State Of Uttarakhand And Another vs Prakashi Lal

Ramesh Ranganathan, CJ

This appeal is preferred against the order of the learned Single Judge in Writ Petition (S/S) No. 3536 of 2017 dated 22.10.2018.

This case has had a checkered history. The writ petitioner (respondent herein) had earlier invoked the jurisdiction of this Court by filing Writ Petition (S/S) No. 1600 of 2015 wherein he sought regularization of his services. He contended before this Court that, though he was engaged as a daily-wage labourer on 01.08.1981 and persons juniors to him were regularized, he was not extended the benefit of regularization.

In the counter affidavit filed in the said writ petition, the Divisional Forest Officer, Forest Division-Bageshwar admitted, in Paragraph-3 thereof, that the respondent-writ petitioner was engaged as a daily wager in the Forest Department since 01.08.1981, and different works had been taken from him, from time to time, as per the availability of the budget and the nature of the work; there was no provision in the Forest Division for maintenance of the annual character roll of daily-wagers; in the light of the judgment of the Supreme Court, in State of U.P. vs. Putti Lal : (2006) 9 SCC 337, the Regularisation of Daily Wagers Rules, 2003 (for short the '2003 Regularisation Rules) were framed for one-time appointment of daily-wagers in Group 'D' posts for the purpose of regularization of their services; those who were appointed as daily-wagers in the Department prior to 29.06.1991, and were working regularly in the Department since then, were sought to be regularized against the vacant posts; the respondent-writ petitioner was not regularized in the year 2003 because, at that relevant point of time, he was not found eligible for regularization; thereafter, the Uttarakhand Government had framed the Daily Wagers, Work Charged, Contractual, Fixed Salaried, Temporary and Ad-hoc Appointed Employees Regularisation Rules, 2013 (for short the '2013 Regularisation Rules); in terms thereof, an eligibility list was prepared on the basis of seniority; the respondent-writ petitioner was at the top of the seniority list, and initiation of the process of regularization was proposed under Group 'D' posts in the near future. Except to state that, when the exercise of regularization was undertaken under the 2003 Regularisation Rules, the respondent-writ petitioner was not found eligible, the counter affidavit does not furnish details as to why the respondent-writ petitioner was not found eligible, though he had been appointed as a daily-wager as early as on 01.08.1981.

Reference was made in the said counter-affidavit to the judgment of the Supreme Court, in Secretary, State of Karnataka and others vs. Uma Devi and others : (2006) 4 SCC 1, to submit that, in terms thereof, a seniority list was prepared, and the process had been initiated by the Department against the vacant post at division level. Writ Petition (S/S) No.1600 of 2015 was, however, disposed of by the order 17.04.2017 directing the appellants to consider the case of the respondent-writ petitioner for regularization from the date when his juniors were regularized. The error in the order dated 17.04.2017, where the word 'promoted' was used instead of 'regularised', was subsequently corrected by the order dated 08.05.2017. In compliance with the said order, the respondent-writ petitioner's claim for regularization was considered, and an order was passed by the Divisional Forest Officer on 25.09.2017, rejecting his claim for regularization, among others, on the ground that there was no evidence on record of the respondent-writ petitioner having worked for four years and nine months from April, 1983 to December, 1987.

In his rejoinder affidavit, the respondent-writ petitioner stated that the inability of the respondents, to produce the records for the period between 1983 to 1987, did not justify the inference that he did not work during the said period. It is, however, unnecessary for us to dwell on this aspect since, even according to the appellants, the respondent-writ petitioner had worked from August, 1981 till April, 1983, and continuously after December, 1987.

Questioning the order of rejection, the respondent-writ petitioner again invoked the jurisdiction of this Court by filing Writ Petition (S/S) No. 3536 of 2017 wherein he sought a writ of certiorari to quash the order dated 25.09.2017; and for a mandamus commanding and directing the respondents (appellants herein) to regularize his services in the post of Forest Guard / Group 'D' post from the date the services of his juniors had been regularized.

In the order under appeal dated 22.10.2018, the learned Single Judge, after extracting the judgment of the Supreme Court in Putti Lal, and after referring to Rule 4 of the 2003 Regularisation Rules and the order passed earlier in Writ Petition (S/S) No. 1600 of 2015 dated 17.04.2017, observed that candidates junior to the respondent-writ petitioner had already been regularized; the respondent-writ petitioner had contended that even employees, who were working since the year 2000, had been regularized; it was admitted, in the counter affidavit, that the respondent-writ petitioner was at the top of the seniority list, based on which initiation of the process for regularization of the respondent-writ petitioner was proposed in Group 'D' posts in the near future; in any case, regularization of the respondent-writ petitioner could not be rejected when the admitted position was that, on the cut-off date i.e. 29.06.1991, the respondent-writ petitioner was working as a daily rated employee; and even if the three years' break in service was removed, the respondent-writ petitioner had been, admittedly, working since 1991. The writ petition was allowed, and a mandamus was issued to the appellants to regularize the respondent-writ petitioner's services forthwith, from the date his juniors had been regularized, and to give him all consequential benefits. Aggrieved thereby, the State of Uttarakhand is now in Appeal before us.

Before we take note of the rival submissions, it is useful to note that, in terms of the judgment of the Supreme Court in Putti Lal, the respondent-writ petitioner was being paid the minimum of the pay-scales as applicable to a regular employee holding equivalent posts; and he, thereafter, retired from service on attaining the age of superannuation in December, 2018, albeit after the order under appeal was passed.

Sri C.S. Rawat, learned Additional Chief Standing Counsel for the State of Uttarakhand, would contend that, since there was a break in service from April, 1983 to December, 1987, i.e. for a period of more than four and a half years, the respondent-writ petitioner cannot claim that he should be regularized from 01.08.1981 when he was initially appointed; his contention that persons regularized in 1984-85 were juniors to him is also not tenable; a seniority list was, no doubt, prepared in terms of the 2003 Regularisation Rules, and the respondent-writ petitioner was at the top thereof; however, before the seniority list could be given effect to, the subsequent 2011 Regularisation Rules came into force, whereunder regularization was required to be made only against sanctioned posts; in the absence of any post having been sanctioned, the respondent-writ petitioner's services could not be regularized; the respondent-writ petitioner cannot compare himself with the other employee who was regularized in 1990 as she was a lady; and in any event, since the principle of No Work No Pay would apply, the respondent-writ petitioner could not have been granted all consequential monetary benefits from the date his juniors were regularized.

On the other hand Sri Anil Kumar Joshi, learned counsel for the respondent-writ petitioner, would submit that the fact that several employees, whose list was annexed alongwith the writ petition, had been regularized, has not been disputed by the appellants; the contentions now urged on behalf of the State Government, for the first time during the course of hearing of this appeal, is not supported by any pleadings either in the counter affidavit filed in the present writ petition, or in the one filed in the earlier writ petition; the basis for the contention, that there was a break in service of the respondent-writ petitioner from April, 1983 to December, 1987, is also not stated in the counter affidavit; absence of the records, for that period, would not justify the inference that the respondent-writ petitioner did not work during the said period; even otherwise, since the respondent-writ petitioner was admittedly working on the cut-off date i.e. on 29.06.1991, his claim for regularization ought to have been considered, and his services ought to have been regularized in terms of the 2003 Regularisation Rules; the contention that there are no sanctioned posts, in terms of the 2011 Regularisation Rules, is merely an afterthought; and in the light of the judgment of the Supreme Court in Uma Devi and the State of Karnataka vs. M.L. Kesari and others : (2010) 9 SCC 247, the learned Single Judge had rightly directed that the respondent-writ petitioner's services should be regularized.

Along with the writ petition, the respondent-writ petitioner had enclosed a table containing the names of ten individuals, and had also enclosed another list reflecting the dates on which their services were regularized. While nine of them were initially appointed during the period 01.02.1984 to 01.11.1985, the last of them was appointed only on 11.02.1991 just a few months before 25.06.1991, which is the cut-off date for regularization under the 2003 Regularisation Rules.

We find considerable force in the submission of Sri Anil Kumar Joshi, learned counsel for the respondent-writ petitioner, that these nine individuals, whose services were regularized between 01.02.1984 and 01.11.1985, are juniors to the respondent-writ petitioner who was initially appointed as a daily wager on 01.08.1981, more so as the contention to the contrary is not supported by any specific plea in the counter affidavit. Even if we were to proceed on the premise that there is some force in this contention urged on behalf of the State, the fact remains that the 10th person, in the list of regularized candidates, was appointed only on 11.02.1991 more than three years after the respondent-writ petitioner, even according to the appellant, rejoined service in December, 1987.

It is also not in dispute that the respondent-writ petitioner was working as a daily-wager on 25.06.1991, which was the cut-off date for an employee to be eligible for regularization under the 2003 Regularisaetion Rules. Even as per the counter affidavit filed earlier in Writ Petition (S/S) No. 1600 of 2015, the respondent-writ petitioner was at the top of the seniority list of eligible candidates, who were sought to be considered for regularization in terms of the 2003 Regularisation Rules. The respondent-writ petitioner had worked for more than thirty-seven years as a daily-wager when he retired from service in December, 2018 as a daily-wager, albeit in the minimum of the pay-scales, which was extended to him in terms of the judgment of the Supreme Court in Putti Lal. As noted hereinabove, it is admitted case of the appellant that, in terms of the 2003 Regularisation Rules, the respondent-writ petitioner was eligible to have his services regularized and his name was at the top of the seniority list.

In Uma Devi, the Supreme Court made an exception of employees, who were irregularly appointed and had worked for ten years or more in duly sanctioned posts. In M.L. Kesari, the Supreme Court clarified that the prescription of ten years service, in Uma Devi, should be computed backwards from the date of the judgment in Uma Devi i.e. 10.04.2006; and consequently employees, who were engaged prior to 10.04.1996, were alone eligible to be considered for regularization. Even applying this test, the respondent-writ petitioner was eligible for regularization, since he had been working as a daily-wager ever since 01.08.1981.

Even if the respondent-writ petitioner is held not to be senior to those nine employees regularized between February, 1984 and November, 1985, on the premise that he did not work from April, 1983 to December, 1987, he is nevertheless entitled to be treated on par with the tenth candidate, who was appointed as a daily-wager only on 11.02.1991, and was regularized in service vide proceedings dated 17.09.2003. Consequently, the respondent-writ petitioner's services shall be held to have been regularized, in terms of the order under appeal, from 17.09.2003 when a person junior to him was regularized in service.

We must also bear in mind that the jurisdiction, which is exercised in an intra-court appeal under Chapter VIII Rule 5 of the Allahabad High Court Rules, is extremely limited. As the learned Single Judge is not a Court subordinate, it is only in cases where the order under appeal suffers from a patent illegality, would interference be justified. We find no such infirmity in the order under appeal, to the extent the appellants were directed to regularize the services of the respondent-writ petitioner from the date on which the services of his juniors were regularized.

We are, however, satisfied that the learned Single Judge ought not to have directed the appellants to pay the respondent-writ petitioner all consequential benefits from the date his juniors were regularized, as that would require the appellants to pay him his regular pay-sales from that day, and for arrears of salary and other benefits till he retired from service in December, 2018. A similar question fell for consideration in Prem Ram vs. Managing Director, Uttarakhand Pey Jal and Nirman Nigam, Dehradun and others (order in Civil Appeal No. 4474 of 2015 dated 15.05.2015), wherein the Supreme Court found no impediment in directing regularization of the services of the employee, on the analogy of his juniors, with effect from the date his juniors were regularized, and for the release of all retiral benefits in favour of the employee on that basis by treating him to be in continuous service till the date of his superannuation. The Supreme Court made it clear that the said direction did not entitle the employee to claim any amount towards arrears of salary based on such regularization.

In the light of the judgment of the Supreme Court in Prem Ram, the respondent-writ petitioner is undoubtedly entitled to be regularized in service with effect from 17.09.2003, from which date his junior was regularized, and to be placed in the regular pay-scales from 17.09.2003 till he retired in December, 2018. The respondent-writ petitioner shall not only be extended the regular pay-scales from 17.09.2003 but he shall also be granted notional increments from that date till he retired from service, and shall be paid his retiral benefits on such notional fitment, however without being extended arrears of the differential salary for the period from 17.09.2003 till he retired from service in December, 2018.

The order under appeal is modified to that limited extent, and the special appeal is disposed of accordingly. However, in the circumstances, without costs.