1 S.B.CIVIL WRIT PETITION NO. 106/2005 Mani Lal & Ors. Vs. State of Rajasthan & Ors. Date of Order :: 27.10.2009 HON'BLE MR. JUSTICE GOVIND MATHUR Mr. Ravindra Singh, for the petitioners. Mr. P.R. Mehta with Ms Aruna Negi, for the respondents. ... This petition for writ is preferred on behalf of 13 persons seeking regularization in service on the posts held by them. As per the averments contained in para 2 of the writ petition, the petitioner No.1 Mani Lal was employed with respondent -Municipal Board as Meson on 1.1.1991. The petitioner No.2 Devilal was employed as Mate on 1.5.1995. The petitioner No.3 Gautam and No.6 Devu were employed as Beldar on 1.2.1991 and the petitioners No.4 Unkar, No.5 Shankar and No.8 Smt. Shanti were employed as Beldar on 1.3.1991. The petitioners No.7, 10 and 9 were appointed as Coolie on 1.1.1985, 1.2.1986 and in the year 1990 respectively. The petitioners No.11 and 12 were employed as Mate w.e.f. 1.3.1995 whereas the petitioner No.13 Girish Joshi entered in services of the respondent Municipal Board as Mate in the month of May 1996. All the petitioners suffered retrenchment from service on 30.7.1998 and being aggrieved by the same they raised industrial disputes and those were referred for their adjudication to labour court, Udaipur by the appropriate government. The labour 2 court, Udaipur vide awards Annexures-1 and 2 dated 14.2.2004 answered the reference by holding that the termination of workmen Mania, Shankar, Gautam, Shanti, Devu, Unkar, Galbi, Heera, Mani, Girish Joshi w.e.f. 1.8.1998 were not legal, accordingly, the same were set aside with a direction to the employer to reinstate the workmen with 50% of back wages and other consequential service benefits. A challenge given to the awards aforesaid by the employer before this Court failed on rejection of the writ petitions bearing No.2472/2003, 2418/2003 and then on rejection of the special appeals. The employer subsequent thereto reinstated the workmen as per the directions given by the labour court. This petition for writ then was preferred on 15.9.2004 claiming regularization on the count of a long tenure of service. It is stated by learned counsel for the petitioners that the petitioners are in service of the respondent-municipal board from last number of years and as such they deserve regularization in the service. An additional ground is also raised in rejoinder by stating that the respondents regularized certain persons junior to the petitioners under an order dated 6.9.2004, therefore, case of the petitioners also require consideration for regularization in service. On the other hand, the stand taken by the employer is that the petitioners were employed with octroi posts and on abolition of the octroi system they were discontinued from service after 30.7.1998. It is 3 also stated that the petitioners were not at all employed against any regular posts and no procedure as prescribed under the Rajasthan Municipalities Class IV Service Rules, 1964 was adhered while giving appointment to them, as such, no order regarding regularization of their service can be passed. Beside the above, as per the respondents the municipal board is not having adequate budget even to make payment of salary to the workmen, and therefore, by communication dated 8.4.2009 Executive Officer of the Municipal Board has sought sanction from the Commissioner, Local Self Government, Rajasthan, Jaipur to retrench the present petitioners. Heard counsel for the parties. The petitioners who were employed on different dates are claiming regularization mainly on the count that they are in employment of respondent-municipal board from last number of years. On minute examination of facts, it reveals that the petitioners are not in employment from last number of years as tried to be posed. The petitioners, except the petitioners No. 7 and 10 served the employer for few years and then they were discontinued from service on 30.7.1998. It was only in pursuant to an award passed by the labour court they were reinstated in service. True it is, the period in which the petitioners remained out of employment because of their 4 termination from service w.e.f. 30.7.1998 is required to be treated as part of continuous service as the retrenchment was declared illegal being in violation of provisions of Section 25F of the Industrial Disputes Act, 1947, however, that inclusion too does not make any difference for the petitioners except than the petitioners No.7 and 10. The petitioners in pursuant to the directions given by the labour court were reinstated on 1.4.2004. In the month of September 2004 that is only after a period of five months from the date of reinstatement the petitioners approached this Court for regularization of their services. Hon'ble Supreme Court in State of Karnataka Vs. Uma Devi and Ors. {reported in 2006 (4) SCC Page 1} observed that the question of regularization of the services of the employees who have continued to work for 10 years or more requires consideration for regularization but such tenure should be without intervention of orders of the court or of tribunals. In the present case except the petitioners No.7 and 10 none has completed 10 years of service without intervention of the orders of the court or tribunal. It is also relevant to mention that none of the petitioners was employed by adhering the procedure prescribed under Rule 10 of the Rules of 1964. Learned counsel for the petitioner also utterly failed to point out availability of the vacancies relating to the posts held by the petitioners with the respondent-municipal board as per the applicable staffing pattern. 5 In such circumstances, I do not find any merit in the argument advanced that the petitioners except the petitioners No.7 and 10 deserve consideration for regularization of their service being serving the employer for a long term. So far as second contention advances is concerned suffice to note that under the order dated 6.9.2006, three persons were employed in subordinate service of the respondent-municipal board on urgent temporary basis as per the Rule 27 of the Rajasthan Municipal Board (Subordinate & Ministerial) Service Rules, 1963. The appointments made in subordinate service by no stretch of imagination can be compared with the appointments made/sought to be made/ continued in Class IV services. The case of the petitioners, thus, in no way be compared with the petitioners appointed under the order dated 6.9.2006. So far as the petitioners No.7 and 10 are concerned they are in employment of the respondents as Coolie since 1.1.1985 and 1.2.1986 respectively. They completed a term of more than 10 years in service 10 years in service prior to their retrenchment on 30.7.1998, as such, their case is distinguishable from the case of other petitioners. It is also pertinent to note that the post of Coolie is prescribed under the relevant Class IV employees rules of the petitioners are working their on 6 from last more than 20 years, and as such, their case certainly requires consideration for regularization. Accordingly, this petition for writ is dismissed to the extent that relates to the petitioners other than the petitioners No.7 Smt. Heera and No.10 Smt. Galbi. Accordingly, the respondents are directed to consider their case for the purpose of regularization as Coolie within a period of three months from today. (GOVIND MATHUR), J. Jgoyal '