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2015 DIGILAW 1873 (RAJ)

Dhakeli v. State of Rajasthan

2015-11-05

VEERENDR SINGH SIRADHANA

body2015
JUDGMENT 1. - Aggrieved of the order dated 1st December, 2011, declining her representation for regularisation, the petitioner has instituted the instant writ application, praying for the following relief(s):- "(i) by issuing an appropriate writ, order or direction in the nature thereof and thereby quash and set aside the impugned order dated 01.12.2011 (Annexure 5) passed by respondent No.2; (ii) by issuing an appropriate writ, order or direction in the nature thereof and thereby direct the respondents to regularise the services of the petitioner. (iii) by issuing an appropriate writ, order or direction in the nature thereof and thereby direct the respondents to grant semi permanent status and permanent status with effect from 1973 and 1981 to the petitioner with all consequential benefits; like arrears of pay, promotion, selection scale etc. (iv) by issuing an appropriate writ, order or direction in the nature thereof and thereby direct the respondents to award the interest on arrears of pay @ 18% per annum to the petitioner. (v) any other appropriate order or direction which this Hon'ble Court may deem fit and proper in favour of the petitioner may kindly be passed with cost." 2. Briefly, the indispensable skeletal materials facts essential for appreciation of the controversy are that the petitioner who was initially appointed as 'daily wage employee' in the Mukhiya Krishi Gram Anusandhan Krya Rashtriya Vistar Farm, Sewar, District Bharatpur, successfully assailed termination of her employment for violation of provisions of Industrial Disputes Act, 1947 (for short, 'Act of 1947'). For the Labour Court, Bharatpur, made an award on 31st October, 1994, for reinstatement with continuity of service and all consequential benefits. It is pleaded case of the petitioner that the award was upheld by this Court as well as by the Hon'ble Supreme Court. Amendment was effected in the Rajasthan Various Service (Amendment) Rules, 2009 (for short,'Rules of 2009'), vide notification dated 8th July, 2009 to provide regularisation to such temporary employees who had completed ten years or more service on or before 10th April, 2006, without intervention of any Court or Tribunal and were continuously working as such on the date of commencement of these Amended Rules. The writ application instituted and registered as SBCWP No.5791/2010; was disposed off on 23rd April, 2010; with a direction to the petitioner to address a representation to the respondents for consideration of her case for regularisation, in view of the Government Notification dated 8th July, 2009. 3. In compliance of the order dated 23rd April 2010, having considered the case of the petitioner, her request for regularisation has been declined for she did not complete ten years of service on or before 10th April, 2006, without any intervention of any Court or Tribunal. 4. Learned counsel for the petitioner, Mr. Manoj Bhardwaj, reiterating the pleaded facts and grounds of the writ application vehementaly argued that the action of the respondents, in declining regularisation to the petitioner even after she had put in a service of about 40 years, is absolutely illegal, arbitrary and unreasonable as well as in total defiance of service law jurisprudence and the law declared by the Apex Court of the land. Referring to the opinion of the Hon'ble Supreme Court in the case of Secretary, Haryana State Electricity Board v. Suresh & Ors.: AIR 1999 Supreme Court 1160 ; learned counsel urged that the petitioner was reinstated in compliance of the award made by the Labour Court but she has been still continued as a daily wage employee. The successful assailment of an illegal action of the respondents before the forum provided under the Act of 1947 and consequent reinstatement cannot be construed to be an intervention by the Court or Tribunal. 5. The learned counsel further added that the petitioner, who had been working with the respondents for almost 40 years, could not have been denied regularisation and consequential benefits for such an action would be absolutely arbitrary and in fragrant violation of the mandate of Article 14, 16 and 21 of the Constitution of India as has been observed by the Hon'ble Supreme Court in the case of N.S.K. Nayar & Ors. v. Union of India: AIR 1992 Supreme Court 1574 . 6. In response to the notice of the writ application, the respondents have filed their counter affidavit pleading that though the petitioner has been continued in service but she was not working against any sanctioned post. v. Union of India: AIR 1992 Supreme Court 1574 . 6. In response to the notice of the writ application, the respondents have filed their counter affidavit pleading that though the petitioner has been continued in service but she was not working against any sanctioned post. Referring to notification of the State Government dated 8th July, 2009, it is contended that the notification is not applicable to the case of the petitioner for the petitioner did not complete ten years of service on 10th April, 2006, without intervention of any Court or Tribunal. 7. Ms. Manju Joshi, appearing for the State-respondents supporting the impugned order, declining regularisation to the petitioner, and reiterating the stand in the counter affidavit emphasised that the employment of the petitioner was put to an end in the year 1991. Though the action was successfully assailed, as would be evident from the award made by the Labour Court, Bharatpur, vide order dated 31st October, 1994, but the petitioner was reinstated in compliance of the award and is still continuing as daily wager. 8. Referring to the pronouncement made by the Hon'ble Supreme Court in the case of State of Rajasthan & Ors. v. Dayalal: 2011 (2) SCC 429 ; it is asserted that in view of the principles propounded, on a survey of earlier opinions of the Hon'ble Supreme Court, the claim of the petitioner for regularisation, cannot be sustained. 9. I have heard the learned counsel for the parties and with their assistance perused the materials available on record as well as gave my thoughtful consideration to the rival submissions at Bar. 10. Indisputably, the termination of employment of the petitioner was successfully assailed by her raising an industrial dispute under the provisions of and before the forum provided under, the Act of 1947. The Labour Court, Bharatpur, vide award dated 31st October, 1994, held the termination of the services of the petitioner illegal and invalid for violation of the provisions of Section 25-F of the Act of 1947, and made an award for reinstatement with continuity of service along with back wages. 11. The respondents instituted SBCWP No.1035/1996, challenging the legality, validity and correctness of the award made by the Labour Court, Bharatpur, dated 31st October, 1994. 11. The respondents instituted SBCWP No.1035/1996, challenging the legality, validity and correctness of the award made by the Labour Court, Bharatpur, dated 31st October, 1994. The writ petition was dismissed vide order dated 23rd May, 1996, holding thus:- "An award was passed by the Industrial Tribunal on 31st October, 1994, by which the workman was given benefit of reinstatement with back wages. An application for setting aside the award was made which was dismissed on 9th November, 1995. the ground that It was found that the petitioner had not cared to appear on the date fixed. No case for interference by this Court under Article 226 of the Constitution of India is made out. The writ petition is dismissed." 12. The intra-court appeal preferred by the respondents against the order passed by the learned Single Judge of this Court on 23rd May, 1996, was also declined, holding thus:- "Award of the Industrial Tribunal dated October, 31, 1994 was assailed by the appellant before the learned Single Judge by filing writ petition. Learned Single Judge vide order dated May, 23, 1996 dismissed the writ petition on the ground of negligance of the officer-in-charge of the appellant. The said order of the learned Single Judge has been assailed in the instant appeal. Having heard the submissions, we find no merit in the instant appeal. The respondent workman has already been reinstated. Resultantly, the appeal stands dismissed without any order as to costs. The interim order passed during the pendency of the appeal shall stand automatically vacated." 13. In the case of Dayalal and others (supra), the Hon'ble Apex Court of the land while referring to earlier opinions including the pronouncement made by Constitution Bench in the case of Secretary, State of Karnataka & Ors. v. Uma Devi (3) & Ors.: (2006) 4 SCC 1 , under paragraph 12, while dealing with the issue of regularisation and parity in pay, held thus:- "12. v. Uma Devi (3) & Ors.: (2006) 4 SCC 1 , under paragraph 12, while dealing with the issue of regularisation and parity in pay, held thus:- "12. In spite of this scheme, there may be occasions when the sovereign State or its instrumentalities will have to employ persons, in posts which are temporary, on daily wages, as additional hands or taking them in without following the required procedure, to discharge the duties in respect of the posts that are sanctioned and that are required to be filled in terms of the relevant procedure established by the Constitution or for work in temporary posts or projects that are not needed permanently. The right of the Union or of the State Government cannot but be recognised and there is nothing in the Constitution which prohibits such engaging of persons temporarily or on daily wages, to meet the needs of the situation. But the fact that such engagements are resorted to, cannot be used to defeat the very scheme of public employment. Nor can a court say that the Union or the State Government do not have the right to engage persons in various capacities for a duration or until the work in a particular project is completed. Once this right of the Government is recognised and the mandate of the constitutional requirement for public employment is respected, there cannot be much difficulty in coming to the conclusion that it is ordinarily not proper for the Courts whether acting under Article 226 of the Constitution or under Article 32 of the Constitution, to direct absorption in permanent employment of those who have been engaged without following a due process of selections as envisaged by the constitutional scheme." 14. On being queried by the Court, learned counsel for the State-respondents could not point out as to under which of the exception Clause; the case of the petitioner could be declined for regularisation. The counsel made an effort to impress upon the Court, in the backdrop of Clause-2, to justify the impugned action and order of the respondents, in declining regularisation to the petitioner. From the counter affidavit it is indiscernible about the appointment of the petitioner with reference to sanctioned post. The counsel made an effort to impress upon the Court, in the backdrop of Clause-2, to justify the impugned action and order of the respondents, in declining regularisation to the petitioner. From the counter affidavit it is indiscernible about the appointment of the petitioner with reference to sanctioned post. Neither the number of sanctioned posts has been indicated nor any verifiable material has been placed on record so as to sustain the plea of engagement not being against any sanctioned post rather her engagement for a period of almost 40 years raises a presumption of availability of work and vacancy. The petitioner has been unnecessarily dragged into litigation again and again. 15. Be that as it may, a glance of Clause-2, as observed by the Hon'ble Supreme Court, would reveal that those were the cases wherein the litigant was allowed to continue in service while pending the adjudication of the matter. In the instant case at hand, where the petitioner successfully assailed the illegal action of the respondents in terminating her employment in violation of the mandate of Section 25-F of the Act of 1947, cannot be construed to be an intervention of the Court or Tribunal so as to decline her case for regularisation on the pretext for she did not complete service of ten years or more. Her case is not covered under the phrase "litigious employment" and there was no intervention of Court or Tribunal while she had been in the employment of the respondents. 16. No other point was raised for consideration of this Court by either of the parties. 17. For the reasons and discussions here in above, the writ petition succeeds and is hereby allowed. 18. The respondents are directed to consider the case of the petitioner for regularisation and ensure compliance of this order within a period of one month from the date of receipt of a certified copy of this order.Writ Petition Allowed. *******