fact stated in the writ petition, it is their stand that the petitioners were appointed to work as teachers on temporary basis in the school run by Assam Oil Division of the Corporation. According to the respondent-Corporation, the school in which the petitioners have been engaged is not an integral part of the Corporation. They have admitted that the petitioners were selected for appointment as Primary School Teachers pursuant to the aforesaid advertisement. It is the stand of the respondent-Corporation that the school in which the petitioners were appointed was eventually closed in 2004 owing to declining an enrolment. However, the Corporation with a sense of responsibility towards the teachers including the petitioners has re-deployed them as Temporary Junior Clerk Typists in May 2006. It is the further stand of the respondents that the petitioners are entitled to medical facilities, housing accommodation, annual bonus, leave encashment to the extent of 4 days in every spell of 45 days in lieu of earned leave. They have admitted that the petitioners are not being provided with the benefits of annual increments, loans and advances, which are applicable only to regular employees. It has been stated that presently there is no decision to regularize the services of the petitioners.
14. In the reply affidavit filed by the petitioners, they have questioned the very authority of the deponent, who has filed the counter affidavit on behalf of the respondents. The counter affidavit has been filed on behalf of the Respondents No. 1 to 6 by the Chief Manager (Marketing Operation) of the Indian Oil Corporation. According to the petitioners, the competent authority to file counter affidavit is the Chief H.R. Manager under whose authority, the petitioners have been serving. They have denied that the school is not an integral part of the Corporation. In this connection, they have stated that the teachers of the school can also be transferred to other departments of the respondent-Corporation. As per the transfer policy of the Corporation, a school teacher of the A.O.D. can be transferred from the school to any other department of the Corporation. The petitioners have also mentioned about the schools like AOD Primary School, AOD Higher Secondary School, AOD Hindi Higher Secondary School etc. which are integral part of the Corporation. In this connection, they have also annexed Annexure-P document dated 27.6.1994, which is the letter of appointment to the post of Primary School Teacher (English medium). As per the said appointment order, the appointee is liable to be transferred to any place in India in the services of the Corporation at the discretion of the management and that the management may transfer the appointee to work in Section/Plant/Department/Unit of the Corporation.
15. The petitioners in their reply affidavit have also denied the plea of the respondents in their counter affidavit that the posts were temporary and the appointments were made for temporary durations. According to them, had that been made known in the advertisement, they would not have applied in response to the advertisement. According to the petitioners, the respondent-Corporation having invited applications from the experienced hands cannot now turn around such a position so as to brand the petitioners as temporary appointees. In this connection, they have referred to Annexure-R and Q series appointment letters indicating therein about the temporary nature of the vacancies, but continuation of the incumbents in the services of the Corporation with all service benefits.
16. I have heard Mr. C. Baruah, learned Sr. counsel assisted by Mr. R.K. Dutta, learned Counsel for the petitioners as well as Mr. S.N. Sarma, learned Sr. counsel assisted by Mr. N. Sarma, learned Standing Counsel, I.O.C.
17. When the matter was partly heard on 20.1.2009 fixing the matter for further hearing on 17.2.2009, Mr. Sarma, learned Counsel representing the respondent-Corporation was requested to produce the records relating to appointment and continuation in services of the petitioners. Mr. Sarma, learned Counsel for the respondents had produced two files, one of which was File No. QTR.3/97-ii Dated 23.8.1997. Other file was without any number. As recorded in the order dated 3.3.2009, it was found that the files were only in respect of the advertisement in question, the authority which conducted the selection and assessment of suitability of the petitioners for the post in which the petitioners were found suitable. The files did not throw any light as to under what circumstances the petitioners were appointed on less than 45 days basis with time to time extension.
18. Having noticed the above, by order dated 3.3.2009, the learned Counsel representing the respondent-Corporation was requested to produce the relevant file, which would indicate as to what had prompted the authority to take recourse to take action in deviation of the terms of the advertisement and selection conducted.
19. On the last day of hearing of the matter, i.e. 26.3.2009, Mr. Sarma, learned Counsel submitted that there is no such records. He only produced the photocopies of some documents to show the present basic pay of the petitioners which have got no relevance to the issue in hand. If the respondent-Corporation had acted contrary to the promises made out in the advertisement and the selection, the Court is entitled to find out the reasons thereof. Nothing could be produced by the respondent- Corporation in support of their stand in the counter affidavit as to under what circumstances, the petitioners were so appointed on fixed pay basis for limited duration with time to time extension with artificial breaks.
20. The petitioners were selected for appointment as teachers, primary school (English medium). As per the advertisement, the selected candidates were to be appointed in the Time Scale of Pay of Rs. 2366 4521/- plus other allowances as admissible under existing rules. Even the total emoluments at the minimum of the scale was indicated as Rs. 3900/-. As noted above, it was also indicated that the selected candidates would be entitled to all other service benefits of the Corporation after the appointment.
21. The records produced by Mr. Sarma, learned Counsel for the respondent-Corporation have revealed that the petitioners were selected for such appointment and the selection was conducted strictly in conformity with the stipulations made in the advertisement. Nowhere in the records/two files produced by Mr. Sarma, learned Counsel representing the respondent-Corporation, there is any indication as to what led to the situation in which the petitioners were appointed in the manner and method indicated above. If the petitioners had been appointed on regular basis pursuant to the advertisement and selection, even on closure of the school, their services would have been continued in some other departments, as has been done even in case of temporary appointments with the consequential benefits. It is in this context, the petitioners have referred to Annexure-P appointment order dated 27.6.1994 annexed to the reply affidavit to show as to how even a school teacher is liable to be transferred to Section/Plant/ Department/ Unit of the Corporation.
22. Although the respondents have contended that the school in question is not an integral part of the Corporation, but Mr. Sarma, learned Counsel representing the respondent-Corporation fairly submitted that such stand on the part of the respondent-Corporation may not be sustainable. The petitioners have indicated some other schools, which are the integral parts of the Corporation. Even otherwise also, if the school in question was not an integral part of the Corporation, there was no question of issuing the advertisement and making the selection by the Corporation itself. The very fact that the services of the petitioners have been continuing in some other departments and in some other capacity will go to show that the school was an integral part of the Corporation. Thus, the corporation cannot obviate itself from the liability to maintain the petitioners even after discontinuation of the school. As to what consequence would follow after discontinuation of the school is not the issue in hand, but the issue is as to whether the petitioners have received fair treatment at the hands of the respondent-Corporation and as to whether there has been violation of Article 14 and 16 of the Constitution of India.
23. The petitioners are qualified candidates. As noticed above, they are B.A. and B.Ed degree holders. They fulfilled the eligibility criteria laid down in the advertisement. The advertisement was for regular appointment and had never indicated that the petitioners might find themselves in the kind of situation in which they found themselves, now with the issurance of the engagement advice appointing them for less than 45 days with time to time extension by various orders with the artificial break for one or two days. The petitioners were the experienced hands and accordingly, they responded to the advertisement leading incorporating the promises made therein. However, the respondents acted contrary to such promises and extracted the services of the petitioners in exploitative terms. The petitioners being at the receiving ends could not do anything in the matter except raising time to time protest before the authorities of the Corporation.
24. The Chief H.R. Manager of the Corporation by his aforementioned Annexure-9 letter dated 25.8.2004 stated that the efforts are being made to regularize the services of the petitioners since the year 2001 and such efforts were still continuing. It was also conveyed that the possibility of extending certain facilities to the petitioners were being looked into. Thus, the respondent-Corporation was not oblivious of the illegality meted out to the petitioners.
25. It is in the above context, the Apex Court in its landmark judgment relating to service condition reported in
26. When it was found that such a clause does not even state who on behalf of the Corporation is to exercise that power and the impugned letters of termination do not refer to any resolution or decision of the Board, the Apex Court made the following observation:
99. No apter description of Rule 9(i) can be given than to call it "the Henry VIII clause". It confers absolute and arbitrary power upon the Corporation. It does not even state who on behalf of the Corporation is to exercise that power. It was submitted on behalf of the appellants that it would be the Board of Directors. The impugned letters of termination, however, do not refer to any resolution or decision of the Board and even if they did, it would be irrelevant to the validity of Rule 9(i). There are no guidelines whatever laid down to indicate in what circumstances the power given by Rule 9(i) is to be exercised by the Corporation. No opportunity whatever of a hearing is at all to be afforded to the permanent employee whose service is being terminated in the exercise of this power. It was urged that the Board of Directors would not exercise this power arbitrarily or capriciously as it consists of responsible and highly placed persons. This submission ignores the fact that however highly placed a person may be, he must necessarily possess human frailties. It also overlooks the well-known saying of Lord Acton, which has now almost become a maxim, in the appendix to his "Historical Essays and Studies", that: "Power tends to corrupt, and absolute power corrupts absolutely." As we have pointed out earlier, the said Rules provide for four different modes in which the services of a permanent employee can be terminated earlier than his attaining the age of superannuation, namely, Rule 9(i), Rule 9(ii), Sub-clause (iv) of Clause (b) of Rule 36 read with Rule 38 and Rule 37. Under Rule 9(ii) the termination of service is to be on the ground of:
Services no longer required in the interest of the Company." Sub-clause (iv) of Clause (b) of Rule 36 read with Rule 38 provides for dismissal on the ground of misconduct. Rule 37 provides for termination of service at any time without any notice if the employee is found guilty of any of the acts mentioned in that rule. Rule 9(i) is the only rule which does not state in what circumstances the power conferred by that rule is to be exercised. Thus, even where the Corporation could proceed under Rule 36 and dismiss an employee on the ground of misconduct after holding a regular disciplinary inquiry, it is free to resort instead to Rule 9(i) in order to avoid the hassle of an inquiry. Rule 9(i) thus confers an absolute, arbitrary and unguided power upon the Corporation. It violates one of the two great rules of natural justice the audi alteram partem rule. It is not only in cases to which Article 14 applies that the rules of natural justice come into play. As pointed out in Union of India v. Tulsiram Patel040: (at SCC p. 463, para 72) "The principles of natural justice are not the creation of Article 14. Article 14 is not their begetter but their constitutional guardian." That case has traced in some detail the origin and development of the concept of principles of natural justice and of the audi alteram partem rule (at pp. 463-80). They apply in diverse situations and not only to cases of State action. As pointed out by O. Chinnappa Reddy, J., in Swadeshi Cotton Mills v. Union of India 141 they are implicit in every decision-making function, whether judicial or quasi-judicial or administrative. Undoubtedly, in certain circumstances the principles of natural justice can be modified and, in exceptional cases, can even be excluded as pointed out in Tulsiram Patel case40. Rule 9(i), however, is not covered by any of the situations which would justify the total exclusion of the audi alteram partem rule.
27. In the aforesaid decision, it was held by the apex Court that when a consent to an agreement is caused by coercion, fraud or misrepresentation, the agreement is a contract voidable at the option of the party whose consent was so sought for. It was also observed that certain types of contracts are void which are opposed to the public policy and tend to commit legal wrong. In paragraph 90 of the judgment, the Apex Court observed thus: -
90. It is not as if our civil courts have no power under the existing law. u/s 31(1) of the Specific Relief Act, 1963 (Act 47 of 1963), any person against whom an instrument is void or voidable, and who has reasonable apprehension that such instrument, if left outstanding, may cause him serious injury, may sue to have it adjudged void or voidable, and the court may, in its discretion, so adjudge it and order it to be delivered up and cancelled.
28. Dealing with the power conferred by the clause in question, it was held that such a clause is not only arbitrary but also discriminatory for it enables the Corporation to discriminate between employee and employee.
In this context, it was observed as follows:
100. The power conferred by Rule 9(i) is not only arbitrary but is also discriminatory for it enables the Corporation to discriminate between employee and employee. It can pick up one employee and apply to him Clause (ii) of Rule 9. It can pick up another employee and apply to him Clause (d) of Rule 9. It can pick up yet another employee and apply to him Sub-clause (iv) of Clause (b) of Rule 36 read with Rule 38 and to yet another employee it can apply Rule 37. All this the Corporation can do when the same circumstances exist as would justify the Corporation in holding under Rule 38 a regular disciplinary inquiry into the alleged misconduct of the employee. Both the contesting respondents had, in fact, been asked to submit their explanation to the charges made against them. Sengupta had been informed that a disciplinary inquiry was proposed to be held in his case. The charges made against both the respondents were such that a disciplinary inquiry could easily have been held. It was, however, not held but instead resort was had to Rule 9(i). "101. The Corporation is a large organization. It has offices in various parts of West Bengal, Bihar and Assam, as shown by the said Rules, and possibly in other States also. The said Rules form part of the contract of employment between the Corporation and its employees who are not workmen. These employees had no powerful workmen''s Union to support them. They had no voice in the framing of the said Rules. They had no choice but to accept the said Rules as part of their contract of employment. There is gross disparity between the Corporation and its employees, whether they be workmen or officers. The Corporation can afford to dispense with the services of an officer. It will find hundreds of others to take his place but an officer cannot afford to lose his job because if he does so, there are not hundreds of jobs waiting for him. A clause such as Clause (i) of Rule 9 is against right and reason. It is wholly unconscionable. It has been entered into between parties between whom there is gross inequality of bargaining power. Rule 9(i) is a term of the contract between the Corporation and all its officers. It affects a large number of persons and it squarely falls within the principle formulated by us above. Several statutory authorities have a clause similar to Rule 9(i) in their contracts of employment. As appears from the decided cases, the West Bengal State Electricity Board and Air India International have it. Several government companies apart from the Corporation (which is the first appellant before us) must be having it. There are 970 government companies with paid-up capital of Rs 16,414.9 crores as stated in the written arguments submitted on behalf of the Union of India.
The government and its agencies and instrumentalities constitute the largest employer in the country. A clause such as Rule 9(i) in a contract of employment affecting large sections of the public is harmful and injurious to the public interest for it tends to create a sense of insecurity in the minds of those to whom it applies and consequently it is against public good. Such a clause, therefore, is opposed to public policy and being opposed to public policy, it is void u/s 23 of the Indian Contract Act.
29. In
30. Upholding the direction of the Tribunal and rejecting the plea of the appellant that the respondent was promoted on stop-gap-arrangement and he has also given undertaking that he would not claim promotion as of right nor would he claim any benefit pertaining to that post, it was observed that such plea is preposterous. In paragraph 8 of the judgment, it has been observed thus:
8. Learned Counsel for the appellant attempted to contend that when the respondent was promoted in stop-gap arrangement as Junior Engineer I, he had given an undertaking to the appellant that on the basis of stop-gap arrangement, he would not claim promotion as of right nor would he claim any benefit pertaining to that post. The argument, to say the least, is preposterous. Apart from the fact that the Government in its capacity as a model employer cannot be permitted to raise such an argument, the undertaking which is said to constitute an agreement between the parties cannot be enforced at law. The respondent being an employee of the appellant had to break his period of stagnation although, as we have found earlier, he was the only person amongst the non-diploma- holders available for promotion to the post of Junior Engineer I and was, therefore, likely to be considered for promotion in his own right. An agreement that if a person is promoted to the higher post or put to officiate on that post or, as in the instant case, a stop-gap arrangement is made to place him on the higher post, he would not claim higher salary or other attendant benefits would be contrary to law and also against public policy. It would, therefore, be unenforceable in view of Section 23 of the Contract Act, 1872.
31. In
20. In service jurisprudence, a person who possesses the requisite qualification for being appointed to a particular post and then he is appointed with the approval and consultation of the appropriate authority and continues in the post for a fairly long period, then such an appointment cannot be held to be "stopgap or fortuitous or purely ad hoc". In this view of the matter, the reasoning and basis on which the appointment of the promotees in the Delhi Higher Judicial Service in the case in hand was held by the High Court to be "fortuitous/ad hoc/stopgap" are wholly erroneous and, therefore, exclusion of those appointees to have their continuous length of service for seniority is erroneous.
32. In Union of India v. Wing Commander T. Parthasarathi reported in (2001) 1 SCC 158 it was observed by the Apex Court that a substantive legal right cannot be denied to a person merely on some policy decision of the Government or any certificate issued by him acknowledging a particular position which has no legal sanctity. In the instant case, the respondent-Corporation could not place on record any such policy decision warranting appointment of the petitioners contrary to the promises made out to them. In paragraph 9 of the judgment, the Apex Court observed thus:
9. The reliance placed upon the so-called policy decision which obligated the respondent to furnish a certificate to the extent that he was fully aware of the fact that he cannot later seek for cancellation of the application once made for premature retirement cannot, in our view, be destructive of the right of the respondent, in law, to withdraw his request for premature retirement before it ever became operative and effective and effected termination of his status and relation with the Department. When the legal position is that much clear it would be futile for the appellants to base their rights on some policy decision of the Department or a mere certificate of the respondent being aware of a particular position which has no sanctity or basis in law to destroy such rights which otherwise inhered in him and available in law. No such deprivation of a substantive right of a person can be denied except on the basis of any statutory provision or rule or regulation. There being none brought to our notice in this case, the claim of the appellants cannot be countenanced in our hands. Even that apart, the reasoning of the High Court that the case of the respondent will not be covered by the type or nature of the mischief sought to be curbed by the so-called policy decision also cannot be said to suffer any conformity (sic infirmity) in law, to warrant our interference.
33. Our own High Court in the case of Radhika Ranjan Choudhury v. State of Assam and Ors. reported in (1997) 1 GLJ 1 noticing the particular administrative order repugnant to the provisions of law observed that if any order is passed incorporating certain conditions which are repugnant to the provisions of law, the order shall be valid, however, without the condition which is repugnant to the law and that the order will be accepted without condition. 34. In the instant case, the respondent-Corporation made out the promises to the petitioners for consideration of their case for appointment as primary school teacher. Such promise was made out by the advertisement dated 20.10.1997 incorporating the conditions of appointment. The petitioners responded to the said promises made out and did their best to get the selection. They were selected pursuant to all the selections including the written test conducted by the authorities of the respondent-Corporation. At no stage, there was even any whisper that they might be appointed on temporary basis and that the posts were temporary.
35. Although in the counter affidavit, a feeble attempt has been made to show that the requisition placed before the Employment Exchange indicated that the posts were temporary in nature, but the same is wholly unsustainable. In the advertisement, there was no indication that the posts were temporary. Even otherwise also, in the normal circumstances, the employer either in the advertisement or in the offer of appointment indicates the posts as temporary. That by itself cannot be decisive of the fact that the post is temporary and/or for a limited duration. It is not the case of the respondent-Corporation that since the posts were temporary and got abolished by the time the petitioners were so appointed they could not be appointed against the posts. Merely because, the posts were described as temporary, it did not give licence to the respondent- Corporation to deal with the case of the petitioners as per their whims and caprices. It is in this context, they were directed to produce the relevant file, in which the decision for appointment of the petitioners in the manner and method in which they were appointed, which the respondents failed to comply with. They could not produce any such file which has led to the irresistible conclusion that the treatment meted out to the petitioners is nothing but exploitation requiring interference of this Court.
36.The particular plea of the petitioners referred to in paragraph 11 of the writ petition that the services of the petitioners named therein were also appointed like that of the petitioners have been regularized in no time has not been denied by the respondents. However, their plea is that the said persons were appointed in some other departments/units. Merely because the said persons were appointed in some other units, that by itself will not justify differential approach of the respondents in dealing with the case of the petitioners. The respondents with their eyes wide open made out the promises to the petitioners for regular appointment and conducted the selection on that basis. At no point of time, they were intimated that their appointment shall be on less than 45 days basis and that they would also not be entitled to service benefits as promised in the advertisement.
37. The petitioners being at the receiving end and in this era of unemployment, had no other option than to accept the engagement offered to them which needless to say clearly in exploitative terms. It is not that the petitioners gladly accepted the engagement, but they made time to time representation in response to which the authority of the respondent-Corporation even admitted that the efforts had been made since 2001 to regularize the services of the petitioners. Once the petitioners were tested for regular appointment and were selected for the same, merely by extracting their services in exploitative terms and merely because the petitioners are pitted against the mighty administration of the respondent-Corporation, the respondents cannot derive the advantageous position from that kind of situation. The Court is bound to interfere with such exploitation. The Apex Court in
"12. We are greatly disturbed by the insensitivity reflected in the impugned judgment rendered by the learned single Judge in a case where judicial mind would be tempted to utilize all possible legal measures to impart justice to a man mutilated so outrageously by his cruel destiny. The High Court non-suited him in exercise of a supervisory and extraordinary jurisdiction envisaged under Article 227 of the Constitution. Time and again this Court has reminded that the power conferred on the High Court under Articles 226 and 227 of the Constitution is to advance justice and not to thwart it)
38. Needless to say that the jurisdiction of the High Court under Article 226 of the Constitution of India is equitable and discretionary power in that Article is exercised by the High Court "to reach injustice wherever it is found". The facts of the present case deserve interference of this Court in exercise of equitable jurisdiction under Article 226 of the Constitution of India. The respondent-Corporation instead of behaving like a model employer has exploited the services of the petitioners in exploitative terms, which is not expected to a model employer. The exploitation meted out to the petitioners stares on the face of it.
39. In
The Tribunal misdirected itself when it treated the appellant''s claim as ''one time action'' meaning thereby that it was not a continuing wrong based on a recurring cause of action. The claim to be paid the correct salary computed on the basis of proper pay fixation, is a right which subsists during the entire tenure of service and can be exercised at the time of each payment of the salary when the employee is entitled to salary computed correctly in accordance with the rules. This right of a Government servant to be paid the correct salary throughout his tenure according to computation made in accordance with the rules, is akin to the right of redemption which is an incident of a subsisting mortgage and subsists so long as the mortgage itself subsists, unless the equity of redemption is extinguished. It is settled that the right of redemption is of this kind.
40. For all the aforesaid reasons, the writ petitions are allowed directing the respondent-Corporation to treat the petitioners as regularly appointed with effect from the initial date of appointment with all consequential service benefits including notional fixation of pay from the initial date of appointment and arrear salary with effect from 05.01.2006, i.e. the date of filing the writ petitions. In other words, the appointments of the petitioners shall be deemed to be the one as envisaged in the advertisement dated 20.10.1997 with all consequential benefits indicated above, taking the services of the petitioners to be regular in the time scale of pay with other service benefits, as indicated in the said advertisement dated 20.10.1997. The respondent-Corporation shall provide the petitioners with all consequential service benefits including their engagement/ absorption/transfer etc.
41. Writ petitions are allowed without, however, any order as to costs.
