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CASE NO.: Appeal (civil)  5666 of 2006

PETITIONER: Union of India & Ors.

RESPONDENT: Sheela Rani

DATE OF JUDGMENT: 08/12/2006

BENCH: Dr. AR. Lakshmanan & Tarun Chatterjee

JUDGMENT: J U D G M E N T (arising out of S.L.P. (c) Nos. 23404-23407 of 2005)

Dr. AR. Lakshmanan Leave granted. The above appeal is directed against the final order and  judgment dated 28.1.2005 passed by the Division Bench of the  High Court of Delhi in Writ Petition (c) Nos. 1479-1482 of  2005.  By the impugned judgment, the High Court dismissed  the writ petitions preferred by the appellants herein. The question of law involved in this appeal is whether the  services of a casual worker can be regularized with  retrospective effect i.e. from the date of initial appointment. The respondent herein was engaged as a casual worker  w.e.f. 17.11.1982 and since then besides other jobs of casual  nature, she has been performing the job of noting down  complaints at the enquiry offices/service stations of C.P.W.D.   The respondent approached the Tribunal under Section 19 of  the Administrative Tribunals Act, 1985 and prayed that she  should be regularized on the post of enquiry clerk in C.P.W.D.   Before the Tribunal, the appellants submitted that no post of  enquiry clerk was existing nor was there any scheme/rule for  regularization in a Group-C post inasmuch as the clerks  under the appellants are appointed in terms of the recruitment  rules and through the Staff Selection Commission.  It was also  submitted that the engagement of the respondent was not  against any vacancy hence she can not claim regularization on  a particular post.  The Tribunal vide its order dated  13.10.2000, allowed O.A.No. 2747/99 with a direction to the  appellants herein to consider the regularization of the  respondent within four months of the receipt of the judgment.   The respondent herein filed Contempt Petition No. 194 of 2001  in the aforesaid O.A. and alleged non-compliance of the  Tribunal’s order and judgment as the services of the  respondent were not regularized with retrospective effect i.e.  17.11.1982 being the date of her initial engagement as casual  worker.  The services of the respondent was regularized as  Mate w.e.f. 26.9.2001.  The Tribunal vide its order dated  11.1.2002 discharged the notice and dropped the aforesaid  Contempt Petition but gave a direction to the appellants herein  to consider respondent’s case for grant of regularization w.e.f.  the date of her initial engagement i.e. 17.11.1982.  Liberty was  also given to the respondent for revival of the aforesaid C.P.  No. 194 of 2001 in case the direction given by the Tribunal is  not implemented within a period of eight weeks.  In view of the  aforesaid direction given to the appellants by the Tribunal, the  claim of the respondent was considered and vide Office  Memorandum dated 14.1.2003, the said claim for grant of  regularization with retrospective effect i.e. from the date of

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initial appointment being 17.11.1982 was rejected.  Aggrieved  by the said order, the respondent filed O.A.No. 1926 of 2003  under Section 19 of the Administrative Tribunals Act before  the Tribunal.  The Tribunal allowed O.A. vide order dated  25.2.2004.  Against the said order, the appellants preferred  C.W.P. Nos. 1479-1482 of 2005 before the High Court.  The  High Court dismissed the aforesaid writ petitions.  Against the  said order of the High Court, the appellants filed the above  appeal by way of special leave petitions before this Court. We heard Mr. R. Mohan, learned Additional Solicitor  General appearing for the appellants and Mr. S.M. Ratanpaul,  learned counsel appearing for the respondent.  We have  carefully perused the judgment passed by the High Court. Mr. R. Mohan, learned ASG, submitted that the High  Court failed to appreciate that regularization of a casual  worker cannot be made with retrospective effect i.e. with effect  from the date of initial appointment and that regularization of  a casual worker can only be done in accordance with the  relevant scheme and rules and from the date when regular  vacancy/post is available for such regularization.  In support  of his contention, he relied on the judgments of this Court in  State of Haryana vs. Jasmer Singh (1996) 11 SCC 83 and  Registrar General of India & Anr. Vs. V. Thippa Setty &  Ors. (1998) 8 SCC 690. Per contra, Mr. S.M. Ratanpaul, learned counsel  appearing for the respondent, submitted that the appellants  have regularized the services of the respondent as Mate w.e.f.  26.9.2001 depriving her of 19 years of continuous service  since 17.11.1982.  It was further submitted that the contempt  petition was finally heard and the appellants herein were  directed to regularize the respondent herein from the date of  her initial appointment i.e. 17.11.1982.   In view of a similar  case of P.M. Augustian Vs. Union of India & Ors. decided by  Ernakulam Bench of the Tribunal and since the request for  regularization was not complied with within the time  stipulated in the contempt petition, the respondent herein filed  revival of the petition which was allowed and the appellants  herein issued revised orders again rejecting the prayer of the  respondent herein for regularization from the date of her initial  appointment.  The Tribunal heard the revived contempt  petition and decided that as the respondents/appellants  herein have issued revised order dated 14.1.2003, there has  not been any willful or contumacious disobedience of the  Tribunal’s order warranting any further action to be taken  against the alleged contemnors under the provisions of the  Contempt of Courts Act, 1971 read with Section 17 of the  Administrative Tribunals Act, 1985.  The contempt petition  was dismissed and the notice to contemnors was discharged.   However, the Tribunal granted liberty to the respondent herein  as advised in accordance with law.  Therefore, the respondent  filed O.A. challenging Office Memorandum dated 14.1.2003  issued by the appellants herein rejecting the respondent’s  prayer for regularization from the initial date of her  appointment i.e. 17.11.1982.  Learned counsel further  submitted that any casual employee who has been appointed  after satisfying the requirements through proper channel, is  eligible for consideration of regularization of the service if he is  able to establish that he was continuously working and there  was existing vacancy at the relevant time.  The Tribunal,  therefore, considered the case of the respondent and the long  continuous service rendered by her and held that the  respondent is entitled to regularization from the date of her  initial appointment. Counter affidavit was filed in the above appeal reiterating  the contentions raised before the Tribunal.  It is not in dispute

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that the respondent was engaged as a casual worker and that  is admitted by the respondent and the nature of the job  assigned to her was to note down the complaints in the  enquiry office.  She was performing the duties at the enquiry  office on muster roll as a casual worker to note down day to  day complaints.  The respondent has also not placed any  documentary evidence in respect of her claim nor any such  evidence is available on record.  The date of registration of the  respondent with the employment exchange is 25.3.1983  whereas the respondent is claiming that her name was  referred to the appellants-department by the employment  exchange.  Therefore, the contention raised by the respondent  is not correct and misleading.  The respondent was engaged as  casual worker on 17.11.1982, therefore, employment exchange  could not have referred as she was registered in employment  exchange only on 25.8.1983.  The respondent’s claim, in our  opinion, to regularize her services from 17.11.1982 is not  correct.  She was regularized w.e.f. 26.9.2001 as the  regularization of casual worker is covered under the relevant  Rules.  In the rejoinder affidavit, the appellants have stated  the following latest position of the workers, some of them have  not been regularized so far and those regularized have not  been regularized from the date of engagement:

Name Designation Date of  Engagement Date of  regulation

Kashi Nath Sr. Mech. 07.02.82 Not  regularized so  far but  temporary  status given Kirti Ram Sr.Mech 01.12.81 Not  regularized so  far but  temporary  status given Bahunt Lal Mech. 02.08.83 Not  regularized so  far but  temporary  status given Joginder  Singh Lab. Asst. 14.11.82 Not  regularized so  far Baleshwar  Pandit Pump

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Operator 01.01.82 Regularised  w.e.f.  12.12.94 Joginder  Thakur Pump  Operator 01.01.82 Regularised  w.e.f.  12.12.94 Mahabir  Singh Welder 02.06.82 Regularised  w.e.f.  11.12.96 Iqbal Singh Auto Elect. 26.1.83 Regularised  w.e.f. 19.4.96 Rakesh  Kumar Wireman  28.01.81 Not  regularized so  far                   

Perusal of the above list shows that these casual workers  are technical people and they have been engaged prior to the  respondent.  In our opinion, the respondent’s claim to be  regularized from 17.11.1982 is not acceptable as she was  engaged only as casual worker.         The law is well settled on this issue.  In State of  Haryana vs. Jasmer Singh,(supra), a three-Judge Bench of  this Court held that the regularization of daily rated workmen  who had completed a certain number of years of service is a  policy matter to be decided by the State.  This Court held that  the respondents who are employed on daily wages can not be  treated on par with persons in regular service of the State  holding similar post.  Daily rated workers are not required to  possess the qualifications prescribed for the regular work nor  do they have to  fulfill the requirement relating to age at the  time of recruitment.  They cannot, therefore, be equated with  the regular workmen for the purposes of their wages nor can  they claim the minimum wage regular pay scale of the  regularly employed.         In Registrar General of India & Anr. Vs. V. Thippa  Setty & Ors. (supra), the Tribunal’s direction was to regularize  the respondents w.e.f. the date of promulgation of the  recruitment rules or from the date of their appointment  depending on the seniority list.  In pursuance of the said  direction, on the new recruitment rules being promulgated on  11.5.1985, the regularization was given effect from that date.   However, in the subsequent order passed by the Tribunal on  19.2.1993, the Tribunal has directed that they should be  treated as having been conferred regular status w.e.f. 5.2.1981  i.e. the date of their entry into service as Investigators.  This  Court held that the employees had entered as ad hoc

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appointees and the question was whether they should be  regularized in service since they had worked as ad hoc  employees for a sufficient long time.  If the ad hoc service is  regularized from the back date in this manner, it will disturb  the seniority of regularly appointed employees in the cadre  and, therefore, ordinarily the regularization must take effect  prospectively and not retrospectively.  This Court ordered that  care must be taken to see that regularization do not upset the  seniorities of regular appointees.  Whether they qualify in a  given case or not is not relevant but what is relevant is that  regularization should be prospective and not retrospective as  the chances of their upsetting the seniorities cannot be  overlooked.           We, therefore, allow the appeal and set aside the  judgment and order passed by the High Court and restore the  order of regularization passed by the Tribunal.  However, there  shall be no order as to costs.