Allahabad High Court
The Union Of India Through The Secretary ... vs Jairaj Singh And Another on 20 February, 2025
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2025:AHC:24989-DB
Chief Justice's Court
Case :- WRIT - A No. - 104 of 2025
Petitioner :- The Union of India through the Secretary Ministry of Consumer Affairs and another
Respondent :- Jairaj Singh and another
Counsel for Petitioner :- Mr. S.P. Singh, A.S.G.I. and Mr. Saumitra Singh, Sr. Advocate
Counsel for Respondent :- Mr. Shyamal Narain
Hon'ble Arun Bhansali,Chief Justice
Hon'ble Kshitij Shailendra,J.
1. Heard Shri S.P. Singh, A.S.G.I. and Shri Saumitra Singh, learned counsel for the petitioners and Shri Shyamal Narain, learned counsel for respondent No.1 ('the respondent'). The respondent No.2 being the Central Administrative Tribunal ('the Tribunal') that has passed the order impugned, need not be put to notice.
2. Pursuant to previous order dated 08.01.2025 passed in the instant case, learned counsel for respondent has placed before the Court a copy of Original Application and rejoinder affidavit filed before the Tribunal alongwith annexures thereto. The same are taken on record.
THE ORDER IMPUGNED
3. The instant writ petition raises a challenge to the order dated 02.05.2024 whereby the Tribunal has allowed the Original Application No.707 of 2021 (Jairaj Singh vs. Union of India and another) directing the respondents therein (the writ petitioners) to regularize the services of the present respondent w.e.f. 25.04.2011 and count his length of service for the purpose of Modified Assured Career Progression Scheme (in short 'M.A.C.P.') and other related benefits including pension, gratuity etc. treating the date of appointment of the respondent as 25.04.2001. The Tribunal has further directed that in case, in the concerned Cadre, there are other regularly appointed incumbents, the seniority of the respondent shall be determined w.e.f. 25.04.2011 as a permanent incumbent and all consequential benefits shall be computed and given to the respondent with 6% interest.
FACTUAL MATRIX
4. The respondent was earlier working in Indian Navy as Sailor and he was discharged from services on 29.02.2000. Pursuant to an advertisement dated 11-17.12.1999 published in Employment newspaper, whereby applications were invited from retired Army personnels of the Rank of Junior Commissioned Officers or equivalent of the defence services or para-military forces to fill up 1 (one) post of Security Inspector in National Sugar Institute, Kanpur, an Institute under the Ministry of Consumer Affairs, Government of India, New Delhi, the respondent applied and, after undergoing process of recruitment, he was issued an appointment order dated 02.05.2000 whereby he was appointed on Group C, non-ministerial, non-gazetted post of Security Inspector on contract basis w.e.f. 25.04.2000. The initial appointment being for a period of one year, was extended from time to time and different orders passed over the period to that effect were brought on record before the Tribunal. The respondent continued to work without any break and moved certain representations seeking regularization of his services. The representations were rejected by the authorities taking a ground that prayer for regularization and grant of M.A.C.P. benefits was not admissible to an employee recruited on contract basis. Thereafter, National Sugar Institute (Security Inspector) Recruitment Rules, 2016 ('the Rules, 2016') were notified on 27.10.2016, pursuant whereto, the respondent moved further representations and, by an order dated 10.08.2017, his services as Security Inspector were regularized on a pay-scale of Rs.29,200/- - Rs.92,300/- w.e.f. 01.08.2017.
5. Aggrieved only by the date of regularization as 01.08.2017, the aforesaid Original Application was filed by the respondent before the Tribunal with a prayer to change the date of regularization from 01.08.2017 to 01.03.2002, i.e. the date following the end of reserved period of two years after his discharge from Indian Navy on 29.02.2000. The Tribunal has allowed the application in terms of directions already referred to hereinabove.
ARGUMENTS OF THE PETITIONERS
6. Assailing the order of the Tribunal, learned counsel for the petitioners submits that the Tribunal was not justified in regularizing the services of the respondent w.e.f. 25.04.2011, inasmuch as, the very Rules, 2016 were notified on 27.10.2016 and Column 10 of the Schedule contained therein would apply prospectively, i.e. the regularization can only be from a date after coming into force of the Rules, 2016. According to Shri Singh, only because the respondent was working since 2000, ten years experience counted by the Tribunal from the date of appointment so as to arrive on the date of regularization as 25.04.2011 is an erroneous decision. Further submission is that since the Government of India, by a letter dated 18.01.2017, issued a direction to the Director, National Sugar Institute to consider regularization of services of the respondent on the post of Security Inspector, the matter was immediately placed before the Departmental Promotion Committee and, accordingly, by an order dated 10.08.2017, services of the respondent were regularized w.e.f. 01.08.2017. Further submission is that Column 10 speaks of possessing at least ten years of experience for being considered for regularization and it does not mean that any short term contractual appointee having completed ten years of service as such, would automatically become entitled to be regularized in service. In support of his submissions, reliance has been placed upon the following judgements:-
(i). Registrar General of India and another vs. V. Thippa Setty and others, (1998) 8 SCC 690;
(ii). Union of India and others vs. Sheela Rani, (2007) 15 SCC 230;
(iii). State of U.P. and others vs. Prem Chandra Soni and others, (2023) 1 ALJ 62;
(iv). Assistant Excise Commissioner, Kottayam & others vs. Esthappan Cherian & another, (2021) 10 SCC 210.
ARGUMENTS OF THE RESPONDENT
7. Per contra, Shri Shyamal Narain, learned counsel for the respondent submits that there being no dispute as regards the date of appointment of the respondent as well as continuous services rendered by him in the capacity of a contractual appointee, when Rules, 2016 came into existence, the authorities should have regularized his services based upon length of services rendered by him and since the respondent possessed requisite experience on the date of consideration of his claim, the Tribunal has not committed any error in ordering for regularizing the services w.e.f. 2011. By referring to the letter dated 18.01.2017 issued by the Government of India, submissions have been advanced that the subject of the letter itself shows that regularization was to be considered after end of reserved period of services and absolutely no reason reflects from the regularization order dated 10.08.2017 impugned before the Tribunal as to wherefrom the date 01.08.2017 has been taken as the date of regularization. It is also urged that the Supreme Court has repeatedly laid down that in case where significant time has lapsed from the date of initial appointment and continuous services are rendered in the capacity of regular employees performing duties indistinguishable from those in permanent post and even the selection process is like that of a regular recruitment process, the same, in itself, can be a ground for regularizing the services even in absence of specific service rules and the respondent herein stands on better footings where the Rules, 2016 clearly provide for regularizing the services of a contractual appointee having rendered ten years service on the post of Security Inspector. In support of his submissions reliance has been placed upon judgment of the Hon'ble Supreme Court in Vinod Kumar & others etc. vs. Union of India & others, (2024) 9 S.C.C. 327.
DISCUSSION AND FINDINGS
8. Having heard learned counsel for the parties and having perused the record, first of all, we would like to mention that w.e.f. 27.10.2016, previously promulgated Rules namely National Sugar Institute (Security Inspector) Recruitment Rules, 1981 framed under Article 309 of the Constitution of India, were superseded by the aforesaid Rules, 2016. Though the word "regularization" is not reflected from the title of the Rules, 2016 which, prima facie, appear to be Recruitment Rules, a close scrutiny of the Rules would reveal that the Rules contain a Schedule describing the name of the post of Security Inspector, number of posts, classification, pay-scale, educational and other qualifications vis-a-vis the method of recruitment apart from other components. Number of posts of Security Inspector has been notified as 1 (one) in 2016 and Column 10 provides for various methods of recruitment and also specifies regularization aspect based upon at least ten years experience. For a ready reference, Column 10 of Schedule is extracted as under:-
"(10)
Method of recruitment: whether by direct recruitment or by promotion or by deputation or absorption and percentage of the vacancies to be filled by various methods.
By deputation (including short term contract) failing which by direct recruitment
or
Persons working as Security Inspector at National Sugar Institute on contract basis to be considered for regularisation provided they possess at least ten years experience."
9. There being no dispute about the nature of initial appointment of the respondent as a contractual appointee and his continuous services without any break, the question involved in the instant case is as to whether, after possessing ten years' working experience as Security Inspector, the Tribunal has erred in granting regularization from 25.04.2011 or as to whether the petitioners were justified in granting regularization from 01.08.2017 or as to what should be the correct date of regularization.
10. A bare perusal of Column 10 would reveal that Security Inspectors can be recruited either by direct recruitment or by deputation. Deputation includes short term contractual services and it is provided that if recruitment by deputation fails, it would be done by direct recruitment. Regularization aspect has been indicated after the word "or" that persons working as Security Inspector at National Sugar Institute on contract basis shall be considered for regularization provided they possess at least ten years experience.
11. The provision further reveals that the method of recruitment provides that a person working as Security Inspector at Regional Sugar Institute on contract basis is eligible for consideration 'for regularisation' provided he possesses at least 10 years' experience. Though the provision forms part of the Recruitment Rules for the post of Security Inspector, under the method of recruitment, provision has been made for consideration for regularisation and the eligibility is 10 years' experience.
12. Once the provision for regularisation provides for an eligibility i.e. 10 years' experience, the regularization, if granted, would relate back to the date when the person has attained the eligibility i.e. the date he completed 10 years' experience and the fact that the Rules were framed in the year 2016 and the order was passed on 10.08.2017 cannot affect the date on which the person is entitled to get regularized.
13. The order dated 10.08.2017 passed by the petitioners, clearly provides for 'regularisation' and, therefore, the intention of the petitioners being clear providing for regularisation under the above provision, the plea raised seeking to question the grant of regularisation on the respondent completing 10 years' of service cannot be countenanced.
14. When we test the submissions advanced on behalf of the petitioners that the consideration under Column 10 for regularisation would be made prospective only, the logical conclusion would be that the same would apply in respect of only those contractual appointees who would possess ten years experience after promulgation of Rules, 2016, and the same would mean that the person who is appointed on contract basis after promulgation of said Rules, say for example in November, 2016, would be considered for regularization w.e.f. December, 2026, having possessed by then at least ten years working experience. Such date has not yet arrived. Therefore, if we test validity of the argument qua the order impugned before the Tribunal whereby regularization of the respondent was ordered w.e.f. 01.08.2017, the very argument of Shri Singh on the aforesaid line would fail.
15. The judgment of Hon'ble Supreme Court in Registrar General of India (supra) did not deal with any service rules/regulations. The Apex Court was considering the case of ad-hoc appointees and was primarily concerned with regularization of such ad-hoc service from a back date which would disturb seniority of regularly appointed employees in the cadre. In that background, it was observed that the Tribunal must take care to see that when orders of regularization are passed from retrospective dates, those who are likely to be affected on account of that are not before that Court and their careers would be adversely affected and "ordinarily" the regularization must be prospective. The facts of the present case are entirely different where this Court has to see applicability of Column 10 of the Schedule contained in Rules, 2016 vis-a-vis nature of appointment initially offered to the respondent. The appointment having been made in contractual capacity and the respondent having continued to work for more than 16 years, i.e. beyond 10 years period as contemplated in Column 10, the judgment cited is distinguishable and has no application in the present matter.
16. The judgment in Sheela Rani (supra) is essentially a follow-up of the judgment in Registrar General of India (supra) where the Hon'ble Supreme Court was dealing with the case of a casual worker who was performing duties on muster roll. The said judgment too being distinguishable on facts as noted above, cannot be read in favour of the petitioners.
17. The judgement of Co-ordinate Bench of this Court in Prem Chandra Soni and others (supra), dealt with applicability of Uttar Pradesh Regularization of Ad-hoc Appointments (On Posts Within the Purview of Public Service Commission) Rules, 1979 and, by referring to Rule 7 of the aforesaid Rules which deals with seniority aspect and provides that a person appointed under the said Rules shall be entitled to seniority only from the date of order of appointment and shall be placed below the persons appointed in accordance with Service Rules, it was held that the learned Single Judge whose decision was under challenge before the Division Bench, had erred in ignoring the Rules of 1979 and, therefore, the judgement of learned Single Judge was set aside. In the instant case, altogether different service rules are applicable and the question of seniority not being involved at all for the reason that regularization of services of the respondent would not affect anybody's seniority in the concerned Cadre; there being a single post; the cited judgment would have no application in the facts of the present case.
18. Assistant Excise Commissioner, Kottayam (supra) deals with Abkari Shops Departmental Management Rules, 1972 and, by referring to certain previous decisions, mainly dealing with taxing statutes, it was observed by the Hon'ble Supreme Court that a rule or law cannot be construed as retrospective unless it expresses a clear or manifest intention to the contrary. It is further observed therein that the Courts will not ascribe retrospectivity to new laws affecting rights unless by express words or necessary implication, it appears that such was the intention of the legislation. While applying the said decision in the given facts of this case and testing the argument of petitioners' side as regards prospective operation of Rules, 2016, we find that the judgment would be against the petitioners. The reason is that by incorporating words "possess at least ten years experience" as eligibility for regularization, the legislature was clear in its mind that after promulgation of Rules, 2016, case of an employee falling in the prescribed category is entitled to be considered for regularization. Having ten years experience certainly refers to the past and cannot relate to future and, hence, even if we apply the principle of prospectivity/retrospectivity in the given facts of this case, we are of the view that a person having ten years experience on the date of promulgation of Rules, 2016 or immediately thereafter, would be entitled for being considered for regularization.
19. Now coming to the judgment of Vinod Kumar and others (supra) relied upon by respondent's counsel, the Hon'ble Supreme Court in fifth paragraph of the report held as under:-
"5. Having heard the arguments of both the sides, this Court believes that the essence of employment and the rights thereof cannot be merely determined by the initial terms of appointment when the actual course of employment has evolved significantly over time. The continuous service of the appellants in the capacities of regular employees, performing duties indistinguishable from those in permanent posts, and their selection through a process that mirrors that of regular recruitment, constitute a substantive departure from the temporary and scheme-specific nature of their initial engagement. Moreover, the appellants' promotion process was conducted and overseen by a Departmental Promotional Committee and their sustained service for more than 25 years without any indication of the temporary nature of their roles being reaffirmed or the duration of such temporary engagement being specified, merits a reconsideration of their employment status.
20. The Supreme Court also considered and explained its previous decision in Secretary, State of Karnataka vs. Umadevi, (2006) 4 SCC 1. Following observations of Umadevi (supra) need reproduction here:-
"44. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S. V. Narayanappa (supra), R.N. Nanjundappa (supra), and B.N. Nagarajan (supra), and referred to in paragraph 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 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 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 subjudice, need not be reopened based on this judgment, but there should be no further by- passing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme."
21. Column 10 of Schedule contained in Rules, 2016 though clearly entitles the respondent for consideration of regularization, however, the date of regularization mentioned as 01.08.2017 in the order impugned before the Tribunal does not appeal to our reason, inasmuch as, merely because the Central Government had issued a communication dated 18.01.2017 to the department to consider the respondent's case for regularization, the same would not mean that if regularization is granted, the same would be w.e.f. some date in 2017 or thereafter (01.08.2017 in the present case). Rather the petitioners should have correctly applied aforesaid Column 10 and accorded regularization based upon length of service rendered by respondent.
22. At this stage, we may mention that the Tribunal has partly erred in according regularization w.e.f. 25.04.2011. Admittedly, the respondent was discharged from his previous service on 29.02.2000. After undergoing the regular selection process, he was appointed on the post of Security Inspector on w.e.f. 25.04.2000. Two years reserved period computed from 29.02.2000 would end on 28.02.2002. Length of ten years service for the purposes of the instant case would end on 01.03.2012. It is the said date wherefrom regularization should have been ordered but it appears that the Tribunal has counted ten years period from 25.04.2001 (which date even otherwise is incorrect). The said calculation does not appear to be correct.
CONCLUSION
23. We, therefore, arrive at a conclusion that while the Tribunal has not erred in ordering for regularization of the services of the respondent from the date he completed 10 years' of contractual appointment but the date from which regularization has been ordered, i.e. 25.04.2011, is incorrect, which should be 01.03.2012. The other benefits of M.A.C.P. etc. would also be admissible to the respondent, accordingly based on the above date.
24. Accordingly, the instant writ petition is disposed of. While upholding the relief granted to the respondent, the order dated 02.05.2024 passed by the Tribunal is modified to the extent that the directions contained in paragraphs 29 and 30 of the said judgment would apply w.e.f. 01.03.2012 and not w.e.f. 25.04.2011. The petitioners shall proceed accordingly.
Order Date :- 20.2.2025
Jyotsana
(Kshitij Shailendra, J) (Arun Bhansali, CJ)
