Punjab-Haryana High Court

State Of Haryana And Others vs Balwinder Singh And Others on 2 December, 2022

Author:
G.S. Sandhawalia

Bench:
G.S. Sandhawalia
,
Vikas Suri

IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
LPA No.688 of 2021 (O&M)
and other connected cases
Reserved on: 22.08.2022 &
01.09.2022
Pronounced on : 02.12.2022
State of Haryana and others
......Appellants
Versus

Balwinder Singh and others
......Respondents
CORAM : HON'BLE MR.JUSTICE G.S. SANDHAWALIA
HON'BLE MR.JUSTICE VIKAS SURI

Present: Mr. Ankur Mittal, Addl. AG, Haryana,
Mr. Saurabh Mago, AAG, Haryana,
Ms. Kushaldeep K. Manchanda, Advocate, for the appellants.

Mr. Ajay Chaudhary, Advocate for the respondents
(in LPA No. 688 of 2021).

Mr. R.K. Malik, Senior Advocate with
Mr. Sunil Hooda, Advocate for the respondent (s)
in LPA No.106 of 2021.

Mr. A.P. Bhandari, Advocate, for the respondents
(in LPA Nos. 55, 540, 560, 567 & 573 of 2021).

Mr. Aditya Yadav, Advocate
for the respondent (in LPA No.479 of 2020).

Mr. S.K. Daaria, Advocate for respondent
(in LPA No.802 of 2020) and
for the respondent (in LPA No.8 of 2021).

None for the respondents (in LPA No. 918 of
2020 and in LPA No.45 of 2021).

Mr. J.S. Bedi, Advocate for the respondent (s)
(in LPA Nos.302, 532, 541, 585, 739 and 751 of 2020).

Mr. Dharamveer Phour, Advocate for the respondent (s)
(in LPA No. 916 of 2020 & LPA No.148 of 2022).

Mr. Harish Mehla, Advocate and
Mr. Aseem Monga, Advocate for the respondent
(in LPA No.9 of 2021).

Mr. Bishan Dass Rana, Advocate for the respondent
(in LPA No.818 of 2020).

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Ms. Archana Vashisht, Advocate for
Mr. Deepak Sonak, Advocate
for the respondent (in LPA No.152 of 2021).

Mr. Bhupender Ghanghas, Advocate
for respondent No.4 (in LPA No.18 of 2021).

Mr. Abhishek Bansal, Advocate for
Mr. Ravinder Malik (Ravi), Advocate for the
respondents LPA Nos.560 & 573 of 2021).

Mr. J.S. Maanipur, Advocate for the respondent
in LPA No.536 of 2016.

Mr. Nihal S. Chaudhary, Advocate and
Mr. Vikram Sheoran, Advocate for the respondents
in LPA No.444 of 2020.

Mr. Ashok Arora, Advocate for the respondents
in LPA No.508 of 2020.

*****
G.S. Sandhawalia, J.

Present judgment shall dispose of 30 cases i.e.

LPA Nos.688, 540 & 573 of 2021, LPA Nos.740, 739, 751, 802, 479,

918, 916, 818, 302, 541, 532 & 585 of 2020, LPA Nos.8, 9, 18, 45,

55, 152, 818, 560, 567 and 106 of 2021, LPA Nos.171 & 148 of 2022

and LPA No.536 of 2016 and LPA Nos.444 & 508 of 2020.

2. The State's endeavour to deny regularization to Class-IV

employees of Category-D, who have served them for almost 4

decades and still continue to serve them, befuddle them thus

burdening this Court with repeated rounds of litigation.

3. Firstly, policies of regularization framed by the State

itself, on which action is taken selectively leading to a clamour for

equality on account of violation of
Article 14
of the Constitution of

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India has led to the present round of litigation, wherein various

Single Bench Judges of this Court while noticing the dereliction of

the duties at the level of State had directed regularization. The State

continues to deny to these lowly placed employees their place of

equality with regard to the benefit of regularization and service

benefits.

4. The factual matrix in sum and substance would

necessarily have to be noticed, accordingly, regarding the various

policies the State has issued and repeatedly gone back and introduced

them at its own convenience and then raised arguments that when the

case for consideration was put up the said policies were not in force

and therefore, put the employees/writ petitioners at a disadvantage

while granting the benefit of regularization to a certain set of persons

who would be juniors. It is in this matrix the background of the

litigation in question has arisen, which primarily in the present case

pertains to an innocuous order of directions for considering the case

of regularization as per policies dated 18.03.1996 and 01.10.2003

(Annexure P-12) on the strength of the fact that the juniors of the

writ petitioners had been regularized vide Annexures P-3 to P-9 on

16.10.2006, 09.01.2007 and 19.02.2007. Another reason which

weighed with the learned Single Judge was that in view of the

directions issued in CWP No.17150 of 2015 titled as
Pawan Kumar

and others Vs. State of Haryana and others
' the Kaithal Forest

Division had regularized the services of the petitioners therein vide

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order dated 06.07.2018 and was in the process of regularization of

other employees.

5. It is pertinent to notice that the writ petitioners in

LPA-688-2021 herein were appointed between the year 1982 to 1986

and had at one point of time been retrenched, which they had

successfully challenged before the Labour Court and they had been

ordered to be reinstated vide Award dated 27.03.2006. The writ

petitions filed by the State had been disposed off, keeping in view the

fact that the workmen had been taken back in service and on a

consent to the extent that they are entitled only to the 25% of the

back-wages, which would be clear from the order dated 19.02.2008

(Annexure P-1). The factum of date of joining and the number of

years of service would be clear from the table reproduced in the writ

petition itself, which reads as under:-

Sr. Name of the Date of Date of Decision of No.of
No. petitioner appointment termination the Labour years
Court service

1. Balwinder 1984 Nov.2002 Vide Award 31 years
Singh dated
27.3.2006,
labour Court
ordered the
reinstatement
with full back
wages

2. Raj Singh 1986 Nov.2002 -do- 29 years

3. Kundan 1982 Nov.2002 -do- 33 years
Singh

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4. Balyat Singh 1986 7.3.2003 Vide Award 29 years
dated 4.5.2006,
labour Court
ordered the
reinstatement
with full back
wages

5. Sukhwinder 1986 7.3.2003 -do- 29 years
Singh

6. It is not disputed that on the issue of equality as such

which the State cannot deny, as in
Pawan Kumar
's case (supra) it

had chosen to implement the order on 06.07.2018 for 16 of the

employees of the said department. The same reads as under:-

"1. Pawan Kumar S/o Sh. Telu Ram R/o Ramgarh
Road, Teh. Pehowa, District, Kurukshetra.

2.Rajender S/o Garibu Ram R/o Village Tatiann,
Teh. Guhla, District Kaithal (Already terminated due to
deposing/ adducing false evidence before Hon'ble Labour
Court. Therefore, this order shall not be applicable to
him).

3. Sh. Dharampal S/o Sh. Ram Niwas R/o
Saraswati Colony, Beed Pipli, P.O. Pipli. District
Kurukshetra

4. Sh. Vinod Kumar S/o Sh. Sewa Singh R/o
Ramgarh Road, Teh. Pehowa, District, Kurukshetra.

5. Sh. Siya Nand Anand S/o Sh. Retu Rio Ramgarh
Road, Teh. Pehowa, District Kurukshetra

6. Sh. Vijay Pal S/o Sh. Bhagwan Dass R/o
Ramgarh Road, Teh. Pehowa, District, Kurukshetra.

7. Sh. Gulab Singh S/o Sh. Bhagwana R/o Ramgarh
Road, Teh. Pehowa, District, Kurukshetra.

8. Smt. Isham Devi W/o Sh. Pawan Kumar R/o
Ramgarh Road, Teh. Pehowa, District, Kurukshetra.

9. Smt. Salindra W/o Sh. Siya Nand @Anund R/o

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Ramgarh Road, Teh. Pehowa, District, Kurukshetra.

10. Sh. Sanju S/o Sh. Paia Ram R/o Ramgarh Road,
Teh. Pehowa, District, Kurukshetra.

11. Smt. Gian Devi W/o Sh. Amar Sigh R/o
Ramgarh Road, Teh Pehowa, District, Kurukshetra.
(Expired).

12. Smt. Saneh Lalta @ Santosh W/o Sh. Rajinder
R/o Ramgarh Road, Teh. Pehowa, District, Kurukshetra.

13. Smt. Bimla W/o Sh. Pala Ram R/o Ramgarh
Road, Tel. Pehowa, District, Kurukshetra (Supernuated).

14. Smt. Sunita W/o Sh. Gopal R/o Ramgarh Roud,
Teh. Pehowa, District, Kurukshetra.

15. Smt. Ganga Devi W/o Sh. Vijay Pa! R/o
Ramgarh Road, Teh. Pehowa, District, Kurukshetra.

16. Sh. Pala Ram S/o Sh. Rula Ram R/o Ramgarh
Road, Teh. Pehowa, District, Kurukshetra (Superanuated).

17. Sh. Amar Singh S/o Sh. Zandu R/o Ramgarh
Road, Teh. Pehowa, District, Kurukshetra (Superanuated).

This order is subject to following terms and
conditions:

1. They will remain on probation for a period of
two years from the date of this order. Their services can be
terminated during the period of probation. The probation
period can however be extended up to a maximum of three
years if considered necessary.

2. Their services are liable to be terminated at one
month's notice by either side provided it will be open to
the department to pay his/her salary and allowances in lieu
of notice or in respect of period by which the notice giver
to his falls short of one month. Similarly if he/she wishes
to resign his/her post, he/she may do so by depositing one
month's salary and allowances in lieu of the notice or in
respect of the period by which the notice given by his falls
short of one month.

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3. This post is sanctioned only for the above named
Labourers and will continue till he/she is in service. If
he/she does not join this post, the past will be treated as
abolished. The post will automatically stand abolished on
his promotion, retirement, resignation or death.

4. He/she is required to take an oath of allegiance to
the Republic of India

5. He/she is required to submit an affidavit of one
living spouse.

6. He/she is required to submit birth certificate,
educational qualification certificate and certificate of
category (SC, BC, OBC, etc.) to which he belongs. Any
wrong information regarding proof of date of birth,
category and education qualification shall entail the
cancellation of this order against him/her.

7. He/she is required to submit medical fitness
certificate from Civil Surgeon, (Distr Kaithal). The joining
of services will be on production of medical fitness
certificate.

8. On regularization these employees shall be liable
to transfer and serve anywhere in the state of Haryana.

9. He/she is also required to deposit Rs. 75/- a
service security duly pledged to the Governor of Haryana
through DFO, Kaithal.

10. He/she will join duty within 15 days from the
date of issue of this appointment order failing which the
appointment will be cancelled.

11. The above mentioned employees would be
governed by the Rules, Regulations and Instructions
issued by Haryana Government from time to time.

12. The antecedents of the above employees shall
be got verified, if any adverse report about his/her
antecedents is received/comes in to the knowledge of
undersigned after the regularization order, This

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regularization order shall stand cancelled against him/her.

13. The pay and allowances shall not be liable to be
paid to above employees for the period of absent from
duty after reinstatement in the service by award of the
Hon'ble Labour Court.

-Sd/-

Dy. Conservator of Forests, Kaithal Forest
Division, Kaithal."

7. We have gone through the judgment and record in

Pawan Kumar
's case (supra) passed by the learned Single Judge

and found that they were appointed as daily wage labourers between

1979 to June, 2000 and the learned Single Judge had found that the

services of all had been terminated on 11.08.2012, which had been

set aside by the Labour Court vide Award dated 27.08.2014 and they

were reinstated in service with 50% back-wages, whereas juniors to

them had been retained and made regular.

The argument raised that

regularization policies had been withdrawn in the year 2007 was

rejected on the ground that once the benefit had been granted to the

juniors even in the absence of any policy, their claim would still be

alive while placing reliance upon in the case of
'Raj Kumar Vs.

State of Haryana
', 2015 (4) SCT 277.

8. As noticed in the case of persons employed 4 to 10 years

later, the State has chosen to grant them the benefit of regularization,

but continued to deny the same to the writ petitioners. The said

claim had been rejected by passing a speaking order dated

06.01.2016 (Annexure P-15), since directions had been issued on an

earlier occasion on 05.11.2015 in CWP No.23724 of 2015

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'Balwinder Singh and others Vs. State of Haryana and others
' to

decide the legal notice dated 19.08.2015 (Annexure P-10). The

Divisional Forest Officer, Kaithal rejected the claim by holding out

that the date of initial engagement was not accepted by the Labour

Court, which was only to deal with the issue whether the termination

of workman was justified or not, which was the fallacious objection

raised in as much as the Labour Court had to see the initial date of

appointment in order to come to the conclusion whether they had

worked for 240 days or not and whether reinstatement could be

directed. Similarly objection raised was that the writ petitioners were

not appointed on duly sanctioned posts and policies stood withdrawn

and the State Government had put on hold all the policy decisions.

Reliance was placed upon the judgment of the Apex Court passed in

Secretary, State of Karnataka and others Vs. Uma Devi and

others, (2006) 4 SCC 1 and that neither the writ petitioners were

covered under the policy dated 29.07.2011, though the consideration

was for the benefits of a policy which had been issued at an earlier

point of time, whereby only 3 years service was required as on

31.01.1996/30.09.2003.

9. The State of Haryana had regularization policies for

adjusting the ad-hoc appointments since 12.10.1970 which have been

replaced by various instructions and notifications issued by Chief

Secretary and as brought to our notice by the State Counsel. On

01.01.1980 also a notification had been made and thereafter another

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one was circulated on 03.11.1983 which was also modified at various

stages. On 19.01.1984, another notification was issued which talked

about regularizing employees who had completed 2 years of service

on 15.09.1982 and were in service on the said date. Same was

followed up by similar regularization policy dated 16.02.1987 of

Class-III employees. It is not disputed that a Division Bench of this

Court in CWP-72-1988 titled Piara Singh Vs. State of Haryana &

others had issued directions for regularization of persons who had

put in 4 years of service and for those set of employees who fell

within the meaning of 'workman' and the same was modified by the

Apex Court in State of Haryana Vs. Piara Singh, 1992 (4) SCC

118.

10. The first policy dated 18.03.1996 sought to be enforced

in the present bunch of cases reads as under:

"No. 6/38/95-2081 Dated 18-3-1996
To

The Chief Secretary to Government Haryana
To

1. All the Heads of Departments Commissioner,
Ambala, Rohtak, Hissar and Gurgaon Division, All the
Deputy Commissioners and all Sub Division Officers
(Civil) in Haryana.

2. The Registrar Punjab Haryana High Court,
Chandigarh.

Dated Chandigarh, the 10th March, 1996
Subject:- Regularization of Work Charge Casual Daily rated
employee.

Sir,
I am directed to refer to Haryana Government
letter No. 6\38\95-2081, dated 7th March 1996 vide which
Government had issued instructions that the service of these
Work Charged/Casual/Daily rated employee who have

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completed 5 years service on 31st Jan 1996 and fulfill other
conditions laid therein should be regularized.

2. This matter has further been considered and
after consideration it has now been decided to regularize the
services of all those Work Charged Casual Daily rated
employees who have completed 3 years service on 31st Jan,
1996 and fulfill other conditions laid down in Haryana Govt
letter of even number dated 7th March 1996.

3. Accordingly, Government instructions issued
vide letter of even number dated 7th March 1996 should be
considered as modified to the extent that the Work Charged
Daily rated employees with 3 years service on 31st Jan, 1996
instead of 5 years service on 31st Jan 1996 shall be eligible for
regularization.

4. This may please be brought to the notice of all
concerned.

Yours faithfully
Sd/-

Under Secretary General Administration,
for Chief Secretary to Govt Haryana
A copy is forwarded for information and necessary
action to all the Financial Commissioners\Commissioners and
Secretaries to Govt Haryana in continuation of Haryana Govt.
letter of even number dated 7th March 1996.

Sd/-

Under Secretary General Administration,
for Chief Secretary to Govt Haryana"

11. Vide policy dated 17.06.1997, period of 2 years was

prescribed for the purposes of regularization of Group-C employees

who were working on ad-hoc basis as on 31.01.1996 and who were

on service on that date. Similarly, daily rated employees who had

completed 3 years of service on 31.01.1996 and were in service were

also to be considered for regularization. The policy reads as under:

No. GSR/41/Const./Art/309/97.- In exercise of the
powers conferred by the proviso to
article 309
of the
Constitution of India read with the proviso to clause 6 of
Haryana Government, General Administration Department
(General Services), notification No. 523-3GS-70/2068,

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dated the 28th January, 1970, and all other powers enabling
him in this behalf, the Governor of Haryana hereby
specifies such Group C posts, as have been held for a
minimum period of two or three years on 31st January 1996,
by Group C employees on adhoc or daily rated basis, to be
taken out of the purview of the Subordinate Services
Selection Board, Haryana. The services of such adhoc/daily
rated employees shall be regularised if they fulfill the
following conditions, namely:-

1. Adhoc Employees-

(i) That only such adhoc employees, as have completed
two years service on 31st January, 1996, and were in
service on that date should be made regular. However,
break in service rendered on adhoc basis upto a period
of one month may be condoned excluding breaks
occurring because of the concerned employee having
left service of his own volition or where the adhoc
appointment was again a post or vacancy for which no
regular recruitment was required or intended to be made
i.e.. leave arrangements or filling up of other short time
vacancies may not be condoned;

(ii) that the employees should have been recruited
through the employment exchange or directly appointed
by the appointing authority after obtaining the non-
availability certificate from the employment exchange:

(iii) that the employees possessed the prescribed
qualification for the post at the time of their
appointment on adhoc basis;

(iv) that the work and conduct of such employee shall
be of overall good category and no disciplinary
proceedings are pending against them, and

(v) that the employees shall be regularised against the
post or vacancies of relevant categories.

However, the employees who have been promoted on
adhoc basis pending recruitment by Subordinate
Services Selection Board, Haryana, will not be covered

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under this decision.

2. Daily Rated Employees:- That only such daily-wagers
who have completed three years service on group C posts on
31st January, 1966, and were in service on 31st January,
1996, shall be regularised against their respective Group C
posts, provided they fulfill the requisite qualification and
were originally appointed on Group C posts and the posts
are available. If the posts are not available, they should be
got created from the Finance Department or they should be
regularised in Group D scale on compassionate grounds like
other daily-wagers, provided further that they have worked
for a minimum period of 240 days in each year and the
break in service in any year is not more than one month at a
time.

3. The seniority of adhoc or daily-wager employees so
regalarised vis-a-vis the Group C employees shall be
determined with effect from 31st January, 1996 The inter-se
seniority of such adhoc or daily-wager Group C employees
shall be determined in accordance with the date of their
joining the post on adhoc or daily-wagers basis. If the date
of joining the post on adhoc or daily-wages basis by such
adhoc or daily wager employees are the same, then an older
employee shall rank senior to an employee younger in age.
If the date of appointment of the direct recruit and the date
of regularisation of adhoc or daily-wager employees are the
same, the direct recruit shall be senior.

Sd-

RAM S. VARMA
Chief Secretary to Government, Haryana

12. Vide policy dated 05.11.1999, Group-C posts having

been held for minimum period of 15 years of the date of publication

of the notification and being in service and whose services were not

regularized earlier because of non-fulfillment of educational

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qualifications were to be granted the benefits of regularization

subject to various conditions.

13. Thereafter, the policy dated 01.10.2003 came into force,

which reads as under:

"Notification
The 1st October, 2003
No.G.S.R.24/Const/Art.309/2003.-- In exercise of
the powers conferred by the proviso to
Article 309
of the
Constitution of India read with the proviso to clause 6 of
Haryana Government General Administration Department
(General Services), notification No. 523-3GS-70/2068,
dated the 28th January, 1970, and all other powers
enabling him in this behalf, the Governor of Haryana
hereby specifies such Group-C posts, as have been held
for a minimum period of three years on the 30th
September, 2003 by Group-C employees on
adhoc/contract or daily wage basis, to be taken out of the
purview of the Haryana Staff Selection Commission. The
services of such adhoc/contract/daily wage employees
shall be regularised if they fulfill the following conditions,
namely:

1. Adhoc Employees/Contract Employees:--

(i) that only such Adhoc/Contract employees who
have completed three years service on 30th September,
2003 and were in service on that date should be made
regular. If the break in service of an adhoc/ contractually
employed person has been caused for no fault attributable
to him, such break period should be condoned unless it is
of an extraordinary longer period Le not more than six
months However, if the break in service has been caused
due to fault of the employee like abandonment of
employment, the Government may not condone the same

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if the period of such break is more than a period of 30
days;

(ii) that the employees possessed/possess the
prescribed qualification for the post(s) held on Adhoc
basis/Contract basis;

(iii) that the work and conduct of such employees
shall be of overall good category and no disciplinary
proceedings/criminal proceedings are pending against
them; and

(iv) that the employees shall be regularised, who
were originally appointed against the vacant posts;

(v) that only those contract employees shall be
regularised who are appointed against sanctioned posts on
regular pay scale or on consolidated salary.
However, the employees who have been promoted on
adhoc basis pending recruitment by Haryana Staff
Selection Commission will not be covered under this
decision

2. Daily-Wage Employees (Group-C):--

That only such daily wage employees who have
completed three years service on Group-C posts on 30th
September, 2003 and were in service on 30th September,
2003 shall be regularised against their respective Group-C
posts, provided they fulfil the requisite qualifications and
were originally appointed against vacant posts. Provided
further, that they have worked for a minimum period of
240 days in each year and if the break in service of a daily
wage employee has been caused for no fault attributable to
him, such break period should be condoned unless it is of
an extraordinary longer period. However, if the break in
service has been caused due to fault of the employee like
abandonment of employment, the Government may not
condone the same if the period of such break is more than
a period of 30 days.

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3. Daily-Wage Employees (Group-D):--

Only such daily wage employees who have
completed three years service Group D posts on 30th
September, 2003 and were in service on 30th September,
2003 shall be regularized against their respective Group-D
posts provided they fulfil the requisite qualification and
were originally appointed against vacant posts. Provided
further that they have worked for a minimum period of
240 days in each year and if the break in service of a daily
wage employee(s) has been caused for no fault attributable
to him such break period should be condoned unless it is
of an Extraordinary longer period. However, if the break
in service has been caused-doe-to fault of the employee
like abandonment of employment, the Government may no
condone the same if the period of such break is more than
a period of 30 days

4. The seniority of adhoc/contract or daily wage
employees so regularised vis-a-vis the Group-C and
Group-D employees shall be determined with effect from
1st October, 2003. The inter-se-seniority of such
adhoc/contract or daily-wage Group-C and Group-D
employees shall be determined in accordance with the
date(s) of their joining the post on adhoc/contract or daily
wage basis. If the date of joining the post on
adhoc/contract or daily wage basis by such adhoc/contract
or daily wage employee is the same, then an older
employee shall rank senior to an employee younger in age.
If the date of appointment of the direct recruit and the date
of regularisation of adhoc/contract or daily wage employee
is the same, the direct recruit shall be senior.

5. The above policy shall not be made applicable in the
case of drivers and conductors of Haryana Roadways. All
decisions relating to regularisation of drivers and
conductors shall be taken in accordance with Haryana

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Transport Department (Group-C) Haryana Roadways
Service Rules, 1995, as amended from time to time.

6. To curb the tendency of appointment on
adhoc/contract/daily wager basis (in Group-Cor Group-D)
in future, any such appointment will not be made and if
done so, the officers/officials responsible will be liable for
strict disciplinary action and recovery shall be made from
the officers/officials concerned.

7. Finance Department instructions issued vide letter No.
5/6/92-1B&C, dated 9th January, 1996 is hereby
withdrawn."

14. A perusal of the above would go on to show that for

daily wage employees of Group-D Category, 3 years service on

30.09.2003 was the requirement, apart from the fact that requisite

qualifications and vacant posts were the conditions with a rider that

the employee had to work for 240 days in each year. The same was

thereafter amended on 10.02.2004 and for Class-III the condition was

put that the fulfillment of requisite qualifications were to be on the

date of engagement or on 30.09.2003. Another onerous condition

was put that only daily wage employees were to be regularized who

had been engaged before 31.01.1996. Relevant portion of the

notification dated 10.02.2004 reads as under:-

"(C) in condition number 3.--

(a) for the words "fulfill the requisite
qualifications and were originally appointed against the
vacant posts", the words, figures and sign "fulfill the
requisite qualifications on the date of engagement or on
30-9-2003" shall be substituted

(b) for the figures and word "30 days", the
figures and words "30 days in a year" shall be

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substituted;

(D) after condition number 7, the following condition
shall be added at the end, namely :--

"8. In the case of daily Wage Group C and D
employees only those daily wage employees shall be
regularized who had been engaged before 31-1-96
provided they fulfill the other conditions."

15. On 13.04.2007 all the four policies were withdrawn

including the earlier ones of 1997 and 1999 and duly circulated vide

communication dated 29.05.2007 while quashing the regularization

already made, which was apparently on account of the judgment

passed by the Apex Court in Uma Devi (supra). Relevant portion of

the notification dated 13.04.2007 reads as under:-

"Notification
The 13th April, 2007
No. G. S. R. 13/Const/Art. 309/2007.- In exercise of
the powers conferred by the proviso to
article 309
of the
Constitution of India read with the proviso to clause (6) of
Haryana Government, General Administration Department
(General Services). Notification No. 523-3GS-70/2068, dated
the 28th January 1970, the Governor of Haryana hereby
rescinds the following notifications issued in relation to
regularization of services of adhoc/daily-wage/contract/part-
time workers etc. forthwith:-

1. No. G.S.R. 41/Const./Art, 369/97 dated the 17th June 1997

2. No.G.S.R. 101/Const/Art. 309/99, dated the 5th November, 1999;

3. No. G. S. R. 24/Const/Art. 309/2003, dated the 1st October: 2003; and

4. No. G.S.R. 5/Const/Art. 309/2004, dated the 10th February, 2004.

This notification shall not adversely affect the cases
where regularization have already been made but are not sub-
judice."

16. On 04.02.2015 in CWP No.9708 of 2004 'Ajit Singh

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Vs. State of Haryana and others' the Coordinate Bench observed

that the introduction of date 31.01.1996 vide impugned amendment

dated 10.02.2004 was unreasonable and arbitrary, as it was applying

retrospectively to take away the vested rights of the petitioners whose

services had already been regularized, since it was a case where their

order of regularization was passed on 15.12.2003, which was sought

to be reviewed and set aside vide order dated 08.06.2004. Relevant

portion of the order dated 04.02.2015 reads as under:-

"Vide notification dated 01.10.2003, services of all
daily wagers, who had put in three years of service as on
30.09.2003, were entitled to be regularized. Through the
impugned notification dated 10.02.2004, the amendment
sought to be introduced to the earlier notification dated
01.10.2003, was that services of only those daily wagers
would be regularized, who have been engaged before
31.01.1996. We find the introduction of date 31.01.1996
through the impugned amendment dated 10.02.2004 to be
unreasonable and arbitrary because if such an amendment
is to be allowed, then the result is that a daily wager, who
puts in three years of service from 30.01.1996, would be
entitled to regularization of his service, whereas the
services of the person like the petitioner, who would have
put in over five years of service i.e. From August 1998 till
30.09.2003, would not be regularized.

Even otherwise, the impugned amendment through
notification dated 10.02.2004, could not apply
retrospectively to take away the vested rights of the
petitioner, whose services had already been regularized
through order dated 15.12.2003 prior to the amendment. If
at all the impugned amendment was to apply, the same
could be applied to cases of regularization of service after

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the date of the amendment i.e. 10.02.2004.

In view of the above, the impugned order dated
08.06.2004 (Annexure P-11) is quashed."

17. The State then framed policy dated 29.07.2011 for

Group-D employees in pursuance of the judgment passed in Uma

Devi (supra) wherein Group-D employees had to have 10 years of

service as on 10.04.2006 for the grant of the said benefit. The said

policy reads as under:-

"Notification
The 29th July, 2011
No. G.S.R. 9/Const./Art. 309/2011.-- In exercise of
the powers conferred by the proviso to
article 209
of the
Constitution of India read with the proviso to clause 6 of
Haryana Government, General Administration Department
(General Services), notification No. 523-3GS-70/2068,
dated the 28th January, 1970, the Governor of Haryana
hereby specifies such Group C posts, as have been held for a
minimum period of ten years as on 10-4-2006, by Group C
employees workers on adhoc/contract/work-charged/daily
wages and part-time basis to be taken out of the purview of
the Haryana Staff Selection Commission.

The services of such Group C and Group D
employees/workers appointed/ engaged on adhoc/contract/
work-charged/daily-wages and part-time basis shall be
regularized if they fulfil the following conditions, namely:--

(i) That the employee/worker should have continued
to work for not less than ten years as on 10-4-2006 and is
still in service but not under cover of the orders of the
Courts or Tribunals, against duly sanctioned vacant posts.

The period of continuous break in such service should not
be more than one month in a calendar year.

(ii) That the employee/worker possessed the

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minimum prescribed qualifications for the post on the date
of appointment/engagement

(iii) That the concerned employee should have been
appointed only after either his name has been sponsored by
the Employment Exchange or has been appointed/engaged
on the basis of recommendations made by the Departmental
Selection Committee by inviting applications through
advertisement against duly sanctioned vacant post.

(iv) That the work and conduct of such employee
should have been throughout satisfactory and no disciplinary
or criminal proceedings should be pending against him.

(v) That the employee should be regularized against a
sanctioned vacant post of relevant category.

(vi) A medical fitness certificate and documentary
proof of Date of Birth as per the instructions shall be
obtained from the employee concerned.

(vii) His antecedents should be got verified by the
police as per the Government instructions if it was not done
earlier.

(viii) No relaxation of the criteria as laid down above
shall be allowed.

2. A part time employee fulfilling conditions mentioned
above shall be regularized against a sanctioned vacant
fulltime post of the same category.

3. Such posts are being hereby taken out of the purview
of the Haryana Staff Selection Commission.

4. As a result of regularization of Group C -adhoc/
contract/work-charged/daily-wages/part-time employees/
workers, the number of available vacancies in the
departments may undergo a change and affect the
requisitions already sent to Haryana Staff Selection
Commission. Therefore, where the vacancies have not yet
been advertised, the departments may after calculating at
their own level decide now many vacancies are to be

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withdrawn from the requisition sent to the recruiting agency
and send intimation of withdrawal of vacancies to the
respective recruiting agency.

5. However, the regularly recruited employees, who
have been promoted on adhoc basis on the direct
recruitment posts pending recruitment by Haryana Staff
Selection Commission, meaning hereby those employees
who have been promoted against the vacancy of such posts,
the recruitment of which is within the purview of Haryana
Staff Selection Commission, shall not be covered under this
policy.

6. The date of regularization shall be deemed to be the
date of issuance of this notification. The seniority of the
employees shall be fixed from the date the their
regularization and they shall be placed below in the seniority
to the employees last appointed on the regular basis before
the issuance of this notification. However, the inter-se-
seniority of such adhoc/contract/work charged/ daily-wages
and part-time employees so regularized shall be determined
in accordance with date of their joining the post on
adhoc/contract/work charged/ daily wages and part-time
basis. If the date of joining the post on adhoc/ contract/work
charged/daily wages and part-time basis is the same, then an
employee who is older in age shall rank senior to an
employee younger is age.

7. The benefit of the seniority shall be given to such
employees/worker from the date of their regularization.
Therefore, such employees shall be entitled to the incentives
introduced under the Incentive Schemes like ACP scheme.
(wherein regular satisfactory service is required) from the
date of their regularization. The pay of such employees shall
be fixed in accordance with provisions of the service rules.
Since new pension scheme has been introduced by the State
Government w.e.f. 1-1-2006, such employees shall be

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covered under the provisions of New Pension Scheme
(wherein regular satisfactory service is required) from the
date of their regularization. The pay of such employees shall
be fixed in accordance with provisions of the service rules.
Since new pension scheme has been introduced by the State
Government w.e.f. 1-1-2006, such employees shall be
covered under the provisions of New Pension Scheme.

8. Since this policy is a one time measure on
humanitarian ground. therefore, no person shall be entitled
to claim it as a matter of right, if found unsuitable due to
non fulfilment of the conditions mentioned in this
notification.

9. In future, no illegal/irregular appointment/
employment on adhoc/ daily wages/work-charged and part-
time shall be made against sanctioned posts.

10. Such Group C and D employees/workers, who are
not covered under this regularization policy but are still in
service, may be given age relaxation as a one time measure,
if they complete for regular appointment."

18. Clause (i) of the abovesaid policy was then amended on

17.01.2012, wherein the break period was explained. The same reads

as under:-

"(i) that the employee/worker should have
continued to work for not less than 10(Ten) years as on
10th April, 2006 and is still in service but not under cover
of the orders of the Courts or Tribunals, against duly
sanctioned vacant posts. If the break in service of any
such employee/worker has been caused for no fault
attributable to him. such break period should be condoned
unless it is of an extraordinary longer period i.e. not more
than 90 days in a year. However, if the break in service
has been caused due to fault of the employee like
abandonment of employment, the Government may not

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condone the same if the period of such break is more than
a period of 30 days in a year.".

19. The clarification was issued on 18.06.2014 adding a

proviso in the withdrawal of notification dated 13.04.2007 that

employees who could not be regularized under the four policies

issued due to administrative reasons and who are eligible, shall be

regularized from the date they were eligible for regularization. The

said notification reads as under:-

"Notification
The 18th June, 2014
No. 6/7/2014-IG.S.L-- In exercise of the powers
conferred by the proviso to
Article 309
of the
Constitution of India read with the proviso to clause 6 of
the Haryana Government, General Administration
Department (General Services), the Governor of Haryana
hereby makes the following amendment in Haryana
Government, General Administration Department
(General Services-1), Notification No. G.S.R. 13/Const
/Art. 309/2007, dated 13th April. 2007, namely:--

AMENDMENT
In the Haryana Government. General
Administration Department (General Services-1),
Notification No. GSR 13/Const/An. 309/2007, dated 13th
April, 2007 the following proviso shall be added at the
end, namely
"Provided that the left over Group "C" and "D"

employees working on adhoc/contract/daily
wages/work-charged basis, who could not be
regularised under the regularization policy issued vide
notifications mentioned at serial No. 1 to 4 above due
to administrative reasons but were otherwise eligible,
shall be regularized with effect from the date(s) they

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were eligible for regularization."

20. Other policies were introduced i.e. dated 16.06.2014 for

Group-B employees and dated 18.06.2014 for Group-C and D

employees and separate notifications dated 07.07.2014 for Group-B

and Group-C & D employees, which were subject matter of

consideration in
'Yogesh Tyagi and another Vs. State of Haryana

and others
' 2018 (3) SCT 181 wherein the Coordinate Bench had

quashed the said policies vide judgment dated 31.05.2018. The said

judgment is subject matter of consideration before the Apex Court in

SLP No.33265 of 2018, wherein interim orders had been passed to

maintain status quo, on 26.11.2018.

21. It is pertinent to mention that we are not concerned with

the subsequent policies as such of the year 2014 and the subject

matter of consideration herein is with regard to the regularization of

services of Group-D employes who were appointed in earlier point of

time and are seeking benefit of regularization qua the other policies.

22. Mr. Ankur Mittal, Addl. AG, Haryana has vehemently

tried to submit that on 05.05.2015 (Annexure R-2 in LPA No.530 of

2020, page no.114) an order was passed to put on hold the policies,

which reads as under:-

"Haryana Government
General Administration Department
Subject: Review of announcements/recruitments/
appointments made by the previous Government after
16.5.2014.

Will all the Administrative Secretaries to

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Government Haryana kindly refer to the subject cited
above?

2. The Council of Ministers in its meeting held on
5.11.2014 has taken a decision to review the
announcements/recruitments/appointment made by the
previous Government after 16.5.2014 Accordingly.
Administrative Secretaries were informed vide U.O. No.
9/324/2014 Cabinet, dated 5.11 2014.

3. The matter pertaining to recent Regularisation
Policies was further placed in the meeting of Council of
Ministers held-on-25.11.2014 review all the regularisation
policies issued/revived on or after 16.6.2014 respect of
Group B, C and D employees appointed/engaged on adhoc
contractual etc. As per decision of the Council of Ministers,
the matter being reviewed by the State Government.

4. In view of above circumstances, the Government has
decided that all the regularisation policies/revived on or
after 16.6.2014 and put on hold. It is, therefore, requested
that regularisation of Group B, C and D employees
appointed/engaged on adhoc, contractual etc. may not be
carried out under these policies till the final decision is
taken by the Government in this regard. They are requested
to bring these instructions to the notice all concerned under
their administrative control for strict compliance in letter
and spirit. -sd
Superintendent General Services-I
for Chief Secretary to Government Haryana
To
All the Administrative Secretaries to Government
Haryana.

U.O No. 6/26/2015-1GS1 Dated 5th May, 2015."

23. Thereafter, on 03.06.2016 the said order dated

05.05.2015 was withdrawn. The communication dated 03.06.2016

reads as under:-

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"Haryana Government
General Administration Department
Subject:- Review of regularisation policies issued on
or after 16.6.2014.

Will all the Administrative Secretaries to
Government Haryana kindly refer to the subject cited
above?

2. Government had put on hold all the regularization
policies issued on or after 16.6.2014 vide U.O. No.
6/26/2015-1GS1, dated 5.5.2015.

3. They are informed that the decision dated
5.5.2015 to put on hold all the regularisation policies
framed/revived on or after 16.6.2014 in respect of Group
B, C and D employees appointed/engaged on adhoc,
contractual basis etc. is hereby withdrawn.

4. They are requested to bring these instructions to
the notice of all concerned under their administrative
control.

Superintendent General Services-1
for Chief Secretary to Government Haryana,
To
All the Administrative Secretaries to Government
Haryana
U.O. No. 6/26/2015-1GS1 Dated 3rd June, 2016"

24. Thereafter, vide interim order dated 02.09.2016, the

Coordinate Bench had stayed the regularization policies in
Yogesh

Tyagi
(supra), which reads as under:-

"Having heard learned counsel for the parties,
prima facie we are satisfied that the impugned policy runs
contrary to the mandate of the Constitutional Bench
judgment in the "
Secretary, State of Karnataka and
others Vs. Umadevi and others
", (2006) 4 SCC 1. Hence
further regularization of services under the said policy
shall remain stayed till the final decision. The
regularization orders, if any, passed earlier shall be subject

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to final outcome of the writ petition.

List on 24.10.2016.

A photocopy of this order be placed on the files of
all aforesaid connected cases."

25. Thereafter, on that account vide order dated 15.09.2016

all regularizations were put on hold, which reads as under:-

"Dated Chandigarh, the 15 September 2016
Subject:-Regarding regularisation policies issued/
revived on or after 16.6.2014.

Sir/Madam,
I am directed to invite your attention to the
above cited subject and to say that all the regularisation
policies issued/revived on or after 16.6.2014 were under
challenge before the Hon'ble High Court through
CWP No. 17206 of 2014 titled as
Yogesh Tyagi and
another vs. State of Haryana
and other similarly situated
court cases i.e. CWP No. 8326 of 2015, CWP No 15853
of 2014 and CWP No. 22592 of 2015. The case was
fixed for hearing on 2.9.2016 before the Hon'ble
Division Bench.

2. The Hon'ble Court has stayed the operation
of all above regularisation policies. A copy of the order
of the Hon'ble High Court is enclosed.

3. You are, therefore, notified that no further
regularization of services of employees be made under
the said regularisation policies issued/revived on or after
16.6.2014 It may also be noted that the regularisation
orders if any, issued earlier shall be subject to the final
outcome of Civil Writ Petitions.

4. These instructions may please be brought to the
notice of all concerned for strict compliance."

26. Thereafter, on 18.10.2017 it was clarified that policy

dated 29.07.2011 is still in force, which would be clear from reading

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of the same, which reads as under:-

"Dated Chandigarh, the 18th October, 2017
Subject: Regarding regularization of Group 'B, C and D
employees
Sir/Madam,
I am directed to invite your kind attention to
the subject cited above and to say that regularization
policies issued/revived on or after 16.6.2014 have been
stayed by Hon'ble High Court vide order dated 2.9.2016
passed in CWP No.17206 of 2014 titled as
Yogesh Tyagi
and another Vs State of Haryana & others
. In compliance
of the order of Hon'ble High Court, a circular alongwith
order of Hon'ble Court was issued on 15.9.2016 vide which
it was notified that no further regularisation of services of
employees be made under the regularisation policies
issued/revived on or after 16.6.2014 till the decision of the
court case.

2. The State Government had also issued
regularisation policies vide instructions bearing
No.6/50/2007-1GSI, dated 29.7.2011 in respect of Group B
employee and notification No.G.S.R.9/Const./
Art.309/2011, dated 29.7.2011 in respect of Group 'C and
'D employees appointed/engaged on adhoc/contract/ work
charged/daily wages. These policies are still in existence as
there is no stay of any court of law on the operation of these
two policies.

3. Therefore, Group 'B', 'C' and 'D' employees
who are eligible under these policies, issued on 29.7.2011
can be considered for regularisation."

27. On 04.10.2018 the learned Single Judge had disposed

off a bunch of 54 cases of regularization, lead case of which was

CWP No.2009 of 2016 'Balwinder Singh and others Vs. State of

Haryana and others' by observing that it would be unfair to decline

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regularization due to non-availability of post and being over age,

once juniors had been regularized, while placing reliance upon the

judgment passed in Malathi Das (Retd.)
now
P.B. Mahishy &

others Vs. Suresh and others
, (2014) 3 SCC 24. It was also noticed

that the questionable methods were being adopted by the State

regarding the issue of regularization.

28. On 21.12.2018 the Chief Secretary, Haryana wrote for

creation of posts for regularization under the policies of year 2003-

2004 that posts may be created of diminishing nature to adjust the

employee and the Finance Department had been asked to give its

advise for creating posts under the regularization policies of 2003-

2004. It was also noticed that the same practice would be applicable

in respect of regularization policies dated 17.06.1997 and

05.11.1999. The payment of arrears of regular pay scales were

restricted to 38 months. The said communication reads as under:-

"MOST URGENT

Subject: Creation of posts for persons regularized under the
regularization policies of year 2003-2004.
******

Will the Additional Chief Secretary to Government.
Haryana, Finance Department kindly refer to the subject
noted above?

2. It is intimated that vide Government notification
No.GS.R. 13/Const/Art.309/2007, dated 13.4.2007. the
regularization policies No. G.S.R.41/Const/Art.309/97,
G.S.R. 101/Const/Art.309/99, G.S.R.24/Const/Art 309/2003
and G.S.R. 5/Const/Ant 309/2004, dated 17.6.1997,

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5.11.1999, 1.10.2003 and 10.2.2004 respectively were
rescinded. Thereafter, these policies were revived vide
Notification No.6/7/2014-1GSI, dated 18.6.2014 by
Government.

3. Further in pursuance of Hon'ble High Court interim
order dated 6.4.2018 in CWP No. 15887 of 2018-

Purushotam Das Vs State of Haryana
wherein matter of
creation of diminishing cadre pon for persons regularized
under 2003-200-1 policies No. G.S.R.24/Const/Art.
309/2003 dated 1.10.2003 and 10.2.2004 was under

consideration with the State Government.

4. The State Government has considered the matter and
decided that wherever the Administrative
Department/Boards/Corporations /Autonomous Units are
regularizing persons under the above mentioned
regularization policies, the Administrative Department, with
approval of Finance Department, may create some posts of
diminishing nature to adjust such employees.

5. The Finance Department is hereby advised to give
concurrence for creation of posts of diminishing cadre as
and when any Department/Board/Corporation/Autonomous
Unit submits a case for creating a post for any employee
proposed to be regularized under the regularization policies
of 2003 and 2004.

6. The same practice would also be applicable in respect
of regularization policies dated 17.6.1997 and 5.11.1999.

However, payment of the arrears of regular pay scale may be
restricted to 38 months prior to the date of actual
regularization order and other benefits may be granted to the
employees.

Superintendent, General Services-I
for Chief Secretary to Goverment
Haryana

To
The Additional Chief Secretary to Government

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Haryana, Finance Department

U.O. No. 6/20/2018-IGSI Dated, Chandigarh the 21" Dec., 2018

A copy is forwarded to the following for information and
necessary action:

Superintendent, General Services-I
for Chief Secretary to Government
Haryana

To

1. All the Administrative Secretaries to Government,
Haryana,

2. All the Heads of Departments, Haryana.

U.O. No. 6/20/2018-IGSI Dated, Chandigarh the 21" Dec., 2018"

29. However, on account of an appeal having been filed in

the lead case of CWP No.2009 of 2016 bearing LPA No.109 of 2019,

the Chief Secretary on 31.01.2019 wrote to all departments while

referring to its earlier communication dated 21.12.2018 that since

there was a stay dated 25.01.2019, appeals be filed against the

regularization orders relating to the employees of the department and

that the cases of the employees for regularization are required to be

considered as per the final directions of the Hon'ble Division Bench.

The said communication reads as under:-

"From

The Chief Secretary to Government Haryana.

To

1. All the Heads of Departments of Haryana and all the
Divisional Commissioners of Haryana.

2. All the Deputy Commissioners in Haryana.

3. The Registrar, Punjab & Haryana High Court,
Chandigarh.

4. All the Managing Directors, Board/Corporation of
Haryana.

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Dated, Chandigarh, the 31" January, 2019

Subject: Stay of judgment dated 4.10.2018 passed in CWP
No.2009 of 2016-
Balwinder Singh and others Vs.
State of Haryana
and others- Reg. Regularization of
services of employees.

Sir/Madam,

I am directed to invite your attention to the subject
cited above and to say that vide even U.O. No. dated
21.12.2018 the State Government had decided that
wherever the Administrative Departments/Boards/
Corporations/Autonomous Units are regularizing persons
under the regularization policies dated 17.6.1997,
5.11.1999, 1.10.2003 and 19.2.2004, the Administrative
Departments, with approval of Finance Department, may
create some posts of diminishing nature to adjust such
employees.

Now, Learned Advocate General, Haryana
has brought to the notice of State Government that vide
interim order dated 25.1,2019 in LPA No. 109 of 2019
(O&M) titled as "
State of Haryana & others Vs. Balwinder
Singh
& 6thers passed by the Hon'ble Division Bench of
Punjab & Haryana High Court has stayed the order dated
4.10.2018 passed by the Hon'ble Single Bench of Punjab
& Haryana High Court in CWP No. 2009 of 2016 titled as
"
Balwinder Singh & others Vs. State of Haryana & others

regarding regularization of employees.

Therefore, you are requested to file Appeals
against the regularization orders if any passed by the
Single Bench of Hon'ble High Court relating to employees
of your department.

It is reiterated that cases of the employees
for regularization are required to be considered as per final
direction of the Hon'ble Division Bench of High Court.

Yours faithfully

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Superintendent General Services-I,
for Chief Secretary to Government
Haryana."

30. The appeals filed against the said order were allowed on

18.03.2019 by the Bench of the learned Chief Justice, lead case of

which was
LPA No.109 of 2019 'State of Haryana and others Vs.

Balwinder Singh and others
' primarily on the ground that the

matter would require individual adjudication with regard to facts of

each case, the law and regularization policy and liberty was also

given to club the cases which are based on identical facts where the

employer were common. Relevant portion of the order dated

18.03.2019 reads as under:-

"3. Learned counsel for the parties are not at issue that
the matters require individual adjudication in accordance
with the facts of each case, the law and the regularization
policy in that regard, if any, in existence.

4. In view of the facts and circumstances noticed above
as also the concession given by the learned counsel for
the parties, it would be expedient and in the interest of
justice that the impugned judgement dated 04.10.2018 is
set aside and the writ petitions are remitted to be
adjudicated afresh by the learned Single Judge after
segregating them and if need be giving an opportunity to
file written statement(s) to the respondents, where such
opportunity was not afforded. And we so order.
However, it would be open to the learned Single Judge to
club such petitions which are based on identical set of
facts and circumstances and where the employer is
common.

5. With the aforesaid observations and directions, the
appeals stand disposed of. Needless to observe that the

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learned Single Judge shall make an endeavour to decide
the writ petitions on merits as expeditiously as possible.

6. Office is directed to place the matter before the learned
Single Judge on 09.04.2019 when learned counsel or the
parties cause appearance.

7. Till the matter is placed before the learned Single
Judge, all interim orders which were operative in any of
the writ petitions, shall continue to remain in operation."

31. Resultantly, the matters are before this Court on account

of the learned Single Judges again having decided the cases in favour

of the employees in various writ petitions decided on various dates.

32. Mr. Ankur Mittal has mainly relied on three principles to

argue that there has to be an active policy in force, on the basis of

which directions can be issued for regularization and on account of

the fact that a new policy dated 29.07.2011 had come into force, the

learned Single Judge was in error in issuing directions to consider the

case of the employees under the policy dated 01.10.2003. Reliance

was placed upon the judgment of the Apex Court in
'Maharashtra

State Road Transport Corporation and another Vs. Casteribe

Rajya Parivahan Karmchari Sanghatana
', (2009) 8 SCC 556 to

argue that
Article 226
of the Constitution of India could not be used

for issuing orders of regularization.

Resultantly, it was argued that

on the ground of parity, the learned Single Judge was not justified in

directing consideration for regularization while placing reliance upon

the judgment of the Apex Court in
'The Managing Director, Ajmer

Vidhyut Vitran Nigam Ltd., Ajmer and another Vs. Chiggan Lal

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and others', 2022 (2) SCT 176.

33. It is further the case of the Mr. Mittal that the learned

Single Judge was in error while placing reliance on the judgments

passed in
Casteribe Rajya Parivahan Karmchari Sanghatana

(supra) and
'Hari Nandan Prasad and another Vs. Employer I/R

to Management of Food Corporation of India and another
',

(2014) 7 SCC 190, since those cases pertained to power of the labour

Courts to direct regularization.

It is submitted that the matter has

now been referred to a Larger Bench as per the judgment in
'Oil and

Natural Gas Corporation Vs. Krishan Gopal and others
', 2020

(1) CLR 535.

34. He
placed reliance upon
the judgment rendered by one

of us (G.S. Sandhawalia, J.)
in 'Gurpreet Kaur Vs. Panjab

University and others', 2018 (1) SCT 90 and also placed reliance

upon the judgment of the Coordinate Bench passed in 'Hardev

Singh and others Vs. State of Punjab and others', 2013 (2) SCT

363. He further pointed out from LPA No.560 of 2021 that one of

the writ petitioners was appointed as per his own pleaded case in the

year 2001 and, therefore, was never covered under the provisions of

Policy-2003 and, therefore, directions could not have been issued in

his case. Whereas Mr. Bhandari has submitted that an affidavit had

been filed in the year said case before the learned Single Judge and

persons who had been recruited in the year 2003 were also

regularized.

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35. Mr. R.K. Malik, Senior Advocate appearing in LPA

No.106 of 2021 also pointed out that for its employees, the Forest

Department had recommended regularization under the 2003-Policy

while referring to Annexures P-5 to P-10 and, therefore, there is no

substance in the appeal and the same is liable to be dismissed,

keeping in view the directions issued by the Coordinate Bench while

remanding the matter on 18.03.2019.

36. Counsels for the employees, on the other hand,

submitted that once there was a policy in place, the writ petitioners

were seeking the enforcement of their legal rights which is being

settled and even the Apex Court recognized the said aspect that a

Mandamus could be issued in favour of the employees once there

was an enforceable legal right as per the policy framed by the

Government itself and referred to para No.52 of the judgment of Uma

Devi (supra). Similarly, it is contended that in Malathi Dass (Retd.)

(supra), directions had been issued wherein State had been held to

comply and regularize the services of the respondents who had been

left out in view of the fact that certain legal rights had accrued to

them prior to the judgment in Uma Devi (supra). Apparently, in view

of the interim order passed in CWP-4618-1996 titled Sanjeev Dev

Vs. State of Haryana, the process on the said policy of 1996 was kept

on hold. The said writ petition was eventually dismissed on

07.12.1996 and accordingly, directions which had been issued on

08.04.1996 were withdrawn on 15.05.1997 and the process of

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regularization of ad hoc and daily wages in accordance with the

Government instrcutions dated 17.03.1996 and 18.03.1996 were

brought in force once again.
On 01.02.1999, in view of the

directions issued in CWP-15602-1996 titled
Mange Ram & others

Vs. State of Haryana
, on 24.02.1998 and the policy was drawn up

regarding regularization of Group-D employees wherein 5 years

continuous service on the date of issuance of the instructions was

prescribed with various conditions such as the employee should have

been recruited through the Employment Exchange or directly

appointed by the appointing authority after obtaining the non-

availability certificate from the Employment Exchange and with the

prescribed qualifications and the work and conduct being

satisfactory.

The issue which arises for consideration is regarding the power
to issue a writ of mandamus on the question of a legal right
which is enforceable

37. The recognized and accepted principle regarding the

issuance of a writ of mandamus is that a right which could be

enforced on account of the authorities not doing their duty which

they are required to do as per the statute or an enforceable policy as

such. Reliance can be placed upon the judgment of the Apex Court

passed in
Anandi Mukta Sadguru Shree Mukta Jeevandasswasi

Suvarna Jaya Vs. V.R. Rudani and others
, AIR 1989 SC 1607. In

the said case the dispute was regarding the right of teachers to get

salary which had been allowed by the High Court of Gujarat. The

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maintainability of the writ petition before the High Court was

challenged on the ground that institution set up under the Trust Act is

not amenable to the writ jurisdiction of the High Court being a

private institution. The argument was rejected by holding that

service conditions were binding upon the management and the aided

institution was discharging public function by way of imparting

education to students, subject to rules and regulations of the

affiliating university. It was, accordingly, held that Courts are not

bound hand and foot by the previous law and a writ could be issued

to any person or authority for the enforcement of any of the

fundamental rights and for any other purpose keeping in view the

nature of the duty imposed upon the body. It was also held that

mandamus is a very wide remedy which must be easily available to

reach injustice wherever it is found and technicalities should not

come in the way of granting the relief. Relevant portion of
the said

judgment
reads as under:-

"22. Here again we may point out that mandamus
cannot be denied on the ground that the duty to be enforced
is not imposed by the statute. Commenting on the
development of this law, Professor De Smith states: "To be
enforceable by mandamus a public duty does not
necessarily have to be one imposed by statute. It may be
sufficient for the duty to have been imposed by charter,
common law, custom or even contract." (Judicial Review of
Administrative 'Act 4th Ed. p. 540). We share this view.
The judicial control over the fast expanding maze of bodies
effecting the rights of the people should not be put into

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water-tight compartment. It should remain flexible to meet
the requirements of variable circumstances. Mandamus is a
very wide remedy which must be easily available 'to reach
injustice wherever it is found'. Technicalities should not
come in the way of granting that relief under
Article 226.

We, therefore, reject the contention urged for the appellants
on the maintainability of the writ petition."

38. The argument, thus, raised by counsel for the State that

the writ Court would not have such jurisdiction to issue orders for

consideration for regularization is an argument of despair. It is to be

noticed that the writ petitioners before the writ Court were asking for

their legal rights as per the policies framed by the State prior to the

decision passed in the case of Uma Devi (supra). It is not disputed

that thereafter, also the State had framed policy in pursuance of the

directions of this High Court to grant the benefit to similarly situated

set of persons. Thus, it does not lie in the mouth of the State to hold

out to the contrary. Rather the Apex Court recognized the right to

seek the legal right to be permanently absorbed once there was a

policy in place in Uma Devi (supra). The Constitution Bench in that

case was dealing with the cleavage of opinion arising out of the

Division Bench of Karnataka High Court and had noticed that by

virtue of the directions issued by it earlier in Dharwad Distt. P.W.D.

Literate Daily Wage Employees Association and others Vs. State

of Karnataka and others, (1999) 2 SCC 396, the High Court of

Karnataka had issued directions while granting the relief of

regularization. It was in such circumstances, held that in the absence

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of any scheme, consideration for regularization by virtue of

provisions under
Article 226
of the Constitution of India was not

permissible since in that case the employees could not show that they

had any enforceable right to be permanently absorbed. Relevant para

of the judgment reads as under:

"52. Normally, what is sought for by such temporary
employees when they approach the court, is the issue of
a writ of mandamus directing the employer, the State or
its instrumentalities, to absorb them in permanent
service or to allow them to continue. In this context, the
question arises whether a mandamus could be issued in
favour of such persons. At this juncture, it will be proper
to refer to the decision of the Constitution Bench of this
Court in
Dr. Rai Shivendra Bahadur Vs. The Governing
Body of the Nalanda College
[(1962) Supp. 2 SCR 144].
That case arose out of a refusal to promote the writ
petitioner therein as the Principal of a college. This
Court held that in order that a mandamus may issue to
compel the authorities to do something, it must be
shown that the statute imposes a legal duty on the
authority and the aggrieved party had a legal right under
the statute or rule to enforce it. This classical position
continues and a mandamus could not be issued in favour
of the employees directing the government to make them
permanent since the employees cannot show that they
have an enforceable legal right to be permanently
absorbed or that the State has a legal duty to make them
permanent."

39. In the case of Godavari Sugar Mills Ltd. Vs. State of

Maharashtra, (2011) 2 SCC 439, the issue before the Apex Court

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was regarding the claim for recovery of interest on the compensation

payable as per the Award granted under the
Maharashtra Agricultural

Lands (Ceiling and Holdings) Act, 1961
. The High Court had denied

the said benefit on the ground that it was for enforcement of a money

claim. Resultantly, it was held that the said finding was not justified,

since the High Court while enforcing fundamental or statutory right

had the power to give consequential relief by ordering payment of

money realized by the Government without the authority of law and

it involves a question arising out of public law functions on the part

of the State or its authorities. Access to justice was provided by way

of a public law remedy under
Article 226
of the Constitution of

India, which could not be denied.
Accordingly, reliance was placed

upon the judgment passed in
Sanjana M. Wig Vs. Hindustan

Petroleum Corporation Ltd.
, (2005) 8 SCC 242 while allowing the

special leave petition.

40. Recently the Apex Court in the case of
Anil Kumar Vs.

Union of India and others
, (2019) 5 SCC 91 set aside the orders of

the Patna High Court which had denied that the claim for

appointment on Group-D posts which was to be considered by

granting an age relaxation, if required by noticing that there was a

binding policy circular formulated by the Union of India in the

Ministry of Railways. It was held that the grant of appointment to

persons displaced as a result of acquisition is a matter which is

within the purview of the policy discretion. Relevant portion of the

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said judgment reads as under:-

"20. For the above reasons, we have come to the
conclusion that the rejection of the claim of the appellant
was contrary to the terms of the binding policy circular
formulated by the Union of India in the Ministry of
Railways. Undoubtedly, the grant of appointment to
persons displaced as a result of acquisition is a matter
which is within the purview of the policy discretion. No
mandamus can lie in the absence of a policy. However,
where a policy has been
laid down by
the Union
government as in the present case, the terms of the policy
can be enforced. The rejection of the claim of the
Appellant was for extraneous reasons and based on
irrelevant considerations. Government in the Ministry of
Railways formulated a policy. The failure of
implementation results in a failure of social justice. The
policy circulars were substantive attempts to enhance
social welfare. Denial of benefits to the appellant has led to
a long and tortuous road to justice."

41. Thus, keeping in view the settled principles of law the

argument raised by Mr. Mittal that the writ petition is not

maintainable for the enforcement of the policies of the State is

without any basis. More so when the claim is based upon the

principle of violation of
Article 14
of the Constitution and similarly

situated persons have been granted the benefit under the same

policies, whereas the writ petitioners were wrongly denied the said

concession. Though it was the duty of the State officials to act upon

the policies of the State itself.

Continuity of Service

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42. The common thread in most of these cases from the facts

narrated above is that the writ petitioners were in service at the same

point of time and had served for a considerable period and were

reinstated by order of the Labour Court. The award of reinstatement

carried benefit of continuity of service, though backwages have been

denied in certain circumstances to the extent of 50%, either on

concession or on the settled principles that the employees would

have worked elsewhere. Underlined principles, thus, would be that

the writ petitioners would be deemed to be in service from the date of

their initial appointment on the reinstatement. It was, thus, the case of

the writ petitioners that the eligible persons were to be considered for

regularization in view of the regularization policies in force and

which had to be implemented by the officials of the State

Government. Facts are going to be noticed in detail in all cases that

the termination orders were passed after 15 years of service at the

behest of the State Government officials and some of the employees

after the Award were at the fag end of service, who had worked for

over 30 years. Therefore, to deny them regularization on the

technical ground that there was no availability of sanctioned posts

would be in contradiction to the fact that their services were being

used for over 30 years and now it is not for the State to turn around to

say that the work is not available which would be wholly unjustified.

43.
In
Nihal Singh & others Vs. State of Punjab & others
,

(2013) 14 SCC 65, the Apex Court while issuing directions for

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regularization of the Special Police Officers, keeping in mind the

limitations as imposed by the Constitution Bench in Uma Devi

(supra) had held that the State could not take the defence that there

were no sanctioned posts for the appellants and it is for the State to

create them by a conscious choice on the basis of some rational

assessment. The judgment passed by this Court was set aside and

necessary directions were issued by holding that the persons had

been appointed by the competent authority. Relevant portion of the

judgment reads as under:

19. Coming to the judgment of the division bench of
the High Court of Punjab & Haryana in LPA No.209 of
1992 where the claims for regularization of the similarly
situated persons were rejected on the ground that no regular
cadre or sanctioned posts are available for regularization of
their services, the High Court may be factually right in
recording that there is no regularly constituted cadre and
sanctioned posts against which recruitments of persons like
the appellants herein were made. However, that does not
conclusively decide the issue on hand. The creation of a
cadre or sanctioning of posts for a cadre is a matter
exclusively within the authority of the State. That the State
did not choose to create a cadre but chose to make
appointments of persons creating contractual relationship
only demonstrates the arbitrary nature of the exercise of the
power available under
section 17
of the Act. The
appointments made have never been terminated thereby
enabling various banks to utilize the services of employees
of the State for a long period on nominal wages and without
making available any other service benefits which are
available to the other employees of the State, who are

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discharging functions similar to the functions that are being
discharged by the appellants.

20. No doubt that the powers under
section 17
are
meant for meeting the exigencies contemplated under it,
such as, riot or disturbance which are normally expected to
be of a short duration. Therefore, the State might not have
initially thought of creating either a cadre or permanent
posts.

21. But we do not see any justification for the State
to take a defence that after permitting the utilisation of the
services of large number of people like the appellants for
decades to say that there are no sanctioned posts to absorb
the appellants. Sanctioned posts do not fall from heaven.
State has to create them by a conscious choice on the basis
of some rational assessment of the need.

22. The question is whether this court can compel the
State of Punjab to create posts and absorb the appellants
into the services of the State on a permanent basis
consistent with the Constitution Bench decision of this
court in
Umadevi
's case.

To answer this question, the ratio
decidendi of the
Umadevi
's case is required to be
examined. In that case, this Court was considering the
legality of the action of the State in resorting to irregular
appointments without reference to the duty to comply with
the proper appointment procedure contemplated by the
Constitution.

"4. ... The Union, the States, their departments and
instrumentalities have resorted to irregular
appointments, especially in the lower rungs of the
service, without reference to the duty to ensure a
proper appointment procedure through the Public
Service Commissions or otherwise as per the rules
adopted and to permit these irregular appointees or
those appointed on contract or on daily wages, to

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continue year after year, thus, keeping out those who
are qualified to apply for the post concerned and
depriving them of an opportunity to compete for the
post. It has also led to persons who get employed,
without the following of a regular procedure or even
through the backdoor or on daily wages,
approaching the courts, seeking directions to make
them permanent in their posts and to prevent regular
recruitment to the posts concerned. The courts have
not always kept the legal aspects in mind and have
occasionally even stayed the regular process of
employment being set in motion and in some cases,
even directed that these illegal, irregular or improper
entrants be absorbed into service. A class of
employment which can only be called "litigious
employment", has risen like a phoenix seriously
impairing the constitutional scheme. Such orders are
passed apparently in exercise of the wide powers
under
Article 226
of the Constitution. Whether the
wide powers under
Article 226
of the Constitution
are intended to be used for a purpose certain to
defeat the concept of social justice and equal
opportunity for all, subject to affirmative action in
the matter of public employment as recognised by
our Constitution, has to be seriously pondered over."

44. Merely because the policies were withdrawn at the time

when the claim was made for reinstatement would not take away the

right which had fructified to them on account of having continuity of

service and, therefore, the argument which has been raised by the

counsel for the State that earlier rules, regulations and instructions

2003 onwards were not in force is without any basis. Similar

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argument raised by the counsel for the State pertaining to the

Department of Irrigation in
LPA-836-2013 'The State of Haryana

Vs. Mohammad Farookh & another
' was rejected, wherein the

employees had been engaged as daily wagers in July 1990 and on

01.11.1992 and whose services had been terminated in the year 1998.

The learned Single Judge had directed regularization from the date

the juniors were regularised by noticing that though the policy

circular dated 01.10.2003 had been withdrawn, but similarly situated

persons had been made regular and, therefore, deemed fixation was

to be there on account of the continuity of service given by the

Labour Court and the workmen were treated to be in service from

30.09.2003. Relevant portion of the judgment dated 30.04.2013

passed in LPA-836-2013 reads as under:-

"It is true that the policy circular dated 1.10.2003
was later on withdrawn by the State Government on
9.5.2007 after the decision of the Hon'ble Supreme Court
in State of Karnataka versus Uma Devi and others, 2006
(4) SCC 1. The fact remains that before withdrawal of the
policy, hundreds of daily wagers/contractual employees
were made regular under the said policy. The respondents
were also in service before withdrawal of the abovestated
policy and in view of the Labour Court's Awards which
have attained finality, they shall be deemed to be in service
on 30.9.2003. As regard to the qualifications, the learned
Single Judge has found and rightly so that there are no
rules/instructions prescribing any qualification for the post
of Beldars. Similarly, the fact that the respondents were
appointed in the years 1990 & 1992 and had rendered more

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than 8 and 6 years service, respectively, as daily wagers
before their retrenchment, is sufficient enough to infer that
they were appointed against regular work. That apart, it is
not the case of the appellants that no daily
wager/contractual employee engaged after the years 1990-
92 was made regular.

No interference with the impugned order is thus,
called for.

Dismissed."

45. It is also to be noticed from the above sequence of

events as reproduced above in paragraph Nos. 8 to 26 that the State

itself had issued notification on 13.04.2007 withdrawing the four

policies starting from 18.03.1996 including the one dated

01.10.2003. Thereafter, it had issued necessary notification dated

18.06.2014 wherein it was specific provided that the left over Group

C and D employees working on ad hoc/ contract/daily wages/work-

charged who could not be regularized under the regularization policy

as per the earlier four notifications due to administrative reasons, but

were otherwise eligible were to be regularised with effect from their

date of regularization. Thus, the State was well aware that on

account of various contingencies certain set of persons had not been

granted the benefit, whereas similarly situated persons had been

granted the benefit. Therefore, an exception was made after the

decision rendered in Uma Devi (supra) to ensure that persons who

had been left out be also granted the benefit as granted to their

juniors. The Apex Court also had left a window open to the State for

providing an exception which would be clear from the underlying

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para in Uma Devi's case (supra), same reads 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
(supra),
R.N.
NANJUNDAPPA
(supra), and
B.N. NAGARAJAN
(supra),
and referred to in paragraph 15 above, of duly qualified
persons in duly sanctioned 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 courts or of
tribunals. The question of regularization 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 above
referred to and in the light of this judgment. In that context,
the Union of India, the State Governments and their
instrumentalities should take steps to regularize 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 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 regularization, if
any already made, but not subjudice, need not be reopened
based on this judgment, but there should be no further by-
passing of the constitutional requirement and regularizing or
making permanent, those not duly appointed as per the
constitutional scheme."

46. A three Judge Bench of the Apex Court in Official

Liquidator Vs. Dayanand and others, (2008) 10 SCC 1 while

noticing the observations in Uma Devi (supra) also held that where

employees have legitimate expectations which have been deprived by

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the administrative authority, which in the past had been permitted

and that there are some rational grounds for withdrawing it on which

he had been given an opportunity to comment. Relevant

observations made in Uma Devi (supra) read as under:-

"The doctrine can be invoked if the decisions of the
administrative authority affect the person by depriving him
of some benefit or advantage which either

(i) he had in the past been permitted by the decision-maker
to enjoy and which he can legitimately expect to be
permitted to continue to do until there have been
communicated to him some rational grounds for
withdrawing it on which he has been given an opportunity
to comment; or

(ii) he has received assurance from the decision-maker that
they will not be withdrawn without giving him first an
opportunity of advancing reasons for contending that they
should not be withdrawn."

47. Merely on account of a subsequent policy framed by the

State, which was subject matter of challenge and was eventually

struck down in
Yogesh Tyagi
(supra), it would not lie in the mouth

of the State that it had to comply with the issue of the interim orders

passed by this Court which had nothing to do with the policies,

which were in force earlier and were not subject matter of challenge

which was only qua policies dated 16.06.2014, 18.06.2014 and

07.07.2014, which would be further clear from the communication

dated 03.06.2016. Though initially the State had issued a letter dated

15.09.2016 directing that no further regularization of service of

employees be made, but it was clarified on 18.10.2017 that policy

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issued on 29.07.2011 is still in force.

48. In the earlier round of litigation also where the benefits

had been granted of regularization by the learned Single Judge, the

Chief Secretary vide communication dated 21.12.2018 had rather

directed that creation of posts of diminishing cadre be made. The

Finance Department was asked to give its advise for the same and

that payment of arrears of regular pay scales were restricted to 38

months prior to the date of actual regularization. Merely because an

appeal was filed in one case wherein stay was granted, there was a

change of heart regarding the earlier instructions. Thereafter,

directions were issued by the learned Chief Secretary on 31.01.2019

that appeals be filed in all cases.

49. Thus, reliance can also be placed upon Malathi Dass

(supra) wherein the contempt appeals had been disposed of while

binding the appellants to regularize the services of the 74 employees

forthwith within a period of 2 months keeping in view the fact that

similarly situated persons had been regularized and therefore, the

action of the State in not granting regularization could not be held to

be sound and justified which is apparent in the present case also once

in principle a decision has been taken to create the posts as a dying

cadre, keeping in view the instructions issued by the State

themselves.

50. It is to be noticed that the litigation which was initiated

by the employees was in the nature of reference of industrial dispute

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under the provisions of
Industrial Disputes Act, 1947
and was not in

the nature of an interim order to take continuity in service which

would bar them from claiming the said relief as has been held by the

Apex Court. Thus, their termination per se was found to be illegal

and not sustainable by the Labour Court or by the Writ Court in

appeal and they were directed to be reinstated with continuity in

service. Therefore, for that reason at various points of time the State

could not give effect to its own instructions and relief was sought for

regularization. Thus, the employees were justified in claiming the

relief of regularization on account of the fact that they got

reinstatement by the directions of the Labour Court and thus,

continuity of service had been given.

51. Thus, it is apparent that the present round of litigation is

based on the shifting stands of the Government, which in principle at

one stage had decided to create posts and considered the writ

petitioners for regularization. Thus, the judgment passed in
Sheo

Narain Nagar and others Vs. State of Uttar Pradesh and others
,

(2018) 13 SCC 432 can be directly applied upon in the present facts

and circumstances to show that how the State Government has

misunderstood the judgment passed in Uma Devi (supra). The Apex

Court in the said case was dealing with the appeals of the employees,

who had been appointed in 1993 and had continued in service till

2014 when their services were terminated. In the interim period they

had got issued directions in their favour for regularization, which had

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not been acted upon. The termination had been challenged, which

was declined by the learned Single Judge and upheld in appeal. The

same was set aside by the Apex Court by noticing that they had

rendered service for 24 years. It was held that there were only

irregular appointments and not illegal appointments and that posts

were available. Relevant portion of the said judgment reads as

under:-

"8. When we consider the prevailing scenario, it is
painful to note that the decision in Uma Devi (Supra) has
not been properly understood and rather wrongly applied
by various State Governments. We have called for the data
in the instant case to ensure as to how many employees
were working on contract basis or ad-hoc basis or daily-
wage basis in different State departments. We can take
judicial notice that widely aforesaid practice is being
continued. Though this Court has emphasised that
incumbents should be appointed on regular basis as per
rules but new devise of making appointment on contract
basis has been adopted, employment is offered on daily
wage basis etc. in exploitative forms. This situation was
not envisaged by Uma Devi (supra). The prime intendment
of the decision was that the employment process should be
by fair means and not by back door entry and in the
available pay scale. That spirit of the Uma Devi (supra)
has been ignored and conveniently over looked by various
State Governments/ authorities. We regretfully make the
observation that Uma Devi (supra) has not be implemented
in its true spirit and has not been followed in its pith and
substance. It is being used only as a tool for not
regularizing the services of incumbents. They are being
continued in service without payment of due salary for

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which they are entitled on the basis of
Article 14
, 16
read
with
Article 34 (1)(d)
of the Constitution of India as if
they have no constitutional protection as envisaged in
D.S.
Nakara v. Union of India
, AIR 1983 SC 130 from cradle to
grave. In heydays of life they are serving on exploitative
terms with no guarantee of livelihood to be continued and
in old age they are going to be destituted, there being no
provision for pension, retiral benefits etc. There is clear
contravention of constitutional provisions and aspiration
of down trodden class. They do have equal rights and to
make them equals they require protection and cannot be
dealt with arbitrarily. The kind of treatment meted out is
not only bad but equally unconstitutional and is denial of
rights.
We have to strike a balance to really implement the
ideology of Uma Devi (supra). Thus, the time has come to
stop the situation where Uma Devi (supra) can be
permitted to be flouted, whereas, this Court has interdicted
such employment way back in the year 2006. The
employment cannot be on exploitative terms, whereas
Uma Devi (supra) laid down that there should not be back
door entry and every post should be filled by regular
employment, but a new device has been adopted for
making appointment on payment of paltry system on
contract/adhoc basis or otherwise. This kind of action is
not permissible, when we consider the pith and substance
of true spirit in Uma Devi (supra).

9. Coming to the facts of the instant case, there was a
direction issued way back in the year 1999, to consider the
regularization of the appellants. However, regularization
was not done. The respondents chose to give minimum of
the pay scale, which was available to the regular
employees, way back in the year 2000 and by passing an
order, the appellants were also conferred temporary status
in the year 2006, with retrospective effect on 2.10.2002.

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As the respondents have themselves chosen to confer a
temporary status to the employees, as such there was
requirement at work and posts were also available at the
particular point of time when order was passed. Thus, the
submission raised by learned counsel for the respondent
that posts were not available, is belied by their own action.
Obviously, the order was passed considering the long
period of services rendered by the appellants, which were
taken on exploitative terms."

52. Similarly, a three Judges Bench of the Apex Court in the

case of
Rajnish Kumar Mishra and others Vs. State of Uttar

Pradesh and others
, (2019) 17 SCC 648 had allowed the appeals,

wherein appointments were over 12 years and the regularization

orders had been withdrawn by the District Judge, who thereafter also

withdrew the increments and directed recovery of emoluments paid

to the employees. The writ petition was dismissed by the learned

Single Judge and, thereafter, services were terminated. The said

termination were also upheld by imposing costs which were modified

by the Division Bench regarding the deletion of costs.

Ultimately,

the Apex Court while placing reliance upon the judgment passed in

Sheo Narain Nagar
(supra) has held that appellants had been

appointed prior to 2001 when the rules of regularization were

amended and when the appellants cases were to be considered for

regularization they had put in service for almost 12 years and,

therefore, the benefit of regularization could not have been

withdrawn which had been granted earlier.

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Forest Department Cases

53. We are thus of the view that the cases can be clubbed

together department-wise and, therefore, in the present lot we shall

decide the cases of the Forest Department and Department of Animal

Husbandry. LPA Nos.688, 540 & 573 of 2021, LPA Nos. 740, 739,

751, 802, 479, 918, 916, 818, 302, 541, 532 & 585 of 2020, LPA

Nos.8, 9, 18, 45, 55, 152, 818, 560, 567 and 106 of 2021 and LPA

Nos.171 & 148 of 2022, LPA No.536 of 2016 pertain to the Forest

Department and LPA Nos.444 & 508 of 2020 are pertaining to

Department of Animal Husbandry.

Facts of LPA-540-2021

54. The writ petitioner Jaipal was appointed in the year 1996

as Baildar-cum-Mali and his services were terminated on 15.09.2013.

He was successful in getting reinstatement by approaching the

Labour Court vide an Award dated 25.09.2016 (Annexure P-5) in his

favour, whereby he had been awarded continuity in service with 50%

backwages from the date of termination till reinstatement. Thus, he

sought regularization by filing CWP-9307-2017 which had been

allowed vide order dated 10.02.2020 on the strength of the judgment

passed in
Pawan Kumar
's case (supra).

55. The defence of the State in the written statement was

that the policies had been withdrawn and there is a delay in

approaching the Court to seek regularization as per the policy dated

01.10.2003 and that the policy of 2014 had been quashed.

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56. A perusal of the order dated 10.02.2020 passed by the

learned Single Judge would go on to show that counsel for the State

had submitted that the State was in process of regularization of the

employees and thus, directions were issued for regularization with all

consequential benefits with 6% interest and benefit be given from the

date the juniors to the petitioner had been regularised. Thus, in view

of the principles discussed above, once his juniors of 2 years later

have been regularized, no case is made out to interfere.

Facts of LPA-573-2021

57. In the present case, the writ petitioner No.1 Krishan

Kumar was appointed in the year 2000, whereas writ petitioner No.2-

Mohinder was appointed in the year 1998 as daily wager. Service of

writ petitioner No.1 were terminated on 16.11.2013 and that of writ

petitioner No.2 on 20.09.2013. They were reinstated vide Awards

dated 18.11.2015 (Annexure P-5) and 25.02.2016 (Annexure P-6)

with 50% backwages. Thus, they sought regularization by filing

CWP-9322-2017.

58. The stand of the State was again similar that the policies

stood withdrawn and they were not appointed on the duly sanctioned

posts and there was a delay to the extent of approaching the Court

and that the policy of 2014 had been quashed.

59. The writ petition was allowed in terms of
Pawan

Kumar
's case (supra) and the same statement had been given by the

counsel for the State that they were in process of regularization of the

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employees. The State having taken the service of the employees for

a period of 13 to 15 years, now cannot turn around and say that they

cannot be considered for regularization as, as of now they have put in

over 25 years of service.

Facts of LPA-740-2020

60. The writ petitioner Kamlesh filed CWP-24035-2016

pleading that she was appointed as daily wage labourer in March,

1996 and worked till 31.07.2005 when her services were terminated.

She had served a demand notice dated 28.11.2005 and was successful

vide the Award of the Labour Court dated 31.03.2010 to the extent of

getting compensation of Rs.36,000/-.

61. She had filed CWP-19912-2011 and vide order dated

18.02.2013 (Annexure P-1) the same was disposed of alongwith

three other writ petitions, whereby benefit of reinstatement and

continuity in service was given alongwith full backwages from the

date of receipt of reference. Rather the learned Single Judge was

forced to comment upon the conduct of the Forest Department, since

the record was not produced before the Labour Court in spite of

giving an undertaking to do so. It was noticed by the learned Single

Judge that as such was throwing out daily wage workers without

following due process of law and leave them to battle it out in Court

for year and thus told to accept reinstatement without backwages was

unjustified. Thus, regularization was sought as per the policy dated

01.10.2003.

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62. The stand of the State was that she had slept over the

matter and not entitled for regularization, since she had not worked

after March, 1996.

63. The learned Single Judge had decided the writ petition

on 31.01.2020 while relying upon the judgments passed in
Malathi

Das
(supra) and
Hari Nandan Prasad
(supra) and had come to the

conclusion that similarly situated persons had already been

regularized vide Annexure P-5, which fact had not been admitted or

denied in the written statement. The only defence was that the earlier

policies were withdrawn. It was noticed that the official of the

department did not produce the record before the Labour Court.

Accordingly, continuity of service had been given and directions

were issued to regularize the petitioner w.e.f. 01.10.2003. Thus,

juniors having been given the benefit from 1996 would entitle her for

regularization.

Facts of LPA-739 & 751-2020

64. In the present cases, the writ petitioner Khiali Ram was

appointed in the year 1986 on daily wage basis, whereas the writ

petitioner-Narata Ram was appointed in the year 1988. Their

services were terminated in the year 1998 and 2004, respectively.

Khialia Ram was reinstated vide Award dated 16.07.2004 with

continuity of service but without backwages. Whereas in the case of

Narata Ram reinstatement was ordered with full backwages vide

order dated 17.05.2012 passed by the learned Single Judge in

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CWP-19271-2009. Thus, they sought regularization by filing CWP

Nos.24624 and 24914 of 2016.

65. The stand of the State in both the cases was similar to

the extent that policies issued by the respondent-State did not cover

the case of the writ petitioners, as the same was applicable on

employees who were appointed against sanctioned vacant posts. The

writ petitioners were not appointed on sanctioned vacant posts. It

was also stated all the policies stood withdrawn after the judgment

passed in the case of Uma Devi (supra).

66. Vide a common judgment dated 31.01.2020, the learned

Single Judge allowed the writ petitions and the writ petitioners were

ordered to be regularized, , in view of the policy dated 01.10.2003 or

from the date when their juniors were regularized with all

consequential benefits. Thus, the writ petitioners had over thirty

years of service when the impugned judgment was passed and no

case for interference is made out.

Facts of LPA-802-2020

67. In the present case, the writ petitioner Om Parkash was

appointed as Beldar-cum-Mali on 01.07.1982. His services were

terminated on 01.01.1994. He was ordered to be reinstated with

continuity of service and 25% backwages in view of the Award

passed by the Labour Court. Respondents filed writ petition against

the Labour Court award which was dismissed by the High Court.

Thereafter, in SLP (c) No.9902 of 2000 only the backwages were

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stayed and there was no stay in continuity of service vide order dated

12.02.2001. Thus, he sought regularization by filing CWP-13885-

2016 on the ground that services of the juniors to the writ petitioner

had been regularized by the department.

68. In the reply filed by the respondent-State was similar to

the extent that policies issued from time to time did not cover the

case of the writ petitioner as the same were applicable on the

employees appointed against sanctioned vacant posts. It was also

mentioned that the Government stood withdrawn the regularization

policies after the judgment passed in Uma Devi (supra).

69. Accordingly, in view of the judgment passed in

Hari Nandan Parsad
(supra) learned Single Judge allowed the writ

petition on 22.01.2020 and respondents were directed to regularize

the services of the writ petitioner w.e.f. 01.10.2003 with all

consequential benefits at par with juniors. The writ petitioner had

thus put in 38 years of service when the Learned Single Judge

allowed his writ petition and there is no ground made out to interfere.

Facts of LPA-479-2020

70. In the present case, the writ petitioner Dharampal was

appointed on 01.12.1988 as Beldar (Labourer) on daily basis in the

Sultanpur Bird Sanctuary, District Gurgaon. His claim for

regularization was rejected by the respondent-department, vide order

dated 22.01.2016 (Annexure P-7). Thus, he sought regularization at

part with his juniors as per notification dated 18.03.1996

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(Annexure P-1).

71. The stand of the State was that the writ petitioner did not

fulfill the conditions of policy dated 29.07.2011 and he was not

working against duly sanctioned vacant post. The name of the writ

petitioner was not sponsored through employment exchange and

there is a stay on the regularization policy of the year 2014 and

afterwards.

72. While relying upon the judgments passed in
Hari

Nandan Prasad
(supra), Uma Devi (supra) and
Sheo Narain

Nagar
(supra), learned Single Judge allowed the writ petition on

31.01.2020 and respondents were directed to regularize the services

of the writ petitioners, in view of the policy dated 18.03.1996

alongwith all consequential benefits.

Facts of LPA-918-2020

73. In the present case, the writ petitioners No.1 Mangal

Singh was appointed on 20.08.1983 as daily wager-Chowkidar,

whereas writ petitioner No.2-Mubin was appointed on 02.06.1983 as

Permanent Labour. Service of writ petitioner No.1 were terminated

on 04.11.2005 and that of writ petitioner No.2 on 30.03.2006. They

were reinstated vide Awards dated 09.11.2012 (Annexure P-3) and

22.08.2013 with continuity of services. Thus, they sought

regularization by filing CWP-8650-2016.

74. The stand of the State was that petitioners were never

appointed and as such never terminated by the respondent-

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department. There were no sanctioned posts of labourer and they

were engaged by a forest guard temporarily.

75. Counsel for the State had submitted that the writ

petitioners were not entitled for regularization as per policy dated

07/18.03.1996 as they had not worked for 3 years continuously prior

to the date of issuance of notification and they can be regularized in

view of the notification dated 18.06.2014, but the same has been

quashed.

76. The learned Single Judge had decided the writ petition

on 31.01.2020 while relying upon the judgments passed in
Malathi

Das
(supra) and
Hari Nandan Prasad
(supra) had come to the

conclusion that similarly situated persons had already been

regularized, which fact had not been admitted or denied in the written

statement. The only defence was that the earlier policy was

withdrawn. Accordingly, the writ petition was allowed and

respondents were directed to regularize the services of the writ

petitioners with effect from the date the services of similarly situated

employees or juniors had been regularized alongwith all

consequential benefits. Thus, once juniors had been regularized who

had been appointed in 1996, necessary directions were rightly given.

Facts of LPA-18-2021

77. In the present case, the writ petitioners were appointed

from the year 1983 to 1995 as Daily Wage Labourers-cum-Malis

with the Forest Department, Haryana. Their services were terminated

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in the year 1992 to 1998, details of which have been given in

paragraph No.3 of the writ petition. Petitioner No.1-Chander Wati

was reinstated vide Award dated 12.04.2001 (Annexure P-3) with

continuity of service and full backwages. Similar orders were passed

in the case of other writ petitioners. After passing of the Awards, the

writ petitioners requested respondents for regularizing their services

in view of the policy dated 01.10.2003 (Annexure P-1) and letter

dated 10.02.2004 (Annexure P-2), since Labour Court awarded them

continuity of services. Since the requests of the writ petitioners for

regularization were not considered, they filed writ petitions, which

were disposed of with the directions to consider the case of the writ

petitions by passing a speaking order. In compliance of the orders

passed by the learned Single Judge, orders (Annexures P-4 to P-6)

were passed by the respondent-department while rejecting the case of

the writ petitioners. Thus, they sought regularization by filing CWP-

6138-2016.

78. The stand of the State was that writ petition was time

barred and likely to be dismissed on the ground of delay and laches.

That the writ petitioners were never worked against a sanctioned

vacant post. They were not entitled for regularization of services

under any policy/instructions.

79. Learned Single Judge rightly allowed the writ petition

and respondents were directed to regularize the services of the writ

petitioners, in view of the appointment of the year 1983 to 1995

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alongwith consequential benefits and no fault can be found in the

same.

Facts of LPA-9-2021

80. In the present case, the writ petitioner Suresh Kumar was

appointed in the year 1999 as daily wage labourer with the Forest

Department, Haryana. His services were terminated on 29.04.2000.

He was reinstated vide Award dated 14.03.2003 (Annexure P-2) with

continuity of service and full backwages. The said award was

challenged by the respondent-department by filing CWP-1009-2004,

which was dismissed by a Coordinate Bench vide order dated

23.02.2004 (Annexure P-3) and the said award has been upheld upto

the Apex Court. Thus, he sought regularization by filing CWP-

27155-2015.

81. The stand of the State was again similar that all the

policies stood withdrawn and he was only appointed as a casual

labourer in the Forest Department. His services could not be

regularized as there was no sanctioned post.

82. Learned Single Judge allowed the writ petition, in view

of the policy dated 01.10.2003. It was held that the writ petitioner

has to be treated at par with other employees, who had been

regularized vide order (Annexure P-11) on the basis of the policy of

1996 and in view of the directions issued by the Courts contested

upto the Apex Court by the State. Thus, he had 16 years of service

on the date of the impugned order.

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Facts of LPA No.916 of 2020, LPA No.818 of 2021 and LPA
Nos.148 and 171 of 2022

83. In the present appeals, the writ petitioners were

appointed in the year 1987 as Beldar-cum-Mali and Chowkidar-cum-

Mali. Their services were terminated on 21.04.1998 (in CWP

No.16218 of 2016) on 30.09.2000 (in CWP Nos.26894 and 26919 of

2016) and on 16.09.2005 (in CWP No.26991 of 2016). Vide

separate Awards passed by the Labour Court they were ordered to be

reinstated with continuity of service and 25% backwages in CWP

Nos.26894, 26919, 26991 of 2016, whereas in CWP No.16218 of

2016 services of the 50% backwages were awarded. Thus, they

sought regularization of services by filing abovestated writ petitions.

84. The stand of the State in all three cases was similar to

the extent that policies issued by the respondent-State stood

withdrawn. The writ petitioners were not appointed on sanctioned

vacant posts and they could not be regularized, in view of the

judgment rendered in the case of Uma Devi (supra). Counsel for the

State had submitted that the writ petitioners had not completed 240

days in a calendar year from the date of their termination.
However,

it had been admitted that services of the juniors to the writ petitioners

were regularized in view of the judgment passed in CWP No.9873 of

2013 titled as
Raj Kumar Vs. State of Haryana and others
and

other connected matters.

85. Accordingly, learned Single Judge allowed the writ

petitions vide a common judgment dated 31.01.2020, in view of the

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judgment rendered in the case of
Malathi Das
(supra) and in view

of the fact that services of the writ petitioners were regularized in

view of the judgment passed in
Raj Kumar
(supra). The writ

petitioners were ordered to be regularized with all consequential

benefits at par with their juniors.

Facts of LPA-45-2021

86. In the present case, husband of the writ petitioner

Gurmeet Kaur namely Inderjeet Singh was appointed in the year

1986 as Mali-cum-Beldar. His services were terminated in

November, 2002. He was ordered to be reinstated vide Award dated

27.03.2006 (Annexure P-1) with continuity of service and full

backwages and expired on 30.10.2013. Thus, widow of the deceased

employee sought regularization by filing CWP-3622-2017 and parity

was sought on the basis of order dated 14.10.2006 (Annexure P-3),

whereby juniors to the deceased employee Inderjeet Singh were

regularized w.e.f. 01.10.2003.

87. The plea taken by the respondent-State in the written

statement was that the writ petition was filed after 14 years in the

year 2017 and, thus, the same was time barred and liable to be

dismissed on the ground of delay. Counsel for the State had

submitted that the deceased employee was reinstated in the year

2006 and, thus, he was not covered under the policy dated

01.10.2003.

88. Vide order dated 11.02.2020 learned Single Judge

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allowed the writ petition, in view of the policy dated 01.10.2003.

The writ petitioner was rightly ordered to be regularized from the

date his juniors were regularized while relying upon the judgment

passed in Malathi Dass (supra) once he had rendered over 27 years

of service and his widow would be entitled for the retiral benefits,

which is a recurring right.

Facts of LPA-818-2020

89. In the present case, the writ petitioner Sumer Singh was

appointed as Mali-cum-Chowkidar in the year 1985. His services

were terminated on 01.06.1996. During the pendency of reference he

was taken back into service w.e.f. 01.10.1999 and, thereafter,

continuity of service was granted vide Award dated 16.08.2000

(Annexure P-1). Thus, he sought regularization by filing

CWP-12859-2017 on the ground that similarly situated persons have

been regularized, vide order (Annexure P-10 colly.).

90. The stand of the State was that all the regularization

policies stood withdrawn on 25.04.2007 and policy dated 01.10.2003

was not in existence. It was further stated the petitioner was

estopped from filing the present writ petition on the same cause of

action when civil suit and appeal against the same had been

dismissed.

91. Learned Single Judge allowed the writ petition and

regularization was ordered with all consequential benefits, in view of

the policy dated 01.10.2003. It was rightly held that case of the

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petitioner could not be closed keeping in view the fact that civil suit

of the petitioner had been dismissed and appeal against the said

judgment had been dismissed since the juniors of the writ petitioners

had been given the benefit of regularization on 22.12.2016.

Facts of LPA-302-2020

92. In the present case, the writ petitioner Nathu Ram was

appointed on daily wage basis in the year 1991. His services were

terminated on 07.08.1997. He was ordered to be reinstated with

continuity of service and 75% backwages vide Award dated

07.08.1997 passed by the Labour Court. The writ petitioner's services

were again terminated on 14.06.2004. He was ordered to be

reinstated with continuity of service alongwith 50% backwages vide

order dated 23.01.2014 (Annexure P-1) passed by the Labour Court.

Thus, he sought regularization by filing CWP-9051-2017 on the

ground that services of the juniors to the writ petitioner had been

regularized.

93. In the reply filed by the respondent-State it was stated

that policies issued from time to time did not cover the case of the

writ petitioner as the same were applicable on the employees

appointed against sanctioned vacant posts. It was further stated that

orders passed by the learned Labour Court does not make anyone

entitled for claiming regularization. It was also mentioned that the

Government had withdrawn the regularization policies after the

judgment passed in Uma Devi (supra). The factum of regularization

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of services of the juniors to the writ petitioner had not been denied.

94. Accordingly, in view of the judgment passed in

CWP No.1381 of 2011 'Sukhpal Vs. State of Haryana and others'

(Annexure P-1) learned Single Judge allowed the writ petition on

21.01.2020 and respondents were directed to regularize the services

of the writ petitioner w.e.f. 01.10.2003 with all consequential

benefits. It was also held that juniors to the writ petitioner had

already been regularized despite the fact that two Labour Court

Awards were in favour of the writ petitioner. Costs of Rs.2 lakhs

were also imposed upon the respondents on the ground that the

respondent-department was adopting a pick and chose policy for

regularization of services and thus, no case is made out to interfere in

the judgment of the Learned Single Judge.

Facts of LPA Nos.532, 541 & 585 of 2020

95. In the present cases, the writ petitioners were appointed

between the years 1980 to 1985. Their services were terminated in

the year 2004. Vide Awards dated 15.01.2009, 17.04.2009 and

02.01.2009, their claim for reinstatement had been rejected.

Aggrieved against the said rejection, they filed CWP Nos.4881, 7837

and 4788 of 2010, respectively. In pursuance to which their

reinstatement with backwages (in the cases of Naseeb Singh and

Kalyan Singh) and 50% backwages (in the case of Kara Singh) was

ordered by the learned Single Judge. Thus, they sought

regularization by filing CWP Nos.24241, 24242 and 24243 of 2016

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on the ground that similarly situated persons/juniors have been

regularized.

96. The stand of the State in all three cases was similar to

the extent that policies issued by the respondent-State did not cover

the case of the writ petitioners, as the same was applicable on

employees who were appointed against sanctioned vacant posts. The

writ petitioners were not appointed on sanctioned vacant posts. It

was also stated all the policies stood withdrawn after the judgment

passed in the case of Uma Devi (supra).

97. Learned Single Judge allowed the writ petitions vide a

common judgment dated 28.01.2020 and they were rightly ordered to

be regularized with all consequential benefits at par with their

juniors, in view of the policy dated 01.10.2003 as they had over 30

years of service. It was also held that once the writ petitioners had

been reinstated with continuity of service their cases stood covered

by the said policy.

Facts of LPA No.152 of 2021

98. In the present appeal, the writ petitioners namely

Surender Singh, Kamlesh and Hargyan were appointed in the year

1988 on daily wage basis. The writ petitioners Surender Singh and

Kamlesh were terminated on 13.08.1999 and 09.04.2000,

respectively. In view of Awards dated 12.01.2006 and 07.02.2006

both the above writ petitioners were taken back in service with full

backwages. Respondent-department filed CWP Nos.7890 of 2007

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and 8242 of 2007, by which awards were modified to the extent of

entitlement of 25% backwages. Thus, they sought regularization in

view of the judgment passed in the case of similarly situated

employees i.e. CWP No.1169 of 2009 'Ved Pal and others Vs.

State of Haryana and others'.

99. The stand of the State in the written statement was

similar that regularization policies have been withdrawn. It was

further stated that regularization can only be done against sanctioned

vacant posts and that there were no such sanctioned posts available

in the Forest Department.

100. Learned Single Judge allowed the writ petition vide

judgment dated 07.02.2020, in view of the judgment passed in
Sheo

Narain
(supra),
Hari Nanda Parsad
(supra). Accordingly,

respondents were directed to regularize services of the petitioners

w.e.f 01.10.2003 alongwith all consequential benefits from the date

when the juniors were regularized as the principle of equality would

be applicable.

Facts of LPA Nos.567, 560 of 2021 and LPA No.55 of 2021

101. In the present appeals, the writ petitioners were

appointed between the years 1983 to 2003. The services of the writ

petitioners were terminated on 20.12.2011 and 01.11.2013 (in CWP

No.25072 of 2016), on 19.09.2008 and 01.03.2013 (in CWP

No.26393 of 2016) and on 07.04.2009 and 29.11.2011 (in CWP

No.26748 of 2016). Vide separate Awards passed by the Labour

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Court, Ambala they were ordered to be reinstated with continuity of

service and 50% backwages. Thus, they sought regularization by

filing abovestated writ petitions.

102. The stand of the State in all three cases was similar to

the extent that policies issued by the respondent-State stood

withdrawn. The writ petitioners were not appointed on sanctioned

vacant posts and they could not be regularized, in view of the

judgment rendered in the case of Uma Devi (supra). Counsel for the

State had submitted that the writ petitioners had not actually worked

for 3 years continuously prior to the issuance of regularization

policies and their services could not be regularized in view of the

notification dated 18.06.2014, which had also been quashed by this

Court.

103. Learned Single Judge allowed the writ petitions vide a

common judgment dated 10.02.2020 in view of the earlier judgment

passed in CWP No.16044 of 2015 'Veermati Vs. State of Haryana

and another' and the writ petitioners were ordered to be regularized

with all consequential benefits at par with their juniors, in view of the

policy dated 18.03.1996 and 01.10.2003.

Facts of LPA-8-2021

104. In the present case, the writ petitioner Sahib Kaur was

appointed as Beldar-cum-Mali in the year 1985. Her services were

terminated on 01.04.2000. She was ordered to be reinstated with

continuity of service and 50% backwages w.e.f. 13.11.2000 vide

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Award dated 21.01.2008 passed by the Labour Court. Thus, she

sought regularization by filing CWP-3229-2017 on the ground that

similarly situated persons as well as juniors to her had been

regularized as per Annexures P-7 and P-13.

105. In the reply filed by the respondent-State they did not

dispute RTI information given (Annexure P-7). It was also

mentioned that the Government had withdrawn the regularization

policies. Counsel for the State had argued that the petitioner did not

fulfill the qualification and there was no sanctioned post available.

106. Learned Single Judge rightly allowed the writ petition

on 11.02.2020 and regularization was ordered, in view of the policy

dated 01.10.2003 with all consequential benefits at par with juniors

who had been regularized as per Annexure P-7 as the petitioner had

35 years of service by then.

Facts of LPA No.106 of 2021

107. In the present appeal, the writ petitioners were appointed

between the years 1988 to 1992 on daily wage basis. The writ

petitioners are stated to have worked for more than 10 to 20 year and

their appointments were made according to Haryana Forest Manual

against sanctioned posts. The writ petitioners had approached this

court by way of CWP No.17508 of 2014 claiming regularization and

the same was withdrawn and their case was not considered again in

view of the judgment passed in
Yogesh Tyagi
(supra). Thus, they

sought regularization by filing CWP No.13294 of 2015.

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108. The stand of the State in the written statement was that

claim of the writ petitioners was denied on the ground that

notification dated 18.06.2014 was challenged before this Court and

operation of the same had been stayed and there were no sanctioned

posts available.

109. Learned Single Judge allowed the writ petitions vide

judgment dated 31.01.2020. It was held that respondents were

correct in not regularizing their services as per notification dated

18.06.2014 keeping in view the judgment passed in
Yogesh Tyagi

(supra), however the petitioner was entitled for regularization as per

policy dated 01.10.2003 alongwith all consequential benefits.

Facts of LPA No.536 of 2016

110. In the present case the employee Sita Ram had been

appointed as Beldar-cum-Mali on 01.01.1988 and continued to work

till 08.04.1998. He had raised the industrial dispute on account of the

fact that in vide demand notice dated 28.04.1998 his service had been

wrongly terminated and his juniors were still working.

111. The Labour Court, Rohtak vide Award dated 04.01.2006

had accepted the plea on account of the fact that the entire record had

not been produced and even the management had failed to file the

written statement and, therefore, directed reinstatement on the

previous post with continuity of service.

112. His request for regularization was rejected on 14.01.2013

on the ground that he alongwith other was not originally appointed

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on the vacant post and that the policies of 01.10.2003 and 10.02.2004

had been withdrawn. It was, however, admitted that out of the 15

cases which were being dealt with, 7 labourers had been regularized on

14.10.2006 in light of the Policy of 2003. Resultantly, the claim was

rejected on the ground that the legal notice was served on 18.02.2012

but not received and the notice received on 14.12.2012 was being

replied and on account of delay the claim was rejected. Subsequently

the writ petition was filed by the wife since the employee had expired

on 18.01.2013.

113. The learned Single Judge vide order dated 14.05.2015

noticed that similarly situated employees who were stated to be

junior had been regularized, in pursuance of order passed in

LPA No.582 of 2013, on 18.07.2014 (Annexure P-7). A perusal of

which would go on to show that the regularization was done from

01.10.2003 and the said employees had also been given the benefit of

reinstatement by various awards of the Labour Court. Thus, it has

been rightly held that the claim of the writ petitioner could not be

denied on the ground that he was not physically present on the role of

establishment and, therefore, the benefits were directed to be granted

of regularization form the date when his juniors were regularized.

114. The above facts would go on to show that similarly

situated persons who had also been retrenched and put back in

service were given the benefit of 2003 Policy and, therefore, we are

of the considered opinion that the order of the learned Single Judge

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does not suffer from any infirmity.

Cases pertaining to Department of Animal Husbandry

Facts of LPA No.444 of 2020

115. The learned Single Judge vide order dated 27.02.2020

directed regularization in terms of policy dated 01.10.2003 keeping

in view the fact that the employee had joined on daily wage as

Chowkidar w.e.f. 01.05.1998. He had worked till 30.06.1999 and

retrenched and the juniors had been retained and he was thus

reinstated vide award dated 28.05.2004 with continuity of service but

without any back wages by the Labour Court. It had been pleaded

that on 29.04.2005, respondents had regularized the services of 9

similarly situated persons w.e.f. 01.10.2003 vide Annexure P-3. The

defence in the written statement was that the said persons were

appointed at an earlier point of time and they were senior and they

fulfilled the terms of the policy. There was no seniority of daily

wage labourers in the Department. Thus, on the principle of

similarity the benefit was granted keeping in view the fact that there

was a policy in force and parity was to be maintained with respect of

all employees once the benefit of continuity had been given by the

Labour Court. Thus, it was directed that the employee who had

completed 22 years of service and only on account of the fact that his

services had been retrenched, benefit had been denied to him and

therefore, he was entitled for consideration on account of continuity

of service granted to him and learned Single Judge was correct in

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granting the said benefit.

Facts of LPA No.508 of 2020

116. The learned Single Judge had, thus, granted the benefit

of regularization vide order dated 05.03.2020 as per the policy dated

01.10.2003 by noticing that the writ petitioner was appointed on

daily wages on 01.01.1994 and worked till 31.10.1994 and an award

dated 02.04.1996 had come in his favour and he was duly regularized

with full back wages. His services were again terminated on

01.08.2002 and he was successful on 04.08.2003 before the Labour

Court and he was taken back in service again with the benefit of

continuity of previous service and joined on 03.11.2003. Similarly

situated persons had already been regularized as per policy of 2003

and therefore, the benefit was granted. It is thus apparent that on

account of wrongful termination and other persons having been given

due regularization vide Annexure P-4 and one Satbir was appointed

in 1994 which would be clear from the averments made in para No.8

of LPA-444-2020.

117. In LPA-508-2020, the benefit was granted vide

judgment dated 05.03.2020 since the employee was initially

appointed on 01.01.1994 and worked till 31.10.1994. He had been

reinstated vide award dated 02.04.1996 and second reinstatement

took place on 01.08.2002 and a compromise had taken place on

24.10.2003 under
Section 12(3)
of the Industrial Disputes Act, 1947.

He was given continuity of service but no back wages which would

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be clear from Annexure P-2. In such circumstances, regularization

was sought again on the ground that juniors had been regularized and

his case had been rejected on the ground that the terms of policy

dated 01.10.2003 were not fulfilled without noticing the fact that

there was unfair labour practice time and again dispensing with the

service. Therefore, keeping in view these factors the learned Single

Judge had directed consideration for regularization vide impugned

judgment dated 05.03.2020 keeping in view the fact that 9 others had

been duly regularized vide letter dated 29.04.2005. Thus, no fault

can be found in the order of the learned Single Judge.

118. Thus keeping in view the judgment in
State of

Karnataka Vs. M.L.Kesari & others
, (2010) 9 SCC 247, we are of

the considered opinion that the learned Single Judges were well

justified in directing consideration for regularization as the claim was

on the basis of the policies which were in effect and were

supplemented by others. The persons had worked for the requisite

period of time and were seeking regularization as per the policies

which were invogue at that point of time and they were not

continuing in service on account of any litigation and did not have

any interim orders in their favour.
The Apex Court had noticed that

the true effect of the directions passed in Uma Devi (supra) was that

persons who had been continuing for the period of 10 years without

interim orders of the Tribunals and the employer had not undertaken

the exercise of regularization within 6 months of the decision in Uma

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Devi (supra) then the exercise was to be taken for the limited view

and it would not disentitle the employees for their right for

regularization as a one-time measure. Appointment of persons which

was illegal and irregular was clarified to the extent that the illegality

would be only if the appointee did not possess the required minimum

qualfications and the irregularity would be if the person had been

selected without undergoing the process of open competitive

selection but had the prescribed qualifications. In the present cases

we are dealing with cases of Class-IV employees employed as

Beldar/Mali/Labourer and, therefore, the said legal impediment

would not come in the way. Relevant observations reads as under:

5. It is evident from the above that there is an
exception to the general principles against `regularization'
enunciated in Umadevi, if the following conditions are
fulfilled :

(i) The employee concerned should have worked for
10 years or more in duly sanctioned post without the
benefit or protection of the interim order of any
court or tribunal. In other words, the State
Government or its instrumentality should have
employed the employee and continued him in
service voluntarily and continuously for more than
ten years.

(ii) The appointment of such employee should not
be illegal, even if irregular. Where the appointments
are not made or continued against sanctioned posts
or where the persons appointed do not possess the
prescribed minimum qualifications, the
appointments will be considered to be illegal. But

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where the person employed possessed the
prescribed qualifications and was working against
sanctioned posts, but had been selected without
undergoing the process of open competitive
selection, such appointments are considered to be
irregular.

Umadevi casts a duty upon the concerned
Government or instrumentality, to take steps to regularize
the services of those irregularly appointed employees who
had served for more than ten years without the benefit or
protection of any interim orders of courts or tribunals, as a
one-time measure. Umadevi, directed that such one-time
measure must be set in motion within six months from the
date of its decision (rendered on 10.4.2006).

6. The term `one-time measure' has to be understood
in its proper perspective. This would normally mean that
after the decision in Umadevi, each department or each
instrumentality should undertake a one-time exercise and
prepare a list of all casual, daily-wage or ad hoc employees
who have been working for more than ten years without
the intervention of courts and tribunals and subject them to
a process verification as to whether they are working
against vacant posts and possess the requisite qualification
for the post and if so, regularize their services.

7. At the end of six months from the date of
decision in Umadevi, cases of several daily-wage/ad-
hoc/casual employees were still pending before Courts.
Consequently, several departments and instrumentalities
did not commence the one-time regularization process. On
the other hand, some Government departments or
instrumentalities undertook the one-time exercise
excluding several employees from consideration either on
the ground that their cases were pending in courts or due to
sheer oversight. In such circumstances, the employees who

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were entitled to be considered in terms of Para 53 of the
decision in Umadevi, will not lose their right to be
considered for regularization, merely because the one-time
exercise was completed without considering their cases, or
because the six month period mentioned in para 53 of
Umadevi has expired. The one-time exercise should
consider all daily-wage/adhoc/those employees who had
put in 10 years of continuous service as on 10.4.2006
without availing the protection of any interim orders of
courts or tribunals. If any employer had held the one-time
exercise in terms of para 53 of Umadevi, but did not
consider the cases of some employees who were entitled to
the benefit of para 53 of Umadevi, the employer concerned
should consider their cases also, as a continuation of the
one-time exercise. The one time exercise will be concluded
only when all the employees who are entitled to be
considered in terms of Para 53 of Umadevi, are so
considered.

8. The object behind the said direction in para 53 of
Umadevi is two- fold. First is to ensure that those who
have put in more than ten years of continuous service
without the protection of any interim orders of courts or
tribunals, before the date of decision in Umadevi was
rendered, are considered for regularization in view of their
long service. Second is to ensure that the
departments/instrumentalities do not perpetuate the
practice of employing persons on daily-wage/ad-hoc/casual
for long periods and then periodically regularize them on
the ground that they have served for more than ten years,
thereby defeating the constitutional or statutory provisions
relating to recruitment and appointment. The true effect of
the direction is that all persons who have worked for more
than ten years as on 10.4.2006 (the date of decision in
Umadevi) without the protection of any interim order of

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any court or tribunal, in vacant posts, possessing the
requisite qualification, are entitled to be considered for
regularization. The fact that the employer has not
undertaken such exercise of regularization within six
months of the decision in Umadevi or that such exercise
was undertaken only in regard to a limited few, will not
disentitle such employees, the right to be considered for
regularization in terms of the above directions in Umadevi
as a one-time measure.

9. These appeals have been pending for more than
four years after the decision in Umadevi. The Appellant
(Zila Panchayat, Gadag) has not considered the cases of
respondents of regularization within six months of the
decision in Umadevi or thereafter."

119. The Apex Court in
State of Jharkhand and others Vs.

Kamal Prasad and others
, (2014) 7 SCC 223 while dismissing the

appeals of the State and upholding the judgment of the High Court,

regarding the regularization orders in favour of the Junior Engineers

who had been working for 29 years was held to be legal and by

holding that they were covered under the exceptions made in Uma

Devi (supra).

Resultantly, while placing reliance upon the judgment

passed in
Olga Tellis & others Vs. Bombay Municipal

Corporation & others
, (1985) 3 SCC 545, it was held that the High

Court had rightly come to the conclusion that the action of the State

was arbitrary and it shocked the conscious of the Court that the

persons had worked for 29 years and had been discharging

permanent nature of duties. Therefore, it was held that the judgment

could not be vitiated on account of any erroneous finding or suffering

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from any error in law.

120. Thus, we are of the considered opinion that a window

had been kept open by the State that the policies dated 17.06.1997,

05.11.1999, 01.10.2003, 10.02.2004 were to be applied to persons

who had not been regularized and, therefore, it does not lie in the

mouth of the counsel for the State to argue that the policies stood

withdrawn. The learned Single Judges were justified in issuing

directions for consideration. As noticed above the claim is based on

a legal right for seeking issuance of a writ of mandamus and in such

circumstances it cannot be said that the learned Single Judges were in

error in allowing the writ petitions. Accordingly, the appeals filed by

the State are dismissed. All pending civil miscellaneous

applications, if any, are also disposed of.

(G.S. SANDHAWALIA)
JUDGE

02.12.2022 (VIKAS SURI)
Naveen JUDGE

Whether speaking/reasoned : Yes
Whether Reportable : Yes

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