Research › Search › Judgment

Rajasthan High Court · body

2022 DIGILAW 2840 (RAJ)

Gopal Bijawat v. State of Rajasthan

2022-11-30

ASHOK KUMAR GAUR

body2022
ORDER 1. The instant writ petition has been filed by the petitioner making following prayers:- 'It is, therefore, prayed that this writ petition may kindly be allowed and by appropriate writ, order or directions, the respondents may be directed to regularize the services of the petitioner on the post of Class IV employee from the date of his initial appointment with all consequential benefits. That the respondents may further be directed to pay all arrears and benefits to the petitioner along with interest.' 2. The petitioner in his petition has pleaded following facts:- 1. The petitioner was appointed as a part time employee on 01.05.1993 but he was discharging duties as a full time employee as an attendant i.e. Class-IV employee. 2. The petitioner while continuing in service, received an order passed by the respondents for dis-continuing him from service on 03.07.1994. 3. The petitioner raised an Industrial Dispute before the Labour Court and the Industrial Tribunal, Ajmer & an award came to be passed in favour of the petitioner on 23.11.2001. The operative portion of the award is quoted hereunder:- 3. The petitioner has pleaded that as per directions given by the Labour Court, his case was to be reconsidered for regular appointment by way of regularization and minimum wages were also required to be paid to him. 4. The petitioner has pleaded that the petitioner had filed S.B.Civil Writ Petition No.4293/2003 (Gopal Bijawat Vs. State of Rajasthan & Ors.) seeking a direction to grant him minimum pay scale of Class-IV employee and the said petition came to be disposed of vide order dated 12.07.2010, whereby the respondents-State was directed to pay minimum wages to the petitioner with effect from 01.05.1993. 5. The petitioner has pleaded that the employer-State filed S.B.Civil Writ Petition No.2030/2002 before this Court challenging the award dated 23.11.2001 and this Court disposed of the writ petition on a statement recorded on behalf of the petitioner-State that case of the petitioner was required to be reconsidered for regularization in view of the circular dated 23.10.2013, provided that the petitioner agreed to forego his experience/arrears on account of regularization. The case of the petitioner was required to be considered within a period of three months, as per statement given on behalf of the State-employer. 6. The case of the petitioner was required to be considered within a period of three months, as per statement given on behalf of the State-employer. 6. The petitioner has pleaded that the order passed by the Single Bench on 27.01.2014, was put to challenge by the respondents-State by filing D.B.Special Appeal Writ No.976/2014 and the said special appeal also came to be dismissed vide order dated 01.07.2015. 7. The petitioner has pleaded that by impugned order dated 28.06.2016, the case of the petitioner for regularization has been rejected by the respondents on account of following reasons:- 1. At the time of recruitment of the petitioner, there was no regular sanctioned and vacant post and as such initial appointment of the petitioner was not irregular but illegal. 2. The petitioner was reinstated in service by virtue of order passed by the Court, as such he did not complete 10 years of service on 10.04.2016. 3. The circular dated 23.10.2013 issued by the Law and Legal Affairs of Department, Government of Rajasthan, did not apply to the petitioner. 4. The petitioner, during pendency of the aforesaid writ petition filed by the State, was reinstated back on 06.01.2004. 8. Learned counsel for the petitioner while challenging the impugned order has made following submissions:- 1. The impugned order dated 28.07.2016 has been passed on a wrong premise by treating the appointment of the petitioner as illegal instead of irregular appointment. 2. The petitioner had completed 10 years of service on 10.04.2006, as per Notification dated 27.02.2009, as the service of the petitioner would be deemed to be continuous in service and not by virtue of interim order but on account of his termination order being set aside by the Labour Court. 3. The plea of non-availability of posts is also based on a wrong premise, as the respondents have notified as many as 58 vacant posts and case of the petitioner should have been considered for regularization against the vacant post. 4. 3. The plea of non-availability of posts is also based on a wrong premise, as the respondents have notified as many as 58 vacant posts and case of the petitioner should have been considered for regularization against the vacant post. 4. The Labour Court passed the award and the same was not set aside by the Single Bench and the Division Bench of this Court, as such the respondents-employer were under legal obligation to comply with the award and further the undertaking, which was given by the respondents-State in the writ petition filed by them for considering the case of the petitioner, was required to be implemented in a proper manner by giving benefit of regularization to the petitioner. 9. Learned counsel for the petitioner in support of his submissions places reliance on a judgment passed by the Division Bench in the case of Ajeet Kumar Jain and Ors. Vs.State of Rajasthan and Ors. reported in 2016(1) WLC (Raj.) UC 472. 10. Learned counsel for the petitioner also places reliance on a judgment passed by this Court in S.B.Civil Writ Petition No.20572/2018 (Babu Lal Yadav Vs. State of Rajasthan & Ors.) decided on 22.01.2021 and upheld by the Division Bench in D.B.Special Appeal Writ No.968/2021 (State of Rajasthan & Ors. Vs. Babu Lal & Ors.) dated 18.11.2021. 11. Learned counsel on the strength of these judgments submitted that the continuous in service as on 10.04.2006 is required to be taken into account of an employee, if his termination order is set aside by the Competent Court and it is not on account of interim order, such an employee is deemed to be in service. 12. Learned counsel further submitted that once the termination order is set aside even at a subsequent stage, then the illegality in passing such termination order will relate back to the initial order and it will be deemed that the employee has always been in the service but due to illegal order being passed by the employer, such person has been removed from the job. 13. Learned counsel for the respondents submitted that the respondents have rightly passed the order rejecting the claim of the petitioner for regularization. 14. 13. Learned counsel for the respondents submitted that the respondents have rightly passed the order rejecting the claim of the petitioner for regularization. 14. Learned counsel for the respondents submitted that the petitioner was initially appointed as a part time employee and even if he was reinstated back on the post of attendant Class-IV employee by virtue of order passed by the Labour Court, as such it cannot be treated as a regular appointment. 15. Learned counsel for the respondents further submitted that this Court in earlier round of litigation has only decided right of considering the petitioner back in service and if the Authorities after taking into account the relevant factors, have passed the order rejecting the claim of the petitioner, no fault can be found in such an order. 16. Learned counsel for the respondents submitted that the State Government has also issued a circular dated 17.06.2015, after the judgment was passed by the Apex Court in the case of State of Rajasthan & Ors. Vs. Daya Lal & Ors. reported in (2011) 2 SCC 429 . 17. Learned counsel submitted that in view of the subsequent circular also, the regularization of temporary employee would be unconstitutional. 18. Learned counsel for the respondents further places reliance on a judgment passed by the Co-ordinate Bench of this Court in S.B.Civil Writ Petition No.4080/2002 (Shrawan Kumar Gurjar Vs. State of Rajasthan & Ors.) decided on 23.03.2017 and the judgment passed by the Apex Court in the case of State of Rajasthan & Ors. Vs. Daya Lal & Ors. (supra). 19. Learned counsel for the respondents further submitted that the illegal appointment of the petitioner at initial stage without having any sanctioned/vacant post may not result into granting any benefit of regularization and even if some posts are lying vacant in the Department, the same will not give any right to the petitioner to claim regularization. 20. I have heard the submissions made by learned counsel for the parties and perused the material available on record. 21. This Court finds that the following facts are undisputed in the present case:- 1. The petitioner was initially employed by the respondents on 01.05.1993. 2. The services of the petitioner were terminated on 13.06.1994. 3. 20. I have heard the submissions made by learned counsel for the parties and perused the material available on record. 21. This Court finds that the following facts are undisputed in the present case:- 1. The petitioner was initially employed by the respondents on 01.05.1993. 2. The services of the petitioner were terminated on 13.06.1994. 3. The Industrial Tribunal/Labour Court, Ajmer passed an award on 23.11.2001 and the petitioner was reinstated back in service with minimum wages with effect from 03.07.1994 and his case was required to be considered in regular pay scale against the vacant post. 4. The award of the Labour Court put to challenge by the respondents-employer, was also rejected before the Single Bench and the Division Bench. 5. The respondent-employer had given a statement before the Court that the case of the petitioner would be considered for regularization in view of circular dated 23.10.2013. 6. The petitioner during pendency of the litigation, was already reinstated on 06.04.2004 and he is continuously working with the Department. 22. The first issue decided by this Court is with regard to the validity of reasons assigned by the respondents in rejecting the claim of the petitioner for regularization. 23. This Court finds that the respondents while considering the case of the petitioner for regularization have treated the initial appointment of the petitioner as illegal and not irregular. 24. This Court finds that initial appointment was given to the petitioner and the Labour Court has set aside the termination of the petitioner from service as illegal, therefore it would be too late in the day for the respondents to treat the petitioner's appointment as illegal appointment. 25. The reason assigned by the respondents of not finding the petitioner continuous in service as on 10.04.2006, by completing 10 years of service, is also not the correct understanding of the Notification, which has been issued by the respondents themselves. 26. This Court finds that if the termination of the petitioner was set aside and he was reinstated in service, the respondents could not have presumed that by virtue of interim order, the petitioner was continued in service. 27. 26. This Court finds that if the termination of the petitioner was set aside and he was reinstated in service, the respondents could not have presumed that by virtue of interim order, the petitioner was continued in service. 27. Had the Labour Court not set aside the termination order or the petitioner would have continued on account of interim order only by completing 10 years of service by courts intervention, probably the respondents could have framed such an opinion, however, in the present case, if termination order was set aside, the same would amount, as if the termination order was never passed. 28. This Court finds that the Division Bench of this Court in the case of Ajeet Kumar Jain (supra) has considered the similar issue and the relevant para 25 of the order is quoted hereunder:- 'Approached to the Tribunal or Court and the termination order stands set aside and the employee has been reinstated in service that will not be construed as intervention of the Court or Tribunal but if someone is allowed to continue with protection of the interim order of the Court/Tribunal certainly that will be an impediment while considering candidature of the employee.' 29. The next reason assigned by the respondents in rejecting the claim of the petitioner is in respect of applicability of a circular dated 23.10.2013. 30. This Court on a bare reading of the circular dated 23.10.2013, finds that the respondents had issued a circular in respect of those cases where the employees had gone to the High Court and the matters were required to be resolved through Mega Lok Adalat. The case of the petitioner, in no manner, was required to be examined in view of the circular dated 23.10.2013. 31. This Court finds that once the direction was given by the Labour Court, as was upheld by the High Court, the respondents ought to have considered the case of the petitioner for the purpose of regularization and the Notification issued by the State Government on 27.02.2009, was applicable in the case of the petitioner, as the petitioner was working with the Department continuously and he also completed 10 years of service on 10.04.2006 and as such case of the petitioner has not been properly considered by the respondents. 32. The submission of learned counsel for the respondents that the Apex Court in the case of State of Rajasthan & Ors. 32. The submission of learned counsel for the respondents that the Apex Court in the case of State of Rajasthan & Ors. Vs. Daya Lal & Ors. (supra) has denied regularization to the employees and the continuous in service by the Courts order also does not give any right to such employees, where High Court can issue directions for giving them regularization, this Court finds that the present case of the petitioner would not be governed by the directions, which have been given by the Apex Court as before the Apex Court, the issue of regularization as per the Notification issued by the State Government on 27.02.2009, was not under consideration. 33. This Court finds that the issue before the Apex Court was in respect of exercise of power under Article 226 of the Constitution of India granting relief to certain employees, who were said to be continuing in hostels and as such the directions, which were given by the High Court for regularization, were not approved by the Apex Court. 34. The reliance placed by learned counsel for the respondents on a judgment passed by the Co-ordinate Bench in the case of Shrawan Kumar Gurjar Vs.State of Raj. & Ors. (supra), is a case where the person had sought grant of minimum wages as well as regularization and the Co-ordinate Bench of this Court considering the earlier judgment which has been passed in S.B.Civil Writ Petition No.8162/2012 (Hazari Lal Vs. State (Medical & Health Department) & Ors.) decided on 22.02.2017, found that prayer of regularization was not to be granted to that employee. 35. This Court is afraid to accept the submission made by learned counsel for the respondents that the case of Hazari Lal (supra) or the case decided by the Court in the case of Shrawan Kumar Gurjar (supra) will be applicable in the present facts of the case. 36. The submission of learned counsel for the respondents that the circular dated 12.06.2015 issued by the Finance Department, Government of Rajasthan, will also not cover the case of the petitioner and as such no benefits can be given to him, this Court finds that the Finance Department has issued aforesaid circular in view of directions given by the Apex Court in the case of State of Rajasthan & Ors. Vs. Vs. Daya Lal (supra) and as such this Court finds that the circular, which is relied upon by learned counsel for the respondents, will not be applicable in the present facts of the case. 37. This Court finds that the respondents have not acted in a proper manner while considering the case of the petitioner and the reasons, which have been assigned for rejecting claim of the petitioner, are not justified with valid reasons. 38. Accordingly, this Court sets aside the recommendation of the Screening Committee and directs that case of the petitioner may be considered for regularization in view of the Notification issued by the State Government on 27.02.2009. The petitioner would be entitled for his regularization and consequential benefits from the date, when he becomes eligible to get his regularization in view of the Notification and all the consequential benefits would be paid to the petitioner within a period of six weeks after date of his regularization. The order passed by this Court may be complied with by the respondents within a period of six weeks from the date of receipt of certified copy of this order. 39. Resultantly, the present writ petition stands allowed.