The Director Of Transport v. Shivnath And ORS.

IN THE HIGH COURT AT CALCUTTA

CONSTITUTIONAL WRIT JURISDICTION [CIRCUIT BENCH AT PORT BLAIR] ******** PRESENT: HON'BLE JUSTICE SHAMPA DUTT (PAUL) WPA/135/2020 The Director of Transport ...

Petitioner

Versus

Shri Shivnath and Others ...

Respondents For the Petitioner : Mr. V. D. Sivabalan Mr. Arun S. Kumar For the Respondents : Mr. Bikash Ranjan Bhattacharya, Sr. Adv.

Mr. Rananeesh Guha Thakurta Mrs. Senjuti Sengupta (Through Virtual Mode) Mr. K. Sabir Heard on : 17.12.2025 Judgment on : 19.12.2025 SHAMPA DUTT (PAUL), J.

1.

The writ application has been preferred praying for quashing of the award passed by the learned Labour Tribunal in ID Case No. 3 of 2017 dated 30.01.2020.

2.

The writ petitioner herein is the Director of Transport wherein the respondents were engaged as daily rated mazdoors

under the petitioner and were posted in the different establishment of the Directorate of Transport. 3.

It is the case of the petitioner that the petitioner herein had published an employment notice in the year 2006 inviting applications from qualified and eligible local candidates to engage Highly Skilled Workers/ Semi Skilled Workers on Daily Wages Basis for a period of 06 months for carrying out the works in the Department on a temporary basis. It was very clearly mentioned in the Notice that the engagement would be purely for a short term period and on daily rated basis. 4.

On the recommendation of the selection committee, the Director of Transport, A & N Administration vide order No.1506 dated 05th June, 2006 engaged 40 candidates as Highly Skilled Workers on a daily wages of Rs. 157/- per day per head. It was clearly mentioned in the engagement order that the engagement would not entitle the candidates for any type of regular employment in future. The candidates having agreed to the terms and conditions joined the Department as daily rated employees.

5.

It is further stated by the petitioner that in the month of February, 2007 the Director of Transport had again published a

notice under the caption walk in interview for engagement of local candidates whose names are registered in the local employment exchange and having the requisite qualification to be engaged as daily rated mazdoor in the various sections of the Directorate of Transport. The engagement on Daily Wages Basis for a period of 06 months for carrying out the works in the Department was purely on a temporary basis. It was again very clearly mentioned in the Notice that the engagement would be purely for a short term period and on daily rated basis. 6.

As per the recommendation of the Selection Committee, the Director of Transport, A & N Administration, Port Blair engaged 06 candidates as Highly Skilled Workers on daily wages of Rs.204/-per day per head for a period of 06 months w.e.f. 01 June, 2007 vide officer order No. 1396 dated 25th May, 2007 and from time to time, the Director of Transport, Andaman and Nicobar Administration has appointed unskilled workers on daily wages and the service of the said daily rated workers were extended from time to time and the said daily rated workers have been given the benefit of 1/30th of the pay of the minimum of the relevant pay scale for work of the 08 hours per day and accordingly the petitioner herein had passed an order vide office order No.475 dated 24th February, 2016 by extending the

benefit of 1/30th of the pay of the minimum of the relevant pay scale. This benefit was extended in compliance to the OM of Government of India. While extending the benefit of 1/30th of the minimum pay at, no point of time the Department had given any assurance to the applicants that it would entitle them to claim for regular appointment.

7.

The petitioner then further states that the daily rated mazdoors through their Union initiated an Industrial Dispute with regard to regularization of 115 Nos. of DRM in the Directorate of State Transport, A & N Administration, Port Blair with the Conciliation Officer, Port Blair. No settlement was made before the Conciliation Officer and accordingly the Conciliation Officer had submitted a failure report to the Administration U/s 12(4) of the Industrial Dispute Act, 1947 for further necessary action.

8.

On receipt of the failure report submitted by the Conciliation Officer, the Assistant Secretary (Labour) had issued a notification dated 13th September, 2017 by referring the Dispute to the Labour Court, A & N Islands for submission of Award by making the following reference: "Whether the demand of State Transport Union, Port Blair in regard to regularization of service of 115 DRMs by the Directorate of

Transport Services is legal and justified, if not, what relief the concerned Union is entitled to ?".

9.

On completion of pleading and the evidence lead by the first party/respondents, the Presiding Officer of the Labour Court had passed an Award on 31st August, 2018 by dismissing the claim raised by the first party/respondents. 10.

Being aggrieved and dissatisfied with the award passed by the learned Presiding Officer, Labour Court in ID Case No. 3 of 2017 dated 31.08.2018, the first party/respondents have preferred a writ application before this Hon'ble Court being WP No. 006 of 2019 (The State Transport Workers Union-Vs- The A & N Administration & ors. The Hon'ble Court had disposed of the said writ application on 24th June, 2019 by passing the following order:

"It is found that the Ld. Labour Court has committed several mistakes of serious nature as have been pointed out above, while deciding the reference and the award is liable to be set aside for the above gross mistakes and the award is set aside.

By setting aside the award and with the above observations, the matter is remanded back to Labour Court for an award on the reference by further hearing the parties by considering all documents and case law's, if any, relied upon by the parties, before passing its award. By discussing as above, I have only indicated the illegalities in the award and I have not shown any way in which the award should proceed. The Labour Court has the

full liberty to proceed afresh in the matter in accordance with law.

In any event, the award must be passed within a period of 03 months from the date of this order.

The writ application is disposed of, without any order as to cost.".

11.

After the order passed by this Hon'ble Court in WP No. 006 of 2019 dated 24.06.2019, the learned Presiding Officer, Labour Court had restored the ID Case No.3 of 2017 and after hearing the parties afresh had disposed of the said case on 30.01.2020 by passing the following award:

"That all the first party members (115 in all) be regularized with immediate effect.

This Court also annexes the list of all the 115 members Annexure-C of the statement of demand as a ready reference to the department which also forms a part of this order. Thus this instant Industrial Dispute Case remains disposed of on contest.".

12.

Finally, the learned Presiding Officer, Labour Court had passed an award, directing to regularize the service of 115 daily rated mazdoors with immediate effect. Hence, the writ application.

13.

Supplementary affidavit has been filed by the petitioner annexing relevant documents in support of their case that on 29.04.2023, the vacancy notice was published for filling up posts under different departments under A&N

Administration there were altogether 215 types of posts in the vacancy notice consequent to such vacancy notice altogether 48708 applications were received from the eligible applicants for various posts. Aggrieved by the aforesaid vacancy notice, a writ petition bearing No. WPA 724 of 2023 was filed by the State Transport Union, against the Local Administration. 14.

In the aforesaid writ application an Order was passed on 18.05.2023 at Page No.6.

"Taking into consideration the fact that in the event, the post in the Transport Department has published in the Press Note dated 29.04.2023 are filled without reserving the posts for 115 DRM's it is more likely than not that the would lead to multiplicity of Judicial proceedings. Further, there is also likelihood of a equitable right being created in favour of such persons who may be appointed in terms of the Press Note dated. 29.4.2023.

As such, I am of the opinion that the petitioner has been able to make out a primafacie case. Taking into consideration the aforesaid fact, I am of the view that the respondent/ administration may proceed with process of recruitment as notified by them vide their press note dated 29.04.2023 by keeping reserved 115 posts in the transport department earmarked for the members of the petitioners who have been identified in the award dated 30.01.2020.".

15.

Aggrieved by the aforesaid order, the Local Administration preferred MAT No.07/2023 alongwith CAN application No. 1/2023 on 7th day of June 2023. Such MAT application was disposed off vide order dated 23.06.2023 and the findings of

Hon'ble Single Judge in the WPA No.724 of 2023 was upheld and further observed that, "we clarify that if the administration wishes to advertise such recruitment process, a corrigendum may be issued alongwith the advertisement mentioning the gist of the interim order passed in the WPA No.724/2023." 16.

Written notes have been filed by both the parties. 17.

The petitioner herein has reiterated his case and has specifically argued that the learned Tribunal has no jurisdiction under the Industrial Disputes Act, 1947 to direct regularization of employees. The power to create or sanction posts and to make regular appointments vests exclusively with the Executive/ Government and is regulated by Recruitment Rules and Articles 309 & 162 of the Constitution of India. It is settled law, as held in - Secretary, State of Karnataka -vs-Uma Devi (2006) 24 SCC,1, and State of Rajasthan-vs- Daya Lal (2011) 2 SCC, that no direction for regularization or permanency can be issued by judicial or quasi-judicial forums in absence of sanctioned posts and proper recruitment. Engagements were purely temporary and not against any sanctioned posts or regular post.

18.

All the respondents were engaged for short-term projects, on daily wage basis, and not against any existing vacancy. The Labour Court failed to appreciate that such engagements are stop-gap arrangements and cannot form the foundation for any claim of regularization.

The employment notices and appointment orders categorically mentioned that:- "The engagement is purely temporary for six months and confers no right for regular employment." At no point did the Department make any assurance of regularization.

19.

It has further stated that the impugned Award causes discrimination and violates constitutional norms. The learned Labour Court's order creates inequity by granting permanency to temporary workers without selection, which is contrary to law and discriminates against qualified aspirants who could have applied for regular posts if notified. The Department has already extended all permissible benefits including: 1/30th of minimum pay of relevant scale, Dearness allowance, and Coverage under Employees Provident Fund (EPF). Thus, there is no denial of fair treatment or discrimination. 20.

Finally, it is submitted that regularization cannot be ordered without Government sanction or amendment of Recruitment Rules. Hence, it is prayed that the impugned order

be set aside and it is in violation of the settled principles of the Hon'ble Supreme Court.

21.

The petitioner has relied upon the judgment in State of Rajasthan & Ors - versus - Daya Lal & Ors reported in Civil Appeal No. 486 of 2011 [Arising out of SLP (C) No. 1927/2005], the Supreme Court in para 11 and 12 held :- "11. The part-time cooks and chowkidars were employed on temporary basis in the Government hostels in the years 1995, 1996, 1997 and 1998. They approached the High court in the year 1999 (except Madan Lal Yogi who approached in the year 1997). The services of some of them had been terminated within one or two years from the date of temporary appointment. Though the State had taken a decision to terminate all those who were appointed on consolidated wage basis, the other respondents continued because of the interim orders by courts. Service for a period of one or two years or continuation for some more years by virtue of final orders under challenge, or interim orders, will not entitle them to any kind of relief either with reference to regularization nor for payment of salary on par with regular employees of the Department.

12. The decision relied upon by the High Court namely the decision in Anshkalin Samaj Kalyan Sangh of the High Court no doubt directed the state government to frame a scheme for regularization of part-time cooks and chowkidars. It is clear from the said decision, that such scheme was intended to be an one-time measure. Further said decision was rendered by the High Court prior to Uma Devi, relying upon the decision of this Court in Daily Rated Casual Labour vs. Union of India [1988 (1) SCC 122], Bhagwati Prasad vs. Delhi State Mineral Developmen Corporation [1990 (1) SCC 361] and Dharwad District PWD Literate Dalit Wage Employees Association vs. State of Karnataka [1990 (2) SCC 396]. These directions were considered, explained and in fact, overruled by the Constitution Bench in Uma Devi. The decision in Anshkalin Samay Kalyan Singh is no longer good law. At all events, even if there was an one time scheme for regularisation of those who were in service prior to 1.5.1995,

there cannot obviously be successive directions for scheme after scheme for regularization of irregular or part-time appointments. Therefore the said decision is of no assistance". This judgment prima facie does not apply to the present case, as the facts in the two cases differ. 22.

The respondents herein have filed a written notes along with judgments relied upon.

23.

The respondents have primarily raised the issue of maintainability of the writ application and have submitted that the writ petition has been filed against all private persons or entity and there are no statutory or State Respondents arrayed in the instant writ petition, hence the same is not maintainable. 24.

It is further stated that the respondents/workmen were all appointed by virtue of response of public notices of employment and on meeting the requisite qualifications were appointed on the recommendation of Selection Committee of the administration vide several office orders and have been working without any break till date since 2006 and as such their entry into service was regular.

25.

The workmen discharged their duties of regular employees of the administration and their appointment was legal and continuous till date.

26.

The following judgments are relied upon by the respondents:- i.

C.A. 011941/2016 by the Apex Court of India (State of Jammu and Kashmir -V- District Bar Association, Bandipora) being AIR 2017 SUPREME COURT 11, ii.

AIR 2010 SC 2587: State of Karnataka-V-M.L.Kesari & Ors.

iii.

2024 INSC 1034: Jaggo-V-UOI (Para 25 to 27), iv.

2025 INSC 998: Dharam Singh & Ors. (Para 1, 3, 6, 13, 17 to 20) v.

1978(36)FLR 217, KCP(SC), last paragraph thereof. 27.

On hearing the parties, and perusal of the materials on record including the judgments relied upon, it is evident that :- i.

The respondents herein were admittedly recruited from the year onwards, through duly published employment vacancy notices, candidates from local employment exchange etc. and as such their entry into service was legal and regular. ii.

The respondents period of service appears to be about 19 years.

iii.

Vide order dated 18.05.2023, passed in WPA 724 of 2023, 115 posts have been kept reserved, out of 2520 posts advertised to be filled up under different departments/posts under Andaman and Nicobar Administration.

iv.

Thus, it appears that 115 sanctioned posts are now available for appointment of eligible candidates. 28.

As such, the respondents joining service through employment notices and employment exchange, being regular and legal, the judgment in Uma Devi (Supra) is not applicable in respect of the said submission.

29.

But the principal argument by the petitioner/ administration is that "the Tribunal had no jurisdiction under the Industrial Dispute Act, to direct regularization of employees".

30.

In Oil and Natural Gas Corporation - versus - Krishan Gopal & Ors reported in Civil Appeal No. 1878 of 2016, the Supreme Court in para 23 held :- "23 The following propositions would emerge upon analyzing the above decisions:

(i) Wide as they are, the powers of the Labour Court and the Industrial Court cannot extend to a

direction to order regularisation, where such a direction would in the context of public employment offend the provisions contained in Article 14 of the Constitution;

(ii) The statutory power of the Labour Court or Industrial Court to grant relief to workmen including the status of permanency continues to exist in circumstances where the employer has indulged in an unfair labour practice by not filling up permanent posts even though such posts are available and by continuing to employ workmen as temporary or daily wage employees despite their performing the same work as regular workmen on lower wages;

(iii) The power to create permanent or sanctioned posts lies outside the judicial domain and where no posts are available, a direction to grant regularisation would be impermissible merely on the basis of the number of years of service;

(iv) Where an employer has regularised similarly situated workmen either in a scheme or otherwise, it would be open to workmen who have been deprived of the same benefit at par with the workmen who have been regularised to make a complaint before the Labour or Industrial Court, since the deprivation of the benefit would amount to a violation of Article 14; and (v) In order to constitute an unfair labour practice under Section 2(ra) read with Item 10 of the Vth Schedule of the ID Act, the employer should be engaging workmen as badlis, temporaries or casuals, and continuing them for years, with the object of depriving them of the benefits payable to permanent workmen.".

Though the propositions have been laid down by the Court, the matter is pending before the larger bench.

31.

In the landmark judgment of Jaggo - verus - Union of India reported in 2024 INSC 1034, the Supreme Court held :- "23. The International Labour Organization (ILO), of which India is a founding member, has consistently advocated for employment stability and the fair treatment of workers. The ILO's Multinational Enterprises Declaration6 encourages companies to provide stable employment and to observe obligations concerning employment stability and social security. It emphasizes that enterprises should assume a leading role in promoting employment security, particularly in contexts where job discontinuation could exacerbate longterm unemployment.

24. The landmark judgement of the United State in the case of Vizcaino v. Microsoft Corporation7 serves as a pertinent example from the private sector, illustrating the consequences of misclassifying employees to circumvent providing benefits. In this case, Microsoft classified certain workers as independent contractors, thereby denying them employee benefits. The U.S. Court of Appeals for the Ninth Circuit determined that these workers were, in fact, commonlaw employees and were entitled to the same benefits as regular employees. The Court noted that large Corporations have increasingly adopted the practice of hiring temporary employees or independent contractors as a means of avoiding payment of employee benefits, thereby increasing their profits. This judgment underscores the principle that the nature of the work performed, rather than the label assigned to the worker, should determine employment status and the corresponding rights and benefits. It highlights the judiciary's role in rectifying such misclassifications and ensuring that workers receive fair treatment.

25. It is a disconcerting reality that temporary employees, particularly in government institutions, often face multifaceted forms of exploitation. While the foundational purpose of temporary contracts may have been to address short-term or seasonal needs, they increasingly become a mechanism to evade long-term obligations owed to employees. These practices manifest in several ways:

 Misuse of "Temporary" Labels:

Employees engaged for work that is essential, récurring, and integral to the functioning of an

institution are often labeled as "temporary" or "contractual," even when their roles mirror those of regular employees. Such misclassification deprives workers of the dignity, security, and benefits that regular employees are entitled to, despite performing identical tasks.

 Arbitrary Termination: Temporary employees are frequently dismissed without cause or notice, as seen in the present case. This practice undermines the principles of natural justice and subjects workers to a state of constant insecurity, regardless of the quality or duration of their service.

 Lack of Career Progression: Temporary employees often find themselves excluded from opportunities for skill development, promotions, or incremental pay raises. They remain stagnant in their roles, creating a systemic disparity between them and their regular counterparts, despite their contributions being equally significant.

 Using Outsourcing as a Shield: Institutions increasingly resort to outsourcing roles performed by temporary employees, effectively replacing one set of exploited workers with another. This practice not only perpetuates exploitation but also demonstrates a deliberate effort to bypass the obligation to offer regular employment.

 Denial of Basic Rights and Benefits: Temporary employees are often denied fundamental benefits such as pension, provident fund, health insurance, and paid leave, even when their tenure spans decades. This lack of social security subjects them and their families to undue hardship, especially in cases of illness, retirement, or unforeseen circumstances.

26. While the judgment in Uma Devi (supra) sought to curtail the practice of backdoor entries and ensure appointments adhered to constitutional principles, it is regrettable that its principles are often misinterpreted or misapplied to deny legitimate claims of longserving employees. This judgment aimed to distinguish between "illegal" and irregular" appointments. It categorically held that employees in irregular appointments, who were engaged in duly sanctioned posts and had served continuously for more than ten years, should be considered for regularization as a one-time

measure. However, the laudable intent of the judgment is being subverted when institutions rely on its dicta to indiscriminately reject the claims of employees, even in cases where their appointments are not illegal, but merely lack adherence to procedural formalities. Government departments often cite the judgment in Uma Devi (supra) to argue that no vested right to regularization exists for temporary employees, overlooking the judgment's explicit acknowledgment of cases where regularization is appropriate. This selective application distorts the judgment's spirit and purpose, effectively weaponizing it against employees who have rendered indispensable services over decades.

27. In light of these considerations, in our opinion, it is imperative for government departments to lead by example in providing fair and stable employment. Engaging workers on a temporary basis for extended periods, especially when their roles are integral to the organization's functioning, not only contravenes international labour standards but also exposes the organization to legal challenges and undermines employee morale. By ensuring fair employment practices, government institutions can reduce the burden of unnecessary litigation, promote job security, and uphold the principles of justice and fairness that they are meant to embody. This approach aligns with international standards and sets a positive precedent for the private sector to follow, thereby contributing to the overall betterment of labour practices in the country.".

32.

In the present case, the respondents entry was regular and legal, through duly published employment notices and local employment exchange.

33.

The respondents herein are also entitled as prima facie circumstances exist that the employer herein has indulged in an unfair labour practice by not filling up permanent posts even though such posts are available and by continuing to employ workmen as temporary or daily wage employees despite their

performing the same work as regular workmen.

The respondents who have put in continuous service for years. 34.

The fact that the respondents have admittedly been extended benefit of 1/30th of minimum pay, in compliance to the OM of the Government of India vide office order dated 475 dated 24th February, 2016, further strengthens the case of the respondents for regularization, more so their entry being regular and legal and there being permanent/ sanctioned posts in view of the vacancy notice dated 29.04.2023.

35.

The judgment in Daya Lal & Ors (Supra) is not applicable in the facts and circumstances of the cases being different.

36.

In the present case, permanent/sanctioned posts are in existence, by virtue of vacancy notice dated 29.04.2023 and then the order dated 18.05.2023 and 23.06.2023 in MAT 07 of 2023.

37.

By virtue of the vacancy notice dated 29.04.2023, the petitioner/administration has sought to deprive the respondent/workmen of being regularized, though benefits have been extended.

38.

Prima facie there appears to be unfair labour practice under Section 2(ra) read with item 10 of the Vth Schedule of the Industrial Dispute Act as the petitioner/administration has issued vacancy notice dated 29.04.2023, without regularizing within six weeks from the date of this order. 39.

Thus, in view of the observations above, the impugned order of the Tribunal does not call for any interference. 40.

The petitioner to complete the process of regularization of the respondents herein against the 115 posts retained within 06 weeks from the date of this order. 41.

WPA 135 of 2020 stands dismissed.

42.

All connected application, if any, stands disposed of. 43.

Urgent Photostat certified copy of this judgment, if applied for, shall be supplied to the parties as expeditiously as possible, upon compliance of all formalities.

[ SHAMPA DUTT (PAUL), J. ]