1. The petitioner who has been working as Peon in the Stores Department under the respondents by filing the present petition under Article 226 of the Constitution has prayed for direction against the respondent authorities to regularize his services from the date of which he completed three years as part-time employee and has further prayed for consequential benefits of regularization. He has based his claim on the Circulars dated 26.12.1980 and 15.10.1982 of the respondents which provide for granting of benefits of absorption to a part-time employee on his completion of requisite number of years.
2. The facts which are not in dispute are that the petitioner was initially appointed on 18.05.1981 on the post of Peon for 29 days. His services were extended from time to time by issuing orders appointing him for 29 days till 13.09.1981 and came to be further extended upto 14.12.1981 by different orders. He was given pay scale of Rs.196-3-232. Thereafter the District Health Officer, District Panchayat, Rajkot, respondent no.2 issued order appointing the petitioner as a part-time employee with effect from 17.12.1981. The services of the petitioner as part-time employee were also came to be extended from time to time. In 1989, however, his service was terminated, upon which he approached the Labour Court, Rajkot vide Reference (LCR) No.1500 of 1989. The Labour Court by its judgment and award dated 14.06.1993 declared the termination to be illegal and directed the respondents to reinstate the petitioner-workmen on his original post. Since then he has been continued in service. For relief of regularization of service, the petitioner filed the present petition in the year 2000.
3. Learned advocate for the petitioner Mr. Mukesh H. Rathod submitted that the petitioner has by now put in more than twenty years of service, and has thus spent major part of his life in serving the respondents. It was submitted that he deserved to be treated as a regular employee and is entitled to be paid salary in time scale. It was submitted that the respondents have issued Circulars for granting benefits of permanency and regularization to part-time employees like the petitioner. He invited attention of the court to appointment order dated 18.11.1981 given to the petitioner to show that the petitioner was placed on the post of Peon when that post became vacant as its previous incumbent one Govind Visaji was promoted as driver. Learned advocate submitted that the petitioner has been, therefore, working on a sanctioned available post. It was submitted that the long continuance of petitioner in service indicated that work is available. That being the position, according to learned advocate, there was no justification for not regularizing his service.
4. On behalf of the respondents, the prayers in the petition were opposed by filing affidavit-in-reply wherein it was contended inter alia that the petitioner was appointed as a part-time employee for three months on fixed monthly remuneration. He was never appointed on permanent post after following regular process under the rules of recruitment for class IV cadre framed under the Gujarat Panchayats Act, 1961. It was contended that services of the petitioner were discontinued at one point of time due to non availability of work and for want of funds, however, he was reinstated and continued as part-timer in view of the judgment and award of the Labour Court. On all these counts, it was contended that the petitioner had no right to be regularized.
5. Having considered the case of the petitioner the prayers made in the petition and the rival contentions, relief sought for in the prayer clause of the petition to direct the respondents to regularize the services of the petitioner cannot be granted, in view of law laid down by the Apex Court in
Secretary, State of Karnataka v. Umadevi (3) [(2006) 4 SCC 1]. It is held not permissible for the High Court in exercise of powers under Article
226 of the Constitution to order absorption, regularization or grant of permanency benefits to the daily wager, part-time or ad-hoc employees, who are not employed by following the regular process of selection in accordance with the recruitment rules. Umadevi (supra) has been followed and reiterated subsequently in Gurbachanlal Vs. Regional Engineering College [(2007) 11 SCC 102], Pinaki Chaterjee & Others Vs. Union of India [AIR 2009 SC 2623], Harvinder Kaur & Others Vs. Union of India [AIR 2009 SC 2875], State of Rajasthan & Others Vs. Dayalal & Others [(2011) 2 SCC 429] and in several other judicial pronouncements. In view of above position of law, the prayers made in the petition seeking direction for regularization of services are only to be rejected and they are hereby rejected.
6. Even while not disputing the ratio laid down in Umadevi (supra), learned advocate for the petitioner relied on the observations in paragraph no. 53 of that judgment. Based on that, learned advocate harped that the petitioner has already completed more than ten years as part-time temporary employee and his services have been continued till date even as no interim protection was granted by this court to the petitioner in the present petition. He submitted that this shows that the services of the petitioner are needed by the respondents. He further submitted and claimed that the petitioner was working on a sanctioned post which was clear from the order dated 18.11.1981 which he relied upon. Learned advocate accordingly submitted that claim of the petitioner for his regular appointment is legitimate and it deserves to be granted in view of observations of the Apex Court in paragraph No.53 in Umadevi (supra).
He submitted that petitioner's case may be considered as per those observations.
6.1. The observations in paragraph no.53 in Umadevi (supra) are as under:
“53. One aspect needs to be clarified. There may be cases where 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 abovereferred 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 six months from this date. We also clarify that regularization, if any already made, but not 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.”
6.2 In State of Karnataka vs. M.L. Kesari [(2010) 9 SCC 249] the Supreme Court observed that the observations contained in paragraph no.53 of Umadevi (supra) for regularization of irregular appointees as one time measure, though was required to be initiated within six months from the date of that decision, if the eligible persons are left out of consideration for any reason, the process of regularization as one time measure would not be completed till all eligible persons who have right to be considered in terms of paragraph no.53 are considered. In M.L. Kesari (supra) the Apex Court distinguished between “illegal appointees” and “irregular appointees”.
6.3. Having regard to the above observations of the Apex Court and the submission made by learned advocate for the petitioner, the cause of justice would be furthered if the respondent authorities are directed to consider the case of the petitioner in light of the observations in paragraph No. 53 of decision of the Supreme Court in Umadevi (supra) and take appropriate decision in respect of the claim of the petitioner.
7. Therefore, while the petition is being rejected for the prayers made in paragraph No. 11 of the petition, it is observed and directed that the respondents shall consider and examine the case of the petitioner with reference to observations in paragraph No. 53 of the decision of the Apex Court in Umadevi (supra), and decide whether the case of the petitioner is covered under the criteria mentioned therein. If on facts, the respondents find that his case falls within the compass and criteria of the observations and the benefit of regularization is grantable to him, that benefit may be given to the petitioner.
8. The exercise of examination of petitioner's case as above shall be undertaken within three months from the date of receipt of copy of this order and the competent authority shall arrive at appropriate decision in accordance with law.
9. It is clarified that while directing the respondents to consider the case of the petitioner this Court has neither gone into the merits, nor has expressed any opinion on the merits on the case of the petitioner.
10. Subject to the aforesaid directions and observations, the petition is dismissed with no order as to costs. Rule is discharged.
(N. V. ANJARIA, J.) SN DEVU PPS