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Saturday, May 16, 2015

What is important is that the appellant had been appointed as early as in the year 1988 and had by the time the decision of this Court in Umadevi’s (3) case (supra) pronounced, already completed more than 10 years service. Government has formulated rules for regularization of such daily-wagers, no matter the same are the subject matter of a challenge before the High Court. What is noteworthy is that neither the State Government nor the Jal Nigam has resented the idea of regularization of those who have served for over a decade. The rules providing for regularization are a sufficient enough indication of that fact. We do not, therefore, see any impediment in directing regularization of the service of the appellant on the analogy of his juniors with effect from the date his juniors were regularized and for the release of all retiral benefits in his favour on that basis by treating him to be in continuous service till the date of his superannuation. We make it clear that this direction will not entitle the appellant to claim any amount towards arrears of salary based on such regularization.

                                             REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION
                       CIVIL APPEAL NO.  4474 OF 2015
          (Arising out of Special Leave Petition(C) No.837 of 2012)


Prem Ram                                     …Appellant

Vs.

Managing Director, Uttarakhand Pey Jal &
Nirman Nigam, Dehradun and Ors.              …Respondents




                               J U D G M E N T

T.S. THAKUR, J.

1.       Leave granted.

2.    This appeal arises out of an order dated 30th  June,  2011  passed  by
the High Court of Uttarakhand at Nanital whereby Special  Appeal  No.128  of
2011 filed by the appellant has been dismissed and the order passed  by  the
learned Single Judge  of  that  Court  in  Writ  Petition  324(MS)  of  2004
affirmed.
3.    The appellant, it appears, was  appointed  as  a  daily-wager  in  the
erstwhile Uttar Pradesh Pey Jal & Nirman Nigam sometime in  the  year  1988.
Nine years  later  his  services  were  terminated  in  February  1997.  The
termination, when assailed by the appellant before  the  Labour  Court,  was
set aside with a direction to the  respondent  to  reinstate  the  appellant
with 50% back wages and continuity of service. The writ  petition  filed  by
the respondent-Jal Nigam who is the successor-in interest of  the  erstwhile
Uttar Pradesh Pey Jal Nigam against the  award  made  by  the  Labour  Court
succeeded only in part and to the extent that the award of  back  wages  was
deleted from the award by the  Labour  Court.   It  is  common  ground  that
pursuant to the award, the appellant was allowed to rejoin as a  daily-wager
and to serve the respondent-Jal Nigam till the date  of  his  superannuation
upon completion of 60 years of age.

4.    In the year 2008, the appellant filed Writ Petition  No.1116  of  2008
before the High Court for a mandamus  directing  respondents  to  regularise
his services w.e.f. 1st July, 2003  on  the  post  of  Jeep  Driver  and  to
release consequential benefits in his favour including arrears due  to  him.
The appellant’s case in the writ petition was that  other  daily-wagers  who
were  junior  to  him  and  appointed  after  the  year  1988  having   been
regularized in service,  the  appellant  could  not  merely  because  of  an
illegal order of termination of his services be deprived  of  that  benefit.
The appellant contended that the termination order having been set aside  by
the Labour Court which order was affirmed by the High Court with  continuity
of his service, there was no reason for denial of benefits that  would  have
flowed to him  but  for  the  order  of  termination  especially  when  such
benefits  were  extended  to  other  similarly  situate  contemporaries  and
juniors of the appellant.

5.    The writ petition coming before the Single Judge  Bench  of  the  High
Court at Uttarakhand was dismissed by an order dated 23rd May, 2011  on  the
authority of the decision of this Court in  Secretary,  State  of  Karnataka
and Ors. v. Umadevi (3) (2006) 4 SCC 1.  The High Court  at  the  same  time
allowed  the  appellant  to  move  a  representation  before  the  concerned
authorities in the light of paragraph 53 of  the  decision  in  Umadevi  (3)
case (supra).  The High  Court  observed  that  if  there  is  a  scheme  of
regularization the claim of the  appellant  should  also  be  considered  in
accordance therewith.

6.    Dissatisfied with the above order,  the  appellant  preferred  Special
Appeal No.128 of 2011 which, as noticed earlier, has been dismissed  by  the
Division Bench of the High Court. The High Court held that since  there  was
no scheme  for  regularization  of  daily-wagers  and  those  named  by  the
appellant in the writ petition had been regularized  by  the  Uttar  Pradesh
Jal Nigam at a time when Uttarakhand Pey Jal and Nirman  Nigam  was  not  in
existence, nothing further could be  done  in  the  matter  nor  any  relief
granted to the appellant.  The present appeal  assails  the  correctness  of
the said two judgments and orders of the High Court.

7.    When the matter came up for hearing before this  Court  on  8th  July,
2013, learned counsel for the respondent-Corporation  was  granted  time  to
take instructions whether any scheme within the contemplation of para 53  of
Umadevi (3) case (supra) had been formulated by  the  respondent-Corporation
and in case no such scheme has been formulated, whether the  Corporation  is
willing to formulate one.  The matter again came  up  for  hearing  on  18th
November, 2013.  It was argued by Ms. Rachana Srivastava, counsel  appearing
for the respondent-Uttarakhand Pey Jal & Nirman Nigam that while  the  Nigam
had passed  a  resolution  adopting  the  scheme  formulated  by  the  State
Government in terms of the directions of this  Court  in  Umadevi  (3)  case
(supra), the Government’s approval for such an adoption had not so far  been
received. She prayed for and was granted time to place on record a  copy  of
the Government scheme adopted by the Nigam  as  also  the  resolution  under
which the same was adopted besides, a copy of the approval, if any,  granted
by the Government to such adoption.  On 27th October, 2014, when the  matter
came-up once again for  hearing,  our  attention  was  drawn  to  additional
documents filed by the appellant from which it  appeared  that  the  persons
who figured at serials no.78 to  82  at  page  12  of  the  said  additional
documents had been regularized w.e.f. 1st July, 2003, although  their  entry
into service was shown to be 6th of June, 1989  onwards.   It  was  on  that
basis argued that persons junior to the appellant  having  been  regularized
in service, whereas the appellant could not have been deprived of a  similar
benefit simply because his services were illegally terminated. On behalf  of
the respondent-Jal Nigam it was, on the other hand, argued that there was  a
difference between cases of persons appearing at serial  nos.78  to  82  and
that of the appellant inasmuch as the  former  were  work-charged  employees
while the appellant was appointed  as  a  daily-wager.  At  the  request  of
learned counsel for the respondent-Nigam the matter was  adjourned  by  four
weeks to enable the Nigam to file an  additional  affidavit  as  to  whether
regularization had been ordered after  undertaking  any  screening/selection
process and if so, on what terms and conditions.

8.    From the affidavit filed, in compliance with the directions issued  by
this Court, it  appears  that  the  Government  of  Uttarakhand  had  framed
Regularization Rules 2011 for regularization of daily-wagers  and  temporary
employees who had been appointed on or before 1st  November,  2011  and  had
completed 10 years of continuous service by that date. The said  Rules  were
then adopted by the Board of respondent-Jal Nigam  in  terms  of  resolution
passed in its  12th  Meeting  and  approval  of  the  State  Government  for
implementation of  the  said  Rules  in  the  Nigam  sought  under  Managing
Director’s  letter  dated  3rd  March,  2012  addressed  to  the   Principal
Secretary, Peyjal Nigam, Government of Uttarakhand. While  the  approval  of
the Government was still awaited, the  Government  appears  to  have  framed
fresh Regularisation Rules in supersession  of  the  Rules  of  2011.  These
Rules are said to be under challenge before the High  Court  of  Uttarakhand
at Nanital in which the High Court appears to have  passed  certain  interim
orders also.  From the affidavits it is further evident  that  five  persons
named by the appellant appearing at serials no.78  to  82  of  the  list  of
juniors have been regularized in service. It is  not  in  dispute  that  all
these persons were appointed on dates subsequent to the date of  appointment
of the appellant. The respondent, however,  has  attempted  to  justify  the
regularization of juniors mentioned above on the ground that they  had  been
appointed in work-charge establishment whereas the appellant  herein  was  a
daily-wager.  We asked learned counsel for  the  respondent  as  to  whether
daily-wagers on the basis of their seniority or otherwise  were  brought  on
to the work-charged establishment and if  there  was  no  such  practice  or
procedure followed, what was the basis on which the department would  decide
whether the person has to be engaged on a work-charged establishment  or  as
a daily-wager. We must regretfully say that we did not  get  a  satisfactory
answer to that question nor does any of  the  several  affidavits  filed  in
these proceedings by  the  respondent-Jal  Nigam  point  out  a  qualitative
difference between daily-wager on the one hand and  a  temporary  engagement
on work-charged establishment on  the  other.   If  engagement  in  a  work-
charged establishment rest on a  criterion,  no  better  than  the  absolute
discretion of the authority engaging them or  the  fortuitous  circumstances
of a vacancy or need in a work-charged establishment, then, there is  indeed
no difference between  a  daily-wager  on  the  one  hand  and  work-charged
employees on the other. No  distinction  can  resultantly  be  made  between
these two categories of employees  for  in  essence,  the  nature  of  their
engagement remains  the  same  except  that  in  the  case  of  work-charged
employees,  the  wages/emoluments  appear  to  be  borne  from  out  of  the
allocation for the project in which they are employed  while  in  the  other
case there is no such specific allocation of funds.  The  classification  of
work-  charged  and  other  employees  to  say  the  least  remains   wholly
unsatisfactory at least for the purposes of the  case  in  hand  leaving  no
option for us but to treat the case  of  the  daily-wagers  and  work-charge
employees on the same footing when it comes to  granting  regularization  to
them.

9.    If that be so, there is no denying the fact that the persons who  were
junior to the appellant, having been engaged much later than  him,  steal  a
march over him in terms of regularization in  service  while  the  appellant
remained embroiled in litigation over what was eventually  found  to  be  an
illegal termination of his service.  It  is  true  that  the  appellant  has
already superannuated. That does not, however, make  any  difference.   What
is important is that the appellant had been appointed as  early  as  in  the
year 1988 and had by the time the decision of this Court  in  Umadevi’s  (3)
case (supra) pronounced, already  completed  more  than  10  years  service.
Government has formulated rules for regularization of such daily-wagers,  no
matter the same are the subject  matter  of  a  challenge  before  the  High
Court. What is noteworthy is that neither the State Government nor  the  Jal
Nigam has resented the idea of regularization of those who have  served  for
over a decade. The rules  providing  for  regularization  are  a  sufficient
enough indication of that fact. We do not, therefore, see any impediment  in
directing regularization of the service of the appellant on the  analogy  of
his juniors with effect from the date his juniors were regularized  and  for
the release of all retiral benefits in his favour on that basis by  treating
him to be in continuous service till the  date  of  his  superannuation.  We
make it clear that this direction will not entitle the  appellant  to  claim
any amount towards arrears of salary based on such regularization.

10.   In the result, this  appeal  succeeds  and  is  hereby  allowed.   The
orders passed by the High Court are set aside and the  writ  petition  filed
by  the  appellant  disposed  of  in  terms  of  the  directions   contained
hereinabove. The parties are directed to bear their own costs.


                                                        ………………………………….…..…J.
                                                               (T.S. THAKUR)






                                                        …………………………..……………...
                                                         (ADARSH KUMAR GOEL)
New Delhi
May 15, 2015

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