SUPREME COURT OF INDIA

Before:- G.B. Pattanaik and B.N. Agrawal, JJ.

Civil Appeal No. 5087 of 1998. D/d. 21.2.2001.

Malu Ram - Appellant

Versus

State of Rajasthan and another - Respondents

Constitution of India, Articles 14 and 136 - Rajasthan (Regulation of Employment of Public Services and Rationalisation of Staff) Act, 1999, Sections 9 and 11(c) - Regularisation - Appellant appointed by the Panchayat Samiti as daily wage Junior Engineer in 1986 - He was recommended for regularisation in 1987 but his services were terminated in 1989 - Certificate for good conduct issued - Appellant continued in service for 9 years on the basis of interim order obtained by High Court till dismissal of petition - Appeal to Division Bench was dismissed - Status quo was given by Supreme Court - Appellant continued as such against permanent post approved by State under regular pay scale with due deduction of Provident Fund and ESI contribution - However Rajasthan Legislature enacted an Act - Section 9 of same bars regularisation and Section 11(c) of Act provides that all pending proceedings shall abate - Held, in view of the embargo it would not be appropriate for this court to direct the State Government to pass order of regularisation - However recommendation made to State Government to consider the matter in the light of past records of appellant.

[Paras 2 and 3]

ORDER

G.B. Pattanaik, J. - The appellant as a daily-wage Junior Engineer appointed in the State of Rajasthan by a Panchayat Samiti way back in January 1986 at a stipulated rate of Rs. 25/- per day, has been continuing till today, and being unsuccessful in getting a direction from the Court to the Government for regularisation of his service is before us. It transpires that he was appointed for a period of 30 days on 27.1.1986 and without any break such appointment continued till 25th of July, 1987 when the Panchayat Samiti passed a resolution recommending his regularisation. On 2.8.1988, the Vikas Adhikari of Panchayat Samiti forwarded the recommendation pursuant to the resolution of the Panchayat Samiti, but as no order from the State Government emanated, the appellant himself filed a representation to the State Government on 7.9.1988. Before the disposal of that representation the services of the appellant stood dispensed with by an order dated 26th of April, 1989 passed by the Vikas Adhikari, Panchayat Samiti, Bhadra. Having dispensed with the services of the appellant by the aforesaid order a good conduct certificate was issued to the appellant on the self-same date indicating that his work was good and satisfactory and he is experienced in construction work.

2. Assailing the aforesaid order of termination, the appellant approached the High Court on 2.5.1989. On 3.5.1989 an interim order was passed by the High Court directing that if there exists any vacancy then the appellant should be reinstated and be allowed to continue until disposal of the writ petition and it is because of this interim order the appellant stood reinstated on 3.5.1989 itself. The writ petition remained pending in the High Court for 9 years and was ultimately dismissed by order dated 10.4.1998 on a finding that the terms of appointment itself do not confer any right to the appointee and the so- called continuance of the appellant was because of the order of the Court and such continuance also would not confer a right of regularisation. The appellant assailed the said order by filing an appeal to the Division Bench on 15.4.1998 and that appeal was dismissed in limine on 22.4.1998, on the ground that the appellant had never been selected in accordance with the prescribed procedure nor there exists any cadre of Junior Engineer and, therefore, the claim of regularisation is misconceived. The appellant then approached this Court by filing a Special Leave Application and on 14.5.1998 this Court directed issuance of notice and further directed that the status quo as existing on that date shall be maintained. In view of the aforesaid status quo order, the appellant was allowed to continue as Junior Engineer under Bhadra Panchayat Samiti. Nohar Samiti passed a resolution on 6.3.1998 indicating the circumstances which would tantamount to a decision that the appellant without a formal order of regularisation by the appropriate Government has been treated to be a regular employee inasmuch as he has been engaged as a Junior Engineer against a permanent post approved by the State Government against a cadre post and that he has been given regular scale of pay approved by the State Government for the category of posts. That apart, he has been transferred from one Panchayat Samiti to the other on 7 different occasions, and even there has been deduction of Provident Fund and E.S.I. contribution, as it made in respect of the permanent employees. The unanimous proposal of the Panchayat Samiti as aforesaid, however, has not been given concurrence or approved by the appropriate authority of the Government and the fact remains that the appellant has now been continuing as a Junior Engineer, which is a cadre post under the Government and is getting regular scale of pay, the same having been fixed with effect from 1.9.1996 under the orders of the Competent Authority who happened to be Head of the Department. A copy of the aforesaid fixation in the revised scale of pay was placed before us by Mr. Lekhi, the learned senior Counsel appearing for the appellant in course of hearing.

3. Mr. Jain, appearing for the State of Rajasthan however placed before us an Act enacted by Rajasthan Legislature which received the assent of the Governor on 5th day of May, 1999 called "The Rajasthan [Regulation of Employment to Public Services and Rationalisation of Staff] Act, 1999" [for short "the Act"]. The Act is undoubtedly prospective in nature, but under Section 9, thereof, there is bar to regularisation of services and Section 11(c) of the Act provides that all pending proceedings shall abate. It is because of this embargo, it would not be appropriate for this Court to issue any direction to the State Government to pass the formal order of regularisation notwithstanding the fact that the appellant has been drawing the privileges of a regular Government servant by acts of the competent authority and has been drawing the regular scale of pay even, as stated earlier. Under the Act itself a provision has been made for constituting a review committee under Section 12 and that review committee has been conferred wide powers, even the powers of a civil curt in certain matters. The very idea behind the aforesaid Act is that instead of large scale induction of the employees as daily-wage or work-charged and continuing them for a long period and then claiming regularisation, it would be for the Government to decide the matter in accordance with the criteria fixed under the Act itself. Undoubtedly, the Act is a laudable piece of legislation and having regard to the provisions of Section 11(c) as well as Section 9 of the Act, we do not think it appropriate to issue any direction to the State Government to pass the formal order of regularisation in favour of the appellant. But we do commend to the State Government to consider the matter in the light of the aforesaid legislation bearing in mind the entire past record of the appellant, as we have already stated. The appropriate Authority of the Government may pass appropriate orders within a period of three months from today. The appeal is disposed of with the aforesaid observations.

4. Needless to mention that the appellant will be continuing in the same status and position till and formal order is passed by the State Government.

Orders accordingly.