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2004 DIGILAW 1354 (RAJ)

Roshan Lal Jat v. State of Rajasthan

2004-09-17

SUNIL KUMAR GARG

body2004
Honble GARG, J.–This writ petition under Articles 226 and 227 of the Constitution of India has been filed by the petitioner against the respondents on 7.1.2002 with the prayer that by an appropriate writ, order or direction, the impugned judgment and award dated 21.11.2001 (Annex.7) passed by the respondent No. 2 Judge, Industrial Tribunal and Labour Court, Bhilwara be modified to the extent that the respondent No. 1 State of Rajasthan be directed to regularize the services of the petitioner on the post of Store Munshi or equivalent post. (2). It arises in the following circumstances: The petitioner was appointed with the respondent No. 1 Department on daily wages basis vide order dated 24.8.1987 in Work Charge Establishment. The case of the petitioner is that from the date of his initial appointment i.e. 24.8.1987, the work, which was being performed and done by him, was of Munshi-cum-Bill Clerk, but however, the grade prescribed for Store Munshi was not given to him and instead he was being paid the salary meant for the post of Beldar/Helper. Thereafter, the petitioner raised industrial dispute and the State Government vide Notification dated 19.7.1995 referred the industrial dispute to the respondent No. 2 Labour Court, Bhilwara on the point whether not giving of pay scale of the post of Store Munshi to the petitioner with effect from 24.8.1987 was proper and valid or not. Thereafter, both the parties submitted their respective claim before the respondent No. 2 Labour Court, Bhilwara. After hearing both the parties and after considering the entire materials and evidence on record the respondent No. 2 Labour Curt. Bhilwara through impugned judgment and award dated 21.11.2001 (Annex.7) came to the conclusion that since the petitioner was performing and doing the work of Store Munshi from the date of his initial appointment i.e. 24.8.1987, therefore, he was entitled to the salary of the post of Store Munshi and thus, reference was answered in favour of the petitioner and the respondent No. 1 State of Rajasthan was directed to give the pay scale of Store Munshi to the petitioner with effect from 24.8.1987. Now, the main case of the petitioner is that since the respondent No. 2 Labour Court through impugned judgment and award Annex.7 dated 21.11.2001 has come to the conclusion that the petitioner was entitled to the pay scale of the post of Store Munshi from the date of his initial appointment i.e. 24.8.1987, therefore, the respondent No. 2 Labour Court should have also decided that the petitioner was also entitled to regularisation of service on the post of Store Munshi with effect from 24.8.1987 and since that aspect was not decided, therefore, modification of the impugned judgment and award Annex.7 has been sought in this writ petition or this matter be examined independently. A reply to the writ petition was filed by the respondent No. 1 State of Rajasthan in which it was submitted that since the matter of regularization of services of the petitioner on the post of Store Munshi was not referred to the respondent No. 2 Labour Court, therefore, that matter was rightly not considered by the respondent No. 2 Labour Court and furthermore, that matter was beyond the jurisdiction of the respondent No. 2 Labour Court. Hence, no case for interference is made out and this writ petition deserves to be dismissed. (3). I have heard the learned counsel for the petitioner and the learned counsel for the respondents and gone through the entire materials available on record. (4). Before proceeding further, it may be stated here that so far as the plea of the petitioner that the impugned judgment and award dated 21.11.2001 (Annex.7) passed by the respondent No. 2 Labour Court, Bhilwara should be modified on the point that directions be given to the respondent No. 1 State of Rajasthan to regularize the services of the petitioner on the post of Store Munshi from the date of his initial appointment i.e. 24.8.1987 is concerned, in my considered opinion, since that aspect was not referred to the respondent No. 2 Labour Court, therefore, if no order in respect of regularization of services of the petitioner on the post of Store Munshi w.e.f. 24.8.1987 was passed by the respondent No. 2 Labour Court, in doing so, no illegality or irregularity has been committed by the respondent No. 2 Labour Court. Hence, impugned judgment and award Annex.7 passed by the respondent No. 2 Labour Court do not require any modification by this Court under Articles 226 and 227 of the Constitution of India. (5). However, the question is whether in the facts and circumstances of the case, on general principle, the petitioner is entitled to regularization of service on the post of Store Munshi with effect from the date of his initial appointment i.e. 24.8.1987 or not. (6). In this respect, the learned counsel for the petitioner has placed reliance on Sub-rule (10) of Rule 25 of the Rajasthan Subordinate Offices Ministerial Staff Rules, 1957 (hereinafter referred to ``as the Rules of 1957), which was added through Notification No.F.3(56)DOP/A-II/84 dated 12.10.1992 and it reads as follows:- ``(10) Notwithstanding anything contained in rule 7, all persons appointed as LDCs on adhoc basis or on daily wages basis during the period from 1.1.85 to 31.3.90 and are still working as such on the date this amendment comes into force shall be appointed on regular basis on availability of vacancy subject to the condition that they pass a performance test conducted by the head of the department concerned within a period of three years in accordance with the syllabus prescribed in part-IV of Schedule-I. Such persons shall be allowed three chances to pass the said test to be availed within a period of three years: Provided that if a person fails to pass the said test in three chances to be availed within a period of three years, he shall be liable to be removed from services. (7). Apart from this, in a welfare State no one either in Government or private sector can escape the attainment of constitutional obligation of regularization of casual workers provided such engagement is made to (i) job of permanent and perennial nature, and (ii) there is express or hidden intention of the employer to camouflage this through intermediary. (8). There are dicta of the Honble Supreme Court that if an ad hoc or temporary employee is continued for a fairly long spell, the authorities must consider his case for regularization provided he is eligible and qualified according to the rules and his service record is satisfactory and his appointment does not run counter to the reservation policy of the State. (9). (9). The above principle would also be applicable in the case of casual workers engaged on daily wages basis. (10). Keeping in mind the above legal position, the facts of the present case are being examined. (11). In the present case, there are clear cut findings of the respondent No. 2 Labour Court that since the date of his initial appointment i.e. 24.8.1987, the petitioner was being performing and doing the work of Store Munshi in the Department of respondent No. 1 State of Rajasthan and the respondent No. 2 Labour Court through impugned judgment and award Annex.7 has granted the pay scale of the post of Store Munshi to the petitioner w.e.f. 24.8.1987 and thus, a legal right had accrued in favour of the petitioner to claim regularization of his services. (12). It may be stated here that if there is a valid policy decision by the Government to regularize ad hoc employees, then such employees have the right to enforce the same by approaching the court and for that, sub-rule (10) of Rule 25 of the Rules of 1957 would come to help to the petitioner. (13). Before concluding the order, it is made clear that it is well settled law that persons appointed temporarily on ad hoc basis or casual or daily rated workers or stop-gap appointees do not have any legal right to hold any post, but that rule has one exception and the same is that if the adhoc/casual/temporary appointments were made against sanctioned posts and the policy of adhocism is followed for a long period without filling up those posts on a regular basis then the Court will interfere and the case of the petitioner is covered by that exception as he was regularly doing or performing the work of Store Munshi and he was given regular pay scale of the post of Store Munshi through impugned judgment and award Annex.7 passed by the respondent No. 2 Labour Court, Bhilwara. (14). (14). For the reasons stated above, the impugned judgment and award dated 21.11.2001 (Annex.7) passed by the respondent No. 2 Labour Court, Bhilwara do not require any modification by this Court under Articles 226 and 227 of the Constitution of India, but on general principles, the petitioner is entitled to seek directions to the respondent No. 1 State of Rajasthan to regularize his services on the post of Store Munshi from the date of his initial appointment i.e. 24.8.1987, if otherwise he is found suitable in all respects. Accordingly, this writ petition is disposed of in the manner that the respondent No. 1 State of Rajasthan is directed to regularize the services of the petitioner on the post of Store Munshi from the date of his initial appointment i.e. 24.8.1987, if otherwise he is found suitable in all respects, within a period of six months from today. No order as to costs.