SHYAM LAL GURJAR Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THE petitioner, Shyam Lal Gurjar, has laid this writ petition under Art. 226 of the Constitution of India praying the reliefs of granting him regular pay scale of Class IV Employee since inception of his service career and for conferring the benefits of regularization in service. The very edifice of the reliefs claimed by the petitioner, as narrated in the writ petition, is that at the threshold of his service career, he was appointed as Beldar in the office of Municipal Council, Bhilwara w.e.f. 01.09.1990. While serving in the said capacity, the services of the petitioner were dispensed with and being aggrieved from this sort of action of the respondents, the petitioner raised an industrial dispute which ultimately culminated into reference before the Labour Court, Bhilwara. After adjudicating the reference made by the appropriate Government, the Labour Court vide its Award dt. 05.02.1999 declared his termination to be null and void and ordered his reinstatement with continuity of services. However, the petitioner was denied back wages and other financial benefits. As per version of the petitioner, the said Award was assailed by the Municipal Council, Bhilwara before this Court by way of S.B. Civil Writ Petition No. 327 of 2002 but the said effort of the Municipal Council proved to be abortive and the writ petition was dismissed by this Court on 27.08.2002. Despite dismissal of the writ petition, the Award was not complied with by the respondents although petitioner made repeated requests and persuasions. Ultimately, vide order dt. 20.05.2004 the petitioner was reinstated in the services and since then he is discharging his duties with utmost sincerity and diligence without any interruption. According to the petitioner, the respondents are paying meager sum of Rs. 100 per day to him as a remuneration and despite utilizing his services for the works which are perennial in nature, he has not been allowed regular pay scale of Class IV Employee. The petitioner has also laid emphasis in the writ petition that vide order dt. 12.07.1999 (Annex. 4), six other incumbents, who were daily rated employees, have been allowed the regular pay scale of Class PV Employee. That apart, the petitioner has quoted the examples of Laxmi Lai and Satya Narain, who were also appointed as daily rated employees with the petitioner, whose services have been regularized by the respondent Municipal Council. In the writ petition, the petitioner has also annexed the representation which was submitted by him ventilating his grievances. For the purpose of claiming the relief of regularization, the petitioner has placed reliance on Circular dt. 28.05.1999, which clearly envisages that if an incumbent has served for 240 days then his services are liable to be regularized on satisfaction of certain terms and conditions. The petitioner has also mentioned in the writ petition that he has ventilated his grievances before the Government but none of his efforts have yielded the desired results.

(2.) ON behalf of respondent No. 3 & 4 preliminary reply to show cause notice was submitted. In its reply, the Municipal Council has submitted that the learned Labour Court while adjudicating the reference has simply ordered his reinstatement but there is no direction for regularizing his services. In the return, while harping on the Award, the respondents have submitted that in terms of Award the petitioner cannot be deemed to be a fit candidate for regularization of his services. Adverting to the circular, on which the petitioner has placed reliance, the respondents in their reply have submitted that the said circular is not applicable vis   -vis the petitioner, and therefore, in adherence of that circular the petitioner is not entitled for regularization of his services. As per the version of the respondents, regularization of services of an individual is within the discretion of the State Government and as the petitioner was not found entitled for regularization, the said advantage was not given to him. Commenting on the examples quoted by the petitioner, wherein the incumbents were regularized, the respondents have averred in the reply that their cases are distinguishable from the petitioner. As per averments in the reply of the respondents, unequals cannot be treated as equals and as such the petitioner is not entitled for the relief of regularization as well as grant of regular pay scale of Class IV Employee.

(3.) LEARNED counsel for the petitioner, Mr. Sanjeet Purohit, strenuously urged that at the threshold of his service career the petitioner was appointed on 01.09.1990 and since then he is continuing in the services except the brief interruption which was caused due to illegal action of the respondents. The submission of the learned counsel for the petitioner is that the termination of the services of the petitioner was found to be illegal and the learned Labour Court has ordered his reinstatement in the services, therefore, by legal fiction the interregnum period during which he remained unemployed is to be treated as continuity in the services. While reiterating this stand, the learned counsel for the petitioner has further submitted that since his reinstatement i.e. 2004, he is serving the respondent Municipal Council uninterruptedly and therefore keeping in view the longevity of his satisfactory services, his services are liable to be regularized. Taking a dig at the action of the respondents in discriminating him vis   -vis similarly circumstanced other incumbents, the learned counsel Mr. Purohit has submitted that the petitioner has been subjected to glaring and hostile discrimination in clear negation of Article 14 & 16 of the Constitution of India. According to learned counsel for the petitioner, the reply of the respondents on the issue of discrimination is absolutely vague, cryptic and unspecific and therefore there is hardly any justification for not extending the benefit of regularization to the petitioner which was infact extended to other incumbents, who are similarly circumstanced to that of him. While joining issue with the respondents, the learned counsel for the petitioner has urged that there is no quarrel in the legal position that unequals cannot be treated as equals but then according to him, it is a bounden duty of a welfare State to treat likes as alike as mandated by Article 14 & 16 of the Constitution of India. Learned counsel for the petitioner has also invited my attention to the Constitution Bench judgment of the Apex Court in case of Secretary, State of Karnataka vs. Uma Devi, : (2006) 4 SCC 1. Placing reliance on Para 53 of the said judgment, learned counsel for the petitioner has submitted that in view of law laid down by Apex Court his case deserves consideration for regularization of his services. The complete text of Para 53 of the judgment (supra) is reproduced as infra: