How a recent judgment of the Supreme Court can usher in a new era of labour law jurisprudence

The recent Supreme Court judgment in Jaggo v. Union of India has dramatically shaped labour and service law jurisprudence.

Both judgments are strongly worded and specifically caustic towards loopholes exploited by the executive and the bureaucracy. They are a testimony to the long-standing tradition of the courts as guardians of the oppressed.

In Jaggo, the appellants were engaged as cleaners and gardeners at the Central Waters Commission, New Delhi. They approached the tribunal for regularisation but their plea was dismissed stating lack of ‘regular vacancies,’ and insufficient ‘full-time’ service (such as meeting a 240-days per year criterion).

Within ten days of the dismissal of the application, the workers were abruptly terminated without any show-cause notice. Aggrieved, the appellants approached the Delhi High Court to set aside and quash the impugned order and for reinstatement.

The High Court concluded that the service of workers was part-time in nature and that they have not been appointed against sanctioned posts. They also failed to satisfy sufficient duration of full-time service for regularisation. The Court relied on Secretary, State of Karnataka v. Uma Devi to deny regularisation of service. It observed that the petitioners also lacked the minimum educational qualifications and their services were outsourced by their employer.

The workers then preferred a Special Leave Petition (SLP). The following paragraphs analyse the judgment via the grounds preferred by the workers in the SLP.

1. Continuous and substantive engagement

In Para 10 of Jaggo, it was held,

"The essence of their employment must be considered in the light of their sustained contribution, the integral nature of their work, and the fact that no evidence suggests their entry was through any illegal or surreptitious route."

In most cases of regularisation before the High Courts, the average age of engagement of service is always substantially more than the prescribed threshold of regularisation. These thresholds are put in place vide state government statues, rules, circulars, et al. For instance, vide a Government of Odisha circular, a contractual or temporary employee, upon completion of 6 years of service, is entitled to regularisation. Despite such standing circulars, an interference of a writ court is always preferred by employees.

Another aspect of continuous engagement is the employment of Group C and D employees for 239 or less than 240 days in a calendar year to prevent them from qualifying for continuous engagement. In the case of All Odisha Inclusive Education Volunteers Association, a registered society of physically handicapped inclusive education volunteers (more than 1,200 in number) moved the High Court of Orissa seeking directions to omit the one-day break in service in a calendar year. The Court was convinced and issued orders to the effect. This phenomena of introducing a break of one day in a calendar year to prevent the 240 days in a year is a systematic practice of the government.

2. Nature of duties

In Jaggo, the Court has delved deep into the definitions and impact of nature of duties and has sealed and secured the rights of workers. The Court labels the nature of duties performed by workers as indispensable and integral to the functioning of the Central Water Commission. This liberal and empowering interpretation by the Court strikes at the heart of the general grounds used by the state to evade regularisation. It is pertinent to note that most litigation for regularisation is fought by Group C and D employees who perform duties which are ostensibly dispensable in nature (for the state). The posts at these levels are mostly occupied vide contractual or temporary selections. This makes this particular cadre of posts precarious and disposable in nature. However, the Court has secured their rights by deeming their duties as integral by recognising ancillary duties such as cleaning, guarding, et al, as crucial to the infrastructure of institutions and just as important as roles of superior officers.

3. Absence of performance issues

This is an often-cited ground in service litigation, as blemish-free records of workers and employees is a legitimate ground to pray for regularisation. The lack of performance issue is synonymous with satisfaction of service rendered by such employees. This is pertinent as these cadres are often treated as disposable classes of employees and the state has displayed historical apathy in showcasing classical corporate tendencies of hiring and firing of employees in these cadres. In fact, one of the reasons for constantly filling posts of these cadres under temporary or contractual employment is to give the state the power to extract work output similar to those of regular employees but by underpaying employees and denying them the security and perquisites of regular employees. These cadre of employees are often employment-needy populations who, despite working in the state machinery, are subjected to corporate-style precarious employment.

There is generally no patent defence by the state to this ground as the slightest blemish in service is often met with immediate action. Due to this stern approach by the state, an argument advanced stating the lack of performance issue is often a strong and persuasive ground in service litigation.

4. Uma Devi guidelines

The heavily worded Uma Devi judgment ventures into the intricacies of service law and speaks about irregularity and illegality of employment as the yardstick to ascertain regularisation. Although the mainstay of the judgment is to prevent backdoor entries into public posts, the state has systematically used the judgment to prevent legitimate entries as well. The guidelines are double-edged in nature and provide just enough fodder for both the parties in service litigation matters to further their own case and oppose the other's.

In Para 20 of Jaggo, it was held,

"It is well established that the decision in Uma Devi (supra) does not intend to penalize employees who have rendered long years of service fulfilling ongoing and necessary functions of the State or its instrumentalities."

Para 26 states,

"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."

5. Discrimination in regularisation

This ground is a direct violation of Articles 14 and 16 enshrined in the Constitution of India. In many instances, there are individuals who have completed fewer years of service (but fulfil the requirements for regularisation) and have been regularised. On the other hand, employees who have served longer and are denied regularisation. This discrimination points to the executive’s historical cherry-picking tendencies of certain individuals over others despite standing guidelines and circulars. Red-tape, corruption and opacity are some of the main reasons for such functioning. This self-mockery is a frequent occurrence in service litigation, wherein the executive authorities only respond to representations accompanied by certified copies of writ court orders as opposed to those of honest and hard-working employees.

6. Irrelevance of educational qualifications

An often-cited ground to deny regularisation is the ground of educational qualification, which has no direct correlation with the posts in question. Often this is a reason cited by the state even when the applicants meet the requisite educational criteria listed out in the original advertisements.

In Para 17 of Jaggo, it was held,

"...The nature of duties the appellants performed—cleaning, sweeping, dusting, and gardening—does not inherently mandate formal educational prerequisites. It would be unjust to rely on educational criteria that were never central to their engagement or the performance of their duties for decades."

7. Equity and fairness

Perhaps the crux of all service litigation hinges upon equity and fairness. Jaggo comes down heavily on the executive while highlighting points such as indispensable nature of service and long-standing satisfactory performance, thus upholding equity and fairness as enshrined in the Constitution.

1. Role of government institutions: The Court speaks of the prevailing fragile and precarious forms of employment in the market and contrasts the government’s role against that of private companies in bolstering stable employment opportunities. Further, the mirroring of the gig economy by the state exacerbates a large-scale miscarriage of justice and erodes the trust of the public in governmental institutions and operations. These observations in Para 22 reinforces the government’s inherent duty to uphold fairness and justice. This addresses the historical abuse of Group C and D employees.

2. Multi-faceted forms of exploitation

a. Arbitrary terminations: These employees work under the constant threat of abrupt termination from service as contractual employees cannot demand relief such as opportunity of being heard or represented before dismissal. This is directly against Para 14 of Jaggo. However, the paperwork signed by contractual employees explicitly contain a hire and fire clause ‘without notice.’ This creates an atmosphere of constant insecurity and defeats the principles of natural justice.

b. Lack of career progression: Despite performing duties at a similar footing as regular employees, contractual employees are systematically denied training and skill development reserved only for permanent employees. This step-motherly treatment by the state creates a class distinction amongst employees. This also creates an environment where employees are not adequately motivated and the same in reflected in the poor reputation of government institutes.

c. Outsourcing as a shield: One of the most common traits of service litigation involves the defence of outsourcing on the part of various state instrumentalities to evade regularisation. This practice of outsourcing by the government has essentially reduced government institutions to corporate-style institutions where only work output at the least possible remuneration is focused over social security.

Jaggo has opened a floodgate of service writ petitions across High Courts. It also provides needful protection from the pitfalls of Uma Devi. However, the courts tread carefully, not to overstep their jurisdiction and to respect the executive’s inherent and exclusive power to control appointments. Regardless, Jaggo is a harbinger of the new era of labour jurisprudence that explores employment with sensitivity and ensure the semantics match the sentiments of the employees.

Abhilash Pattnaik is an advocate practicing before the High Court of Orissa.