Vidyut Vitran Nigam Ltd. and Anr Vs. Nanu Ram & Ors  Insc 867 (24 November 2006)
Pasayat & S. H. Kapadia Kapadia, J.
Appeal No. 254 of 2004 with Civil Appeal No. 1042 of 2006 The distinction
between regularisation and conferment of permanence in civil service arises for
determination in this civil appeal filed by the appellant-Jodhpur Vidyut Vitran
Nigam Ltd. against decision dated 5.12.2002 delivered by the Division Bench of
the High Court of Rajasthan in Civil Special Appeal (Writ) No. 867 of 2002.
1 to 20 were engaged for temporary construction work in different divisions on
muster roll around 21.4.1980 and on subsequent dates on daily wage basis. They
completed two years of service after 31.3.1982.
claimed regularisation on completion of two years of service in terms of an
Arbitration Award (Part I) dated 31.5.1978. Under para 15 of the said Award, it
was stipulated that fixation in the regular pay scale for employees recruited
on or after 1.4.1978 shall be regularised by the recruitment policy to be
detailed in the Award to follow. On 15.6.1979 the second Award was accordingly
published under which it was inter alia stipulated that workmen (work-charged)
engaged between 1.4.1979 and 30.6.1979 have to be screened and if found
satisfactory be classified as temporary work-charged and thereafter on
rendering of satisfactory service for two years can be regularised in
accordance with Award dated 31.5.1978 from 1.4.1981 and so on.
on the two Awards, referred to above, on completion of two years the
respondents herein claimed permanence. At this stage, it may be noted that, in
terms of the above two Awards the State Government constituted Screening
Committees from time to time. On 26.9.1983 the duly constituted Screening
Committee was required to consider regularisation of casual and daily rated
workmen, who had completed two years service prior to 31.3.1982. It needs to be
reiterated that the respondents herein did not come in this categorization as
they had not completed two years service on 31.3.1982. As stated above, they
completed their services only after 31.3.1982. Be that as it may, the
respondents herein claimed regularisation in terms of the above two Awards on
completion of two years service from the date of their appointment, which as
stated hereinabove, was after 31.3.1982. The above two Awards stood terminated w.e.f.
29.6.1985. The matter had a chequered history. Suffice it to state, that the
respondents herein have been regularised on the basis of the recommendations of
the Screening Committee w.e.f. 1.4.1989. The respondents seek regularisation
from the prior date i.e. on and from 1.4.1982. On 6.9.1999 the State Government
referred the dispute to the Industrial Tribunal. In the statement of claim respondents
herein submitted that though they have been regularised w.e.f. 1.4.1989, like
some of the other workmen they were also entitled to get regularisation w.e.f.
1.4.1982; that though they were entitled for this benefit from 1.4.1982, they
have been regularising only w.e.f. 1.4.1989 without any reason and
justification; that workmen junior to them have been given this benefit w.e.f.
1.4.1982 and, in the circumstances, respondents herein prayed that all of them
be granted permanent pay scale w.e.f. 1.4.1982 with interest at the rate of
of written statement, the appellants herein pointed out, that the respondents
were engaged for temporary construction work in different divisions; that they
were daily wage earners whose names appeared on muster roll; that they were not
found eligible for regular pay scales by the Screening Committee on earlier
occasions; that they did not comply with the eligibility criteria mentioned in
Circular No. 1806 dated 26.9.1983; that vide Circular No. 867 dated 29.6.1985
the earlier two Awards were terminated and, therefore, the respondents herein
were not entitled to rely upon those Awards; that ultimately, the respondents
have been regularised on 1.4.1989 after they were found eligible by the
Screening Committee; that in the State, thousands of muster roll workmen were
engaged in the construction work for whom there was no vacant sanctioned post
and, therefore, against the supernumerary posts the workmen had to be adjusted
by giving regular pay scale and, therefore, it was not possible for the
management to regularise all the workmen with retrospective effect. In the
written statement filed by the State before the Industrial Tribunal it was
pointed out that the Screening Committee had to consider the financial burden
of regularising thousands of muster roll workmen with retrospective effect. In
the written statement, it was further pointed out that, some of the muster roll
workmen have been recruited without the approval of the management. All these
considerations had to be kept in mind by the Screening Committee before
granting regularization. In the circumstances, it was not possible for the
State to appoint such committees at regular intervals.
impugned Award dated 24.8.2000 passed by the Industrial Tribunal, the claim of
the respondents workmen was accepted for the following reasons.
to the Industrial Tribunal, when the workers in the past were given the benefit
of regularization on completion of two years continuous service as on 31.3.1982
then there was no reason to discriminate workmen who completed two years
continuous service on and after 31.3.1982. According to the Industrial
Tribunal, the above two Awards stood terminated in the year 1985 whereas
respondents 1 to 20 herein completed two years service in April, 1982 and,
therefore, there was no reason to deny the benefit of the pay scale to these
respondents who completed two years service in April, 1982. This, according to
the Tribunal, was discriminatory. According to the Industrial Tribunal, the
State Government had discriminated between workmen who completed two years
service by 31.3.1982 and those who completed two years service by 31.3.1983.
According to the Industrial Tribunal, the above two Awards were in existence
even on 31.3.1983 and, therefore, there was no reason to discriminate workmen
who had completed two years service by 31.3.1982 on one hand and those who
completed two years service by 31.3.1983. For the above reasons, the Industrial
Tribunal came to the conclusion that the respondents herein cannot be deprived
of their legal rights.
Award of the Industrial Tribunal was challenged by the appellants in the High
Court by filing Writ Petition No. 1060/01. The learned Single Judge upheld the
Award vide judgment dated 7.8.2002. Aggrieved by the said judgment, the
appellants herein moved in Civil Special Appeal No. 867/02. By the impugned
judgment it was held that regularisation cannot be made dependant upon
fortuitous circumstances, i.e., the date on which the Screening Committee was
constituted. According to the impugned judgment, the respondents workmen had
completed two years service by 1.4.1983 and on that date they had acquired
their eligibility. According to the impugned judgment, the eligibility of the
workmen was two years of continuous service; that the Screening Committee may
meet at any time but once the workmen are found to be suitable, their regularisation
has to relate back to 1.4.1983 and, in the circumstances, the respondents
herein were entitled to regularisation from the date when they became eligible
for regularization. This civil appeal is filed against the impugned decision of
the High Court dated 5.12.2002.
outset, we may state that, as held by this Court in the case of Secretary,
State of Karnataka and Ors. v. Umadevi (3) & Ors.
(2006) 4 SCC 1, there is a vital distinction between regularisation and
conferment of permanence in service jurisprudence. The words
"regular" or "regularisation" do not connote permanence.
They cannot be construed to convey an idea of the nature of tenure of
appointments. They are terms calculated to condone any procedural
irregularities and are meant to cure defects in the method of appointments. It
has been held in the above judgment that it is a misconception to equate regularisation
with permanence. (See para 15).
the above test to the facts of the present case, the Screening Committee was
required to examine the question as to how many workmen could be regularised,
keeping in mind the budget provisions, availability of the posts, the number of
muster roll workers engaged in the construction work without their being in
existence vacant sanctioned posts, the manner in which these muster roll
workers were initially recruited with or without the approval of the management
and, thereafter, on the basis of eligibility the Screening Committee had to
recommend their absorption in regular service.
aspects were required to be examined by the Screening Committee.
completion of two years was not the only criteria. Even in the Award dated
31.5.1978 read with Award dated 15.6.1979 the fixation in the regular pay scale
was only for those employees who were recruited with the approval of the
management and in accordance with law. Even under the Awards, as they then stood,
the Screening Committee had to examine the performance of the workmen before
granting them the regular pay scale.
of pay scale simpliciter is different from grant of permanency.
granting permanency, the State has to consider the number of posts falling
vacant, those posts should exist as and by way of regular vacancy, the
financial burden of granting permanency and, therefore, in our view, the High
Court has failed to keep in mind the difference between the concept of grant of
pay scale as distinct from grant of permanency. The State was not under an
obligation to constitute Screening Committee at the end of each year.
Constitution of the Screening Committee was within the discretion of the State
Government dependant upon the above factors. Therefore, there was no question
of comparing the case of the present respondents with the case of the workmen
who got regularised prior to 31.3.1982. Each exercise by the Screening
Committee has to be seen in the light of the above factors.
given exercise, the State may have sufficient number of vacant posts to
accommodate certain number of workers. However, that may not be the case in the
subsequent years. Therefore, there is no question of any discrimination in the
matter of regularisation or in the matter of grant of permanency.
circumstances, we set aside the impugned judgment of the Division Bench dated
5.12.2002 in Civil Special Appeal (Writ) No. 867/02 and remit the matter for de
novo consideration in the light of the judgment of this Court in Umadevi case
the civil appeal stands allowed to the aforesaid extent with no order as to
Appeal No. 1042 of 2006:
matter is a sequel to our decision in above Civil Appeal No. 254/04, therefore,
we are not required to reiterate the facts of the case in detail once again.
Suffice it to state that the sole respondent-Karam Singh was appointed as a
daily rate worker on muster roll basis w.e.f. 26.5.1980.
completed two years' service after 31.3.1982. On 26.8.1983 the Screening
Committee, appointed by the State Government met to consider the cases of
workmen, who had completed two years service as on 26.9.1983. It recommended
names for regularisation on the basis of their seniority and keeping in mind
the budget provisions. After the meeting of the Screening Committee in 1983,
there was no post available with the management. This was on account of
financial constraints. However, on 5.6.1989 the duly constituted Screening
Committee recommended the names of the workmen, including the respondent, for regularisation
and grant of regular pay scale w.e.f. 1.4.1989. These recommendations were
accepted by the Board of Directors after taking into consideration the
financial condition of the Nigam. Thus, the respondent herein was granted
regular pay scale from 1.4.1989. After accepting the regular pay scale, the
respondent moved the High Court by way of writ petition. This writ petition was
dismissed. The respondent was asked to approach the Industrial Tribunal. He approached
the Industrial Tribunal by way of Reference Case No. 20/97.
the Industrial Tribunal, the respondent asked for regular pay scale from
1.4.1983, although he was regularised from 1.4.1989. In reply, the management
pointed out that since the respondent was regularised w.e.f. 1.4.1989 he was
not entitled to claim regular pay scale from 1.4.1983. It was further pointed
out that the respondent was interviewed by the Screening Committee constituted
on 2.3.1989 and that committee had granted regularisation to the respondent
keeping in mind the above factors including existence of vacancies as also the
Award dated 18.11.1999 the Industrial Tribunal took the view that since the
respondent had completed two years of continuous service by 31.3.1983 and since
he was found suitable by the Screening Committee the respondent stood regularised
w.e.f. 1.4.1983 and, therefore, he was entitled to regular pay scale on and
from 1.4.1983. Aggrieved by the Award, the management moved the High Court by
way of Civil Writ Petition No. 699/2000-2001. By judgment dated 2.7.2001, the
learned Single Judge dismissed the writ petition stating that there was no
illegality or error apparent on the face of the Award. Hence, the writ petition
by the decision of the learned Single Judge, the management preferred Civil
Special Appeal (Writ) No. 876/01 to the Division Bench of the High Court which,
as stated above, came to the conclusion, vide judgment dated 22.11.2001, that
the respondent herein had completed two years on 31.3.1983; that the committee
have not screened the cases within reasonable time for which the claim of the
workman cannot be defeated; that the management had approved the
recommendations of the Select Committee belatedly for which the claim of the
workman cannot be defeated and, in the circumstances, the Division Bench
directed the management to treat the respondent herein as regularised w.e.f.
1.4.1983. However, it was clarified that the service of the respondent can be regularised
only against the vacancies available for regularisation and if the vacancy is
available on 1.4.1983 only then the respondent should be made regular in
service with effect from that date.
respondent, however, moved Civil Misc. Review Application No. 53/03 in the said
Civil Special Appeal (Writ) No. 876/01. In the review petition, the respondent
submitted that he had not asked for regularisation before the Industrial
Tribunal; that the Industrial Tribunal had granted him the regular pay scale
and not regularisation w.e.f. 1.4.1983 and, therefore, the Division Bench of
the High Court had erred in directing the management to regularise the services
of the respondent herein on and from 1.4.1983. In the review petition, the
respondent herein contended that there was no question of regularising his
service w.e.f. 1.4.1983 only against vacancies available for regularisation
since he had not asked for such a relief. This review application came before
the Division Bench which passed a cryptic impugned order stating that instead
of regularisation of service the respondent workman shall be entitled to
regular pay scale from 1.4.1983.
by the aforesaid order of the Division Bench dated 1.5.2003 read with the
clarification dated 20.9.2005, Rajasthan Rajya Vidyut Utpadan Nigam Ltd.
("Nigam") has come to this Court by way of the civil appeal.
learned counsel appearing for the respondent herein, submitted, that the
respondent had never asked for regularisation; that he had only sought regular
pay scale w.e.f. 1.4.1983 and, therefore, this case stood on entirely different
footing vis-`-vis the earlier case of twenty work- charged employees. Learned
counsel, therefore, submitted that the judgment delivered by this Court in
Civil Appeal No. 254/04 (supra) should not be made applicable to the present
not find any merit in this argument. The grant of regular pay scales was
directly linked to the question of regularisation. In the circumstances, the
judgment delivered by us in Civil Appeal No. 254/04 (supra) would apply to the
facts of the present case also.
we set aside the impugned judgment dated 1.5.2003 delivered by the Division
Bench in Civil Special Appeal (Writ) No. 876/01 and Order dated 20.9.2005 in Civil
Misc. Review Application No. 53/03 and remit this matter also to the Division
Bench of the High Court for de novo consideration in the light of the law laid
down by us in Civil Appeal No. 254/04 (supra). The appeal stands allowed with
no order as to costs.