Claim For Regularisation

Source: The Hitavada      Date: 22 Jan 2018 10:21:06


 

 

 

 

 

 

 

 

 

 

There is clear contravention of constitutional provisions and aspiration of the downtrodden class. They do have equal rights and to make them equals they require protection and cannot be dealt with arbitrarily. 

The kind of treatment meted out is not only bad but equally unconstitutional and is denial of rights. The courts have to strike a balance to really implement the ideology of the Uma Devi decision.


IN THE judgement of the case - Sheo Narain Nagar & Others v. State of Uttar Pradesh & Others, delivered on November 13, 2017, Justice Arun Mishra and Justice L. Nageswara Rao, at the Supreme Court have held that in the case, appellants have rendered services and are continuing to serve since last 24 years, except for a brief period of a few months from October, 2014 till March, 2015, hence it was not a case of back door entry and they are entitled to regularisation of their services from October 2, 2002 and in view of this, the Court has been of the view that the orders passed to terminate their services are liable to be quashed.
The appellants were initially engaged on daily wages basis in the month of August, 1993. Later on, they were appointed on contractual basis in the year 1996.

In the year 2000, respondent-3 issued an order appointing them as regular employees on the minimum pay scale. By way of an order on July 25, 2006, they were conferred the status of temporary employees with retrospective effect from October 1, 2002.


There was a direction issued by the HC to consider them for regularisation, but their services were not regularised. The Single Judge ultimately dismissed the writ petition seeking regularisation. That order was affirmed by the division bench of the HC.


In the year 2014, the services of the appellants were terminated. In view of the findings recorded by the HC in its order of October 27, 2014, while dealing with the case of the appellants for regularisation, that their appointments were illegal and not irregular one. On March 23, 2015, the Supreme Court has issued notice of the appeal of the employees to the respondents.


The Apex-Court has noted “painfully” that in the prevailing scenario, the Court’s decision in the Uma Devi’s case - Secretary, State of Karnataka & Others v. Uma Devi & Others [2006 4 SCC 1] has not been properly understood and rather wrongly applied by various State Governments. The Court called for the data in this case to ensure as to how many employees were working on contract basis or ad-hoc basis or daily-wage basis in different State departments.


The Court took judicial notice of the fact that widely aforesaid practice is being continued. Though this Court has emphasised that incumbents should be appointed on regular basis as per rules but new devise of making appointment on contract basis has been adopted, employment is offered on daily wage basis etc. in exploitative forms. This situation was not envisaged in the decision of the Uma Devi case.
The prime intendment of the decision was that the employment process should be by fair means and not by back door entry and in the available pay scale.


The spirit of the Uma Devi decision has been ignored and conveniently overlooked by various State Governments/authorities. The court made the observation “regretfully” that the Uma Devi decision has not been implemented in its true spirit and has not been followed in its pith and substance. It is only being used as a tool for not regularising the services of incumbents.


These incumbents are continued in service without payment of due salary for which they are entitled on the basis of Articles 14, 16 read with Article (34) (1) (d) of the Constitution of India as if they have no constitutional protection as envisaged in the decision - D.S. Nakara v. Union of India - AIR 1983 SC 130 from cradle to grave. In the heydays of life they are serving on exploitative terms with no guarantee of livelihood to be continued and in old age they are going to be destitute, there being no provision for pension, retiral benefits etc.


There is clear contravention of constitutional provisions and aspiration of the downtrodden class. They do have equal rights and to make them equals they require protection and cannot be dealt with arbitrarily. The kind of treatment meted out is not only bad but equally unconstitutional and is denial of rights. The courts have to strike a balance to really implement the ideology of Uma Devi decision.


Thus, the time has come to stop the situation where the Uma Devi decision can be permitted to be flouted, whereas, this Court has interdicted such employment way back in the year 2006. The employment cannot be on exploitative terms, whereas, the Uma Devi decision provides that there should not be back door entry and every post should be filled by regular employment, but a new device has been adopted for making appointment on payment of paltry system on contract/ad-hoc basis or otherwise. This kind of action is not permissible, when the Court considers the pith and substance of true spirit in Uma Devi decision.


In this case, there was a direction issued way back in the year 1999, to consider the regularisation of the appellants. However, regularisation was not done. The respondents chose to give minimum pay, which was available to the regular employees, way back in the year 2000 and by passing an order, the appellants were also conferred temporary status in the year 2006, with retrospective effect on October 2, 2002.


As the respondents have themselves chosen to confer a temporary status to the employees, as such there was requirement at work and posts were also available at the particular point of time when order was passed. Thus, the submission raised by the respondent’s counsel that posts were not available, is belied by their own action. Obviously, the order was passed considering the long period of services rendered by the appellants, which were taken on exploitative terms.


The HC dismissed the writ application relying on the decision in Uma Devi’s case. But the appellants were employed basically in the year 1993; they had rendered service for three years, when they were offered service on contract basis; it was not the case of back door entry; and there were no Rules in place for offering such kind of appointment. Thus, the appointment cannot be said to be illegal and in contravention of Rules, as there were no such Rules available at the relevant point of time, when their temporary status was conferred with effect from October 2, 2002.


The appellants were required to be appointed on regular basis as a one-time measure, as laid down in paragraph 53 of the Uma Devi judgement. Since the appellants had completed ten years of service and the temporary status given by the respondents with retrospective effect on October 2, 2002, the Supreme Court has directed that the services of the appellants be regularised from the said date - October 2, 2002. Consequential benefits and arrears of pay also to be paid to the appellants within 3 months from the date of this judgement.


The Supreme Court has quashed the impugned judgement and order and also the order passed to terminate the services, and allowed the appeal.