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2006 DIGILAW 2147 (PNJ)

Tarsem Lal v. State Of Punjab

2006-05-16

JAGDISH SINGH KHEHAR, P.S.PATWALIA

body2006
Judgment J. S. Khehar, J. 1. The petitioners, 57 in number, are all holding a variety of posts in the Public Works Department, Public Health Branch of the State government. All of them came to be inducted into the service of the respondents in the eighties. Having rendered service as daily wagers for a number of years, the respondents considered their claim for regularisation unilaterally. All the petitioners were eventually regularised with effect from different dates in the year 2001. Two of the petitioners were, however, regularised in the year 2003. 2. Through the instant writ petition, the petitioners claim a mandate for regularisation on having completed three years of service after their induction into the employment of the respondents as daily wagers. This claim of the petitioners is based on the policy instructions issued by the State Government dated 23.01.2001 (Annexure P1 ). In so far as the aforesaid policy instructions are concerned, learned counsel for the petitioners has placed reliance on clauses (ii), (iii) and (iv) in paragraph 1 thereof. In our view, in order to understand the exact intent of the policy instructions, it will be necessary to cumulatively examine all the clauses of paragraph 1 of the policy instructions. Accordingly, clauses (i) to (iv) of the policy instructions are being extracted hereunder:- " (i) No new posts are ordinarily to be created to absorb and regularize existing work charged/daily wage and other categories of workers. Wherever the full circumstances of the particular situation warrant that new posts may be created, the case should be thoroughly examined, Finance Department should be consulted and approval of the CM should be obtained. (ii) Each Department may prepare a list of work-charged, daily wage and other categories of workers who have completed 3 years service and these lists may be updated from time to time. The lists should be prepared strictly as per seniority. (iii) Out of the lists prepared thus, workers should be absorbed/regularized only against regular posts existing in each Department. In the first instance work charged workers should be regularized in the order of seniority. Only when all eligible persons of this category have been accommodated, cases of daily wage and other categories of workers who have completed 3 years of service in the department may be taken up. In the first instance work charged workers should be regularized in the order of seniority. Only when all eligible persons of this category have been accommodated, cases of daily wage and other categories of workers who have completed 3 years of service in the department may be taken up. The basic idea is that workers belonging to a particular department should be considered for regularization only against available regular vacancies in that department. The claim of work charged/daily wage/other categories of workers for regularization will extend only against available vacancies in the department to which these workers belong. (iv) For accommodating work charged/daily wage/other category workers as per the above policy against the existing vacancies the existing instructions requiring permission of the dop and FD for filling up the vacancies would not apply. Wherever for the absorption/regularization of workers as per the above policy any Departments own Recruitment Rules come in the way, such provisions, of the Recruitment Rules will stand relaxed. " 3. Learned counsel for the petitioners referred to clause (ii) extracted above, so as to contend that employees engaged on work charged basis and daily wage basis, who complete three years of service, are entitled to regularisation. He has also placed reliance on clause (iii) so as to contend that the inter se seniority of those eligible for regularisation is to be regulated on the basis of the date of completion of three years of service. In sum and substance, it is the vehement contention of the learned counsel for the petitioners, relying on clause (iv) of the policy instructions, that all work charged and daily wage employees must be regularised on completing three years of service. It is asserted by learned counsel, that under the mandate of the aforesaid instructions it is not essential to obtain any permission in this behalf either from the Department of Personnel or from the Finance Department of the state Government. 4. We have considered the aforesaid contentions of the learned counsel for the petitioners. We, however, find no merit therein. A perusal of clause (ii) of paragraph 1 of the policy instructions, merely entitles a work charged/daily wage employee, who has rendered three years of service, to be placed in a list, so as to be considered for regularisation. Clause (iii) of paragraph 1 requires employees placed in the aforesaid list to be regularised against existing regular posts. A perusal of clause (ii) of paragraph 1 of the policy instructions, merely entitles a work charged/daily wage employee, who has rendered three years of service, to be placed in a list, so as to be considered for regularisation. Clause (iii) of paragraph 1 requires employees placed in the aforesaid list to be regularised against existing regular posts. It is, therefore, apparent that although work charged and daily wage employees are placed in the seniority list for the purposes of regularisation, their regularisation would depend on the dates when regular posts are available. This is also apparent from clause (1) of the paragraph in question, which clearly expresses that no new posts are to be created for the purposes of regularising employees under the instant policy instructions. 5. The second contention of the learned counsel for the petitioners is based on three annexures appended to the instant writ petition, viz. Orders dated 7.3.2002 (Annexure P4), 7.3.2002 (Annexure P5) and dated 7.3.2002 (Annexure P6), vide which a number of employees have been regularised under the instant policy instructions, although they had merely rendered 6 to 10 years of service, whereas the petitioners allege that they had completed approximately two decades of service. It is not possible for us to accept the instant contention of the learned counsel for the petitioners. In so far as annexure P4 is concerned, it relates to regularisation of Junior Technician (Boiler Attendant), Annexure P5 deals with regularisation of Junior technician (Electrician) and Annexure P6 is an order relating to regularisation of Junior Technician (A. C. Mechanic ). None of the petitioners belongs to the category of posts in respect of which the orders annexures P4, P5 and P6 have been passed. It is apparent that posts against which regularisation has been ordered vide Annexures P4 to P6, must have been available, to accommodate work charged/adhoc employees against the posts in respect of which the aforesaid orders dated 7.3.2002 were passed. In any case, it is not possible for us to accept the plea of arbitrariness or discrimination viz. the petitioners on the basis of Annexures P4 to P6 referred to above. 6. In order to press the issue of regularisation, learned counsel for the petitioners, placed reliance on the decision rendered by the Apex Court in District Collector/chairman V. T. Devenderpal Singh, 1999 (2) Services cases Today 292. the petitioners on the basis of Annexures P4 to P6 referred to above. 6. In order to press the issue of regularisation, learned counsel for the petitioners, placed reliance on the decision rendered by the Apex Court in District Collector/chairman V. T. Devenderpal Singh, 1999 (2) Services cases Today 292. The order of the Apex Court rendered in the aforesaid case is being extracted here:- "we have heard the learned counsel for the parties. These matters relate to regularisation and payment of wages to the respondents who were employed on daily wage basis. By the impugned judgment the Division Bench of the High Court, while affirming with modification the order passed by the learned single Judge has directed that all employees who have completed five years of continuous service should be considered for regularisation in accordance with the terms of g. O. Ms. No.212 dated April 22, 1994 and that they should be paid their wages at par with the wages paid to the permanent employees of that category. As regards payment of wages there is no dispute between the parties that the same have to be paid from the date of regularisation. In so far as regularisation is concerned, we are of the view that the High Court has rightly directed that on the basis of the Notification G. O. Ms. No.212, the respondent employees shall be regularised with effect from the date or dates, they completed five years continuous service. It is, however, made clear that the other conditions laid down in the said G. O. Ms. No.212 will have to be satisfied for the purpose of regularisation. The special leave petitions are disposed of accordingly. No costs. Ordered accordingly. " 7. Since the claim of the petitioners in the instant writ petition is not based on goms. No.212 dated 22.4.1994, it is not possible for us to accept the contention of the learned counsel for the petitioners, on the basis of the aforesaid judgment rendered by the Apex Court. 8. The next contention of the learned counsel pertains to the issue of release of retiral benefits, by taking into consideration the daily wage service rendered by the petitioners immediately preceding the date on which they were regularised. 8. The next contention of the learned counsel pertains to the issue of release of retiral benefits, by taking into consideration the daily wage service rendered by the petitioners immediately preceding the date on which they were regularised. In this behalf, it is conceded at the hands of the learned counsel for the respondents that the instant issue has been adjudicated upon by this Court in CWP No.16119 of 2003, wherein it has been held that daily wage service rendered immediately preceding the date of regularisation is to be taken into consideration as qualifying service for determining retiral benefits. It is, however, pointed out by the learned counsel for the respondents that against the order passed by this Court in cwp No.16119 of 2003, Petition for Special Leave to Appeal (Civil)bearing No.19003 of 2004 was filed by the State Government and the Apex court,we are informed, has stayed the operation of the order passed in CWP no.16119 of 2003. Since the instant issue relating to retiral benefits is subject matter of consideration at the hands of the Apex Court, we consider it just and appropriate to direct the respondents to redetermine the retiral benefits to the petitioners as and when the matter is eventually decided by the Apex Court on the disposal of Petition for Special Leave to Appeal bearing No.19003 of 2004. Ordered accordingly.