Dinesh Chandra Joshi And Others vs State Of
2021 Latest Caselaw 2671 UK

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                   Office Notes,
                reports, orders or
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SL. No   Date                                      COURT'S OR JUDGES'S ORDERS
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                                     WPSS No. 968 of 2019
                                     Hon'ble Sharad Kumar Sharma, J.

(Through Video Conferencing)

Mr. Tapan Singh, Advocate for the petitioner.

Mr. B.S. Rawat, Brief Holder for the State of Uttarakhand.

The petitioner had earlier approached this Court by filing Writ Petition No. 449 of 2016, Dinesh Chandra Joshi and others Vs. State of Uttarakhand and others, wherein, while considering the claim of the petitioner, the learned Single Judge had observed that the petitioners, who were working as daily rated employee with the respondents in the capacity of being Class-IV employee or Driver in the Public Works Department and they have claimed their regularization in accordance with the Regularization Rules of 2013, which has been framed by the State Government for regularizing the services of the daily rated employees already working, in the Government Department.

The Coordinate Bench of this Court, while considering the impact of Act No. 17 of 2014, pertaining to the Payment of Wages Act, has disposed of the Writ petition by the judgment of 8th December, 2016, with the following directions :-

"11. The matter is, therefore, referred to the Secretary, Public Works Department as well as to the Chief Engineer Level -1 who shall both take a decision in this matter, considering the nature of the employment of the petitioners. If the only distinguishing factor between the petitioners and other daily rated employees who are eligible for regularization is that the petitioners have been given their salary/wages through cash then that in itself will not stand in their way for their regularization. What has to be considered by the Secretary, Public Works Department and Chief

Engineer Level - 1 is the actual nature of work being performed by the petitioners. In case they are satisfied as to their nature of work, they shall take a decision for regularizing the services of the petitioners within a period of six weeks from the date of production of a certified copy of this order"

The directions given therein by the Coordinate Bench was that the Secretary, Public Works Department, as well as the Chief Engineer, they were directed to take a decision in the matter and consider the claim of the petitioner for regularization, provided they are otherwise eligible for regularization and pay of the wages accordingly.

This judgment of the learned Single Judge dated 8th December, 2016, was put to challenge by the respondent employer in Special Appeal No. 371 of 2017, State of Uttarakhand and others Vs. Dinesh Chandra Joshi and others, and the Division Bench by the judgement of 8th September, 2017, had slightly modified the judgment and thereby had issued directions for consideration of the claim of the petitioner for regularization, that would be exclusively as per the Rules, and as against the sanctioned vacant posts available in the cadre.

The relevant paragraph of the Division Bench judgment is extracted hereunder :-

"11. The rule can be broken down as follows: since we are dealing in this case only with case of daily wagers, so the requirement is that a person must have completed 5 years of continuous employment. Such employment must be on daily wages basis. He must have been employed against such post or equivalent post. The period of five years continuous service must be on the date of commencement of the Rules. Further, he must be possessed of the requisite educational and other qualification. He must fulfil the age limit condition, as per relevant Rules, at the time of such employment. Employment must be against vacant sanctioned post, as mentioned in sub-Rule 1. Such person

would be entitled to be considered for regularization against sanctioned and vacant post in the cadre. Vacant and sanctioned posts are to be determined with reference to their availability as on the date of commencement of the Rules. Persons, in the eligibility list till the date prescribed in sub Rule 1, namely those who are eligible with reference to the date of commencement of the Rule, are to be regularized till availability of vacant post. In the Rules, there is no mention about mode of payment in regard to daily wagers. Therefore, we would think that Authority which is bound by the Rules will necessarily have to look into elements present in the statutory Rules to decide the question - whether petitioners are entitled for regularization. This would necessarily include question - whether the petitioners have worked on daily wage basis for continuous period of 5 years against sanctioned and vacant post. Subject to these observations appeals are disposed of. A decision must be taken, as directed by learned Single, within a period of two months from the date of production of certified copy of this judgment"

The petitioner contends that in pursuance to the aforesaid two judgments, the respondents have proceeded to make an inter-departmental communication for the purposes of considering the claim of the petitioner for regularization. But since the same was not yet been finalised and no decision was taken on the same, the petitioner had preferred the present Writ Petition on 29th April, 2017, praying for the following reliefs :-

"i) Issue a writ, order or direction in the nature of mandamus commanding/directing the respondents to regularize the services of the petitioner on the post of mate, as admittedly the petitioner is working in respondent's department since 13-10-2018, which is evident from the 14.03.2019 written by the Executive Engineer National Highway Division, P.W.D. Dehradun (contained as Annexure No.7 to this writ petition).

ii. Issue any other relief, which this Hon'ble Court may deem fit and proper in the circumstances of the case be passed in favour of the petitioner."

In fact, if the relief, which has been sought in the present Writ Petition, is taken into consideration, it is rather foundationed on the recommendation, which was made as back as on 13th October, 2008, which the petitioner contends was quite apparent from the communication made on 14th March, 2019, written by the Executive Engineer, National Highway Division, PWD, Dehradun, and on that basis, he had prayed for a writ of mandamus of regularization.

If the two reliefs are comparatively read as claimed in the Writ petition and as the one, which has been decided by the learned Single Judge by the judgment of 8th December, 2016, in fact, the direction to consider the regularization was already issued and in an eventuality, if the respondents has not decided the claim of the regularization of the petitioner in the light of the observations made by the judgement of the learned Single Judge, as well as of the Division Bench as given in para 11 of the judgement, the remedy available to the petitioner would have been to approach the Court, by filing a Contempt Petition within time as provided under Section 20 of the Act.

Having not done so, preferring a Writ Petition, with the relief which has already been extracted above would amount to that this Writ Petition happens to be a successive Writ Petition for the same cause of action and for same relief and it cannot be ruled that it was filed for a relief of writ of mandamus for regularization, in order to override the legal embargo of Section 20 of the Contempt of Courts Act, because the said prayer was already considered in the earlier Writ Petition.

In that eventuality, once the right of the petitioner has already been determined by the learned Single Judge, as well as ultimately by the Division Bench, where the issue of regularization

was remitted to the respondents, to be considered and decided, the subsequent Writ Petition for the same relief of regularization and yet too based upon the communication of 13th October, 2008, cannot be taken as to be the basis for the petitioner to re-approach afresh by filing the subsequent Writ Petition for the same cause of action.

In that view of the matter, since the petitioner has not invoked the contempt jurisdiction within time provided under Section 20 of the Act, for enforcing the earlier judgement already made in his favour, the second Writ Petition would not be tenable and the second Writ Petition cannot be used as a platform to override the effect and embargo of Section 20 of the Contempt of Courts Act.

Hence, this Court does not find any merit in the Writ Petition. The Writ Petition is accordingly dismissed.

However, dismissal of this Writ Petition would not preclude the respondents to take a decision on the issue of regularization, if at all they intend to, in compliance of the earlier judgment, but exclusively in accordance with law.

(Sharad Kumar Sharma, J.) Dated 29.07.2021 Shiv