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Judgment
The present petition has been filed by the petitioners under Article 226 of the Constitution of India for the following relief:-
to issue a writ in the nature of certiorari order dated 9/8/2016 may kindly be quashed.
To issue a writ in the nature of mandamus respondents may kindly be directed to grant the regular pay scale with effect from 10/6/1998 alongwith increment and dearness allowance.
to issue a writ in the nature of certiorari part of the order dated 29/6/2015 whereby petitioners are treated as fresh appointee may kindly be quashed.
Any other writ or direction as the Hon'ble Court may deems fit in the circumstances of the case.
It is the case of the petitioners that the petitioners were initially appointed after facing due selection process vide order dated 30.05.1995 (Annexure P/1) on the posts of Guard, Kitchen Servant and Ward Boy respectively in Government Ayush Hospital, Tamia, District Chhindwara on Collector rate.
It is submitted that the petitioners were granted regular pay scale vide order dated 06.04.1999, which was withdrawn vide order dated 14.05.1999 (Annexure P/3) i.e. in approximately a month's time. Thereafter, the petitioners vide order dated 29.06.2015 (Annexure P/5), after completion of ten years, have been granted regular pay scale but granting fresh appointment. The petitioners had filed WP No. 9814/2016, which was disposed of vide order dated 16.06.2016 (Annexure P/6) by directing petitioners to resubmit a comprehensive separate representation, which was directed to be decided by the respondents in accordance with law within 90 days. The petitioners had submitted a representation, which was rejected vide order dated 09.08.2016 (Annexure P/8).
It has been submitted by the counsel for the petitioners that the order dated 09.08.2016 has been passed without considering the policy/circular dated 22.11.1988, therefore the orders dated 29.06.2015 (Annexure P/5) and 09.08.2016 (Annexure P/8) are bad in law and deserve to be quashed.
It is further submitted that identically situated employees have been granted benefit of regular employment and regular pay scale in pursuance of the said policy vide order dated 25.10.2000 (Annexure P/4), therefore, the action of the respondents granting benefit of regular pay scale by fresh appointment by order dated 29.06.2015 (Annexure P/5) and rejection of the representation of the petitioners vide order dated 09.08.2016 (Annexure P/8) are arbitrary and violative of Article 14 of the Constitution of India.
6 . Per contra, learned counsel for the respondents has submitted that the petitioners were initially appointed as daily wagers on Clause IV post in the Ayush Hospital on payment of wages fixed by the Collector. The petitioners were granted regular pay scale vide order dated 06.04.1999, however, since that order was passed without following due process of law, therefore, within a period of two months, the said order was recalled vide order dated 14.05.1999 finding it that it was passed without following due process of law. The petitioners have never challenged the said order dated 14.05.1999 (Annexure P/3) and remained as daily wagers and continued to receive the wages as per Collector rate.
It is submitted that the respondents have taken a policy decision on the basis of policy/circular dated 29.09.2014 issued for regularization of daily wagers and granted benefit of regularization by appointing the petitioners as Hospital Helper (Clause IV) in the pay scale as provided under the Rules. It is submitted that since the petitioners were working on the posts as daily wagers, which were not vacant and sanctioned posts, therefore, the petitioners have been regularized on the vacant post of Hospital Assistant (Class IV) in a regular pay scale by granting regular appointment. It is submitted that as the petitioners were working on the posts, which were not available in the department set up, therefore, there was no question of granting benefit to the petitioners from the date of their induction in the service. The case of the petitioners has been considered in the light of the circular dated 29.09.2014, which provides that on completion of ten years of service as daily wager, the employees can be regularized.
It is further submitted that the orders shown to be passed in the case of similarly situated persons vide Annexure P/4 are not applicable to the petitioners as the orders were passed in cases of the employees who have been appointed on compassionate ground and in a different establishment.
Heard learned counsel for the parties and perused the record.
From perusal of order dated 30.05.1995 (Annexure P/1), it is found that the petitioners were initially appointed at Collector rate on different Class IV posts in Government Ayush Hospital, Tamia. From perusal of order dated 14.05.1999 (Annexure P/3), it is transpired that the petitioners were given some benefit vide order dated 06.04.1999, however that has been withdrawn vide order dated 14.05.1999 within one month and ten days finding that the benefit was extended without following due process of law. The said order was not challenged by the petitioners and they remained silent for years together and continued working on daily wages. Thereafter, considering the case of the petitioners in the light of the circular dated 29.09.2014, the services of the petitioners were regularized and as the vacant posts were not available where they were working, they were appointed on the post of Hospital Assistant (Class IV) in the pay scale provided under the Rules. From perusal of Annexure P/5 it is clear that the petitioners were appointed on the posts, which were not the cadre posts as well as not vacant at the time of inception. It is also transpired from the order that considering the cases of the petitioners sympathetically by granting benefit of policy dated 29.09.2014, the benefit of regularization has been extended to the petitioners on the posts, which were vacant at the time of regularization. Therefore, contention of the petitioners that they ought to have been given benefit of regularization after completion of three years is not applicable in the case in hand because the said policy has not been made applicable on the petitioners as the petitioners remained daily wagers till 2014 and on pronouncement of the new policy, the cases of the petitioners have been considered as per the new policy. As the earlier policy has ceased to be in effect, the petitioners cannot seek regularization with retrospective effect without following conditions of the policy of regularization, which is in vogue. Therefore, in the considered opinion of this Court, the order dated 29.06.2015 (Annexure P/5) is not violative of Article 14 of the Constitution of India.
The Hon'ble Apex Court in the case of Secretary to Government, School Education Department, Chennai vs. R. Govindaswamy and others reported in (2014) 4 SCC 769 in paras 6 and 8 has held as under:-
6.In State of Karnataka v. Umadevi (3) [(2006) 4 SCC 1 : 2006 SCC (L&S) 753 : AIR 2006 SC 1806] this Court held as under : (SCC p. 40, para 48)
“48.… There is no fundamental right in those who have been employed on daily wages or temporarily or on contractual basis, to claim that they have a right to be absorbed in service. As has been held by this Court, they cannot be said to be holders of a post, since, a regular appointment could be made only by making appointments consistent with the requirements of Articles 14 and 16 of the Constitution. The right to be treated equally with the other employees employed on daily wages, cannot be extended to a claim for equal treatment with those who were regularly employed. That would be treating unequals as equals. It cannot also be relied on to claim a right to be absorbed in service even though they have never been selected in terms of the relevant recruitment rules.”
8.This Court in State of Rajasthan v. Daya Lal [State of Rajasthan v. Daya Lal, (2011) 2 SCC 429 : (2011) 1 SCC (L&S) 340 : AIR 2011 SC 1193] has considered the scope of regularisation of irregular or part-time appointments in all possible eventualities and laid down well-settled principles relating to regularisation and parity in pay relevant in the context of the issues involved therein. The same are as under : (SCC p. 435, para 12)
“(i)The High Courts, in exercising power under Article 226 of the Constitution will not issue directions for regularisation, absorption or permanent continuance, unless the employees claiming regularisation had been appointed in pursuance of a regular recruitment in accordance with relevant rules in an open competitive process, against sanctioned vacant posts. The equality clause contained in Articles 14 and 16 should be scrupulously followed and Courts should not issue a direction for regularisation of services of an employee which would be violative of the constitutional scheme. While something that is irregular for want of compliance with one of the elements in the process of selection which does not go to the root of the process, can be regularised, back door entries, appointments contrary to the constitutional scheme and/or appointment of ineligible candidates cannot be regularised.
(ii)Mere continuation of service by a temporary or ad hoc or daily-wage employee, under cover of some interim orders of the court, would not confer upon him any right to be absorbed into service, as such service would be ‘litigious employment’. Even temporary, ad hoc or daily-wage service for a long number of years, let alone service for one or two years, will not entitle such employee to claim regularisation, if he is not working against a sanctioned post. Sympathy and sentiment cannot be grounds for passing any order of regularisation in the absence of a legal right.
(iii)Even where a scheme is formulated for regularisation with a cut-off date (that is a scheme providing that persons who had put in a specified number of years of service and continuing in employment as on the cut-off date), it is not possible to others who were appointed subsequent to the cut-off date, to claim or contend that the scheme should be applied to them by extending the cut-off date or seek a direction for framing of fresh schemes providing for successive cut-off dates.
(iv)Part-time employees are not entitled to seek regularisation as they are not working against any sanctioned posts. There cannot be a direction for absorption, regularisation or permanent continuance of part-time temporary employees.
(v)Part-time temporary employees in government-run institutions cannot claim parity in salary with regular employees of the Government on the principle of equal pay for equal work. Nor can employees in private employment, even if serving full time, seek parity in salary with government employees. The right to claim a particular salary against the State must arise under a contract or under a statute.”
(emphasis supplied)
It is further found that the reliance which has been placed by the petitioners on the orders passed in the cases of the employees said to be similarly situated are also not applicable in the case in hand as two of the employees were appointed on compassionate basis and one under special recruitment process, however, that too of a different establishment appointed on a different date and granted benefit earlier which was not withdrawn. In the present case in hand, the benefit, which was granted to the petitioners in the year 1999, was withdrawn within a month. The said order was never challenged by the petitioners. The petitioners have not even sought regularization by filing appropriate proceedings before the appropriate court. Therefore, considering the policy, which was in vogue, the petitioners have been regularized. Therefore, in the considered opinion of this Court, the petitioners have been rightly regularized by considering the policy dated 29.09.2014 vide order dated 29.06.2015 (Annexure P/5). The petitioners cannot seek benefit of regularization retrospectively without fulfilling the conditions provided under the policy. As per the policy, the petitioners were required to complete ten year. As the petitioners could not complete ten years in the year 1999, they cannot seek regularization from the back date. The policy, which has been relied by the petitioners, has got no relevance by efflux of time because it has been superseded by the later policy. Therefore, no case is made out to grant any benefit to the petitioners with retrospective effect i.e. from the year 1999. The orders passed by the authorities are found to be in consonance of the conditions of the policy.
In view of the aforesaid, the petition sans merit is hereby dismissed.