‘Can’t maintain double standards’: Calcutta High Court orders centre to regularise 7,520 workers after 38-year battle

The bench continued that, on the other hand, denying to comply with the rest of the judgment on the ground of ‘policy decision’ and the consequent drain on the public exchequer.

Underscoring that the Constitution casts certain duties on the government as the protector of the fundamental human rights of its citizenry, the order added, “If implementation of a scheme in the direction of a court involves the fulfillment of such a duty of the state or enforcement of a fundamental right or a basic human right of the citizens, the shield of ‘policy decision’ is not available to the government as a defence against such implementation”.

Case of a 38-year-long battle for regularisation

The plea was filed by the Union of India against the single judge’s decision in February that directed the DoPT to approve the Andaman and Nicobar Casual Labourers/Daily Rated Mazdoors (DRMs) (Engagement and Regularisation) Scheme 2023.

The litigation originated from an 1988 office memorandum regarding the pay and regularisation of casual workers. Following years of legal battle, a 2022 division bench order directed the Andaman and Nicobar administration to frame a regularisation scheme, which was subsequently notified in August 2023 after the potential “threat of contempt proceedings” in the Supreme Court.

State’s stand

Representing the state, Additional Solicitor General of India, S D Sanjay, argued that the single judge traced the roots of the issue of regularisation and the resultant directions passed in the judgment from the earlier proceedings, but failed to notice that regularisation of daily rated workers was never an issue or relief sought in that petition, and the issue came up only when a direction to that effect was issued by a division bench while dealing with a completely different issue.

It is argued that the Union of India was never a party to any of the earlier proceedings, either before this court or in the Supreme Court, and therefore, any directions passed in those proceedings cannot be said to be binding on the appellants.

He further argued that the scheme in the present form has not been approved by the appellants because it is against the principles laid down by the Supreme Court in Secretary, State of Karnataka and others v Umadevi and others, since it allows for regularisation of 7520 DRMs en masse, without considering whether they were recruited against sanctioned posts or not.

‘Courts’ decisions equally binding on state’

• A ground, which is the common refrain of the administration and the center in the present appeal, is that purportedly the Scheme of 2023 was formulated “under the threat of contempt”.
• With respect, we fail to understand such an argument. If we are to accept the same, it would be validating the untenable proposition that a judgment passed by a competent Constitutional Court is not binding on the parties and is otherwise liable to be flouted at will by them, unless a proceeding of contempt is initiated.
• The state and its instrumentalities are not favoured litigants, and decisions of courts are equally binding on them as ordinary citizens.
• The expression “threat of contempt” does not lend any validity to the argument that, unless there was no such threat, the administration would be at liberty to flout the direction.
• Threat of contempt or no threat, a judgment of a division bench of the high court is binding on the litigants, and the administration did not do a favour to the court by complying with the same.
• The victim mentality ventilated by the administration to justify their volte-face, after having permitted the previous division bench order to attain finality and having complied with the same, cannot be given a premium.

‘Law can’t form static monolithic behemoth: Order

• If the Union of India, acting through the central government, was aggrieved with the parent division bench judgment which gave rise to the contempt, nothing prevented it from preferring a challenge against the same before the Supreme Court with leave to prefer such a challenge, since it was not a party to the proceeding.
• Despite having definite knowledge of the proceedings, at least at the stage of sanctioning the A and N administration’s requisition for Rs 300 crore, the Union of India not only did not challenge the division bench judgment, but proactively acceded to it by approving the requisition of the administration in pursuance of the division bench judgment.
• The government placed much reliance on Umadevi, where it was clarified that those decisions which run counter to the principle settled in Umadevi or in directions running counter to what was held there would stand denuded of their status as precedents.

• The observation cannot apply prospectively, freezing the law laid down by the Supreme Court for all time to come, nor was it specifically held to be so, but can only apply to the judgments which held the field on that date.
• Judicial opinion, like legislation, evolves over time in consonance with the lived realities of society.
• A cryogenic approach, freezing in time forever the law laid down by the Supreme Court in a particular time and context, cannot be read into the law of precedents.
• The law of the land and its interpretations, whether it emanates from legislative or judicial sources, cannot form a static monolithic behemoth but must be dynamic, evolving with the times and the evolving mores of the polity.
• If the Constitution of India, which is the grundnorm of the entire body of law in the country, can be a ‘living document’, there is no reason why precedents cannot be.