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Prem Ram v. Managing Director, Uttarakhand Pey Jal And Nirman Nigam, Dehradun And Others
Factual and Procedural Background
The appellant was engaged as a daily-wage worker by the erstwhile Uttar Pradesh Pey Jal and Nirman Nigam in 1988. His services were terminated in February 1997. The Labour Court set aside the termination, ordered reinstatement with 50% back wages and continuity of service; the High Court, in a writ by the Nigam, deleted the back-wage component but upheld reinstatement. The appellant continued to serve as a daily-wager until reaching the age of superannuation.
In 2008 he filed Writ Petition No. 1116 of 2008 before the Uttarakhand High Court seeking regularisation from 1-7-2003 and consequential monetary benefits, contending that several juniors had already been regularised. A Single Judge dismissed the petition on 23-5-2011 on the strength of State of Karnataka v. Umadevi (3), yet permitted the appellant to make a representation under paragraph 53 of that judgment. The Division Bench affirmed the dismissal in Special Appeal No. 128 of 2011 (order dated 30-6-2011), holding that no regularisation scheme existed for Uttarakhand Pey Jal Nigam employees.
The appellant approached the Supreme Court. During the proceedings the Court repeatedly sought information about any regularisation scheme. Affidavits disclosed that: (i) Uttarakhand framed Regularisation Rules, 2011 (covering employees with 10 years’ continuous service as on 1-11-2011); (ii) the Nigam’s Board adopted these Rules and sought State approval; (iii) five juniors (Sl. Nos. 78-82) had already been regularised with effect from 1-7-2003, though designated as “work-charged” employees. The State later issued fresh regularisation rules that are presently under challenge in the High Court.
Legal Issues Presented
- Whether a daily-wage employee whose illegal termination was set aside is entitled to regularisation on parity with juniors already regularised.
- Whether a distinction between “work-charged” employees and “daily-wagers” constitutes a valid ground to deny such regularisation.
- How the principles laid down in State of Karnataka v. Umadevi (3), particularly paragraph 53 regarding framing of schemes, apply to the appellant’s claim.
Arguments of the Parties
Appellant's Arguments
- His termination having been declared illegal with continuity of service, he must receive all attendant benefits, including regularisation from 1-7-2003.
- Several juniors appointed after 1988 were regularised; denying him the same benefit violates equality and is arbitrary.
Respondent Nigam's Arguments
- No Government-approved regularisation scheme existed for Nigam employees; therefore the claim is barred by Umadevi (3).
- The juniors cited by the appellant were “work-charged” staff, a category distinct from daily-wagers, justifying differential treatment.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| State of Karnataka v. Umadevi (3), 2006 4 SCC 1 | Limits on regularisation of irregular appointments; paragraph 53 permits formulation of a one-time scheme. | The High Court relied on Umadevi to deny relief; the Supreme Court examined the existence and adoption of a scheme under para 53 and ultimately granted regularisation on parity grounds. |
Court's Reasoning and Analysis
The Supreme Court noted that five juniors were regularised from 1-7-2003 despite being appointed later than the appellant. The respondent’s attempt to distinguish “work-charged” employees from daily-wagers failed because:
- No satisfactory criterion was shown to differentiate the two categories; the classification appeared to rest on the “absolute discretion” of the appointing authority.
- The nature of engagement for both categories was essentially temporary and contingent, differing only in the funding source for wages.
Given this lack of a rational distinction, the Court held that daily-wagers and work-charged staff must be treated alike for regularisation purposes. It further observed that:
- The appellant had completed more than ten years of service before the Umadevi judgment and therefore met the tenure requirement embodied in the State’s 2011 Regularisation Rules.
- Neither the State Government nor the Nigam opposed regularisation in principle, as evidenced by the framing and adoption of regularisation rules.
- Equity demanded that the appellant, whose termination was found illegal, should not suffer a disadvantage compared with his juniors solely because of protracted litigation.
Accordingly, the Court directed that the appellant’s services be regularised with effect from the same date as his juniors (1-7-2003), treating him as in continuous service until superannuation. However, he was expressly denied arrears of salary for the period prior to this judgment.
Holding and Implications
APPEAL ALLOWED; High Court orders set aside. The writ petition is disposed of with directions to:
- Regularise the appellant’s services from 1-7-2003 on parity with juniors.
- Compute and release all retiral benefits on the basis of such regularisation (excluding salary arrears).
- The parties shall bear their own costs.
Implications: The decision affords relief solely to the appellant based on factual parity and does not create a new rule of law, but it underscores that artificial distinctions between daily-wage and work-charged staff cannot defeat legitimate claims where a regularisation scheme exists.
T.S Thakur, J.— Leave granted. This appeal arises out of an order dated 30-6-20111 passed by the High Court of Uttarakhand at Nainital whereby Special Appeal No. 128 of 2011 filed by the appellant has been dismissed and the order passed by the learned Single Judge of that Court in Writ Petition No. 324 (MS) of 2004 affirmed.
2. The appellant, it appears, was appointed as a daily wager in the erstwhile Uttar Pradesh Pey Jal and Nirman Nigam sometime in the year 1988. Nine years later his services were terminated in February 1997. The termination, when assailed by the appellant before the Labour Court, was set aside with a direction to the respondent to reinstate the appellant with 50% back wages and continuity of service. The writ petition filed by the respondent Jal Nigam who is the successor-in-interest of the erstwhile Uttar Pradesh Pey Jal Nigam against the award made by the Labour Court succeeded only in part and to the extent that the award of back wages was deleted from the award by the Labour Court. It is common ground that pursuant to the award, the appellant was allowed to re-join as a daily wager and to serve the respondent Jal Nigam till the date of his superannuation upon completion of 60 years of age.
3. In the year 2008, the appellant filed Writ Petition No. 1116 of 2008 before the High Court for a mandamus directing the respondents to regularise his services w.e.f 1-7-2003 on the post of Jeep Driver and to release consequential benefits in his favour including arrears due to him. The appellant's case in the writ petition was that other daily wagers who were junior to him and appointed after the year 1988 having been regularised in the service, the appellant could not, merely because of an illegal order of termination of his services, be deprived of that benefit. The appellant contended that the termination order having been set aside by the Labour Court which order was affirmed by the High Court with continuity of his service, there was no reason for denial of benefits that would have flowed to him but for the order of termination especially when such benefits were extended to other similarly situate contemporaries and juniors of the appellant.
4. The writ petition coming before the Single Judge Bench of the High Court at Uttarakhand was dismissed by an order dated 23-5-20112 on the authority of the decision of this Court in State of Karnataka v. Umadevi (3) State of Karnataka v. Umadevi 3, 2006 4 SCC 1. The High Court at the same time allowed the appellant to move a representation before the authorities concerned in the light of para 53 of the decision in Umadevi (3) case. The High Court observed that if there is a scheme of regularisation the claim of the appellant should also be considered in accordance therewith.
5. Dissatisfied with the above order, the appellant preferred Special Appeal No. 128 of 2011 which, as noticed earlier, has been dismissed by the Division Bench of the High Court. The High Court held that since there was no scheme for regularisation of daily wagers and those named by the appellant in the writ petition had been regularised by the Uttar Pradesh Pey Jal Nigam at a time when Uttarakhand Pey Jal and Nirman Nigam was not in existence, nothing further could be done in the matter nor any relief granted to the appellant. The present appeal assails the correctness of the said two judgments and orders of the High Court.
6. When the matter came up for hearing before this Court on 8-7-2013, the learned counsel for the respondent Corporation was granted time to take instructions whether any scheme within the contemplation of para 53 of Umadevi (3) case had been formulated by the respondent Corporation and in case no such scheme has been formulated, whether the Corporation is willing to formulate one. The matter again came up for hearing on 18-11-2013. It was argued by Ms Rachana Srivastava, counsel appearing for the respondent Uttarakhand Pey Jal and Nirman Nigam that while the Nigam had passed a resolution adopting the scheme formulated by the State Government in terms of the directions of this Court in Umadevi (3) case, the Government's approval for such an adoption had not so far been received. She prayed for and was granted time to place on record a copy of the government scheme adopted by the Nigam as also the resolution under which the same was adopted besides, a copy of the approval, if any, granted by the Government to such adoption.
7. On 27-10-2014, when the matter came up once again for hearing, our attention was drawn to the additional documents filed by the appellant from which it appeared that the persons who figured at Sl. Nos. 78 to 82 at p. 12 of the said additional documents had been regularised w.e.f 1-7-2003, although their entry into service was shown to be 6-6-1989 onwards. It was on that basis argued that persons junior to the appellant having been regularised in service, the appellant could not have been deprived of a similar benefit simply because his services were illegally terminated. On behalf of the respondent Jal Nigam it was, on the other hand, argued that there was a difference between cases of persons appearing at Sl. Nos. 78 to 82 and that of the appellant inasmuch as the former were work-charged employees while the appellant was appointed as a daily wager. At the request of the learned counsel for the respondent Nigam the matter was adjourned by four weeks to enable the Nigam to file an additional affidavit as to whether regularisation had been ordered after undertaking any screening/selection process and if so, on what terms and conditions.
8. From the affidavit filed, in compliance with the directions issued by this Court, it appears that the Government of Uttarakhand had framed the Regularisation Rules, 2011 for regularisation of daily wagers and temporary employees who had been appointed on or before 1-11-2011 and had completed 10 years of continuous service by that date. The said Rules were then adopted by the Board of respondent Jal Nigam in terms of the resolution passed in its 12th Meeting and approval of the State Government for implementation of the said Rules in the Nigam sought under the Managing Director's Letter dated 3-3-2012 addressed to the Principal Secretary, Pey Jal Nigam, Government of Uttarakhand. While the approval of the Government was still awaited, the Government appears to have framed fresh Regularisation Rules in supersession of the 2011 Rules. These Rules are said to be under challenge before the High Court of Uttarakhand at Nainital in which the High Court appears to have passed certain interim orders also.
9. From the affidavits it is further evident that five persons named by the appellant appearing at Sl. Nos. 78 to 82 of the list of juniors have been regularised in service. It is not in dispute that all these persons were appointed on dates subsequent to the date of appointment of the appellant. The respondent, however, has attempted to justify the regularisation of juniors mentioned above on the ground that they had been appointed in work-charged establishment whereas the appellant herein was a daily wager. We asked the learned counsel for the respondent as to whether daily wagers on the basis of their seniority or otherwise were brought on to the work-charged establishment and if there was no such practice or procedure followed, what was the basis on which the department would decide whether the person has to be engaged on a work-charged establishment or as a daily wager. We must regretfully say that we did not get a satisfactory answer to that question nor do any of the several affidavits filed in these proceedings by the respondent Jal Nigam point out a qualitative difference between daily wager on the one hand and a temporary engagement on work-charged establishment on the other. If engagement in a work-charged establishment rests on a criterion, no better than the absolute discretion of the authority engaging them or the fortuitous circumstances of a vacancy or need in a work-charged establishment, then, there is indeed no difference between a daily wager on the one hand and work-charged employees on the other. No distinction can resultantly be made between these two categories of employees for in essence, the nature of their engagement remains the same except that in the case of work-charged employees, the wages/emoluments appear to be borne from out of the allocation for the project in which they are employed while in the other case there is no such specific allocation of funds. The classification of work-charged and other employees to say the least remains wholly unsatisfactory at least for the purposes of the case in hand leaving no option for us but to treat the case of the daily wagers and work-charged employees on the same footing when it comes to granting regularisation to them.
10. If that be so, there is no denying the fact that the persons who were junior to the appellant, having been engaged much later than him, steal a march over him in terms of regularisation in service while the appellant remained embroiled in litigation over what was eventually found to be an illegal termination of his service. It is true that the appellant has already superannuated. That does not, however, make any difference. What is important is that the appellant had been appointed as early as in the year 1988 and had, by the time the decision of this Court in Umadevi (3) case was pronounced, already completed more than 10 years' service. The Government has formulated rules for regularisation of such daily wagers, no matter the same are the subject-matter of a challenge before the High Court. What is noteworthy is that neither the State Government nor the Jal Nigam has resented the idea of regularisation of those who have served for over a decade. The rules providing for regularisation are a sufficient enough indication of that fact. We do not, therefore, see any impediment in directing regularisation of the services of the appellant on the analogy of his juniors with effect from the date his juniors were regularised and for the release of all retiral benefits in his favour on that basis by treating him to be in continuous service till the date of his superannuation. We make it clear that this direction will not entitle the appellant to claim any amount towards arrears of salary based on such regularisation.
11. In the result, this appeal succeeds and is hereby allowed. The orders passed by the High Court are set aside and the writ petition filed by the appellant is disposed of in terms of the directions contained hereinabove. The parties are directed to bear their own costs.
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