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2007 Supreme(SC) 1337
2007(7) Supreme 595
Supreme Court of india
(From Uttaranchal High Court)
Dr. Arijit Pasayat & P. Sathasivam, JJ.
State of Uttranchal and Anr. — Petitioner
versus
Prantiya Sinchai Avam Bandh Yogana Shramik Mahaparishad — Respondent
Appeal (civil) 4856 of 2007
(Arising out of S.L.P. (C) NO.17823 OF 2006)
Decided on : 12-10-2007
important point
Courts should consider the factual position of sanctioned posts before directing regularisation.
Headnote:(a)Service Law – Regularisation – There was no question of any automatic regularization – Words ‘regular’ or ‘regularization’ do not connote permanence and cannot be construed so as to convey an idea of the nature of tenure of appointments – They are terms calculated to condone any procedural irregularities and are meant to cure only such defects as are attributable to methodology followed in making appointments – Further, when rules framed under Article 309 of the Constitution are in force, no regularization is permissible. (Para 9)
(2006) 4 SCC 1; (1979) 4 5CC 507 – Relied upon.
(b)Service Law – Regularisation – Completion of 240 days’ work does not confer the right to regularization under the Industrial Disputes Act – It merely imposes certain obligations on the employer at the time of termination of the service. (Para 10)
(2005) 5 SCC 122; (2006) 2 SCC 702; (2007) 1 SCC 533; (2007) 1 SCC 408 – Relied upon.
(c)Service Law – Regularisation – Ad hoc appointment does not give any right for regularisation as it is governed by statutory rules. (Para 10)
(2007) 6 SCC 207; AIR 1996 SS 2775 – Relied upon.
(d)Service Law – Regularisation – Courts below failed to notice the factual position as to sanctioned posts before directing regularisation – Not proper – Matter remitted back for fresh consideration in the light of Uma Devi’s case. (Para 12)
(2006) 4 SCC 1 – Relied upon.
Facts of the case:
1.On the basis of a dispute raised regarding regularisation, reference was made to the Labour Court, Haldwani, Uttar Pradesh.
2.Labour court held that non-regularization was illegal.
3.High Court dismissed the writ petition by impugned order.
Findings of the case:
Courts below should have considered the factual position of sanctioned posts before directing regularisation.
Result : Appeal allowed. Matter remitted back for fresh consideration.
JUDGMENT
Dr. ARIJIT PASAYAT, J.—
1.Leave granted.
2.Challenge in this appeal is to the order passed by a learned Single Judge of the Uttaranchal High Court dismissing the writ petition filed by the appellants.
3.The factual position in a nutshell is as follows :
“On the basis of a dispute raised, reference was made to the Labour Court, Haldwani, Uttar Pradesh, referring the following question for adjudication:
“Whether the non-regularization of 14 members mentioned in the Schedule by the employers is improper or unjustified? If yes, to what relief/benefit the concerned workmen are entitled, from which date and with what other details?”
The employer took the stand that the concerned workmen were being engaged from time to time on temporary basis and wages and other benefits as admissible were being paid. The question of any regularization does not arise. The Labour Court found that the employees were not regularized because of non-creation of posts by the Government. Stand of the workmen was that several permanent posts were lying vacant in the Irrigation Department. The Labour Court accordingly directed that salary and other benefits ought to be paid to the concerned workers while considering them regular with effect from the date of judgment of the Labour Court. It was, accordingly, held that non-regularization was illegal.
4.A writ petition was filed before the Uttaranchal High Court which was dismissed by the impugned order. The High Court was of the view that all the 14 workmen, in question, were working on daily wages for more than six years and had completed 240 days in each calendar year and they ought to be regularized. Accordingly, the writ petition was dismissed.
5.In support of the appeal, learned counsel for the appellant submitted. that the directions given by the Labour Court and the High Court were clearly contrary to what has been stated by a Constitution Bench of this Court in Secretary, State of Karnataka and Ors. v. Uma Devi (3) and Ors.1 (2006 (4) SCC 1).
6.Learned counsel for the respondent, on the other hand, submitted that the concerned workmen had worked for more than 240 days in each of the six years they were engaged. Therefore, they were entitled to be regularized.
7.With reference to the order of the Labour Court, it is submitted that payments were being made to them on the basis of sanctioned wages. From this, it was contended, it is clear that there were sanctioned posts.
8.In Uma Devis case (supra), the issue relating to regularization was examined at length. It was essentially held that there was no question of any automatic regularization.
9.In B.N. Nagarajan & Ors. v. State of Karnataka & Ors.2 (1979) 4 SCC 507), it was held that the words regular or regularization do not connote permanence and cannot be construed so as to convey an idea of the nature of tenure of appointments. They are terms calculated to condone any procedural irregularities and are meant to cure only such defects as are attributable to methodology followed in making the appointments. Further, when rules framed under Article 309 of the Constitution of India are in force, no regularization is permissible in exercise of the executive powers of the Government under Article 162 thereof in contravention of the rules. This view has been approved by the Constitution Bench in Uma Devis case (supra) at para 16. It was emphasized here that only something that is irregular for want of compliance with one of the elements in the process of selection which does not go to the root of the process, can be regularized and that it alone can be regularized and granting permanence of employment is totally different and cannot be equated with regularization.
10.The next question which requires consideration is whether completion of 240 days in a year confers any right on an employee or workman to claim regularization in service. In Madhyamik Shiksa Parishad v. Anil Kumar Mishra & Ors.3 (2005 (5) SCC 122), it was held that the completion of 240 days
