SBCWP NO.7257/06. 1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. O R D E R S.B. CIVIL WRIT PETITION NO.7257/2006. Bhagwan Sahai Vs. Udyog Bhawan Common Facility Jaipur & Anr. Date of Order : September 16, 2008. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri Vigyan Shah for the petitioner. Shri N.R. Chaudhary & Shri Virendra Lodha for the respondents. **** Reportable BY THE COURT : Petitioner has filed this writ petition with the prayer that action of the respondents in not granitng him regular pay scale of the post of Class-IV w.e.f. 17/1/1990 and not regularising his services from that date, be declared arbitrary, illegal, unconstitutional and that the respondents be directed to grant him regular pay scale and regularisation with effect from 19/11/1990 with all consequential benefits. 2) Respondent-Udyog Bhawan Common Facility Jaipur is an organization created by the public sector establishments, offices of which are housed in Udyog Bhawan : Rajasthan State Industrial Development & Investment Corporation (R.I.I.C.O.), Rajasthan Financial Corporation (R.F.C.), Rajasthan Small SBCWP NO.7257/06. 2 Industries Corporation Ltd. (RAJ.S.I.C.O.), Rajasthan State Mineral Development Corporation Ltd. (R.S.M.D.C.) and Industry Department of the Government of Rajasthan. The petitioner claims that he was appointed with the respondents on the post of Messenger on 23/4/1987 and was thereafter illegally removed on 22/4/1988. An industrial dispute was referred to the Labour Court Jaipur at his instance and the same was answered vide its award dated 20/7/1994 holding termination of the services of the petitioner as illegal and entitled him to reinstatement with full back wages with continuity of service. The respondents challenged the aforesaid award before this Court by filing S.B.C.W.P. No.5296/94 which was decided by the learned Single Judge of this Court vide judgment dated 13/3/2001 in which award to the extent of reinstatement and continuity with service was upheld but backwages were reduded to 50%. Aggrieved thereby, respondents filed D.B.S.A.W. No.230/01 which was also dismissed with costs by the Division Bench vide judgment dated 10/11/2005. Still not satisfied, respondents filed Special Leave to Petition before Supreme Court which was also dismissed. Thereafter, respondents vide order dated 11/5/2006 reinstated the petitioner which was modified by another order dated 29/7/2006 to say that petitioner would have continunity in service for the intervening period. SBCWP NO.7257/06. 3 3) Shri Vigyan Shah, learned counsel for the petitioner argued that petitioner made number of representations to the respondents after his reinstatement that he should be given similar treatment as given to Shri Gopal Prasad Sharma, Shri Babulal Meena, Shri Tej Singh and Shri Ravindra Prasad Sharma who were earlier appointed with the petitioner on the same terms and conditions. These employees were granted regular pay scale of pay of the post of Class- IV by the respondents vide order dated 27/8/1991 with effect from 17/1/1990. Since at that time, petitioner was out of employment due to his illegal termination vide order dated 23/4/1988, he could not receive those benefits and now when the petitioner has been reinsatated vide order dated 11/5/2006 with continuity due to the award of the labour court, which matter was unsuccessfully challenged by the respondents upto the Supreme Court, the respondents were required to give him similar benefit to the petitioner as given to other similarly situated persons. It was contended that the labour court in para 8 of its award dated 20/7/1994 took note of the fact that regular pay scale has been granted to the similarly situated persons and, therefore, the direction contained in the award for reinstatement with consequential benefits should imply reinstatement in regular pay scale with all benefits attached thereto. It was contended that the SBCWP NO.7257/06. 4 post of Messenger is a Class-IV post in the pay scale of 750-940 and when all other persons, who were also appointed on consolidated basis with the petitioner, have been granted regular pay scale, petitioner should also be granted the same benefits. Though persons junior to petitioner are receiving regular pay but the respondents are paying him salary in the consolidated pay. Learned counsel for the petitioner argued that result of reinstatement of petitioner with continuity in service would be that he would be deemed to have been continued in services of the respondents since the date of his initial appointment on 23/4/1987 and in this manner he completed more than 21 years in services of the respondents. 4) Learned counsel for the petitioner cited the judgment of Supreme Court in UPSEB Vs. Poonam Chandra Pandey & others : 2007(7) Supreme 374 and argued that Supreme Court in that case after considering the case of Secretary, State of Karnataka Vs. Uma Devi : (2006) 4 SCC 1, held that when similarly situated persons were regularised, petitioner could not be discriminated and the benefit of decision of the Electricity Board permitting regularisation of employees working from before 4/5/1990 would be available to the petitioner in that case. Shri Vigyan Shah, learned counsel for the petitioner also relied on the judgments of this Court in Babulal Saini Vs. Rajasthan Financial Corporation & Ors. (S.B.C.W.P. SBCWP NO.7257/06. 5 No.366/1990 decided on 19/11/1990), Life Insurance Corporation of India & Anr. Vs. Rampal Singh : RLR 2006(1) 173, Sualal Yadav Vs. State of Rajasthan & Ors. : 2006(2) RDD 1156 (Raj.), Kishan Singh Vs. State of Rajasthan & Ors. : 2007(3) CDR 2361 (Raj.), State of Karnataka and others Vs. C.Lalitha : (2006) 2 SCC 747 and Narendra Kumar Tiwari Vs. State of Rajasthan and others (S.B.C.W.P. No.4090/1993 decided on 15/3/2007). 5) On the other hand, Shri Narendra Chaudhary and Shri Virendra Lodha, learned counsel appearing for the respondents opposed the writ petition and argued that Udyog Bhawan Common Facility being formal organisation to act as a common facility of five different offices in Udhyog Bhawan cannot be treated as State in the meaning of Article 12 of the Constitution of India. Petitioner was appointed on contractual basis on payment of consolidated salary. Regarding other employees, reference of which has been made by the petitioner, it is argued that they were initially extended the benefit of pay scale pursuant to the judgment of this Court dated 19/11/1990 but now in view of the subsequent judgment of the Constitutional Bench of Supreme Court in Umadevi supra, petitioner would not be entitled to even for that benefit. It was argued that that argument made by the petitioner before the Tribunal about the regular pay scale granted to other employees, would not mean SBCWP NO.7257/06. 6 that Tribunal granted the same benefit to the petitioner. The judgment of this court in case of other employees with whom the petitioner is claiming parity was delivered on the basis of law then existing, but now the position of law has entirely changed and all those judgments of Supreme Court which were relied on by the learned Single Bench of this Court in Babulal Saini supra stands over ruled by Umadevi supra. Law propounded in Babulal Saini supra has thus been watered down. Learned counsel argued that the argument of discrimination which is sought to be made by the petitioner has to be appreciated in the light of the changed position of law. Reference in this connection was made to the judgment of Supreme Court in Indian Drugs & Pharmaceuticals Ltd. Vs. Workmen, Indian Drugs & Pharmaceuticals Ltd. : (2007) 1 SCC 408 to argue that High Court cannot issue directions for absorption of temporary employees and pay them salaries of regular employees as it was an executive function. 6) Referring to para 53 of the judgment of Supreme Court in Umadevi supra, learned counsel for the respondents argued that Supreme Court directed the Union Government, State Government and other instrumentalities of the State to 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 SBCWP NO.7257/06. 7 of orders of the courts or of tribunals. It was argued that since appointment of the petitioner was not regular and further, since he has been reinstated with continuity in service under the cover of the award passed by the Tribunal, the petitioner would not be entitled to the benefits which may have been in the meantime granted to other employees. 7) Reliance was also placed on the judgments of Supreme Court in Punjab Water Supply & Sewerage Board Vs. Ranjodh Singh and others : (2007) 2 SCC 491, State of Punjab and others Vs. Lakhwinder Singh and others : (2007) 2 SCC 502, Indian Council of Medical Research and others Vs. K.Rajyalakshmi : (2007) 2 SCC 332 and Rajasthan Krishi Vishva Vidhyalaya, Bikaner Vs. Devi Singh (Appeal (Civil) 4327 of 2003 decided on 14/2/2008). 8) I have given my earnest consideration to the arguments advanced by the learned counsel for the parties and perused the material on record and cited judgments. 9) Even though the respondents are seeking to resist claim of the petitioner for payment of regular pay scale and regularisation on the basis of judgment of Supreme Court in Umadevi supra, but they do not deny the fact that petitioner was initially appointed on 23/4/1987 and that he was removed vide order dated 22/4/1988. Now, when termination of the services of the petitioner has been held to be illegal with SBCWP NO.7257/06. 8 direction to the respondents to reinstate him in service with continuity, resultant situation would be that he would be deemed to have been continued in their services with effect from 23/4/1987 till now. Petitioner was not the only person who was engaged on payment of consolidated salary but there were also many other persons out of which, 20 persons filed writ petitions before this court claiming regular pay scale of the post with all consequential benefits. A co- ordinate bench of this Court in Babulal Saini supra held that all the petitioners therein should be given minimum of pay scale of Class-IV servants along with other allowances from the date of filing of respective writ petition and the respondents were directed to frame a scheme within a period of six months on rational basis for making them permanent such of the petitioners who have completed more than one year and this process of making permanent shall be completed within a period of nine months from the date of passing of the order dated 19/11/2001. 10) The special appeal filed by the respondents against the said judgment was dismissed by the Division Bench of this Court vide judgment dated 10/11/2005 and thereafter the Special Leave to Petition filed thereagainst was also dismissed by the Supreme Court vide order dated 31/3/2006. The respondents have granted the benefit of regular pay scale and regular status in service to those persons, SBCWP NO.7257/06. 9 who were appointed with the petitioner in same manner and on the same terms and conditions as were that of the petitioner. 11) Judgment of this Court in Babulal Saini supra has been implemented by the respondents. Award passed by the labour court in the case of the petitioner was earlier upheld by the learned Single Judge of this Court and thereafter in the like manner by the Division Bench and ultimately by the Supreme Court. The resultant effect would be that petitioner, who was removed from service on 22/4/1988, would be treated to have continued in the service of the respondents from the date of his initial appointment on 23/4/1987 to date. In other words, if petitioner had not been removed and continued in service, he would have also received the same benefits as were granted to other similarly situated persons i.e. Shri Gopal Prasad Sharma, Shri Babulal Meena, Shri Tej Singh and Shri Ravindra Prasad Sharma pursuant to the judgment of this Court in Babulal Saini supra, who were earlier appointed with the petitioner on the same terms and conditions and payment of consolidated salary. Therefore, petitioner is also entitled to be paid the same benefits which have already been granted to above persons. The order dated 27/8/1991 (Ann.3) which is on record, indicates that those employees who were earlier working on payment of consolidated salary basis were fixed in regular pay scale of 750-940 with SBCWP NO.7257/06. 10 effect from 19/11/1990 with all consequential benefits. The office order dated 27/8/1991 which is on record further indicates that service conditions of the employees of Udyog Bhawan Common Facility Jaipur (respondents) shall be governed and regulated as per the provisions of the Rajasthan Service Rules, 1951 as is applicable to Class-IV employees of the State Government for the purpose of grant of pay scales and allowances and that they would be liable to be proceeded against in departmental action under the Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958. All those judgments on which petitioner placed reliance, would therefore support his claim for the same benefits which have been granted to similarly situated persons, on the principle of equality enshrined in Articles 14 & 16 of the Constitution and on analogy of parity. 12) Contention that as per observations made by Supreme Court in para 53 of Umadevi, those who have continued in services of the respondents pursuant to orders of the courts or tribunals, would not be entitled to benefit of regularisation and more particularly when appointment of the petitioner was not regular, is liable to be rejected. Question of appointment of petitioner not being regular would be inconsequential in the face of facts that those engaged on the same terms and conditions like the petitioner have already been granted the benefits of SBCWP NO.7257/06. 11 regular pay scale and other allowances and petitioner is only claiming parity with them. So far as the argument that petitioner has continued/deemed continued in service of the respondents under the cover of the award passed by the labour court is concerned, this argument is clearly devoid of any substance because para 53 of Umadevi supra, if read in entirety, makes it amply clear that Supreme Court in that case observed so while directing Union Government, State Governments and other instrumentalities to take steps to regularise as one- time measure, services of such irregularly appointed employees who have worked for 10 or more years, observing that period for which such employees would have continued in services by the intervention of the orders of the courts or of the tribunals would be excluded. In other words, even though the employers did not wish to continue them in their employment, they continued so on the strength of the orders passed by the tribunals or of the courts. Such orders should invariably be construed in the nature of interim- orders but continuation of such employees with the intervention of the orders of the courts or awards of the tribunals, cannot be understood to mean a final adjudication of the claim in favour of employee by the labour court which has not only been upheld by the learned Single Bench but lateron by the Division Bench of this Court and even the Apex Court. This would SBCWP NO.7257/06. 12 bring us back to the question of parity and that, if it is found that petitioner has been able to make out a case on the ground of discrimination, whether the observations made by the Supreme Court in Umadevi supra should be so construed as to deprive him of his legitimate dues even though he is otherwise found entitled thereto. This very question fell for consideration of the Supreme Court in UPSEB supra in which case 34 daily wage employees of the Cooperative Electric Supply Society prayed for regularisation of their services in the UPSEB. In that case, the Society was taken over by the Electricity Board on 3/4/1997 with the stipulation that daily wage employees of the Society would start working with the Electricity Board in the same manner and position in which they were working with the society. They were absorbed in the services of the Electricity Board. The Board took a decision on 28/11/1996 to regularise the services of its employees working on daily wage basis from before 4/5/1990 on existing vacant posts. Argument of the 34 employees who were originally working in the Society and were absorbed in the Board was that decision of the Board dated 28/11/1996 with regard to regularisation of daily wage emplyees, who were working before 4/5/1990, would apply to their case too. Their claim was resisted by the Board citing judgment of Supreme Court in Umadevi supra. Supreme Court while rejecting the argument in paras 16 to 19 SBCWP NO.7257/06. 13 of the said judgment, observed as under:- "16. We are constrained to refer to the above decisions and principles contained therein because we find that often Uma Devi's case (supra) is being applied by Courts mechanically as it was a Euclids formula without seeing the facts of a particular case. As observed by this Court in Bhavnagar University (supra) and Bharat Petroleum Corporation Ltd. (supra), a little difference in facts or even one additional fact may make a lot of difference in the precendential value of a decision. Hence, in our opinion, Uma Devi's case (supra) cannot be applied mechanically without seeing the facts of a particular case, as a little difference in facts can make Uma Devi's case (supra) inapplicable to the facts of that case. 17. In the present case the writ petitioners (respondents herein) only wish that they should not be discriminated against vis-a-vis the original employees of the Electricity Board since they have been taken over by the Electricity Board "in the same manner and position". Thus, the writ petitioners have to be deemed to have been appointed in the service of the Electricity Board from the date of their original appointments in the Society. Since they were all appointed in the Society before 4.5.1990 they cannot be denied the benefit of the decision of the Electricity Board dated 28.11.1996 permitting regularisation of the employees of the Electricity Board who were working from before 4.5.1990. To take a contrary view would violate Article 14 of the Constitution. We have to read Uma Devi's case (supra) in conformity with Article 14 of the Constitution, and we cannot read it in a manner which will make it in conflict with Article 14. The Constitution is the supreme law of the land, and any judgment, not even of the Supreme Court, can violate the Constitution. 18. We may further point out that a seven- Judge Bench decision of this Court in Maneka Gandhi Vs. Union of India & Anr, AIR 1978 SC 597 has held that reasonableness and non- arbitrariness is part of Article 14 of the Constitution. It follows that the government must act in a reasonable and non-arbitrary manner otherwise Article 14 of the Constitution would be violated. Maneka Gandhi's case (supra) is a decision of a seven-Judge Bench, whereas SBCWP NO.7257/06. 14 Uma Devi's case (supra) is a decision of a five-Judge Bench of this Court. It is well settled that a smaller bench decision cannot override a larger bench decision of the Court. No doubt, Maneka Gandhi's case (supra) does not specifically deal with the question of regularization of government employees, both, principle of reasonableness in executive action and the law which it has laid down, in our opinion, is of general application. 19. In the present case many of the writ petitioners have been working from 1985 i.e. they have put in about 22 years service and it will surely not be reasonable if their claim for regularization is denied even after such a long period of service. Hence apart from discrimination, Article 14 of the Constitution will also be violated on the ground of arbitrariness and unreasonableness if employees who have put in such a long service are denied the benefit of regularization and are made to face the same selection which fresh recruits have to face". 13) Labour Court in the present case held the petitioner entitled to consequential benefits with full back wages but this Court while partly allowing the writ petition of the respondents, restricted the claim with regard to back wages to only 50%. Judgment of the labour court granting consequential benefits was upheld by the Division Bench and thereafter by the Supreme Court. This would therefore obviously imply that right of the petitioner to benefit of reinstatement with continuity, consequential benefits and 50% backwages, stands finally crystilized in his favour. Had he not been illegally removed, the petitioner would have received all such benefits. Now on scrutiny of the material on record, it is established that all those who were appointed along SBCWP NO.7257/06. 15 with the petitioner by the same order in the same manner on payment of consolidated wages, have been granted regular scale of pay as also the regular status, petitioner should also be held entitled to all those benefits from such dates as given to these similarly situated persons on the ground of parity. 14) In view of the aforesaid discussion, this writ petition deserves to be allowed and is accordingly allowed. Respondents are directed to treat the petitioner to have been granted regular scale of pay in terms of the order dated 27/8/1991 and accordingly grant him such regular pay scale with effect from 17/11/1990 as granted to Shri Gopal Prasad Sharma, Shri Babulal Meena, Shri Tej Singh and Shri Ravindra Prasad Sharma in the same manner in which petitioner was appointed and pay to him 50% of the backwages of such salary revised from time to time. Compliance of the judgment shall be made within three months from the date copy of this judgment is produced before the respondents. (MOHAMMAD RAFIQ), J. anil/-