IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 188 OF 2010

(Arising out of SLP (C) No.3904 of 2008)

Ram Kumar … Appellant Vs. State of Haryana & Anr.     … Respondents

O R D E R  

Leave granted.  Heard the parties.  2. The appellant, who was working as Mason on daily  wages from June, 1988, was regularised with effect from  7.10.1998  by  order  dated  29.2.2000.  As  there  were  no  vacant  post  of  Mason   Grade-II  where  he  could  be  regularised, he was accommodated in the vacant post of  Washerman  making  it  clear  that  until  a  post  of  Mason  Grade-II was available, his salary will be in the pay  scale of Rs.2550-3200. Feeling aggrieved, the appellant  filed a writ petition before the High Court in the year  2005 praying for a direction to grant him the benefit of  pay  scale  of  Rs.3050-4590  applicable  to  the  posts  of  Mason Grade II and Washerman, from 7.10.1998. He also

claimed confirmation of his service on the post of Mason  Grade II with all consequential benefits.  

3. The  High  Court  by  a  short  order  dated  6.2.2007,  disposed  of  the  petition  holding  that  as  the  post  of  Mason  Grade-II  was  not  available,  he  could  not  be  regularised  in  the  said  post.  It  assumed  that  the  appellant  was  claiming  only  the  relief  in  regard  to  regularisation in the post of Mason Grade-II. The Review  Petition  filed  by  the  appellant  was  dismissed  on  2.11.2007.  

4. Being aggrieved, the appellant has filed this appeal  by special leave challenging the order dated 6.2.2007 and  the review order dated 2.11.2007. The appellant submitted  that  he  had  no  grievance  in  regard  to  the  order  of  regularisation but his grievance was only in regard to  pay scale applicable and that aspect had been completely  lost sight of by the High Court. Learned counsel for the  respondents  on  the  other  hand  submitted  that  the  appellant had also prayed for a direction to respondent  to  confirm  him  on  the  post  of  Mason  Grade-II  with  consequential benefits and the High Court had dealt with  that aspect, assuming that the prayer relating to pay  scale was consequential.  

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5. As far as the second part of the prayer, that is for  confirmation  in  the  post  of  Mason  Grade-II,  the  High  Court was justified in observing that in the absence of a  vacant  post  of  Mason  Grade-II,  he  could  not  be  regularised in the said post. Insofar as the first part  of the prayer, that is seeking the benefit of pay scale  of Rs.3050-4590, no material has been placed by either  side as to the pay scale that is applicable to Mason  Grade-II  or  in  regard  to  Washerman.  Even  before  this  Court, the relevant material is not produced. We find  that  this  issue  has  been  totally  ignored  by  the  High  Court. The High Court ought to have addressed itself to  this issue also. As no material is available before us to  decide this issue, we set aside the impugned order dated  6.2.2007  insofar  as  the  first  part  of  the  prayer  and  restore the writ petition to the file of the High Court  and  request  the  High  Court  to  decide  the  pay  scale  applicable  to  the  post  on  which  the  appellant  was  regularised and further decide whether the appellant was  entitled  to  any  scale  higher  than  what  was  made  applicable. Appeal is accordingly disposed of.  

____________________J. (R V Raveendran)

New Delhi; ____________________J. January 08, 2010. (K S Radhakrishnan)  

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