MOHAMMED ALI Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS writ petition has been filed by the petitioner for granting regular pay scale of the post of Pump Driver from the date of initial appointment or at least from the date of reinstatement in pursuance of award dated 20/2/1996 and further prayed for regularization of his services on the post of Pump Driver.

(2.) ACCORDING to facts of the case, petitioner was initially appointed as Pump Driver @ Rs. 25/- per day by the Principal, Doongar College, Bikaner on 14/9/1988. The services of petitioner were terminated w. e. f. 1. 7. 1990 and against his termination, petitioner raised industrial dispute and after reference by the appropriate government in pursuance of failure report sent by conciliation officer, the matter was finally adjudicated by the Judge, Labour Court, Bikaner and an award dated 20/2/1996 was passed, whereby, retrenchment of petitioner w. e. f. July, 1990 was set aside and he was held entitled for reinstatement with continuity in service and back wages from the date of award. Against the award dated 20/2/1996 passed by Labour Court, Bikaner, a writ petition was filed by the respondent employer under Article 226 and 227 of the Constitution of India which was registered as S. B. Civil Writ Petition No. 3357/97, however, the said writ petition was dismissed by this Court holding that there is no error apparent in the award which called for any interference by the Court.

(3.) I have considered the arguments advanced by learned counsel for the petitioner. In my opinion, denial of regularization and regular pay scale to the petitioner after lapse of 20 years is illegal. In a recent judgment of Hon'ble Apex Court in case of Secretary, State of Karnataka vs. Uma Devi reported in (2006) 4 SCC 1, in which the Hon'ble Supreme Court has observed that efforts should be made for regularisation of those employees who are working from last 10-15 years and for the same State Government shall frame a scheme. It was held in para 53, 54 & 55 as under:- &nbsp&nbsp&nbsp&nbsp&nbsp" 53. One aspect needs to be clarified. There may be cases of irregular appointments (not illegal appointments) as explained in S. V. Narayanappa, R. N. Nanjundappa and B. N. Nagarajan and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the courts or of tribunals. The question of regularization of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularize as a one-time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within a six months from this date. We also clarify that regularization, if any already made, but no sub judice, need not be reopened based on this judgment, but there should be no further bypassing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme. 54. It is also clarified that those decisions which run counter to the principle settled in this decision, or in which directions running counter to what we have held herein, will stand denuded of their status as precedents. 55. In cases relating to service in the commercial taxes department, the High Court has directed that those engaged on daily wages, be paid wages equal to the salary and allowances that are being paid to the regular employees of their cadre in government service, with effect from the dates from which they were respectively appointed. The objection taken was to the direction for payment from the dates of engagement. We find that the High Court had clearly gone wrong in directing that these employees be paid salary equal to the salary and allowances that are being paid to the regular employees of their cadre in government service, with effect from the dates from which they were respectively engaged or appointed. It was not open to the High Court to impose such an obligation on the State when the very question before the High Court in the case was whether these employees were entitled to have equal pay for equal work so called and were entitled to any other benefit. They had also been engaged in the teeth of directions not to do so. We are, therefore, of the view that, at best, the Division Bench of the High Court should have directed that wages equal to the salary that are being paid to regular employees be paid to these daily wage employees with effect from the date of its judgment. Hence, that part of the direction of the Division Bench is modified and it is directed that these daily wage earners be paid wages equal to the salary at the lowest grade of employees of their cadre in the Commercial Taxes Department in government service, from the date of the judgment of the Division Bench of the High Court. Since, they are only daily wage earners, there would be no question of other allowances being paid to them. In view of our conclusion, that Courts are not expected to issue directions for making such persons permanent in service, we set aside that part of the direction of the High Court directing the Government to consider their cases for regularization. We also notice that the High Court has not adverted to the aspect as to whether it was regularization or it was giving permanency that was being directed by the High Court. In such a situation, the direction in that regard will stand deleted and the appeals filed by the State would stand allowed to that extent. If sanctioned posts are vacant (they are said to be vacant) the State will take immediate steps for filling those posts by a regular process of selection. But when regular recruitment is undertaken, the respondents in C. A. No. 3595- 3612 and those in the Commercial Taxes Department similarly situated, will be allowed to compete, waiving the age restriction imposed for the recruitment and giving some weightage for their having been engaged for work in the Department for a significant period of time. That would be the extent of the exercise of power by this Court under Article 142 of the Constitution to do justice to them. "