Hiralal S/O Laxman Sarve And Ors. vs The State Of Maharashtra And Ors.
2007 Latest Caselaw 573 Bom

JUDGMENT

Naresh H. Patil, J.

1. Heard.

2. The petitioners were employed as casual labours on different dates under the respondent No. 4 the Assistant Conservator of Forest. The petitioners' initial appointment was for a duration of three months which according to the petitioners was continued from time to time. The petitioners state that after a period of 4 years they approached the industrial Court seeking relief of permanency in service. The complaint was filed by the petitioners before the Industrial Court on 31-3-1989 which was decided in the year 1995. According to the petitioners, the Industrial Court turned down the prayer of the petitioners. The petitioners preferred Writ Petition No. 3212/95 against the decision of the Industrial Court, Jalna. Said writ petition was admitted and under the interim orders of this Court the petitioners were continued in their service. Said writ petition was finally disposed of by an order dt. 22-4-2004. It is stated that the court directed the respondents therein to consider the representation of the petitioners. The petitioners filed representations but the same were turned down. Being aggrieved by the decision of the State, the petitioners preferred an application with the Maharashtra Administrative Tribunal (Original Application No. 763/06). The original application was dismissed by the Tribunal on 29-9-2006 which gave rise to the filing of the present petition.

3. In the present petition following substantial reliefs are sought by the petitioners. They are:

B. By issuance of a Writ of Certiorari, or any other Writ, Order or direction in the nature of Writ of Certorari, the impugned decision of the government dated 11.07.2006 (Exhibit F) as also the decision of the Honourable Maharashtra Administrative Tribunal, at its Aurangabad bench passed in original application No. 763 of 2006/2006 (Exhibit H), may kindly be quashed and set aside.

C. By issuance of Writ of Mandamus or any other suitable writ, Order or Direction in said nature, the respondents be directed to regularize the service of the petitioners in the manner of all those 3761 employees services were regularized vide Government Resolution dated 08.03.1999.

D. Be issuance of further Writ of Mandamus or any other Suitable Writ,Order or Direction in said nature, the Honourable Maharashtra Administrative Tribunal, Bench at Aurangabad, be directed to hear and adjudicate the original application No. 763 of 2006 by remanding the matter back to the Court of First Instance.

4. The petitioners place reliance on a Government Resolution dt. 8-3-1999 and the order passed by the learned Single Judge of this Court (Justice A.P. Deshpande) dt. 22-4-2004 in the earlier petition filed by the petitioner bearing Writ Petition No. 3212/95. The petitioners state that they came to be appointed temporarily on ad-hoc basis on 27.9.1985, 22.8.1985 and 30.7.1985 respectively. The petitioners state that they were employed as casual labourers in respondent No. the Assistant Conservator of Forest, Jalna. Petitioner No. 1 was allotted the job of a clerk and, petitioner Nos. 2 and 3 were given duties of a peon. Their initial appointment was made for a period of 12 months, which continued from time to time. After putting in service of 4 years, the petitioners approached the Industrial Court on 31-3-1989. The Industrial Court decided the petition in the year 1995. Prayer made by the petitioners was turned down on the reasons that respondent No. 4 is not an industry and, therefore, the prayer for regularisation was not accepted. Being aggrieved by the decision of the Industrial Court, Jalna, the petitioners preferred writ petition bearing No. 3212/95. The said writ petition w as admitted and stay to discontinuation of the services of the petitioners was granted. During the pendency of the said writ petition, the Government directed officials to move proposal in respect of all such employees, who were appointed initially on casual basis and whose services are continued for a considerable time. The petitioners state that the proposal in respect of similarly situated employees like the petitioners, in all 3761 employees was considered by the Government. The Government regularised those employees under the Government Resolution dt. 8-3-1999. Writ Petition No. 3212/95 came to be disposed of. Learned Counsel for the petitioner has referred to the observations of this Court in para 7 of the order which states that:

Learned Counsel for the petitioners submits that the petitioners satisfy all the conditions contained in the said Government Resolution, but their cases were not considered, though representations were made, because of the pendency of the present petition before this Court.

5. It was pointed out in further observations in para No. 9 that till the State Government takes a decision on the representations to be made by the petitioners, the petitioners' services shall not be terminated.

6. The communication dt. 11-7-2006 Exh. F addressed tothe Additional Chief Conservator of Forests by the Section Officer, Revenue and Forest Department shows that the order in the shape of Government Resolution dt. 8-3-1999 is restricted in respect of 3761 employees whose names are mentioned in the annexure thereto. The petitioners impugned decision of the Government dt. 11-7-2006 before the Tribunal.

7. Shri Surve, learned Counsel appearing for the petitioners submitted that the petitioners were identically situated like the employees whose services were reguarlised by the State under the Cabinet decision. The only ground on which the petitioner's case is not considered was that they had approached this Court by filing writ petition and the petition was pending. The petitioners have put in 22 years of service and, at this stage, it would not be reasonable to terminate their services. The petitioners would be jobless and they would be deprived of livelihood. By giving reference of the judgment in Umadevi's case, the learned Counsel submitted that the case of the employees putting in 10 years service are required to be considered for the purpose of regularisation.

8. Shri Umakant Patil, learned AGP supported the decision of the State Government. Affidavit in reply is filed on behalf of respondent Nos. 2 to 4. We find it necessary to quote para 4 of the affidavit in reply.

4. In reply to para No. 3 I say and submit that, after the lapse of four years the petitioner approached to the Industrial Court for getting the permanency right in the service. The complaint filed by the petitioner was rejected by the Industrial Court, Jalna in the year 1995 on the ground that the services of the petitioners are not governed under the definition of 'Industry'.

9. Shri Umakant Patil, learned AGP submitted that it was one time measure which the Government has adopted by regularising the services of 3761 employees. Those employees were drawn from 12 departments. The petitioners' case is that they were not considered on merits, therefore, now, the issue cannot be re-opened. Learned AGP places reliance on Government Circular dt. 25-10-2005 in support of his contentions.

10. Learned AGP placed reliance on reported judgment in the case of v. 2006 AIR SCW 1991. We have perused the said judgment. Government resolution dt. 8-3-1999 stipulates certain conditions for granting benefit of regularisation as one time measure taken by the State Government under a cabinet decision. The petitioners' names do not figure in the list of 3761 employees who were working in the various departments of the State Government as ad-hoc temporary employees. While regularising the services of such employees, the State Government has dispensed with condition of selecting candidates through proper selection channels or through regional service selection board as the case may be. It was the policy decision adopted by the State Government and, in furtherance of the same, list of 3761 employees was prepared and such employees were regularised and accordingly, the decision was taken under a Government Resolution dt. 8-3-1999.

11. From the facts of the case and the order produced before us, we do not find that the petitioners cases were not forwarded due to pendency of their writ petitions in this Court. It was a one time measure adopted by the State Government in cases of 3761 employees belonging to 12 different categories of State departments. It is informed to this Court by the learned AGP that like petitioners, there were hundreds of such employees in the State who were appointed as ad-hoc employees.

12. We may refer to a case reported in 2007 AIR SCW 3228. It is observed in para 12 of the said judgment as:

12. It is true that they had continued in service for such a long time, but they have been thrust upon the appellant by reason of interim orders passed by the High Court. The Constitution Bench of this Court in Umadevi (supra) held:

15. Even at the threshold, it is necessary to keep in mind the distinction between regularisation and conferment of permanence ins service jurisprudence. In State of Mysore v. S.V. Narayanappa this Court stated that it was a misconception to consider that regularisation meant permanence. In R.N. Nanjundappa v. T. Thimmiah this Court dealt with an argument that regularisation would mean conferring the quality of permanence on the appointment.... This Court stated: (SCC pp. 416-17, para 26) Counsel on behalf of the respondent contended that regularisation would mean conferring the quality of permanence on the appointment whereas counsel on behalf of the State contended that regularisation did not mean permanence but that it was a case of regularisation of the rules under Article 309. Both the contentions are fallacious. If the appointment itself is in infraction of the rules or if it is in violation of the provisions of the Constitution illegality cannot be regularised. Ratification or regularisation is possible of an act which is within the power and province of the authority but thee has been some non-compliance with procedure or manner which does not go to the root of the appointment. Regularisation cannot be said to be a mode of recruitment. To accede to such a proposition would be to introduce a new head of appointment in defiance of rules or it may have the effect of setting at naught the rules.

16. In B.N. Nagarajan v. State of Karnataka this Court clearly held that the words "regular" or "regularisation" do not connote permanence and cannot be construed so as to convey an idea of the nature of tenure of appointments. They are terms calculated to condone any procedural irregularities and are meant to cure only such defects as are attributable to methodology followed in making the appointments. This Court emphasised that when rules framed under Article 309 of the Constitution are inforce, no regularisation is permissible in exercise of the executive powers of the Government under Article 162 of the Constitution in contravention of the rules. These decisions and the principles recognised therein have not been dissented toby this Court and on principle, we see no reason not to accept the proposition as enunciated in the above decisions. We have,therefore, to keep this distinction in mind and proceed on the basis that only something that is irregular for want of compliance with one of the elements in the process of selection which does not go to the root of the process, can be regularised and that it alone can be regularised and granting permanence of employment is a totally different concept and cannot be equated with regularisation.

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53. One aspect needs to be clarified. Thee 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 regularisation 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 regularise 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 regularisation, 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 regularising or making permanent, those not only 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. In the earlier Writ Petition No. 3212/1995 the learned Single Judge of this Court had passed an order of ad-interim relief on 10-7-1995 while admiting the petition in terms of prayer Clause E which reads:

(E) Pending hearing and final disposal of this Writ Petition by an appropriate order, or direction,the Respondents No. 1 to 4 be directed to continue the Petitioners in service without break.

Grant of interim relief by this Court in favour of the petitioners would make it clear that the petitioners were working under the orders of this Court.

14. Considering the stand adopted by the State we do not find any error or illegality in the decision making process of the State. The petitioners being appointed as ad-hoc/temporary, the benefit which was conferred on 3761 employees could not be conferred on the petitioners. We do not find any error or infirmity in the decision arrived at by the Tribunal. The petition fails and accordingly stands dismissed.