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2022 DIGILAW 2550 (RAJ)

Om Prakash v. State Of Rajasthan

2022-10-10

REKHA BORANA

body2022
JUDGMENT Rekha Borana, J. - The present petition has been filed against the impugned order dated 20.06.2017 (Annex. -12) whereby the representation of the petitioner for regularization of his services has been rejected. 2. The case of the petitioner is that he had been working with the respondent-Department as Langari (Cook) on wholly temporary basis w.e.f. the month of April, 1995 but despite 20 years of service with the respondent-Department, his services were not regularized. Earlier, for the same relief, a writ petition being S.B. Civil Writ Petition No. 12571/2015 was preferred by the petitioner which was disposed of vide order dated 25.11.2016 and in the said writ petition it was directed as under: "In view of the above, the writ petition filed by the petitioner is allowed. The respondents are directed to consider the case of the petitioner in light of judgment in the case of Uma Devi (supra) as well as the provisions of the Rules of 1999 as amended on 27.02.2009 and pass a speaking order. In case, the petitioner is entitled to grant of relief, the same would be granted to him with all consequential benefits. The salary in minimum of pay-scale, if not already being paid to the petitioner, be paid forthwith. The needful may be done by the respondents within period of three months from the date of this judgment." 3. In pursuance to the abovementioned directions the representation of the petitioner was considered and rejected vide the impugned order against which the present writ petition has been preferred. 4. It is relevant to take note of the fact that there being other similarly situated employees with the respondent-Department working as Langari (Cook), various writ petitions were filed from time to time. 5. Learned Senior counsel appearing for the petitioner relied upon the judgment passed in one such case of Gopal Singh v. State & Ors.; S.B. Civil Writ Petition No. 4478/1995 decided on 28.05.2009 which judgment was further upheld by the Division Bench of this Court as well as the Hon'ble Apex Court. He submitted that his case cannot be differentiated from that of Gopal Singh and his services too deserve to be regularized after completion of 10 years of service. He submitted that his case cannot be differentiated from that of Gopal Singh and his services too deserve to be regularized after completion of 10 years of service. He further submitted that in view of the specific directions of the Court in the earlier writ petition by the petitioner his case ought to have been considered in terms of the judgment as passed in the case of Secretary, State of Karnataka & Ors. v. Uma Devi & Ors.; (2006) 4 SCC 1 which has not been considered by the respondent-Department and his representation has been rejected illegally dehors the principles as laid down in the case of Uma Devi (supra). 6. Per contra, learned counsel for the respondents submitted that in the earlier internal communications of the department, because of a bonafide error, it was communicated that the petitioner had completed more than 20 years of service with the respondent-Department without any interruption. He submitted that as a matter of fact the petitioner had not completed 10 years of uninterrupted or continuous service with the respondent-Department and therefore, his representation was rightly rejected by the respondent-Department as the same could not be guided by the principles as laid down in the case of Uma Devi (supra). Learned counsel for the respondents further submitted that the petitioner is not entitled for regularization also because he was not working on a sanctioned post and was working on a total temporary post on temporary basis. 7. Heard learned counsel for the parties and perused the material available on record. 8. A perusal of communications dated 31.03.2015 and 16.04.2015 issued by the Superintendent of Police, District Nagaur (the office wherein the petitioner was working), shows that because the petitioner had completed a period of 20 years of service from the year 1995 to 2015, he was recommended for regularization in terms of notification dated 27.02.2009 of the State Government as well as the judgment passed in the earlier writ petition preferred by him. In Uma Devi's case, the Hon'ble Apex Court held as under: "44. One aspect needs to be clarified. In Uma Devi's case, the Hon'ble Apex Court held as under: "44. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa (supra), R.N. Nanjundappa (supra), and B.N. Nagarjan (supra), and referred to in paragraph 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of 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 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. We also clarify that regularization, if any already made, but not sub judice, need not be reopened based on this judgment, but there should be no further by-passing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme." 9. It is relevant to note that the same aspect whether the directions issued in Uma Devi's case are one time measure or not has also later been considered in the case of Narendra Kumar Tiwari & Ors. v. State of Jharkhand & Ors. [ (2018) 8 SCC 238 ]; Shri Basudeb Debnath and Ors. v. The Union of India and Ors. decided on 09.03.2021; Jai Narain Vyas University and Anr. v. Mukesh Sharma (D.B. SAW No. 347/2019) and State of Rajasthan & Ors. v. Krishan Kumar Saini (D.B. SAW No. 603/2021). 10. In the recent judgment passed in D.B. Special Appeal Writ No. 603/2021; State of Rajasthan & Ors. v. The Union of India and Ors. decided on 09.03.2021; Jai Narain Vyas University and Anr. v. Mukesh Sharma (D.B. SAW No. 347/2019) and State of Rajasthan & Ors. v. Krishan Kumar Saini (D.B. SAW No. 603/2021). 10. In the recent judgment passed in D.B. Special Appeal Writ No. 603/2021; State of Rajasthan & Ors. v. Krishna Kumar Saini, the Division Bench of this Court after considering the ratio as laid down in Uma Devi's case and in Jai Narain Vyas University & Anr. v. Mukesh Sharma; D.B. Special Appeal Writ No. 347/2019, observed that, "...the government cannot continue to engage the petitioner for decades to come and at the same time deprive him of the benefits of regular scales of pay and regularization." 11. In view of the ratio as laid down by the Hon'ble Apex Court in cases of Narendra Kumar Tiwari, Basudeb Debnath, Krishan Kumar Saini and Jai Narain Vyas University, it can be safely concluded that the process of regularization as held in Uma Devi's case in not a one time measure. As held in Narendra Kumar Tiwari's case, the State cannot, in the garb of Uma Devi's case, continue the employees for years together without regularizing their services. 12. In the present matter, although the impugned order specifies that the petitioner had not completed 10 years of service by year 2016, but the copy of the report as mentioned in the said order regarding his years of service has not been placed on record. A perusal of communication dated 16.04.2015 makes it clear that while making the recommendation for regularization of the petitioner, the specific receipts pertaining to the period from April 1995 to August 2014 were annexed with the said recommendation letter. The said letter specifically mentioned that the same was written in reference to office letter dated 09.04.2015 whereby the complete information pertaining to the period of service of petitioner was called for from the respective office and the same was supplied by the office wherein the petitioner had worked. Therefore, it is clear on record that the petitioner was serving with the respondent-Department from the period of April 1995 to August 2014 may be with certain intervals and further continuously from the year 2016 till date. Therefore, it is clear on record that the petitioner was serving with the respondent-Department from the period of April 1995 to August 2014 may be with certain intervals and further continuously from the year 2016 till date. Therefore, by any stretch of imagination, it is clear that the petitioner had completed his 10 years of service with the respondent-Department and was definitely entitled to regularization of his services in terms of Uma Devi's case and also in terms of Gopal Singh's case which admittedly has been affirmed by the Hon'ble Apex Court. It is not in dispute that Gopal Singh was a similarly situated employee and his services have been regularized although on the premise that he had completed 10 years of service by the time when an order of regularization was passed in his favour. 13. One more aspect needs to be taken note of in the present matter. In Gopal Lal's matter, the Court concluded as under: "13. In view of above discussion, the respondents are directed to pay to all such part time Cooks or Langaris serving with them, minimum of the regular pay scale of the concerned post and are further directed to regularise all such Cooks or Langaris, who have completed 10 years of service in terms of the direction of Supreme Court in Secretary, State of Karnataka v. Uma Devi- (2006) 4 SCC page 1 contained in para 53 of the judgement and not to dispense with their service only because they are now required to be paid minimum of the regular pay scale and not to replace them by another set of ad hoc employees engaged on temporary basis. 14. Compliance of the judgment be made within a period of six months from the date its copy is produced before the respondents." 14. Meaning thereby, there were directions issued which were in rem and therefore, the same applied to all similarly situated employees. The respondent-Department was therefore under a legal obligation to apply it suo moto to all such employees. The present writ petition deserves to be allowed even on this sole ground. 15. In view of the above observations, the present writ petition is allowed. The order dated 20.06.2017 (Annex. 12) is hereby quashed. The respondent-Department was therefore under a legal obligation to apply it suo moto to all such employees. The present writ petition deserves to be allowed even on this sole ground. 15. In view of the above observations, the present writ petition is allowed. The order dated 20.06.2017 (Annex. 12) is hereby quashed. The respondent-Department is directed to regularize the services of the petitioner w.e.f. the date of his completion of 10 years of services with respondent-Department calculating the same from the month of April, 1995. The petitioner would be entitled to all the consequential benefits emanating from regularization of his services in pursuant to the present order. 16. The needful be done within a period of three months from the date of receipt of the present order. 17. All the pending applications stand disposed of.