Courts Must Protect Weaker Sections To Preserve Constitution’s Socialist Character: Delhi HC [Read Judgment]

New Delhi: The Delhi High Court has dismissed writ petitions filed by the Union of India challenging a Central Administrative Tribunal order that directed regularisation of commission vendors and bearers working with the North Eastern Railway, holding that their entitlement to regularisation stood settled by repeated directions of the Supreme Court dating back to 1987 and could not be resisted on the ground of screening.

A Division Bench of Justice C. Hari Shankar and Justice Om Prakash Shukla was hearing two connected writ petitions filed by the Ministry of Railways against a common judgment dated 7 November 2016 of the Central Administrative Tribunal, which had allowed original applications filed by the respondents seeking regularisation on the posts of bearers/vendors on which they were working on a commission basis.

The Court traced the background of the dispute to a Railway Board Circular dated 13 December 1976, which directed the progressive absorption of Commission Bearers and Vendors into regular vacancies. Despite this, the issue repeatedly reached the Supreme Court, which in orders dated 20 April 1987, 26 July 1988 and 25 August 1987 in Mahesh v. Union of India directed completion of the regularisation process and implementation of the 1976 Memorandum. When absorption still did not take place, the Supreme Court, in South Eastern Railway Congress v. The Chairman, Railway Board (order dated 3 December 1997), directed that until absorbed, such vendors and bearers be paid the minimum of the revised pay scale together with allowances. A similar direction was passed by the Tribunal in OA 1768/1999 in November 2000. The Railway Board issued a further circular on 1 December 2005, again directing regularisation of all Commission Vendors/Bearers, subject to limited conditions.

Despite these directions, the respondents' regularisation did not follow, leading them to approach the Tribunal afresh in OA 4140/2013 and OA 173/2014, which culminated in the impugned judgment dated 7 November 2016 directing their regularisation within 90 days along with payment of minimum pay scale from 14.11.2000, and imposing costs of Rs.1 lakh on the Railways. The Union's review application against this judgment was also dismissed by the Tribunal.

Before the High Court, counsel for the Union of India submitted that only those commission bearers/vendors found eligible upon screening under the 2005 circular had been regularised, and that the respondents, having been screened and found ineligible, could claim no right to regularisation. Counsel for the respondents countered that their entitlement to regularisation stood settled up to the Supreme Court and could not be reopened by the Union.

The Court held that the sequence of Supreme Court orders left no doubt that all commission bearers and vendors in service on the date of the judgments in Mahesh and South Eastern Railway Congress were entitled to regularisation under the 1976 Circular, and that it was undisputed that the respondents fell within this category, leaving no scope for the Railways to rely on any subsequent screening process to exclude them.

The Bench further drew support from a recent line of Supreme Court and Delhi High Court decisions on regularisation of long-serving contractual employees, including Jaggo v. Union of India, Shripal v. Nagar Nigam, Vinod Kumar v. Union of India, Dharam Singh v. State of UP and Bhola Nath v. State of Jharkhand, as followed in Pawan Sharma v. Govt. of NCT of Delhi and New Delhi Municipal Council v. Kalpana Sharma. These decisions establish that employees selected through a process mirroring regular recruitment, who have worked continuously for several years performing duties essential to the organisation, acquire a substantive right to regularisation regardless of the label under which they were initially engaged, provided the appointment was not illegal, mala fide or a ‘back door’ entry. The Court noted that the Supreme Court had upheld Pawan Sharma in appeal, clarifying only that regularised employees would not gain seniority over those regularly appointed in the interim, and also referred to the Supreme Court's recent observations in Rohan Vijay Nahar v. State of Maharashtra on the binding nature of precedent under Articles 141 and 144 of the Constitution.

Examining the Railways' own rejoinder affidavits, the Court found that despite tabulated assertions claiming several respondents had already been absorbed in Group-D posts, a subsequent affidavit filed by the Union in January 2023 contradicted this by stating that commission vendors who were not regularised were not entitled to any retirement benefits, indicating that in fact none of the respondents in either petition had actually been regularised. The Court described this lack of candour before both the Tribunal and itself as “very disturbing”, and held that it was inclined to accept the respondents' version that no regularisation had taken place despite repeated judicial directions up to the Supreme Court.

Holding that there was no ground whatsoever to interfere with the Tribunal's judgment, and observing that Courts must protect the interests of weaker sections of society and persons drawing paltry wages to preserve the socialist character of the Constitution, the Bench found that if anything the Tribunal had erred on the side of leniency in the costs awarded, though it refrained from enhancing them. 

The writ petitions were accordingly dismissed, with compliance including payment of costs directed to be ensured within four weeks. The Court further directed that if the Railways failed to comply, the Tribunal should revive contempt proceedings that had been kept in abeyance pending disposal of these petitions.

Appearances:

For the Petitioners: Mr. Mukul Singh, CGSC with Mr. Aryan Dhaka, Adv. (in W.P.(C) 7973/2018); Ms. Pratima N Lakra, CGSC with Mr. Shailendra Kumar Mishra and Ms. Upanita Soumyadarshini, Advs. (in W.P.(C) 8018/2018).

For the Respondents: Mr. Ambhoj Kumar Sinha, Adv.

Case Title: Union of India and Ors. vs. Mithai Lal and Ors., W.P.(C) 7973/2018, with Union of India and Ors. vs. Ram Baran and Ors., W.P.(C) 8018/2018

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