UNION OF INDIA Vs. T MALLESWAR RAO

JUDGEMENT

(1.) - This appeal is directed against the judgment of the learned single Judge dated 26-6-1997 whereby a Mandamus has been issued against the appellants directing them to give the respondents the benefit of regular pay-scale as safaiwallas (members of the conservancy staff) and to absorb them into the permanent service of the appellants within a period of six months from the date of communication of this order. A further direction has been issued by the learned single Judge in the judgment under appeal to the effect that if the establishment, where the respondents would be permanently absorbed as a consequence of the judgment of the learned single Judge is ultimately wound up, the respondents would be absorbed elsewhere in other department under the Union of India with the benefit of continuous service.

(2.) The respondents 1 to 12 before us in this appeal have, admittedly been working for varying periods as safaiwallas with the appellants in the Brichgunj cantonment area which is an establishment under the Ministry of Defence and caters to the requirements of the Army units stationed there. The respondents approached this court by filling two separate writ applications claiming the relief of regular absorption into the service of the appellants as also the payment of the regular pay-scales at par with the scales received by safaiwallas similarly situated in other department of the Government and other safaiwallas working in the Ministry of Defence itself on regular basis and posted in the Brichgunj cantonment area. The fact that the respondents have been working as safaiwallas for varying periods of time, ranging from two to four years uptil eight to ten years, has not been denied by the appellants in the affidavit-in-opposition filed by them to both the writ applications. Even before us in this appeal, the appellants have not disputed the fact that the respondents were actually working as safaiwallas at different periods of time and are continuing to work uptil date. The only defence of the appellants in the writ application and the only argument before us today, as very vehemently urged by Mr. Saroop, is that the Station Headquarter (or by whatever other name the establishment may be called in Brichgunj cantonment area) is a temporary establishment and because of such status of the establishment, the appropriate competent authorities have not sanctioned the posts on regular basis and it is for the aforesaid reason that each year the requirement of the safaiwallas is judged and on that basis requisite number of safaiwallas are appointed. Be that as it may, the fact remains that the respondents have been working almost continuously for sufficient length of time as safaiwallas with the appellants in the Brichgunj cantonment and yet the appellants have neither regularised their services nor have taken any steps to pay them the emoluments at par with those received by their counterparts either working on regular basis in the same establishment or elsewhere in other government departments. Even though, the appellants are entitled to regulated their working within the constraints of their parameters and to take decision about the employment of safaiwallas depending upon their requirements, yet the respondents cannot be denied the enjoyment of their right of equality under Article 14 of the Constitution of India read with Article 16 inasmuch as other safaiwallas similarly placed are enjoying the benefit of higher emoluments and are working in the security of regular employment. In a situation like this, therefore, a balance has to be struck between the conflicting interests of the employer and the employees in the sense that whereas the court cannot remain oblivious to the rights of the employees, at the same time, it cannot pass any order or issue any directions which may amount to compelling the employer to somehow or the other engage the respondents even if the employer does not need their services or there is no requirement to engage them as such.

(3.) No one has a right of employment as such. Articles and 16 of the Constitution of India do not guarantee any right of employment. These Articles, however, do guarantee the right of quality. The respondents thus have a right of being treated equality in the matter of their employment as safaiwallas on the same basis as other safaiwalas are being treated under similar circumstances. Denying such right of equality, therefore, will amount to negating the enjoyment of the fundamental right guaranteed to the respondents under the aforesaid Articles 14 and 16.