judgement:
Appeal No. 2355 of 1991.
WITH Civil Appeal Nos. 2356 66/91, 2366A 69/91, S.L.P.(C) Nos.
9755/ 91, 9830/91 & 10235 43 of 1991.
From the Judgment and Order dated 27.2.91 of the Punjab & Haryana High COurt in C.W.P. Nos.
8872/89, 10463, 10462/89, 15085/90, 17092/ 89, 11381/90, 15599/90, 12573/89, 14551/89, 10951/90 and 195 of 1991.
D.S.Tiwatia, Anil Mauriya, A.K.GoeI, Mrs. Sheela Goel and B.Y.Kulkarni for the Appellants.
G.Ramaswami Attorney General, G.L.Sanghi, Sudhir Walia, S.Murlidhar and Y.P.Rao for the Respondents.
The Judgment of the Court was delivered by YOGESHWAR DAYAL, J.
These appeals raise a question of the scope and effect of failure of compliance with Section 7 and/or Section 12 of the (hereinafter referred to as 'the Act ').
The question involved is that if the principal employer does not get registration under Section 7 of the Act and/or the Contractor does not get a licence under Section 12 of the Act whether the persons so appointed by the principal employer through the contract would be deemed to be the direct employees of the principal employer or not.
404 There is a direct conflict between the decisions of the High Courts of Punjab, Kerala on the one hand and the deci sions of Madras, Bombay, Gujarat and Karnataka High Courts on the other.
The view of the Punjab and Kerala High Courts is that the only consequence of non compliance either by the principal employer of Section 7 of the Act or by the con tractor in complying with Section 12 of the Act is that they are liable for prosecution under the Act; whereas the view of the High Courts of Madras, Bombay, Gujarat and Karnataka is that in such a situation the contract labour becomes directly the employee of the principal employer.
For the sake of convenience we deal with the facts of Civil Appeal No. 2355 of 1991.
This appeal arises from the decision of a Division Bench of the Punjab & Haryana High Court dated 27th February, 1991 passed in writ petition No. 8872 of 1989.
The Division Bench while deciding a batch of writ petitions followed its earli er decision in the case of Gian Singh & Ors.
F. CI., Patent Appeal No. 1215 of 1990) which has since been reported in The Division Bench in the aforesaid case of Gian Singh held that if the principal employer does not get registration as required under Section 7 of the Act and/or the Contractor does not get the licence under section 12 of the Act, the persons who are appointed by the principal employer through the contrac tor, the only consequence is the penal provisions contained in sections 23 and 24 of the Act and that the principal employer or contractor can be prosecuted under those sec tions, but the Act nowhere provides that such employees employed through the contractor would become the employee of the principal employer.
In the High Court judgment, under appeal, reliance was placed on behalf of the workmen on the views of the High Courts of Karnataka, Madras, Gujarat and Bombay in the cases reported as FCI.
Loading and Unloading Workers Union vs Food Corporation of India , The Workmen of Best & Crompton Industries Ltd. vs The Management of Best & Crompton Engineering Ltd., Madras and Ors., (1985) (1) Lid 492; Food Corporation of India Workers Union vs Food Corpo ration of India and Others and United Labour Union and Others vs Union of India and Others, but the High Court took the view that it was not applicable.
To appreciate the correctness of one view or the other.
it will be necessary to go through the object and the scheme of the Act.
The object; of the Act were dealt with by the Supreme Court in the case of M/s 405 Gammon India Ltd. and Others vs Union of India and Others, (1974) 1) SCC 596 in paragraph 14 at page 600 as follows: "The Act was passed to prevent the exploita tion of contract labour and also to introduce better conditions of work.
The Act provides for regulation and abolition of contract la bour.
The underlying policy of the Act is to abolish contract labour, wherever possible and practicable, and where it cannot be abolished altogether, the policy of the Act is that the working conditions of the contract labour should be so regulated as to ensure payment of wages and provision of essential amenities.
That is why the Act provides for regulated conditions of work and contemplates progres sive abolition to the extent contemplated by Section 10 of the Act, Section 10 of the Act deals with abolition while the rest of the Act deals mainly with regulation.
The dominant idea of Section 10 of the Act is to find out whether contract labour is necessary for the industry, trade, business, manufacture or occupation which is carried on in the estab lishment.
" As the long title and the preamble of the Act shows that it is an Act to regulate the employment of contract labour in certain establishments and to provide for abolition in certain circumstances and for matters connected therewith.
The Statement of Objects and Reasons mentions that the system of employment of contract labour has tended itself to various abuses and the question of its abolition had been under consideration of the Government for a long time.
The Planning Commission had made certain recommendations in the Second Five Year Plan viz. it undertook a study in this behalf on improvement of service conditions of contract labour where the abolition was not possible.
The general consensus thereafter was that the contract labour system should be abolished wherever possible and practicable and further that in a case where the system could not be abol ished altogether, the working conditions of contract labour should be regulated so as to ensure payment of wages and provision of essential amenities.
The above objects have been brought into the Act which was enacted in 1970.
Section 2 gives the definition of various words while section 3 deals with the constitution of Central Advisory Board and section 4 deals with the consti tution of State Advisory Board.
These boards are empowered to constitute various committees as mentioned in section 5.
Chapter III is important and deals with 'registration ' of establishment employing contract labour while Chapter IV deals with 'licensing ' of 406 contractors employed by these establishments.
Section 7 deals with registration of certain establishment notified by the Government and these establishments are obviously the principal employers as defined in section 2(g).
Section 8 provides for revocation of registration in certain cases and section 9 deals with the effect of non registration.
Under Section 9 no principal employer of an establish ment, to which the Act applies shall; (a) in case of an establishment required to be registered under Section 7, but which has not been registered within the time fixed for the purpose under that section (b) in the case of an establish ment the registration in respect of which has been revoked under Section 8 employ contract labour in the establishment after the expiry of the period referred to in clause (a) or after the revocation of registration referred to in clause (b), as the case may be.
Section 10 deals with the prohibi tion of employment of contract labour which reads as fol lows: "10.
Prohibition of employment of contract labour ( 1 ) Notwithstanding anything con tained in this Act, the appropriate Government may, after consultation with the Central Board or, as the case may be, a State Board, prohib it, by notification in the Official Gazette, employment of contract labour in any process, operation or other work in any establishment.
(2) Before issuing any notification under sub section (1) in relation to an establish ment, the appropriate Government shall have regard to the conditions of work and benefits provided for the contract labour in that establishment and other relevant factors, such as .lm18 (a) whether the process, operation or other work is incidental to, or neces sary for the industry, trade, business, manufacture or occupation that is carried on in the establishment; (b) whether it is of perennial nature, that is to say, it is of sufficient duration having regard to the nature of industry, trade, business, manufacture or occupation carried on in that establish ment; (c) whether it is done ordinarily through regular workmen in that establish ment or an establishment similar theretO; (d) whether it is sufficient to employ considerable number of whole time workmen." Chapter IV deals with the licensing of contractors.
Sub clause (1) of 407 Section 12 states that w.e.f.
such date as the appropriate Government may, by notification in the Gazette, appoint, no contractor to whom this Act applies shall undertake or execute any work through the contract labour except under and in accordance with the licence issued in that behalf by the Licensing Officer.
Sub clause (2) of Section 12 provides that subject to the provisions of the Act, a licence in sub section (1) may contain such conditions including, in particular, conditions as to hours of work, fixation of wages and other essential amenities in respect of the labour contract as the appropriate Government may deem fit to impose in accordance with the rules, if any, made under Section 35 and shall be issued on payment of such fees and on the deposit of such sum, if any, as security for due performance of the conditions as may be prescribed.
Section 14 provides for revocation, suspension and amendment of the licences while Section 15 provides for an appeal.
Chapter VI deals with the penalties and procedures.
Section 22 deals with the obstructions.
Section 23 deals with contravention of provisions regarding employment of contract labour and Sections 24 and 25 deal with other offences and offences by companies.
Chapter VII makes certain miscellaneous provi sions and Section 30 provides that laws and agreements inconsistent with the provisions of the Act shall be void except where such agreements or contracts or standing orders afforded more favourable facilities to the employees than provided under the Act.
We shall also refer to Rule 25 of the Rules which mentions the conditions subject to which licence could be issued to a contractor under Section 12.
The said rule inter alia provides that a licence issued to a contractor shall not be transferable, that contractors cannot employ workmen in excess of the number specified therein and that rate of wages payable to the workmen shall be the rate prescribed under the .
Clause (v)(a) of the Rule 25(2) is important and reads as follows: "In cases where the workmen employed by the contractor perform the same or similar kind of working as the workmen directly employed by the principal employer of the establishment, the wage rates, holidays, hours of work and other conditions of service of the workmen of the contractor shall be the same as applicable to the workmen directly employed by the prin cipal employer of the establishment on the same or similar kind of work. ' Rule 25(2) further provides for accommodation for women and children and for the times of work of females.
From the above provisions it is clear that the Act serves two fold purposes (1) regulation of the conditions of service of the workers employed by the contractor who is engaged by a principal employer and; (2) 408 also provides for the appropriate Government abolishing contract labour altogether, in certain notified processes, operation or other works in any establishment.
Neither the Act nor the Rules flamed by the Central Government or by any appropriate Government provide that upon abolition of con tract labour, the said labour would be directly absorbed by the principal employer.
The question arises when the Act does not provide for such a measure, but contents itself by merely regulating the conditions of service of the contract labour, can the Court in proceedings under Article 226 of the Constitution, where the principal employer or the licence contractor violates the provisions of Section 9 or 12 respectively, direct that the contract labour so employed would become directly the employee of the principal employer.
The view of the Bombay High Court in the case of United Labour Union and Others vs Union of India (supra) was really concerned with the appropriate Government for purposes of notification being issued under Section 10(1) of the Act.
It took the view that the Central Government was the appropri ate Government in relation to Air India Corporation but after analysing the provisions of Section 2(ii)(b), 7,8,12,20,21 and 29 the Bombay High Court took the view "The combined effect of these provisions makes it clear that for a valid employment of con tract labour, two conditions must be ful filled, viz., (1) every principal employer of an establishment must be registered and (2) the contractor must have valid licence.
In other words, the mere registration by the principal employer or the holding of licence by contractor alone will not enable the man agement to treat the workmen as contract labour.
Whilst considering the provisions of the Act, it must be kept in mind that this Act is a piece of beneficial legislation.
The aim of the Act is to regulate conditions of serv ice of contract labourers and to abolish contract labour under certain circumstances.
It is therefore meant for securing proper conditions of service to under contract la bour.
It is not the purpose of the Act to render workmen jobless.
The interpretation which must be given is one which would further these objects and not one which results in greater hardship.
It must be noted that there is no provision which states that the rela tionship of principal employer and workmen comes to an end on the abolition of contract labour.
On the contrary as already stated there is a deemed contract labour only if the two conditions of registra 409 tion and licence are fulfilled.
In such a case i.e., where either or both the conditions are not fulfilled, the necessary implication would be that the workmen remain workmen of the principal employer.
It must be remembered that on a failure of the contractor to provide amenities or to pay wages the principal em ployer remains liable for the same.
The same would be the position on a failure by reason of there being no valid contract labour.
Mr. Dhanuka, however, submitted that the Act provides certain penal consequences for non registration.
He submits that there no such provision in the Act, the same cannot be implied.
He submits that in the absence of any such provision the Court cannot give any direction to that effect.
In my view, the penal provisions are provided to dissuade employers from attempting to commit a breach of the provisions of the Act and the Rules made thereunder.
They do not detract from the position that there can be no deemed contract labour if the two conditions are not satis fied.
If the protection or right given by reason of a deeming provision is not available then the natural consequence must follow in addition to the penal consequence, unless there is a provision to the contrary.
As already stated, in the Act there is no provi sion that the services of the workmen, qua the principal employer, stand terminated on the contract labour becoming invalid and/or abol ished".
(emphasis supplied) The question arising before us directly came up for consideration before a division bench of the Gujarat High Court in the case of Food Corporation of India Workers Union vs Food Corporation of India and Others (supra) which ob served : It is evident that (,i) the principal employer should obtain a Certificate of Regis tration and (ii) the workmen can be employed on contract labour basis only through licensed contractor.
The Certificate of Registration is required to be obtained by the principal employer, issued by the appropriate Government under the provisions of Section 7 of the Act.
The licence is to be obtained by the contrac tors under the provisions of Section 12 of the Act.
The workmen can be employed as contract labour only through licensed contractor.
Unless both these conditions are complied with, the provisions of the would not be 410 attracted.
Both these conditions are required to be fulfilled, if one wishes to avail of the provisions of the Act.
Even if one of the conditions is not complied with, the provi sions of the Contract Labour (Regulation & Abolition) Act, 1970 would not be attracted.
Therefore, in a situation wherein either of these two conditions is not satisfied, the position would be that a workman employed by an intermediary would be deemed to have been employed by the principal employer.
In the result it is declared that during the period when the two conditions of obtaining registra tion under Section 7 by the principal employer and of holding licence by the contractor are not complied with and the workmen are employed by contractor, the workmen can claim to be direct employees of the principal employer.
" The decision of the Madras High Court in The Workmen of Best & Crompton Industries Ltd. vs The Management of Best & Compton Engineering Ltd., Madras and Ors., really arose out of an award given by the Labour Court in an industrial dis pute.
The industrial dispute had been raised by the workmen of the principal employer.
They challenged the termination of service of workmen by the Management as the Management did not requisition the service of 75 workmen after 16th October, 1978 on the ground that they were employed by the licensed contractor.
This led to an industrial dispute and on a reference made of the said industrial dispute, the Labour Court rejected the contention of the Management and held that the so called contractor was a mere name lender and did not hold licence under the Act and directed the reinstatement of the workmen with backwages and other bene fits.
This award of the Labour Court was challenged before the High Court by the Management by a writ petition.
The learned Single Judge of the Madras High Court took the view that the conclusion of the Labour Court that the labour contractor was not early a labour contractor, but lie was merely acting as a tool in the hands of the Management is not supported either by the pleadings of the parties or by the evidence.
According to the learned single Judge there was absolutely nothing to displace the weighty documentary evidence in favour of the Management and therefore, he characterised the finding entered by the Labour Court to the contrary as being perverse and vitiated The division bench in Letters Patent Appeal reversed this finding of the learned Single Judge.
The High Court observed at page 497 "In order to enable the Management to have the benefit of the contract labour, the Act has now legalised the employment of 411 such contract labour, provided the intermedi ary contractor holds, a valid licence and provided the Management also holds a valid licence as principal employer.
This is subject to the prohibition contemplated under section 10.
There is no need for us to examine the content of S.10 in this case.
In order to regulate the employment of contract labour and to provide for abolition in certain circumstances, the said Act came to be passed.
According to section 7: "Provided that the registering officer may entertain any such application for registra tion after expiry of the period fixed in this behalf, if the registering officer is satis fied that the applicant was prevented by sufficient cause from making the application in time.
(2) If the application for registration is complete in all respects, the registering officer shall register the establishment and issue to the principal employer of the estab lishment a certificate of registration con taining such particulars as may be prescribed".
Under S.12 of the Act, no contractor to whom this Act applies, shall undertake or execute any work through con tract labour except under and in accordance with a licence issued in that behalf by the licensing officer.
Sub s.(2) of section 12 provides: "Subject to the provisions of this Act, a licence under sub section
(1) may contain such conditions including in particular conditions as to hours of work, fixation of wages and other essential amenities in respect of con tract labour as the appropriate Government may deem fit to impose in accordance with the rules, if any, made under S.35 and shall be issued on payment of such fees and on the deposit of such sum, if any, as security for the due performance of the conditions as may be prescribed".
The combined effect of these two provi sions in our view makes it clear that for a valid employment of "(1)Every principal employer of an establish ment to which this Act applies shall, within such period as the appropriate Government may, by notification in the Official Gazette, fix in this behalf with respect to establishments generally or with respect to any class of them, make an application to the registering officer in the prescribed manner for registra tion of the 412 establishment; contract labour, two conditions should be satisfied, viz., not only the prin cipal employer but also the contractor should possess the requisite licence.
In other words, the holding of licence by one alone will not enable the management to treat the workmen as contract labour." The High Court of Kerala in the case of P. Karunakaran vs The Chief Commercial Superintendent and Others, took the same view as was taken by the Punjab & Haryana High Court in the judgment under appeal.
A similar view was expressed by the Delhi High Court in the case of New Delhi General Mazdoor Union vs Standing Conference of Public Enterprises (Scope) & Another, (1991) 2 Delhi Lawyer 189.
The reference to the Labour Court/Industrial Tribunal could be as to whether it is necessary for the Management to employ contract labour directly or indirectly; a question can as well be referred whether the engagement of contract labour was bona fide or it was a camouflage.
In appropriate cases in industrial adjudication appropriate directions can be given to the principal employer in this behalf.
This has been the subject matter of decisions by the Tribunals/Labour Courts and by this Court also.
The case of Standard Vacuum Refining Co. vs Their Workmen is a case on this point.
It was a case where the workmen employed by an oil refinery demanded that the contract system of labour adopted by the company for cleaning mainte nance of the refinery belonging to the company should be abolished and the said demand was referred for adjudication.
It was found that the work for which the contract was given is incidental to the manufacturing process and is necessary for it and of a perennial nature which must be done every day and in these circumstances the Industrial Tribunal directed the Company to abolish the contract system of labour with effect from a particular date and to have the said work done through workmen engaged by itself.
This direction was given in view of the fact that the work was of a permanent nature and the labour employed through contrac tor was receiving much less wages than the unskilled workmen of the company and they were not having any other benefits and amenities like provident fund, gratuity, bonus, privi lege leave etc.
On the award of the Industrial Tribunal the Supreme Court gave the finding that it was an industrial dispute as defined under Section 20c) of the Industrial Disputes Act.
In dealing with the question whether the Tribunal was justified in giving the directions for abolish ing the contract system the Supreme Court noted that indus trial adjudication generally does not encourage employment of contract labour in modern times and it would be necessary to examine the merits of the dispute apart from gen 413 eral consideration that contract labour should not be encouraged; and that n any case the decision should rest not merely on theoretical or abstract objections to contract labour but also on the terms and conditions of the contract labour and the grievance made by the workmen thereof.
On facts the Supreme Court observed: "It may be accepted that the contractor in the present case is an independent person and the system is genuine and there is no question of the company carrying on this work itself and camouflaging it as if it was done through contractors in order to pay less to the work men.
But the fact that the contract in this case is a bona fide contract would not neces sarily mean that it should not be touched by the industrial tribunals.
If the contract had been mala fide and a cloak for suppressing the fact that the workmen were really the workmen of the company, the tribunal would have been justified in ordering the company to take over the entire body of workmen and treat it as its own workmen.
But because the contract in this case was bona fide, the tribunal has not ordered the company to take over the entire body of workmen.
It has left to it to decide for itself how many workmen it should employ and on what terms and has merely directed that when selection is being made preference should be given to the workmen employed by the present contractor.
" The Supreme Court also noticed that the industrial dispute was confined to the cleaning maintenance of the plant; the work was incidental to manufacturing process and the work is necessary for it and was of a perennial nature which must be done every day and such work is generally done by workmen in the regular employment of the employer and there would be no difficulty in having regular workmen for this kind of work.
It noted that the matter would be differ ent if the work done was of an intermittent or temporary nature or was so little that it would not be possible to employ full time workmen for the purpose.
It would be noticed that after the aforesaid observa tions of the Supreme Court in the case of Standard Vacuum Refining Company (supra) the Parliament while giving power to the appropriate Government to prohibit employment of contract labour in any process or operation or other work in any establishment gave the guidelines in clauses (a),(b),(c) and (d) of sub section (2) of Section 10, as noticed earli er, and guidelines are practically based on the guidelines given to the Tribunals in the aforesaid case of Standard Vacuum Refining Coral)any by this court.
The Act as can 414 be seen from the scheme of the Act merely regulates the employment of contract labour in certain establishment and provides for its abolition in certain circumstances.
The Act does not provide for total abolition of contract labour but it provides for abolition by the appropriate Government in appropriate cases under Section 10 of the Act.
In the present case and the other connected Special Leave Petitions no notification has been issued by the appropriate Government under Section 10 of the Act vis a vis the type of establishment with which we are concerned.
It is not for the High Court to inquire into the ques tion and decide whether the employment of contract labour in any process, operation or in any other work in any estab lishment should be abolished or not.
It is a matter for the decision of the Government after considering the matter, as required to be considered under Section 10 of the Act.
The only consequences provided in the Act where either the principal employer or the labour contractor violates the provision of Sections 9 and 12 respectively is the penal provision, as envisaged under the Act for which reference may be made to Sections 23 and 25 of the Act.
We are thus of the firm view that in proceedings under Article 226 of the Constitution merely because contractor or the employer had violated any provision of the Act or the rules, the Court could not issue any mandamus for deeming the contract labour as having become the employees of the principal employer.
We would not like to express any view on the decision of the Karnataka High Court or of the Gujarat High Court (supra) since these decisions are under challenge in this court, but we would place on record that we do not agree with the aforequoted observations of the Madras High Court about the effect of non registration of.the principal employer or the non licensing of the labour contractor nor with the view of Bombay High Court in the aforesaid case.
We are of the view that the decisions of the Kerala High Court and Delhi High Court are correct and we approve the same.
In the result C.A.2355 of 1991 fails and is dismissed and in view of the observations in C.A. 2355 of 1991, C.A.Nos.2356 66/91, 2366A 69/91 and S.L.P.(C) Nos.
9755/91, 9830/91 & 10235 43/91 are also hereby dismissed.
In the circumstances of the case, parties are left to bear their own costs of the present proceedings.

summary:
Following its earlier decision in 1991(1) P.L.R.I. the High Court held that the principal employer and the Contrac tor were liable for prosecution under the , if they made non compliance of section 7 and section 12 of the Act, respec tively.
Further, it was held that the employee employed through the contractor did not become the employees of the principal employer.
C.A.No. 2335 of 1991 arose by special leave from the decision of the High Court.
The point involved in other appeals is common.
This Court, on the question, if the principal employer did not get registration under section 7 of the Act and/or the contractor did not get a licence under Section 12 of the Act, whether the person so appointed by the principal employer through the contractor would be deemed to the direct employees of the principal employer or not, dismissing the appeals, HELD: 1.
The long title and the preamble of the Con tract Labour (Regulation and Abolition) Act, 1970 show that it is an Act to regulate the employment of contract labour in certain establish 402 ments and to provide for abolition in certain circumstances and for matters connected therewith.
The Statement of Ob jects and Reasons mentions that the system of employment of contract labour has tended itself to various abuses and the question of its abolition had been under consideration of the Government for a long time.
[405 E] 2.
The serves two fold purpose (1) regulations of the conditions of service of the workers employed by the contractor who is engaged by a principal employer; and (2) also provides for the appropriate Government abolishing contract labour alto gether, in certain notified processes operation or other works in any establishment.
Neither the Act nor the Rules framed by the Central Government or by any appropriate Government provide that upon abolition of contract labour, the said labour would be directly absorbed by the principal employer.
[407 H 408 A] 3.
The Act as can be seen from the Scheme of the Act merely regulates the employment of contract labour in cer tain establishment and provides for its abolition in certain circumstances.
The Act does not provide for total abolition of contract labour but it provides for abolition by the appropriate Government in appropriate cases under Section 10 of the Act.
[413 H 414 A] 4.
In the present case and the other connected Special Leave Petitions no notification has been issued by the appropriate Government under Section 10 of the Act.
[414 B] 5.
It is not for the High Court to inquire into the question and decide whether the employment of contract labour in any process, operation or in any other work in any establishment should be abolished or not.
It is a matter for the decision of the Government after considering the matter, as required to be considered under Section 10 of the Act.
[414 C D] 6.
In proceedings under Article 226 of the Constitution merely because contractor or the employer had violated any provision of the Act or the Rules, the court could not issue any mandamus for deeming the contract labour as having become the employees of the principal employer.
[414 E] M/s Gammon India Ltd. and Others vs Union of India, [1974] 1 SCC 596; Standard Vacuum Refining Co vs Their work men, ; F.C.I. Loading and Unloading Workers Union vs Food Corpora 403 tion of India ; Food Corporation of India Workers Union vs
Food Corporation of India and others. , referred to.
Gian Singh & Others vs F.C.I., 1991(1) PLR 1 (Punjab and Haryana); The Workmen of Best & Crompton Industries Ltd. vs The Management of Best & Crompton Engineering Ltd. Madras and Ors, 1985(1) LLJ 492 (Madras); and United Labour Union and Others vs Union of india and Others, 1990(60) FLR 686 (Bombay), over ruled.
P. Karunakaran vs The Chief Commercial Superintendent and Others, 1988(2) LIC 1346 (Kerala) and New Delhi General Mazdoor Union vs Standing Conference of Public Enterprises (Scope) & Another, 1991(2) Delhi Lawyer 189, approved.


judgement:
Civil Appeal No. 233 of 1991 etc.
From the Judgment and Order dated 21.6.1988 of the Central Administrative Tribunal, Bombay Bench in O.A. No. 58 of 1988.
V.C. Mahajan, S.N. Terdal, A.K. Srivastava, C.V, Subba Rao, S.K. Gambhir, Dr. B. L. Wadhera, Sudarshan Menon, P. Parameshwaran and G.D. Gupta for the appearing parties.
The Judgment of the Court was delivered by K. JAGANNATHA SHETTY, J.
To cater to the educational needs of children of persons employed in the ordnances factory at Ambazari the Central Government has sanctioned and is running a Primary School from classes I to V.
In the same premises, the employees 687 of the ordance factory, by their own arrangement are also having a Secondary School with classes VI to X.
They have appointed the respondents as teachers in the Secondary School.
They are paid honorarium and not full salary.
Their honorarium is paid out of fees from the children and other donations received by the school.
the respondents, however, approached the Central Administrative Tribunal seeking regularisation of their services and demanding equal pay for equal work.
The Tribunal has allowed their claim with certain directions to the appellants including the Union of India.
The directions issued by the Tribunal are as follows: "(i) The respondents will immediately take up an assessment of the needs of the school to carry on its activities at their present level and the number of additional teachers required for this purpose; (ii) After assessing the number of teachers needed, the respondents will proceed to create a sufficient number of posts to be filled up on a regular basis; (iii) After completing the above exercise respondents will take steps to fill up the newly created posts in accordance with recruitment rules to be framed for the purpose.
the applicants who have worked as teachers in past should be first considered for the posts and only if they are found unsuitable should candidates from sources like the Employment Exchange be considered; (iv) Once the procedure outlined above is completed all persons selected should be appointed on a regular basis and on remuneration admissible to the regular teachers of the primary school; (v) Similar procedure should also be followed in respect of posts of peon giving Shri Tadas an opportunity of competing for regular appontment; (vi) Till the exercise outlined above is completed which we hope will be done before the academic year 1989 90 commences the present procedure may continue and such of the applicants as are selected for appointment will be subject to the same conditions of service as before.
" The Union of India and the officers of the ordnance factory have challenged the validity of these directions in Civil Appeal No. 233/1991.
The respondents who have not been recruited as per the directions of the Tribunal have preferred Civil Appeal No. 480/1989.
We have considered the submissions of counsel on both sides in the light of the material on record.
At the outset we may point out that 688 there is no evidence that the respondents were appointed as teachers on honorarium by or on behalf of the Central Government.
There is also no evidence that the respondents were initially appointed in the Primary School and latter they were shifted to the Secondary School.
The fact, however, remains that when the respondents moved the Tribunal for relies they were only teaching in the Secondary School.
It is undisputed that the Central Government has not sanctioned the Secondary School nor created any posts thereto.
the Central Government has only sanctioned the Primary School and the posts connected therewith.
Those posts are being occupied by regularly recruited teachers.
The Tribunal, however, has directed the Central Government immediately to take up an assessment of the needs of the School to carry on its activities at the present level and to create a sufficient number of posts to be filled up on a regular basis.
The Tribunal has further directed the Central Government to take steps to fill up the newly created posts in accordance with the recruitment rules to be framed for the purpose.
These directions are indeed amazing.
It has compelled the Government to sanction the Secondary School, create adequate number of posts and fill up the posts after framing the recruitment rules for the purpose.
There is no law requiring the Central Government to sanction the Secondary School.
the Central Government has taken a decision that it will not involve itself in sanctioning or running classes beyond the Primary School level.
It is a policy matter involving financial burden.
No Court or the Tribunal could compel the Government to change its policy involving expenditure.
The Tribunal therefore, could not have, could not have, issued the directions as it did to compel the Central Government to assess the needs of the school and create the necessary posts without support of law.
Secondly, the respondents are not paid by the Central Government.
They are not holding any appointment under the Central Government.
There is no relationship of master and servant between the Central Government and the respondents.
The respondents are employed in the Secondary School by local arrangement made by the officers of the ordnance factory.
It is not proved that how the Central Government is accountable to such arrangement made by the local officers.
Thirdly, Section 14 of the confers no jurisdiction, power and authority on the Tribunal to deal with the service matters of the employees like the respondents.
689 In any view of the matter, the respondents cannot claim the pay scale admissible to the Government school teachers much less regularisation of their services by the Central Government.
The directions issued by the Tribunal therefore, cannot be sustained.
They are apparently injustified and without authority of law.
In the result we allow the Civil Appeal No. 233/1991, and set aside the order of the Tribunal.
the Civil Appeal No. 480/1989 is dismissed.
In the circumstances of the case, however, we make no order as to costs.
S.B. CA No. 233/91 allowed and CA No. 480/89 dismissed.

dataset_name: IN-Abs

summary:
The appellant i.e. the Central Government sanctioned primary school from classes I V to cater to the educational needs of children of persons employed in the ordance factory at Ambazari.
The employees on their own in the same premises opened a secondary school with classes VI to X.
The respondents are teachers in the Secondary School and are being paid out of fees and other donations received by the school, They approached the Central Administrative Tribunal seeking regularisation of their service and demanded equal pay for equal work.
The Tribunal allowed their claim with certain directions to the appellants including the Union of India i.e. directing the Central Government immediately to take up an assessment of the needs of the School to carry on its activities at the present level and to create a sufficient number of posts to be filled up on a regular basis.
The Tribunal further directed the Central Government to take steps to fill up the newly created posts in accordance with recruitment rules to be framed for the purpose.
Allowing Civil appeal No. 233 of 1991 of the Union of India, and setting aside the order of the Tribunal dismissing Civil Appeal No. 480 of 1989 of the respondents who have not been recruited as per direction of the Tribunal, the Court.
HELD: 1.
There is no evidence in record that respondents were appointed as teachers on honorarium by or on behalf of the Central Government.
There is no evidence that they were initially appointed in primary School and later shifted to the Secondary School.
It is undisputed 686 that the Central Government has not sanctioned the Secondary School nor created any posts thereto.
It had only sanctioned the Primary School and the posts connected therewith which are being occupied by regularly recruited teachers.
[688A B] 2.
The directions of the Tribunal are indeed amazing compelling the Central Government to sanction the Secondary School.
The Central Government has taken a decision that it will not involve itself in sanctioning or running classes beyond the Primary School level.
It is a policy matter involving financial burden.
No court or the Tribunal could compel the Government to change its policy involving expenditure.
[688D E] 3.
The respondents are not paid by the Central Government.
There is no relationship of master and servant between the Central Government and the respondents.
The respondents are employed by the local officers so how the Central Government is accountable.
[688G] 4.
Even section 14 of the Administrative Tribunal Act, 1985 confers no jurisdiction, power or authority on the Tribunal to deal with the service matters of the employees like the respondents.
the respondents cannot claim the pay scale admissible to the Government school teachers and much less regularisation of their services by the Central Government.
[688H 689A] 5.
The directions of the Tribunal are apparently unjustified and without authority of law so cannot be sustained.
[688F]


judgement:
on (Civil) No. 860 of 1991.
(Under Article 32 of the Constitution of India).
Petitioner in person G. Ramaswamy, Altar Ahmad, Anil Katiyar, A.M. Khanwilkar and M.P. Sarawala for the Respondents.
The following Order of the Court was delivered: This application is in public interest and has been filed by a practising advocate of this Court who has consistently been taking interestin matters relating to environment and pollution.
The reliefs claimed in this application under Article 32 of the Constitution are for issuing appropriate directions to cinema exhibition halls to exhibit slides containing information and messages on environment free of cost: directions for spread of infor mation relating to environment in national and regional languages and for broadcast thereof on the All India Radio and exposure thereof on the television in regular and short term programmes with a view to educating the people of India about their social obligation in the matter of the upkeep of up the environment in proper shape and making them alive to their obligation not to act as polluting agencies or fac tors.
" There is also a prayer that environment should be made a compulsory subject in schools and colleges in a graded system so that there would be a general growth of awareness.
We had issued notice to the Union of India on the petition and the Central Government has immediately responded.
Until 1972, general awareness of mankind to the impor tance of environment for the well being of mankind had not been appropriately appreciated though over the years for more than a century there was a growing realisation that mankind had to live in tune with nature if life was to be peaceful, happy and satisfied.
In the name of scientific development, man started distancing himself from Nature and even developed an urge to conquer nature.
Our ancestors had known that nature was not subduable and, therefore.
had made it an obligation for man to surrender to nature and live in tune with it.
Our Constitution underwent an amendment in 381 1976 by incorporating an article (51A) with the heading "Fundamental Duties".
Clause (g) thereof requires every citizen to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures.
Soon after the internation al conference on environment the Water Pollution Control Act of 1974 came on the statute book; the Air Pollution Control Act came in 1981 and finally came the Environment Protection Act of 1986.
Law is a regulator of human conduct as the professors of jurisprudence say, but no law can indeed effectively work unless there is an element of acceptance by the people in society.
No law works out smoothly unless the interaction is voluntary.
In order that human conduct ,nay be m accordance with the prescription of law it is necessary that there should be appropriate awareness about what the law requires and there is an element of acceptance that the requirement of law is grounded upon a philosophy which should be fol lowed.
This would be possible only when steps are taken in an adequate measure to make people aware of the indispens able necessity of their conduct being oriented in accordance with the requirements of law.
There has been an explosion of human population over the last 50 years.
Life has become competitive.
Sense of ideal ism in the living process has systematically eroded.
As a consequence of this the age old norms of good living are no longer followed.
The anxiety to do good to the needy or for the society in general has died out, today oblivious of the repercussions of one 's actions on society, everyone is prepared to do whatever is easy and convenient for his own purpose.
In this backdrop if the laws are to be enforced and the malaise of pollution has to be kept under control and the environment has to be protected in an unpolluted state it is necessary that people are aware of the vice of pollution and its evil consequences.
We are in a democratic polity where dissemination of information is the foundation of the system.
Keeping the citizens informed is an obligation of the Government.
It is equally the responsibility of society to adequately educate every component of it so that the social level is kept up.
We therefore, accept on principle the prayers made by the petitioner.
We are happy to find that the learned Attorney General who appeare for the Union of India has also appreci ated the stand of the petitioner and has even cooperated to work out the procedure by which some of the prayers could be granted.
We dispose of this writ petition with the following direc tions 382 (1) Respondents 1, 2, & 3 shall issue appropriate direc tions to the State Governments and Union Territories to invariably enforce as a condition of license of all cinema hails, touring cinemas and video parlours to exhibit free of cost atleast two slides/messages on environment in each show undertaken by them.
The Ministry of Environmental should within two months from now come out with appropriate slide material which would be brief out efficiently carry the message home on various aspects of environment and pollu tion.
This material should be circulated directly to the Collectors who are the licensing authorities for the cinema exhibition halls under the respective slate laws for compli ance without any further direction and helping the cinema halls and video parlours to comply with the requirements of our order.
Failure to comply with our order should be treat ed as a ground for cancellation of the licence by the appro priate authorities.
The material for the slides should be such that it would at once be impressive, striking and leave as impact on every one who sees the slide.
(2) The Ministry of Information and Broadcasting of the Government of India should without delay start producing information films of short duration as is being done now on various aspects of environment and pollution bringing out the benefits for society on the environment being protected and the hazards involved in the environment being polluted.
Mind catching aspects should be made the central theme of such short films.
One such film should be shown, as far as practicable.
in one show every day by the cinema hails and the Central Government and the State Government are directed to ensure compliance of this condition from February 1, 1992.
(3) Realising the importance of the matter of environ ment and the necessity of protecting it in an unpolluted for as we had suggested to learned Attorney General to have a dialogue with the Ministry of Information and Broadcasting as to the manner the All India Radio and Doordarshan can assist this process of education.
We are happy to indicate that, learned Attorney General has told us that five to seven minutes can be devoted every day and there could be, once a week, a longer programme.
We do not want to project an impression that we are authorities on the subject, but we would suggest to the programme controlling authorities of the Doordarshan and the All India Radio to take proper steps to make interesting programmes and broadcast the same on the radio and exhibit the same on the television.
The national network as also the State Doordarshan Centres should immedi ately take steps to implement this direction so that from February 1, 1992, regular compliance can be made.
383 (4) We accept on principle that through the medium of education awareness of the environment and its problems related to pollution should be taught as a compulsory sub ject.
Learned Attorney General pointed out to us that the Central Government is associated with education at the higher levels and the University Grants Commission can monitor only the under graduate and post graduate studies.
The rest of it, according to him, is a State subject.
He has agreed that the University Grants Commission will take appropriate steps immediately to give effect to what we have said, i.e., requiring the Universities to prescribe a course on environment.
They would consider the feasibility of making this a compulsory subject at every level in college education.
So for as education up to the college level is concerned, we would require every State Government and every Education Board connected with education up to the matricu lation or stage even intermediate colleges to immediately take steps to enforce compulsory education on environment in a graded way.
this should be so done that in the next aca demic year there would be compliance of this requirement.
We have not considered it necessary to hear the State Governments and the other interested groups as by now there is a general acceptance through out the world as also in our country that protection of environment and keeping it free of pollution is an indispensable necessity for life to survive on earth.
If that be the situation, every one must 'turn his immediate attention to the proper care to sustain environment in a decent way.
We dispose of the matter with the aforesaid direction but give liberty to Mr. Mehta to apply to the Court from time to time for further directions, if necessary.
S.B. Petition dis posed of.

summary:
This application is in public interest seeking relief for issuing appropriate directions of this Court to Cinema, exhibition hails to exhibit slides containing information and messages on environment free of cost.
Further directions for spread of information relating to environment in nation al and regional languages vide broadcast thereof on the All India Radio, exposure thereof on television in regular and short term programmes with a view to educating the people of India about their social obligation in the matter of the upkeep of the environment in proper shape and making them alive to their obligation not to act as polluting agencies or factors.
It is further prayed that environment should be made a compulsory subject in schools and colleges in a graded system so that there would be a general growth of awareness.
Till 1972 general awareness of mankind to the environ ment for the well being of mankind had not been appropriate ly appreciated.
In 1975 the Constitution underwent an amend ment by incorporating an Article 51A with the heading "Fundamental Duties" Clause (g) thereof requires every citizen to protect and improve the natural environment including forests, lakes, rivers and wild life and to have compassion for every living creature.
In 1974 Water Pollu tion Central Act came on the statues book.
In 1981 Air Pollution (Central Act) and finally in 1986 the Environment Protection Act were enacted.
Law is a regulator of human conduct but no law can indeed effectively work unless there is an element of ac ceptance by the people in society.
379 There has been an explosion of human population, over the last 50 years.
Life has become competitive so the age old norms of good living are no longer followed.
It has therefore, become necessary that people be made aware of vice of pollution and its level of consequenceS. Keepingg the citizen informed is an obligation of the Government as well as the responsibility of society to adequately educate every component of it so that social level is kept up.
Disposing of the matter, the Court, HELD The principle on which the praayer is made is accepted and the following directions are issued 1.
That the Cenaral Governmeent, the State Government and Union Tcrritories should invariably enforce as a condi tion of license of all cinema halls, touring Cinemas and video parlours to exhibit.
free of cost at feast two slidcs/messages on environment in each show undertaken by them.
The Ministry of Environment should within two months from.
now come out with appropriate slide material on var ious aspect of environment and pollution.
This material should be circulated to the collectors who arc the licensing authori ties for compliance without any further directions and failure to comply with the Court order should be treated as a ground for.
cancellation of the licence by the appro priate authorities.
[382 A C] 2.
The Ministry of Information and Broadcasting of the Government of India should without delay start pronouncing information films of short duration on various aspects of environment and pollution bringing out the benefits for society on the environment protection and hazardous involved in environment pollution.
[382 D] 3.
The national network, the State Door Darshan Cen tres, All India Radio, Television should take proper steps to exhibit such films and interesting programmes on the subject.
There should be regular compliance of these direc tions be followed from February 1, 1992.
[382 G H] 4.
The principle that through the medium of educational awareness of the environment and its pollution problems should be taught as a compulsory subject at every level of education.
University Grants Commission should prescribe a course on environment in a graded manner as a compulsory subject in college education.
The compliance of this re quirement be done in the next academic year.
[383 A C] 380 Since there is a general acceptance throughout the world as also in our country that protection of environment keeping free of pollution is an indispensable necessity of life to survive on earth so everyone must turn his immediate attention to the proper care to sustain environment in a decent way.


judgement:
No 1 IN C.A. No 4444 of 1990 etc.
From the Judgment and Order dated 25.5.90 of the Alla habad High Court in CWP No. 5267 of 90.
Yogeshwar Prasad, Gopal Subramanium, S.K. Mehta, Dhruv Mehta, Arvind Verma, Aman Vachher, Pradeep Misra and R.B. Misra for the appearing parties.
The following order of the Court was delivered: The dispute in these cases relates to admission in post graduate courses of the medical wing.
There are seven medical colleges in the State of Uttar Pradesh.
Sometime back in a fake writ petition the High Court of Allahabad made an order that admission could be effected on the basis of the MBBS results.
That can counter to the decision of this Court and on being looked into it transpired that the proceedings before the High Court were totally fraudulent and no one by the name given in the petition as petitioner could really be identified.
This Court at that stage had clearly indicated that the prescription by this Court has been that there should be a selection test for post graduate admission as admission has become very competitive and to have compliance of Article 14 of the Constitution a broad based arrangement should be made.
On that account this Court had clearly indicated that no admission should be permitted on the basis of the MBBS results.
In view of the fact that the Allahabad High Court 's order has already been reversed, nothing more need be done.
387 SLP (C) . . of 1990 This petition is directed against the order of the learned Single Judge of the Allahabad High Court dated 25.5.1990.
U.P. Junior Doctors ' Action Committee in their special leave petition which has not yet been numbered challenge the order referred to above where the petitioner could not be identified and challenge was to the decision of the High Court dated 25.5.1990 which permitted admission on the basis of MBBS results.
Since we have already clarified the position and reiterated the requirement of a selection test the order of the High Court must be taken to have already been vacated.
11 is not necessary to entertain this special leave petition.
CA in SLP 15354/91 Special leave granted.
In this appeal by special leave Principal of the Agra Medical college along with some others is the appellant.
The High Court by the impugned order required provisional admis sion in M.S. (Surgery) and in M.D. (Medicine) to be given to respondents 1 and 2 respectively in the Medical College of Agra while the writ petition was yet to be heard.
The con ten tion raised before us is that grading admission at an interlocutory stage in a pending proceeding even by styling it as provisonal create lot of adderse consequences and leads to indicipline in the system of imparting education, Admission into post graduate degrees in the medical wing through out the country has become very competitive and it has become clear thatstrict regulation is necessary.
This Court by its judgement in Dr. Pradeep, Jain & Ors.
vs Union of India & Ors [1984] 3 sec 654 indicated that admis sion for 25 percent of the seats in post graduate courses should be regulated on the basis of all India selection and in regard to the remainder 75 per cent of the States were left to decide the procedure for admission.
Appropriate knowledge and expertise are a prerequisite for a person to be allowed to register himself as a medical practitioner.
Very often, health problems require expert treatment.
If anyone is authorised in society to practise medicine or undertake medical care without the appropriate qualification, society exposes itself to health hazards.
The prescriptions by the Indian Medical Council and the attempts made by Government for regulating the medical study are for establishing basically uniform knowledge to be imparted to the students before they can be entrusted with the nation 's medicare.
Unless there is a sincere and thorough educational discipline to be gone through as a precondition to the grant of the requisite certificate the lives of citizens would be at peril.
388 The Indian Medical Council has prescribed a reasonable period of study on expert advice and upon taking into con sideration the experience over the years as to how much study is necessary for the requisite qualification to be gathered.
This Court has also indicated the dates of admis sion and commencement of the courses of study.
These are prescriptions for a purpose and are not intended to be empty formalities to be violated.
One of the prescriptions of the Medical Council is also the ratio between the teachers and the students.
That again is a factor which cannot be brushed aside.
It is a well known rule of practice and procedure that at interlocu .
tory stage a relief which is asked for and is available at the disposal of the matter is not granted.
The writ petitioners wanted admission into postgraduate course as the main relief in the writ petition.
To have it granted at the threshold creates a lot of difficulties.
In a case where the petitioner ultimately loses in a case of this type a very embarrassing situation crops up.
If he has by then read for two to three years, there is a claim of equity raised on the plea that one cannot reverse the course of time.
In a case of this type equities should not be claimed or grained. 'Faking an overall picture of the matter we are of the view that unless there is any special reason to be indicated in clear terms in an interlocutory order as a rule no provisional admission should be granted and more so into technical courses.
On the basis of what we have said the order of the High Court should be reversed but we are not doing so on account of the fact that nine similarly placed medical graduates have already been given admission pursuant to such interloc utory orders by the respondents without even raising a challenge.
The order was made as early as in February, 1991 and for all these nine months no steps have been taken by the appellants to comply with the order and they are in fact facing a contempt proceeding.
While on principle we indicate that such provisional admission should not be granted.
We dismiss this special leave petition and sustain the order not on merits but for the reason indicated.
The interlocuto ry application in the civil appeal need not be further dealt with in view of what we have said above.
We had issued notice to the Principals of the seven medical colleges.
They have appeared and have given a writ ten undertaking to the Court by way of affidavit that there was some misunderstanding in regard to the requirement of a selection test for post graduate admission.
There were two year and three year courses running simultaneously for some period and some confusion was there as to whether the two year course 389 students were covered by the direction of this Court.
Though we are of the view that there was hardly any scope for being misled, we are prepared to give the benefit of doubt to the Principals.
The contempt proceedings are withdrawn but the undertaking are kept on record.
G.N. Appeals dismissed.

summary:
These matters relate to admission in post graduate courses in the Medical Colleges in Uttar Pradesh.
On a Writ Petition, which later turned out to be fake, the High Court had ordered that admission could be effected on the basis of the MBBS Examination.
This has been disputed in appeal before this Court.
In another Writ Petition, pending hearing, the High Court directed that provisional admission be given to two candidates, one in MS (Surgery) and another in MD (Medicine).
The Principal of the Medical college and others preferred an appeal against the High Court 's order.
It was contended that granting admission, though provi sional, at an interlocutory stage in a pending proceeding creates a lot of adverse consequences and indiscipline in the system of imparting education.
Dismissing the matters, this Court, 385 HELD: 1.1 It transpires that the proceedings before the High Court were totally fraudulent and no one by the name given in the petition as petitioner could really be identi fied.
This Court had clearly indicated that no admission should be permitted on the basis of the MBBS results.
Noth ing survives now, as the High Court 's order has already been reversed.
[386 F,G] 2.1 It is already settled that admission for 25 per cent of the seats in post graduate courses should be regulated on the basis of all India selection and in regard to the re mainder of 75 per cent the States were left to decide the procedure for admission.
[387 E] 2.2 Unless there is a sincere and thorough educational discipline to be gone through as a precondition to the grant of the requisite certificate the lives of citizens would be at peril.
The Indian Medical Council has prescribed a rea sonable period of study, on expert advice, and upon taking into consideration the experience over the years as to how much study is necessary for the requisite qualification to be gathered.
This Court has also indicated the dates of admission and commencement of the courses of study.
These are prescriptions for a purpose and are not intended to be empty formalities to be violated.
[387 G, H; 388 A] Dr. Pradeep Jain & Ors.
vs Union of India & Ors.
, [1984] 3 S.C.C. 654, relied on.
It is a well known rule of practice and procedure that at an interlocutory stage, a relief which is asked for and is available at the disposal of the matter, is not (generally) granted.
To have it granted at the threshold creates a lot of difficulties.
In a case where the petition er ultimately loses in a case of this type a very embarrass ing situation crops up.
If he has by then read for two to three years, there is a claim of equity raised on the plea that one cannot reverse the course of time.
In a case of this type, equities should not be claimed or granted.
Unless there is any special reason to be indicated in clear terms in an interlocutory order, as a rule no provisional admis sion should be granted and more so into technical courses.
[388 C, D] 4.1 The order of the High Court in the instant case should be reversed but this is not being done so, on account of the fact that nine similarly placed medical graduates have already been given admission pursuant to such interloc utory orders by the respondents 386 without even raising a challenge.
The order was made as early as in February, 1991 and for nine months no steps have been taken by the appellants to comply with the order and they are in fact facing a contempt proceeding.
[388 F] 4.2 Notice had been issued to the Principals of the seven medi cal colleges who have appeared and given written undertakings to the Court by way of affidavit that there was some misunderstanding in regard to the requirement of a selection test for post graduate admission.
Though there was hardly any scope for being misled, the benefit of doubt is being given to the Principals.
The contempt proceedings are discharged, but their undertakings are kept on record.
[388 G, H; 389 A]


judgement:
l Appeal No. 138 of 1992 From the Judgment and Order dated 30.8.1991 of the Central Administrative Tribunal,Principal Bench, New Delhi in O.A.No.
1177 of 1987.
G.D. Gupta and Ashok K. Mahajan for the Appellant.
K.T.S. Tulsi, Hemant Sharma and Vijay K.Mehta for the Respondents.
The Judgment of the Court was delivered by AHMADI, J.
Special leave granted.
Heard counsel on both sides.
The facts giving rise to this appeal, briefly stated, are as under : One MR.Jaisani, a direct recruit, was holding the post of Assistant Director General (prevention of Food Adulteration) in the Ministry of Health and Family Welfare of the Government of India.
On his passing away sometime in july 1989, a vacancy arose which was required to be filled under the extant recruitment rules.
The recruitment rules which were then in operation provided for the said post being filled in by direct recruitment only.
A requisition was sent to the Union Public Service Commission (Commission ' hereafter) sometime in November, 1989, for selection of a candidate for filling in the vacancy in question.
However, before the Commission could advertise the post, the Union Government informed the Commission by letter dated December 29, 1989 received by the Commission on January 1, 1990 not to proceed with the process of selection it was examining the question of opening up an avenue for promotion from Assistant Secretary to the post in question Notwithstanding the said communication, the commission advertised the post in January 1990, The appellant applied for the same and was called for an interview on December 13,1990.
Thereupon the first respondent, Mrs. Debi Mukherjee,who was then serving as Assistant Secretary, and was hoping to be promoted as Assistant Director General on the amendment of 4 the recruitment rules approached the Central Administrative Tribunal.
New Delhi and obtained an interim order staying the process of selection initiated by the Commission.
It may here be mentioned that in the meantime two further layers above that of Assistant Secretary came to be created providing for higher pay scales by an amendment of the rules pursuant to the directions given by this Court in Writ petition No. 1118/89 read with the directions in the Contempt Petition No. 5/90 dated May 4, 1990.
The two layers thus created provided for higher pay scales but no separate designations.
The question regarding the appointment to the vacancy created on the demise of Jaisani, however, had still to be dealt with.
The appellant who was affected by the Tribuanl 's Order approached for impleadment/intervention but the Tribunal did not allow the same although we are told that the Tribunal gave a hearing to the counsel for the appellant.
The Tribunal ultimately disposed of the petition with a direction to the concerned Ministry to provide promotional avenues to the applicant who had functioned in the post of Assistant Secretary for several years and had held the charge of Assistant Director General as and when the occasion arose.
Three months ' time was granted to the concerned Ministry to carry out the directions.
The failure to carry out the directions had led to the filing of a Contempt Application also.
The grievance of the appellant is two fold.
Firstly, he contends that once the process for selection had started it was not open to the Government as well as the Tribunal to freeze the process and the Commission was entitled to complete the selection.
The second point urged was that the fact of the creation of tow layers by the amendment of the relevant rules had been totally over looked by the Tribunal even though its attention was drawn to the same by counsel for the appellant.
In support of the first contention, strong reliance was placed on the decision of this Court in N.T. Devin Katti & Ors.
vs Karnataka Public Service Commission & Ors.
; In that case this Court observed that a candidate who is eligible and otherwise qualified in accordance with the relevant rules and the terms of the advertisement acquires a vested right of being considered for selection in accordance with the rules as they existed at the date of advertisement.
He cannot be deprived of that limited right on the amendment of rules during the pendency of selection unless the amended rules are retrospective in nature.
While making these observations, it was made clear that a candidate on making an application for a post pursuant to an advertisement does not acquire any vested right of selection or of appointment to the post in question.
This is obvious from the ratio of this Court 's decision in Jatinder Kumar & Ors., In that case, it was clarified that an independent body like the 5 Commission is established to ensure selection of best available talent for appointment to the post in question to avoid arbitrariness and nepotism in the matter of appointment.
The selection has to be made by the Commission and on the basis thereof the Government has to fill up the post adhering to the order of merit drawn up by the Commission.
This Court emphasised that the selection by the Commission is only recommendary in nature and the final authority for appointment is the Government, and if the Government declined to accept the recommendation the Constitution enjoins the Government to place on the table of the legislature its reasons and report for so doing.
Thereby the Government is made answerable to the elected representatives under the Constitution.
This however, does not clothe the selectee with any right to appointment that is to say that he cannot force the Government to accept the recommendation of the Commission but the Government has to make the appointment strictly in accordance with the recruitment rules and merits as determined by the Commission and it cannot disturb the list at its sweet will.
Nor can the Government appoint a person whose name does not appear in the list.
It is obvious from the ratio of these two decisions to which our attention was pointedly drawn that if the Commission issued an advertisement at the behest of the Government and pursuant thereto calls a candidate for interviews, the candidate has a right to be considered for selection but not a right to be selected or to appointment to the post in question.
The right to selection crystalises only after the candidate is called for interview pursuant to the advertisement.
But in the instant case the question is whether the Government can withdraw the requisition sent to the Commission for initiating the process of selection because at the point of time no right had crystalised in anyone for being considered for selection.
If the Government is at a given point of time considering the question of amending the recruitment rules with a view to providing for promotion to the post in question, the Government can before an advertisement is issued by the Commission and the process of selection is under way request the Commission to withdraw the same till it decides on the question of amending the rules.
The decision of the Government to withdraw the requisition sent to the Commission in NOVEMBER 1989 before the issuance of the advertisement does not interfere with any vested right of selection because that stage had yet not reached.
In the instant case, that is exactly what happened.
Therefore, before the appellant acquired a right to be considered for selection the Government had already intimated that it was examining the question of amending the recruitment rules with a view to providing for appointment by promotion to the post in question.
Once this decision was communicated to the Commission before it had set the process of selection in motion by issuing an advertisement, it was not open to the Commission to insist that it will go ahead with the selection process as the extant rule provided for 6 promotion by direct recruitment and the Government could amend the recruitment rules retrospectively, if it so desired, with a view to providing for appointment by promotion.
Such an exercise by the Commission would be an exercise in futility, waste of public time and money and hardship to candidates who seek appointment.
Whether to provide for promotion as a mode of appointment to the post in question is a matter of policy left to the Government to decide and if it desired that the selection process should be held in abeyance till the question was examined and a final decision was taken thereon, it was not open to the Commission to ignore the communication of the Government in that behalf and proceed to set the selection process in motion.
We think the action of the Commission was somewhat hasty and unjustified.
The appellant, therefore, cannot claim any vested right as urged by his learned counsel.
Nor can the Tribunal 's omission to notice that two new layers were created have a bearing on the Government 's decision to place the process of selection in hibernation till a final decision is taken on the proposal to provide for promotion to the post.
For the above reasons, we are of the opinion that the decision reached by the Tribunal does not require any interference at our hands in exercise of the power under Article 136 of the Constitution.
Hence, the appeal fails and is accordingly dismissed with no order as to costs.
R.P. Appeal dismissed.

summary:
The Union government sent a requisition to the Union Public Service Commission for selection of a candidate to post of Assistant Director General (Prevention of Food Adulteration)in the Ministry of Health and Family Welfare which, under the extant rules, was to be filled in only by direct recruitment.
However, before the Commission could advertise the post,the Government informed it not to proceed with the process of selection as it was examining to fill up the post by promotion of Assistant Secretary.
But inspite of this,the commission Advertised the post and the appellant was called for an interview where upon Respondent No.1, an Assistant Secretary who was expecting her promotion to the post on amendment of the rules,obtained an interim order from Central Administrative Tribunal, staying the process of selection initiated by the Commission.
The appellant, feeling affected by the said order, unsuccessfully moved the Tribunal for impleadment.
Meanwhile two further layers above that of Assistant Secretary, though in higher pay scales but with no separate designations, were created by an amendment of rules in pursuance of this Court 's direction, The Tribunal disposed of the application directing to provide promotional avenues to Respondent No.1 who, while functioning as Assistant Secretary, had also occasionally held the charge of Assistant Director General.
Aggrieved, the appellant preferred the appeal by special leave to this Court.
It was contended by the appellant that once the process for selection had started, it was not open to the Government as well as to the Tribunal to freeze the process and the Commission was entitled to complete the selection; and that the fact of creation of two layers by the amendment of the rules was wrongly overlooked by the Tribunal.
Dismissing the appeal, this Court, 2 HELD : 1.1 If the Government is at a given point of time considering the question of amending the recruitment rules with a view to providing for promotion to a particular post, it can, before an advertisement is issued by the Commission and the process of the selection is under way, request the Commission to withhold the same till it decides on the question of amending the the rules.
(p.5E F) 1.2 Whether to provide for promotion as a mode of appointment to the post in question is a matter of policy left to the government to decide.(p.6AB) 1.3 Once the decision of the Government to withdraw the repuisition was communicated to the Commission before it had set the process of selection in motion by issuing an advertisement, it was not open to the Commission to go ahead with the selection process as the Government could amend the recruitment rules retrospectively, if it so desired, with a view to providing for appointment by promotion .Such an exercise by the Commission would be one in futility, waste of public time and money and hardship to candidates who seek appointment.(pp.5GH;6A) The action of the Commission was somewhat hasty and unjustified.(p.6B) 2.1 If the Commission issues an advertisement at the behest of the Government and pursuant thereto calls a candidate for interview, the candidate has a right to be considered for selection but not a right to be selected or to appointment to the post in question.
The right to selection crystalises only after the candidate is called for interview pursuant to the advertisement.(p.5 C D) N.T. Devin Katti & Ors.
vs Karnataka Public Service Commission & Ors.(1990) 3 SCC 157 and Jatinder Kumar & Ors.v.
State of Punjab & Ors.
(1985)1 SCR 899, referred to.
2.2 In the instant case, the decision of the Government to withdraw the requisition sent to the Commission before the issuance of the advertisement dose not interfere with any vested right of selection because that stage had yet not reached.(p.5F) 2.3 Before the appellant acquired a right to be considered for selection the Government had already intimated that it was examining the question of amending the recruitment rules with a view to providing for appointment by promotion to the post in question.
(p.5G) 3 2.4 The appellant, therefore, cannot claim any vested right.
Nor can the tribunal 's omission to notice that two new layers were created have a bearing on the Government 's decision to place the process of selection in hibernation till a final decision is taken on the proposal to provide for promotion to the post.
(p.6BC)