Sohan Singh vs Union Of India
2022 Latest Caselaw 7589 Raj

      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR
               D.B. Civil Writ Petition No. 7404/2021

Sohan Singh S/o Shri Jugat Singh, aged about 46 Years, R/o
Village and Post Chandrakh Via Osian, District Jodhpur (Raj.)
                                                                    ----Petitioner
                                   Versus
1.     Union of India, through the Secretary, Government of
       India, Ministry of Communication, Department of Post,
       Dak Tar Bhawan, New Delhi - 11001.
2.     The Chief Postmaster General, Rajasthan Circle, Jaipur -
       302007
3.     The Post Master General, Western Region, Jodhpur -
       342001
4.     Senior Superintendent of Post Offices, Jodhpur Division,
       Jodhpur - 342001
                                                                ----Respondents


                             Connected With


               D.B. Civil Writ Petition No. 2703/2014
Sohan Singh S/o Shri Jugat Singh, aged about 41 years, R/o
Gram and Post Chandrakh Via Ossian District Jodhpur (Raj.)
Official Address GDS BPM Chandrakh Via Ossian, Jodhpur.
                                                                    ----Petitioner
                                   Versus

 1.     The Union of India, through the Secretary, Government
        of India, Ministry of Communication, Department of
        Post, Dak Tar Bhawan, New Delhi - 11001.
 2.     Senior Superintendent of Post Offices, Jodhpur Division,
        Jodhpur - 342001.
 3.     Sub.   Divisional     Inspector,        post      Offices   North   Sub
        Division, Jodhpur.

                                                                ----Respondents


For Petitioner(s)        :     Mr. Mukul Singhvi and Mr. S.P. Singh
For Respondent(s)        :     Mr. Mukesh Rajpurohit, ASG



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                                           (2 of 12)               [CW-7404/2021]


            HON'BLE MR. JUSTICE SANDEEP MEHTA
             HON'BLE MS. JUSTICE REKHA BORANA

                                 Judgment

Date of Pronouncement : 20/05/2022
Judgment reserved on : 13/05/2022
By the Court : PER HON'BLE BORANA, J.

The present matters have a long and checkered history. For

the purposes of adjudication of the present dispute, a brief detail

of the history is essential.

Vide order dated 13.06.2002, the process for filling up the

post of Gramin Dak Sevak Branch Post Master (GDSBPM),

Chandrakh was initiated by the respondent Department. The

applicant being eligible applied in pursuance to the said notice and

was selected. Vide order dated 18.02.2003, he was offered

appointment on provisional basis. It is relevant to mention here

that the appointment of the petitioner was in lieu of one Panna

Lal, who was regularly appointed on the post. Some disciplinary

proceedings were initiated against the said Panna Lal and his

services were put-off. Therefore, the appointment of the

petitioner was with the condition that he would continue on the

post till the disciplinary proceedings are finally disposed of against

Panna Lal and he has exhausted all channels of departmental and

judicial appeals and petition etc.

While the petitioner was continuing in service on provisional

basis, the notification dated 24.06.2004 was issued vide which the

applications were again invited for the post which the petitioner

was holding. The petitioner preferred the OA No.172/2004 before

the Central Administrative Tribunal (hereinafter referred to as the

"Tribunal") for challenging the said notification. The OA of the

(3 of 12) [CW-7404/2021]

petitioner was allowed vide order dated 08.05.2007 wherein it was

held as under : -

"It is the instructions / rules framed by the respondents themselves that provisional appointment is tenable till the disciplinary proceedings against regular incumbent are finalized etc. In this case it is admitted that till date the proceedings against regular incumbent have not been finalized. Thus, we see no reason as to why the respondents are bent upon in making again a provisional appointment with a view to replace the applicant who is already working on provisional basis. To us, it appears that that there is an effort on the part of the respondents to dis-entitle the applicant benefits to which he would be entitled if he completes three years of service. This cannot be allowed by a court of law, that too without any rhyme or reason. In the reply there are vague assertions on the part of the respondents that the appointment of applicant is irregular. Not a single specific irregularity has been pointed out by the respondents. Nobody has stopped them from making regular selection to the post. If an eventuality arises that regular holder of the post is to be reinstated, he can be reinstated at some other place. It is provided in the instructions itself. They cannot be allowed to thwart the benefits which may accrue to the applicant one he completes three years of service. The attempt made by the respondents to justify their action on the ground that shortfall of SC/ST is to be full filled does not appeal to reasons. If they proceed to make regular selection, one can understand their logic. But while making an officiating arrangement, such pleas prima facie appear to be tainted with unfairness. Replacement of an officiating hand with another officiating hand is also against the law laid down by various courts, including Hon'ble Supreme Court of India."

Meaning thereby, the Department was not restrained from

making regular selection to the post but it was specifically held

that replacement of a provisional employee by another provisional

employee was not permissible. With the said finding, the

notification dated 24.06.2004 was quashed and set aside. The said

order was not challenged by the respondent Department and the

petitioner continued to be in service.

(4 of 12) [CW-7404/2021]

In the year 2010, vide notification dated 16.03.2010

applications were again invited by the respondent Department to

fill up the post of GDSBPM to be posted at Chandrakh branch post

office (Osian) that is the place where the petitioner was working.

Aggrieved against the said notice, the petitioner again

preferred an OA No.95/2010 before the Tribunal on the ground

that in terms of the guidelines circulated vide communication

dated 21.10.2002 of the respondent Department, he was entitled

for regularization of services and fresh recruitment process for the

filling up of the post could not have been initiated by the

Department. The said OA of the petitioner was dismissed vide

order dated 02.04.2014 against which writ petition being D.B. Civil

Writ Petition No.2703/2014 has been preferred.

It has been submitted on behalf of the petitioner that :

1. The rejection of the application of the petitioner by the

Tribunal solely on the ground that the applicant is not a regularly

selected provisional appointee is wholly illegal. It has been

submitted that the finding was totally contrary to the finding of

the Tribunal in the order dated 08.05.2007 passed in the earlier

OA filed by the petitioner wherein it was specifically held as under:

"In the reply there are vague assertions on the part of the respondents that the appointment of applicant is irregular. Not a single specific irregularity has been pointed out by the respondents."

2. The Tribunal failed to consider the relevant guidelines dated

21.10.2002 of the Department which provided as under:

"Where regular incumbent is not reinstated, immediate action must be taken to regularize the regularly selected provisional appointee against the said post without resorting to fresh recruitment."

(5 of 12) [CW-7404/2021]

3. The disciplinary proceedings against the employee Panna Lal

had been concluded in the year 2008 and it had been held that he

was not entitled to be reinstated. Therefore too, the services of

the petitioner deserved to be regularized in terms of the

instructions contained in Gramin Dak Sevak (Conduct and

Employment) Rules, 2001 (hereinafter referred to as 'Rules of

2001') dated 18.05.1979 and circular dated 30.12.1999 wherein it

has been provided that the incumbents appointed on provisional

basis if, have completed 3 years of service and have been

conferred with certain benefits, efforts should be made to give

alternative appointment to them.

4. The petitioner has since completed almost 11 years of

service and was entitled for regularization even in terms of the

settled proposition of law as the services of the petitioner had

never been retrenched by the Department and he continued in

service till date without a break.

5. The applications filed by the similarly situated persons for

regularization had been allowed by the same Tribunal vide order

dated 28.03.2014 whereas that of the petitioner had been

rejected on the sole ground of him being not a regular employee

whereas it was the specific finding of the Tribunal in the earlier

round of litigation that the Department failed to prove any

irregularity in selection of the petitioner.

6. The respondent Department preferred the writ petitions

against the order dated 28.03.2014 passed in the case of the

other similarly situated employees and the same were rejected

vide order dated 14.01.2015. In pursuance to the rejection of the

writ petitions of the Department, the order of the Tribunal has

(6 of 12) [CW-7404/2021]

been acted upon and the services of those employees have been

regularized by the Department. The petitioner being a similarly

situated employee, by all means, deserves to be regularized.

Per contra, it has been submitted on behalf of the

respondent that :

1. The petitioner was appointed on purely provisional basis as

one regular employee Panna Lal was put-off duty and for the

smooth functioning of the post, the petitioner was appointed on

purely provisional basis with a declaration/undertaking from the

petitioner qua the same. Therefore, his services does not deserve

to be regularized.

2. Vide order dated 08.05.2007, although it was directed by

the Tribunal not to regularize the petitioner on temporary or

provisional employee but at the same time the Department was

left at liberty to take up the process for regular appointment of the

employees. Therefore, the present notification for appointment of

regular employees is totally in terms of the order dated

08.05.2007 of the Tribunal.

3. The petitioner did not participate in the regular selection

process initiated vide notification dated 16.03.2010 and therefore

also he is not entitled for regularization.

4. Even in terms of the ratio as laid down in the case of

Secretary, State of Karnataka Vs. Uma Devi [(2006) 4 SCC

1], the appointment of the applicant being not through a regular

selection process, his services cannot be regularized.

It is relevant to note that no interim order was passed in the

writ petition but the petitioner continued in service and is

continuing till date.

(7 of 12) [CW-7404/2021]

It has been submitted on record that the selection process of

2010 was never completed for some or the other reason and

meanwhile a fresh notification dated 22.06.2020 was issued by

the Department for the post of GDSBPM, Chandrakh.

Aggrieved against the said notification, the petitioner again

preferred an OA No.128/2020 before the Tribunal. Along with

filing of the said OA, the petitioner also preferred a second stay

petition in the present writ petition (D.B. Civil Writ Petition

No.2703/2014). The second stay petition of the petitioner was

rejected vide order dated 19.10.2020 on the ground that the

notification has already been challenged by the petitioner in the

OA filed before the Tribunal. In the OA filed before the Tribunal,

the respondent Department filed its reply and along with the reply,

placed on record the result dated 24.12.2020 of the recruitment

process undertaken vide the notification dated 22.06.2020. The

OA of the petitioner has been rejected by the Tribunal vide order

dated 12.04.2021 on the ground that the Department was free to

fill up the vacancy through a regular selection process and

secondly, that the petitioner did not participate in any of the

selection processes undertaken by the Department. So far as the

regularization part is concerned, the Tribunal held that the said

issue had already been dealt with in the previous OA's filed by the

petitioner and had been rejected therefore, the same cannot be

entertained in the present OA.

Aggrieved against the order dated 12.04.2021, the second

writ petition being D.B. Civil Writ Petition No.7404/2021 has been

filed. In the said writ petition, it has been argued on behalf of the

petitioner that :

(8 of 12) [CW-7404/2021]

1. The petitioner has completed a period of 17 years of service

and in view of the settled proposition of law deserves to be

regularized.

2. The similarly situated people have been regularized by the

Department and the case of the petitioner is totally akin to those

employees therefore, even on the ground of parity, the petition of

the petitioner deserve to be allowed and hence, his services

deserve to be regularized.

3. The notification dated 22.06.2020 also has not been issued

for appointment of regular employees and therefore as already

held by the Tribunal in the year 2007, the petitioner's services

cannot be replaced by some other temporary employee.

4. On the one hand, the Tribunal has rejected the claim of the

petitioner on the ground that the issue of regularization had

already been decided by the Tribunal vide order dated 02.04.2014

and therefore, the same is hit by res judicata. On the other hand,

the Tribunal has held that the petitioner cannot be treated at par

to the other similarly situated employees, his service being

provisional and temporary. When once the Tribunal applied the

principle of res judicata, it could not have given a finding

pertaining to the status of the petitioner qua the other similarly

situated employees.

5. The principle of res judicata as applied by the Tribunal in the

present case is totally against the basic principles of the said term.

It had nowhere been decided by the Tribunal in the earlier OA's

that the petitioner was not entitled to regularization. The only

question in the earlier OA's was whether the petitioner could be

replaced by some other temporary employee. Rather in the order

(9 of 12) [CW-7404/2021]

dated 08.05.2007, the Tribunal had given a specific finding that

the petitioner deserved consideration for the grant of benefits as

per entitlement upon completion of three years of service.

Therefore, the rejection of the OA by the Tribunal is totally

contrary to facts and law and hence deserves to be quashed.

Per contra, the respondents have supported the order as

passed by the Tribunal and prayed for the dismissal of the writ

petition.

Heard counsel for the parties and perused the material

available on record.

Two questions arise for consideration of this Court in the

present matter :

"(1) Whether the appointment of the petitioner can be termed to be illegal or irregular?.

(2) Whether the petitioner is entitled for regularization of his services in terms of Uma Devi's case (supra) and in terms of the orders passed in the case of similarly situated persons i.e. in UOI & Ors.

Vs. Nathu Lal Charpota (D.B.C.W.P.

No.9739/2014, decided on 14.01.2015) and other connected matters."

Question No.1

To decide the said question, the reply which has been filed by

the respondents becomes relevant. In para No.2 of the reply, it

has been submitted by the respondents as under :

"The regular GDSBPM, Chandrakh Sh. Panna Lal was placed under put-off duty with effect from 14.05.2002 and after that the work of Branch Post Office Chandrakh could not be managed by the GDSMC, Chandrakh as he was having educational qualification of 5th class passed. Keeping in view the circumstances the Inspector of Post Office North Sub Division Jodhpur was permitted to engage an eligible candidate as GDSBPM, Chandrakh purely on

(10 of 12) [CW-7404/2021]

temporary & provisional basis. The applicant Sh. Sohan Singh was engaged purely on temporary & provisional basis on the post of GDSBPM, Chandrakh w.e.f. 14.02.2003 A/N vide this office Memo No.H5/Chandrakh/Osian/01-02 dated 18.02.2003."

Upon a bare perusal of the averments as made above, it is

clear that though the petitioner was appointed on a temporary and

provisional basis, his appointment was through a regular selection

process. The appointment made in pursuance to the said process

cannot be held to be illegal or irregular. It is not disputed that the

appointment of the petitioner was conditional till the completion of

the disciplinary proceedings against Panna Lal and till it was finally

decided whether to reinstate Panna Lal or not. The most important

aspect here is that Panna Lal was never reinstated back in services

by the Department. Secondly, there was a specific finding by the

Tribunal in order dated 08.05.2007 that the assertion that the

appointment of the petitioner was irregular is totally vague and

not a single specific irregularity could have been pointed out by

the respondents. The said finding was never challenged by the

Department and the same became final for all purposes.

Therefore, in view of the above observations, it can safely be

concluded that the appointment of the petitioner was not an illegal

or irregular one.

Question No.2

The reply to question No.2 would also be in affirmative

because of the following reasons : -

1. In the year 2007 while deciding the OA, the Tribunal had

given liberty to the Department to initiate the process for regular

selection after decision of the Department in the case of Panna

(11 of 12) [CW-7404/2021]

Lal. Admittedly, it was decided by the Department in the year

2008 that Panna Lal was not to be reinstated. After the decision,

no proceedings for fresh recruitment were initiated by the

Department till 06.03.2010, the date on which the fresh

applications were invited.

2. The OA filed by the petitioner against the invitation of the

fresh applications vide order dated 06.03.2010 was dismissed by

the Tribunal on 02.04.2014 and in the writ petition filed against

the same by the petitioner, no interim order was passed in his

favour. Meaning thereby right from the year 2008 to the year

2014 there was no impediment against the respondent

Department to proceed with the fresh recruitment but the same

was not completed. Ultimately the fresh notification was issued on

22.06.2020, by which time the petitioner had completed almost

17 years of service.

3. As soon as the decision in the case of Panna Lal was taken

by the Department in the year 2008, the guidelines dated

21.10.2002 of the Department came into picture which provided

that where a regular incumbent is not reinstated, immediate

action must be taken to regularize the regularly selected

provisional appointee against the said post without resorting to

fresh recruitment. Therefore, in terms of the said circular too, the

petitioner was entitled to be regularized.

4. The case of the petitioner cannot be differentiated from that

of the other similarly situated employees namely Nathu Lal

Charpota and Ors. All the arguments raised by the Department in

the present petition had been raised in the writ petition

(D.B.C.W.P. No.9739/2014) of those employees too and after

(12 of 12) [CW-7404/2021]

consideration of the same the Division Bench decided in favour of

the petitioners therein. As the Department had acted upon the

same and regularized the services of the petitioners therein, the

present petitioner is also entitled to be regularized being a

similarly situated employee.

5. Even if it is assumed that the petitioner is not similarly

situated to the petitioners in the case of Nathu Lal Charpota and

Ors, the petitioner is entitled for regularization even in his

individual capacity. Admittedly, the petitioner has completed more

than 17 years of service and therefore, in terms of Uma Devi's

case (supra) also he is entitled for regularization of his services.

In view of the above observations and in view of the ratio as

laid down in Uma Devi's case (supra), the present writ petitions

are allowed. The impugned order dated 12.04.2021 (Annexure

P/1) in Writ Petition No.7404/2021 and impugned order dated

02.04.2014 (Annexure-1) in Writ Petition No.2703/2014 are

quashed and hereby set aside. The respondents are directed to

regularize the services of the petitioner with effect from the date

of completion of 10 years of services from his initial date of

appointment. All the consequential benefits would follow.

                                   (REKHA BORANA),J                                        (SANDEEP MEHTA),J


                                    35-36/AnilKC/-









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