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Rajasthan High Court · body

2016 DIGILAW 442 (RAJ)

Jai Kishan Sharma v. Rajasthan Housing Board

2016-03-18

MOHAMMAD RAFIQ

body2016
ORDER : Mohammad Rafiq, J. 1. This writ petition has been filed by petitioner Jai Kishan Sharma, inter alia, with prayer that order dated 25.04.2012 (Annexure-4) be quashed and set aside and, by issue of mandamus, respondents be directed to regularize his services on the post of Lower Division Clerk in regular pay scale with all consequential benefits from the date his juniors, namely, Shri M.K. Goyal, Shri Purshottam Jadiya and Shri J.P. Sharma, were regularized. 2. From the facts averred in memorandum of writ petition, it appears that the petitioner was appointed on the post of Accounts Assistant against substantive vacant post with effect from 06.04.1987 on consolidated monthly salary of Rs. 500/-. His services were however terminated by respondents with effect from 31.01.1988. An industrial dispute was referred to the Labour Court, Jaipur, at the instance of petitioner vide notification dated 08.04.1991. Learned Labour Court, vide award dated 29.09.1995 declared termination of petitioner to be illegal, being violative of Sections 25-F and 25-G of the Industrial Disputes Act, 1947 (for short, 'the Act of 1947'), and Rule 77 of the Industrial Disputes Rules, and held him entitled to reinstatement with continuity of service. Aggrieved thereby, respondent - Rajasthan Housing Board (for short, 'respondent Board') filed S.B. Civil Writ Petition No. 8/1998, which was dismissed by this court vide order dated 06.04.1999 with costs of Rs. 5000/-. It was thereafter that respondent Board, by order dated 26.07.1999 reinstated petitioner back in service on consolidated pay of Rs. 500/- per month, for a period of six months. Petitioner submitted joining report on 26.07.1999. According to petitioner, his initial appointment was made vide order dated 13.04.1987 (Annexure-4), whereas Sarva Shri M.K. Goyal, Purushottam Jadia and J.P. Sharma, were initially appointed vide order dated 17.10.1987 on same conditions, namely, on contract basis on consolidated fixed salary of Rs. 500/- per month. In their appointment order, it was indicated that their appointment would last up to 31.01.1988 but eventually they were continued in service and services of petitioner were terminated 25.08.1990. While petitioner was out of service, services of aforementioned three persons, who were juniors to him, were regularized vide order dated 24.01.1990 on the post of Lower Division Clerk in pay scale of Rs. 950-1680. 3. After his reinstatement in service in 1999, petitioner filed another Writ Petition No. 133/2000 challenging order dated 26.07.1999 reinstating him only at Rs. While petitioner was out of service, services of aforementioned three persons, who were juniors to him, were regularized vide order dated 24.01.1990 on the post of Lower Division Clerk in pay scale of Rs. 950-1680. 3. After his reinstatement in service in 1999, petitioner filed another Writ Petition No. 133/2000 challenging order dated 26.07.1999 reinstating him only at Rs. 500/- as consolidated monthly salary, rather giving regular pay scale. That writ petition was dismissed by learned Single Judge vide order dated 16.01.2006. Petitioner preferred appeal before Division Bench being D.B. Special Appeal (Writ) No. 547/2006. The Division Bench of this court, by order dated 04.09.2008, passed strictures against respondent for filing a false reply to ground No. (e) that no junior to petitioner has been regularized and therefore directed them to produce appointment order of said Shri M.K. Goyal and Shri Purshottam. Eventually, however, the Division Bench, vide order dated 12.10.2011, directed respondents to consider his representation for regularization within a period of two months from the date of filing thereof. Respondents, by impugned order dated 25.04.2012, have rejected representation of petitioner without examining argument of discrimination that despite regularization of services of his juniors, services of petitioner have not been regularized. Hence this writ petition. 4. Shri Vigyan Shah, learned counsel for petitioner, in support of his arguments, has cited judgment of this court dated 16.09.2008 in S.B. Civil Writ Petition No. 7257/2006 - Bhagwan Sahai v. Udyog Bhawan Common Facility Jaipur and Another, and argued that though services of petitioner in that case were terminated but eventually his termination was declared to be illegal by the Labour Court and he was held entitled to be reinstated back in service with continuity as services of some of his juniors were regularized, whose appointment was made on similar conditions as that of petitioner therein, and therefore this court while allowing the writ petition, directed regularization of writ petitioner with all consequential benefits on the ground of discrimination. Aforesaid judgment was upheld by Division Bench in D.B. Civil Special Appeal No. 1881/2008 vide judgment dated 19.01.2009 as also by the Supreme Court vide judgment dated 04.05.2009 in Petition for Special Leave to Appeal (Civil) No. 9797/2009. Aforesaid judgment was upheld by Division Bench in D.B. Civil Special Appeal No. 1881/2008 vide judgment dated 19.01.2009 as also by the Supreme Court vide judgment dated 04.05.2009 in Petition for Special Leave to Appeal (Civil) No. 9797/2009. Learned counsel also cited judgment of this court dated 11.11.2008 in S.B. Civil Writ Petition No. 7686/2006 - Satish Kumar Yadav v. State of Rajasthan and Others, in which identical writ petition was allowed relying on judgment of this court in Bhagwan Sahai, supra. 5. Shri Tarun Verma, learned counsel for respondents, opposed writ petition and submitted that prayer of regularization of services of petitioner cannot be granted in view of latest judgment of the Supreme Court in State of Karnataka and Others v. Uma Devi and Others, (2006) 4 SCC 1 , because appointment of petitioner was contractual and his salary was being paid on month to month basis. Petitioner, in any way, cannot be given parity with those, whose services were regularized pursuant to recommendation of junior selection committee. Since candidature of petitioner was not examined by that committee, he could not be given benefit of regularization. Only those, who were actually in service were considered for regularization against quota of the year 1990. All aforesaid three persons, namely, Shri M.K. Goyal, Shri Purushottam Jadia and Shri J.P. Sharma, participated in the process of consideration by junior selection committee, and on their fulfilling the criteria, their services were regularized. Case of petitioner is entirely distinguishable because he was not in service at the time when aforesaid process was undertaken. The Tribunal has merely directed respondents to reinstate petitioner in service because he had completed 240 days and compliance of Section 25-F of he Act of 1947 was not made prior to his removal. Therefore, benefit of continuity of service was granted to him but that by itself would not result in regularization of his service particularly when he has been awarded lump sum amount of Rs. 2000/- as compensation. It is therefore prayed that writ petition be dismissed. 6. Heard learned counsel for the parties and perused the material on record. 7. Facts, which are not in dispute, are that nature of appointment of petitioner as also that of Shri M.K. Goyal, Shri Purushottam Jadiya and Shri J.P. Sharma, with whom he is claiming parity, is identical, namely, that they were engaged on contract basis on consolidated salary of Rs. 7. Facts, which are not in dispute, are that nature of appointment of petitioner as also that of Shri M.K. Goyal, Shri Purushottam Jadiya and Shri J.P. Sharma, with whom he is claiming parity, is identical, namely, that they were engaged on contract basis on consolidated salary of Rs. 500/- per month for specified time period. While appointment of those three candidates was continued, appointment of petitioner was discontinued with effect from 31.01.1988. It is also not in dispute that petitioner was appointed earlier in point of time i.e. 13.04.1987, whereas appointment of aforesaid three candidates was made on 17.10.1987. Therefore, the Labour Court, vide award dated 29.09.1995, held termination of services of petitioner to be illegal being violative of Sections 25-F and 25-G of the Act of 1947, and directed his reinstatement with continuity of service. Since petitioner did not work for the interregnum period, the Labour Court, instead of awarding him regular pay scale, ordered for payment of compensation of Rs. 2000/- per year from the date of termination till he is reinstated back in service. Even if full back wages was not awarded, and only a sum of Rs. 2000/- was awarded as compensation for the full term of his service deeming his initial appointment made on 13.04.1987, this would mean that for all purposes he was senior to aforementioned three person by six months. They were permitted to participate in process of selection undertaken by junior selection committee, only because they were continued in service. No justification or explanation has been offered by the respondents why services of petitioner were discontinued and why those three persons, who were junior to him, were allowed to continue in service. In view of those facts, the Labour Court found termination of petitioner to be illegal being violative of provisions of Sections 25-F and 25-G of the Act of 1947 and Rule 77 of the Industrial Disputes Rules and also found it to be violative of principle of 'last come first go'. The Labour Court, having granted continuity of service to petitioner, there was no justification in not extending him similar benefits, particularly when award of the Labour Court has been upheld by judgment of this court dated 06.04.1999, vide which the writ petition filed by respondents was dismissed with costs of Rs. 5000/- in favour of petitioner workman. 8. The Labour Court, having granted continuity of service to petitioner, there was no justification in not extending him similar benefits, particularly when award of the Labour Court has been upheld by judgment of this court dated 06.04.1999, vide which the writ petition filed by respondents was dismissed with costs of Rs. 5000/- in favour of petitioner workman. 8. This court in Bhagwan Sahai, supra, in para 11 of the judgment, has held that petitioner therein, who was removed from service on 22.04.1988, would be treated to have continued in service of respondents from the date of his initial appointment on 23.04.1987 to date. In other words, if petitioner had not been removed and continued in service, he would have also received the same benefits as were granted to other similarly situated persons. This court therein did not accept the argument of respondents that observations made by the Supreme Court in Para 53 of the judgment in Uma Devi, supra, would disentitle the petitioner to regularization. In para 11 to 14 of the judgment in Bhagwan Sahai, this court held as under, "11. Judgment of this Court in Babulal Saini supra has been implemented by the respondents. Award passed by the labour court in the case of the petitioner was earlier upheld by the learned Single Judge of this Court and thereafter in the like manner by the Division Bench and ultimately by the Supreme Court. The resultant effect would be that petitioner, who was removed from service on 22/4/1988, would be treated to have continued in the service of the respondents from the date of his initial appointment on 23/4/1987 to date. In other words, if petitioner had not been removed and continued in service, he would have also received the same benefits as were granted to other similarly situated persons i.e. Shri Gopal Prasad Sharma, Shri Babulal Meena, Shri Tej Singh and Shri Ravindra Prasad Sharma pursuant to the judgment of this Court in Babulal Saini supra, who were earlier appointed with the petitioner on the same terms and conditions and payment of consolidated salary. Therefore, petitioner is also entitled to be paid the same benefits which have already been granted to above persons. Therefore, petitioner is also entitled to be paid the same benefits which have already been granted to above persons. The order dated 27/8/1991 (Ann.3) which is on record, indicates that those employees who were earlier working on payment of consolidated salary basis were fixed in regular pay scale of 750-940 with effect from 19/11/1990 with all consequential benefits. The office order dated 27/8/1991 which is on record further indicates that service conditions of the employees of Udyog Bhawan Common Facility Jaipur (respondents) shall be governed and regulated as per the provisions of the Rajasthan Service Rules, 1951 as is applicable to Class-IV employees of the State Government for the purpose of grant of pay scales and allowances and that they would be liable to be proceeded against in departmental action under the Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958. All those judgments on which petitioner placed reliance, would therefore support his claim for the same benefits which have been granted to similarly situated persons, on the principle of equality enshrined in Articles 14 & 16 of the Constitution and on analogy of parity. 12. Contention that as per observations made by Supreme Court in para 53 of Umadevi, those who have continued in services of the respondents pursuant to orders of the courts or tribunals, would not be entitled to benefit of regularisation and more particularly when appointment of the petitioner was not regular, is liable to be rejected. Question of appointment of petitioner not being regular would be inconsequential in the face of facts that those engaged on the same terms and conditions like the petitioner have already been granted the benefits of regular pay scale and other allowances and petitioner is only claiming parity with them. Question of appointment of petitioner not being regular would be inconsequential in the face of facts that those engaged on the same terms and conditions like the petitioner have already been granted the benefits of regular pay scale and other allowances and petitioner is only claiming parity with them. So far as the argument that petitioner has continued/deemed continued in service of the respondents under the cover of the award passed by the labour court is concerned, this argument is clearly devoid of any substance because para 53 of Umadevi supra, if read in entirety, makes it amply clear that Supreme Court in that case observed so while directing Union Government, State Governments and other instrumentalities to take steps to regularise as onetime measure, services of such irregularly appointed employees who have worked for 10 or more years, observing that period for which such employees would have continued in services by the intervention of the orders of the courts or of the tribunals would be excluded. In other words, even though the employers did not wish to continue them in their employment, they continued so on the strength of the orders passed by the tribunals or of the courts. Such orders should invariably be construed in the nature of interim orders but continuation of such employees with the intervention of the orders of the courts or awards of the tribunals, cannot be understood to mean a final adjudication of the claim in favour of employee by the labour court which has not only been upheld by the learned Single Bench but later on by the Division Bench of this Court and even the Apex Court. This would bring us back to the question of parity and that, if it is found that petitioner has been able to make out a case on the ground of discrimination, whether the observations made by the Supreme Court in Umadevi supra should be so construed as to deprive him of his legitimate dues even though he is otherwise found entitled thereto. This very question fell for consideration of the Supreme Court in UPSEB supra in which case 34 daily wage employees of the Cooperative Electric Supply Society prayed for regularisation of their services in the UPSEB. This very question fell for consideration of the Supreme Court in UPSEB supra in which case 34 daily wage employees of the Cooperative Electric Supply Society prayed for regularisation of their services in the UPSEB. In that case, the Society was taken over by the Electricity Board on 3/4/1997 with the stipulation that daily wage employees of the Society would start working with the Electricity Board in the same manner and position in which they were working with the society. They were absorbed in the services of the Electricity Board. The Board took a decision on 28/11/1996 to regularise the services of its employees working on daily wage basis from before 4/5/1990 on existing vacant posts. Argument of the 34 employees who were originally working in the Society and were absorbed in the Board was that decision of the Board dated 28/11/1996 with regard to regularisation of daily wage employees, who were working before 4/5/1990, would apply to their case too. Their claim was resisted by the Board citing judgment of Supreme Court in Umadevi supra. Supreme Court while rejecting the argument in paras 16 to 19 of the said judgment, observed as under:- "16. We are constrained to refer to the above decisions and principles contained therein because we find that often Uma Devi's case (supra) is being applied by Courts mechanically as it was a Euclid's formula without seeing the facts of a particular case. As observed by this Court in Bhavnagar University (supra) and Bharat Petroleum Corporation Ltd. (supra), a little difference in facts or even one additional fact may make a lot of difference in the precendential value of a decision. Hence, in our opinion, Uma Devi's case (supra) cannot be applied mechanically without seeing the facts of a particular case, as a little difference in facts can make Uma Devi's case (supra) inapplicable to the facts of that case. 17. In the present case the writ petitioners (respondents herein) only wish that they should not be discriminated against vis-à-vis the original employees of the Electricity Board since they have been taken over by the Electricity Board "in the same manner and position". Thus, the writ petitioners have to be deemed to have been appointed in the service of the Electricity Board from the date of their original appointments in the Society. Thus, the writ petitioners have to be deemed to have been appointed in the service of the Electricity Board from the date of their original appointments in the Society. Since they were all appointed in the Society before 4.5.1990 they cannot be denied the benefit of the decision of the Electricity Board dated 28.11.1996 permitting regularisation of the employees of the Electricity Board who were working from before 4.5.1990. To take a contrary view would violate Article 14 of the Constitution. We have to read Uma Devi's case (supra) in conformity with Article 14 of the Constitution, and we cannot read it in a manner which will make it in conflict with Article 14. The Constitution is the supreme law of the land, and any judgment, not even of the Supreme Court, can violate the Constitution. 18. We may further point out that a seven Judge Bench decision of this Court in Maneka Gandhi v. Union of India & Anr., AIR 1978 SC 597 has held that reasonableness and non arbitrariness is part of Article 14 of the Constitution. It follows that the government must act in a reasonable and non-arbitrary manner otherwise Article 14 of the Constitution would be violated. Maneka Gandhi's case (supra) is a decision of a seven-Judge Bench, whereas Uma Devi's case (supra) is a decision of a five-Judge Bench of this Court. It is well settled that a smaller bench decision cannot override a larger bench decision of the Court. No doubt, Maneka Gandhi's case (supra) does not specifically deal with the question of regularization of government employees, both, principle of reasonableness in executive action and the law which it has laid down, in our opinion, is of general application. 19. In the present case many of the writ petitioners have been working from 1985 i.e. they have put in about 22 years service and it will surely not be reasonable if their claim for regularization is denied even after such a long period of service. Hence apart from discrimination, Article 14 of the Constitution will also be violated on the ground of arbitrariness and unreasonableness if employees who have put in such a long service are denied the benefit of regularization and are made to face the same selection which fresh recruits have to face". 13. Hence apart from discrimination, Article 14 of the Constitution will also be violated on the ground of arbitrariness and unreasonableness if employees who have put in such a long service are denied the benefit of regularization and are made to face the same selection which fresh recruits have to face". 13. Labour Court in the present case held the petitioner entitled to consequential benefits with full back wages but this Court while partly allowing the writ petition of the respondents, restricted the claim with regard to back wages to only 50%. Judgment of the labour court granting consequential benefits was upheld by the Division Bench and thereafter by the Supreme Court. This would therefore obviously imply that right of the petitioner to benefit of reinstatement with continuity, consequential benefits and 50% backwages, stands finally crystallized in his favour. Had he not been illegally removed, the petitioner would have received all such benefits. Now on scrutiny of the material on record, it is established that all those who were appointed along with the petitioner by the same order in the same manner on payment of consolidated wages, have been granted regular scale of pay as also the regular status, petitioner should also be held entitled to all those benefits from such dates as given to these similarly situated persons on the ground of parity. 14. In view of the aforesaid discussion, this writ petition deserves to be allowed and is accordingly allowed. Respondents are directed to treat the petitioner to have been granted regular scale of pay in terms of the order dated 27/8/1991 and accordingly grant him such regular pay scale with effect from 17/11/1990 as granted to Shri Gopal Prasad Sharma, Shri Babulal Meena, Shri Tej Singh and Shri Ravindra Prasad Sharma in the same manner in which petitioner was appointed and pay to him 50% of the backwages of such salary revised from time to time." 9. Aforesaid judgment of this court in Bhagwan Sahai, has been upheld by a Division Bench as also the Supreme Court. In fact, subsequently this very judgment was followed by a coordinate bench of this court in Satish Kumar Yadav, supra, wherein taking note thereof, denial of fair consideration of petitioner after being reinstated with continuity of service in the regular pay scale was held to be not justified. 10. In fact, subsequently this very judgment was followed by a coordinate bench of this court in Satish Kumar Yadav, supra, wherein taking note thereof, denial of fair consideration of petitioner after being reinstated with continuity of service in the regular pay scale was held to be not justified. 10. A Division Bench of this Court vide order dated 12.10.2011 in Special Appeal (Writ) No. 547/2006 filed by petitioner Jai Kishan Sharma, directed that respondents would examine his legitimate grievance with open mind and decide his claim of regularization of service within a period of two months but respondents have illegally and mechanically, without giving any justification, rejected the representation by impugned order dated 25.04.2012. Even though the order, rejecting representation of petitioner, took note of fact that his juniors were regularized and therefore his claim for regularization from the same date was required to be considered, the competent authority has not at all examined that question and straightaway recorded the conclusion that prayer of petitioner for regularization cannot be granted and representation was liable to be dismissed. Action of respondents is thus wholly arbitrary and discriminatory. Impugned order is therefore illegal, arbitrary and discriminatory, being violative of Articles 14 and 16 of the Constitution of India. 11. In view of above, writ petition succeeds and is allowed. Impugned order dated 25.04.2012 is therefore quashed and set aside. Respondents are directed to regularize services of petitioner from the date services of his juniors, namely, Shri M.K. Goyal, Shri Purushottam Jadia and Shri J.P. Sharma, were regularized. However, petitioner would be entitled to only notional benefits from the date of regularization till the date of passing of impugned order dated 25.04.2012. However, he would be entitled to consequential benefits from 25.04.2012 onwards together with interest at the rate of 9% per annum. 12. Compliance of this order be made within two months from the date its copy is produced to the respondents. 13. This also disposes of stay application.