1 STATE FARMS CORPORATION OF INDIA LTD. & ANR. VS. UDA RAM (D.B.CIVIL SPECIAL APPEAL(W) NO.74/09) Date of Judgment:- 20.1.09. HON'BLE MR. JUSTICE A.M.KAPADIA HON'BLE MR.JUSTICE SANGEET LODHA Mr. Sanjeev Johari, for the appellant. 1. This special appeal is directed against order dated 18.7.08 passed by the learned Single Judge of this Court whereby the writ petition preferred by the writ petitioner, the respondent herein assailing the validity of order dated 31.3.03 passed by the Senior Administrative Officer of the appellant Corporation rejecting the representation of the petitioner seeking regularisation on the post of Draftsman has been allowed and the appellant Corporation has been directed to consider the case of the writ petitioner for absorption/regularisation on the post of Draftsman or on any other post classified as category III under the Staff Regulations of the appellant Corporation. 2. The relevant facts in nutshell are that the respondent who possesses the educational qualification of Higher Secondary and diploma in Draftsman Civil was initially appointed w.e.f. 25.2.84 as Draftsman on the daily wages basis in the office of Central State Farm , Suratgarh . Thereafter, vide order dated 24.10.88 he was appointed as Draftsman on ad hoc basis w.e.f. 1.10.88. Vide yet another dated 1.2.89 he was appointed on the post of 2 Draftsman in the pay scale of Rs.380-12-500 on ad hoc basis for a period of three months w.e.f. 2.1.89. Before the expiry of the period of three months in terms of the order dated 2.1.89, vide yet another dated 19.1.89 his services were terminated w.e.f. 20.1.89. However, he was continued to function on his original post of daily wage worker w.e.f. 20.1.89. In place of the petitioner , one Shri Sagar whose father had expired while working with the appellant Corporation was accorded appointment on compassionate ground on the post of Draftsman. Aggrieved by the termination of service as aforesaid, the respondent preferred a writ petition No.311/89 before this court which was disposed of as having become infructuous in view of the fact that the appellant Corporation had already framed a scheme for regularisation of the employees in phase manner according to their seniority. A review petition preferred by the respondent was also dismissed by the learned Single Judge and therefore he preferred a special appeal which was disposed of by the Division Bench of this court with the direction to approach the appellant employer by way of representation. In pursuant to the directions of the Division Bench, the petitioner submitted a representation before the appellant Corporation on 14.9.08, however, despite several requests being made, the same was not decided therefore, the petitioner preferred yet another writ petition No.654/03 which was dismissed by the 3 learned Single Judge vide judgment dated 24.2.03. The special appeal preferred by the respondent against the aforesaid judgment dated 24.2.03 was disposed by the Division Bench of this court vide order dated 22.4.03 with the direction to the appellants to decide the representation within a period of two months from the date of production of the certified copy of the order. The representation made by the respondent was rejected by the Senior Administrative Officer,Central State Farm, Suratgarh vide order dated 31.5.03 impugned in the writ petition on the ground that ad hoc appointment accorded to the petitioner on the post of Draftsman being temporary arrangement for fixed period do not bestow any right upon him to claim the regular appointment. 3. After due consideration of the rival submissions of the parties, the learned Single Judge has arrived at the finding that a scheme for regularisation of the daily wages worker was framed by the respondents but benefits thereof were not extended to the petitioner whereas, upto the year 1999, the services of 291 employees were regularised. Relying upon the decision of the Hon'ble Supreme Court in the matter of “Secretary, State of Karnataka vs. Smt. Uma Devi “, (2006) 4 SCC 1, the learned Single Judge opined that the respondent who is continuing in service of the appellant Corporation since 1984 as daily wages employee cannot be denied regularisation on the post of 4 Draftsman or any other post falling in category III as classified under the Regulations as per the qualification possessed by him. Accordingly, the appellants have been directed to consider the case of the respondent for regularisation within a period of three months from the date of receipt of certified copy of the order and to grant him all consequential benefits with effect from the date of filing of the writ petition i.e. 4.12.04. 4. It is contended by the learned counsel for the appellant that the learned Single Judge has seriously erred in issuing direction for regularisation of the services of the respondent on the post of Draftsman or any other post in the category III. The learned counsel submitted that till October, 99 , 291 daily wages workers' services were regularised but thereafter, on account of acute financial crunch , the scheme of regularisation was kept in abeyance. It is submitted that the respondent, a daily wage worker cannot claim regularisation on the post of Draftsman or any other post in the category III. The learned counsel further submitted that in view of the decision of the Hon'ble Apex Court in Uma Devi's case binding effect whereof has been further emphasized by the Hon'ble Supreme Court in the matter of “Official Liquidator vs. Dayanant & Ors.”, (2008) 10 SCC 1, the respondent is not entitled for regularisation of his services. 5. We have considered the submissions of the learned counsel for the appellants and perused the impugned order passed by 5 the learned Single Judge so also other material on record. 6. Admittedly, the respondent was initially appointed on the post of Draftsman on daily wages basis and thereafter, vide order dated 24.10.88 and 2.1.89 he was accorded appointment on the post of Draftsman on ad hoc basis in the regular pay scale for a fixed period. It is also not in dispute that the services of the respondent as Draftsman were terminated vide order dated 19.1.89 so as to accord appointment to one Shri Sagar on the said post on compassionate ground. But the fact remains that the services of the respondent are being utilised by the appellants for all these years on daily wages basis. It is not even in dispute that the respondent possesses the requisite qualification for the post of Draftsman which falls within the category III posts under the Staff Regulations of the appellant Corporation . 7. It is to be noticed that in Uma Devi's case (Supra), relied upon by the learned counsel for the appellants ,the Hon'ble Supreme Court while considering the issue of regularisation of the employees who are in service for a period of more than 10 years , has observed 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. Nagarjan and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the 6 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 case abovereferred to and in the light of the judgment. In that context, the Union of India, the State Governments and their instrumentalities should 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 of orders of the 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 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.” 8. It is not in dispute that the respondent is continuing in service of the appellants for all these years without intervention of orders of any court or tribunal therefore, at this stage, when he has become age barred for any other public employment , he cannot be denied the regularisation of his services . Admittedly, as many as 291 daily wages employees have already been regularised by the appellants in terms of the scheme for regularisation issued vide letter dated 11.8.88 and modified vide order dated 30.6.95. The respondents having extended the 7 benefits of regularisation to other similarly situated persons who had completed 10 years of service as daily wages employee in terms of the scheme referred supra they cannot be permitted to deny the same benefits to the respondent on the pretext that the scheme for regularisation has been kept in abeyance by the Corporation on account of financial crunch. On the facts and in the circumstances of the case, in our considered opinion, the learned Single Judge has committed no error in directing the appellants to consider the respondent for regularisation of his services in the terms referred supra. 9. For the aforementioned reasons, we are entirely in agreement with the order passed by the learned Single Judge and in our view, the same does not warrant any interference in this intra court appeal. 10. In the result, the special appeal fails, it is hereby dismissed. No order as to costs. (SANGEET LODHA),J. (A.M.KAPADIA),J. Aditya/