Between vs Sewa Ram
2023 Latest Caselaw 2120 UK

      IN THE HIGH COURT OF UTTARAKHAND
                   AT NAINITAL
           ON THE 8TH DAY OF AUGUST, 2023
                       BEFORE:
          JUSTICE SHRI MANOJ KUMAR TIWARI
                         AND
            JUSTICE SHRI PANKAJ PUROHIT

              Special Appeal No. 581 OF 2017

BETWEEN:
Uttarakhand Jal Sansthan & others                               ...      Appellants

                                        Vs.
Sewa Ram                                                        ...Respondent

Counsel for the appellant         : Mr. Pankaj Chaturvedi, the learned counsel.
Counsel for the respondents        : Mr. M.C. Pant & Mr. N.K. Pipnoi, learned counsel

                                 JUDGMENT

1. Uttarakhand Jal Sansthan has filed this inter-court appeal challenging the judgment dated 03.05.2017 passed by learned Single Judge in Writ Petition (S/S) No. 1697 of 2015. By the impugned judgment, writ petition filed by Seva Ram was allowed. The order rejecting his claim for regularization was quashed and employer was directed to consider his case for regularization, if necessary, by creating a post.

2. It is contended on behalf of the appellants that respondent was engaged through contractor, therefore, the direction issued by Writ Court to consider his claim for regularization is unsustainable.

3. Per contra, learned counsel appearing for respondent submitted that respondent was appointed as Tubewell Operator, directly by Garhwal Jal Sansthan w.e.f. 01.06.1994. It is further submitted that service of respondent was terminated w.e.f. 15.08.1998 against which he raised an industrial dispute, which was referred for adjudication to Labour

Court, Dehradun and the Labour Court decided the reference in favour of respondent, vide award dated 27.03.2001. Perusal of the award reveals that contention raised by Jal Sansthan that respondent was engaged through contractor was repelled by learned Labour Court and it was held that respondent is employee of Jal Sansthan. The said award was affirmed by learned Single Judge of this Court vide judgment dated 11.08.2008.

4. Based on the award, learned counsel for respondent submits that appellants cannot reagitate the issue regarding status of respondent, which has become final.

5. This Court finds substance in the said contention. Since learned Labour Court has returned a categorical finding that respondent is an employee of Jal Sansthan, therefore, it is not open for the appellants to contend otherwise. Respondent's claim for regularization was rejected on the ground that he was being paid only Rs. 2,150/- per month as wages. Learned Labour Court had directed for his reinstatement with full backwages, therefore, the employer cannot be permitted to take benefit of his own wrong and if less amount was paid as wages to respondent, that cannot be put forth as a justification for not considering his claim for regularization. The Regularization Rules make no distinction between daily-rated/work-charged employees based on their wages and it confers right to be considered for regularization upon all employees, who completed ten years of service as such on 01.11.2011.

6. It is not in dispute that respondent was appointed as Tubewell Operator w.e.f. 01.06.1994 and

he is thereafter serving continuously in the said capacity, except for the period when he remained out of employment due to termination, which however, was declared to be illegal with a direction to reinstate him with backwages. It is nobody's case that work and performance of respondent during the last more than two decades was not found to be satisfactory. It was for the employer to ensure that all codal formalities were completed whiling appointing the respondent in 1994. After taking work continuously for nearly three decades, employer cannot be permitted to raise the plea that respondent was appointed in the absence of sanctioned post or formal order of appointment was not issued to him.

7. Hon'ble Supreme Court in the case of N.S.K. Nayar v. Union of India, 1992 Supp (2) SCC 508 has held in paragraph no. 6 that "taking work out of the petitioners in the STS posts for 10/15 years and denying them the right of regularisation and the consequent benefits in the said grade, is wholly arbitrary and is violative of Article 16 of the Constitution of India".

8.           We     have    gone       through     the    impugned
judgment.         Learned Single Judge has given valid
reasons for allowing the writ petition.                 In an intra-

court appeal, we are not inclined to interfere with the same. Thus, there is no scope for interference.

9. Accordingly, this special appeal is dismissed. No order as to costs.

(Pankaj Purohit, J.) (Manoj KumarTiwari, J.) 08.08.2023 Aswal