PREM RAM Vs. M.D. UTTARAKHAND PEY JAL & NIRM.NIGM&ORS

Supreme Court of India (Division Bench (DB)- Two Judge)

Appeal (Civil), 4474 of 2015, Judgment Date: May 15, 2015

If  engagement  in  a  work-
charged establishment rest on a  criterion,  no  better  than  the  absolute
discretion of the authority engaging them or  the  fortuitous  circumstances
of a vacancy or need in a work-charged establishment, then, there is  indeed
no difference between  a  daily-wager  on  the  one  hand  and  work-charged
employees on the other. No  distinction  can  resultantly  be  made  between
these two categories of employees  for  in  essence,  the  nature  of  their
engagement remains  the  same  except  that  in  the  case  of  work-charged
employees,  the  wages/emoluments  appear  to  be  borne  from  out  of  the
allocation for the project in which they are employed  while  in  the  other
case there is no such specific allocation of funds.  The  classification  of
work-  charged  and  other  employees  to  say  the  least  remains   wholly
unsatisfactory at least for the purposes of the  case  in  hand  leaving  no
option for us but to treat the case  of  the  daily-wagers  and  work-charge
employees on the same footing when it comes to  granting  regularization  to
them.


It  is  true  that  the  appellant  has
already superannuated. That does not, however, make  any  difference.   What
is important is that the appellant had been appointed as  early  as  in  the
year 1988 and had by the time the decision of this Court  in  Umadevi’s  (3)
case (supra) pronounced, already  completed  more  than  10  years  service.

 What is noteworthy is that neither the State Government nor  the  Jal
Nigam has resented the idea of regularization of those who have  served  for
over a decade. The rules  providing  for  regularization  are  a  sufficient
enough indication of that fact. We do not, therefore, see any impediment  in
directing regularization of the service of the appellant on the  analogy  of
his juniors with effect from the date his juniors were regularized  and  for
the release of all retiral benefits in his favour on that basis by  treating
him to be in continuous service till the  date  of  his  superannuation.

REPORTABLE

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4474 OF 2015
(Arising out of Special Leave Petition(C) No.837 of 2012)

Prem Ram …Appellant

Vs.

Managing Director, Uttarakhand Pey Jal &
Nirman Nigam, Dehradun and Ors. …Respondents

J U D G M E N T

T.S. THAKUR, J.

1. Leave granted.

2. This appeal arises out of an order dated 30th June, 2011 passed by
the High Court of Uttarakhand at Nanital whereby Special Appeal No.128 of
2011 filed by the appellant has been dismissed and the order passed by the
learned Single Judge of that Court in Writ Petition 324(MS) of 2004
affirmed.
3. The appellant, it appears, was appointed as a daily-wager in the
erstwhile Uttar Pradesh Pey Jal & Nirman Nigam sometime in the year 1988.
Nine years later his services were terminated in February 1997. The
termination, when assailed by the appellant before the Labour Court, was
set aside with a direction to the respondent to reinstate the appellant
with 50% back wages and continuity of service. The writ petition filed by
the respondent-Jal Nigam who is the successor-in interest of the erstwhile
Uttar Pradesh Pey Jal Nigam against the award made by the Labour Court
succeeded only in part and to the extent that the award of back wages was
deleted from the award by the Labour Court. It is common ground that
pursuant to the award, the appellant was allowed to rejoin as a daily-wager
and to serve the respondent-Jal Nigam till the date of his superannuation
upon completion of 60 years of age.

4. In the year 2008, the appellant filed Writ Petition No.1116 of 2008
before the High Court for a mandamus directing respondents to regularise
his services w.e.f. 1st July, 2003 on the post of Jeep Driver and to
release consequential benefits in his favour including arrears due to him.
The appellant’s case in the writ petition was that other daily-wagers who
were junior to him and appointed after the year 1988 having been
regularized in service, the appellant could not merely because of an
illegal order of termination of his services be deprived of that benefit.
The appellant contended that the termination order having been set aside by
the Labour Court which order was affirmed by the High Court with continuity
of his service, there was no reason for denial of benefits that would have
flowed to him but for the order of termination especially when such
benefits were extended to other similarly situate contemporaries and
juniors of the appellant.

5. The writ petition coming before the Single Judge Bench of the High
Court at Uttarakhand was dismissed by an order dated 23rd May, 2011 on the
authority of the decision of this Court in Secretary, State of Karnataka
and Ors. v. Umadevi (3) (2006) 4 SCC 1. The High Court at the same time
allowed the appellant to move a representation before the concerned
authorities in the light of paragraph 53 of the decision in Umadevi (3)
case (supra). The High Court observed that if there is a scheme of
regularization the claim of the appellant should also be considered in
accordance therewith.

6. Dissatisfied with the above order, the appellant preferred Special
Appeal No.128 of 2011 which, as noticed earlier, has been dismissed by the
Division Bench of the High Court. The High Court held that since there was
no scheme for regularization of daily-wagers and those named by the
appellant in the writ petition had been regularized by the Uttar Pradesh
Jal Nigam at a time when Uttarakhand Pey Jal and Nirman Nigam was not in
existence, nothing further could be done in the matter nor any relief
granted to the appellant. The present appeal assails the correctness of
the said two judgments and orders of the High Court.

7. When the matter came up for hearing before this Court on 8th July,
2013, learned counsel for the respondent-Corporation was granted time to
take instructions whether any scheme within the contemplation of para 53 of
Umadevi (3) case (supra) had been formulated by the respondent-Corporation
and in case no such scheme has been formulated, whether the Corporation is
willing to formulate one. The matter again came up for hearing on 18th
November, 2013. It was argued by Ms. Rachana Srivastava, counsel appearing
for the respondent-Uttarakhand Pey Jal & Nirman Nigam that while the Nigam
had passed a resolution adopting the scheme formulated by the State
Government in terms of the directions of this Court in Umadevi (3) case
(supra), the Government’s approval for such an adoption had not so far been
received. She prayed for and was granted time to place on record a copy of
the Government scheme adopted by the Nigam as also the resolution under
which the same was adopted besides, a copy of the approval, if any, granted
by the Government to such adoption. On 27th October, 2014, when the matter
came-up once again for hearing, our attention was drawn to additional
documents filed by the appellant from which it appeared that the persons
who figured at serials no.78 to 82 at page 12 of the said additional
documents had been regularized w.e.f. 1st July, 2003, although their entry
into service was shown to be 6th of June, 1989 onwards. It was on that
basis argued that persons junior to the appellant having been regularized
in service, whereas the appellant could not have been deprived of a similar
benefit simply because his services were illegally terminated. On behalf of
the respondent-Jal Nigam it was, on the other hand, argued that there was a
difference between cases of persons appearing at serial nos.78 to 82 and
that of the appellant inasmuch as the former were work-charged employees
while the appellant was appointed as a daily-wager. At the request of
learned counsel for the respondent-Nigam the matter was adjourned by four
weeks to enable the Nigam to file an additional affidavit as to whether
regularization had been ordered after undertaking any screening/selection
process and if so, on what terms and conditions.

8. From the affidavit filed, in compliance with the directions issued by
this Court, it appears that the Government of Uttarakhand had framed
Regularization Rules 2011 for regularization of daily-wagers and temporary
employees who had been appointed on or before 1st November, 2011 and had
completed 10 years of continuous service by that date. The said Rules were
then adopted by the Board of respondent-Jal Nigam in terms of resolution
passed in its 12th Meeting and approval of the State Government for
implementation of the said Rules in the Nigam sought under Managing
Director’s letter dated 3rd March, 2012 addressed to the Principal
Secretary, Peyjal Nigam, Government of Uttarakhand. While the approval of
the Government was still awaited, the Government appears to have framed
fresh Regularisation Rules in supersession of the Rules of 2011. These
Rules are said to be under challenge before the High Court of Uttarakhand
at Nanital in which the High Court appears to have passed certain interim
orders also. From the affidavits it is further evident that five persons
named by the appellant appearing at serials no.78 to 82 of the list of
juniors have been regularized in service. It is not in dispute that all
these persons were appointed on dates subsequent to the date of appointment
of the appellant. The respondent, however, has attempted to justify the
regularization of juniors mentioned above on the ground that they had been
appointed in work-charge establishment whereas the appellant herein was a
daily-wager. We asked learned counsel for the respondent as to whether
daily-wagers on the basis of their seniority or otherwise were brought on
to the work-charged establishment and if there was no such practice or
procedure followed, what was the basis on which the department would decide
whether the person has to be engaged on a work-charged establishment or as
a daily-wager. We must regretfully say that we did not get a satisfactory
answer to that question nor does any of the several affidavits filed in
these proceedings by the respondent-Jal Nigam point out a qualitative
difference between daily-wager on the one hand and a temporary engagement
on work-charged establishment on the other. If engagement in a work-
charged establishment rest on a criterion, no better than the absolute
discretion of the authority engaging them or the fortuitous circumstances
of a vacancy or need in a work-charged establishment, then, there is indeed
no difference between a daily-wager on the one hand and work-charged
employees on the other. No distinction can resultantly be made between
these two categories of employees for in essence, the nature of their
engagement remains the same except that in the case of work-charged
employees, the wages/emoluments appear to be borne from out of the
allocation for the project in which they are employed while in the other
case there is no such specific allocation of funds. The classification of
work- charged and other employees to say the least remains wholly
unsatisfactory at least for the purposes of the case in hand leaving no
option for us but to treat the case of the daily-wagers and work-charge
employees on the same footing when it comes to granting regularization to
them.

9. If that be so, there is no denying the fact that the persons who were
junior to the appellant, having been engaged much later than him, steal a
march over him in terms of regularization in service while the appellant
remained embroiled in litigation over what was eventually found to be an
illegal termination of his service. It is true that the appellant has
already superannuated. That does not, however, make any difference. What
is important is that the appellant had been appointed as early as in the
year 1988 and had by the time the decision of this Court in Umadevi’s (3)
case (supra) pronounced, already completed more than 10 years service.
Government has formulated rules for regularization of such daily-wagers, no
matter the same are the subject matter of a challenge before the High
Court. What is noteworthy is that neither the State Government nor the Jal
Nigam has resented the idea of regularization of those who have served for
over a decade. The rules providing for regularization are a sufficient
enough indication of that fact. We do not, therefore, see any impediment in
directing regularization of the service of the appellant on the analogy of
his juniors with effect from the date his juniors were regularized and for
the release of all retiral benefits in his favour on that basis by treating
him to be in continuous service till the date of his superannuation. We
make it clear that this direction will not entitle the appellant to claim
any amount towards arrears of salary based on such regularization.

10. In the result, this appeal succeeds and is hereby allowed. The
orders passed by the High Court are set aside and the writ petition filed
by the appellant disposed of in terms of the directions contained
hereinabove. The parties are directed to bear their own costs.

………………………………….…..…J.
(T.S. THAKUR)

…………………………..……………...
(ADARSH KUMAR GOEL)
New Delhi
May 15, 2015

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