An employee's continuous service is recognized once a termination is set aside, impacting their eligibility for regularization despite initial appointment irregularities.

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 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