RSA No.3633 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3633 of 2008 Date of Decision:12.11.2008 The Meham Cooperative Sugar Mills, Rohtak ....appellant Versus Rambir Singh .....respondent CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR GARG Present: Mr.S.K.Verma,Advocate for the appellant **** RAKESH KUMAR GARG J. This is defendant's second appeal challenging the judgment and decrees of the Courts below whereby suit of the plaintiff-respondent has been partly decreed to the effect that he shall be given preference for regular post of Mason Helper or post in the equal scale whenever, it is created in the Meham Sugar Mill. The case of the plaintiff, respondent, in brief, is that he was appointed as Mason Helper by the appellant on daily wages on 03.12.1991. His services were terminated by the appellant without any reason on 12.01.1996. An Award was passed in his favour on 30.05.2000 by the Labour Court, Rohtak, whereby he was ordered to be reinstated with continuity of his service with 50% back wages and accordingly he joined his duties on 04.10.2000. It is further the case of the plaintiff-respondent that as per the instructions issued by the appellant in the year 1997, he was fully eligible for regularization of service on the post of Mason Helper. He made several requests to the appellant to regularize him, but of no effect. Hence this suit. RSA No.3633 of 2008 2 The appellant contested the suit questioning the maintainability of the suit and jurisdiction of the Civil Court to try the present suit. On merits, it was alleged by the appellant that the respondent was not given any appointment and he was only a casual labourer. It was, however, admitted by the appellant that the respondent was reinstated as per the award passed by the Labour Court. It was also alleged by the appellant that all the four posts of Mason Helper have already been filled up and at present there was no post of Mason Helper in the Sugar Mill, Meham and therefore the respondent cannot be given regular appointment. Rest of the allegations were denied and dismissal of the suit was prayed for. From the pleadings of the parties, following issues were framed by the trial Court: 1. Whether the plaintiff is entitled to regularization of his service on the post of Mason Helper along with all benefits, as prayed for?OPP 2. Whether this Civil Court has no jurisdiction to try and entertain the present suit?OPD 3. Whether the suit is not maintainable in the present form? OPD 4. Relief. The parties led evidence in support of their respective pleadings. The learned trial Court partly decreed the suit of the respondent with the direction to the appellant that the respondent shall be given preference for regular post of Mason Helper or post in the equal pay scale whenever it is created in the Meham Sugar Mill. Feeling aggrieved against the aforesaid judgment and decree of the trial Court, the appellant filed an appeal challenging the findings of the trial Court only on issue No.1. While dismissing the appeal filed by the defendant, the RSA No.3633 of 2008 3 Lower Appellate Court observed as under: “Having heard the learned counsel for the parties and after going through the material available on record, I am of the considered opinion that the contentions raised by the learned counsel for the appellant is hypothetical and has no substance. There is no dispute of the fact that the respondent was appointed in the Meham Sugar Mill on 03.12.1991 as Mason Helper on daily wages. His services were terminated on 12.01.1996. The Labour Court, on the application of the respondent, had ordered his reinstatement with continuity of service and 50% back wages by setting aside his termination order dated 12.01.1996. Since it was ordered that he be reinstated with continuity of service, therefore, for all intent and purposes, the respondent shall be deemed to be in service with effect from 03.12..1991. The learned trial Court in this situation had directed the appellant to adjust him as Mason Helper against the regular post or post in the equal pay scale whenever it is created in the Sugar Mill. The learned trial Court has no where directed the department to count his seniority in the seniority list and to give preference over and above the employees, who are senior to him. I, therefore, see no illegality or infirmity into the findings rendered by the learned trial Court on issue No.1. The same are, thus, affirmed.” Not satisfied with the aforesaid judgment and decree of the Lower Appellate Court, the defendant has filed the present appeal in this Court, challenging the judgment and decrees of the Courts below. Learned counsel for the appellant has vehemently argued that the Courts below have erred at law while passing the impugned RSA No.3633 of 2008 4 judgment and decree as it has been held by the Hon'ble Apex Court in the case of of Secretary, State of Karnataka vs.Uma Devi and others 2006 (3)RSJ 572 that the daily wages,(ad hoc), contract employees have no enforceable right of regularization if they are not appointed after adopting due procedure even if the employee has completed a long spell of his duties and it amounts to back door entry. The learned counsel has further argued that the notification dated 17.06.1997 issued by the State of Haryana on which the plaintiff-respondent has relied upon was rescinded vide notification dated 13.04.2007. Therefore, the appellant cannot be held entitled to regularization and the judgment and decrees of the Courts below are liable to be set aside. I have heard learned counsel for the appellant. However, I find no force in the contentions raised by the learned counsel for the appellant. There is no dispute with the proposition of law as settled by the Hon'ble Apex court in Uma Devi's case(supra). However, in Para 44 of the judgment, the Hon'ble Apex Court observed as under: “One aspect needs to be clarified. There may be cases where irregular appointments(not illegal appointments) as explained in S.V.Narayanappa(supra), R.N.Nanjundappa (supra), and B.N.Nagarajan(supra), and referred to in paragraph 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of courts or of tribunals. The question of regularization of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment. In that context, RSA No.3633 of 2008 5 the Union of India, the State Governments and their instrumentalities should take steps to regularize 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 or orders of courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularization, if any already made, but no sub judice , need not be reopened based on this judgment, but there should no further by-passing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme.” In the present case, it is also relevant to mention that in the case of U.P. State Electricity Board vs. Pooran Chandra Pandey & Other (2007) 11 SCC 92 the Hon'ble apex Court held that Uma Devi's case cannot be applied mechanically without seeing the facts of a particular case as a little difference in the facts can make Uma Devi's case inapplicable. Thus, according to observations of the Hon'ble Supreme Court in Uma Devi's case as aforesaid, the plaintiff-respondent was entitled to be considered on merits as per the policy of the appellants dated 17.06.1997. It is not the case of the appellant that the plaintiff-respondent does not fulfill the qualifications or eligibility criteria as per the scheme framed by the appellant. Rather, there is no dispute that the appellant was eligible for regularization of the service in view of the instructions issued by the State RSA No.3633 of 2008 6 of Haryana vide letter dated 17.06.1997. Thus, a right has accrued in his favour for regularization and he had a vested right for regularization when he filed this suit. The appellant cannot be denied this relief on the ground that the said notification stood rescinded vide instructions dated 13.04.2007. The alleged instructions dated 13.04.2007 cannot be applied in the case of the plaintiff-respondent, retrospectively to take away his vested right. This is not the case of the appellant that vide notification dated 13.04.2007 all actions taken under the notification dated 17.06.1997 have been nullified. Moreover, these instructions have been relied upon by the appellant only before this Court and no such plea has been raised before the Lower Appellate Court. Even before this Court, the said instructions are being relied upon without seeking any permission of the Court to lead additional evidence, in this regard. For the reasons recorded above, there is no merit in this appeal. Thus, the arguments raised by the learned counsel for the appellant is without any force. No substantial question of law arises. Dismissed. (RAKESH KUMAR GARG) JUDGE 12.11.2008 neenu