Director General of Police and Another vs B.C. Wadhwana

R.M. Doshit, J.—This Appeal preferred under Clause 15 of the Letters Patent arises from the order dated 23rd July, 1998 made by the learned Single Judge in above Special Civil Application No. 1209 of 1994.

The respondent, writ petitioner before the learned Single Judge, was, by order dated 19th May, 1983 made by the Special Inspector General of Police, CID Crime & Railways, appointed as a part time Hamal for four hours daily on a consolidated monthly pay of Rs. 150/-. The said arrangement has continued till the date. We are informed at the Bar that at present the writ petitioner has been serving as a part time Hamal for three hours daily. On 6th June, 1992 the petitioner submitted a representation to the Special Inspector General of Police, CID Crime & Railways to absorb the petitioner in the regular service as peon. As his request was not accepted, the petitioner filed the above Special Civil Application No. 1209 of 1994 under Article 226 of the Constitution of India in this Court. The petitioner relied upon the Government Circulars dated 26th December, 1980; 23rd October, 1991 and 15th October, 1992. He prayed that in consonance with the Government policy reflected in the said Circulars, his service be regularized as peon.

By impugned order, the learned Single Judge has allowed the writ petition. The learned Single Judge has observed that, As such, as per Circulars, the petitioner ought to have been absorbed in the cadre of Class IV employee, much before the filing of this writ petition... The petitioner is entitled to be absorbed and regularized as full time sweeper in the regular cadre of Class IV employee, without considering any technical objection regarding age or requisite qualifications with retrospective effect from the date of the filing of this petition. The learned Single Judge was pleased to observe that, the Heads of the different departments are not following the above referred Government Circulars. Having noted that, the learned Single Judge was pleased to direct the State Government to absorb and regularize all the part time sweepers who are working in its different departments as full time sweepers in the cadre of Class IV employee within three months. Feeling aggrieved, the State Government has preferred the present Appeal.

Learned AGP, Mrs. M.L. Shah has appeared for the State Government. She has submitted that the Government policy reflected in the above referred Circulars has since then undergone a sea change. In any view of the matter, the absorption in the regular service is not a matter of right. Before a part time sweeper can be absorbed in the regular service, he must satisfy the conditions mentioned in the said Circulars i.e., there shall be equivalent full time post; the part time employee must possess the requisite qualification for appointment on a full time post subject to the relaxations granted in the upper age limit. In the present case, it was not pleaded by the petitioner that there did exist a full time post of sweeper under the Special Inspector General of Police, CID, Crime & Railways. Nor was his case that he did possess the requisite qualification for appointment on regular post. In absence of such pleadings, the learned Single Judge has erred in holding that the petitioner had a right to be absorbed. Further, the learned Single Judge has exceeded his jurisdiction by issuing the omnibus direction to regularize the service of all sweepers employed in the Government service. She has submitted that the said omnibus direction issued by the learned Single Judge shall have far reaching consequences. The same, therefore, cannot be sustained.

She has submitted that the appellants have in the present Appeal placed on record various Circulars issued by the State Government in the subject matter. She has submitted that the reference to the order made in Special Civil Application No. 1235 of 1994 is also misplaced inasmuch as in the said petition, the learned Single Judge had issued direction to the concerned authority to consider the case of the petitioner in that petition for regularization in service. Except that, no other direction was issued for absorption in the regular service.

By its Circular dated 26th December, 1980 the State Government had issued direction to its Heads of department to consider absorption of the part time employees who had worked as such for three years on regular full time post, if such employees were eligible for regular appointment. The said policy has been reiterated in the later Circulars with certain explanations. The said policy was kept in abeyance by Circular dated 21st August, 1995 and was ultimately cancelled by Resolution dated 7th January, 2006. The State Government has now under its Resolution dated 1st May, 2007 issued consolidated instructions in respect of part time employees as one time measure.

In our opinion, the learned Single Judge has erred in issuing direction to absorb the petitioner as full time sweeper in regular Class IV cadre without ascertaining whether regular post of sweeper in Class IV service did exist; whether the vacancy was available and whether the petitioner was qualified to be appointed on such post. Further, by issuing omnibus direction, recorded hereinabove, the learned Single Judge has undoubtly exceeded his jurisdiction. No direction for regularization of person in public service could be issued without ascertaining the eligibility and suitability for appointment of such persons, availability of vacancies, etc.

In above view of the matter, we allow the Appeal. The impugned order dated 23rd July, 1998 made by the learned Single Judge in Special Civil Application No. 1209 of 1994 is quashed and set aside. The Special Civil Application No. 1209 of 1994 is rejected.

It is clarified that the respondent writ petitioner will be at liberty to make representation to the appointing authority in the subject matter of the writ petition. If such representation is made, the same shall be considered and decided in accordance with the above referred Government Resolution dated 1st May, 2007. The parties will bear their own cost.