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Gauhati High Court
I.A. Ansari, J.
State of Assam and Others - Appellant
Versus
Ms. Anjali Thapa and Another - Respondent
Review Petition No. 124/2012
Decided On : 14-03-2013
Constitution of India, 1950 – Articles 14 and 16 – Review – Review petitioners seek review of the order, passed, in W.P. (C) – Respondents prayer for review is resisted by the petitioner in W.P. (C) – Whether order, passed, in W.P. (C) needs to be reviewed and, if so, what would be the result of the review, it is appropriate that the observations made, and the directions contained, in the order, which is the subject-matter of review, be taken note of – Held, First is to ensure that those who have put in more than ten years of continuous service without the protection of any interim orders of Courts or tribunals, before the date of decision in Umadevi was rendered, are considered for regularization in view of their long service – Second is to ensure that the departments/instrumentalities do not perpetuate the practice of employing persons on daily-wage/ad-hoc/casual for long periods and then periodically regularize them on the ground that they have served for more than ten years, thereby defeating the constitutional or statutory provisions relating to recruitment and appointment – True effect of the direction is that all persons who have worked for more than ten years as on 10.4.2006 without the protection of any interim order of any Court or tribunal, in vacant posts, possessing the requisite qualification, are entitled to be considered for regularization – Fact that the employer has not undertaken such exercise of regularization within six months of the decision in Umadevi or that such exercise was undertaken only in regard to a limited few, will not disentitle such employees, the right to be considered for regularization in terms of the above directions in Umadevi as a one-time measure – It becomes abundantly clear that when it was not permissible to regularize the appointment of the person concerned during his lifetime, it would be equally impermissible to regularize his service after the individual concerned has died – In essence, the directions, given by this Court, in the writ petition, in question, requires regularization of the service of the individual concerned, which, as already discussed above, was impermissible and ought not to have been directed, when the individual concerned had not been appointed or worked against any vacant sanctioned post – Review Petition Disposed Of
2. With the help of this review petition, the review petitioners seek review of the order, dated 06.08.2010, passed, in W.P. (C) No. 4107/2010. The respondents' prayer for review is resisted by the petitioner in W.P. (C) No. 4107/2010.
3. Before I turn to the question as to whether the order, dated 06.08.2010, passed, in W.P. (C) No. 4107/2010, needs to be reviewed and, if so, what would be the result of the review, it is appropriate that the observations made, and the directions contained, in the order, which is the subject-matter of review, be taken note of.
4. With the above end in view, the relevant portion of the order, dated 06.08.2010, passed, in W.P. (C) No. 4107/2010, is reproduced below:
Considering the fact that the petitioner's case is same as the ones, which were covered by the order, dated 21.05.2008, aforementioned, this writ petition is disposed of with direction to the respondents to regularize the service of the petitioner's husband, for one day, by creating superannuary post and, then, take further action, in terms of the Office Memorandum, dated 20.05.2009, aforementioned, enabling the petitioner receive pension and pensionary benefits. The whole exercise, so directed, shall be completed within a period of three months from the date of receipt of a copy of this order by the respondent No. 3, namely, Chief Engineer (R&B), Public Works Department, Government of Assam.
Furnish a copy of this order to the learned counsel for the respondents.
5. Pointing out to the observations made, and the directions contained, in Secretary, State of Karnataka and Others Vs. Umadevi and Others, , and State of Karnataka and Others Vs. M.L. Kesari and Others, the learned Additional Advocate General points out that the decision, in Uma Devi (supra), has been explained in M.L. Kesari (supra) and if these two decisions are carefully read, it becomes clear that one of the conditions precedent for regularization of service of the casual employee is that his original appointment ought to have been against a valid sanctioned post and, secondly, but equally important, is that his initial appointment, though ad hoc or casual in nature, must have been consistent with the Rules governing the service concerned or selection ought to have been held by complying with the constitutional guarantee in respect of public employment in the sense that the employment must have been made following some selection process, wherein all eligible persons had been given opportunity to participate.
6. As a one time measure, however, the Supreme Court, in Uma Devi (supra), permitted, points out the learned Addl. Advocate General, regularization of services of irregular and not illegal appointees and one of the principal requirements for regularization, even as a one time measure, was that the appointment must have been made, or the employee concerned must have been allowed to continue, against a sanctioned post.
7. Unless, therefore, submits the learned Addl. Advocate General, the husband of the petitioner, in W.P. (C) No. 4107/2010, had worked against a sanctioned vacant post, his regularization, during his life time, even for the purpose of pension and pensionary benefits, was not permissible in law. Consequently, further points out the learned Addl. Advocate General, merely because of the fact that the petitioner's husband has died, his service cannot be regularized with retrospective effect for the purpose of making available pension and extending pensionary benefits to the writ petitioner as the legal representative of her deceased husband was not permissible and could not have been legally granted and, hence, the direction g
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