# Ramveer Singh and others v. Gail India Ltd and others

- **Citation:** (2007) 1 ILRA 89
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2006-09-21
- **Case number:** Writ Petition No.2140 of 2004
- **Bench:** Tarun Agarwala
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ramveer-singh-and-others-v-gail-india-ltd-and-others-40889
- **Pages:** 6

## Headnote

Constitution
of
India,
Art.
226Regularisation-appointment on 'Junior
Foreman
Trainee'
post-under
Govt.
policy-for two years on consolidated
stipend of Rs.4300 plus canteen subsidy
of Rs.400/-further extended for one
year-allowed to continue as trainee for
long time amount unfair labour-practices
no
denied
of
working
as
regular
employee-court can assume and direct
for creation of post and regularizationtill regular absorption minimum scale of
pay to be given.

Held: Para 10 & 12

The Supreme Court in State of Haryana
v. Piyara Singh, (1992) 4 SCC-118 held
that the State should act as a model
employer and should not exploit its
employees nor take advantage of the
helplessness
and
miseries
of
such
persons, who are working for a long
time. In the present case, the petitioners
have
been
allowed to
continue as
trainees for a long time and is therefore
indicative
of
the
fact
that
the
respondents are adopting unfair labour
practice for the simple reason that the
respondents are taking regular work
from the petitioners on a consolidated
amount and are not treating them as
regular workers. The fact that regular
work is being taken from the petitioners
have
not
been
denied
by
the
respondents.
That
fact
that
the
respondents
are
permitting
the
petitioners to work in the establishment
is also indicative of the fact that there is
a need for regular work. Therefore, even
assuming that there are no vacancy in
the regular cadre, nonetheles, there is a
requirement for a regular post and
accordingly, the Court could direct the
respondents
to
create
a
post
and
regularise the services of the petitioners.

In view of the aforesaid, it is clear that
the petitioners are working continuously
from
the
date
of
their
initial
appointments as trainees. The action of
the
respondents
in
permitting
the
petitioners to work for considerable
length of time gave them a flicker of
hope for being absorbed in the services
of the respondents. Clause 12 of the
terms and conditions of the offer of
appointment
indicates
that
the
management
has
a
policy
for
the
absorption of trainees in the regular
cadre.
Case law discussed:
2006 (4) SCC-1 relied on.
1992 (4) SCC-118 relied on.

## Text

1 All] Ramveer Singh and others V. Gail India Ltd and others
89
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.09.2006

BEFORE
THE HON'BLE TARUN AGARWALA, J.

Writ Petition No.2140 of 2004

Ramveer Singh and others ...Petitioners
Versus.
Gail India Ltd. and others ...Respondents

Connected with:
1. Writ Petition No.28608 of 2003
2. Writ Petition No.3601 of 2004

Counsel for the Petitioners:
Sri Ashok Khare
Sri V.D. Chauhan
Sri H.N. Singh

Counsel for the Respondents:
Sri Navin Sinha
Sri Siddharth Singh
S.C.

Constitution
of
India,
Art.
226Regularisation-appointment on 'Junior
Foreman
Trainee'
post-under
Govt.
policy-for two years on consolidated
stipend of Rs.4300 plus canteen subsidy
of Rs.400/-further extended for one
year-allowed to continue as trainee for
long time amount unfair labour-practices
no
denied
of
working
as
regular
employee-court can assume and direct
for creation of post and regularizationtill regular absorption minimum scale of
pay to be given.

Held: Para 10 & 12

The Supreme Court in State of Haryana
v. Piyara Singh, (1992) 4 SCC-118 held
that the State should act as a model
employer and should not exploit its
employees nor take advantage of the
helplessness
and
miseries
of
such
persons, who are working for a long
time. In the present case, the petitioners
have
been
allowed to
continue as
trainees for a long time and is therefore
indicative
of
the
fact
that
the
respondents are adopting unfair labour
practice for the simple reason that the
respondents are taking regular work
from the petitioners on a consolidated
amount and are not treating them as
regular workers. The fact that regular
work is being taken from the petitioners
have
not
been
denied
by
the
respondents.
That
fact
that
the
respondents
are
permitting
the
petitioners to work in the establishment
is also indicative of the fact that there is
a need for regular work. Therefore, even
assuming that there are no vacancy in
the regular cadre, nonetheles, there is a
requirement for a regular post and
accordingly, the Court could direct the
respondents
to
create
a
post
and
regularise the services of the petitioners.

In view of the aforesaid, it is clear that
the petitioners are working continuously
from
the
date
of
their
initial
appointments as trainees. The action of
the
respondents
in
permitting
the
petitioners to work for considerable
length of time gave them a flicker of
hope for being absorbed in the services
of the respondents. Clause 12 of the
terms and conditions of the offer of
appointment
indicates
that
the
management
has
a
policy
for
the
absorption of trainees in the regular
cadre.
Case law discussed:
2006 (4) SCC-1 relied on.
1992 (4) SCC-118 relied on.

(Delivered by Hon'ble Tarun Agarwala, J.)

1. The land of the petitioners was
acquired under the Land Acquisition Act
for the Gas Authority of India Limited
(GAIL) to set up a project known as "
Uttar Pradesh Petrochemicals Complex".
A lot of hue and cry was raised by the
land owners against the acquisition
90 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
proceedings and eventually, a tripartite
agreement dated 29.6.1998 was executed
between the land oustees, the district
authorities, and the Management of Gas
Authority
of
India
Limited.
The
agreement contained a stipulation that one
member of a family would be given an
employment.
This
condition
of
employment was incorporated as per the
prevailing
policy
of
the
State
Government. Based on the aforesaid, the
petitioners were offered an appointment
as " Junior Fireman Trainee" in the
project. The terms and conditions of the
appointment was that the training would
be for a period of two years and if the
performance was found unsatisfactory, in
that case, the period of training would be
extended by six months. The trainees
would be paid a consolidated stipend of
Rs.4300.00 plus canteen subsidy @
Rs.400/- per month and that it was not
obligatory on the part of the management
to
offer
an
appointment
after
the
completion of the training period. The
offer of appointment further stipulated
that the management would retain the
discretion to consider the trainees for a
suitable absorption as per the terms and
conditions of the absorption as laid down
by the management, and if absorbed, the
trainee would be placed in the minimum
pay scale and that the training period
would not be counted towards the service
period. For facility, clause 12 of the terms
and conditions of the offer of the
appointment is detailed herein below:-

"It shall not be obligatory on the part
of GAIL to offer any employment to the
trainee on completion of the period of
training. However, GAIL Management
retains the discretion to consider the
trainee for suitable absorption in the
services of GAIL, subject to successful
completion of training, performance on
any interview/test (s) which may be
conducted by the GAIL Management and
on the terms and conditions of absorption
as laid down. On completion of the period
of training, the trainees may be absorbed
at the minimum of the pay scale of the
level/ grade in which they are to be
placed."

2. The petitioners contended that the
aforesaid offer of appointment was
accepted and upon the completion of the
training
period
of
two
years,
the
Management
extended
their
training
period by one year and thereafter, no
letter of the extension of the training or
for any other purpose, was issued and the
management
silently
allowed
the
petitioners to continue as trainees in the
project.
It
was submitted that the
petitioners had been working since then
continuously and that regular work was
being taken from them and that they are
performing the same work as done by the
regular workers, and therefore, prayed
that a mandamus be issued to the
respondents to absorb them as regular
junior firemen and pay them a regular
salary.

Heard Sri Ashok Khare, Senior
Advocate as well as Shri H.N. Singh, the
learned counsels for the petitioners and
Sri Navin Sinha, the learned Senior
Counsel assisted by Siddharth Singh,
Advocate for the respondents.

3. The learned counsel for the
petitioners
submitted
that
upon
the
completion
of
their
training,
the
management had allowed them to work
and that regular work was being taken by
the management which was the same
work as performed by the regular
1 All] Ramveer Singh and others V. Gail India Ltd and others
91
workers, and therefore, there was no
difference in the work performed by the
petitioners as trainees with the work
performed by the regular workers. The
learned counsel for the petitioners further
submitted that they are working in the
project continuously for a continuous
length of time, and therefore, they are
now liable to be absorbed as regular
employees of the project. The learned
counsel
for
the
petitioners
further
submitted
that
the
action
of
the
management in keeping the petitioners as
trainees
and
paying
them
only
a
consolidated
stipend
was
not
only
arbitrary but also amounted to an unfair
labour practice. It was also urged that the
management had given the appointment
to the petitioners in lieu of the acquisition
of their lands, and that such appointments
was in the nature of a compassionate
appointment which cannot be treated to be
temporary in nature, and therefore, on this
basis, the petitioners should be absorbed
and
should
be
treated
as
regular
employees of the respondents.

4. On the other hand, the learned
counsel for the respondents submitted that
since the performance of the petitioners
was not upto the mark, the training period
was extended and that a Committee had
been
constituted
to
assess
the
performance of the petitioners which is
under consideration. The respondents
further submitted that the petitioners
cannot claim absorption in the service of
the answering respondents on the basis of
their appointment letters. The respondents
submitted that after the completion of
their training, the petitioners had no right
to remain in the service of the Company,
but as a measure of good gesture and to
avoid the pitiable situation of the
petitioners, the respondents extended the
training period, so that the petitioners
could acquire the requisite training to
enable them to compete with the other
candidate at the time of the filling up of
the vacancy. It was alleged that the land
oustees
are
not
entitled
for
an
employment as the matter of right and
having received the compensation, etc.
under the Land Acquisition Act, the
petitioners were, therefore, not entitled for
an
employment
in
the
respondents
establishment.

5. The learned counsel for the
respondents further submitted that the
offer of the training given to the
petitioners does not give them any right of
a regular employment and that the mere
fact that they were continuing in the
service of the respondents as trainees did
not give them any indefeasible right for
an absorption in the service. The learned
counsel for the respondents further
submitted
that
the
petitioners
were
appointed by a back door method and
therefore such appointments cannot be
regularised. The tripartite agreement was
executed under pressure, inasmuch as, the
respondents were compelled to sign the
agreement on the dotted line, which was
against a public policy, and therefore,
void under Section 23 of the Contract Act.
In support of his submission, the learned
counsel
for
the
respondents
placed
reliance upon a decision of the Court in
Secretary State of Karnataka and
others Vs. Uma Devi (3) and others,
2006(4) SCC 1.

6. The Supreme Court in the case of
Uma Devi [3] [supra] held that public
employment had to be made on the basis
of a procedure established by the Rules
and Regulations and that only regular
appointments could be made and that an
92 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
irregular appointment, without following
the procedure, as per the Rules and
Regulations, should not be adopted nor
such
irregular
appointments
namely,
temporary, casual, daily rated persons or
on contract, having continued to work
year after year, should not be permitted to
be regularised and such powers should not
be exercised by the Courts under Article
226 of the Constitution. The Supreme
Court held that the employer could
engage persons on a temporary basis to
meet the needs of the situation. However,
the engagement, could not be used as a
lever for the regularisation of their
services, as it would defeat the scheme of
public employment and therefore, the
Courts, exercising powers under Article
226 of the Constitution, should refrain in
directing absorption in a permanent
employment of those who have been
engaged without following the due
process of selection as envisaged under
the Rules and Regulations. The Supreme
Court, further held, that equity would also
not favour such persons who had been
working for a considerable period of time
nor sentiments should come in the way.
The Supreme Court held that a person,
who was engaged on a contractual basis,
was not based on a proper selection as
recognised by the rules or procedure and,
such appointments could not invoke the
theory of legitimate expectation for being
confirmed on that post in the light of the
fact that the said post could only be filled
up after following a procedure prescribed
under the Rules and Regulations. The
Supreme Court further held that it could
not be held that a promise of legitimate
expectation was given by the respondents
for the regularisation of their services on
the mere ground, that these temporary or
contract employees were allowed to
continue for a period of time.
7. However, the Supreme Court in
the case of Uma Devi [3] (supra) has
carved out an exception. In paragraph-53
of the said judgment, the Supreme Court
held that if the persons appointed on
adhoc, casual or contract basis were duly
qualified and were working against a
sanctioned post and continued to work for
several years without any intervention of
an order of the court, in such an
eventuality, the process of regularisation
could be made, and if it was ultimately
found that the employee was entitled for
the relief, it would be possible for the
Court to accordingly mould the relief.

8. In the light of the aforesaid, it has
to be seen whether the petitioners were
appointed by a back door method. In the
present case, the petitioners were given
appointments as trainees. They worked as
trainees for two years and their period
was extended for one more year. Their
appointments as trainees was made under
the Rules, Regulations and the policy of
the respondents company. Therefore, it
cannot be said that the appointment of the
petitioners was made through a back door
method. Further, there is no allegation
that the petitioners were not qualified for
the post or that they do not hold the
requisite educational qualifications. The
question that arises for consideration is,
whether the petitioners were appointed on
a sanctioned post or not. The respondents
have stated that there are no vacancy
available for their absorption in the
regular cadre, but they have not denied
the fact that their appointments as trainees
was not against the existing posts.
Consequently, it cannot be said that the
appointment of the petitioners was against
the existing strength.
1 All] Ramveer Singh and others V. Gail India Ltd and others
93
9. As per Clause 12 of the terms and
conditions of the offer of the appointment,
it is clear that the management has a
policy for absorption of trainees in the
service of GAIL subject to successful
completion of training, performance, etc.
by
the
trainees.
Consequently,
the
management has a policy for absorbing
the trainees. In the present case, the
petitioners were appointed as trainees and
underwent the training for three years,
and thereafter, they were allowed to
continue as trainees. Their performance
have been judged. The respondents in
their counter affidavit have admitted that
a committee has been constituted to assess
the performance, but after filing of the
counter affidavit, the respondents have
not come out with any further affidavit
indicating as to what recommendations
was made by the committee. It is quite
obvious that the respondents had stated
these facts in the counter affidavit to gain
time and left the matter at that.

10. The Supreme Court in State of
Haryana v. Piyara Singh, (1992) 4
SCC-118 held that the State should act as
a model employer and should not exploit
its employees nor take advantage of the
helplessness and miseries of such persons,
who are working for a long time. In the
present case, the petitioners have been
allowed to continue as trainees for a long
time and is therefore indicative of the fact
that the respondents are adopting unfair
labour practice for the simple reason that
the respondents are taking regular work
from the petitioners on a consolidated
amount and are not treating them as
regular workers. The fact that regular
work is being taken from the petitioners
have not been denied by the respondents.
That fact that the respondents are
permitting the petitioners to work in the
establishment is also indicative of the fact
that there is a need for regular work.
Therefore, even assuming that there are
no
vacancy
in
the
regular
cadre,
nonetheles, there is a requirement for a
regular post and accordingly, the Court
could direct the respondents to create a
post and regularise the services of the
petitioners.

11. The Supreme Court in Piyara
Singh (supra) further held:

"Ordinarily speaking, the creation
and abolition of a post is the prerogative
of the Executive. It is the Executive again
that lays down the conditions of service
subject, of course, to a law made by the
appropriate legislature. This power to
prescribe the conditions of service can be
exercised either by making Rules under
the proviso to Art. 309 of the Constitution
or (in the absence of such Rules ) by
issuing Rules /instructions in exercise of
its executive power. The Court comes into
the picture only to ensure observance of
fundamental rights, statutory provisions,
Rules and other instructions, if any,
governing the conditions of service. The
main concern of the court in such matters
is to ensure the Rule of law and to see that
the executive acts fairly and gives a fair
deal to its employees consistent with the
requirements of Articles 14 and 16. It also
means that the State should not exploit its
employees nor should it seek to take
advantage of the helplessness and misery
of either the unemployed persons or the
employees, as the case may be. As is
often said, the State must be a model
employer. It is for this reason, it is held
that equal pay must be given for equal
work, which is indeed one of the directive
principles of the Constitution. It is for this
very reason it is held that a person should
94 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
not be kept in a temporary or ad hoc
status for long. Where a temporary or ad
hoc appointment is continued for long the
Court presumes that there is need and
warrant for a regular post and accordingly
directs regularisation."

12. In view of the aforesaid, it is
clear that the petitioners are working
continuously from the date of their initial
appointments as trainees. The action of
the
respondents
in
permitting
the
petitioners to work for considerable
length of time gave them a flicker of hope
for being absorbed in the services of the
respondents. Clause 12 of the terms and
conditions of the offer of appointment
indicates that the management has a
policy for the absorption of trainees in the
regular cadre.

13. In view of the aforesaid, the
petitioners are entitled to claim for their
absorption
in
the
service
of
the
respondents.
Consequently,
the
writ
petition is allowed. A mandamus is issued
to the respondents to consider the case of
the petitioners for their absorption in the
regular cadre within three months from
the date of the production of a certified
copy of this order.

In the event, the respondents deny
the absorption on the basis that there is no
vacancy, in that event, the petitioners
would be allowed to continue on a
minimum scale of pay till such time, as
the requisite posts are created in the
regular cadre. In the circumstances, of the
case, the parties shall bear their own cost.
Petition Allowed.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 26.09.2006

BEFORE
THE HON'BLE K.N. OJHA, J.

Criminal Misc. (IInd) Bail Application No.
9509 of 2006

Nipendra Singh
...Applicant (In Jail)
Versus
State of U.P.

...Opposite Party

Counsel for the Applicant:
Sri Dilip Kumar
Sri Arun K. Singh
Sri Rajiv Gupta

Counsel for the Opposite Party:
A.G.A.

Code of Criminal Procedure-Section 439Second
Bail
Application-the
ground
which
are
taken
in
second
bail
application-available
at
the
time
of
disposal of first bail application-can not
be termed as new ground.

Held: Para 10

The ground, which has been taken in
Second Bail Application, was available to
the applicant at the time of disposal of
the First Bail Application. The ground
available at the time of disposal of First
Bail Application will not be taken to be a
new
fact
for
moving
Second
Bail
Application. The Second Bail Application
is maintainable on new developments or
new facts and not on new ground based
on the facts, which already existed at the
time of disposal of First Bail Application.
Case law discussed:
1999 Cr.L.J. 3709
AIR 1992 SC-2292