Page 1 REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO. 616 OF 2013

YASH PAL & ORS .... PETITIONERS

VERSUS

UNION OF INDIA & ORS .....RESPONDENTS

WITH

WRIT PETITION (CIVIL) NO. 912 OF 2013

J U D G M E N T

Dr D Y CHANDRACHUD, J

The petitioners – twenty nine of men – have been engaged as porters in the

Indian Army as casual labouror daily wage employees in the border areas of

Rajouri, Jammu and Poonch. Annexure P-1 to the writ petition, which has

been instituted under Article 32 of the Constitution of India, contains

photocopies of identity cards issued by the army authorities. The grievance is

that the petitioners have not been treated as regular employees and have

been denied the benefit of minimum pay-scales despite long years of service

in arduous conditions prevalent in a difficult terrain. According to the

petitioners, many of them have worked for long years. Details have been

furnished of the period over which they have been engaged in the writ

proceedings. The relief which they seek is in the following terms :

Page 2 2

“(a)..an appropriate writ in the nature of

mandamus or any other writ, direction or order

commanding respondents to treat petitioners as

regular civilian employees in the Indian Army and

extend them all benefits which are being given to

the regularly appointed / recruited porters

discharging..identical work by treating already

rendered services by the petitioners as .. by

regularly appointed/recruited porters.”

2 Similarly situated porters engaged by the Indian Army as casual labour

instituted a proceeding before the Armed Forces Tribunal at its Principal Bench

in New Delhi.

1

By a judgment dated 11 May 2010, the Tribunal held that since

the porters are not subject to statutory provisions which govern the Army, Navy

and Air Force, their grievance did not fulfil the definition of a ‘service matter’

under Section 3(o) of the Armed Forces Tribunal Act, 2007. Hence by the

judgment of the Tribunal, the application was dismissed.

3 Special Leave Petitions were moved before this Court which eventually

resulted in a judgment dated 14 May 2013 in Isher Singh v. Union of India

2

.

Leaving open the issue of jurisdiction, a Bench of two learned Judges of this

Court held that the appellants were working for between fifteen and twenty

years. Hence, in the view of the Court, the observations contained in

paragraph 53 of the decision of a Constitution Bench of this Court in

Secretary, State of Karnataka v. Uma Devi

3

“would come in their aid”. For

1

O. A. Nos. 302 & 204 of 2010

2

Civil Appeal Nos. 6248-6249 of 2010

3

(2006) 4 SCC 1

Page 3 3

convenience of reference the observations in Uma Devi have been extracted

below :

"53. One aspect needs to be clarified. There may

be cases where irregular appointments (not illegal

appointments) as explained in State of Mysore

vs. S.V. Narayanappa (1967) 1 SCR 128,

R.N.Nanjundappa vs. T. Thimmiah (1972) 1 SCC

409 and B.N.Nagarajan vs. State of Karnataka

(1979) 4 SCC 507, and referred to in paragraph

15 above, of duly qualified persons in duly

sanctioned vacant posts might have been made

and the employees have continued to work for

ten years or more but without the intervention

of orders of courts or of tribunals. The question of

regularization of the services of such employees

may have to be considered on merits in the light of

the principles settled by this Court in the cases

above referred to and in the light of this judgment.

In that context, the Union of India, the State

Governments and their instrumentalities should

take steps to regularize as a one time

measure, the services of such irregularly

appointed, who have worked for ten years or more

in duly sanctioned posts but not under cover of

orders of courts or of tribunals and should further

ensure that regular recruitments are undertaken to

fill those vacant sanctioned posts that require to

be filled up, in cases where temporary employees

or daily wagers are being now employed. The

process must be set in motion within six months

from this date. We also clarify that

regularization, if any already made, but not

subjudice, need not be reopened based on this

judgment, but there should be no further

by-passing of the constitutional requirement

and regularizing or making permanent, those not

duly appointed as per the constitutional scheme."

The appeals were disposed of by directing the Union government to consider

the case of the appellants considering their past service record, within a period

of four months.

Page 4 4

4 Contempt petitions were filed before this Court with a grievance that the

judgment had not been complied with.

4

By an order dated 23 September 2015

this Court took on the record a decision taken by the Union Ministry of Defence

in the following terms :

“Hon'ble Supreme Court, during the course of

hearing of above Contempt Petitions on the above

mentioned case, has observed that some

benefits/ex-gratia should be paid to those porters

who worked for a specified number of years say 10

or 12.

2. The issue of giving some additional benefits to

these petitioners has been considered in the

Ministry in deference to the above observation of

the Hon'ble Supreme Court.

3. In recognition of the services rendered by these

petitioners for Indian Army in operationally active

areas having life threatening conditions, it is

proposed that these petitioners engaged at the

border posts of Army along the LOC for a minimum

period of 10 years, be paid an honorarium of

Rs.50,000/- (Rs. Fifty thousand only). The payment

of honorarium is being granted as a special

dispensation and as a onetime measure. The

above decision should not be treated as a

precedent.”

While dealing with the question of regularization, the court noted the

submission of the Union government that the employment of porters is

“absolutely seasonal” and that when the earlier civil appeals were disposed of,

there was no direction to regularize the services of the porters. After recording

this submission, this Court held thus :

4

Contempt Petition(Civil) Nos.2-3 of 2014 in Civil Appeal Nos.6248-6249 of 2010

Page 5 5

“In our considered opinion, there cannot be a

direction for regularization.”

However, the Court (having regard to the hazardous conditions in which the

porters have to work, facing injury and disability and in some cases death)

suggested to the Union Ministry of Defence to frame a scheme which would

govern porters who suffer injury or disability. The Court directed that the

scheme shall also contain provisions for the payment of compensation to the

families of civilians who meet with death while working as porters. This Court

noted that a roster is maintained when civilians are engaged as porters. The

contempt petitions were disposed of with the following observations :

“Before parting with this application for contempt,

we may note that if the authorities feel appropriate,

apart from what we have stated hereinabove, they

can frame a better scheme so that these seasonal

porters feel secured. The competent authorities

shall discuss with the Chief of Army Staff or the

officers deputed by him and work out the modes so

that there is real enthusiasm to take these kinds of

risky jobs.

Professor Bhim Singh also submitted with agony

that unless economic security is provided to this

category of porters, who because of the basic

livelihood take up such jobs, may not feel that they

are not being looked after. We hope and trust, the

authorities who engage them shall understand and

appreciate their agony, anguish and the need and

proceed as suggested by us”.

5 The issue as to whether the porters are entitled to regularization has

been dealt with first in the judgment dated 14 May 2013 and subsequently in

the order disposing of the contempt petitions on 23 September 2015. The

Page 6 6

Bench hearing the civil appeals had left it open to the Union government to

consider the case of the porters having regard to their past service record in

the light of para 53 of the decision of the Constitution Bench in Uma Devi. In

the contempt proceedings the plea for regularization was not accepted and the

Court observed that a direction for regularization could not be granted.

However, it was left open to the Union government to frame a better scheme

so that the porters feel secure. We may also note here that the plea for

regularization was not declined in the original judgment of 14 May 2013. In

fact, this Court had adverted to the observations in para 53 of the decision in

Uma Devi.

6 In response to the present proceedings, a counter affidavit has been

filed on behalf of the respondents stating that (i) of the petitioners who have

moved this Court, only the first and second petitioners have been working

since 1998 while the others have been recruited after 2000; and (ii) petitioners

eleven to sixteen have been engaged since 2010. It has been stated that with

the acceptance of the recommendations of the Sixth Pay Commission, Group

D posts were upgraded to Group C posts as a result of which the former stand

abolished. The implications of this have been set out in a memorandum of the

Union government in the Ministry of Personnel (Department of Personnel and

Training) dated 30 April 2010, followed by a clarificatory memorandum. In the

present case, it has been submitted that casual labour is engaged when

required on “Nerrik Rates” as approved by the station headquarters.

Page 7 7

7 Relying upon the above mentioned contentions in the counter affidavits,

Mr P.S.Patwalia, learned Additional Solicitor General and Mr R

Balasubramanian, learned counsel have submitted that they are no sanctioned

posts against which the petitioners can be regularized. Direct recruitmentis to

Group C posts and for posts of multi-tasking staff, minimum qualifications and

age criteria have to be fulfilled.

8 During the course of the hearing of these proceedings, an order was

passed on 29 July 2016 allowing the Additional Solicitor General to take

instructions on the willingness of the Union government to formulate a suitable

policy or scheme for providing better working conditions “and related matters”

for a large number of porters working with the Indian Army. A draft was filed

before this Court of a proposed scheme and the court was apprised that given

sufficient time, the Union government would formulate a proper scheme. The

proceedings have thereafter been stood over on 22 August 2016, 14

September 2016 and 30 September 2016. On 30 September 2016, the Court

was informed that the Union government “is seriously considering the steps

that will ameliorate the conditions of porters serving with the Army”.

9 In the meantime,an affidavit has been filed stating that a scheme has

been finalized by the Ministry of Defence in consultation with the Indian Army

for the engagement of “seasonal civilian labour in high risk/highly active field

areas” in pursuance of the observations contained in the order of this Court.

The scheme has been produced as Annexure R-1A to the affidavit. We may

note at this stage, that the court has been informed by the learned Additional

Page 8 8

Solicitor General that the scheme which has been placed on the record is now

awaiting approval of the competent authority. The learned ASG and Mr R

Balasubramanian have taken pains to pursue the matter at all levels of the

government and have assured the Court that the plea for dignified conditions

for these porters is engaging active attention.

10The Indian Army engages twelve thousand porters. The nature of the

work which is rendered by the porters engaged as casual labour by the Army

is not in dispute. They are engaged, as the affidavit of the Union government

indicates, in “high risk/highly active field areas”. The decision which was taken

earlier (and referred to in the order dated 23 September 2015) referred to the

work being rendered by the porters in “operationally active areas having life

threatening conditions.” These porters are civilians who possess an innate

knowledge of the terrain and its hazards. The proposed scheme indicates in a

fair measure the nature of the work which the porters perform, in the following

terms :

“Hiring of Seasonal Porters Concert with Ministry of

Defence policy letter, “Seasonal Porters and

Animals will be hired for bona fide duties, to

enhance the operational efficiency of troops.

They will be utilized for carriage of stores,

stocking of posts, collection of water for

troops, carriage and replenishment of

ammunition, beating of tracks, snow clearance,

conveyance of private mail and evacuation of

serious casualties”. (emphasis supplied)

By all accounts, there is no element of doubt that the porters provide

valuable support to the Indian Army and are an integral, if not

Page 9 9

indispensable, requirement of operations in border areas. They are

engaged for the carriage of stores, stocking of posts, collection of water,

replenishment of ammunition, clearance of tracks and evacuation of

casualties. In high altitudes of the north and north-east, the porters trudge

along with their mules, ponies and donkeys in terrain inaccessible to any

other form of transport. They belong to the poorest strata of society. Many

of the porters may not possess educational qualifications. However, the

value addition which they provide to the Indian Army in terms of their

knowledge of conditions makes them a sure footed ally in hostile

conditions. To look at their work from a metro centric lens is to miss the

wood for the trees. They work, albeit as casual labour, for long years with

little regard of safety. Faced with disability, injury and many times death,

their families have virtually no social security. Such a situation cannot be

contemplated having regard to the mandate in Articles 14 and 16 of the

Constitution.

11This Court consistent with the position in law and the background of

this case in regard to regularization may not be in a position to issue a

mandamus to the Union government to regularise but surely that does not

prevent the government from taking a robust view of reality in consultation

with the Armed Forces whom the porters serve with diligence and loyalty.

The scheme which has been proposed undoubtedly marks a welcome

improvement over the present conditions of porters and we appreciate the

steps which have been pursued by Mr P. S. Patwalia, learned Additional

Page 10 10

Solicitor General, Mr R Balasubramanian, learned Counsel assisting him

and by the concerned officials of the Ministry of Defence and the Indian

Army to ensure a just resolution. The scheme as proposed contains

provisions for (i) maintenance of records of hiring; (ii) paid weekly and

national holidays; (iii) hours of work and a six day week; (iv) medical

facilities in emergent circumstances; (v) compensation in the event of

death or permanent disability; (vi) canteen services; (vii) insurance cover;

and (viii) a onetime financial grant on severance.

12In State of Punjab v. Jagjit Singh

5

, this Court has recently

revisited the entire body of law on the subject. The Court observed that

the principle of equal pay for equal work has been extended to temporary

employees (differently described as work – charge, daily wage, casual,

ad- hoc, contractual and the like). The principles have been succinctly

summarised thus :

“79. In our considered view, it is fallacious to

determine artificial parameters to deny fruits of

labour. An employee engaged for the same work,

cannot be paid less than another, who performs

the same duties and responsibilities. Certainly not,

in a welfare state. Such an action besides being

demeaning, strikes at the very foundation of

human dignity. Any one, who is compelled to work

at a lesser wage, does not do so voluntarily. He

does so, to provide food and shelter to his family,

at the cost of his self respect and dignity, at the

cost of his self worth, and at the cost of his

integrity. For he knows, that his dependents would

suffer immensely, if he does not accept the lesser

wage. Any act, of paying less wages, as compared

5

(2016) SCC OnLINE SC 1200

Page 11 11

to others similarly situate, constitutes an act of

exploitative enslavement, emerging out of a

domineering position. Undoubtedly, the action is

oppressive, suppressive and coercive, as it

compels involuntary subjugation.”

13There are three areas where we propose to issue directions to the

Union government, and accordingly do so in the following terms. Firstly,

the scheme as proposed provides for the payment of minimum wages at

the prevailing ‘Nerrik Rates’. This aspect requires a fresh look so that the

porters are paid wages at par at the lowest pay-scale applicable to

multi-tasking staff. Further, if there are provisions enabling additional

payments to be made (either by way of allowances or otherwise) for work

in high altitude areas or in high risk/active field areas, such payments

shall be allowed under the scheme. Secondly, the scheme must provide

for regular medical facilities including in the case of injury or disability.

Thirdly, the amount of compensation in the case of death or permanent

disability should also be looked at afresh and suitably enhanced. The

present scheme provides for an interim relief of rupees twenty thousand

to be sanctioned at the discretion of the local formation commander. A

maximum payment of Rupees two lakhs as applicable under the

Workmen’s Compensation Act, 1923 is contemplated. The provision for

compensation shall be enhanced to provide for dignified payments in the

event of death or disability. Fourthly,a onetime severance grant of rupees

fifty thousand is provided in the proposed scheme subject to a minimum

service of ten years. This measly payment on severance does not fulfil

Page 12 12

the mandate of fairness, on the part of the State. We direct that the

terminal benefits should be enhanced so as to provide for compensation

not less than at a rate computed at fifteen days’ salary for every

completed year of service. The Union government shall bear in mind

these directions in the course of the finalization of the scheme which shall

be done within the next three months.

14During the course of the hearing, the learned Additional Solicitor

General indicated that the formulation of a proposal for regularization is

under consideration. It has also been stated during the course of the

submissions that the proposal may envisage regularizing army porters

who have rendered service for a stipulated period upto five per cent of

the sanctioned strength of multi-tasking staff. Since the pool of porters is

large, the number of persons who may benefit from such a proposal

every year may be minimal. This is an aspect which should be duly borne

in mind while enhancing the proportion of the sanctioned strength for

regularization; in order that the benefit of security of tenure is made

available to a reasonable proportion of persons who complete a

stipulated minimum tenure of service. The competent authority will

consider this aspect while taking a decision in the matter.

15The writ petitions are accordingly disposed of in the above terms.

.….......................................CJI

[T S THAKUR]

Page 13 13

..............................................J

[Dr D Y CHANDRACHUD]

New Delhi

January 02, 2017.