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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 :

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“(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 India2.

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 Devi3 “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

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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.

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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

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“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

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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.

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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

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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.   

10 The 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

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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.   

11 This 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

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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.  

12 In  State  of  Punjab  v.  Jagjit  Singh5,  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

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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.”

13 There 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

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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.

14 During 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.  

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

.….......................................CJI                [T S  THAKUR]

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                                                                             ..............................................J                          [Dr D Y  CHANDRACHUD]

New Delhi January 02, 2017.