Research › Search › Judgment

Himachal Pradesh High Court · body

2013 DIGILAW 353 (HP)

Roopan Devi v. STATE OF H. P.

2013-04-26

A.M.KHANWILKAR, R.B.MISRA

body2013
JUDGEMENT R.B.MISRA, J. - 1. PETITIONER has prayed to quash impugned notice dated 12.12.2012 (Annexure P-4) whereby petitioner's service has been terminated with effect from 31.1.2013. In addition, petitioner has also prayed to allow her to continue working and to regularize her service like other similarly situated persons with all consequential benefits from the date others were allowed. Whether the reporters of the local papers may be allowed to see the Judgment? 1 2. THE petitioner has submitted that she was engaged as Sweeper on part time basis in the year 1996, on payment of Rs.800/- per month (subsequently enhanced to Rs.1000/- per month), under Deputy Commissioner-cum-Chairman Zila Bachat Vikas Avam Seva Samiti, Hamirpur. She was assigned duties vide order dated 18.1.2002 (Annexure P-1) and, as such, she has been discharging the same to the satisfaction of the authorities, however, when she prayed for regularization, instead of regularizing her service, she has been terminated vide impugned notice dated 12.12.2012 (Annexure P-4). Learned counsel for the petitioner has submitted that vide circular No.PER(AP)-C-B(2-2/97-Vol-IV dated 6th May, 2000, the State Government of Himachal Pradesh {Department of Personnel (AP-III)}, had issued a circular to all the concerned followed by another circular dated 9.6.2006, indicating the provisions made for regularization of daily wage / contingent paid workers, wherein the, incumbents, deployed as daily wage, having put in continuous service (with a minimum of 240 days in a calendar year) shall be considered for giving status of work charged category against vacant post or by creation of fresh post. 3. FOLLOWING arguments have been made for and on behalf of the petitioner:- (a) This Court on 28th July, 2010, while disposing of CWP No.2735 of 2010, (Rakesh Kumar versus State of H.P.), along with other batch of petitions, has been pleased to grant work charge status to several incumbents, deployed as Class-IV workers (Beldars), in work charge establishment after their completion of eight years of service. (b) In view of the decision of Supreme Court in State of Haryana and Another versus Saroj Bala and Others, (2007) 10 SCC 486 , the regularization of the incumbent in view of the policy of the State of Haryana was said to be justifiable. (b) In view of the decision of Supreme Court in State of Haryana and Another versus Saroj Bala and Others, (2007) 10 SCC 486 , the regularization of the incumbent in view of the policy of the State of Haryana was said to be justifiable. (c) In State of Punjab and Another versus Gurcharan Singh Kahlon and Others, (2007) 15 SCC 525, the Supreme Court did not interfere in the action of State of Punjab in respect of regularization of those incumbents, who had put in 10 years of service under a scheme, framed by the State of Punjab, as such, the regularization of the present petitioner may be made in view of the policy dated 6th May, 2000 and 9th June, 2006, of State of H.P. (d) In view of the judgment of Supreme Court in State of H.P. versus Gehar Singh, Latest HLJ 2007 (SC) 363, the regularization of daily wage / Muster Roll incumbents was said to be justifiable in reference to the policy of 6th May, 2000. (e) The Supreme Court (DB) in U.P. State Electricity Board versus Pooran Chandra Pandey and Others, (2007) 11 SCC 92 , has endeavoured to distinguish the applicability of Constitution Bench judgment of Secretary, State of Karnataka and Others versus Uma Devi and Others, (2006) 4 SCC 1 , by saying that the verdict of Uma Devi (supra) cannot mechanically be applied as the incumbents of Pooran Chandra Pandey and Others (supra) as daily wage employees of the Co-operative Electric Supply Society ('the Society') by virtue of putting more than 22 years of service had prayed for regularization of their services in the State Electricity Board which took over the 'Society'. (f) As per information, collected by her, under the Right to Information Act, the work of sweeping and cleaning was outsourced to M/s.R.K. and Company and since in addition to the petitioner, one person, namely, Shri Ashok Kumar, has also been working as daily wage Safai Karamchari, in Zila Bachat Vikas Seva Samiti. 4. ON the other hand, it has been argued, on behalf of the State, that the petitioner has not come to the Court with clean hands as the petitioner was not engaged in the year 1996 instead was engaged in the year 2001 and was only deployed as Sweeper on contractual basis temporarily on fixed honorarium of vide order No.HMR/SS- Rs.800/- Apptt/Cont.2001-678-80 dated 31.8.2001. The application of the petitioner for regularization was rejected as the services of the petitioner was not required in view of the circular No.Fin-F- (F)-(11)-11/2004-I dated 21st July, 2011 that the Government of Himachal Pradesh has decided to fill up the posts of Sweepers by outsourcing and to declare the cadre of this post as dying cadre in all the Government Departments. In the light of such policy decision, there was no necessity of the services of the petitioner, as such, the petitioner was not allowed to continue. Since the petitioner has stated that her service on her own service was terminated in view of the averments made in Para- Of the affidavit dated 4.4.2013, whereas, her service was terminated on 12.12.2012 and there was no occasion to allow the petitioner to continue in service Of Sweeper. It has very categorically been stated by the State that the petitioner's case is not to be compared with Smt.Meera Devi who was engaged on regular basis from the reserve quota Of Ex- Serviceman (War Widow) while Shri Sohan Lal was deployed as Chowkidar to look after the guests at Bachat Bhawan and not as a Sweeper and was regularized as Peon in the establishment Of Deputy Commissioner, Hamirpur and no person referred as Vijay Kumar was ever engaged as part time or on contract basis in the establishment Of the respondent. The above referred persons were in different categories, as such, the petitioner cannot claim equal treatment with such persons. As per the terms Of the deployment dated 31.8.2001, the initial appointment Of the petitioner was for three months with effect from 28.8.2001 to 27.11.2001 on the condition that her service could be terminated at any time without assigning any reason, as such, non-renewal Of petitioner's deployment and her termination is not illegal. 6. It has been submitted that the judgment Of Supreme Court in Saroj Bala & Others (as referred by the petitioner) is not applicable in the present case as that matter was remitted for fresh decision to consider the case if the incumbent was satisfying the conditions stipulated in the policy framed by State Of Haryana in the light Of the observations made in Uma Devi (supra). Also, in Gurcharan Singh Kahlon (supra) the Supreme Court did not interfere in the matter Of regularization by the State Of Punjab made under the policy framed in view Of the guidelines provided in Uma Devi (supra), as such, both the judgments are Of no help to the petitioner. Similarly, the petitioner cannot derive any help from the decision Of Gehar Singh (supra), as the work charge status only was granted to the daily wage / muster roll workers, whereas, the policy Of 6th May, 2000 has not been framed in consonance to the decision Of Supreme Court in Uma Devi's case (supra). 5. AFTER considering the verdict of Constitution Bench in Uma Devi (supra), the Hon'ble Supreme Court in State of Karnataka & Others versus M.L.Kesari & Others, (2010) 9 SCC 247 has observed as below:- "5. The decision in State of Karnataka v. Umadevi was rendered on 10.4.2006 (reported in 2006 (4) SCC 1 ): ( AIR 2006 SC 1806 : 2006 AIR SCW 1991). In that case, a Constitution Bench of this Court held that appointments made without fol- lowing the due process or the rules relating to appointment did not confer any right on the appointees and courts cannot direct their absorption, regularization or re- engagement nor make their service permanent, and the High Court in exercise of jurisdiction under Article 226 of the Constitution should not ordinarily issue directions for absorption, regularization, or permanent continuance unless the recruitment had been done in a regular manner, in terms of the constitutional scheme; and that the courts must be careful in ensuring that they do not interfere unduly with the economic arrangement of its affairs by the State or its instrumentalities, nor lend themselves to be instruments to facilitate the bypassing of the constitutional and statutory mandates. 6. This Court further held that a temporary, contractual, casual or a daily-wage employee does not have a legal right to be made permanent unless he had been appointed in terms of the relevant rules or in adherence of Articles 14 and 16 of the Constitution. This Court, however, made one exception to the above position and the same is extracted below (Para 44 of AIR) : "53. One aspect needs to be clarified. This Court, however, made one exception to the above position and the same is extracted below (Para 44 of AIR) : "53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa [ 1967 (1) SCR 128 ] : ( AIR 1967 SC 1071 ); R.N. Nanjundappa [ 1972 (1) SCC 409 ] : (AIR . 1972 SC 1767) and B.N. Nagarajan [ 1979 (4) SCC 507 ] : ( AIR 1979 SC 1676 ) and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant ...8... posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the courts or of tribunals. The question of regularization of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above-referred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularize as a one-time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date....." 7. It is evident from the above that there is an exception to the general principles against 'regularization' enunciated in Umadevi ( AIR 2006 SC 1806 : 2006 AIR SCW 1991), if the following conditions are fulfilled : (i) The employee concerned should have worked for 10 years or more in duly sanctioned post without the benefit or protection of the interim order of any court or tribunal. In other words, the State Government or its instrumentality should have employed the employee and continued him in service voluntarily and continuously for more than ten years. (ii) The appointment of such employee should not be illegal, even if irregular. Where the appointments are not made or continued against sanctioned posts or where the persons appointed do not possess the ...9... (ii) The appointment of such employee should not be illegal, even if irregular. Where the appointments are not made or continued against sanctioned posts or where the persons appointed do not possess the ...9... prescribed minimum qualifications, the appointments will be considered to be illegal. But where the person employed possessed the prescribed qualifications and was working against sanctioned posts, but had been selected without undergoing the process of open competitive selection, such appointments are considered to be irregular. 9. The term 'one-time measure' has to be understood in its proper perspective. This would normally mean that after the decision in Umadevi ( AIR 2006 SC 1806 : 2006 AIR SCW 1991), each department or each instrumentality should undertake a one-time exercise and prepare a list of all casual, daily-wage or ad hoc employees who have been working for more than ten years without the intervention of courts and tribunals and subject them to a process verification as to whether they are working against vacant posts and possess the requisite qualification for the post and if so, regularize their services. 10. At the end of six months from the date of decision in Umadevi, cases of several daily-wage/ad hoc/casual employees were still pending before Courts. Consequently, several departments and instrumentalities did not commence the one-time regularization process. On the other hand, some Government departments or instrumentalities undertook the one-time exercise excluding several employees from consider- ation either on the ground that their cases were pending in courts or due to sheer oversight. In such circumstances, the employees who were entitled to be considered in terms of Para 53 of the decision in Umadevi (AIR 2006 SC1806: 2006 AIR SCW 1991, Para 44), will not lose their right to be considered for regularization, merely because the one-time exercise was completed without considering their cases, or because the six months' period mentioned in para 53 (Para 44 of AIR) of Umadevi has expired. The one-time exercise should consider all daily-wage/ad hoc/those employees who had put in 10 years of continuous service as on 10.4.2006 without availing the protection of any interim orders of courts or tribunals. The one-time exercise should consider all daily-wage/ad hoc/those employees who had put in 10 years of continuous service as on 10.4.2006 without availing the protection of any interim orders of courts or tribunals. If any employer had held the one-time exercise in terms of para 53 (Para 44 of AIR) of Umadevi, but did not consider the cases of some employees who were entitled to the benefit of para 53 (Para 44 of AIR) of Umadevi, the employer concerned should consider their cases also, as a continuation of the one-time exercise. The one time exercise will be concluded only when all the employees who are entitled to be considered in terms of Para 53 (Para 44 of AIR) of Umadevi, are so considered. 11. The object behind the said direction in para 53 of Umadevi ( AIR 2006 SC 1806 : 2006 AIR SCW 1991, Para 44) is two- fold. First is to ensure that those who have put in more than ten years of continuous service without the protection of any interim orders of courts or tribunals, before the date of decision in Umadevi (2006 AIR SCW 1991) was rendered, are considered for regularization in view of their long service. Second is to ensure that the departments/ instrumentalities do not perpetuate the practice of employing persons on daily-wage/ad hoc/casual for long periods and then periodically regularize them on the ground that they have served for more than ten years, thereby defeating the constitutional or statutory provisions relating to recruitment and appointment. The true effect of the direction is that all persons who have worked for more than ten years as on 10.4.2006 (the date of decision in Umadevi) without the protection of any interim order of any court or tribunal, in vacant posts, possessing the requisite qualification, are entitled to be considered for regularization. The fact that the employer has not undertaken such exercise of regularization within six months of the decision in Umadevi or that such exercise was undertaken only in regard to a limited few, will not disentitle such employees, the right to be considered for regularization in terms of the above directions in Umadevi as a one-time measure." 6. IT is well settled that when rules, framed under Article 309 of the Constitution of India, are available then no regularization is permissible under the instructions or circulars issued under Article 162 of the Constitution. IT is well settled that when rules, framed under Article 309 of the Constitution of India, are available then no regularization is permissible under the instructions or circulars issued under Article 162 of the Constitution. The Constitutional Bench of the Supreme Court in Umadevi's case (supra), has observed that there is no fundamental right in favour of persons employed on daily wages or temporarily or on contractual basis to claim that they have any right to be absorbed in service as they cannot be said to be holders of a post. A regular appointment can be made only by making appointments in consonance to the requirements of Articles 14 and 16 of the Constitution. The claim by persons, employed on daily wages, to treat them equally and extend the claim for equal treatment with those who were regularly employed, cannot be granted. Subsequently, in M.L.Kesari's case (supra), after following the verdict of Umadevi's case (supra), Hon'ble Supreme Court has observed that appointments made without following due process or the rules relating to appointment did not confer any right on the appointees and Courts can neither direct their absorption, regularization or re-engagement nor make their service permanent and the High Court, in exercise of jurisdiction under Article 226 of the Constitution, should not issue directions for absorption, regularization or permanent continuance unless the recruitment has been done in a regular manner. The Hon'ble Supreme Court has very categorically observed in Paragraph-53 of Umadevi's case (supra), that Union of India, the State Governments and their instrumentalities may take steps to regularize as one time measure, the services of irregularly appointed incumbents, who have worked for ten years or more against duly sanctioned posts but not under cover of orders of Courts or Tribunals. Taking of such step of one time measure of regularization have been mentioned in Paragraph-6 of M.L.Kesari & Others (supra), however, such exercise was to be made within six months from the passing of the judgment of Supreme Court in Umadevi's case (supra). Taking of such step of one time measure of regularization have been mentioned in Paragraph-6 of M.L.Kesari & Others (supra), however, such exercise was to be made within six months from the passing of the judgment of Supreme Court in Umadevi's case (supra). In light of the observations made in Paragraph-9 of M.L.Kesari (supra), in order to undertake a one time measure, a list of all casual, daily wage or ad-hoc or contractual employees was to be prepared who have worked for more than ten years without the intervention of Courts or Tribunals provided that such employees were working against vacant posts and then their cases were to be considered for regularization, in view of Paragraph-13 of M.L.Kesari (supra). The case of the employees who have completed ten years' service, however, were not having educational qualifications prescribed for the post, at the time of their appointment, were to be considered for regularization in suitable lower posts. Hon'ble Supreme Court in State of Bihar versus Upendra Narayan Singh & Others, (2009) 5 SCC 65 , has not appreciated in giving directions to the State and its instrumentalities to frame scheme for regularization / absorption. This Court in Rakesh Kumar versus State of H.P. & Others, CWP No.2735 of 2010 decided on 28th July, 2010, has observed in Para-7 that question of conferment of work-charged status does not arise in such establishment which ceases to be a work charged establishment and in Rakesh Kumar (supra) the question of regularization of Class-IV workers (Beldars) was in question, whereas, in the present case the petitioner's appointment was only on part-time contractual basis, as such, the facts of Rakesh Kumar (supra) being different and distinguishable are of no help to the petitioner. The Circular dated 6.5.2000, and 9.6.2006 refer to regulation of daily wage workers / contingent paid workers considered against vacant posts or by creation of fresh posts and in both these events after obtaining prior approval of Finance Department of the State Government, whereas, in the present case, the deployment of petitioner was on honorarium basis as part-time / contractual basis, moreso, when in view of circular dated 21st July, 2011, the cadre of Sweeper was declared as dying cadre and the deployment to the post of Sweeper, was to be made by outsourcing, then no question arises for regularization of the petitioner. 7. 7. THE Hon'ble Supreme Court, relying on its earlier judgment, in M.Venugopal versus Divisional Manager, Life Insurance Corporation of India, Machilipatnam, A.P. & Another, (1994) 2 SCC 323 , has observed in Escorts Limited versus Presiding Officer & Another, (1997) 11 SCC 521 , that non renewal of the contract of employment and termination of the service of the workman, as per terms of employment, does not amount to retrenchment. In the present case also, the deployment of petitioner was for a specified period initially for three months and in terms of appointment dated 31.8.2001 the petitioner's service could have been terminated at any time without assigning any reason. For reference Para-4 of Escorts Limited (supra) is extracted as below:- "4. We do not consider it necessary to go into the question whether the workman had worked for 240 days in a year and whether Sundays and other holidays should be counted, as has been done by the Labour court, because, in our opinion, Shri Shetye is entitled to succeed on the other ground urged by him that the termination of services of the workman does not constitute retrenchment in view of clause (bb) in Section 2(oo) of the Act. Clause (bb) excludes from the ambit of the expression "retrenchment" as defined in the main part of Section 2(oo) "termination of the services of the workman as a result of the non-renewal of the contract of employment between the employer and the workman concerned on its expiry or of such contract being terminated under a stipulation in that behalf contained therein". The said provision has been considered by this court in M. Venugopal v. Divisional Manager, LIC. The appellant in that case had been appointed on probation for a period of one year from 23/5/1984 to 22/5/1985 and the said period of probation was extended for further period of one year from 23/5/1985 to 22/5/1986. Before the expiry of the said period of probation, his services were terminated on 9/5/1986. It was held that since the termination was in accordance with the terms of the contract though before the expiry of the period of probation it fell within the ambit of Section 2(oo)(bb) of the Act and did not constitute retrenchment. Before the expiry of the said period of probation, his services were terminated on 9/5/1986. It was held that since the termination was in accordance with the terms of the contract though before the expiry of the period of probation it fell within the ambit of Section 2(oo)(bb) of the Act and did not constitute retrenchment. Here also the services of the workman were terminated on 13/2/1987, as per the terms of the contract of employment contained in the appointment letter dated 9/1/1987 which enabled the appellant to terminate the services of the workman at any stage without assigning any reason. Since the services of the workman were terminated as per the terms of the contract of employment, it does not amount to retrenchment under Section 2(00 of the Act and the Labour court was in error in holding that it constituted retrenchment and was protected by Sections 25-F and 25-G of the Act." 8. THE Circular dated 6.5.2000, followed by another circular dated 9.6.2006, have not been issued by way of policy, in consonance to the verdict of Hon'ble Supreme Court in Uma Devi's case (supra), as such, the relief prayed for by the petitioner cannot be granted by this Court. This Court (DB) also on 11th April, 2013, while deciding CWP No.2336 of 2009, titled Dr.Anjana Thakur & Others versus State of H.P. & Others, (along with other writ petitions) has not allowed the regularization of the private respondents in view of two different circulars issued on 9.9.2008 only and communication dated 8.6.2009 issued by way of executive instruction that too not issued in consonance to the settled position of law in Uma Devi (Supra). In view of aforesaid analysis, we are not inclined to issue any direction regarding staying muchless setting aside the notice / order Annexure P-4 dated 12.12.2012. The writ petition is accordingly dismissed, so also the pending application(s), if any.