*., IN THE HIGH COURT PF SIKI(IM AT GANGTol( (CIVIL EXTRA ORDINARY JURISDICTION) DATED: 0910812011 CORAM HON'BLE IVIR. JUSTICE S. P. WANGDl, ACTING CHIEF JUSTICE Writ Petition f c` No. 37 of 2009 Shri Harka Singh Lama, Son of Late S. Lama, resident of Development Area, Gangtok- Shri James Lepcha, Son of late D. 8. Lepcha, resident of Development Area, Gangtok. Shri Deo Kumar Giri, Son of late Shamsher Giri, resident of Development Area, Gangtok. ... Petitioners. -Versus- The State of Sikkim, Through the Secretary, Department of Personnel, Administrative Reforms & Training, Government of Sikkim, Tashiling, Gangtok. The Secretary, PWD (Building & Housing), Government of Sikkim, Gangtok. ... Respondents. For the pe:tiitjioners .. Ms. Sharmila Lama, Advocate. For the State- Respondents ch Mr. J. 8. Pradhan, Addl. Advocate General. with Mr. S. K. Chettri, Asstt. Government Advocate. Writ Petition fc` No. 03 of 2010 4. Shri Lakpa Tamang, Son of Shri Jit Bahadur Tamang, a resident of Upper Burtuk, P.O.: Gangtok, East Sikkim. Shri Nandalall Pradhan, son of Puma Bahadur Pradhan, a resident of Aritar, P.O.: Aritar, East Sikkim. Shri Sing Bir Tamang, son of Sangkha Bir Tamang, a resident of Upper Singhik, P.O.: Mangan, North Sikkim. Shri Padam Bahadur Subba, son of Ashar Singh Subba, a resident of Pakyong, P.O.: Pakyong, East Sikkim. Shri Nil Kumar Khatiwara, son of Mahadev Prasad Khatiwara, a resident of Lingee Paiyong, P.O.: Pagong, Sout:h Sikkim. Miss Pranita Rai, daughter of Jas Bahadur Rai, a resident of Upper Tadong, P.O.: Tadong, East Sikkim. Shri Krishna Bahadur Giri, son of Bhaskar Giri, a resident of Tumlabong, P.O.: 32 number, East Sikkim. :.-. For the State- Respondents Mr. J. 8. Pradhan, Addl. Advocate G±neral with Mr. .S. K. Chettri, Asstt. Government Advocate. Writ Petition fc` No. 30 of 2010 Shri Sonam Rinchen Bhutia, Son of Late Dawzing Lama, Resident of Upper Lingdum, P.O. Dhajay Dara Ranka, P.S. Ranipul, East-Sikkim. ... Petitioners. -versus- State of Sikkim, Through the Secretary, Department of Personnel, Administrative Reforms & Training, Government of Sikkim, Tashiling, Gangtok, East Sikkim. Buildings & Housing Department, Through : the Secretary Government of Sikkim, Gangtok, East Sikkim. ... Respondents. For the petiitjior`er .. Mr. S. S. Hamal, Advocate with Ms. Sabina Chettri, Advocate. For the State- Respondents Mr. J. a. Pradhan, Addl. Advocate General with Mr. S. K. Chettri, Asstt. Government Advocate. Writ Petition fc` No. 49 of 2010 Shri Kaziman Sunar, Son of late Nar Bahadur Sunar, resident of Santi Nagar, Singtam, P.O. and P.S. Singfam, East Sikkim. ... Petitioners. Tversus- / State of Sikkim, Through Chief Secretary, Government of Sikkim, Tashiling Secretariat, Gangt:ok, East: Sikkim. The Secretary cum the Chief Engineer, Public Health Engineering and Water Security Department, Government of Sikkim. The Commis`sioner Gum Secretary, Department of Personnel, ADM. Reforms, Training, Public Grievances, Career Option and Employment Skill Development and Chief Minister's Self Employment Skill, Government of Sikkim, Tashiling Secretariat, Gangtok. ... Respondents. For the peiditjioner .. Mn N. Rai, Senior Advocate with Miss Jyoti Kharka, Advocate. For the F`espor\deTits .. Mr. J. 8. Pradhan, Addl. Advocate General with Mr. S. K. Chettri, Asstt. Govern ment Advocate. JUDGMENT Wangdi, ACJ 1. These writ petitions are taken up together as the issues involved for ad].udication are the same. 2. In Writ Petition (C) No.37 of 2009, t:he petitioners are work- charged employees holding the posts of senior work charged supervisors under t:he Buildings & Housing Department, Government of Sikkim. The petit:ioners initially appointed as must:er roll employees in the year 1968 got absorbed under the work charged establishment from 01.07.1978 in which cat:egory they cont:inued t:o serve until the petitioner no. 1 retired on 28.02.2010 and the petitioner no. 2 on 31.07.2010. It may be stat:ed that when the writ petition was filed initially before this Court, they were still in service. 3. In the next case, i.e. Writi|Petition (C) No.03. of2010, there are altogether 12 petitio,ners, who had initially been appointed on muster roll basis in the Engineering Cell of the Human Resource Development Department (earlier Education Department) on varying dates commencing from the year 1980 to 1991. With effect from 31.05.2003 all of them were brought into the ad-hoc category with consolidated salary and continue' in that cat:egory. 4. In the third case, i.e. Writ Petit:ion (C) No. 30 of 2010, the petitioner is a retired employee with effect from 31.01.2010, having entered into service in the year 1978 on muster roll basis in the Building & Housing Department and later brought into work charged est:ablishment in which category he continued until his retirement in t:he afternoon of 31.01.2010. 5. In the last case, i.e. Writ Pet:ition (C) No.49 of 2010, the petitioner had been appointed on muster roll basis as a plumber on 24.08.1977 under I:he sewerage division of the Public Health Engineering and Water Security Department, Government of Sikkim, S respondent no. 2. He was later absorbed under work charged establishment with effect from 03.05.1980 and has continued in that category. He was later brought to perform office work from the year 1983 as a Bill Clerk unt:il t:he year 1991. 6. The petitioners, in all the above cases, have, /.nter a/f.a, prayed for issue of order/direct:ion declaring that they are entitled to get their services regularised wit:h retrospective effect from the dates of their appointments to the Departments. 7. From the facts and circumstances indicated in the Writ Petitions, it is evident that the petitioners have been languishing in temporary capacities without security of their t:enure of services for periods varying from 20 to 42 years. The petitioners have pleaded that they had approached the Government several times earlier for regularisation of their services but unfortunately were not favoured with appropriate responses. It is their case that they have put in sincere and selfless services during their entire careers and, therefore, 'it was bounden on the part of the State to provide for reasonable reliefs in the form of regularisation of their services in order to enable them to en].oy the benefits of after retirement emoluments. 8. This court being deeply concerned with the plight of the workers and anxious of their well being aft:er retirement from their jobs, raised certain queries from the St:at:e Government in Writ Petition No. 3 of 2010, which is reproduced below:\,- ``BEFORE HON'BLE MR. JUSTICE S. P. WANGDI, JUDGE 02. 09.03.2olo Present : Mr. A. Moulik, Senior Advocate with Mr. N. G. Sherpa, Advocate for the petitioners. Mr. J. 8. Pradhan, Addl. Advocate General with Mr. Karma Thinlay Namgyal, Govt. Advocate and Mr. Santosh Chettri, Assistant Govt. Advocate for the State respondents. Hear,d learned Counsels appearing for the parties. I 2. Mr. J. 8. Pradhan, Add|. Advocate General ::Sd'StMerd.bsya,rtr6shKa:TeattTj:!nA:¥jsNt:Ttg¥a:ttf°#v::avt°ecaot: behalf of th! State respondents pray for further time to file their cou'rter affidavit. 3. It isi\submitted by Mr. Pradhan that since the matter needs deeper consideration, time granted may :oen:::fi:i:tnet,;ya':nFn.:yhavv,:wn°thhees:::tJ:nrjanjs3:anjtrin€h: petition is hot so simple or ordinary run of the mill category. I.i involves the lives and security of a large number of temporary workers who have been languishing in Capacities for many years ranging from 10 to 40 years. It is a matter of record that there are other cases also th'at have been filed ln this Court and pending disposal in ivhlch the issues raised are very much the same. It lis no doubt true that by the I.udgment pronounced by the Hon'ble Supreme Court in the case of State of Karriataka vs. Uma Devi in the year.2005, it has been settled{,by a Constitution Bench that regularisation :fiet:Tapn°::#b:esT:::in°etdh::#:neybeyofm,:awn:n°dfnroegsuu':hr regu'a being r:swa:i:r can be held to be legal. But the Court of the fact that there are many in other parts of the!'.country who are languishing without any security of :itheir tenure directed that the State Governments were at liberty to create certain kind of fncthoeTe:uti°are!Stuar:,jtshha:esnutc:fkt!hned::vwe::kmeersnt:rebrou9ht €hesta%h!tedJgerrann:i::t€owf::kts:et!cmo:n=:rpar:Ydeadvj::rjtbj! made clear that the following specific information also be placed on+ecord in the affidavit in opposition: - (i) , The number of persons who have been 'iopp°:::::b:qtu|:apeenptarttTentth::H;?.D£P: I petitioners during the last 10 years. (ii) \|Whether advertisements were published in lt regard to those posts. ("D ,I,::t!:,:Lceartse as ta°n:hetr:trhtehr: Cases:m°:,atF,; clrcumstanced were considered for appointment to those posts or not. (iv) Whether any exercise has been taken to find out as to how many workers/ employees are/were working under the State Government in temporary capacities either as muster roll employee, worked charge employee, ad-hoc employee etc. (v) If not, why not. (vl) If such enumeration has been done, whether any scheme has been drawn by the State Government for the regularisation of their services in a phased manner. (vll) Tq what extent has the aforesaid scheme been implemented. This information may be given with specific reference to the different departments where such implementation has been done. 7. The above information are necessary in my view to arrive at an effective adjudication of the matter apart from giving reply to the statements and allegations contained in the writ petition." 9. No doubt the question in paragraph 4 above covered persons, who were not before the Court and were of a general nature but - considering the fact that there were 4 Writ Petitions involving several persons serving under different departments of the State Government:, it was felt essential to raise them. In response to t:he above, the State-respondent filed an affidavit ostensibly in compliance to t:he direction contained in order of this Court dated 09.03.2010. However, on perusal, it is noticed that the answers to the queries are not satisfactory but quite vague except for the answers to the questions (c) and (d). The relevant contents of the affidavit of the Department of Personnel, Adm. Reforms & Training, Government of Sikkim, respondent no. 2, dat:ed 21.08.2010, are reproduced below: - 10 ``(c) If such enumeration has been done, whether any scheme has been drawn by the State Government for the regularisation of their services ln the phase manner. Ans:- It is submitted that the Department of personnel, Adm., Reforms & Training has issued Notification No. 137/GEN/DOP, dated 8/7/2008 a.long with Office Memorandum No. 1443/GEN/DOP, dated 10/7/2008, wherein, the State Government has provided 50% reservation for temporary employees while filling up various posts in the Department. Coples of the Notificatio.n bearing No. 137/GEN/DOP, dated 8/7/2008 along with Office Memorandum No. 1443/GEN/DOP, dated 10/7/2008 are annexed hereto and marked as Annexure R-2 and R-3 respectively. (d) To what extent has the aforesaid scheme been lmplemented. This information may be given with specific reference to the different departments where such implementatlon has been done. Ans:- It is submitted that the Rule governing 50% reservation for temporary employees while filling up various posts in the department is being lmplemented as and when vacancies arise. It ls further submitted that the Department of Personnel, Adm., Reforms & Training had already Issued letters to all Secretaries/Head of Departments requestlng them to submit the total number of temporary employees who have been regularised in accordance with Notification No. 137/GEN/DOP, dated 8/7/2008 and Office Memorandum No. 1443/GEN/DOP, dated 10/7/2008. As per the linformation received by the Department of Personnel, Adm., Reforms & Training, so far as many as 21 (twenty one) departments have availed benefits provided under the said Notification and Office Memorandum. A total number of 187 temporary employees have been benefitted (regularised) under the said schemes which are as under: - Group "B" - 02 nos. Group ``C" - 123 nos. Group`+D6'TAL.- 1f# Copy of list of departments who have availed benefits under the said notlfication is annexed herewith and marked as Annexure R-4." 10. On 19.08.2010, when t:he matter was taken up for hearing, Mr. J. a. Pradhan, learned Addl. Advocate General, made a submission that independent of what have been st:ated in the count:er affidavits of the State-respondents, the State Government: has taken up necessary steps to provide for some relief to all categories of employees cfty working on temporary basis by collecting the complete data of such categories of employees under the State Government. In other words, the State Government was giving a comprehensive look into the affair to take care of this nature of employees under the Government. 11. This Court is conscious of the present position of law relating to regularisation of services of temporary workers. Aft:er the case of Secretary, State of I(arnataka and others v, Umadevi and others reported in (2006j 4 SCC I the presumed permissibility of regularisation of services of ad-hoc and temporary employees was held t:o be erroneous. After this decision, the temporary or ad-hoc appointment was permissible only where posts were vacant in the regular establishment and such appointments would also be for limited periods to be followed by recruitment process for appointments on regular basis to those vacant posts. The practice of regularisation of ad-hoc employees was severely deprecated by the Constit:ution Bench in the case of Umadevi /supraJ, permanently injuncting` unjustified appointments on ad-hoc basis by the Government:s. However, in order to take care of those persons, who had been serving in temporary capacities for considerable length of time over 10 years and more, it was clarified as under: - ``53. One aspect needs to be clarified. There may be cases where irregular appointments {not illegal appointments) as explained in S.V. Narayanappa, R. N. Nanjundappa and B.N. Nagarajan and roferred to in para 15 above, of duly qualified persons in duly sanctloned 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 the courts or of tribunals. The question of regularisation 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 abovereferred to and in the light of this judgment. In that context, the ;112 union of India, the State Governments and their instrumentalities should take steps to regulEirise as a one-time measure, the services of such /.rregu/ar/y appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should fllrther ensure that regular recrultments are undertaken to fill thos6! 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: Hwe also clarify that regularisation, if any already made, but not sub judice, need not be reopened based on this judgment, but there \'should be no further bypassing of the constitutional requirement and regularising or making permanent, those not duly appointed as per the constitutional scheme," 12. In the counter affidavit, the,,State-respondents have filed a copy of the Sikkim State Direct Rec+uitment (Special Provisions) Rules, 2008 published vide Notification No.137/GEN/DOP dated 08.07.2008, whereby the State-respondents;have drawn a scheme in compliance to the directions of the Hon'ble Supreme Court in paragraph 53 above. I may reproduce the rule for convenience, which reads as under : - ``DEPTT. OF PERSONNEL, ADM, REFORMS, TRAINING, EM::gt]MCE:=,IE#rf5:/vE£5EEMRE£:TAI£DN:H&]EF MINISTER'S SELF-EM PLOYMENT SCHEME, dANGTOK No. 137/GEN/DOP ) '1 NOTIFICATION Dated 08.07.2008 In exercise of the powel.s conferred by the proviso to Article 309 of the Constitution of India, the Governor of Sikkim hereby makes the following rules regulating the direct recrL|itment to the posts under different services in connection with the affairs of the State; namely: - Short title, 1. (1) These rules may be called the Sikkim State Direct ext:ent andcommencement Recruitment (Special Provisions) Rules, 2008. (2) They shall come into force at once.) Definit:ions 2 Ih these rules, unless the context otherwise requires:- (a) "Authority", means the State Government through the Secretary ln-charge of the Department of Personnel or such other department as the case may be; 'b) ``dir6ct recruitment", means anv recruitment to Posts, -- J±_i- . - i-+i 13 1[ :o?rn#d:t::a:,easna:psp#L:i;iao;:e:,in::[c:ad,:idTi:i:octhhf:n:.T,afi:ce::,ijTforldlrectrecruitment; (c) ``erriployee'', means both permanent as well as temporary employee working under the State Government in a department; (d) ``Gbvernment", means the Government of Sikkim; (e) ``Rdlaxation", means such relaxation in matters of direct recruitment for such category of posts as may be specified in any notification for recruitment and includes relaxation in roster points, age, qualification or experience, etc. to such extent as may be feasible;I (0 `;:jim?po:::i?gee:#!or:::s::abd:tit:u:t:o:onro;Tmpcti:s:tt:r::o,:I;i:o:r daily wages or on consolidated pay or on co-terminus basis, etc.; (g) ``test", means and Includes oral or written examination for recruitment: or both under these rul'es. Special 3. (1) Nbtwlthstandlng anything cont:ained in any other rule provisions fordirectrecruitment. for the time being in force, in direct recruitment to posts under dlfferent categories of services in the State Government, there may be allowed such relaxation in matt:ers of eligibility criteria for temporary employees, if any, in the Government Department as may be considered expedient. Provided that such relaxation may not be granted as a matter of rule but only to allow candidates with experience and expertise gained during such temporary employment ln a job to be able to compete subject to their being found fit in all other respect: I Provided further that relaxation may be allowed :tFT:yhiT,tnh:tseb:a:fi:wwehderoerv::::isei°¥:d,nfe:es£'eectanodf posts requiring specific technical qualification or physical standard. (2) #,#:tr:co::::d¥rph::Yi:noegrsqsii:icfi::odnp:t:tah:uTce:Snti:uni:bTiren# :E,Sttasb,i::::i::nrceegranreddtgetE:Trmp:#to::amn::,bnet:::nodr ih interview including their overall assessment and proficiency: Provided that while considering them for selection to the posts to be filled up, it shall not exceed beyond 50% of the total niimber of such vacant posts: Provided further that where there is only one post !q a department to be filled up by direct recruitment,inallsuchcasestheconcerneddepartmentshall 9,btaln approval from the appropriate authority for fillinq up of the post throuqh test: from amoncist the 14 teniporary employees of the concerned department, if any, under the provisions of these rules. (3) In all such direct recruitments, the Stat:e Government :#xuagttoitsw:?,n::maeddvadnec%aTnmemnatttgr=yoTaei:g,8#,Ct; critt:ria for the purpose of applying for direct recruitment and ln consideration of the performance of such t:emporary employees in the test/interview, selection shall be made for the posts in the concerned department accordingly. (4) A temporary employee, lf any, working ln a department will be ellglble for applying in respect of post to be filled up by direct recruitment in the same Department ln which he or she ls working ln the same category of post and will be considered for selection subject to their being found eligible, fit and successful in the test under the provisions of these rules. Rules not in 4. Th`ese rules shall not be in derogation to, but derogation toot:herRules. si],pplemental to the, rules governing various servlces 'En!taj#:hm:::tfu,e:,n!97£fe Sikkim GovernmentI Power to 5. (1) If any question arises as to the interpretation of interpret:. these rules, the same may be decided by the Government duly obtaining legal advice. (2) The Government may also issue instruction or office memorandum from time to time for the purpose of smooth lmplementation of these rules.Sd/- (C. L. Sharma) Special secretary-DOPART" cfy 13. It may also be stat:ed t:hat on behalf of the respondent no. 1 in Writ Petition (C) No.37 of 2009', an affidavit sworn on 18.11.2010 was filed with the following information when asked of them vide order dat:ed o8.10.2010: - '1 ``3. That in compliance ofLithe aforesaid direction, the replles to the said queries are placed herein below in seriatim: - (I) It is humbly submitted that as per the information received from various Department by this answering respondent, the total number of temporary employees working ln the Government of Sikklm as on lst october, 2010 are 9,823. 1| (11) That with regards to the proposal for reliefs that are belng worked out, it is submitted that the Government has already taken the following steps: - (a). One Man comquission wasappointed by the Government to look into the matter of regularisat!on of temporary employees. The ma].or 1 I L 15 recommendation of the Commission was that the Government should consider regularising all temporary employees who have completed .10 years of continuous service as on 10.4.2006 as a one time scheme, provided the employees were appointed in duly sanctioned posts. It is submitted here that most of the 9,823 employees were not appointed in duly sanctioned posts. (b) Notification No. 137/GEN/DOP dated 8.7.2008 and O.M. No. 1443/GEN/DOP dated 10.7.2008 provides for 50% reservation in vacancies for temporary employees. It also provides age relaxatlon up to 50 years, waiver in the application of roster point and relaxation in educational requirement except for technical posts. In other words, the Government has be,en very consclolis about protecting the rights of temporary employees by providing them various relaxation while regularising them. (c) A total number of 195 temporary employees have already been brought under regular establishment till September, 2010 under this scheme. In the near future, the Department of Personnel proposes to obtain Government approval to fill up 50% available vacancies in the post of LDC's from amongst the eligible temporary employees ln terms of Notification No. 137/GEN/DOP dated 8.7.2008 and O.M. No. 1443/GEN/DOP dated 10.7.2008. (d) Besides this, the Government is already providing various benefits to temporary employees :- (i) The Minimum wages Act,1948, has been implemented. (ii) The Workmen's Compensation Act, 1923 has been implemented and the Secretary Labour Department has been appointed as Commissioner under the said Act. (iii) All temporary employees on work charge basis are eligible at the time of retirement, for service gratuity @ 1/2 x last basic pay x number of years of completed service subject to a maximum of 15 years. (iv) All temporary employees on work charge basis are entitled to me.dical facilities at par with regular employees. (v) All temporary employees on work charge basis are eligible for maternity leave of 90 days and M/R employees are entitled to maternity leave of 60 days. (vi) All temporary employees are also eligible for old age pension after attaining the age of 60 years and grant on medical ground. It is humbly submitted that at present the aforementioned reliefs are being provided to t:he temporary employees working in the Government of Sikkim. I (Ill) Question of nclh-implementation of the Employees Provident Fund and M!scellaneous Provisions Act 1952. The Employees Provident Fund Act of 1952 is a Central Act that ls implemented through Regional and Sub regional offices. For the State of Sikkim the Regional Office is located at Siliguri with en Enforcement Officer stationed at Gangtok in Development Area. That 16 In compliance to the order dated 8.10.2010, the address of the Authority under the EPF and Misc. Provident Act, 1952 at Gangtok is furnlshed as under :- Address : - (a) Enforcement officer, EPF Office, Development Area, Gangtok. (b) The Regional provident Fund commissioner, Employees' Provident Fund Organlsation SubiReglonal Office, Sillguri Bhavishya Nidhi Bhawan, Pradhan Nagar Hill Cart Road, Siligurl : Darjeeling. The Department of Personnel has requested the EPF office at Gangtok, vide letter No. 4491/Gen/DOP dated 26/10/2010, to give details of practices followed by ot:her States with regard to EPF status of temporary employees. The Enforcement Officer, District Centre Service, Employees Provident Fund Organization, Gangtok vide letter No. DSC/GTK/SKM/EO/07/41 dated 10.11.2010 have forwarded the queries post by the Additional Secretary, Department of Personnel, Government of Sikkim to the Regional Provident Fund Commission, Employees Provident FUTid Organization, Siliguri, District Darjeeling. The answer of such queries ls st:Ill awaited from the Regional Officer, Slllgurl. It is humbly submitted that further steps, if required under the law, shall be taken after receipt of t:he above information." Later, on 11.03.2011, another, affidavit was filed on behalf of the I respondent no.1 in that veryi, Writ Petition by which Notificat:ion No.349/GEN/DOP dated 28.02.2011 was placed on record. By this Notificat:ion terminal benefits were provided for temporary employees on daily wages and consolidat:ed pay. The Notification is reproduced below for convenience: - ``GOVERNMENT 0F SIl(I(IM DEPARTMENT OF PERSONNEL, ADM, REFORMS, TRAINING, PUBLIC GRIEVANCES, CAREER OPTIONS & EMPLOYMENT SKILL DEV. AND CHIEF MINISTER'S SELF-EMPLOYMENT SCHEME, GANGTOK NOTIFICATION cD7 No. 349/GEN/DOP Dated 28/2/2011 The Governor of Sikklm,is hereby pleased to grant terminal benefits to temporary employees on daily-wages and consolidat:ed pay excluding work- charged and those on contract/time scale, on the condition that their services iE- 17 shall be terminated at any time without notice with