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CASE NO.:

Appeal (civil) 254 of 2004

PETITIONER:

Jodhpur Vidyut Vitran Nigam Ltd. and Anr.

RESPONDENT:

Nanu Ram & Ors.

DATE OF JUDGMENT: 24/11/2006

BENCH:

Arijit Pasayat & S. H. Kapadia

JUDGMENT:

J U D G M E N T

KAPADIA, J.

Civil Appeal No. 254 of 2004

with

Civil Appeal No. 1042 of 2006

The distinction between regularisation and conferment of permanence

in civil service arises for determination in this civil appeal filed by the

appellant-Jodhpur Vidyut Vitran Nigam Ltd. against decision dated

5.12.2002 delivered by the Division Bench of the High Court of Rajasthan in

Civil Special Appeal (Writ) No. 867 of 2002.

Respondents 1 to 20 were engaged for temporary construction work in

different divisions on muster roll around 21.4.1980 and on subsequent dates

on daily wage basis. They completed two years of service after 31.3.1982.

They claimed regularisation on completion of two years of service in terms

of an Arbitration Award (Part I) dated 31.5.1978. Under para 15 of the said

Award, it was stipulated that fixation in the regular pay scale for employees

recruited on or after 1.4.1978 shall be regularised by the recruitment policy

to be detailed in the Award to follow. On 15.6.1979 the second Award was

accordingly published under which it was inter alia stipulated that workmen

(work-charged) engaged between 1.4.1979 and 30.6.1979 have to be

screened and if found satisfactory be classified as temporary work-charged

and thereafter on rendering of satisfactory service for two years can be

regularised in accordance with Award dated 31.5.1978 from 1.4.1981 and so

on.

Relying on the two Awards, referred to above, on completion of two

years the respondents herein claimed permanence. At this stage, it may be

noted that, in terms of the above two Awards the State Government

constituted Screening Committees from time to time. On 26.9.1983 the duly

constituted Screening Committee was required to consider regularisation of

casual and daily rated workmen, who had completed two years service prior

to 31.3.1982. It needs to be reiterated that the respondents herein did not

come in this categorization as they had not completed two years service on

31.3.1982. As stated above, they completed their services only after

31.3.1982. Be that as it may, the respondents herein claimed regularisation

in terms of the above two Awards on completion of two years service from

the date of their appointment, which as stated hereinabove, was after

31.3.1982. The above two Awards stood terminated w.e.f. 29.6.1985. The

matter had a chequered history. Suffice it to state, that the respondents

herein have been regularised on the basis of the recommendations of the

Screening Committee w.e.f. 1.4.1989. The respondents seek regularisation

from the prior date i.e. on and from 1.4.1982. On 6.9.1999 the State

Government referred the dispute to the Industrial Tribunal. In the statement

of claim respondents herein submitted that though they have been

regularised w.e.f. 1.4.1989, like some of the other workmen they were also

entitled to get regularisation w.e.f. 1.4.1982; that though they were entitled

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for this benefit from 1.4.1982, they have been regularising only w.e.f.

1.4.1989 without any reason and justification; that workmen junior to them

have been given this benefit w.e.f. 1.4.1982 and, in the circumstances,

respondents herein prayed that all of them be granted permanent pay scale

w.e.f. 1.4.1982 with interest at the rate of 18%.

By way of written statement, the appellants herein pointed out, that

the respondents were engaged for temporary construction work in different

divisions; that they were daily wage earners whose names appeared on

muster roll; that they were not found eligible for regular pay scales by the

Screening Committee on earlier occasions; that they did not comply with the

eligibility criteria mentioned in Circular No. 1806 dated 26.9.1983; that vide

Circular No. 867 dated 29.6.1985 the earlier two Awards were terminated

and, therefore, the respondents herein were not entitled to rely upon those

Awards; that ultimately, the respondents have been regularised on 1.4.1989

after they were found eligible by the Screening Committee; that in the State,

thousands of muster roll workmen were engaged in the construction work

for whom there was no vacant sanctioned post and, therefore, against the

supernumerary posts the workmen had to be adjusted by giving regular pay

scale and, therefore, it was not possible for the management to regularise all

the workmen with retrospective effect. In the written statement filed by the

State before the Industrial Tribunal it was pointed out that the Screening

Committee had to consider the financial burden of regularising thousands of

muster roll workmen with retrospective effect. In the written statement, it

was further pointed out that, some of the muster roll workmen have been

recruited without the approval of the management. All these considerations

had to be kept in mind by the Screening Committee before granting

regularization. In the circumstances, it was not possible for the State to

appoint such committees at regular intervals.

By the impugned Award dated 24.8.2000 passed by the Industrial

Tribunal, the claim of the respondents workmen was accepted for the

following reasons.

According to the Industrial Tribunal, when the workers in the past

were given the benefit of regularization on completion of two years

continuous service as on 31.3.1982 then there was no reason to discriminate

workmen who completed two years continuous service on and after

31.3.1982. According to the Industrial Tribunal, the above two Awards

stood terminated in the year 1985 whereas respondents 1 to 20 herein

completed two years service in April, 1982 and, therefore, there was no

reason to deny the benefit of the pay scale to these respondents who

completed two years service in April, 1982. This, according to the Tribunal,

was discriminatory. According to the Industrial Tribunal, the State

Government had discriminated between workmen who completed two years

service by 31.3.1982 and those who completed two years service by

31.3.1983. According to the Industrial Tribunal, the above two Awards were

in existence even on 31.3.1983 and, therefore, there was no reason to

discriminate workmen who had completed two years service by 31.3.1982

on one hand and those who completed two years service by 31.3.1983. For

the above reasons, the Industrial Tribunal came to the conclusion that the

respondents herein cannot be deprived of their legal rights.

The Award of the Industrial Tribunal was challenged by the appellants

in the High Court by filing Writ Petition No. 1060/01. The learned Single

Judge upheld the Award vide judgment dated 7.8.2002. Aggrieved by the

said judgment, the appellants herein moved in Civil Special Appeal No.

867/02. By the impugned judgment it was held that regularisation cannot be

made dependant upon fortuitous circumstances, i.e., the date on which the

Screening Committee was constituted. According to the impugned

judgment, the respondents workmen had completed two years service by

1.4.1983 and on that date they had acquired their eligibility. According to

the impugned judgment, the eligibility of the workmen was two years of

continuous service; that the Screening Committee may meet at any time but

once the workmen are found to be suitable, their regularisation has to relate

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back to 1.4.1983 and, in the circumstances, the respondents herein were

entitled to regularisation from the date when they became eligible for

regularization. This civil appeal is filed against the impugned decision of the

High Court dated 5.12.2002.

At the outset, we may state that, as held by this Court in the case of

Secretary, State of Karnataka and Ors. v. Umadevi (3) & Ors.

(2006) 4 SCC 1, there is a vital distinction between regularisation and

conferment of permanence in service jurisprudence. The words "regular" or

"regularisation" do not connote permanence. They cannot be construed to

convey an idea of the nature of tenure of appointments. They are terms

calculated to condone any procedural irregularities and are meant to cure

defects in the method of appointments. It has been held in the above

judgment that it is a misconception to equate regularisation with

permanence. (See para 15).

Applying the above test to the facts of the present case, the Screening

Committee was required to examine the question as to how many workmen

could be regularised, keeping in mind the budget provisions, availability of

the posts, the number of muster roll workers engaged in the construction

work without their being in existence vacant sanctioned posts, the manner in

which these muster roll workers were initially recruited with or without the

approval of the management and, thereafter, on the basis of eligibility the

Screening Committee had to recommend their absorption in regular service.

These aspects were required to be examined by the Screening Committee.

Mere completion of two years was not the only criteria. Even in the Award

dated 31.5.1978 read with Award dated 15.6.1979 the fixation in the regular

pay scale was only for those employees who were recruited with the

approval of the management and in accordance with law. Even under the

Awards, as they then stood, the Screening Committee had to examine the

performance of the workmen before granting them the regular pay scale.

Granting of pay scale simpliciter is different from grant of permanency.

While granting permanency, the State has to consider the number of posts

falling vacant, those posts should exist as and by way of regular vacancy, the

financial burden of granting permanency and, therefore, in our view, the

High Court has failed to keep in mind the difference between the concept of

grant of pay scale as distinct from grant of permanency. The State was not

under an obligation to constitute Screening Committee at the end of each

year. Constitution of the Screening Committee was within the discretion of

the State Government dependant upon the above factors. Therefore, there

was no question of comparing the case of the present respondents with the

case of the workmen who got regularised prior to 31.3.1982. Each exercise

by the Screening Committee has to be seen in the light of the above factors.

In a given exercise, the State may have sufficient number of vacant posts to

accommodate certain number of workers. However, that may not be the case

in the subsequent years. Therefore, there is no question of any discrimination

in the matter of regularisation or in the matter of grant of permanency.

In the circumstances, we set aside the impugned judgment of the

Division Bench dated 5.12.2002 in Civil Special Appeal (Writ) No. 867/02

and remit the matter for de novo consideration in the light of the judgment of

this Court in Umadevi case (supra).

Accordingly, the civil appeal stands allowed to the aforesaid extent

with no order as to costs.

Civil Appeal No. 1042 of 2006:

This matter is a sequel to our decision in above Civil Appeal No.

254/04, therefore, we are not required to reiterate the facts of the case in

detail once again. Suffice it to state that the sole respondent-Karam Singh

was appointed as a daily rate worker on muster roll basis w.e.f. 26.5.1980.

He completed two years' service after 31.3.1982. On 26.8.1983 the

Screening Committee, appointed by the State Government met to consider

the cases of workmen, who had completed two years service as on

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26.9.1983. It recommended names for regularisation on the basis of their

seniority and keeping in mind the budget provisions. After the meeting of

the Screening Committee in 1983, there was no post available with the

management. This was on account of financial constraints. However, on

5.6.1989 the duly constituted Screening Committee recommended the

names of the workmen, including the respondent, for regularisation and

grant of regular pay scale w.e.f. 1.4.1989. These recommendations were

accepted by the Board of Directors after taking into consideration the

financial condition of the Nigam. Thus, the respondent herein was granted

regular pay scale from 1.4.1989. After accepting the regular pay scale, the

respondent moved the High Court by way of writ petition. This writ petition

was dismissed. The respondent was asked to approach the Industrial

Tribunal. He approached the Industrial Tribunal by way of Reference Case

No. 20/97.

Before the Industrial Tribunal, the respondent asked for regular pay

scale from 1.4.1983, although he was regularised from 1.4.1989. In reply,

the management pointed out that since the respondent was regularised w.e.f.

1.4.1989 he was not entitled to claim regular pay scale from 1.4.1983. It was

further pointed out that the respondent was interviewed by the Screening

Committee constituted on 2.3.1989 and that committee had granted

regularisation to the respondent keeping in mind the above factors including

existence of vacancies as also the budgetary provisions.

By Award dated 18.11.1999 the Industrial Tribunal took the view that

since the respondent had completed two years of continuous service by

31.3.1983 and since he was found suitable by the Screening Committee the

respondent stood regularised w.e.f. 1.4.1983 and, therefore, he was entitled

to regular pay scale on and from 1.4.1983. Aggrieved by the Award, the

management moved the High Court by way of Civil Writ Petition No.

699/2000-2001. By judgment dated 2.7.2001, the learned Single Judge

dismissed the writ petition stating that there was no illegality or error

apparent on the face of the Award. Hence, the writ petition stood dismissed.

Aggrieved by the decision of the learned Single Judge, the management

preferred Civil Special Appeal (Writ) No. 876/01 to the Division Bench of

the High Court which, as stated above, came to the conclusion, vide

judgment dated 22.11.2001, that the respondent herein had completed two

years on 31.3.1983; that the committee have not screened the cases within

reasonable time for which the claim of the workman cannot be defeated; that

the management had approved the recommendations of the Select

Committee belatedly for which the claim of the workman cannot be defeated

and, in the circumstances, the Division Bench directed the management to

treat the respondent herein as regularised w.e.f. 1.4.1983. However, it was

clarified that the service of the respondent can be regularised only against

the vacancies available for regularisation and if the vacancy is available on

1.4.1983 only then the respondent should be made regular in service with

effect from that date.

The respondent, however, moved Civil Misc. Review Application No.

53/03 in the said Civil Special Appeal (Writ) No. 876/01. In the review

petition, the respondent submitted that he had not asked for regularisation

before the Industrial Tribunal; that the Industrial Tribunal had granted him

the regular pay scale and not regularisation w.e.f. 1.4.1983 and, therefore,

the Division Bench of the High Court had erred in directing the management

to regularise the services of the respondent herein on and from 1.4.1983. In

the review petition, the respondent herein contended that there was no

question of regularising his service w.e.f. 1.4.1983 only against vacancies

available for regularisation since he had not asked for such a relief. This

review application came before the Division Bench which passed a cryptic

impugned order stating that instead of regularisation of service the

respondent workman shall be entitled to regular pay scale from 1.4.1983.

Aggrieved by the aforesaid order of the Division Bench dated 1.5.2003 read

with the clarification dated 20.9.2005, Rajasthan Rajya Vidyut Utpadan

Nigam Ltd. ("Nigam") has come to this Court by way of the civil appeal.

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Shri Deshpande, learned counsel appearing for the respondent herein,

submitted, that the respondent had never asked for regularisation; that he had

only sought regular pay scale w.e.f. 1.4.1983 and, therefore, this case stood

on entirely different footing vis-`-vis the earlier case of twenty work-

charged employees. Learned counsel, therefore, submitted that the judgment

delivered by this Court in Civil Appeal No. 254/04 (supra) should not be

made applicable to the present case.

We do not find any merit in this argument. The grant of regular pay

scales was directly linked to the question of regularisation. In the

circumstances, the judgment delivered by us in Civil Appeal No. 254/04

(supra) would apply to the facts of the present case also.

Accordingly, we set aside the impugned judgment dated 1.5.2003

delivered by the Division Bench in Civil Special Appeal (Writ) No. 876/01

and Order dated 20.9.2005 in Civil Misc. Review Application No. 53/03 and

remit this matter also to the Division Bench of the High Court for de novo

consideration in the light of the law laid down by us in Civil Appeal No.

254/04 (supra). The appeal stands allowed with no order as to costs.