Municipal Council, Bhilwara Vs. ZahiruddIn and ors - Court Judgment

1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR (1) D.B.Civil Special Appeal (W) No.789/2014 State of Rajasthan & Ors. Vs. Zahiruddin & Anr. (2) D.B.Civil Special Appeal (W) No.815/2014 State of Rajasthan & Anr. Vs.Bhawani Singh Solanki & Anr. (3) D.B.Civil Special Appeal (W) No.827/2014 Municipal Council, Bhilwara Vs. Bansi Lal Teli & Ors. (4) D.B.Civil Special Appeal (W) No.828/2014 Municipal Council, Bhilwara Vs. Saddiqui Mohd.Chhipa & Ors (5) D.B.Civil Special Appeal (W) No.830/2014 State of Rajasthan Vs.Bansi Lal Teli (6) D.B.Civil Special Appeal (W) No.832/2014 Municipal Council, Bhilwara Vs. Zahiruddin & Ors. (7) D.B.Civil Special Appeal (W) No.833/2014 Municipal Council, Bhilwara Vs. Om Prakash Bangar & Ors. (8) D.B.Civil Special Appeal (W) No.834/2014 Municipal Council, Bhilwara Vs. Bhawani Singh Solanki & Ors (9) D.B.Civil Special Appeal (W) No.849/2014 State of Rajasthan & Anr. Vs. Altaf Hussain & Anr. (10) D.B.Civil Special Appeal (W) No.854/2014 State of Rajasthan & Anr. Vs. Gopal Lal Gurjar & Anr. (11) D.B.Civil Special Appeal (W) No.855 /2014 State of Rajasthan & Anr. Vs. Mohan Lal & Anr. (12) D.B.Civil Special Appeal (W) No.868/2014 State of Rajasthan Vs. Mohd.Hussain Chhipa (13) D.B.Civil Special Appeal (W) No.885/2014 Municipal Council, Bhilwara Vs. Kesari Mal Khateek & Ors. (14) D.B.Civil Special Appeal (W) No.887/2014 Municipal Council, Bhilwara Vs. Mohd.Hussain Chhipa & Ors (15) D.B.Civil Special Appeal (W) No.888/2014 Municipal Council, Bhilwara Vs. Abdul Aziz Sheikh (16) D.B.Civil Special Appeal (W) No.914/2014 Municipal Council, Bhilwara Vs. Jorawar Singh & Ors. (17) D.B.Civil Special Appeal (W) No.915/2014 State of Rajasthan & Anr. Vs. Saddiqui Mohd.Chhipa (18) D.B.Civil Special Appeal (W) No.918/2014 2 State of Rajasthan Vs. Jorawar Singh & Anr. (19) D.B.Civil Special Appeal (W) No.919/2014 State of Rajasthan & Anr. Vs. Kesari Mal Khateek & Anr. (20) D.B.Civil Special Appeal (W) No.928/2014 State of Rajasthan & Ors. Vs. Abdul Aziz Sheikh & Anr. (21) D.B.Civil Special Appeal (W) No.948/2014 State of Rajasthan & Anr. Vs. Om Prakash Bangar & Anr. (22) D.B.Civil Special Appeal (W) No.952/2014 Municipal Council, Bhilwara Vs. Mohan Lal & Ors. (23) D.B.Civil Special Appeal (W) No.956/2014 Municipal Council, Bhilwara Vs. Altaf Hussain & Ors. Date of Judgment::- 13.11.2014 PRESENT HON’BLE ACTING CHIEF JUSTICE SUNIL AMBWANI HON’BLE MR.JUSTICE PRAKASH GUPTA Dr.Pratistha Dave, )-for the appellants-State of Rajasthan Addl.Govt.Counsel. ) Mr.Kailash Joshi )-for the appellants-Municipal Council Mr.Kapil Joshi ) Mr.Sanjeet Purohit ) Mr.Rajat Arora )-for the respondents. JUDGMENT

BY THE COURT (Per Hon'ble Sunil Ambwani, Actg.CJ) 1. This batch of Special Appeals filed by the State of Rajasthan and Municipal Council, Bhilwara arises out of a judgment of learned Single Judge dated 11th March, 2014, by which the writ petitions were allowed with directions to regularize the services of the respondents, who were petitioners in the writ petitions, within a period of three months and upon such regularization, the petitioners-respondents were made 3 entitled to the grant of pay scale and other benefits, which are available to the regularly appointed persons with effect from the date of their regularization. Learned Single Judge has further directed that the past services of the petitioners-respondents right from the date of their initial appointment and notional period of their break in service during the illegal retrenchment/termination should be taken as continuous period for computing the period of qualifying services for the pension purposes and other retiral benefits, otherwise after their retirement, the petitioners-respondents will not stand to gain anything on account of their fruitful litigation before the Labour Court earlier and now.

2. It is submitted by learned counsels appearing for the appellants-State of Rajasthan and Municipal Council, Bhilwara that the respondents-petitioners were appointed as Firemen, Wiremen and Drivers, which are Class-IV posts in the Municipal Council, Bhilwara in the exigencies of service, on daily wages. They were appointed between 1990-1999. The services of all of them were dispensed with by a common order passed in the year 1999. All of them had challenged the termination of their services in the Labour Court.

3. The Labour Court, Bhilwara adjudicated on the reference made by the State Government under section 10 of the Industrial Disputes Act, 1947, and in pursuance of the directions issued by the High Court in S.B.Civil Writ Petition No.1535/1999. The reference required the Labour Court to 4 adjudicate as to whether the termination of services of the workmen on 5.8.1999 (in case of Shri Zahiruddin, Driver) on a demand made by them to the Commissioner, Municipal Council, Bhilwara for regularization of their services, was valid and legal and if not, to what reliefs and compensation, the workmen are entitled to receive. The Labour Court vide Awards of common nature dated 9.9.2004 adjudicated the dispute and held that the act of the Commissioner, Municipal Council, Bhilwara in refusing to regularize the services of the workman with effect from the date of his appointment cannot be said to be improper or illegal, but the orders relieving the workman from service with effect from 5.8.1999 and in not paying him minimum wages of the post, were not proper and legal and thus, the workman was entitled to be reinstated in service with effect from 5.8.1999 and that his services shall be treated to be continuous. The Labour Court further directed that the workman will be entitled to receive from the date of his appointment upto 4.8.1999, the difference of the pay between the minimum wages of the post, which will be paid to him and from 5.8.1999 till reinstatement, he was entitled to receive 20% of the minimum wages from the Municipal Council.

4. The writ petitions filed by the Municipal Council, Bhilwara against the Award of the Labour Court were dismissed on 9.5.2008. The Division Bench dismissed the Special Appeals against the judgment of learned Single Judge on 1.12.2009 and in this manner, the Award became final. In pursuance of the 5 Award, after the dismissal of the writ petitions by learned Single Judge and thereafter, Special Appeals by the Division Bench, all the beneficiaries under the Award were given appointment on 24.12.2009 by the Municipal Council, Bhilwara on muster-roll, and since thereafter they are working as muster-roll employees.

5. The services of the Fireman and Driver in Municipal Councils in the State of Rajasthan are regulated by the Rajasthan Municipalities (Subordinate and Ministerial) Service Rules, 1963. The services of the Wireman are regulated by the Rajasthan Municipalities (Class-IV Service) Rules, 1964. With the Constitution Bench decision of the Supreme Court in Secretary, State of Karnataka V/s Uma Devi on 10.4.2006 reported in 2006(4) SCC1 the law with regard to regularization in public employment, was finally settled. The Supreme Court held that the services of the daily wages, adhoc or temporary employees, who were appointed irregularly, cannot be regularized except under the statutory Rules, which may be made by the State Government. All other kinds of regularization were held to be illegal. In order to provide relief to those employees, who were irregularly appointed and have worked for more than 10 years on sanctioned posts, but not under cover of the orders of the Courts or Tribunals, they may be regularized as one time measure. The observations made by the Supreme Court in para 53 of the judgment are quoted below:-

“53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as 6 explained in S.V. Narayanappa, R.N.Nanjundappa and B.N. Nagarajan and referred to in para 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 the courts or of tribunals. The question of regularisation of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases abovereferred to and in the light of this judgment.In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularise as a one-time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularisation , if any already made, but not sub judice, need not be reopened based on this judgment, but there should be no further bypassing of the constitutional requirement and regularising or making permanent, those not duly appointed as per the constitutional scheme. (emphasis supplied) 6. We are informed that the State Government has made Rajasthan Various Service (Second Amendment) Rules, 2009 notified on 8.7.2009, providing the cut-off date as 10.4.2006 for regularization as one-time measure of irregularly appointed temporary, adhoc or daily wages employees in accordance with the judgment of the Supreme Court in Secretary, State of Karnataka V/s Uma Devi (supra). These Rules were interpreted by this Court in State of Rajasthan & 7 Ors. V/s Suleman Khan (D.B.Civil Special Appeal (Writ) No.886/2013 and connected matters decided on 16.10.2014) and in which it was held as follows:-

“11. We have gone through the judgment of the Constitution Bench in Secretary, State of Karnataka Vs. Uma Devi (supra), and the consequent amendment of the Rules by the State of Rajasthan, as a one time measure, by amending Various Service Rules, under the proviso to Article 309 of the Constitution of India, vide notification dated 8.7.2009. These Rules called the “Rajasthan Various Service (Second Amendment) Rules, 2009, fixed the cut off date for completion of the services of the person, who were irregularly appointed on duly sanctioned post for regularization and were serving upto 10.4.2006 without intervention of any court or tribunal, after going through the process of screening by the Screening Committee. The State of Rajasthan had chosen the cut off date to be the same, on which the judgment in Secretary, State of Karnataka Vs. Uma Devi (supra) was delivered.

12. We do not find that the petitioners, who are respondents before us, had challenged the validity of the Rules, or the cut off date given in the Rules to be arbitrary, or without any basis.

13. We do not find that in Captain Murari Badhadrra (supra), the amendment in the Rules was considered by learned Single Judge, or by Division Bench. We do not find any reference of the Rajasthan Various Service (Second Amendment) Rules, 2009, notified vide notification dated 8.7.2009, in the judgment. There was no objection raised, nor any point discussed, or considered with regard to the amendment in the Rules, and the cut off date fixed by the State as one time measure, in accordance with the judgment in Secretary, State of Karnataka Vs. Uma Devi (supra).

14. In the absence of the reference of the Rules, and further, in the absence of any defence taken, by the State Government 8 and any discussion in law, the judgment in Captain Murari Badhadrra (supra) is not binding on us. It is a judgment, which is per incuriam, without noticing the relevant rules, and the amendments which had come into force, on the date when the judgment was delivered. The principles of law in which a judgment may be treated to be 'per incuriam' as an exception to the rules 'stare decisis', in glaring case of obstructive omission have been explained in State of U.P. & Anr. Vs. Synthetics and Chemicals Ltd. & Anr., (1991) 4 SCC139as follows:-

“40. 'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratium. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratium of a statute or other binding authority'. (Young v. Bristol Aeroplane Co. Ltd.). Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey this Court while pointing out the procedure to be followed when conflicting decisions are placed before a bench extracted a passage from Halsbury's Laws of England incorporating one of the exceptions when the decision of an appellate court is not binding.”. 15. We are of the view that the entire object and purpose of delivering the judgment and laying down the law by the Constitution Bench of the Apex Court, which is binding on all the courts and authorities of the entire country under Article 141 of the Constitution of India, was to stop the regularization of the daily wagers, contractual and adhoc employees, in public services. The Supreme Court was of the view, that no further orders should be passed either by the State Government, or by the courts, regularizing such employees, as all such appointments were violative of Articles 14 & 16 of the Constitution of India. It was by way of an exception in paragraph 53 of the judgment, that the Supreme Court, considering the plight of those employees, who were qualified and were appointed on duly sanctioned post, and were working for more than ten years, allowed the Union of India, State Governments and their instrumentalities, to take steps to regularize, as a one time measure, the services of such 9 irregularly appointed, who had worked for ten years or more in duly sanctioned post, but not under the cover of orders of the courts or tribunals, and further, issued directions that regular recruitments be undertaken to fill those sanctioned vacant posts, that required to be filled up, in case where temporary employees or daily wagers are being now employed.

16. We may be missing the point, if we do not notice the last lines of paragraph 53, in which the Supreme Court stated :- “We also clarify that regularisation , if any already made, but not sub judice, need not be reopened based on this judgment, but there should be no further bypassing of the constitutional requirement and regularising or making permanent, those not duly appointed as per the constitutional scheme.”. 17. In the present case, the State of Rajasthan accepted the directions issued by the Supreme Court, and made amendment in the Rules fixing the cut off date, as 10.4.2006, on which an employee, who was duly qualified but was irregularly appointed on a sanctioned post, and had completed ten years of service, could be considered for regularisation by a Screening Committee. The Rules were made, as statutory Rules for regularization. As directed by the Supreme Court, it was only by way of one time measure. Any further attempt for regularization of these employees, who may have completed ten years of service, after 10.4.2006, would be in clear and blatant violation of the directions issued in Secretary, State of Karnataka Vs. Uma Devi (supra).

18. We can understand, if the State Government had amended the Rules, subsequent to the date of the judgment in Secretary, State of Karnataka Vs. Uma Devi (supra), the said date would have been defended as the date, on which, if such employees, who may have completed ten years of service, may have claimed for consideration for regularization, but after the State Government fixed the date i.e.10.4.2006, which was the date, on which the judgment in Secretary, State of Karnataka Vs. Uma Devi (supra) was delivered, the High Court did not 10 have authority to issue a direction contrary to the mandate of the judgment of the Constitution Bench of the Supreme Court, on a consideration that such employees are being discriminated, as against those, who had completed ten years of service as on 10.4.2006.

19. We are of the view that the evil, which was sought to be remedied by the Hon'ble Supreme Court, cannot have been encouraged either by the State Government, or by the High Court, on the judicial side.”. 7. The services of the respondents, who were petitioners in the writ petitions, were governed by the statutory Rules made by the State Government for Class-III and Class-IV services in the Municipal Bodies. The Rajasthan Various Service (Second Amendment) Rules, 2009 made by the State Government are not applicable to the services of the employees of the Municipal Councils. The State Government has made Rules for regularization of the services of Class-IV employees in the Municipal Councils, namely, Rajasthan Municipalities (Class IV Service) (Amendment) Rules, 2011. These Rules provide for Screening Committee to screen the employees, who are eligible and apply for regularization under the Rules, strictly in accordance with the judgment of the Supreme Court in Secretary, State of Karnataka V/s Uma Devi (supra). So far as the other categories of employees are concerned, namely, Fireman and Driver, whose services are governed by the Rajasthan Municipalities (Subordinate and Ministerial) Service Rules, 1963, no Rules have been framed for regularization so far.

8. In the present case, all the petitioners-respondents were 11 subjected to screening for the purpose of consideration of regularization of their services. The Screening Committee was constituted by the notification issued by the Local Self-Government Department, Government of Rajasthan, Jaipur dated 27.1.2011 and thereafter, by the departmental letter dated 28.5.2012, to screen all the irregular employees serving in the Municipal Council, Bhilwara. A meeting of the Screening Committee consisting of Shri Anil Baldwa, Chairman, Municipal Council, Bhilwara, Smt.Seema Sharma, Dy.Director (Regional), Local Self Government Department, Ajmer as Member and Shri Rustam Ali Shaikh, Commissioner, Municipal Council, Bhilwara as Member Secretary, was convened on 26.7.2012, to screen the services of 28 employees including the respondents-petitioners serving on the posts of Fireman, Wireman, Driver and some of them serving as Beldar in Municipal Council, Bhilwara, for regularization. The Screening Committee considered the nature of the employment, the manner in which the 28 employees were appointed, their eligibility for the posts, availability of the posts for them and all other matters, which are required to be considered for regularization. Some of the respondents-petitioners were recommended for regularization and in respect of some others, since they were over-age, the recommendations were made for relaxation of age. The Screening Committee also considered the number of children of these employees for the purpose of their eligibility to be considered for regularization.

9. The report of the Screening Committee dated 26.7.2012 was sent to the State Government, but before any action could be taken by the State Government on the said report, the respondents- petitioners filed writ petitions apprehending the posts to be filled-up by direct recruitment for which advertisement was issued on 8th 12 September, 2011 to fill up substantive vacancies on the posts of Fireman. The said writ petitions were decided by the impugned order giving rise to these Special Appeals.

10. We have heard learned counsels appearing for the appellants- State of Rajasthan as well as Municipal Council, Bhilwara and the respondents and find that learned Single Judge has grossly erred in directing the appellants-respondents to regularize the services of the respondents-petitioners with further directions to treat their services from the date when they were appointed, for the purpose of pension and other benefits. The judgment passed by learned Single Judge, has not taken into consideration the legal position explained by the Constitution Bench of the Supreme Court in Secretary, State of Karnataka V/s Uma Devi (supra) and the directions issued by it, which are binding on all Courts of the country under Article 141 of the Constitution of India, which provide that the regularization may be obtained as a one-time measure of those employees, who are serving for more than ten years continuously on substantive posts, provided they are qualified and eligible. All the petitioners- respondents were considered for regularization of their services by the Screening Committee constituted by the Local Self Government Department. The report of the Screening Committee is pending consideration with the State Government and from which we find that some of the respondents including those, who were reinstated as muster-roll employees, in pursuance of the Award of the Labour Court, were not eligible for regularization. During the pendency of the consideration of the report, which was prepared by the Screening Committee in pursuance of the exercise carried out by it under the statutory Rules, learned Single Judge could not have intervened and issued a writ of mandamus, after narrating the facts of one of the 13 case, allowing the writ petitions with directions to regularize the services of all the petitioners-respondents within three months, with further relief to count their services for the purposes of pension and other benefits.

11. The Supreme Court in Secretary, State of Karnataka V/s Uma Devi (Supra) expressly held that the regularization shall not be made by the authorities or even the Courts, dehors the consideration in accordance with para 53 of the judgment, after consideration of the eligibility as well as the availability of the substantive posts for such employees. The regularization can only be made under the statutory Rules in accordance with law and by way of one time measure. The Courts have been denuded with the powers to carry out the exercise and issue blanket directions for regularization.

12. In the present case, we find that learned Single Judge exceeded his power under Article 226 of the Constitution of India, in directing the regularization of services of the respondents- petitioners, with further relief of counting their entire service from the date of initial appointment for the purposes of pension and other benefits. The compassion, on which the directions have been issued, is entirely misplaced and could not have been exercised, especially in view of the fact that the Screening Committee had considered the respondents-petitioners for regularization of their services and that the report of the Screening Committee is still pending with the State Government.

13. In view of the above discussion, all these Special Appeals are allowed. The judgment of learned Single Judge dated 11.3.2014 is set aside, with directions that the report of the Screening Committee will be considered by the State Government, as expeditiously as possible, preferably within a period of three months from the date 14 the certified copy of the judgment is produced before the competent authority. The State Government will consider the services of the respondents-petitioners for regularization strictly in accordance with the statutory Rules and the report of the Screening Committee. It would be open to the State Government to consider the question of relaxation of age and other conditions in accordance with the statutory Rules.

14. We make it clear that this judgment will not be treated to have stayed the proceedings of direct recruitment initiated by the State Government on the available vacancies. The appointment made by way of direct recruitment, however, will be subject to the results of the orders, which may be passed by the State Government in the process of regularization of the services in accordance with the statutory Rules.

15. It is further made clear that since we have finally decided the writ petitions, the conditions imposed by the Screening Committee for withdrawing the litigation by the respondents-petitioners for consideration of their cases, will not be applicable and that the State Government will consider the report of the Screening Committee for regularization, even if any cases instituted by the respondents- petitioners for regularization are pending in Courts of law.

16. The costs are made easy.

17. A copy of the judgment be placed in all the files. (PRAKASH GUPTA), J.

(SUNIL AMBWANI),Actg.CJ.

Parmar