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2002 Supreme(J&K) 230
IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
T.S. Doabia,S.K. Gupta, JJ.
Ashok Kumar & Ors. - Appellant
Versus
State & Ors. - Respondent
LPA (SW) No. 333/02, LPA (SW) - D No. 21/02, 67/2002, 24/2002, 62/2002, LPA (SW) Cond. 130/2002, 334/02 & LPA (SW) 335/02, CMP No. 55/2002
Decided On : 26 July, 2002
Advocate For Appellant: U.K. Jalali
Advocate For Appellant: Anil Sethi
Advocate For Appellant: Nitin Bhasin
Advocate For Appellant: P. Sethi
Advocate For Appellant: Sudershan Sharma
Advocate For Appellant: Ajay Abrol
Advocate For Appellant: D.C. Raina
Advocate For Appellant: Rahul Bharti
Advocate For Appellant: S. Goswami
Advocate For Respondent: J.P. Singh
Advocate For Respondent: S.K. Anand
Advocate For Respondent: H.A. Siddiqui
Advocate For Respondent: Seema Sheikher
An employee who has completed seven years of service before 31st March94 is entitled to regularisation in terms of SRO 64/94
Headnote:
Per : Per Doabia J. 1. Piara Singh is a name which has become familiar with the service jurisprudence dealing with the subject of regularization. Uttam Singh is another name which has found recognition with the State of Jammu and Kashmir. On the basis of decision given in his case a circular enabling certain workers to seek regularisation has been issued. This circular makes mention of the view expressed in Piara Singhs case also. It is precisely for the reason, it would be apt to notice under what circumstances Piara Singhs case came to be decided.
Fact of the Case:
In a batch of writ petitions bearing SWPs No. 634/2000, 721/2000, 2314/2000, 512/2000, 244/2001, 531/2001,558/2001, 922/2001, 1116/2001, 1267/2001, 1061/2001, 1615/2001, 931/2001,1696/2001, 1331/2001, 386/2001,1423/2001, 864-A/2001, 1734/2001, 1330/2001, 1603/2001, 1012/2001, 628/2001, 1394/2001 and 2014/2001, which petitions were decided by a common judgment and which judgment is under appeal in these bunch of appeals, the learned Single Judge’s arrived at three conclusion.
Finding of the Court:
1. The Daily Rated Workers who have been engaged on or before 31-01-1994, are permitted to continue till they attain eligibility for regularisation of the services provided they have been working continuously and uninterruptedly till date; 2. The respondents will regularise the services of the petitioners who have been engaged before 31.01.1994; 3. The petitioners who have been engaged after 31,01.1994, their engagement being dehors Order No. 26-F of 1994 and provisions of SRO 64 of 1994, are not found entitled to the relief.
Issues: i As to what are the rights of an employee who came to be appointed before 31st March94; ii As to what are the rights of an employee who has completed seven years of service before 31st March 94; iii As to what are the rights of an employee who has not completed seven years of service but has continued to work; iv As to what rights have been conferred on an employee in terms of Rule 9 of the Rules; v As to what is the impact of Government Order issued on 6th Nov2001.
Ratio Decidendi: 1. An employee who has completed seven years of service before 31st March94 is entitled to regularisation in terms of SRO 64/94; 2. The employees who were engaged before 31st March `94 but have not completed seven years of service are entitled to the benefit of regularisation after completion of this-tenure in the later financial years. This becomes apparent from the perusal of Rule 8 and 9 of the Rules referred-to above; 3. A further right stands conferred on the employees who have been engaged on daily rated/work charged basis. This right is conferred by Rule 9. This is to the effect that no direct recruitment is to be made unless and until the claims of the persons already appointed are duly considered for regularisation; 4. The case of those employees who were not, strictly speaking covered by SRO 64/94 are now to be dealt with in terms of the Government order dt. 6th Nov2001; 5. So far as the industrial workers are concerned, they are entitled to the protection of Industrial Disputes Act, 1947, and in case, they have completed 240 days of service and in case, their services are to be brought to an end, then the provisions of Section 25-F of the aforesaid Act are required to be complied with; 6. The fact that someone has been appointed contrary to the rules is an issue which is to be decided on the facts of each case. In case, it is shown that there was some collusion between the employee and the person issuing the appointment order, something can be said against the employee, otherwise, the concerned employee would normally be entitled to the benefit of the order passed in his favour; 7. So far as the casual employees are concerned, they are not regulated by the rules in question but the fact would remains that an employee who has completed a tenure of four years and in case, the need is permanent, then, the said employee would be protected by the observations made by the Supreme Court in the case of Piara Singhs judgment (supra). Paragraph 51 stands quoted above. The State Government would accordingly consider the claims of this category of employees and deal with them individually or frame a scheme in this regard; 8. A Government employee can also fall within the definition of workman; 9. Even in the case of employee who is working with a contractor under the Contract Labour (Regulation and Abolition) Act, 1970, direction can be given to the Principal employer to bring the employee on its rolls; 10. Even in the case of seasonal employee, direction for regularisation of services can be given under circumstances noticed above; 11. An employee who is engaged under a scheme can be adjusted in another suitable, work if it is possible to do so. However, no vested right exist in that person; 12. An employee working under the courts directions acquires no right to claim regularisation; 13. If similarly situated employees services are regularised, then direction can be given for regularising services of others also; 14. An employee who has been appointed dehors the rules or does not possess the qualifications cannot claim regularisation. 15. A person can claim compassionate appointment if the deceased employee was entitled to regularisation but was not so regularised.
Final Decision: The judgment under appeal so far as condition No, (i) and (ii) are concerned, is sustained. With regard to condition No. (iii) a direction is given that tile respondents would take notice of the observations made in this judgment and take appropriate, steps within a period of six months from the date, a copy of this order `is made available to them by the appellants.
1. Piara Singh is a name which has become familiar with the service jurisprudence dealing with the subject of regularization. Uttam Singh is another name which has found recognition with the State of Jammu and Kashmir. On the basis of decision given in his case a circular enabling certain workers to seek regularisation has been issued. This circular makes mention of the view expressed in Piara Singhs case also. It is precisely for the reason, it would be apt to notice under what circumstances Piara Singhs case came to be decided.
2. Piara Singh moved High Court of Punjab and Haryana. A writ petition was preferred in the year 1988. This writ petition came to be decided and is reported as Piara Singh v. State of Haryana (1989) 1 PLR 396. Certain directions were given by the High Court of Punjab and Haryana. The State of Haryana was aggrieved, so was the State of Punjab. An appeal came to be preferred in the Supreme Court of India. The Supreme Court of India was of the opinion that the directions given to regularize the services of all those ad hoc temporary employees who had continued for more than a year are difficult to sustain. This was because when these directions were given, these were given without reference to the existence of the vacancy position. The problem which it was likely to create was noticed in para 33 of the judgment which stands reported as State of Haryana v. Piara Singh, (1992) 4 SCC 118. Ultimately, it was observed that the relief in such cases must be moulded in each case having regard to all the relevant facts and circumstances of that case. This relief has to be given in a judicious manner and not in a mechanical manner. As indicated above, the Supreme Court reversed the judgment of Punjab and Haryana High Court but at the same time, observed that there is a need to regularize all those ad hoc and temporary employees who are eligible and qualified and hold a post and have continued in service satisfactorily for long period. It was observed that allowing a person to continue in service for a quite long period does give rise to a presumption about need for a regular post. This was, however, a matter which was left to the discretion of the State Governments and they were supposed to frame some rules in this regard. Ultimately, what was said with regard to these ad hoc and temporary employees in Government service in paragraphs 45 to 51 of the judgment is being reproduced below :-
"45-The normal rule, of course, is regular recruitment through the prescribed agency but exigencies of administration may some times call for an ad hoc or temporary appointment to be made. In such a situation, effort should always be to replace such an ad hoc/temporary employee may also complete alongwith others for such regular selection/appointment. If he gets selected, well and good, but if he does not, he must give to the regularly selected candidate. The appointment of the regularly selected candidate cannot be withheld or kept in abeyance for the sake of such an ad hoc temporary employee.
"46- Secondly, an ad hoc or temporary employee should not be replaced by another by another ad hoc or temporary employees; he must be replaced only by a regularly selected employee. This is necessary to avoid arbitrary action on the part of the appointing authority.
47-Thirdly, even where an ad hoc or temporary employment is necessitated on account of the exigencies of administration, he should ordinarily be drawn from the employment exchange unless it cannot brook delay in which case the pressing cause must be stated on the file. If no candidate is available or is not sponsored by the employment exchange, some appropriate method consistent with the requirements of Article 16 should be followed. In other words, there must be a notice published in the appropriate manner calling for applications an all those who apply in response thereto should be considered fairly.
48- An unqualified person ought to be appointed only when quali
