Central Administrative Tribunal - Mumbai
Chunilal Ramji Solanki vs M/O Home Affairs on 10 October, 2023
OA, No. 4a6/ecan. CENTRAL ADMINISTRATIVE TRIBUNAL SIUMBAILBENCH, MUMBAL ORIGINAL APPLICATION No, 436 of 2018. Order Reserved on GS" "March, 2033. oN Re tae aed Order Pronounced on 10° Getoher, 2624, Hon'ble Justice Shri. MiG. Sewlikar, Member () Hea'ble Dr. Bhagwan Sahai, Member (A) i, Chonilal Rarmji Solanki, Son of Rami lamba Solanki, date of buth: 05.03.1975, age 43 years G6 months, working as: Village PanchayatSecretary ( Group "C*) post, in 'Block Develop ment "ise Dr 362820 and residing at: 251 Main Raad. Saudawadi, Village-Saudawadi-Din, Fost-Diu, Tasluka-Diu, Yistio-Din, Pin Code-362570, Union of Territory of Daman and Diu. oy &. Rajesh Lali Damania, Son of Lalll Nethu, date of birth: OLOG 2986, age: 32 years 07 months, working as: Vilage Panchay atSeeretary ( Group "CS post, in Block Development Oce ENu-362520 and residing at: 2533, Near Bus-Stand, Vilegs-Dangarwadi, Bost-Diu, Teluke-DNu, Districe-Dia, Pin Bots is > ? ws Code-362571, Union Territory of Daman and Diu. ~Applicants (Min RG. WwW alia, Advocate} VERSUS i. Union of India~ though The Administrator, Union ef Territory of Diu, Daman and Dadara & Nagar Haveli, Secretariat Mati Daman, Pin Code 396320. 2. Collector & Secretary (Panchayat) UT Administration of QD mman & Diu, Calleetorate hola, 1 Moti Daman. Pin Cade. Tod OA No.g36yao28, 396220, 3. Secretary (Personnel) Department of Personnel & Administrative Reforms, Ground Floor, on Fort Area, Mot) Daman, Daman (UT) Pin Code: 396220. (Dr. VS. Masurkar, Advocate) Per : Hon'ble Justice Shri. M.G. Sewlikar, Member (3) ORDER
The issue Invelved in this OA is whether the applicants who were engaged on daily wages/contract basis deserve to be regularized, 1.1. Pacts in nutshell are that there were 10 village panchayats in existerice in Daman and Diu. The Administrator created 04 new Village Panchayats in Daman and Diu vide notification dated 26" May, 2005, In this OA, we are concerned with 02 Village Panchayats by the name of Saudwadi and Zolawadi. Proposal was submitted to Ministry of Home Affairs on 06" August, 2007 for creation of 04 posts of Village which also included Saudawai and Zolawadi, both in [Nu. 1.2. On 13th March, 2006 the respondents issued an advertisement to All up 02 posts of Village Panchayat Secretary in Villaze Panchayat Saudwadi and Zolawadi, Applicants applied for the said post. Afier slearing the selection process both the applicants came to be appointed . vide order dated O7th October, 2005. This order was issued by Collector, Diu on approval of the Administrator, Daman. Both the apnlicants were appointed on daily wage basis and since then they have oN served as Villege Panchayat Secretaries for about 12 years. The applicants were recruited after following all procedures. Therefore, thelr entry in Village Panchayat was legal and not a back door entry. The applicants made various representations to the respondents for regularization of their services. However, they have not been regularized, They have been discharging duties of a reg ular Village Panchayat Secretary. Their services have been utilized for activities 'election agriculture census Le. the duties performed by a regulae Village Panchayat Secretary. On 30th March, 2013, the applicants had made repres sentations for their reeula rzation. Again an 28th December, 2015, they made another representation. However, none of the representations were replied. It is further contended by the applicanis that the respondents published ar advertizement on [éth May, 2018 for filling up 10 posts of Village Panchayat Secretary including the posts of Village Panchayat Secretary of Saudw adi and Folawadi. The applicants have therefore, Med this OA conlending that GA. No, 436 /20i18.
their service need to be regularized and they need to be made =] permanent. They, therefore, sought the relief that the bmpugned advertisement dated 18th May, 2018 be restricted to 08 posts and the advertisement be quashed and set aside to the extent of O2 posts and also they are seeking directions to regularize their service from the date of their intial appointment as Village Panchayat Secretary with all consequential henelits.
L.3. Respondents filed their affidavit contending therein that the applicants were appointed by the District Panchayat for dis scharing the duties of District Panchayats and, therefore, they cannot be regularized as employees of UT administration. Their appointment order dated O7th October, 2006 clearly stipulates that they will net be treated as Goverment servants and will not be entitled to any casual leave or leave of any other kind. The wages 0 fthe applicant will be paid under the budget head 2515-Non Plan, Other Rural Development Programme 1O1- Panchayati Raj, 09- Establishment. In these circumstances, this 'Tribunal has no jurisdiction to entertain this OA. 1.4 The nature of recruliment through advertisement dated T3th March, 2006 was non-permaneni/non-regulan, Ht was a stop gap arrangment only till regular appointment of Village Panchayat | Seeretaries was made, At the time whes the advertisement dated [3th 'March, 2005 was published, pasts of Village Panchayal Secretary in Village Panchayat Saudwadi and Solawadi were not ereated, They were created in the year 2012. The applicants were in z regularfcontinuous service of the respondents. Their uniitial appointment was for a period of 88 days followed by a gap afat least Q2 days. Thus, there ars numerous breaks in their service. LS Thelrappointment order clearly mentions thai the applicanis s will not be entitled to any holiday except those national/state holidays and ahelp service is Hable to be terminated at any time without any prior notice. They contended that applicants were appointed only after personal interview, There was no ¥ written test for them, which is a yardstick for regular pasts. The advertisement qandates that the candidates will pass w wineneeinll: ation in addition to an interview by a departmental selection committee, according to the recruitment rules The essential qualifications also Inchule the certificate or diploma in a pumputer course for a period of three months from a reputed institute, which was not there in the advertisement dated 13th March, 2006. They selection was not made against sanctioned posts because the posts Were created on O9th Jume, 2012. The applicants were not appointed by following proper procedure. Therefore, their claim for regularization cannot be entertained. They therefore, prayed for the a 16, Applicants filed their rejoinder. No new point has been raised in the rejoinder and, therefore, we do not deem it appropriate te reproduce the same.
1.7. By the order dated 19th September, 2018, this Tribunal granted interim relief to the applicants and directed the respondents to fill up OS yacant posts of Vilage Panchayat Seeretary pursuant to the impugned advertisement dated 18th May, 2018 and Q2 posts be kept vacant 1.8. We heve heard Mr. BUG. Walia, learned counsel for the applicants and Dr. VS, Masurkar, learned counsel for the respondents. LO. Mr RG. Walia, learned counsel forthe applicants submitted that the appointment of the applicants was against sanctioned posts. They continued in service since the date of appointment Le. O7th October, 2006 ull the date of filing of this OA Le. forabout 12 years. A Selection Committee was formed, The applicants appeard for the written test and sed oy Ad Nos agh/2 2038, aller competing with other candidates, they were selected. Therefore, the applicants were appointed by following due selection process. Therefore, their appointment cannot be termed as a back door entry. Therefore, they are entitled to get the benefit of the decision of Supreme Court in the case of Secretwrp, Stare of Karnataka & Ors. wv. Unurdew (3) {2006} 4 8CC 2). The applicants rendered their service honestly and sincerely. They have been performing all the duties of a reguiar Village Panchayat Secretary and is fact much more than the regular Vilage Panchayat Secretary The applicanis had made representations for their regularization but those have besn rejected, He submitted that the applicants, even if they were appointed on daily wages/contract basis, sanction was subsequently received on 09th January, 2012 but the respondents did not All up the post immediately bul continued the employment of the applicants thi [8th May, 2018, This shows that their appointment was agninst sanctioned posts and, therelore, their services need io be reguarlized. For this purpose he placed reliance on following cases {i} hendene Narsing Chinchwade & Ors. Vs. State of Maharalistra & Ores, 2098 SCC Online 462.
genet 8 NN 3 Court Cases 65.
OA, Na. 33 en soak,
(ii) Nihal Singh & Ors Vs. State of Panjab & Ors, (201 3) 24 Supreme fill) State of Karnataka & Ors. Vs. MLL. Kesari & Ors. 2010) 9 8CC fix) Narendra Kamar Tiwart & Ors, Vs. State of Iharkhand & Ors, (2018) § SCC 238.
(i) 4anarkant Rai Vs. State of Bihar & Ors, (2015) 8 Supreme Court Cases 2658.
fiv) Sri Basudeb Debanth & Ors Vs. The Union of India & Ors, HP (C) No. 1162018, Hish Court ed Tripura, decided en 09th Marcit, 2028, 2, Dr VS. Masurkar, learned counsel for the respondents contended that this Tdbunal has no jurisdiction to entertain and try thi OAas the applicants were engaved by District Panchayat and they were appointed on ad hoo basis. They do not hold a civil post in Union of India, Thelr appointment order clearly mentions that the applicants will not be treated as Government servants. They will not be entitled to any casual leave or leave of any other Mad. They will not be entitled to any holiday except national or state holidays, which have been declared as OA No. ¢ug/eord, paid holidays for casual workers and their service is liable to be
2) terminated without any prior notes. The appointment order clearly mentions that they were appointed on daily wage basis for Village Panchayat Saudwadi and Zolawadi. Hs further submitted that their wages were paid under the budged head 2515- Non Plan, other Rural Development Programme, 1[01-Panchayat Raj, O9-Establishment, which indicates that the applicants are not Government servants and, therefore, this Tribunal carmot entertain this OA. He flrther contended that the apolicants cannot get the bene! of the decision of Supreme Court in the case of Usaederf (supra) as on the cut off date the gx applicanis did not comrplete 10 years of servipe as envisaged in the decision of Supreme Court in the case of Umadevi ( supra). The applicants were appointed on O7th October, 2006, therefore, their service cannot be regularized. He further submitted that the FS appointment of the applicants was llega al and no proper procedure was followed at the time of their appointment. Only interviews were conducted, As per rules, written examination is a must and therefore, their appointments cannot be said to be regular but it is Mlegal. He further submitted that the applicants are shying away to appear for the selection process pursuant to the advertisment dated Leth May, 2018 40 O.A. No. qg6/2eu8.
because they do not have the requisite qualification. Therefore, their : services cannot be regularized, He further submitted that when ths advertisment is only for a ad hoc/temporary post, the service of the employees cannot be regularized unless posts were advertised as fi) Union Public Service Conmission Fs. Girish Jayanti Lad Faghela and Others, 2006 Supreme Court Cases (1.8.8) 339.
(i) Union of India and Others Vs, All india Trade Union Congress wad Others, 2019 (4) SLR 416 (8.3 fii) Mrs. Seema Bansal Vs. University ef Delhi and Others, 2017 (6) SER 77 (Delhi).
* 2.1. We have carefully considered the submissions made by the learned counsels for the respective parties. 2.2. After the judement was reserved on 08 the March, 2023, we called for the relevant records on 10" July, 2023. We again heard the parties on 03 38 August, 2023, 2.3, Since the issue of jurisdiction has been raised, we deem it appropriate to take up this issue first before adverting to other issues. 32.4. tis the contention of the respondents that the applicants were SIs, a = fe Ne. gad, Le res er a ry 4B Ane genet Pea] : | 4 | "4 rae i a3 "4 E 2 : a pnd oa a] 35 ae a5 a & a a & aa mg :
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2.5, Dr VS. Masurkar, learned counsel for the respondents placed reliance on the case of Girish Japentilal Vaghela( supra) for the proposition that the applicants were not the Government servants.
2.6. In this decision of the Supreme Court, Girish Jayantilal Vaghela r 1996 on ne (respondent) was appointed as Drags Inspector in the short term contract basis on a fixed salary for a period of 06 months, ; } His appointment was renewed after every 06 months with short breaks and it continued for over OS years. An advertisement was issued by UPSC for making regular selection on the post of Drugs Inspector, In para 12, Supreme Court on the basis of these facts observed thus:
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fet oo os Dm C "3 ws oe % pon west teoth q 4 ay ay Be ms oe Aga ~ et <a Go 4 as na out se whens Etees est aa oe is woes heh . o 2 7 "3 ' hove a eA o in en. ee aS eS wos ssdocs hes 7% pened . base os "Fh op G oa i oa oo oS mi ro on bas § OvA No. g26faow, the relevant rules governing the conditions of service af DOrngs inspecs fore in the Union Territary of Daman and Lun had selected Aim. Hix conteeetuel cppoint sem for six mORAS Was ae sh oes ihe rules. The appointee wes rot anade fn @ nummer which could even re} mately b pe! saisd to be CON Apia Bee ath tale 26 GF ihe Corstitndian, The appointment being purely contractual, the stage of geguyr "ing ihe status ef a gevernment servant had not urrived IFAe working as a contractual employee * Haipondent é was met governed by ihe relevant service.
Fa rales anplicaile io Drres Inspectan He did not enfay the ee ay availing casual or earned leave, He wax noi entil ed to avail the bene wit of venesal provident fund no wes Ae entived fa any pence witht ape soryntad piciden! of @ governniens s . lari Ae conta neither be places wnder S18 sper naion entiling dum fo @ 8s sspension allowance nor could he be gray peer red, Some a) Prhe minor penalties witch can he inflicted on a governiient servant while he caniinves fo be in governivent serpics contd Nat be fagposed upan Alot nar wax fe enti led ff Gay sratention under Article 311 of the Constitution. in view of ies jeutures Hf is not possi de do hold thai Respondent J was a government Servant 2.8. In the case of Girish Jayanti Leal Feohele (supra), the appointment was not made by following proper procedure. Hs was appointed as Drugs Inspector without any advertisement, without there a being any rules governing the conditions of the service of the Drug i + " Inspectors. His contractual appointment for 06 months was de hors the rules. This is not the factual situation in the case al hand, 2.9. On perusal of the record, itis seen that in the notesheet dated 01° June, 2007, it is stated that departmental selection committee was formed. This note further shows that for these village panchayats Le.
a8 Saudwadi & Zolawadi departmental selection committee was formed interviews on 27" September, 2006 and the applicants were selected in the said interview. This clearly shows that proper selection FAs $8: fs ATT yess RLS ce ge ge Sy get yee es. gh Rat nek vexex procedure was followed. The record further shows that proposal wa ox © oe forwarded in the year 2006 itself for ersation of 02 posts of Village Panchayat Seoretaries. Advertisoment was issued on 13° March, 2006 for Alling up the post of two Village Panchayat Secretaries, Thus, the selection committee fixed the criterion of personal interview. Though, ow itis contended in the affidavit of the respondents that the advertisement mentions that written examination followed by interview will be conducted, the advertisement produced at Anmex-? belies this an contention of the respondents, Sr. No. 04 of general conditions in the Pay adverlisement clearly stipulates that the date of personal interview shall red be informed to the eligible candidates by post and alse notice will be wee fee of the displayed on notice board af the of a ae' B 53 ee?
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Ef + a ae vg A cae jo th yesh & tr produced to show that holding af examination was mandatory. In this view of the matter, itis clear thata selection commilttes was formed. It had prescribed the criteria for selection Le. holding of personal infervieey for judging inter se merits ofthe candidates. Section 27 of the Vilage Panchayat Regulations authorises the Administrator to 2 OA No. 436/a038, erate the past of Village Panchayat Secretaries, The appointment order hg 3 dated 07 October, 2006 shows that it was issued with the prior approval followed while appointing the applicants is belied by their own notesheet dated 19" April, 2012 in which it is stated that the applicants were selected after selection by the departmental committee. Though, the initial order of appointment of the applicants shows that they w i not be treated as Government servants but subsequent appointment orders show that these clauses were removed. The order of appointment of the applicants dated 24" May, 2013 reads thus:
"The Development Camorssioner'Pinance Secretary and Head of Departownt is hereby pleased to anpoint the following candidates fo fhe post of Mulage Panchayat Seeretary under Shari fernt Contract basis fer @ period if nentloned aguinet each official ar HH the post is Aled xp on regular basis whichever ty earlier on fved monthly amaunt af 22, UOO5 Twelve Thousand ory) B.A. | Se |Neone af the eandidate & | Place of Posting | Perted af | Ne Desionarlon. Contract jor 6 ERE Pos ¢ ¥ HE PSE.
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Nae This is issued with re concuerence and ¢ approval of ihe Fiance SOOPeIRE Desuen and Diu videy hiv note dated 06- OS-2083 30° Gi lad
--_ Such type of orders have been passed after every OG months ull the date of Gling of this OA. THis order clearly shows that the respondents are treating the applicants as Government servants. The clauses in the initial order dated 7° March, 2006 that they will not be treated as Government servants, they will not be entitled to casual leave or leave of any other kind, etc, are conspicuously absent In the order dated 24° March, 2013. They are Hable to transfer in Village Panchayats. Therefore, this clearly shows that the respondents treated the applicants as Government servants after 24" May, 2013. Therefore, the contention of the respondents that this Tribunal has no jurisdiction to entertain this QA cannot be accepted, 3.2.. The contention thet the employer of the applicants is a local authority and therefore, this Tribunal has no jurisdiction is to be rejected because it is the local authority under Union Territory administered by the Central Government. The advertisement was issued hy the Collector and not by any officer of the Panchayat. 3,3. Now, we shall take up the issue of regularization of the services Blo, wa 4, a Penis a8 OA. No. 4356/2018, of the applicants. Almost identical situation had arisen in the case of Vandana Narsing Chinckhwade (supra). In that case, the petitioner. were functioning as Instructors in the Industrial Training Institute UTD ~ called upon to appear before the selection committee for the purpose ofinterview. After holding interviews, petitioners were found eligible $ my and were issued letter of appointment in the month of June 2606, Their ate claim was that they were finctioning as Instructors since 2006 without x any ifervention of court orders. Subsequently, sanction was received > for this post on 30" July, 2009. Bombay High Court in para 5 held thus:
dx winw of fhe Judgments referred to abeve the question of seeniarization af servic es af sueh employees can Ag considercd tn the Hehe a ihe proposition sedled iy the Suereme Court in ike cases refernsa' fo above. Thus the divectian isgned by we Katy the Supreme Court in the matter of Uinadev! Gupra) to the sche Goverment aud their insirwmentaliies 18 a fhey should tuke steps fo regularize as @ one-time measure, ihe services af such irregularly appointed, who have worked for ren years or Rose br duly sanctioned posts but not mide cover oF arders of fovders ay courts ibunaly and ah mond further esisure thal regular recridiments dre widertaken Bus 'COR SGNCHONET POSts that require fe Ae filled up, tn case where -- tenip sorare eaiplopers are being new emplayed alse shall be adhered. The process ough? to have been set in motion within six months Jeon the date of fadgient in Uoadevt. if shall bg appropriate aa reproduce fhe 'observation of the Supreme Cour iy ie matter of ite State of Aarmataka & Ges. Vs. MU. Kesert & Ore reported dn 20008) SOC 247, wherein the Supreme Court has onalyeed the Jvections insued earlier In the matter of Chnadevi and Rave observed in paragraphs 25 * and & as guoved below:
sciton in State of Raraciaka x. Unadceyt was rendered on 104.2008 (reported ; 066 (4 SCC YD. fa that cuss, a ConsGitign Benol oy pi Cogn held tias appointments mane without sodlowine the dhe process or the rules relating fo nuolnmnent did nor Cony ee ight an ihe appalntees and cours caod alrsct thegr absorgtion, vesidarizarion ap acemen! wor make Melt Servics permanent and ger High Comet is exercise of dele 228 af ihe Constitution shoid sot ordinarily issue directions ties x : jon zeuier A Ssurpiion, ragnlorization, or permanent cantimuwice nnlesr the peoriibient dial heen OA No, uf pte eR TOES arrangement of WERMT 2e y Carnet father i Yn a 3 err rurng that hey do nat interfere 1 aad eyagen : tiie ental Te ayer Pasayd giver aby ; fereé Hales rMe Se aE PRUNSEIVES. fo Be GE a Fre.
permanent les heh axed bean a 3 wa to Re abo Puearier ARS SES ES e % $ * . mee ace + sop oh hve COANE fe wore FO a PeORY OF HOPE DE Wout f infaunals, The spiastlo ion of veeudarigwion nf oe cons! flere ef ogy Pe TEY 8 ihe Hehe af the heen am tae inter the services principles s } dio andds ihe pile Juscignrest. context, tha {onde ai" Jad s "he Stare Gaver ibe ae Pas anolh regu anes bat Net :
the rg e iheanis are undertaken to 7ne & sentinel a fa Be ars ate Baler Row amd: age ch The +b FAR ND Sates."
ones Hare mein dee fe Gere sh a. dfds evident fron fhe above that there is am ts the ¢ general print NE reaguierination' eskaciated in Uinadey), he floes a oonditinns are fulfilled:
f The wae ve concerned Shoal? Aave worked for PO seus or more ie duly sanctioned pant awithou! fhe Genef? or protection af the atari a pager cs aw ' Sour or FANE RON :
service yoluniarily aa conte sate susie foranore flag step sribaread, in he er RAD bra a the emploped ond conti gf LOMAS OP RS + Where COS The aupalermnd of seh 8 amiplovie who Tere inating nats wre vot sedale or CORTE : Ey EAE ERES.
he persan eeployed possesyedl ihe Hen anal wens wanting' pears. By fan heer ee dae che provers of nen & eon epee five :
todos irregnlan FES Pe comsiele :
Umadari casis a duty upon die concerned Ga BV EPRRREN ar fnsirumentahh regudanice die seniors of Mare recor z thavrse eee ye ars witht the ek ai OF Be protect & The objet behind fy said direction in para SS 2 ay MUfmodes? is heo~ fois ig eniure that those yey Atove peal dee m TPE eae invreans ofes Tat iRE DS Le SEY profection.of any liberia orders re the date ug af Omadert wae rendered, are concer 1d} ter ane Hon fn pine oP vidle Second is to ensure that the deparines Y penpetwane:
af employing PAP VONT OF Galb- wage aia Joasnal, ifn Jong pert sods and then paris reeularion them an gis seawad Moy i jor sore dhan fen years, (ereby fs he OLA No, 436/20r8.
relating 89 eeorudimenf and prone whe fore worked! for sions the preteevon of et x.
8 ae | Ce adel withoat . SE 104 2066 Ge.
aeerime OF order raf "apty BOHN GPR GGA, sh 2 RHE Ree Nae, is oo: SiS, she Fe aie nat ae af regular anteant wae Ra cetoken oH ra & id Heites .
igere RN J as ones 3.4. In the case at hand also the applicants were appointed on temporary basis. Subsequently sanction was received for those posts af village p nehavat secretaries. They have completed 10 years of service es yee Sh a patass, ihe : amtrrtagh ¢ . and, therefore, they are entified to be regularized. 3.8. Ds VS. Masurkar, learned counsel for the respondents tnied ta this authority contending that the pasts WOES Th and their appointment was not on permanent basis but for a temporary s ok i duration. We do not approve of this submission. The facts in the case of bendese Narsing Chinch wade (supra) clearly indicate that sanction was received after the appointment of Vandana Narsing Chinchwade & 3,5. in the case of Aanarkant Rai (supra) facts were that Amarkant vost as might guard on daily pe 1983 by the Principal, Ramashray Bales hwar College. The prince fat nS 0.4. Ne. gaG/aor8, recommended absorption of Amarkant against G2 wacant posts. a Gang, Amarkant had worked for 29 years on daily wages. In para 13 it has been held thus:
PQ wee ihe dopeliant although inidaliy working against erianndes ad post, the appellant was working continuously since 3-1-2003 aeainst sanclianed i post. SHICR there is no mete sled pk aced on record regarding the details whether any other aiede guard § wus apoolied against the sanctioned posi, in the facts and olvcuniutances of Ike care, We Gre wnt lined ta awaril monetary benefits to be paid fiont £-J-2070.
3.7. Relying on the judgement of dawrkent Rai (supra) & Narendar = Kumar Tiwari {supra} Tripure High Court granted regularization. In paras @ to [5 held thus:
"e Havieg said fiat ao mnall window | consideration of regularisation was depi open when parageaph-S3 fof SCC) the Supreme Court made following obser eashons:
on ine aspect nesds fo bo clarified. rare nay De cases where leregular a Pp cintmentis {rot appointments} ax explained ta SK Na SPE aMRapnd
- :
FAIR 1867 &C Tt Th AN Nan fundappa PUGID) f SCC 409) and BN Nagarajan | 1979) 4 SCE 5072 and referred ia in para 2S above, of duly qualived persons in duly sanetioned vacant pasts might have been piade anil the: engl : ey nay ee forufued £0 Work e uatervention af 'orders of the & ourts or » if reibuoncl. The question of resularisation af the services of suck ample yeas may ts fa the lade of the have fe be considered on wer! Be principles settled hy ihiy Court in she cases above referred 1p and in ihe an af this Fredsomant, Jy that tet fdy er tps Padittee obyerret. step She Ed oe and their instru tte al ifies. should fake sfigos io : eee ~ ety: $3 POS ee eepeeet eee eye ag edarive cx qurnetine micasure, the services of suci eal af fie.
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fhawd aes serge ay Elie ~ aeP ~ & rs fend ae O48. No, 4a6/se8, The ratio in Umnedew! case (suped) was explained as under: ee fo gydotes = wt Pho Foss ae it fs evident om the abave thot there is an A exception fa fhe sonal peitncip! Hes against rularisaiion" eaunclated fa Umadevt (4) 2 {f2006) £ SCC I): if the following conditions are fill ile en @ The empfovee concerned should have worked for 70 vears ar mere it duly saneliansd post without the benefit or projection Of the interba order of any cour oar eiiynel de offer ex ras the Stare Government or Us insieumentaliiy should fate employed the enplovee aad cantinugd AlN In servic yolumarly and continuously for more Han en YeONs, a fhe appeintment of such emplavee should not be legal, even if irregular Where the apnoin Pmenes are Nal made or continued Hest sanciigned pasts or where Ihe persons ape dao not possess the ae cpibed arifenon qualifications, the appointments if be cansidered to he Hiepal. Bul where ihe person employed possessed the prescribed gualifications and was werking deainst sanctioned posits, but had been selected without undergoing the process of epen competitive selection, such appoiutotenis are cousidered ta be irregular." (emphasix supplied) di, thereafter ater referring to the expression "one-
Hine Mearnre * peo by Supre pie Count in case of Umadori Supra}, 1H was jurther observed as nner:
"yy te abject baht au site e said eh a ' HCH OS oa % who have put in more rhea MTEM MEGPY 6 "of cont SINGH service withent tie profection af any intert gars ay COUPES cH svibaevtads before fe date of decision in Uinederi G) was rendered are considered for regularisation in view of thelr lone service. Sec ond is " : io ensure dat the departnen piaias yiladities do nat perpetuare dhe practice of emploving persaxs On ie g "
= 4 dailywaserad Nawenrsy a basis J Jone perieds and then periodically reoularise them on the ground that they Aave served for sure Mion fen Years, thereby defeating the canstlutional or statrtary provisions relating to recruits nent ahd appointment The true:
éffzet af the direction is that all personas who save worked for mare fhun fen years as.on 70-4-2006 the date of decision in pnadewt {3 Ui without the x i protection. of any isterun order of any court or fe oe Looe vA ong omy 4 Boo SE a Re ss By mh
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Bed cee J SE og Boe Ree Tg ae Achy cd 'wee tee Py A tee ae aed tae ee ue, :. eee ' ea: ad ey ah OE OE Nak bre ae een ple: "Be pe ph Og ' yy ase a on Be oy eh ey ee ae Wie eae ae oe, BE bg ne og = Bg ae ie Te PD apse hak Meo ce ' BR ; Es ey Se ee OE Face oe bane Sua oe toate, *: : : Te ts Bote ee = * om ms P ea eo Be RE ay OR, oy. Sh ee : = Fen, om one < angen cu: a x SA oe baa bd ee + ' a hein s gy im. 'eet ec a ss et x " "es ; ir Eso bd BS : ba oe : a4 va Mey i. "5 2 oe sth ae bad 2 oe is, ey Mak Prd zee 2 Bag Nak ' bey me, a SE ang t as pon a ee ed rs *, 3 SOD ee ee an, a, % wt con ere S z my Pee Po Cy ae Me a) et fons Sc SEE a ay pes gent Bigg ng Be Mi ace fot < he & ee Ke : ae s Pon "eS ty ie OY Sigs 2 a * P ah Sk Sy Bowe ls Se ems 4 ho eee. Sete ae ae : Be z foo yee AEE ee pee me fee cad Ea Bey oS ton, we ES ek in 5 - a Na 'te ey & a om ec, se os Se ty te, sa tn Be & ee » % Boa eee ie his eae mS a S, aE cs a Moen Nod: 5 ss ad ee 3 1 a oar bod iz ei, re Be a tg : ca os, $e as mot, « & BUS Boe es he mn S ee ie td y he ees le 3a SE ROR tn a se PS wt Sg ad we oe tee ORE a EM & Set sad Rie sgt md Boos ss 3 Fen, Sn ei ot) S es, : Wee ae io ~ a fe Ae yi ob ? ma ed $ a: % ome , Cs . oo : a nd : ; ' : te te BE ll ' a Sn wm Hae ba Mace: ard Rome «BB Pe ae 4.
Poy me os Be oy. ete a ae hy ae a ae , Re oe a ye = th ay RE coarse me Bp tet ke Ge aeeee es BA ES ay Beet es, 4 hy ae i ; me a Z a eet eo ra ae me, , pad ce . pa Sa ae er jg Beg San 4 oS nee i) aa) wee oe wage Ig Rp. oo me a Sa oe oe wee ene on sed Pn at 7 og % tee DE Pac: ny " 2 a 3 ee and s Prats, tense = a ae ae oN x 7 bed Phen 'eng. ed " eon ays fs, bos 'see ond err Yew, to ton, Mn a pime OTROS tae OE Be Gee ee, 25. oad er hire ee eS? = So ee te iar a Ga RE ' z : "tas Tg Vie ES OB ee Pap Bee EE SER et ae & Cad ss tne ee oS "se ES ba SS oo a GN , era' ee Be Dene e oa Se ae .
sf Boe Sop te OS roe os OR = & ee Rie Nab fink: & . <5 aes we, Siac ic Sa ¥ ~ a. at Be ee a os © Sg oe ceed a Ro Ee hg St Se aR "pa Boe ORR OE oe Pied a ee a et ey See ORS ed Ok cae' ae ae OE ce hen os tee RE Ba eae, tw SS oe ME reg Bo eae Oe TE ER 'eh x wit Sas oS ea Re Be oy Me st Py ty Thee Be Soe Ro oy ee, eile Rtn ge Plc Vana BE ys pe wes Soy wy oD on ee ee & 't a Ee oe ae ga Sa a me ORS inte 2 td. Goes ' a ccs Sony 'Pere pa OR ee pe SE os age rol B Sona RE, B Be Bib Fue eH % Be BE RE ES 4 see 'Se ag eR we, 'aa ; «Be fee ae heed reg: woot ape fee teh tr, Se a ae ae, sj eae os, en a Seed, % 4 as 4 % % % Eat keener?
ae ar € a FEN PAIS OI) & vy Seale oy ae € in i eG Mihaad and offers reports if é Sate of fk ; OA No. 46/2028, contracta! WOEREAS engaged hy Government of Jharkhand had ay proached th Ene High Court jar regularisation of thelr sermices, The High Court did nat grani dhe relies in view of the regulafization rules framed dy the State of Jharkhand "pon which they had approached the Supreme Court. if was argued thet on the day when ihe decision in case af Umader! (supra) was rendered, nane af these persons hud completed 9 eases of service and therefore, carol be reeularised' Nile allowing their appeal, owas observed iN Case ort fmadevi (supra) was infende sé pre iar the decision in fo put a fidl stop fo pernic fous practice af irregudarly ar ilepally anpotatine dai Jos "wage wonders aad contiaulag = Se pone ofotiegioi: FF pe . rae with then indefiwieie 2 wus for Hus reason fat Bre ceuNoRpiS of ane-five om easure aad cuba? dale were introduced in the Rope that the sould cease and desist Jram making regular ond dlegal appolaint ents ane tr paadeened ra make aopotumenty on recede thereaflen ajler referring fo the decision incase of Kesuri "eh 8 2 (PRPs a) frthe ar GbServe INdeP, *% Phe purpose and intent of the decision in Upadevi (3) was Merefore twofold, samely, ta prevent irresular or illegal appoininienis gt te future and secendiy, ta confer a benefit on these whe ded been feregalarty appointed in the past. The fact that the State a af Jharkhand continued with the irrevular appointments for alovwast a decade after the decision in Uynadevi (3) is a clear indication that if believes that way all right fe continue with irreguiar appointments, and svrenever required, terminate ihe services ef the irregularly appointed emiployees on the ground Nat they were irregidarly appointed, This is nothing but a form of exploitation of the employees by nol giving them the benefits of vepularivation and by placing the sward of Damocles over their head. This is precisely what Umades! G) and Kesari seught te. aveld." (epipRasis supplied) fey Cubaination of the above devisions would bé that the directions in case af Uniadevi (supra) canned be seen as providing a right cut-off date f jar aopliine the principle ay iO years of sampletian af engagement without Caurt Tpferyerniorn A ihe euch arommen would give @ coniplele Reense fe thre é and [8 authoril fe 2 10 CORTINNE tg BARI persons ax casual hasis and te refuse to recognize aay af OAL No A8G/oois.
thelr Niehts even avi She & EOL Paare re of sugerement by ¢ ae : Y ante lowrt In cas Unudevi (suprad. This hay beer peaplatned by Sup Court fx ease of Resart Aeinkes ee ond Narendra Kuainar PB war (SOP) ocsc cece cee a ike ace oo y a8. Vhus, this decision of THouwa Yh of date cannot be restricted. Therefore, arguments af Dr VS, Masurkar, Jeamed counsel for the respondents cannot be accented that alter the cut off date the servines of the casual workers cq: muiot be 3.9. In the case of duand Kewmar Yoda (supra), relied on oy the leamed counsel for the respondents, the teachers were appointed as Shiksha Mitras. They did not possess minimum qualification, not even BTC qualification under 2001 Rewulations, nor were they ay panied 2 x against sanctioned posts. Therefore, thelr regularization was re deeted, O4. In the case at hand, the rex sponde eats could not show that the applicants did not possess the requisite qualification. On the contr ay their proposal dated 19° April, 2012 for regularization of clearly shows that they fulfilled the necessary qualifications. Clause of the proposal states that proposal for eng: agement of O2 Village Panchayat Secretary is made in accordance with the exist ng Recruitment Rules only. This proposal further states that the applicants Vite...
wwe, renee, ed xo) OQAONG gaG/ans, namely Solanki Chunilal Ramji and Shri. Damania Rajesh Lalit | working in this office are very punctnal, sincere and hard working and efficient in their duties. This clearly shows that they fulfilled all the requisite qualifications for being appointed as Village Panchayat Secretaries. It is not known whether this proposal was accepted or rejected. Therefore, the decision in Anand Kumar Yadav (supra) docs not apply to the facts of the instant case. 4.1 Inpara 13 inthe case of Union af india and Others Fs, AU India Trade Union Congress and Others (supra) Supreme Court held thus:
CFs Phar wer ofso a case where te Union of workers neppely *Forrak Labois Union" had claimed a relief af resularization of the services of the casual workers who were oeorkiag in BRO for @ considerable perio' in CORRE UCHR activities undertaken by BRO in the State of Assder The Union af workers, fier awe, led a wiitpetan against the Union of dudia in the Gauhati High Court. The High Court allowed the writ petition and directed the Union ar "Tnelier to reeularize fhe services of all auch casual WOPREES cece ees 4.2. Inthe case of Unlen of India and Others Vs. AN India Trade Union Congress and Ogiers (supra), appointment made was not in terms of the process envisaged by the relevant rules. In the case at hand, as indicated above, apgointment of the applicants was in of relevant rules.
s x, :
bord gong SO ORT os fea R OLA Re g8O/eoin.
$3. The case of Mrs. Seen Bansal (supra) is also not applcable to i in hand because in that case petitioner had not filed advertisement to show that sho was appointed aginst permanent past.
in the case at hand, subsequent fo the appointment ef the applicants, wy sanction for the posts was received and their appointment was still aaatinned we ave Theretnea Secdeeme of fhe deetosnmer continned for a periad of 05 vears. Therefore, in terms of the Judgment J of Supreme Court in the case of Anrarkasd Sof (supra} and judament
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of Bombay High Court in the case of Mendana Narsing Chinchiwade {supra}, the applicants are entitled to be regularized. 4.4. In-view ofthe above, applicants were appointed after following due process. Therefore, their appointment was legal. Their appointment was not a backdoor entry,
45. In ight of the above discussion, it is clear that even if it is accepted for the sake of the argument that the applicants appointed against unsanotioned posts, thelr service was continued ever _ after sanction to the post was received on 00° January, 2012. In terms of the judgment in the case of daverkant Rei (supra), the applicants deserve to be rogularizes xt eem it appropriate te allow CA De. 4346/2018 and direct the respendents to regularize the services tha oo OA Nos 436fa08.
of the applicants from the date when they completed 10 years of their engagement on contractual basis Le, OF October, 2016 with all consequential benefits from 67 Getober, 2016. Pending MAS. if any, stands closed. Record be returned to the respondents forthwith. (lustige MUG. Sewlikar) Member G3} (Dn Bhagwan Saray -
Member {A} i ?
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