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2018 DIGILAW 822 (RAJ)

State of Rajasthan v. Shankar Lal Yogi

2018-03-21

DINESH CHANDRA SOMANI, M.N.BHANDARI

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JUDGMENT : M.N. BHANDARI, J. 1. By this special appeal, a challenge is made to the order dated 09th March, 2017 passed by learned Single Judge on a writ petition filed by the non-appellant-petitioner to seek regularisation of service. 2. The case in hand has checkered history thus need to be given for appreciation of arguments of respective parties. Brief facts of the case : 3. The non-appellant-petitioner was employed as Langri (Cook) on part time basis in the year 1992 to work in the mess under the Police Station. When his service was not regularised despite completion of ten years' services, a writ petition bearing SB Civil Writ Petition No. 1279/2004 was filed. A reference of the Circular dated 01st April, 1996 was given. It was to the effect that all those who have completed ten years of service, should be considered for regularisation of their services. The non-appellant-petitioner did not complete ten years of service by the year 1996. The writ petition aforesaid was, however, decided vide order dated 28th July, 2010 with the direction to consider the case of the petitioner for regularisation. He was then not in the service of the Police Department. 4. The appellants filed a miscellaneous application to seek clarification. It was for the reason that the non-appellant-petitioner did not work with them after year 2007. The said miscellaneous application was disposed of by learned Single Judge vide order dated 14th March, 2012. A reference of the judgment in the case of Gopal Singh v. State & Ors. reported in 2010 (4) WLC 190 was given while disposing of the application for clarification. In the case of Gopal Singh (supra), it was held that if a Langri (Cook) has completed ten years of service then entitled for regularisation of service. 5. When services of the non-appellant-petitioner were not regularised despite clarification, a contempt petition was filed. Therein, it was stated that the non-appellant-petitioner is not working with the Department thus his services could not be regularised. A reference of the Circular dated 27th February, 2009 was also given. The said Circular provides for regularisation only of those employees who are working in the Department as on the date of Circular. The contempt petition was dismissed, however, with liberty to the non-appellant-petitioner to file afresh. 6. The non-appellant-petitioner filed a fresh contempt petition bearing No. 771/2014. A reference of the Circular dated 27th February, 2009 was also given. The said Circular provides for regularisation only of those employees who are working in the Department as on the date of Circular. The contempt petition was dismissed, however, with liberty to the non-appellant-petitioner to file afresh. 6. The non-appellant-petitioner filed a fresh contempt petition bearing No. 771/2014. It was then disposed of vide order dated 17th March, 2016 holding compliance of the order dated 14th March, 2012. The non-appellant-petitioner was, however, given liberty to file a fresh writ petition and, accordingly, fresh petition was filed by the non-appellant-petitioner to claim regularisation of service. It was denied by the Department precisely on the ground that the non-appellant-petitioner worked with the Police Department till the year 2007 and, thereafter, left the job. A person not working in the Department cannot be regularised. The non-appellant-petitioner engaged himself under the Jail Authorities in the year 2010, governed by separate service rules and administrative set up. The writ petition was filed while the non-appellant-petitioner was working under the Jail Authorities yet without impleading them as a party respondent. 7. Learned Additional Advocate General Mr. GS Gill, appearing for the appellant-State, submits that a direction for regularisation of service can be given while the non-appellant-petitioner is in service. It cannot be when one is not in service with the concerned department. At the time of filing of this writ petition, the non-appellant-petitioner was working under the Jail Authorities yet were not impleaded as party respondent. The non-appellant-petitioner served under the Police Station till 2007 and, thereafter, left the service. He joined the service under the Jail Authorities in the year 2010. As per the Circular dated 27th February, 2009, regularisation was permitted under Rule 6(4) to those who are working for continuous last ten years. The non-appellant-petitioner was not working anywhere in the year 2009 thus he was not entitled to get regularisation of service. It is more so when, the earlier order of this Court in the writ petition as well as contempt petition has attained finality when the last contempt petition was dismissed in the year 2016 by holding compliance of the order dated 14th March, 2012. Accordingly, the direction for regularisation of service of the non-appellant-petitioner needs to be interfered. 8. Learned counsel for the non-appellant-petitioner has contested the appeal. Accordingly, the direction for regularisation of service of the non-appellant-petitioner needs to be interfered. 8. Learned counsel for the non-appellant-petitioner has contested the appeal. It is submitted that the non-appellant-petitioner had completed ten years' of service with the Police Department itself prior to the judgment of the Apex Court in the case of State of Karnataka v. Uma Devi reported in 2006 (4) SCC 1 hence he was entitled for regularisation in service in the year 2006 itself. It is more so when the State of Rajasthan had issued a Circular for regularisation of service for those who have completed ten years of service on or before 10th April, 2006. 9. It is further submitted that subsequently a judgment was given by this Court in the case of Gopal Singh (supra), wherein, while interfering in the order of termination, a direction for regularisation was given. It was not only for the petitioner-employee therein but for all 1800 Cooks working with the Police Department. The judgment thereupon was upheld by the Division Bench thus has rightly been applied by learned Single Judge for a direction to regularise the service of the non-appellant-petitioner. A cost of Rs. 25000/- has also been imposed. A reference of earlier order passed in favour of the non-appellant-petitioner has also been given thus the prayer is to dismiss the appeal. It is more so when the non-appellant-petitioner has continuously worked with the State Government and even payment of wages by the Jail Authorities is out of the consolidated funds of the State Government. 10. We have considered rival submissions made by learned counsel for the parties and perused the record. 11. The non-appellant-petitioner had earlier also filed writ petitions as well as contempt petitions. To summaries the case for consideration of claim for regularisation, few facts are quite relevant, which are narrated as under : (i) the non-appellant-petitioner was initially engaged as part time Langri (Cook) at the Police Station. He worked under different police stations from time to time. He had completed ten years of service while working under different police stations. (ii) he had, however, left the service in the year 2007. (iii) the non-appellant-petitioner then joined the service under the Jail Authorities in the year 2010. (iv) there is a gap of three years, which between 2007 to 2010. He had completed ten years of service while working under different police stations. (ii) he had, however, left the service in the year 2007. (iii) the non-appellant-petitioner then joined the service under the Jail Authorities in the year 2010. (iv) there is a gap of three years, which between 2007 to 2010. (v) a circular was issued by the Government on 27th February, 2009 to regularise the service of those who have completed ten years' service and are presently working. (vi) the non-appellant-petitioner was not working anywhere on the date when the Circular dated 27th February, 2009 was issued and that was the ground to reject his claim for regularisation despite earlier writ petition and direction for consideration. (vii) An order to deny benefit of regularisation was passed on 20th July, 2012 against which a contempt petition was filed. The contempt petition was however dismissed by this Court holding satisfactory compliance of the order but with liberty to file afresh writ petition. (viii) the regularisation of service was sought by filing a writ petition again in the year 2016 but presently the non-appellant-petitioner is working under the Jail Authorities and any direction of regularisation can be complied by them and not by the Police Department where the non-appellant-petitioner is not working. The Jail Authority has not been impleaded as a party respondent. In absence of Jail Authority, being party to the litigation, a direction of regularisation of service could not have been given. (ix) the employee, worked under different Departments, cannot claim regularisation by treating continuity in service when he had not worked in between three years. 12. All the aforesaid aspects are relevant and narrated in seriatim to have clarity on the facts. It is not that the non-appellant-petitioner was terminated in the year 2007 followed by a challenge to it. In that case, if the termination could have been held to be illegal, consequential relief of reinstatement with a direction for consideration of case for regularisation could have been given as was done in the case of Gopal Singh (supra). 13. In the instant case, there is no challenge to the gap of three years rather due to silence for that period from the side of the non-appellant-petitioner, it has to be presumed that he had abandoned services of the Police Department and, later on, joined the Jail Authorities. 13. In the instant case, there is no challenge to the gap of three years rather due to silence for that period from the side of the non-appellant-petitioner, it has to be presumed that he had abandoned services of the Police Department and, later on, joined the Jail Authorities. Once, the service was abandoned, claim of regularisation cannot be made under the Department where the non-appellant-petitioner is not now working. 14. The position of facts would have been different if the non-appellant-petitioner would have approached this Court before abandonment of services in the year 2007 and while working in the Police Department itself. In fact, it was done but litigation there in ended with dismissal of the contempt petition. It is quite surprising that the writ petition was filed against the Police Department at the stage when the non-appellant-petitioner was not working under them but under the Jail Department. 15. Learned Single Judge has ignored the aforesaid thus we find reasons to cause interference in the order. Accordingly, the order dated 09th March, 2017 is set aside. 16. Unfortunately, the non-appellant-petitioner has not completed ten years of service under the Jail Department so as to mold the relief but then the Jail Authorities have not been impleaded as party respondent. However, while allowing this special appeal, a liberty is given to the non-appellant-petitioner to take up the matter afresh, if he completes ten years of service under the Jail Department and if his services are not regularised even then. 17. Appeal Allowed Order of Single Judge Set Aside Petitioner Can Seek Regularisation in Jail Department After Completion of 10 Years of Service.