IMPORTANT POINT
The legal principle established is that a judicial order declaring termination as illegal allows the affected employee to be deemed in continuous service for the purpose of regularization, irrespective of the timing of reinstatement.

ORDER :

I.A. No.1/2023

Having heard learned counsel for the parties, we are inclined to condone the delay as the appeal raises an important issue of law in the matter of consideration of cases of daily wage employees regarding their claim of regularization under the Rajasthan Class IV Services (Recruitment and Other Service Conditions) Amendment Rules, 2009 (hereinafter referred to as the ‘Amendment of 2009’) as promulgated vide notification dated 27.02.2009.

Accordingly, application is allowed and delay in filing the appeal is condoned.

D.B. Spl. Appl. Writ No. 973/2023

1. Learned State Counsel vehemently contended before us that the order passed by the learned Single Judge is untenable in law firstly, because the learned Single Judge has not correctly applied the principle laid down in the decision of Hon’ble Supreme Court in the case of Secretary, State of Karnataka & Ors. Vs. Uma Devi & Ors. reported in (2006) 4 SCC 1, in directing regularization of services of the respondent. The second submission of learned counsel for State is that the Rajasthan Class IV Services (Recruitment and Other Service Conditions) Rules, 1999 (in short ‘Rules of 1999’) were amended vide notification dated 27.02.2009 and amendment was made in existing Rule 6, which provided for consideration of eligible daily wage employees for regularization in service. The amendment of Rule 6, as provided in sub Rule (4) thereof, shows that persons who were irregularly appointed on any duly sanctioned posts and completed 10 years of service on 10.04.2006, without intervention of any Court or Tribunal and continuously working as such on the date of commencement of the amendment made vide notification dated 27.02.2009, alone were entitled to be considered for regularization by the duly constituted Committee. The respondent was appointed in the year 1980, however, later on, his services were terminated in the year 1982. Though an award in his favour was passed on 09.06.2005, undisputedly he was reinstated only on 09.06.2006. Therefore, it is contended, the writ petitioner could not be said to have completed 10 years of service as on 10.04.2006 because on that day, he was not even in service. As such, the legal position was not correctly appreciated by the learned Single Judge and impugned order has been passed, which warrants interference. The third and the last submission of learned State Counsel is that reinstatement was under a judicial order therefore, even if it is treated to be a case of deemed continuance in service, it is only on judicial intervention and not a case of continuance in service without there being a judicial order therefore, for that reason also, the claim of regularization by respondent was liable to be rejected.

2. Per contra, learned counsel for the respondent, defending the order of learned Single Judge passed in his favour, would submit that the respondent was reinstated in service under a judicial order, therefore, the order passed by the learned Single Judge does not warrant any interference particularly when many other persons similarly situated were not only continued but also regularized in service.

3. We have heard learned counsel for the parties and also gone through the impugned order passed by learned Single Judge and also the pleadings and documents of respective parties.

4. Undisputedly the respondent-writ petitioner was appointed in the year 1980 but later on, he was retrenched from service on 26.05.1982. It is also not in dispute that on a reference being made, an award was passed by the Labour Court on 09.06.2005. It is not the case of the appellant that the award was successfully assailed in higher Court. Therefore, we have to proceed on this admitted factual position that the award was made in favour of the respondent. It is also not disputed that in execution of award the respondent was reinstated in service on 09.06.2006.

5. In the backdrop of aforesaid admitted factual position, it is required to be seen whether the respondent