Afzal Husain vs King George''s Medical University and Others

S.S. Chauhan, J.—Heard learned Counsel for the petitioner and learned Counsel for the Medical University.

Brief facts of the case are that the petitioner was initially appointed as Clerk on daily wages on 20.12.1982 and continued to work till 29.09.1984. He was again appointed on 31.02.1985 and thereafter the services of the petitioner were terminated with effect from 31.08.1986 without any notice so he filed an application u/s 4K of the U.P. Industrial Disputes Act and on failure of the conciliation the matter was referred by the Government for adjudication before the Industrial Tribunal, Lucknow. The Tribunal made an award dated 10.05.1989 in favour of the petitioner and directed the reinstatement of the petitioner with back wages. Thereafter the petitioner was reinstated in service and was paid the back wages at daily rates. The petitioner filed Writ Petition No. 1284(S/S) of 1991 before this Court and prayed for regularization of his services as juniors to the petitioner have already been regularized. This Court passed an interim order dated 27.11.1991 directing the opposite parties to consider the case of the petitioner for regularization. The opposite parties did not act upon the said interim order and, therefore, during the pendency of the writ petition, the petitioner filed another Writ Petition No. 4780(S/S) of 1997 before this Court for payment of salary of regular scale of pay for the period from 20.12.1982 to 31.08.1986 and from 01.01.1990 onwards. Both the writ petitions were allowed by this Court vide common judgment and order dated 30.08.1999. Since judgment was not complied with a Contempt Petition No. 1331(C) of 1999 was filed. The opposite parties thereafter filed two separate Special Appeals against the aforesaid order. The Special Appeals were disposed of with certain modifications and the petitioner preferred a review petition which was dismissed by the Hon''ble Single Judge. On 26.11.1999, it was informed to the Court that process of regularization of the petitioner has been undertaken as per rules. The petitioner thereafter came to be appointed on 18.01.2000 on the post of Junior Clerk. The petitioner joined the services on 19.01.2000 and thereafter the petitioner submitted a representation for payment of salary. The said representation came to be rejected vide order dated 26.12.2000 mentioning therein that no similarly circumstance person, whose services have been regularized, have been given any arrear of salary, therefore, the petitioner is also not entitled for any arrear but at the same time in the said order it has been said that the petitioner has been appointed on regular basis in pursuance to the Office Order dated 18.01.2000.

Submission of learned Counsel for the petitioner is that the petitioner was given fresh appointment instead of being given a regular appointment in pursuance to the judgment of this Court. It is also submitted that the petitioner was reinstated vide award dated 10.05.1989 along with back wages and continued in service. The petitioner''s claim for regularisation was not considered illegally and arbitrarily whereas the claim of Smt. Girja Tripathi was considered in pursuance to the judgment rendered in Writ Petition No. 10261 of 1990 and her services were regularised w.e.f. 01.02.1992. He further submits that the petitioner is also entitled for the same benefit as the direction in the case of the petitioner by Hon''ble Single Judge was to consider regularisation of the petitioner''s services in the light of the ratio laid down in the judgements of the Hon''ble Supreme Court.

Learned Counsel for the University, on the other hand, has submitted that Smt. Girja Tripathi was appointed in the year 1989 and her services were regularised w.e.f. 01.02.1992 and the case of the petitioner was considered in the light of the regularisation rules and, therefore, the case of the petitioner is distinguishable from that of Smt. Girja Tripathi. It is also submitted that the petitioner cannot claim benefit of any illegal order passed by the University Authorities.

I have heard learned Counsel for the parties and gone through the record.

Petitioner''s services were dispensed with while working as daily wager and so he has approached the Labour Tribunal and the Labour Tribunal vide award dated 10.05.1989 proceeded to reinstate the petitioner in service along with back wages. The claim of the petitioner for regularisation was not considered. When the case of the petitioner was not considered for regularisation, then in parity with Smt. Girja Tripathi, who also filed Writ Petition No. 10261 of 1990 which was decided vide judgment and order dated 01.04.1992 and the opposite parties in pursuance to the judgement passed in favour of Smt. Girja Tripathi, regularized her services w.e.f. 01.02.1992, the petitioner preferred the present writ petition. The petitioner''s representation came to be rejected vide order dated 26.12.2000. The said order reveals that services of the petitioner have been regularised vide order dated 18.01.2000 and the regularisation from retrospective date has been refused only on account of the fact that no such direction has been given by the High Court.

The question as to whether the petitioner can be awarded regularisation with retrospective date is to be seen in the light of the judgment passed by the Hon''ble Single Judge. Operative portion of the judgment rendered by the Hon''ble Single Judge reads as under:

Since the petitioner has been reinstated and he is working for more than 8 years, therefore, in view of the ratio in the aforesaid judgements of the Supreme Court the respondents are directed to regularise the services of the petitioner within a month from the date of production of certified copy of this order.

The order of Hon''ble Single Judge was modified by the Division Bench in Special Appeal only to the extent that the case of regularisation of the petitioner may be considered in accordance with rules, if any rules exist to the same effect.

Learned Counsel for the University, therefore, has emphasised that regularisation of the petitioner''s services has taken place in pursuance to the Regularisation Rules, 1998 and hence, he cannot claim any parity with Smt. Girja Tripathi.

The fact remains that Smt. Girja Tripathi was appointed in the year 1989 for fixed term as Sick Attendant and thereafter she was given appointment on consolidated salary whereas the petitioner came to be appointed in the year 1982. The petitioner is serving with the opposite parties since 1982, therefore, to deny the benefit of parity with Smt. Girja Tripathi who came to be appointed in the year 1989 cannot be justified and it will amount violation of Articles 14 and 16 of the Constitution. May be that under the changed circumstances, regularisation of the petitioner''s services was considered under the regularisation rules but in the case of Smt. Girja Tripathi no such rule was applied neither her services were regularised on the basis of any rule but in the light of the law propounded by the Apex Court. Hon''ble Single Judge has also opined to the same effect but the order of the Hon''ble Single Judge was modified to the extent that the case of regularisation of the petitioner shall be considered in accordance with rules, if any existing. The opposite parties may have considered the case of the petitioner under the regularisation rules but there was no occasion for the same as they have already taken a decision to regularise the services of Smt. Girja Tripathi when rules were not in existence and the petitioner was appointed much prior to the appointment of Smt. Girja Tripathi. Therefore, the petitioner cannot be discriminated in the matter of regularisation and at least he is to be given the benefit of regularisation from the date services of his junior have been regularised w.e.f. 01.02.1992.

Action of the opposite parties cannot supersede Articles 14 and 16 of the Constitution, which have got overriding effect over any law and if any law supersedes Articles 14 and 16 of the Constitution, then the same is to be rendered nugatory to that extent. The petitioner in the present case, therefore, is entitled for parity and the benefit of the order passed for regularising the services of Smt. Girja Tripathi w.e.f. 01.02.1992.

The writ petition succeeds and is accordingly allowed. The orders dated 18.01.2000 and 26.12.2000 are hereby set aside. The opposite parties are directed to accord regularisation of the petitioner w.e.f. 01.02.1992 as in the case of Smt. Girja Tripathi. The aforesaid exercise shall be done within a period of four months.