1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR J U D G M E N T 1 . D.B. Civil Special Appeal (Writ) No.1197 of 2003. IN S.B. Civil Writ Petition No.2536 of 2002. Ramniwas son of Shri Prabhu Narain VERSUS State of Rajasthan & Others. 2 . D.B. Civil Special Appeal (Writ) No.1199 of 2003. IN S.B. Civil Writ Petition No.2537 of 2002. Sarvan Singh Bhati son of Shri Bux Singh Bhati VERSUS State of Rajasthan & Others. 3 . D.B. Civil Special Appeal (Writ) No.352 of 2004. IN S.B. Civil Writ Petition No.2456 of 2002. Gopal Lal Sain son of Shri Ramji Lal VERSUS State of Rajasthan & Others. Date of Order : : : : 17/ 04/ 2009. Hon 'ble Mr . Ju st ice K.S. Rat h or e Hon 'ble Mr . Ju st ice Bh an w ar oo Kh an Mr. Mahendra Shah, Counsel for Appellant/ Petitioners. Mr. Anant Bhandari, Dy. Govt. Counsel for Respondents By the Court : Since, all these special appeals, involving similar questions of facts and law, therefore, they are being decided by this common judgment. 2 For the purpose of factual aspect of the matter, we are taking the facts of the case of Ramniwas Vs. State & Others (DB SAW No.1197/ 2003), as leading case. The appellant preferred a writ petition bearing No.2536/ 2002, titled as Ramniwas Vs. State of Rajasthan & Other claiming following reliefs : - i) the impugned termination order dated 12.04.2002 may kindly be declared illegal and invalid and the same may kindly be quashed and set aside by issuing writ of certiorari with all consequential benefits. ii) that by an appropriate writ, order or direction the Hon'ble Court may kindly be declared Sections 7, 9 and 11 of the Act of 1999 ultra virus being violative of Articles 14, 16, 21, 39-A and 39-D of the Constitution of India and inasmuch as on repugnant to provision of Industrial Disputes Act, 1947 a contract labour Regularization Abolition Act, 1970. iii) any other relief which this Hon'ble Court deem fit and proper in the facts and circumstances of this case may also be passed in favour of the petitioner. In regard to Special Appeal bearing No.352/ 2004 (Gopal Lal Sen & Others Vs. State of Rajasthan & Another), it is submitted that during the 3 pendency of aforesaid appeal, the sole appellant has expired and the legal heirs and representatives of the appellant have been taken on record. The learned Single Judge after having heard the rival submissions of the respective parties and considering the judgment rendered by the Division Bench in regard to the validity of the provisions of the Rajasthan (Regulation of Appointments to Public Services and Rationalization of Staff) Act, 1999 (hereinafter referred as the Act of 1999), has dismissed the writ petition vide order dated 18.11.2003. The appellant-petitioner preferred a writ petition bearing No.2536/ 2002, which was dismissed by the learned Single Judge vide its judgment dated 18.11.2003. On remand made by the Division Bench the learned Single Judge vide its impugned judgment dated 18.11.2003 has considered the Division Bench's judgment with regard to the validity of the provisions of the Act of 1999 and dismissed the writ petition observing therein that the respondent-employer has passed the termination order after complying with the provisions of Section 25-F of the Industrial Disputes Act, 1947 and the 4 petitioner also having remedy under the provisions of the Industrial Disputes Act, 1947 to redress his grievances. Against the aforesaid impugned order dated 18.11.2003 the petitioner-appellant preferred the present appeal on the ground that the Division Bench of this Court in the case of Bhawani Singh & Others Vs. State and Other in D.B. Civil Writ Petition No.3271/ 2001 vide its judgment and order dated July 23rd, 2002, struck down the provisions of Sections 9 and 11 of the Act of 1999 and observed as under : “For the reasons aforesaid : (i) Secs. 9 & 11 read in light of Sec.19 of the Act of 1999 are declared ultra vires the Constitution being violative of Arts.14, 16 and 21 read with Arts. 39, 41 and 42 of the Constitution. (ii) The said provisions are otherwise inoperative for the reason of their apparent repugnancy with I.D. Act, 1947, which is a law made by the Parliament in respect of subject matters enumerated in entries 22, 23 and 24 of the Concurrent List, and field is exhaustively occupied by existing law and the State Legislation has not been reserved for consideration of the President and has not received his assent as required under Art.254 (2) of the Constitution. (iii) The following part of Clause (o) of Sec. 2(v) is also declared ultra vires. “a society registered under any law relating to the registration of societies for the 5 time being in force and receiving funds from the State Government either fully or partly for its maintenance, or any educational institution whether registered or not but receiving aid from the State Government.” (iv) As a consequence of declaration of Sec.9 to be ultra vires, any direction or order issued solely on the basis of and with reference to Sec.9 for non-regularization or consequential termination of services cannot be sustained. (v) Any order refusing claim to regularization and consequent termination as well as any claim to regularization can be made subject to remedial forums for adjudication as may be available under law. Sec. 11 being held ultra vires such claims cannot be refused to be adjudicated by the concerned forum by invoking Se.11. (vi) Likewise the claims to regularization, which have already been adjudicated and become final, there shall be no impediment in execution and implementation of such order, decree or award in accordance with law. (vii) Rest of the provisions of the Act, cannot be said to suffer from any such infirmity. Remaining provisions neither transgress the field in respect of which State legislature is competent to make law nor can be said to be repugnant to any law made by Central Act in respect of subject matter for which Parliament is competent to make law. (viii) However, the aforesaid declaration would not mean that mere continuance for long period confers an indefeasible right in favour of the incumbent for regularization in all circumstances. It must depend on facts of each case. Regularization of any employee is obligation of employer only where such long continuance as temporary employee is 6 considered to be resulting in unfair labour practice or is a case of arbitrary, unreasonable action on the part of the employer in public service by not conferring regular appointment to a person which is otherwise found to be lawfully made or where incumbent has been appointed by the competent authority but there is some procedural flaw not affecting validity of appointment. With aforesaid conclusions, we direct that all the cases referred to above may now be listed for orders for considering on merits the respective orders under challenge and reliefs claimed by the petitioners for making appropriate orders.” It is not disputed by the respective parties that against this judgment the State has preferred Special Leave Petitions before the Hon'ble Supreme Court and the same is pending consideration. Upon perusal of the impugned termination order, it appears that while terminating the services of the appellant-petitioner the respondents have considered the judgment rendered in the case of Malu Ram Vs. State of Rajasthan & Another passed by the Hon'ble Supreme Court in Civil Appeal 5087/ 1998 in regard to the validity of the provisions of the Act of 1999. Having gone through the judgment rendered by the Division Bench, it appears that the judgment of 7 the Hon'ble Supreme Court i.e. Malu Ram (supra) has not been considered at the time of passing of the said judgment by the Division Bench of this Court and further we are of the view that since the Special Leave Petition is pending before the Hon'ble Supreme Court, the appellant-petitioner can only be entitled to get reliefs only after the decision of the Special Leave Petitions pending before the Hon'ble Supreme Court. At this stage, since the respondent has passed termination order after following due process of law and following the ratio decindedi by the Hon'ble Supreme Court in the case of Malu Ram (supra), we are of the considered opinion that no interference in the impugned termination order as well as the order passed by the learned Single Judge is required to be called for. Consequently, all these special appeals fail and are hereby dismissed. However, it is made clear that if the Hon'ble Supreme Court in the Special Leave Petitions pending against the judgment of the Division Bench uphelds the judgment passed by the Division Bench of this Court in the case of Bhawani Singh and Others Vs. State and Others (supra), the appellants are at liberty to redress 8 their grievances in view of the judgments of the Division Bench and Hon'ble Supreme Court. ( Bh an w ar oo Kh an ) J. ( K.S. Rat h or e) J. ashok/ 9