Full Judgment Text
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CASE NO.:
Appeal (civil) 5666 of 2006
PETITIONER:
Union of India & Ors.
RESPONDENT:
Sheela Rani
DATE OF JUDGMENT: 08/12/2006
BENCH:
Dr. AR. Lakshmanan & Tarun Chatterjee
JUDGMENT:
J U D G M E N T
(arising out of S.L.P. (c) Nos. 23404-23407 of 2005)
Dr. AR. Lakshmanan
Leave granted.
The above appeal is directed against the final order and
judgment dated 28.1.2005 passed by the Division Bench of the
High Court of Delhi in Writ Petition (c) Nos. 1479-1482 of
2005. By the impugned judgment, the High Court dismissed
the writ petitions preferred by the appellants herein.
The question of law involved in this appeal is whether the
services of a casual worker can be regularized with
retrospective effect i.e. from the date of initial appointment.
The respondent herein was engaged as a casual worker
w.e.f. 17.11.1982 and since then besides other jobs of casual
nature, she has been performing the job of noting down
complaints at the enquiry offices/service stations of C.P.W.D.
The respondent approached the Tribunal under Section 19 of
the Administrative Tribunals Act, 1985 and prayed that she
should be regularized on the post of enquiry clerk in C.P.W.D.
Before the Tribunal, the appellants submitted that no post of
enquiry clerk was existing nor was there any scheme/rule for
regularization in a Group-C post inasmuch as the clerks
under the appellants are appointed in terms of the recruitment
rules and through the Staff Selection Commission. It was also
submitted that the engagement of the respondent was not
against any vacancy hence she can not claim regularization on
a particular post. The Tribunal vide its order dated
13.10.2000, allowed O.A.No. 2747/99 with a direction to the
appellants herein to consider the regularization of the
respondent within four months of the receipt of the judgment.
The respondent herein filed Contempt Petition No. 194 of 2001
in the aforesaid O.A. and alleged non-compliance of the
Tribunal’s order and judgment as the services of the
respondent were not regularized with retrospective effect i.e.
17.11.1982 being the date of her initial engagement as casual
worker. The services of the respondent was regularized as
Mate w.e.f. 26.9.2001. The Tribunal vide its order dated
11.1.2002 discharged the notice and dropped the aforesaid
Contempt Petition but gave a direction to the appellants herein
to consider respondent’s case for grant of regularization w.e.f.
the date of her initial engagement i.e. 17.11.1982. Liberty was
also given to the respondent for revival of the aforesaid C.P.
No. 194 of 2001 in case the direction given by the Tribunal is
not implemented within a period of eight weeks. In view of the
aforesaid direction given to the appellants by the Tribunal, the
claim of the respondent was considered and vide Office
Memorandum dated 14.1.2003, the said claim for grant of
regularization with retrospective effect i.e. from the date of
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initial appointment being 17.11.1982 was rejected. Aggrieved
by the said order, the respondent filed O.A.No. 1926 of 2003
under Section 19 of the Administrative Tribunals Act before
the Tribunal. The Tribunal allowed O.A. vide order dated
25.2.2004. Against the said order, the appellants preferred
C.W.P. Nos. 1479-1482 of 2005 before the High Court. The
High Court dismissed the aforesaid writ petitions. Against the
said order of the High Court, the appellants filed the above
appeal by way of special leave petitions before this Court.
We heard Mr. R. Mohan, learned Additional Solicitor
General appearing for the appellants and Mr. S.M. Ratanpaul,
learned counsel appearing for the respondent. We have
carefully perused the judgment passed by the High Court.
Mr. R. Mohan, learned ASG, submitted that the High
Court failed to appreciate that regularization of a casual
worker cannot be made with retrospective effect i.e. with effect
from the date of initial appointment and that regularization of
a casual worker can only be done in accordance with the
relevant scheme and rules and from the date when regular
vacancy/post is available for such regularization. In support
of his contention, he relied on the judgments of this Court in
State of Haryana vs. Jasmer Singh (1996) 11 SCC 83 and
Registrar General of India & Anr. Vs. V. Thippa Setty &
Ors. (1998) 8 SCC 690.
Per contra, Mr. S.M. Ratanpaul, learned counsel
appearing for the respondent, submitted that the appellants
have regularized the services of the respondent as Mate w.e.f.
26.9.2001 depriving her of 19 years of continuous service
since 17.11.1982. It was further submitted that the contempt
petition was finally heard and the appellants herein were
directed to regularize the respondent herein from the date of
her initial appointment i.e. 17.11.1982. In view of a similar
case of P.M. Augustian Vs. Union of India & Ors. decided by
Ernakulam Bench of the Tribunal and since the request for
regularization was not complied with within the time
stipulated in the contempt petition, the respondent herein filed
revival of the petition which was allowed and the appellants
herein issued revised orders again rejecting the prayer of the
respondent herein for regularization from the date of her initial
appointment. The Tribunal heard the revived contempt
petition and decided that as the respondents/appellants
herein have issued revised order dated 14.1.2003, there has
not been any willful or contumacious disobedience of the
Tribunal’s order warranting any further action to be taken
against the alleged contemnors under the provisions of the
Contempt of Courts Act, 1971 read with Section 17 of the
Administrative Tribunals Act, 1985. The contempt petition
was dismissed and the notice to contemnors was discharged.
However, the Tribunal granted liberty to the respondent herein
as advised in accordance with law. Therefore, the respondent
filed O.A. challenging Office Memorandum dated 14.1.2003
issued by the appellants herein rejecting the respondent’s
prayer for regularization from the initial date of her
appointment i.e. 17.11.1982. Learned counsel further
submitted that any casual employee who has been appointed
after satisfying the requirements through proper channel, is
eligible for consideration of regularization of the service if he is
able to establish that he was continuously working and there
was existing vacancy at the relevant time. The Tribunal,
therefore, considered the case of the respondent and the long
continuous service rendered by her and held that the
respondent is entitled to regularization from the date of her
initial appointment.
Counter affidavit was filed in the above appeal reiterating
the contentions raised before the Tribunal. It is not in dispute
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that the respondent was engaged as a casual worker and that
is admitted by the respondent and the nature of the job
assigned to her was to note down the complaints in the
enquiry office. She was performing the duties at the enquiry
office on muster roll as a casual worker to note down day to
day complaints. The respondent has also not placed any
documentary evidence in respect of her claim nor any such
evidence is available on record. The date of registration of the
respondent with the employment exchange is 25.3.1983
whereas the respondent is claiming that her name was
referred to the appellants-department by the employment
exchange. Therefore, the contention raised by the respondent
is not correct and misleading. The respondent was engaged as
casual worker on 17.11.1982, therefore, employment exchange
could not have referred as she was registered in employment
exchange only on 25.8.1983. The respondent’s claim, in our
opinion, to regularize her services from 17.11.1982 is not
correct. She was regularized w.e.f. 26.9.2001 as the
regularization of casual worker is covered under the relevant
Rules. In the rejoinder affidavit, the appellants have stated
the following latest position of the workers, some of them have
not been regularized so far and those regularized have not
been regularized from the date of engagement:
Name
Designation
Date of
Engagement
Date of
regulation
Kashi Nath
Sr. Mech.
07.02.82
Not
regularized so
far but
temporary
status given
Kirti Ram
Sr.Mech
01.12.81
Not
regularized so
far but
temporary
status given
Bahunt Lal
Mech.
02.08.83
Not
regularized so
far but
temporary
status given
Joginder
Singh
Lab. Asst.
14.11.82
Not
regularized so
far
Baleshwar
Pandit
Pump
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Operator
01.01.82
Regularised
w.e.f.
12.12.94
Joginder
Thakur
Pump
Operator
01.01.82
Regularised
w.e.f.
12.12.94
Mahabir
Singh
Welder
02.06.82
Regularised
w.e.f.
11.12.96
Iqbal Singh
Auto Elect.
26.1.83
Regularised
w.e.f. 19.4.96
Rakesh
Kumar
Wireman
28.01.81
Not
regularized so
far
Perusal of the above list shows that these casual workers
are technical people and they have been engaged prior to the
respondent. In our opinion, the respondent’s claim to be
regularized from 17.11.1982 is not acceptable as she was
engaged only as casual worker.
The law is well settled on this issue. In State of
Haryana vs. Jasmer Singh,(supra), a three-Judge Bench of
this Court held that the regularization of daily rated workmen
who had completed a certain number of years of service is a
policy matter to be decided by the State. This Court held that
the respondents who are employed on daily wages can not be
treated on par with persons in regular service of the State
holding similar post. Daily rated workers are not required to
possess the qualifications prescribed for the regular work nor
do they have to fulfill the requirement relating to age at the
time of recruitment. They cannot, therefore, be equated with
the regular workmen for the purposes of their wages nor can
they claim the minimum wage regular pay scale of the
regularly employed.
In Registrar General of India & Anr. Vs. V. Thippa
Setty & Ors. (supra), the Tribunal’s direction was to regularize
the respondents w.e.f. the date of promulgation of the
recruitment rules or from the date of their appointment
depending on the seniority list. In pursuance of the said
direction, on the new recruitment rules being promulgated on
11.5.1985, the regularization was given effect from that date.
However, in the subsequent order passed by the Tribunal on
19.2.1993, the Tribunal has directed that they should be
treated as having been conferred regular status w.e.f. 5.2.1981
i.e. the date of their entry into service as Investigators. This
Court held that the employees had entered as ad hoc
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appointees and the question was whether they should be
regularized in service since they had worked as ad hoc
employees for a sufficient long time. If the ad hoc service is
regularized from the back date in this manner, it will disturb
the seniority of regularly appointed employees in the cadre
and, therefore, ordinarily the regularization must take effect
prospectively and not retrospectively. This Court ordered that
care must be taken to see that regularization do not upset the
seniorities of regular appointees. Whether they qualify in a
given case or not is not relevant but what is relevant is that
regularization should be prospective and not retrospective as
the chances of their upsetting the seniorities cannot be
overlooked.
We, therefore, allow the appeal and set aside the
judgment and order passed by the High Court and restore the
order of regularization passed by the Tribunal. However, there
shall be no order as to costs.