1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR O R D E R S.B. CIVIL WRIT PETITION NO.3624/2006 (Smt. Sonu Bhatia Vs. U.O.I. & Ors.) Date of order : 16.04.2008 P R E S E N T HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS Mr. S.N. Trivedi, for the petitioners. Mr. M.S. Godara on behalf of Mr. V.K. Mathur, for the respondents. In this writ petition, the petitioner has prayed for quashing the order impugned dated 13.5.2005 (Annexure-6) and further prayed that the respondents may be directed to treat the petitioner's husband late Ravi Kumar Bhatia as regular Central Government employee w.e.f. 1.10.1991 and pay her all the terminal/pensionary benefits along with interest and other dues. The petitioner's husband Late Ravi Kumar 2 Bhatia was initially appointed as Tea Maker in the pay scale of Rs.160-375 in the Canteen run by the respondents at Bikaner on 1.12.1983. The services of the petitioner's husband were terminated and thereafter, the petitioner's husband raised an industrial dispute and the Judge, Labour Court Bikaner decided the reference made by the appropriate Government in favour of the petitioner's husband vide award dated 3.8.1991 whereby the termination of the services of the petitioner's husband w.e.f. 15.9.1984 was set aside. Accordingly, an order was passed for reinstatement with continuity in service along with 75% back wages w.e.f. 5.11.1986. Against the said award, the respondent – employer preferred a writ petition before this Court and the same was registered as SB Civil Writ Petition No.352/1992. The said writ petition was dismissed by learned Single Judge and against the judgment passed by learned Single Judge, an appeal was preferred by the employer and the said appeal was registered as DB Civil Special Appeal (Writ) No.162/1993 whereby the Hon'ble Division Bench of this Court passed an ex- parte interim order and it was ordered that no coercive process be taken in recovering back wages to the extent of 35% of back wages and 40% back wages were ordered to be paid. The petitioner's husband was reinstated in 3 service and was paid 40% back wages as ordered by Hon'ble Division Bench. Thereafter, the petitioner's husband appeared and qualified the screening test for Telephone Mechanic held on 2.5.1999 and he was given officiating promotion. The petitioner has placed on record the order Annexure-2 whereby the petitioner was declared successful in departmental qualifying screening test. The name of the petitioner's husband is appearing at Sl. No.56 in the select list. During the pendency of the aforesaid special appeal, unfortunately, the petitioner's husband died on 14.1.2000 and no steps were taken by the respondents to substitute the legal representatives of late Ravi Kumar Bhatia. Therefore, the said special appeal was abated by Hon'ble Division Bench vide order dated 10.3.2003. Thereafter, according to the petitioner, the award passed by Judge, Labour Court attained finality because against that award, the writ petition filed by the employer was also dismissed. It is contended by the learned counsel for the petitioner in the writ petition that as per the judgment of Hon'ble Apex Court, a circular was issued on 16.11.1992 by the Department of Personnel and Training, New Delhi by which the pensionary benefits were granted. The petitioner has placed on record the said notification as Annexure-4. 4 Learned counsel for the petitioner further prayed that after reinstatement while making pay fixation, the pay of the petitioner's husband was fixed as Rs.810/- per month on 1.12.1987 and he was provided annual grade increments but for no reasons on 29.9.1992 his pay was reduced from Rs.810/- to Rs.750/-. Therefore, for difference of wages, the petitioner's husband preferred an application under Section 33 (C) (2) of the Industrial Disputes Act, 1947 before the Labour Court, Bikaner. The Judge, Labour Court after hearing both the parties allowed the claim of the petitioner's husband. Against the said order passed by Judge, Labour Court on 28.4.1999, the respondents preferred a writ petition before this Court and the said writ petition was registered as S.B. Civil Writ Petition No.4327/1999. However, the said writ petition was dismissed vide order dated 25.7.2000. After death of petitioner's husband, the payment of 35% of back wages amounting to Rs.29,300/- has been paid through cheque dated 5.9.2003 by the respondent administration without any interest for period from 10.5.1993 to 4.9.2003. In this writ petition, the petitioner is claiming that the case of the petitioner's husband was not considered for regularizing his services, therefore, after his death, the petitioner made 5 representation before the respondent administration for regularizing the services of the petitioner's husband and to grant pensionary benefits in the light of the circular issued by the Department of Personnel and Training, New Delhi and in pursuance of the verdict given by Hon'ble Apex Court. In the representation, it is specifically mentioned by the petitioner that so many persons similarly situated with the petitioner's husband were granted benefit of regularization and for illustration, she gave name of one Ram Chandra, Tea Maker who was treated as Central Government Employee and admittedly he was junior then the petitioner's husband but the case of the petitioner's husband was not considered due to pendency of the case before this Court and the services of the petitioner's husband were not regularized. In response to the representation filed by the petitioner, the case of the petitioner's husband was considered by the Divisional Manager (Administration), Bikaner and vide Annexure-5, the case of the petitioner's husband was sent to the Office of Chief General Manager in which, it is observed that Ram Chandra, Tea Maker was junior then the petitioner's husband and his services were regularized. Therefore, for the purpose of granting sanction for regularization, the matter was referred 6 to the Office of Director General. Though the case of regularization of services of petitioner's husband was recommended vide communication Annexure-5 dated 14.12.2004 but the respondent Department vide communication dated 13.5.2005 (Annexure-6) rejected the case of regularization of services of petitioner's husband from retrospective date. The petitioner is challenging the said order on the ground that after dismissal of the writ petition and the special appeal filed by the respondents against the award, it was the duty of the respondents to regularize the services of the petitioner's husband, who was in service but due to inaction on the part of the respondents, the services of the petitioner's husband were not regularized and it resulted into the denial of pensionary benefits, which is made applicable to the employees of the respondent department vide notification Annexure-4. Therefore, while challenging Annexure-6, it is vehemently contended by learned counsel for the petitioner that this order is totally non speaking order. Admittedly, the services of one Ram Chandra junior employee then the petitioner's husband were regularized but the respondents have illegally denied the benefit of regularization of services of the petitioner's husband. Therefore, the order Annexure-6 7 deserves to be quashed and the respondents may be directed to regularize the services of the petitioner's husband in accordance with the circular issued by the Central Government for regularizing the services of those employees who were in service for considerable period and after regularizing the services of Late Ravi Kumar Bhatia – husband of the petitioner, the petitioner's case may also be considered for granting pensionary benefits in accordance with circular dated 16.11.1992 with all consequential benefits. By way of filing reply, it is contended by the learned counsel for the respondents that the petitioner is not entitled to get any benefit as petitioner's husband was temporary employee and his case was pending before this Court, therefore, his services were not regularized and later on after his death, there is no question to regularize the services of Late Ravi Kumar Bhatia. Further, it is contended that the petitioner's claim is totally unfounded because she is claiming regularizion of services of a person who died during the pendency of litigation, which is not permissible. The husband of the petitioner was working as casual labour only and he was not holding the status of regular employee in the respondent department, therefore, the petitioner cannot claim any benefit of pension and regularization of the services of her husband Late Ravi Kumar Bhatia 8 from the respondents. According to the respondents, as per the verdict of Hon'ble Apex Court, a circular issued by Department of Personnel & Training, New Delhi, under the said circular, services of those employees who were regular Tea Makers of Department of Telecom, prior to issuance of the order were to be regularized. Since, the deceased official was not confirmed on the post of Tea Maker, hence, no pensionary benefits can be awarded to his legal heirs. In these circumstances, no violation of rules has been committed by the answering respondents. According to the respondents, the petitioner is not entitled for pensionary benefits because pensionary benefits are payable to regular employee of the Central Government and the petitioner's husband was not regular employee of the respondent Department, hence, question of grant of pensionary benefits does not arise. I have considered the rival submission made by the parties. In this case, it is not disputed that initially the petitioner's husband was appointed on 1.12.1983 and his services were terminated w.e.f. 15.9.1984. Against which an award was passed for his reinstatement by the Judge, Labour Court, Bikaner on 3.8.1991 and the writ petition preferred by the 9 respondents against the said award was also dismissed by learned Single Judge of this Court, therefore, he was reinstated in service and as per order of Hon'ble Division Bench of this Court, the petitioner's husband was paid 40% back wages but unfortunately, the petitioner's husband was died during pendency of litigation before Hon'ble Division Bench of this Court, therefore, obviously his case was not considered for regularization and it resulted into denial of pensionary benefits to the petitioner. The special appeal filed by the respondents against the judgment of learned Single Judge was abated because legal representatives were not made party after the death of Late Ravi Kumar Bhatia. Upon perusal of Annexure-5, which is forwarded upon the representation of the petitioner, it is crystal clear that Divisional Engineer (Administration) accepted that the services of Ram Chandra, Tea Maker was regularized who was admittedly junior then the petitioner's husband because date of appointment of Ram chandra is 20.6.1994 whereas the petitioner's husband was appointed on 1.12.1984. If the services of Ram Chandra, Tea Maker was regularized then the services of the petitioner's husband is also required to be regularized but vide Annexure-6, benefits of regularization has been denied without assigning any reasons. 10 In these circumstances, in my opinion, the denial of regularization of the services of the petitioner's husband by the respondents is totally unfounded and violative of Article 14 and 21 of the Constitution of India because admittedly the services of the petitioner's husband were not regularized due to pendency of litigation before this Court but it is admitted fact that he was reinstated in service and he was in service till the date he died. Therefore, after death when special appeal filed by the respondents was abated, then husband of the petitioner Late Ravi Kumar Bhati was to be treated regular employee of the respondent Department. It is also one of the important fact of this case that in the year 1999, late Ravi Kumar Bhatia was allowed to appear in the departmental qualifying test for telephone mechanic in which he was declared successful, which is evident from Annexure-2 and this fact is not denied by the respondents in their reply. Meaning thereby, the suitability of the petitioner's husband was adjudicated even for promotional post by the respondents, therefore, the respondents are under obligation to consider the case of petitioner's husband for regularization and to treat him as regular employee but the said benefit has been denied without assigning any reasons. Accordingly, I deem it just and proper to direct the respondent to regularize the services of the petitioner's husband from the date of regularization of his junior Ram Chandra on the post 11 of Tea Maker because he remained in service of the respondents w.e.f. 1.12.1983 till he died on 14.1.2000. Meaning thereby, late Ravi Kumar Bhatia rendered 17 years of services, therefore, the respondents are hereby directed to pass an order for regularizing of the services of late Ravi Kumar Bhatia from the date when his junior person namely Ram Chandra's services were regularized. The respondents are also directed to consider the case of the petitioner for grant of pensionary benefits under the circular dated 16.11.1992 (Annexure-4) with all consequential benefits from the date when the petitioner's husband died with all consequential benefits. This exercise with regard to regularizing the services of the petitioner's husband and consider the case of the petitioner for pension shall be completed within a period of three months from the date of receipt of certified copy of this order. The writ petition is allowed with no order as to costs. (GOPAL KRISHAN VYAS), J. arun