RAJASTHAN HOUSING BOARD Vs. SUNDER LAL

JUDGEMENT

(1.) This appeal seeks to challenge the judgment of the learned Single Judge dated 20/11/2008 whereby, the writ petition filed by respondent-Sunder Lal was allowed. Respondent-Sunder Lal in writ petition had prayed for a mandamus seeking direction to the Housing Board to grant him regularization w.e.f. 31/3/1993, the date on which, his juniors were so regularized with all consequential benefits. The learned Single Judge has allowed the writ petition in terms of the prayers made therein. Aggrieved thereby, Rajasthan Housing Board is up in appeal.

(2.) The factual matrix of the case is that respondent was appointed on daily wage basis in 1983 on the post of Sweeper with the Housing Board. However, his services were terminated by a verbal order on 1/6/1986. Respondent raised an industrial dispute. Reference was made to the labour court, which vide its award dated 23/6/1990 declared his termination as illegal and directed his reinstatement with continuity and full back wages. Respondent was allowed to join the services with the appellant on 23/9/1991. Respondent had to file an application under Section 33(c)(2) of the Industrial Disputes Act, 1947 (for short, the "Act of 1947") claiming back wages. The application was allowed vide order dated 20/4/1993. According to the writ petitioner, many of his juniors were granted the benefit of regularization with pay fixation and regular pay scale, increments and other benefits w.e.f. 31/3/1993, whereas his case was not considered for such regularization despite availability of regular posts. Writ petitioner therefore made number of representations to the appellant but none of them was considered by the appellant. Secretary to the Rajasthan Housing Board by way of order dated 11/4/2007 sanctioned minimum of the pay scale to the respondent-writ petitioner on the post of Helper but did not pass any order of regularization.

(3.) Shri Arvind Kumar Gupta, learned counsel for the appellant-Housing Board has argued that the respondent was engaged as part time Sweeper. He was neither appointed on regular basis nor was his appointment was made against regular sanctioned post. In fact, respondent was not even removed from service. He rather abandoned his job on his own and therefore appellant has left with no option but to discontinue his services w.e.f. 1/6/1986. Even though the award was passed by the labour court on 23/6/1990 but respondent did not immediately join the services. He gave joining seven years thereafter on 20/5/1997. It was thereafter vide letter dated 23/9/1998, he was asked to join the duties on 30/9/1998. Thus, for the interregnum period of eight years, he was not actually working with the Housing Board. Therefore, direction for regularization of the services of respondent ought not to have been issued by the learned Single Judge. It was argued that judgment of Supreme Court in Secretary, State of Karnataka Vs. Uma Devi, 2006 4 SCC 1 has not been properly appreciated by the learned Single Judge. Reliance in this connection was placed on para 53 of the judgment to argue that the High Court cannot issue a mandamus directing regularization of those, who have been illegally appointed although such direction could be issued only with regard to those appointed on irregular basis, but this observation of the Supreme Court was meant to be applied as a one-time measure. Once it was clear that the respondent was appointed illegally, he was not liable to be regularized in services. Reliance has been placed on the judgment of Supreme Court in R.N. Nanjundappa Vs. T.Thimmiah,1972 4 SCC 409 and argued that Supreme Court in that case held that if appointment itself was made in violation of the rule or of the Constitution, such appointment cannot confer any right on the appointee and he cannot claim regularization in service. In support of his argument, learned counsel has also placed reliance on the judgment of Supreme Court in Ashwani Kumar Vs. State of Bihar, 1997 2 SCC 1. It is therefore prayed that appeal be allowed and the judgment of the learned Single Judge be set-aside.