Rajasthan High Court - Jaipur
State Of Rajasthan vs Krishna Kumar Saini Son Of Shri Nanag Ram ... on 10 November, 2021
Bench: Akil Kureshi, Rekha Borana
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Special Appeal Writ No. 603/2021
1. State Of Rajasthan, Through Secretary, Department Of
Local Self Government, Secretariat, Jaipur.
2. Director, Department Of Local Self Bodies, Government Of
Rajasthan, Jaipur.
3. Municipal Board, Navalgarh, District Jhunjhunu Through
Executive Officer.
----Appellants
Versus
Krishna Kumar Saini Son Of Shri Nanag Ram Saini, Aged About
43 Years, Resident Of Ward No.6, Mandi Gate, Nata Gali,
Navalgarh, Tehsil Navalgarh, District Jhunjhunu.
----Respondent
For Appellant(s) : Ms. Archana on behalf of Mr. Anil Mehta, AAG For Respondent(s) : Mr. Neeraj Kumar Bhatt HON'BLE THE CHIEF JUSTICE MR. AKIL KURESHI HON'BLE MS. JUSTICE REKHA BORANA Judgment 10/11/2021 This appeal is filed by the State Government to challenge the order of learned Single Judge dated 04.03.2021 in Civil Writ Petition No.763/2008.
The case has a checkered history. The respondent was engaged as a Safai Jamadar on daily wage basis on 01.04.1996. His services were terminated on 27.05.1997. He raised an industrial dispute and challenged his termination. The Labour Court passed an award in his favour on 24.02.2004 directing his reinstatement with continuity of service but without back-wages. The Department challenged this award of the Labour Court by filing the Writ Petition No.547/2005, which was dismissed on (Downloaded on 12/11/2021 at 09:32:58 PM) (2 of 8) [SAW-603/2021] 12.01.2006. Consequently, the workman was reinstated in service on 20.04.2006. Since then, he has been working continuously. He filed a fresh petition i.e. present Writ Petition No.763/2008 and sought benefit of regularisation. The learned Single Judge disposed of the writ petition by impugned judgment with following observations and directions:-
"6.Taking into consideration the aforesaid facts, this Court is satisfied that this writ petition deserves to be allowed and accordingly the same is allowed. The petitioner would be entitled to be regularized on completion of 10 years of service counting from 1996 however, as the petitioner was not granted backwages up to the award which was passed on 24.2.2004, no fixation shall be made before 2004. The pay fixation of the petitioner shall be done notionally from 2004 upto the date he joined i.e. 20.4.2005.The actual pay fixation shall be awarded and arrears thereof shall be paid to the petitioner. The exercise shall be done within three months henceforth. If the same is not done, the petitioner shall be free to file contempt proceedings without further notice. No costs.7.All pending applications also stand disposed of."
Learned counsel for the appellant contended that the petitioner was not covered under the scheme of regularisation framed by the State Government of which one of the requirements was that the employee should have completed ten years of service as on 10.04.2006. She submitted that even if by virtue of the Labour Court award his services are treated to be continuous on deemed position basis, he must be seen to have been retained in service through intervention of the Court order. Therefore, on the basis of the decision of the Supreme Court in the case of Secretary, State of Karnataka Vs. Uma Devi, (2006)4 SCC 1, he cannot be regularised in service.
On the other hand, learned counsel for the original petitioner submitted that tenure of the petitioner was not protected by court (Downloaded on 12/11/2021 at 09:32:58 PM) (3 of 8) [SAW-603/2021] order. All that the Labour Court did was to declare his termination illegal. Such declaration may have been made in the year 2004, nevertheless the same would relate back to the date of termination. Even otherwise the State Government has a policy of regularising ad-hoc or daily rated employees after putting in more than ten years of service. Many such worker have been regularized. The petitioner cannot be discriminated. Counsel for the petitioner relied on a Division Bench judgment of this Court in case of Jai Narain Vyas University and Anr. Vs. Mukesh Sharma (D.B. SAW No.347/2019), decided on 13.08.2021. He also relied on a Division Bench judgment of Tripura High Court in the case of Shri Basudeb Debnath and Ors. The Union of India and Ors., decided on 09.03.2021 and contended that the direction for considering the regularisation of the employees who have worked continuously for ten years without intervention of the Court as contained in the decision of the case of Uma Devi (supra), is not a onetime measure but a continuous exercise.
The facts on record would show that after initial engagement in the year 1996, the petitioner was terminated by the authorities about a year later. Such termination was challenged and set aside by the Labour Court in the year 2004. Actual reinstatement took place in the year 2006 when the Government petition was dismissed by the High Court. The retention of the petitioner on the original position therefore was by virtue of the intervention of the court order. This may not be a case where under the interim protection the person engaged is retained in service and the employer is prevented from bringing about termination.
Nevertheless, it was the Court order which declared the
termination illegal and which eventually resulted into
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reinstatement of the workman in service. Therefore, automatically the petitioner cannot claim the benefit of the judgment in the case of Uma Devi (supra). However, we cannot lose sight of the fact that after his reinstatement in the year 2006, there was no court embargo requiring the employer to continuously engage the petitioner in service. In other words, if the employer did not require his services, it was always open for the employer to bring about a legal termination by following statutory requirements. From the year 2006 onwards till date without there being any interim protection from any court, the petitioner has been continued as a daily worker.
In case of Jai Narain Vyas University (supra), the Division Bench of this Court noted the following facts: -
"As far as the argument with respect to the number of persons working in the University on contractual/daily wage basis is outnumbering the sanctioned posts in the University is concerned, Mr. Singh frankly submitted that services of the respondents-petitioners are being utilized by them without an exception which shows that there is sufficient amount of work to justify the appointment of the respondents-petitioners.
On a pointed query being raised to the counsel for the appellant, he submitted that no disciplinary proceeding is pending against any of the respondents-petitioners and their conduct is found to be satisfactory.
The argument of the learned counsel for the appellant-University of non-joinder of the State of Rajasthan as party respondent is noted to be rejected for the reason that in some of the cases, the State of Rajasthan has been arrayed as respondent. Even otherwise, it is the responsibility of the appellant-University to take necessary sanction/clearance from the State of Rajasthan for regularization of the respondents-petitioners as their services are being utilized in the University for almost 2-3 decades. The judgments relied upon by the learned counsel are clearly distinguishable on the facts of the present case as the similarly situated (Downloaded on 12/11/2021 at 09:32:58 PM) (5 of 8) [SAW-603/2021] persons have been regularized by the University and in other cases, this Court has already pronounced the judgments by various orders which have been affirmed by the Division Bench and also by the Hon'ble Supreme Court."
In view of such facts, the Division Bench upheld the decision of the learned Single Judge directing regularisation of the concerned employees. The decision in the case of Uma Devi (supra) was noticed in the said decision.
In case of Basudeb Debnath (supra), Division Bench of Tripura High Court referring to decision in case of Uma Devi (supra), in the case of State of Karnataka and Ors. Vs. M.L. Kesari and Ors. (2010) 9 SCC 247 and in the case of Narendra Kumar Tiwari and Ors. Vs. State of Jharkhand and Ors., (2018) 8 SCC 238, had observed as under:-
14. The decision last in the line which needs to be referred and which in the context of our facts is significant, is one in case of Narendra Kumar Tiwari and others vrs. State of Jharkhand and others reported in (2018) 8 SCC 238. It was a case in which large number of daily rated or contractual workers engaged by Government of Jharkhand had approached the High Court for regularization of their services. The High Court did not grant the relief in view of the regularization rules framed by the State of Jharkhand upon which they had approached the Supreme Court. It was argued that on the day when the decision in case of Umadevi (supra) was rendered, none of these persons had completed 10 years of service and, therefore, cannot be regularized. While allowing their appeal, it was observed that the decision in case of Umadevi (supra) was intended to put a full stop to pernicious practice of irregularly or illegally appointing dailywage workers and continuing with them indefinitely. It was for this reason that the concepts of one-time measure and cut-off date were introduced in the hope that the State would cease and desist from making irregular and illegal appointments and instead make appointments on regular basis. The Supreme Court thereafter, after referring to the decision in case of Kesari (supra) further observed as under:(Downloaded on 12/11/2021 at 09:32:58 PM)
(6 of 8) [SAW-603/2021] "7. The purpose and intent of the decision in Umadevi (3) was therefore twofold, namely, to prevent irregular or illegal appointments in the future and secondly, to confer a benefit on those who had been irregularly appointed in the past. The fact that the State of Jharkhand continued with the irregular appointments for almost a decade after the decision in Umadevi (3) is a clear indication that it believes that it was all right to continue with irregular appointments, and whenever required, terminate the services of the irregularly appointed employees on the ground that they were irregularly appointed. This is nothing but a form of exploitation of the employees by not giving them the benefits of regularisation and by placing the sword of Damocles over their head. This is precisely what Umadevi (3) and Kesari sought to avoid."
(emphasis supplied)
15. Culmination of the above decisions would be that the directions in case of Umadevi (supra) cannot be seen as providing a rigid cut-off date for applying the principle of 10 years of completion of engagement without Court intervention. Any such argument would give a complete license to the State and its authorities to continue to engage persons on casual basis and to refuse to recognize any of their rights even after decades of such engagement by citing the cut-off date referred to by the Supreme Court in case of Umadevi (supra). This has been duly explained by Supreme Court in case of Kesari (supra) and Narendra Kumar Tiwari (supra). In the present case, we may recall, many of these petitioners were engaged against sanctioned posts and clear vacancies long before the decision in case of Umadevi (supra) was rendered. Even after the Constitution Bench rendered its judgment in case of Umadevi (supra) in the year 2006, without any intervention from Courts all these engagements continued till June, 2017. Thus in some cases for over a decade after the decision in case of Umadevi (supra) this casual engagements continued. Curiously if the argument of the Government was that on account of the decision in case of Umadevi (supra) such engagements cannot be regularized, it would be a contradiction in term when the State made fresh engagements on casual basis long after the judgment in case of Umadevi (supra) was rendered. Subject to fulfilling the conditions provided in case of Umadevi (supra) as explained in later decisions in case of Kesari (supra) and Narendra (Downloaded on 12/11/2021 at 09:32:58 PM) (7 of 8) [SAW-603/2021] Kumar Tiwari (supra), these petitioners would deserve consideration for regularization.
16. Even those who may not qualify for regularization, cannot be disengaged after eliciting work from them for years together by citing a change in policy that henceforth such work would be outsourced. It may be open for the State to outsource some of its tasks but not by disengaging persons engaged since long and that too when the vacancies against which such engagements were made are still continued. As correctly pointed out by the counsel for the petitioners, in case of Hargurpratap Singh vrs. State of Punjab and others reported in (2007) 13 SCC 292 the Supreme Court had observed as under:
"3. We have carefully looked into the judgment of the High Court and other pleadings that have been put forth before this Court. It is clear that though the appellants may not be entitled to regular appointment as such it cannot be said that they will not be entitled to the minimum of the pay scale nor that they should not be continued till regular incumbents are appointed. The course adopted by the High Court is to displace one ad hoc arrangement by another ad hoc arrangement which is not at all appropriate for these persons who have gained experience which will be more beneficial and useful to the colleges concerned rather than to appoint persons afresh on ad hoc basis. Therefore, we set aside the orders made by the High Court to the extent the same deny the claim of the appellants of minimum pay scale and continuation in service till regular incumbents are appointed. We direct that they shall be continued in service till regular appointments are made on minimum of the pay scale. The appeals shall stand allowed in part accordingly."
Counsel for the appellant however placed reliance on the decision of the Division Bench of this Court in the case of State of Rajasthan and Ors. Vs. Zahiruddin and Anr. (D.B. SAW No.789/2014), decided on 13.11.2014. It was a case where the Court found that the employees concerned were subjected to screening for the purpose of regularisation. Some of the eligible (Downloaded on 12/11/2021 at 09:32:58 PM) (8 of 8) [SAW-603/2021] candidates were recommended for regularisation. The Government decided to fill up the vacancies through direct selection. It was in such background the Division Bench set aside the decision of the learned Single Judge who had directed automatic regularisation of the employees concerned. Reliance was also placed on the judgment of Supreme Court in the case of Union of India and Ors. Vs. Ilmo Devi and Anr., 2021 SCC Online SC 899, in which the workers concerned were engaged on part time basis and who had claimed benefits of regularisation as well as claimed wages on the basis of minimum pay scale prescribed for regular employees. It was in this background that the Supreme Court reversed the judgment of the High Court and allowed the appeal of the Union of India. Both these judgments were therefore on different facts.
The upshot of above discussion is that though the directions issued by learned Single Judge for regularising the petitioner notionally from the year 2004 cannot be sustained, nevertheless the Government cannot continue to engage the petitioner for decades to come and at the same time deprive him of the benefits of regular scales of pay and regularisation. The petitioner shall be regularised in service upon completion of ten years from the date of his reinstatement on 20.04.2006. He shall be paid notionally for the past period and actual difference in salary shall be paid prospectively from the date of this judgment.
With these modifications, the appeal is disposed of.
(REKHA BORANA),J (AKIL KURESHI),CJ
Kamlesh Kumar/N.Gandhi/9
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