ORDER
Shanker Raju, Member (J)
1. Earlier, before transfer to the Tribunal, on assumption of jurisdiction on Indian Council of Medical Research (ICMR), vide notification issued by DoPT, the following reliefs have been sought:
(i) to take immediate action to give effect to the Casual Labourers (Grant of Temporary Status and Regularisation) Scheme of the Government of India 1993 and grant the petitioner Temporary Status with effect from date/dates they became eligible for the same under the above Scheme;
(ii) to further grant the petitioner all the other benefits flowing from the grant of Temporary Status to them, as per the provisions of the aforesaid Scheme;
(iii) to pay the petitioner wages admissible to the skilled workers, as per the Orders issued by the Government in consonance with the duties performed by them, with back wages representing the difference between the daily wages paid to them as ‘unskilled’ workers and those admissible to them as skilled workers;
(iv) the Hon’ble High Court may pass such other order or orders as it may deem fit and appropriate in the circumstances of the case.
2. The matter was heard finally by the Tribunal and vide order dated 20.7.2000 in TA-50/1999 the following directions have been issued:
14. We therefore dispose of this O.A. with a direction to respondents to * carefully identify which amongst applicants would fall within the definition of casual labourers as provided in the Casual Labour (Grant of Temporary Status and Regularisation) Scheme, 1993. To them and them alone, respondents should extend the benefits of the aforesaid Scheme provided, firstly they have been engaged by respondents for a period of at least 240 days (206 days in case respondents’ organisation is observing the 5 day week); secondly they are in employment of respondents on the date of issue of this order: and thirdly they fulfill the other eligibility qualifications prescribed in the Scheme. These directions should be implemented within 4 months from the date of receipt of a copy of this order. No costs.
3. The aforesaid decision was carried in CWP No. 7828/2000 by the ICMR and by an order dated 23.2.2002 passed by a Division Bench of the High Court of Delhi, with the following observations the matter was remitted back to the Tribunal for fresh consideration:
The fundamental point is the question of applicability of the Scheme which, as per its opening Paragraph No. 3, is applicable to “Ministries”, “Departments of the Government of India. The said terminology, “ministries”, “Departments” and “attached subordinate offices”, are having well established connotation in the field of Central Government Service Rules and Orders, and therefore, a finding was required to be rendered on this aspect which has not been done by the Tribunal.
In addition to the adjudication of the scope of Clause 3 of the Scheme referred to above, the further question to be adjudicated would be the effect of the provision in the I.C.M.R. Rules making Central Government’s CCS Rules etc. applicable to the employees of ICMR in terms of Bye law No. 1 which is quoted herein-below:
In regard to all matters concerning the service conditions of employees of the council, the Fundamental and Supplementary Rules framed by the Govt. of India and such other rules and orders issued by the Govt. of India from time to time shall mutatis mutandis apply to the employees of the council. Provided that such rules and orders issued by the Govt. of India as are specifically not made applicable to autonomous organisations like ICMR should not apply to the employees of the Council.
Incidental to the adjudication of the above two aspects, would be the consideration of the effect of the provision in Clause 3 of the Scheme laying down that the scheme shall not be applicable to the casual workers in Railways, Department of Telecom and Department of Posts who are covered by their separate schemes.
We find from the records that apart from the observation of the Tribunal to the effect that the private respondents are admittedly project employees, the documents which had been made the basis of the petition filed by the private respondents themselves and which are at pages 61 to 64 of the paper book, the private respondents have themselves claimed to be casual employees of the project called Malaria Research Project.
Another aspect to be adjudicated upon by the Tribunal would be the effect of the earlier proceedings in the form earlier CWP No. 2/93 and 9/93, seeking regularisation of their services, being decided against the private respondents upto the Supreme Court. It has been contended by the Counsel of the petitioner (ICMR) that in case the Project employees do not have any entitlement for regularisation at all, as now stands concluded by the earlier proceedings upto the Supreme Court, then they cannot have entitlement to temporary status under the Scheme dated 10.09.1993.
Fundamental issue would also be the question as to whether Project employees are at all entitled to be treated as employees of ICMR establishment, and what is the difference in the status of these casual employees of the project vis-a-vis casual employees of the main establishment (ICMR). There are also related contentions of the respondent which equally warrant adjudication by the Tribunal, inter-alia, on the point that the internal notings and correspondence exchanged between the respondents 2 & 3 before the Tribunal (who are now petitioner Nos. 2 & 3 before this Court) allegedly incorporating an admission on the part of the institution itself that the project employees would be governed by the scheme dated 19.09.1993, or at least the petitioner institution can be taken to have so treated it, and therefore, ICMR is in a sense, estopped from now taking a stand to the contrary.
We find from a perusal of the impugned judgment that the Tribunal has not adjudicated comprehensively on the real matters in dispute between the parties including certain core questions and issues which we have set out above. Without saying anything more lest it amounts to, or may be treated by the Tribunal to be, an expression of opinion by us on the aspects which have not yet been adjudicated, we set aside the impugned judgment and order of the Tribunal dated 20.7.2000 only on the ground of there being no decision on certain core issues, and direct that the Tribunal will decide the matter afresh after hearing both the parties in accordance with law, in the light of observations set out hereinabove.
In order to ensure the interest of justice, we also direct that the Tribunal while deciding the matter afresh pursuant to our present directions, will not be influenced by any of the observations/findings on the merits of the matter either as contained in our present order or in the impugned order dated 20.7.2000 which we have set aside with the direction for the Tribunal to decide the matter afresh and in accordance with law. Parties to appear before the Tribunal on 15.5.2002.
4. In the above view of the matter a brief background as a factual matrix is relevant to be highlighted for proper adjudication. Applicants are working on daily wages and claim to be performing the duties as skilled workers having engaged between 1985 and 1993 working under ICMR and a permanent body, Malaria Research Centre (MRC, for short) and are working in the Project undertaken called Integrated Diseases Vector Control (IDVC).
5. Few of applicants have earlier approached the High Court of Delhi in Writ Petition No. 3/83, whereby, by an order dated 14.11.95 holding that IDVC Project is to be wound up and appointment was co-terminus, the request for regularisation was turned down which has been put at rest by dismissal of SLP which is no more res integra. By taking resort to bye-law No. 1 governing conditions of service of employees of ICMR it is stated that the orders passed by the Government of India shall mutatis mutandis apply to the employees of the Council, which includes casual employees engaged on Project.
6. In the above backdrop, what has been contended before us is that Government of India vide notification dated 10.9.93 issued by DoPT promulgated a Scheme w.e.f. 1.9.93 which has not specifically excluded ICMR from its purview accorded temporary status to all casual workers on 1.9.1993 fulfilling the conditions and such conferment ensures wages at the minimum of the pay scale for corresponding regular Group ‘D’ officials including DA, HRA CCA, benefit of increment, leave encashment, maternity leave on completion of three years contribution to the GPF.
7. It is also one of the claims that though applicants are performing the work of skilled nature, they are paid wages at par with semi skilled and this is a discrimination under Article 14 of the Constitution of India.
8. Heavy reliance has been placed on internal correspondence between Director, MRC and ICMR to contend that a proposal has been made and a decision has been taken by the governing Council to confer temporary status on the employees of Project, yet the same has not been culminated into an order passed by the Government.
9. As per the decision of the High Court (supra) while remanding the case back, though no expression of opinion has been made on merits, yet the following issues have been framed for the Tribunal to be adjudicated:
(i) Whether Scheme of DoPT dated 10.9.93 would have any application to the ICMR which is not a department of the Government of India or an attached/ subordinate office or a Ministry?
(ii) What would be the effect of Government Rules on the bye-laws framed by ICMR?
(iii) Whether Clause 3 of the DoPT Scheme dated 10.9.93 by necessary implication excludes ICMR from its purview?
(iv) Whether project employees are to be treated as employees of MRC or ICMR?
(v) Whether internal notings and correspondence is an admission on the part of the Institution for accord of temporary status as per the Scheme of 10.9.93?
These issues shall have to be answered.
10. Before we proceed to divulge on the framed issues, a project in its legal context is a construction unit, which is regular and permanent as defined in the judicial dictionary by K.J. Iyer (13th Edition). In common parlance, a project has been defined in Concise Oxford English Dictionary (10th Edition – Revised) as an enterprise carefully planned to achieve a particular plan or a planned undertaking. In the above light, the Apex Court in L. Robert D’Souza v. Executive Engineer 1982 SCC (L&S) 124 : 1982(1) SLJ 319 (SC), the project has been defined and given a legal meaning with the following observations:
21. Rule 2501(b)(i) clearly provides that even where staff is paid from contingencies, they would acquire the status of temporary Railway servants after expiry of six months of continuous employment. But reliance was place on Rule 2501(b)(ii) which provides that labour on projects, irrespective of duration, except those transferred from other temporary or permanent employment would be treated as causal labour, In order to bring the case within the ambit of this provision it must be shown that for 20 years appellant was employed on projects. Every construction work does not imply project. Project is correlated to planned projects in which the workman is treated as work-changed. The letter dated September 5, 1966, is by the Executive Engineer, Ernakularm, and he refers to the staff as belonging to construction unit. It will be doing violence to language to treat the construction unit as project. Expression ‘ project’ is very well known in a planned development. Therefore, the assertion that the appellant was working on the project is belied by two facts: (i) that contrary to the provision in Rule 2501 that persons belonging to casual labour category cannot be transferred, the appellant was transferred on innumerable occasions as evidenced by orders Ex.P-1 dated January 24, 1962, and Ex.P-2 dated August 25, 1964, and the transfer was in the office of the Executive Engineer (Construction); (ii) there is absolutely no reference to project in because surplus on completion of project there was no necessity to absorb him. But the letter dated September, 5,1966, enquires from other Executive engineers, not attached to projects, whether the surplus staff including appellant could be absorbed by them. This shows that the staff concerned had acquired a status higher than casual labour, say temporary Railway servant. And again construction unit is a regular unit all over the Indian Railways. It is a permanent unit and cannot be equated to project, therefore, the averment of the Railway Administration that the appellant was working on project cannot be accepted. He belonged to the construction unit. He was transferred fairly often and the worked continuously for 20 years and when he questioned the bona fides of his transfer he had to be re-transferred and paid wages for the period he did not report for duty at the place where he was transferred. Cumulative effects of these facts completely belie the suggestion and the appellant worked on project. Having rendered continuous uninterrupted service for over six months, he acquired the status of a temporary Railway servant long before the termination of his service and, therefore, his service could not have been terminated under Rule 2505.
11. In the conspectus of the above, ICMR is a Society registered under the Societies Act, 1860 with an object to prosecute and assess research propagation of knowledge to initiate and aid medical science research in India. In the Society, as per its Memorandum of Association, the Health Minister, Government of India, is the President of Council and Secretary of the Ministry of Health as Vice-Chairman. The Governing Body with the approval of the Govt. of India appoint the Director General of the Council. In nutshell, by bringing ICMR to the Notification under Section 14(2) of the Administrative Tribunals Act, 1985 apart from being declared as a State within the meaning of Article 12 of the Constitution of India for the purpose of jurisdiction the employees are treated to be holders of civil post. In a Constitution Bench’s decision consisting of seven Judges in Pradeep Kumar Biswas v. Union of India 2002 SCC (L & S) 633 : 2002(3) SLJ 42(SC) laid down a test on a Body as a State within the meaning of Article 12 of the Constitution of India and when the management and control is by the Government with the financial aid the Body is State within the meaning above.
12. A Project is either externally funded or internally funded. ICMR as a permanent attached Body known as MRC, which is part and parcel of the ICMR and their employees are the employees of the ICMR. The aforesaid Body undertakes projects for achievement of object through scientific research. Earlier before 1985 MRC was set up to control epidemic of Malaria in India and in 1985 a Project in the name of Integrated Disease Vector Control (IDVC) had been started to deal with the study and control of disease spread from vector, namely, Malaria and other vector borne diseases. About 12 field stations were established all over India with 400 employees in different categories. IDVC Project, which was set up in 1986, was continued from time to time and initially till 8th Five Year Plan but as Malaria has not been eradicated as well as other diseases spread from vector, this Project almost has attained perpetuity, though, it is averred that the same is continued till 31.3.2005.
13. It is no more res integra that earlier when applicants had preferred a claim before the High Court of Delhi in CWP No. 3/93 for regularization, taking stock of the fact that IDVC Project is to wind up by the 8th Five Year Plan period and the staff would be phased out and there would be discontinuance of the staff working in different position in phased manner, the request for their regularization on the analogous engagement of Project employees is co-terminus and the claim for regularization stood rejected. This has been in limine upheld by the Apex Court. However, since 1995, a decade has passed, the 8th plan is over yet there has been a need to continue the Project as neither Malaria nor other vector born diseases have been fully eradicated. With the result, overshooting its expiry to Project is still on. Earlier, the decision to wind it up and to phase out the employees has not been implemented.
14. A Project can be funded externally by World Health Organization, UNICEF and other International Bodies but a Project, which is internally funded a person, employed in the Project is being paid from out of the Consolidated Fund of India. In ICMR, IDVC is being funded by the Ministry of Health, Govt. of India and they have the control which makes the ICMR as a State within the meaning of Article 12 of the Constitution of India.
15. In ICMR, Malaria Project Workers Association has filed Writ Petition Nos. 5856-57/1985 before the Apex Court seeking regularization and as a policy taken by the respondents on an assurance that their services stood regularized in the light of the order passed by the Apex Court on 14.08.1997 in WP No. 5856-57/1985.
16. The facts revealed in WP No. 5856-57 before the Apex Court were that the association consisting of employees who had been engaged in different projects of the ICMR which not only included MRC but IDVC for exclusive research and control of malaria and filaria and other communicable diseases. In the above backdrop the employees have raised an issue that these projects and schemes are owned and controlled by ICMR and are functioning as a wing of the Ministry of Health and Family Welfare being part and parcel of the ICMR. It was also the contention raised that the employees are being paid from out of the Consolidated Fund of India. These are working as wings of the Ministry of Health and Family Welfare. In the above conspectus on an assurance to absorb the petitioners therein on suitable post is a deemed admission and consent of the petitioners therein being paid from out of the Consolidated Fund of India being internally funded project of the Ministry of Health and Family Welfare which is the cadre Controlling Authority of the ICMR.
17. While an issue for regularisation of ad hoc casual and other temporary Government servants has been dealt with in State of Haryana v. Piara Singh , yet a separate category of project employee has been carved out on the basis of the decision of the Apex Court in Delhi Development Horticulture Employees’ Union v. Delhi Administration and Ors. 1992 SCC (L&S) 805 : . In Horticulture case (supra) as per the 5th Plan year different schemes have been formulated by the Central Government, one was food for work under the National Employment Rural Programmes and the incumbents were engaged on daily wages. In the above conspectus the following observations have been made:
20. On the other hand, it is contended by the Counsel for the respondents and the Counsel for the writ petitioners that the directions given are perfectly warranted in all the circumstances of the case and have been given following the decisions of this Court. It is submitted that the said directions have been given with a view to curb the arbitrariness of the authorities and with a view to give a satisfactory solution to a human problem created by the policies of the Governments themselves. It is submitted by Shri R.K. Garg that the work-charged employees should be treated on par with ad hoc employees and out to be regularised on the 1st of April of each year. All those persons who are working in the permanent posts ought to be regularized, says the Counsel. Shri M.K. Ramamurthy, appearing for the work charged employees contented that the general concept as to work-charge employees, viz., that the employment is confined to a particular work or project is not correct. He submitted that this is a legacy left behind by the Birtish. He submitted that the work-charge employees are employees of the work-charge establishment and so long as one or the other work is there, they should be continued. Inasmuch as the Government, particularly at the present stage of development, is never without a project or work, these employees must also be regularised. Indeed, according to the Counsel the concept of work-charge establishment is a mere matter of accountancy. It is distinct from project employment. It is really temporary employment, which in the nature of things must be treated as regular. Other Counsel appearing for the respondents in the appeals and for the writ petitioners supported these contentions.
21. Ordinarily speaking, the creation and abolition of a post is the prerogative of the Executive. It is the Executive again that lays down the conditions of service subject, of course, to a law made by the appropriate legislature. This power to prescribe the conditions of service can be exercised either by making rules under the proviso to Article 309 of the Constitution or (in the absence of such rules) by issuing rules/instructions in exercise of its executive power. The Court comes into the picture only to ensure observance of fundamental rights, statutory provisions, rules and other instructions, if any, governing the conditions of service. The main concern of the Court in such matters is to ensure the rules of law and to see that the Executive acts fairly and gives a fair deal to its employees consistent with the requirements of Articles 14 and 16. It also means that the State should not exploit its employees nor should it seek to take advantage of the helplessness and misery of either the unemployed persons or the employees, as the case may be. As is often said, the State must be model employer. It is for this reason, it is held that equal pay must be given for equal work, which is indeed one of the directive principles of the Constitution. It is for this very reason it is held that a person should not be kept in a temporary or ad hoc status for long. Where a temporary or ad hoc appointment is continued for long the Court presumes that there is need and warrant for a regular post and accordingly directs regularisation. While all the situations in which the Court may act to ensure fairness cannot be detailed here, it is sufficient to indicate that the guiding principles are the ones stated above. The principles relevant in this behalf are stated by this Court in several decisions, of which it would be sufficient to mention two decisions having a bearing upon the issue involved here. They are Dharwad Distt. P.W.D. Literate Daily Wage Employees Association v. State of Karnatka and Jacob M. Puthuparambil v. Kerala Water Authority. In the first case, it was alleged that about 50,000 persons were being employed on daily-rated or on monthly-rated basis over a period of 15 to 20 years, without regularizing them. It was contented that the very fact that they are continued over such a long period is itself proof of the fact that there is regular need for such employment. In that view of the matter, following directions were given, after reviewing the earlier decisions of this Court elaborately: (SCC p.408, Para 23).
2. From amongst the casual and daily rated employees who shall have completed ten years of service by December 31, 1989, 18,600 shall immediately be regularised with effect from January 1, 1990 on the basis of seniority-cum-suitability.
There shall be no examination but physical infirmity shall mainly be the test of suitability.
3. The remaining monthly rated employees covered by the Paragraph 1 who have completed ten years of service as on December 31, 1989 shall be regularised before December 31, 1990, in a phased manner on the basis of seniority-cum-suitability, suitability being understood in the same way as above.
4. The balance of casual or daily rated employees who become entitled to absorption on the basis of completing ten years of service shall be absorbed/ regularised in a phased manner on the same principle as above on or before December 31, 1997.
5. At the point of regularisation, credit shall be given for every unit of five years of service in excess of ten years and one additional increment in the time scale of pay shall be allowed by way of weightage.
There was direction that the claims on other heads would be considered at the time of final disposal. We have come to the conclusion that apart from these reliefs no other would be admissible.
22. Having given the said direction, the Bench (Ranganath Misra, M.M. Punchhi and S.C. Agarwal, JJ) made the following observations: (SCC p.408, Para 24)
We are alive to the position that the scheme which we have finalized is not the ideal one but as we have already stated, it is the obligation of the Court to individualize justice to suit a given situation in a set of facts that was placed before it. Under the scheme of the Constitution the purse remains in the hands of the executive. The legislature of the State controls the Consolidated Fund out of which the expenditure to be incurred, in giving effect to the scheme, will have to be met. The flow into the Consolidated Fund depends upon the policy of taxation depending perhaps on the capacity of the prayer. Therefore, unduly burdening the State for implementing the constitutional obligation forthwith would create problems, which the State may not be able to stand. We have, therefore, made our direction with judicious restrain with the hope and trust that both parties would appreciate and understand the situation. The instrumentality of the State must realize that it is charged with a big trust. The money that flows into the Consolidated Fund and constitutes the resources of the State comes from the people and the welfare expenditure that is meted out goes from the same Fund back to the people. May be that in every situation the same tax paper is not the beneficiary. This is an incident of taxation and a necessary concomitant of living within a welfare society.
23. The second case (Jacob) arose from Kerala. Upon the establishment of Kerala Water Authority under Kerala Water Supply and Sewerage Act, 1986, all the functions of Public Health Engineering Department were also transferred to the Authority. After its constitution the Authority too recruited some persons. With effect from July 30, 1988, the Authority came within the purview of the Public Service Commission. The employees of the Authority thus fell into four categories, namely, (i) those who were in the employment of PHED before the constitution of the Authority and were transferred to the authority, (ii) those whom the Authority employed between April 1,1984 and August 4, 1986, (iii) those who were appointed between August 4, 1986 and July 30, 1988, and (iv) those who were appointed after July 30, 1988. Rule 9 of the Kerala State and Subordinate Services Rules empowered the Government to appoint persons, in the case of an emergency, otherwise than in accordance with the Rules, such appointment was to be valid only for a limited time and such appointee was bound to be replaced by a regular appointee. At the same time, Clause (e) of the Rule provided that persons so appointed may be regularised provided they completed two years’ continuous service on December 22, 1973. Construing the said clause in the light of the constitutional philosophy, this Court held: (SCC p.47, Para 15)
Therefore, if we interpret Rule 9(a)(i) consistently with the spirit and philosophy of the Constitution, which it is permissible to do without doing violence to the said rule, it follows that employees who are serving on the establishment for long spells and have the requisite qualifications for the job, should not be thrown out but their services should be regularised as far as possible. Since workers belonging to this batch have worked on their posts for reasonably long spells they are entitled to regularization in service.
24. In the light of the said principle and in the light of the principles emerging from the decisions of this Court-which were elaborately discussed-the following directions were give: (SCC pp. 47-8, Para 17)
(1) The Authority will with immediate effect regularize the services of all ex-PHED employees as per its Resolution of January 30, 1987 without waiting for State Government approval.
(2) The services of workers employed by the Authority between April 1, 1984 and August 4, 1986 will be regularized with immediate effect if they possess the requisite qualifications for the post prescribed on the date of appointment of the concerned worker.
(3) The services of workers appointed after August 4, 1986 and possessing the requisite qualifications should be regulated in accordance with Act 19 of 1970 provided they have put in continuous service of not less than one year, artificial breaks, if any, to be ignored. The Kerala Public Service Commission will take immediate steps to regularize their services as a separate block. In so doing the Kerala Public Service Commission will take the age bar as waived.
(4) The Kerala Public Service Commission will consider the question regularisation of the services of workers who posses the requisite qualifications but have put in less than one year’s service, separately. In doing so the Kerala Public Service Commission will take the age bar as waived. If they are found fit they will be placed on the list along with the newly recruited candidates in the order of their respective merits. The Kerala Public Service Commission will be free to rearrange the list accordingly. Thereafter fresh appointments will issue depending on the total number of posts available. If the posts are inadequate, those presently in employment will make room for the selected candidates but their names will remain on the list and they will be entitled to appointment as and when their turn arrives in regular course. The list will ensure for such period as it permissible under the extant rules.
(5) The Authority will be at liberty to deal with the services of the workers who do not possess the requisite qualifications as may be considered appropriate in accordance with law.
Those workers who services have been terminate in violation of this Court’s order in respect of which Contempt Petition No. 156 of 1999 is taken out shall be entitled to the benefit of this order as if they continue in service and the case of each worker will be governed by the clause applicable to him depending on the category to which he belongs and if he is found eligible for regularization he will be resorted to service and assigned his proper place.
18. A Constitution Bench of the Apex Court in D.T.C. v. D.T.C. Mazdoor Congress 991 (Supp.) 1 SCC 600 : following observations have been made:
230. There is need to minimize the scope of the arbitrary use of power in all walks of life. It is inadvisable to depend on the good sense of the individuals, however high-placed they may be. It is all the more improper and undesirable to expose the precious rights like the rights of life, liberty and property to the vagaries of individual whims and fancies. It is trite to say that individuals are not and do not become wise because they occupy high seats of power, and good sense, circumspection and fairness does not go with the posts, however high they may be. There is only a complacent presumption that those who occupy high posts have a high sense of responsibility. The presumption is neither legal nor rational. History does not support it and reality does not warrant it. In particular, in a society pledged to uphold the rule of law, it would be both unwise and impolitic to leave any aspect of its life to be governed by discretion when it can conveniently and easily be covered by the rule of law.
231. The employment under the public undertakings is a public employment and a public property. It is not only the undertakings but also the society which has to stake in their proper and efficient working. Both discipline and devotion are necessary for efficiency. To ensure both, the service conditions of those who work for them must be encouraging, certain and secured, and not vague and whimsical. With capricious service conditions, both discipline and devotion are endangered, and efficiency is impaired.
232. The right to life includes right to livelihood. The right to livelihood therefore cannot hang on to the fancies of individuals in authority. The employment is not a bounty from them nor can its survival be at their mercy. Income is the foundation of many fundamental rights and when work is the sole source of income, the right to work becomes as much fundamental. Fundamental rights can ill-afford to be consigned to the limbo of undefined premises and uncertain applications. That will be a mockery of them.
19. In the above backdrop though our constitution is yet to recognize as a fundamental right, right to livelihood but yet what has been said in its true import and in the light of socio-economic conditions preclude Government to set out terms and conditions while offering any type of livelihood to an incumbent which are not only arbitrary but unconscionable as well.
20. From the cumulative reading of various cases cited and the ratio decidendi discussed clearly points out that though in a project one has no right for regularisation and it is co-terminus, yet no case law has been cited or any exception which holds the view that if a project had been continued for over two decades and there is a likelihood of its being carried out in perpetuity whether a valid inference can be drawn that the project is a permanent body and the object for the purpose it has been constituted having not been achieved the fate of incumbents working in the project would be in limbo and they would have to be satisfied that only emoluments on daily wages with no guarantee at least of minimum of the pay scale or other attendant benefit as admissible to a daily wager or casual worker holding a temporary status though without any valid claim for regularisation which is not the issue in the present case. Applicants in the present case had been working in different capacities earlier in a different project but later on in IDVC since more than 20 years. They are still getting the wages at the rates admissible under the Minimum Wages Act as promulgated from time to time by the State or the Union Territory concerned. A project like MRC, which has already become part and parcel of the ICMR as a permanent body IDVC a project undertaken somewhere in 1986. Since 1986 with an object to study and control IDVC such a Malaria, Filaria etc. project initially was sanctioned till 8th Plan and continued beyond that and is still continuing. There is no indication to the effect that the above Project is likely to be wound up in the near future though an assumption on the analogy which is a reality that Malaria in this country is not yet eradicated and not even controlled with the tropical conditions and climatic changes all over India there is a strong need, requirement and even necessity to have research on Malaria continued for more than two decades looses all its essentials and components of a Project and keeping in view that right to livelihood is protected against the directive principles of State policy with recognised principle of equal pay for equal work. There would be an inference to deemed instrumentality of Government and the Project being part and parcel of either MRC or ICMR. To hold that project employees in a project which is continued for more than 20 years with a certainty of its being continued in future as well, are not employees of the Government instrumentality which has funded the project would be cruel and would not be justice to the employees engaged in the Project. The Apex Court in Writ Petition No. 5856-57/85 when approached by similarly circumstanced project employees and once the contention has been raised on the above analogy the Government suo moto promised regularisation of petitioner therein. They were deemed to be employees of the ICMR despite engaged on the project. The assurance has culminated into appointment letters. As such the same analogy though the decision is a consent order would not act as a precedent yet the act of the Government to take contradictory stand would not only be illogical but irrational and arbitrary as well.
21. In a socialist country which is over-crowded by population a person who does not enjoy a fundamental right of livelihood if offered appointment cannot bargain and is on any unconscionable terms one is ready to accept the offer, failing which there are others to grab it. This contract of service is not only violates the essence of the Constitution of India but also contrary to law. If the project comes to an end within a reasonable period one cannot be allowed to assail it or claim any benefit. But once the project keeping in light the underlying object, achievement and the task left suggests its permanency a view shall have to be taken that though the decision to treat IDVC as a part and parcel and permanent body of ICMR is yet to be taken by the Government, by necessary implication the same has to be treated for the purpose of grant of temporary status to applicants with attendant benefits as a part and permanent body of ICMR. Such a view would neither violate Constitution of India nor would open the flood gates as what is concerned is the future of employees of IDVC who had been stagnating on emoluments as admissible to daily wagers without any guarantee for future and security of service after attaining the age of superannuation. As a model and welfare State Government has to play an ideal role in such a manner that the employees are not victimized and the State Exchequer should not be wasted. A balance is to be made. This is the model role but in apathy to the genuine grievance and a slip manner to reject the claim on technicality cannot be countenanced. While the directions of the Apex Court (supra) were being implemented in O.A.-2409/2001 the respondents filed a Review Application No. 134/2002 in O.A.-2049/2001 though it was dismissed in circulation on 8.7.2002, yet in their RA the star ground to assail the orders regularising the project workers was that 400 employees of the project in IDVC who are on long term extra mural project would have to be regularised. This leaves no doubt that applicants in the present case are identically situated with those of petitioners in Amini’s case (supra).
22. A writ petition filed before the High Court of Delhi by few of applicants in CWP-3/93 claiming regularisation, the claim was solely rejected on the ground that respondents had made a statement that the IDVC Project is to be wound up by the end of the 8th Plan, which is not yet otherwise happened. The Apex Court dismissed the appeal in limine. Had the decision in WP No. 5856-57/1985 by the Apex Court on 14.8.87 and implementation thereof by the Project been brought to the notice the claim for regularisation would have ended otherwise. But as no relief is claimed for regularisation, no comments can be offered.
23. In Steel Authority of India Ltd. and Ors. v. National Union Waterfront Workers and Ors. , while dealing with the contract workers a Constitution Bench of the Apex Court by considering a plethora of decisions the following observations have been made:
7.1. By definition the term “contract labour” is a species of workman. A workman shall be so deemed when he is hired in or in connection with the work of an establishment by or through a contractor, with or without the knowledge of the principal employer. A workman may be hired: (1) in an establishment by the principal employer or by his agent with or without the knowledge of the principal employer; or (2) in connection with the work an establishment by the principal employer through a contractor or by a contractor with or without the knowledge of the principal employer. Where a workman is hired in or in connection with the work of an establishment by the principal employer through a contractor, he merely acts as an agent so there will be master and servant relationship between the principal employer and the workman. But where a workman is hired in or in connection with the work of an establishment by a contractor, either because he has undertaken to produce a given result for the establishment or because he supplies workmen for any work of the establishment, a question might arise whether the contractor is a mere camouflage as in Hussainbhai case and in Indian Petrochemicals Corpn. case etc., if the answer is in the affirmative, the workman will be in fact an employee of the principal employer;
24. In Ram Singh v. U.T. Chadigarh test to judge master servant relationship though in the conspectus of a contract worker the following observations have been made:
15. In determining the relationship of employer and employee, no doubt, “control” is one of the important tests but is not to be taken as the sole test. In determining the relationship of employer and employee, all other relevant facts and circumstances are required to be considered including the terms and conditions of the contract. It is necessary to take a multiple pragmatic approach weighing up all the factors for and against an employment instead of going by the sole “test of control”. An integrated approach is needed. “Integration” test is one of the relevant tests. It is applied by examining whether the person was fully integrated into the employer’s concern or remained apart from the independent of it. The other factors, which may be relevant, are-who has the power to select and dismiss, to pay remuneration, deduct insurance contributions, organize the work, supply tools and materials and what are the “mutual obligations” between them. (See Industrial Law, 3rd Edn., by I.T. Smith and J.C. Wood, at pp. 8 to 10)
16. Normally, the relationship of employer and employee does not exist between an employer and a contractor and the servant of an independent contractor. Where however, an employer retains or assumes control over the means and method by which the work of a contractor is to be done, it may be said that the relationship between employer and employee exists between him and the servants of such a contractor. In such a situation the mere fact of formal employment by an independent contractor will not relieve the master of liability where the servant is, in fact, in his employment. In that event, it may be held that an independent contractor is created or is operating as a subterfuge and the employee will be regarded as the servant of the principal employer. Whether a particular relationship between employer and employee is genuine o a camouflage through the mode of a contractor is essentially a question of fact to the determined on the basis of the features of the relationship, the written terms of employment, if any, and the actual nature of the employment. The actual nature of relationship concerning a particular employment being essentially a question of fact, it has to be raised and proved before an industrial adjudicator. Conclusions (5) and (6) of the Constitution Bench decision of this Court in Steel Authority of India are decisive for purposes of this case, which read as under: (SCC p.63, Para 125)
125. (5) On issuance of prohibition notification under Section 10(1) of the CLRA Act prohibiting employment of contract labour or otherwise, in an industrial dispute brought before it by any contract labour in regard to conditions of service, the industrial adjudicator will have to consider the question whether the contractor has been interposed either on the ground of having undertaken to produce any given result for the establishment or for supply of contract labour for work of the establishment under a genuine contract or is a mere ruse/camouflage to evade compliance with various beneficial legislations so as to deprive the workers of the benefit thereunder. If the contract is found to be not genuine but a mere camouflage, the so-called contract labour will have to be treated as employees of the principal employer who shall be directed to regularize the services of the contract labour in the establishment concerned subject to the condition as may be specified by it for that purpose in the light of Para 6 hereunder.
(6) If the contract is found to be genuine and prohibition notification under Section 10(1) of the CLRA Act in respect of the establishment concerned has been issued by the appropriate Government, prohibiting employment of the contract labour in any process, operation or other work of any establishment and where in such process, operation or other work of the establishment the principal employer intends to employ regular workmen, he shall give preference to the erstwhile contract labour, if otherwise found suitable and, if necessary, by relaxing the condition as to maximum age appropriate, taking into consideration the age of the workers at the time of their initial employment by the contractor and also relaxing the condition as to academic qualifications other than technical qualifications.
25. If one has regard to the above, while conceiving a pragmatic approach the integration factor is the basic test. Having regard to the above and keeping in light the object of ICMR, which is to initiate develop research for study of the diseases and the fact that the ICMR has their own virus units and Malarial Research Project being a permanent body and the fact that this is no more res integra with IDVC, an internally funded Scheme that the Ministry of Health utilizing consolidated fund of Government to meet out the existence of the Project and the manner of discharge of duties and functions of the employees is governed by the ICMR. We have no doubt in our mind that there exists relationship of master and servant between ICMR and employees of IDVC. As such, with a jural relationship and all the components and factors, by necessary implication, deeming them to be the employees of the ICMR they cannot be shunted out from the purview of definition of employee only on the sole ground that not having appointed on a regular post encadred with ICMR.
26. In Piara Singh’s case (supra) even a daily wager or an ad hoc employee when continued for years there would be a presumption of work and the post. The same analogy would mutatis mutandis apply to the present fact situation, where applicants have continued for more than two decades with all ingredients of their employment being directly controlled in all respect by the ICMR. In such an event merely because a project is undertaken by ICMR though funded by the Ministry of Family Welfare and on Consolidated Fund of India have to be treated as employees of the Council as per bye-law-I.
27. In Jawaharlal Nehru Krishi Vishwa Vidayalaya, Jabalpur, M.P. v. Bal Kishan Soni and Ors. the staff employed in a project has been made entitled for regular pay scale of the posts on which they are engaged on the doctrine of equal pay for equal work.
28. The Apex Court in State of West Bengal v. Pantha Chatterjee 2003 SCC (L&S) 894 : , while dealing with a case of volunteer home guard employed on Bangla Desh Border who demanded regularisation on the principle of equal pay for equal work, held as follows:
16. In the present case, we have seen that there has not been any dispute about the nature of duties of the two sets of BWHG. Ordinarily, no doubt, they could claim benefits only in accordance with the Scheme under which they are engaged. But as held earlier, the Scheme was not implemented in its terms as farmed. Hence, the distinction sought to be drawn between the part-time and the permanent BWHG had obliterated and both worked together shoulder to shoulder under similar situations and circumstances and discharged same duties. Once the Scheme as framed failed to be implemented as such by those at the helm of the affairs and the part-time BWHG were continued under the authority of those vested with such power to continue them, it is not open to the State Government or the Central Government to deny them the same benefits as admissible to members of the permanent staff of BWHG. The decisions reported in Karnataka State Private College Stop-gap Lecturers Assn. v. State of Karnataka and Govt. of India v. Court Liquidator’s Employees Assn. May also be beneficially referred to.
17. On the basis of the Scheme, as promulgated by the Government or India, the State Government with the sanction of the Governor of West Bengal raised the battalion of Border Wing Home Guards, as indicated earlier and they were to be paid from a given head of expenditure of the State Government. The Scheme, however, makes it clear that the expenditure incurred would be reimbursed by the Central Government. The Central Government should not and cannot get out of this undertaking. It is no doubt true that the State of West Bengal being in the position of an employer of the respondent petitioners, owes the primary responsibility of making all the payments on account of salary, allowances and other perquisites to them as admissible to the permanent staff of the Boarder Wing Home Guards but this burden of expenditure must be ultimately borne by the Central Government. The petitioners have been guarding the borders of the country assisting BSF in checking the infiltration from across the border. The petitioners have been working and discharging their duties under the control of the authorities of the Border Security Force. We also find that the Central Government cannot shed its responsibility by raising a lame plea that it was because of the State Government that voluntary character of the engagement of the writ petitioners, as per the Scheme, was lost. In our view, the primary responsibility for deployment for such a long duration squarely lies upon the Central Government. The deployment was envisaged to be for a period of 3 months to be continued, only if necessary as may be assessed by the authorities of the Border Security Force. The authority to continue the deployment beyond the period of 3 months was entrusted to the responsible authorities of the Border Security Force by the Central Government itself. There is no dispute that the writ petitioners were continued accordingly. In such a situation the State Government hardly had any choice in the matter to cease or withdraw the deployment engaged in the job of patrolling of borders under operational control of BSF.
29. In so far as regularisation of Project employees is concerned, a three-Judges Bench of the Apex Court in Dr. V.L Chandra v. AIIMS 1990 SCSLJ 78 held as follows:
6. The Institute set up statute is intended to carry on research in a continuous way to improve the level of medical knowledge Under the Act the Institute is an autonomous body though the Chairman thereof is no other than the Union Minister of the Health. It is true that the Institute is entrusted from time to time with research project by the world Health Organization, the Indian Council of Medical Research and other Government and semi-Government bodies. It is appropriate that a scheme should be evolved by the Institute in coordination with the Health Ministry and the Indian Council of Medical research so that a team of researchers is built up to meet the general requirements of research. It is quite possible that certain projects would require specialized hands and on such occasions a special team could be set up on casual basis by drawing the competent hands from different institutions for a period but to keep up the tempo of research if a team of researchers is built up it would be convenient for the Institute for purposes of discipline and control as also for efficiency. The Health Ministry must also sponsor continuous research projects in the field of medical and health and for such purposes several projects should be listed out from time to time and entrusted to the respondents institute and also a similar Institute at Chandigarh and to Institutes as and when set up elsewhere. This would assist in updating relevant medical information and knowledge, apart from building up a scientific tone and temper for general circulation. We commend that the Institute initiates seriously action in this regard without delay and we suggest that the Ministry of Health and the Indian Council of Medical Research collaborate with the Institute to work out the same.
7. Respondent No. 3 Indian Council of Medical Research has no chosen to appear separately before us inspite of service of notice. Since we have been told that the respondent-Institute has immediately no scope to employ the petitioners excepting the one that we have named above, we direct that the remaining three petitioners in these two petitions should be provided employment either as Researchers or in any suitable alternative employment until their inclusion in a team of researchers is considered. The Indian Council of Medical research shall take appropriate steps to offer adequate employment to the three petitioners within two months hence. If the question of funding because necessary, we direct the Ministry of Health to cooperate and place adequate funds at the disposal of the Indian Council of Medical Research.
30. A three Judges Bench in Chief Conservator of Forests v. Jagannath Maruti Kondhare and Ors. 1996 SCC (L&S) 500, as regards continuation of casual workers for long periods regarding permanency of a project, the following observations have been made:
22. We have given our due thought to the aforesaid rival contentions and, according to us, the object of the State Act, Inter alia, being prevention of certain unfair labour practices, the same would be thwarted or get frustrated if such a burden is placed on a workman which he cannot reasonably discharge. In our opinion, it would be permissible on facts of a particular case to draw the inference mentioned in the second part of the item, if badlis, casuals or temporaries are continued as such for years. We further state that the present was such a case inasmuch as from the materials on record we are satisfied that the 25 workmen who went to the Industrial Court of Pune (and 15 to the Industrial Court, Ahmednagar) has been kept as casuals for long years with the primary object of depriving them of the status of permanent employees inasmuch as giving of this status would have required the employer to pay the workmen at a rate higher than the one fixed under the Minimum Wages Act. We can think of no other possible object as, it may be remembered, that the Pachgaon Parwati Scheme was intended to cater to the recreational and educational aspirations also of the populace, which are not ephemeral objects, but par excellence permanent. We would say the same about environment-pollution-care work of Ahmednagar, whose need is on the increase because of increase in pollution. Permanency is thus writ large on the face of both the types of work. If even if such projects, persons are kept in jobs on casual basis for years the object manifests itself; no scrutiny is required. We, therefore, answer the second question also against the appellants.
23. The final point which needs our determination is regarding the reliefs granted by the Industrial Court, which is to make the workmen, in both the matters, permanent with all the benefits of a permanent worker, which would include payment of wages etc. at the rate meant for a permanent worker.
24. On the relief part, if it Shri Bhandare who principally addressed us. His contention in this regard is that the relief of making the workmen permanent, that is, to regularize them was not justified inasmuch as some of them had been employed under the Maharashtra Employment Guarantee Act, 1977. In any case the drain on the State Exchequer which would follow if all workers like the respondents are to be paid as permanent employees would be so enormous that the State would find it difficult to engage in other welfare activities.
25. To bring home his submission regarding the unjust nature of the relief relating to regularization, Shri Bhandare sought to rely on the decision of this Court in Delhi Development Horticulture Employees’ Union v. Delhi Admn. We do not think that the ratio of this decision is applicable to the facts of the present case inasmuch as the employment of persons on daily-wage basis under Jawahar Rozgar Yojna by the Development Department of Delhi Administration, whose claim for regularization was dealt with in the aforesaid case was entirely different from that of the scheme in which the respondents-workmen were employed. Jawahar Rozgar Yojna was evolved to provide income for those who are below the poverty line and particularly during the periods when they are without any source of livelihood and therefore without any income whatsoever. It is because of this that the Bench observed that the object of the Scheme was not to provide right to work as such even to the rural poor, much less to the unemployed in general. As against this, the workmen who were employed under the schemes at hand had been so done to advance objects having permanent basis as adverted to by us.
26. Therefore, what was stated in the aforesaid case cannot be called in aid at all by the appellants. According to us, the case is more akin to that of State of Haryana v. Piara Singh in which this Court favoured the State Scheme for regularization of casual labourers who continued for a fairly long spell -say two or three years, (Paragraph 51). As in the case at hand the workmen concerned hand, by the time they approached the Industrial Courts worked for more or less 5 years continuously, no case for interference with this part of the relief has been made out.
27. We may also meet the contention that some of the workmen had been employed under the Maharashtra Employment Guarantee Act, 1977. As to this, we would first observe that no factual basis for this submission is on record. Indeed, in some of the cases it has been pointed out that the employer had not even brought on record any order of appointment under this Act. This part, a perusal of this Act shows that it has not accepted the application of the Industrial Disputes Act, 1947. This is apparent from the perusal of Section 13 of this Act. It may be further pointed out that this Act having been brought into force from 1978, could not have applied to the appointments at hand most of whom are of the year 1977.
28. Insofar as the financial strain on the State Exchequer is concerned, which submission is sought to be buttressed by Shri Dholakia by stating that in the Forest Department itself the casual employees are about 1.4 lakhs and if all of them were to be regularized and paid at the rate applicable to permanent workmen, the financial involvement would be in the neighbourhood of Rs. 300 crores-a very high figure indeed. We have not felt inclined to bear in mind this contention of Shri Dholakia as the same has been brought out almost from the hat. The argument relating to financial burden is one of despair or in terrorem. We have neither been impressed by the first nor frightened by the second inasmuch as we do not intend that the view to be taken by us in these appeals should apply, proprio vigore, to all casual labourers of the Forest Department or any other Department of the Government.
The aforesaid dicta leaves no doubt that permanency writ large on the work performed by applicants as well as the object of the IDVC.
31. The aforesaid is the background and a prelude to answer to the framed questions.
32. Learned Counsel of applicants Mr. A.K. Behera has strongly relied upon the internal notings dated 20.10.95 and also issued in 1997 to contend that a decision has already been taken to regularize the daily wagers and in fact has stated that two of the employees, namely, Subhash and Dheeraj Singh have already been regularised. It is also contended that there exists a master and servant relationship between the ICMR and applicants.
33. Mr. Behera states that bye-law-I extends the Government orders to the employees of ICMR and keeping in light the continuance of applicants for more than two decades and all the ingredients of control of ICMR applicants are to be treated as employees for the purpose of grant of DoPT Schemes, benefits of temporary status which has not been excluded by necessary implication. The learned Counsel would contend that applicants had been performing skilled work for which there is no specific denial. As such they are to be paid at par on the principle of equal pay for equal work, wages of Central Government employees even at the standards of daily wages as settled by the respective State Governments. It is also stated that grant of temporary status is not related to availability of Group ‘D’ posts.
34. On the other hand, learned senior Counsel vehemently opposed the contentions and stated that internal notings cannot be relied upon to sustain the relief. It is also stated that applicants are project employees and are not employees of ICMR. It is further stated that employees of the Council are different than employees of Project. Project cannot be an employer with laying down service conditions. It is stated that bye-law cannot be extended to Project.
35. Learned Counsel states that reliance on the decision in AIIMS (supra) is misconceived. It is stated that MRC is funded by the Government to conduct research and unless IDVC is declared as a permanent establishment grant of temporary status would be putting a premium. Inputs are supplied by the Health Ministry for eradication of malaria and other integrated viral diseases. The project is to wind up by 31.3.2005. As there had been enough research in IDVC it is also stated that even at later stages MRC is also to go. By referring to a decision of the Apex Court it is stated that burden to prove that applicants are employees of ICMR is on them. As per the decision of the Apex Court in Workman of Nilgiri v. State of T.N. and except the bald pleading this burden has not been successfully discharged.
36. It is also stated that grant of temporary status and regularisation to Group ‘D’ post in DoPT Scheme of 1993 are inseparable. Scheme of 10.9.93 is an offshoot to a decision of the Tribunal wherein leave encashment, 50% of service to be reckoned for qualifying service on regularisation. Productivity Linked Bonus clearly demonstrate that it is inextricably linked with regularisation and by necessary implication Government autonomous bodies are excluded.
37. As regards AIIMS case it is stated that therein the applicants were employees of AIIMS and even in ICMR no daily wager or casual worker has been accorded temporary status. It is in this conspectus stated that letter dated 20.10.95 is not with reference to project employees and moreover there is no approval of governing body to the proposal of grant of temporary status to the IDVC employees.
38. Learned senior Counsel would contend that assuming the same is a recommendation would not be extended as a promise as no decision has been taken there would be no occasion to infer either promissory estoppel or legitimate expectation. It is also stated that a back door entry is sought by applicants for their regularisation.
39. As regards parity of wages is concerned, it is stated that applicants are not qualified and are basically given in house training which would not transform them into skilled workers. Apart from collection of larva there are manifold duties like guarding and appointments of applicants had not required any such qualification or skills imbibe. The decision of the Apex Court in M.D., U.P. Land Development Corporation v. Amar Singh 2003(5) SCC 338 : 2003(2) SLJ 310 (SC), is relied upon.
40. We have carefully considered the rival contentions of the parties and perused the material on record. It is no more res Integra that applicants are not seeking regularisation as the same has been turned down by the High Court of Delhi, which stood affirmed by the Apex Court on the basis that Project in 1995 was to be wound up and staff is to be phased out. Though this has not taken place and rather the project is still continuing even after passage of more than 10 years.
41. The first issue as to applicability of DoPT O.M. dated 10.9.93 on ICMR which is not a department of Government or an attached or subordinate office and also not a Ministry, O.M. dated 10.9.93 was basically meant for casual workers who were employed in Central Government offices and was an aftermath of Raj Kamal’s case. This would have been applied for accord of temporary status and was not applicable to Department of Telecommunication, Posts and Telegraph and Railways where separate claims were formulated. However, ICMR which is no more res integra to be an entity within the meaning of Article 12 of the Constitution of India as a State for the purpose of jurisdiction is amenable to the jurisdiction of the Tribunal in the light of the decision of the Constitution Bench in Pradeep Kumar Biswas v. Indian Institute of Chemical Biology and Ors. (supra), having regard to the control, funding and various factors had qualified to be a State within the meaning of Article 12 of the Constitution. ICMR has been formulated with a view to undertake research, medical scientific research in India and to promote it by establishment of a fund borne by the Ministry of Health and Family Welfare, i.e., the Consolidated Fund of India. With regard to the employees of ICMR and their service conditions fundamental and supplementary rules framed by the Government of India, orders issued by the Government relating to their employees have to be applied mutatis mutandis to the employees of the Council. The only exceptions are the orders which are specifically not made applicable to the autonomous organisation would not be applicable to the ICMR.
42. A grammatical and literal construction of bye-law-I with underlying objects sought to be achieved to extend at par with Government employees the conditions of service and benefits to the employees of the Council would indicate that the Government orders which expressly exclude autonomous organisation from its purview would not be applicable to the employees of the Council. If one has regard in this conspectus to the Scheme underlying promulgation of DoPT O.M. dated 10.9.93 had applied to all Government employees, its attached offices and Ministry and is not applicable to Railway, Department to Telecom and Posts. It has not been specifically excluded within its purview the autonomous organisation or bodies funded by Government of India. The rule of exclusion, by necessary implication, cannot be construed.
43. If such a necessary implication is to be construed, reading the proviso to bye-law-I and assuming it is constructed that any Government order which excludes by necessary implication by not incorporating applicability of its Scheme or benefits to the employees of autonomous organisation would not be applicable, the main provision of bye-law-I which extends fundamental rules, supplementary rules and other rules issued by Government of India mutatis mutandis applicable to the employees of the Council would go redundant and otiose.
44. A three-Judges Bench of the Apex Court in Abrahim B. Bafan v. State of Gujarat while ruling that with regard to the interpretation of statute clearly observes that the word occurring in two limbs of the Section should be given the same meaning with the following observations:
10. The power conferred under Clauses (a) and (b) of Sub-section (1) of Section 11 is in fact extension of the power recognized under Section 21 of the General Clauses Act and while under the General Clauses Act, the power is exercisable by the authority making the order, the named authorities under Clauses (a) and (b) of Section 11(1) of the Act are also entitled to exercise the power of revocation. When the High Court exercises jurisdiction under Article 226 of the Constitution it does not make an order of revocation. By issuing a high prerogative writ like habeas corpus or certiorari it quashes the order impugned before it and by declaring the order to be void and striking down the same it nullifies the order. The ultimate effect of cancellation of an order by revocation and quashing of the same in exercise of the high prerogative jurisdiction vested in the High Court may be the same but the manner in which the situation is obtained is patently different and while one process is covered by Section 11(1) of the Act, the other is not known to the statute and is exercised by an authority beyond the purview of Sub-section (1) of Section 11 of the Act. It is, therefore, our clear opinion that in a situation where the order of detention has been quashed by the High Court, Sub-section (2) of Section 11 is not applicable and the detaining authority is not entitled to make another order under Section 3 of the Act on the same grounds.
45. If one has regard to the above, once the intention is to extend Government orders mutatis mutandis to the employees of the Council the latter part signifies that unless the same is specifically excluded shall not apply to the employees of the Council is the correct interpretation and on the basis of harmonious construction failing which the object is frustrated.
46. In this view of the matter we have no hesitation to hold that DoPT O.M. dated 10.9.93 would apply to the employees of the ICMR as well.
47. This leads us to answer question No. 2, i.e., the effect of Government rules and bye-laws framed by the ICMR in the light of above answer we have no hesitation to hold that unless a Government order specifically, expressly debars application to autonomous organisation like ICMR the same, by necessary implication, would apply to the employees of ICMR.
48. The question No. 3 as to exclusion, by necessary implication, in Clause 3 of the DoPT Scheme dated 10.9.93 and its applicability to ICMR is concerned, Clause 3 of the DoPT Scheme as to its applicability to Government offices, attached offices/departments is the answer above and would hold good. In this view of the matter, DoPT Scheme does not by necessary implication exclude ICMR from its purview.
49. As regards answer to question whether internal notings and correspondence is an admission on the part of the institution for accord of temporary status as per the Scheme of 10.9.93, it is relevant to highlight the ratio laid down in M.D., U.P. Land Development Corporation v. Amar Singh (supra):
9. Having perused the impugned order in the light of the documents referred to above and keeping in view the rival contentions urged on either side, we are of the view that the impugned judgment and order of the High Court cannot be sustained for reasons more than one. The internal note and order of the Corporation, which is made the basis for the claim that twenty five posts were available on a regular basis, is itself not correct. At this stage we may observe that the internal note and order dated 2.11.1990 was prepared by the Director of the Corporation for his own purpose, but strangely enough a copy of the same was produced by the respondents in the writ petition. We fail to under stand how the copy of this internal note and order came into the hands of the respondents. Apart from the fact whether such an internal note itself could give any right to the respondents, the very reading of the came does not give an impression that it is indicated to create twenty-five posts on a regular basis. It only states that a panel of twenty-five persons be prepared for training, taking note of the future possible requirement of persons working in the project. The Division Bench of the High Court has misread this document. The letter dated 9.11.1990 addressed to the Vice-Chancellor of Agricultural University seeking names of the candidates for recruitment to the post of Assistant Project Manager (Group 3) itself shows that twenty-five posts of Assistant Project Managers are likely to be created in future for that purpose; the Corporation had decided that a panel of BSc. (Agr.) graduates be prepared; the selected candidates would be given training for one year and thereafter, they would be put on probation for another year. A request was made in the letter to send a list of agricultural graduates, BSWc. (Agr.) By the letters addressed to the respondents individually dated 9.2.1991, they were asked to attend the office of the Senior Deputy Manager, Jaunpur (Reclamation Development Project, Million Wells Scheme) for training by 25.2.1991; during the period of training, they would be paid Rs. 1200 per month as training allowance. A copy of the said letter was also given to the Senior Deputy Manager, Jaunpur (Reclamation does not say more than calling the candidates to join for the purpose of training, that too under the “Million Wells Scheme”.
10. The letter dated 22.2.1993 of the Joint Secretary, U.P. Government extracted above, in clear terms states that 260 posts of different categories were created for the appellant Corporation, against which 140 posts were already occupied by the incumbents and 120 posts were still left vacant; those 120 posts were kept suspended and in lieu there of permission was given to fill 107 posts temporarily newly created for the purpose of the U.P. Sodic Land Reclamation Project sponsored by World Bank. From these documents it is clear that the respondents were never recruited as against regularly sanctioned posts on a regular basis. Reading of these documents it is clear that the respondents were never recruited as against regularly sanctioned posts on a regular basis. Reading of these documents and the contentions raised on either side go to show that the appointments of the respondents were temporary under the “Million Wells Scheme” aforementioned. When the work of the Scheme had come to an end, the respondents were not entitled to claim regularization of their services. Even though their services were continued after 31.3.1994 by virtue of an interim order passed in the writ petition, they cannot claim benefit of regularization of their services as a matter of right. This Court in State of H.P. v. Nodha Ram in Para 4 has stated thus: (SCC pp. 478-79)
4. It is seen that when the project is completed and closed due to non availability of funds, the employees have to go along with its closure. The High Court was not right in giving the direction to regularize them or to continue them in other places. No vested right is created in temporary employment. Directions cannot be given to regularize their services in the absence of any existing vacancies nor can directions be given to the State to create posts in a non-existent establishment. The directions would amount to creating of posts and continuing them despite non-availability of the work. We are of the considered view that the directions issued by the High Court are absolutely illegal warranting our interference. The order of the High Court is, therefore, set aside.
11. In clear and certain terms it is stated that when the project comes to a close, the employees who are working in the project will not get any vested right. In other words, once the project comes to an end, services of the employees also come to an end. The other decisions cited by the learned Counsel more or less are to the same effect.
50. If one has regard to these internal notings and orders are only meant for official purposes and have no probative value before the Court. Moreover, we find that the above notings have not culminated into an order passed by the Governing Counsel or the appropriate body. As such no reliance of whatsoever nature can be placed by applicants to substantiate their claim.
51. As regards question whether project employees are treated as employees of either MRC or ICMR, it is trite law in the light of the decision of the Apex Court in L. Robert D’souza (supra) and the grammatical meaning of the project that it is only a work undertaken to achieve a purpose or object and it is only co-related to the planned project in which a person is treated as work charged. However, any project which assumes character of a permanent unit, by no stretch of imagination can be equated to project.
52. In so far as project and its characteristics are concerned, in Delhi Development Horticulture Employees’ Union v. Delhi Administration and Ors. (supra) the Apex Court was pitted with Jawahar Rozgar Yojna. The Scheme was to give employment sane regularisation. In that backdrop what is being held is that the existing schemes are to wind up for want of resources. This has an object to curb illegal employment market which results in a new source of corruption and frustration to others and regularisation of these workers in time bound project jeopardizing the public interest as well.
53. The recent decision in Amar Singh’s case (supra) also deprecates issuing directions to the State to create posts in a non-existing establishment. On closure of a project no vested right has accrued to the employees. Their services are co-terminus with the project.
54. There are a plethora of decisions including Central Welfare Board v. Anjali Bepari and Ors. 1996 SCC (L&S) 1358, where regarding project employees Government have been directed to frame a Scheme for their absorption. A similar direction was issued by a three Judges Bench in Chief Conservator of Forests v. Jagannath Maruti Kondhare and Ors. (supra). No where we find any ratio decidendi to the effect which as an inbuilt nomenclature of applicability of equity, legitimate expectation and also pragmatic approach as to the issue whether a project which has continued for 20 years and is yet to be accomplished and this research has a requirement in perpetuity whether to be construed still a project or a deemed body of Government when specifically it is funded from out of the Consolidated Fund of India and not a project funded by various schemes of IMF etc.
55. Though in IDVC apart from research of Malaria, Filaria and other integrated vector diseases are also being subjected to research for its control and eradication. Be that as it may, it is also not good to hold that the project would be a permanent body would be a pascimism to rule out curb on epidemics, yet when our Constitution and the decisions thereon in D.T.C. Mazdoor Congress (supra) have almost held right to livelihood as a fundamental right, no doubt directive principles of State Policy enjoins duty on the State to provide employment, yet the solitary principle of equal pay for equal work should not also be lost sight of. The ground reality clearly shows that India in Asia Sub Continent has a tropical climate and with change of weather and all seasons existing, we have experienced mosquitoes particularly those spreading malaria and dengue in the recent years and still on the on set of every summer and monsoon a preventive approach is undertaken by the Government to control spreading over of IDVC. MRC is a permanent body of ICMR wherein the employment is against the sanctioned posts. Their employees are regular employees of the Government with all attendant benefits. However, memorandum of association rules regulation of bye-law of ICMR with an object to initiate control, aid, development and coordinate medical scientific research in India, inter alia provides establishment of funds for the benefit of employees and in the Appendix with the Annexure to bye-law No. 7 amongst the various schemes apart from permanent institutions ICMR virus units is also figured in and Malaria Research Project is financed out of the State Funds. This leaves without any doubt and even IDVC is not funded by either who, UNICEF but it is internally funded organisation of Ministry of Health. The control and working of the employees under IDVC, their dispensation and other ancillary attendant-benefits are being provided by ICMR. This IDVC project had been continuing uninterruptedly since 1985 for almost two decades. Though it was to be wound up in 1995 itself but that had not taken place. The winding up of this Project in 1995 and the averments made therein resulted in dismissal of claim of applicants for regularisation. If the fact of its being a continuing project would have been before the Apex Court the directions would have been different. Nothing precludes Court below while exercising power of judicial review having regard to the legitimate expectation of an employee who had been continued in employment for more than 20 years and had lost its youth, vigor, energy and had become overage for any other engagement it is always legitimately expected by such employee from the Government that his services would have to be carried till its logical conclusion. To the contrary the project would not only go against the right to livelihood in whatever force it is recognizable but also be a merciless treatment to such an employee. When several schemes of daily wagers have been framed and implemented by the Government segregating in exclusion the employees of IDVC would not only be unjust but would be an anti-thesis to principle of equality enshrined under Article 14 of the Constitution of India. Merely because IDVC has a nomenclature as a project, yet we find the same to be established goal of ICMR to achieve targets of development and research of the diseases which the Stage challenges to have controlled are still writ large on the face of the Society and one of such example is of Polio.
56. If an employee has been taken with a view to achieve the object and that object is yet to be accomplished and the body by which this engagement has taken place has continued for even two decades and is still continuing and is not wound up with the requirement of such a research work to be carried out in the interest of Nation and its subject treating this to be a temporary body which has been established to achieve the target and a constant dearth of retrenchment on the persons at the fag end of their lives would be cruel. In a socialist country like ours when the Government is the employer the employees are at the receiving end. They have no right to bargain due to large scale unemployment. One is forced to accept any employment even on unconscionable terms. Continuing them for two decades like present applicants still at the rate of daily wages revised from time to time by the State Government would be a glaring example of helplessness and to scuttle down their rights in an arbitrary manner. In State of West Bengal v. Pantha Chatterjee, (supra) casual workers who have been employed part time to guard Bangla Desh Border as regards their regularisation the Apex Court has held that when daily wagers had continued for number of years there would be a presumption of the work and posts. However, taking a pragmatic approach and keeping in view the cardinal principle, doctrine of legitimate expectation and having regard to the preceding and attending circumstances when jural relationship of master and servant between the IDVC employees and the ICMR is established applying the test laid down both in Steel Authority of India Ltd. and Ors. v. National Union Waterfront Workers and Ors. (supra) as well as in Pradeep Kumar Biswas(supra) by the Constitutional Benches of the Apex Court applicants who are paid from out of the Consolidated Fund of India issued by the Ministry of Health which is the Controlling Authority of ICMR as well the manner of control and performance of applicants the IDVC project as it has not yet been wound up it is almost a permanent body of the ICMR and its utility and objects still required to be continued the applicants though are employed in IDVC, yet they are deemed to be the employees of the ICMR for the purpose of grant of temporary status.
57. The aforesaid conclusion gains support from N.K. Amani’s case where on the directions of the Apex Court the employees who were employed in IDVC project and an objection to that was taken the ICMR had offered regularisation by extending temporary posts in IDVC project. This clearly shows inter-changeability of employees between IDVC and ICMR and it is a communication to the effect that IDVC is part and parcel of ICMR.
58. As regards temporary status is concerned, though it is alleged that inextricably regularisation cannot be excluded, yet applicants seek only temporary status.
59. Temporary status as a daily wager would be extended the benefits mutatis mutandis as available to Government employees. The scheme of temporary status applies to persons who were in position on 1.9.93 which is not in dispute in the case of applicants. The conferment of temporary status as per Clause 4(2) is without reference to creation, availability of regular Group ‘D’ posts and would not involve any change in the duties and responsibilities. Temporary status guarantees minimum of pay scale for a corresponding regular Group ‘D’ official benefit of increment, leave encashment, maternity leave but in so far as 50% of the service to be counted for retiral benefits and on completion of 3 years continuous service treatment at par with Group ‘D’ employees and regularisation are concerned, the same would not be admissible to applicants.
60. In our considered view by grant of temporary status applicants would be entitled only to minimum of the pay scale and other attendant benefits. This would not amount to grant of regularisation or any claim for such regularisation as law has taken its course in that event.
61. As regards the wages are concerned, applicants are performing the work of skilled nature which has not been specifically rebutted by respondents. The certificates issued to applicants do indicate that they have been performing the work of skilled nature. In that event even as per admissibility of daily wages they are entitled to wages of skilled category. The Tribunal earlier in T.A. 29/99 though directed respondents to consider the above aspect of the matter yet has not been decided.
62. As regards T.A. 29/99, what has been denied is regularisation but the issue of grant of temporary status was not in question, as such it was not adjudicated.
63. It is trite law that on dismissal of SLP in limine without recording reasons would not be a binding precedent under Article 14 of the Constitution of India. It is equally settled in view of the decision of the Apex Court in L. Chanda Kumar v. Union of India and Ors. 1995(2) SLJ 27 that a decision of the High Court has a binding precedent on the Tribunal under whose jurisdiction it is functioning. Be that as it may, the decision of the High Court earlier in W.P. 3/93 dated 14.11.95 rejected the claim of applicants for regularisation as 8th Plan was to bring an end to IDVC Project. As this had not happened and the circumstances have changed nothing precludes Government from considering, keeping in light the equitable principles of legitimate expectation, taking steps towards regularisation of these employees in its own wisdom. No mandamus can be issued in this regard.
64. In the result, for the foregoing reasons, this T.A. is allowed. Respondents are directed to treat applicants as employees of ICMR. They may be considered for grant of temporary status w.e.f. 1.9.1993 as per the Scheme of DoPT dated 10.9.93, as per their eligibility and requirement. In that event applicants shall be entitled to all consequential benefits. We also direct the respondents that prior to grant of temporary status the claim of applicants for grant of skilled grade will be considered and if found entitled, consequential benefits would also be granted. Respondents are further directed to comply with these directions, within a period of six months from the date of receipt of a copy of this order. No costs.