1 ITEM NO.1
COURT NO.5
SECTION XV
S U P R E M E C O U R T O F RECORD OF PROCEEDINGS Petition(s) for Special Leave to Appeal (C)
I N D I A No(s).
3159/2015
(Arising out of impugned final judgment and order dated 27/11/2014 in DBSA No. 1545/2014 passed by the High Court Of Rajasthan At Jaipur) SACHIVALAYA DAINIK VETAN BHOGI KARAMCHARI UNION, JAIPUR
Petitioner(s)
STATE OF RAJASTHAN & ORS.
Respondent(s)
AW
WITH SLP(C) No. 3778-3779/2015 (With Interim Relief and Office Report)
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VERSUS
EL
Date : 03/08/2016 These petitions were called on for hearing today. CORAM :
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IV
HON'BLE MR. JUSTICE J. CHELAMESWAR HON'BLE MR. JUSTICE ABHAY MANOHAR SAPRE
Mr. Milind Kumar,Adv.
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For Respondent(s)
Mr. Nidhesh Gupta,Sr.Adv. Mr. Abhishek Gupta,Adv.
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For Petitioner(s)
UPON hearing the counsel the Court made the following O R D E R C.A.NO.7260/2016
@ SLP(C)No.3159/2015
Leave granted. signed order.
The appeal is allowed in terms of the
C.A.No(s).7261-7262/2016 @ SLP(C)No.(s) 3778-3779/2015 Leave granted. Civil Appeals @ SLP(C)No.3778-3779/2015 are disposed of in view of the order passed in Civil Appeal arising out of SLP(C)No.3159/2015.
Signature Not Verified Digitally signed by OM PARKASH SHARMA Date: 2016.08.10 16:34:15 IST Reason:
[O.P. SHARMA] [MADHU NARULA] AR-cum-PS COURT MASTER (Signed order is placed on the file)
2 IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.7260 OF 2016 (Arising out of SLP(C)No.3159/2015) SACHIVALAYA DAINIK VETAN BHOGI KARAMCHARI UNION, JAIPUR
APPELLANT(S)
VERSUS RESPONDENT(S) WITH
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STATE OF RAJASTHAN & ORS.
AW
CIVIL APPEAL NO(s).7261-7262 OF 2016 (Arising out of SLP(C)No(s).3778-3779/2015)
EL
CHOTE LAL AND ORS.
APPELLANT(S)
RESPONDENT(S)
O R D E R
W W
W
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STATE OF RAJASTHAN & ORS.
IV
VERSUS
C.A.NO.7260/2016
@ SLP(C)No.3159/2015
Leave granted.
Aggrieved by the judgment dated 27.11.2014 of the High Court of Rajasthan in Special Appeal No.1545/2014, the sole respondent therein preferred the instant appeal. The appellant is a Union of employees who are described as “Class IV employees”
It
is
the
case
of
the
appellant
that
the
members
of
the
3 appellant Union have been attending to various menial works in the Secretariat of the State of Rajasthan.
The first respondent has
been resorting to the employment of members of the appellant Union through contractors (at least from the year 1998).
The appellant filed Civil Writ Petition No.4261/1999 seeking regularisation of service of its members.
When the said writ
petition came up for hearing before a Division Bench of the High
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Court, it was represented that the dispute had been settled out of
light
of
said
settlement,
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court and the terms of settlement were reduced to writing. the
High
Court
in
its
order
In the dated
As per condition No.4 of the conditions of
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“(1)
IV
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28.1.2003 in Civil Writ Petition No.4261/1999 directed as follows:
Tender, it would be imcumbent upon the contractor
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(New Contractor) to continue with the services of of
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the existing employees (petitioners) upon the award the
contract
to
him
subject
to
their
being
verified and subject also to verification of their suitability. (2) regular
In
the
event
selections
of for
Farrash/Sweeper/Class petitioners
shall
be
the
Government
the
vacant
IV/ given
Helper
making
posts etc.
weightage
as
well
of the as
relaxation in the eligibility condition keeping in view their long duration of past services-subject to their satisfactory performance. (3)
Subject
relaxation
in
to the
the
giving
of
eligibility
weightage
and
condition,
the
4 petitioners will have to compete with others, in case,
the
Government
intends
to
make
regular
selections on the vacant posts of Farrash/Sweeper/ Class IV/Helper etc. and (4)
In case, the petitioners make applications
or
file
representation
requesting
it
to
grant
No.F.1(5)
FD/Rules/2002
the
shall
same
be
before
the
benefit
dated
of
considered
by
the
the
Government
on
the
to
them
Government
Any decision
applications
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by
Circular
13.01.2003
within a reasonable period of time. taken
Government
or
representations of the petitioners shall be binding
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on the contractor(s).
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Both the parties have agreed to the passing of the
inviting
tender
the
from
first
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8.4.2004,
respondent
contractors
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On
IV
aforesaid directions.”
for
issued the
an
supply
advertisement of
the
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employees' for the Secretariat of the first respondent. appellant
Union
approached
the
High
Court
by
'Class
IV
Once again
way
of
writ
petition No.3235/2004 challenging some of the conditions of the above mentioned advertisement on the ground that those conditions were contrary to the settlement recorded by the High Court in its order
dated
28.1.2003.
During
the
pendency
of
the
said
writ
petition, the High court issued certain interim orders directing the first respondent not to terminate the services of the members of the appellant Union.
On 15.1.2011 another advertisement was issued by the first
5 respondent
inviting
applications
from
eligible
candidates
appointment to 289 posts of 'Class IV employees'.
for
It appears from
the record that in the background of the abovementioned litigation, the first respondent decided to provide some weightage in favour of the members of the appellant and other similarly situated people.
The
members
interview
of
pursuant
the
to
appellant
the
above
were
mentioned
called
recruitment
for
an
process
In view of the long pendency of
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initiated by the first respondent.
Union
No.22845
Union of
filed
2014
in
a
S.B.
the
above
is,
filed
by
therefore, the
prayed
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“It
Miscellaneous
mentioned
IV
prayer:
Civil
EL
appellant
AW
writ petition No.3235/2004 and the subsequent developments, the
petitioner
that may
writ
the be
Application
petition
with
a
application allowed
and
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respondents may be directed to declare the result
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of Class-IV employees and give appointment to the members
of
the
petitioner
Union
who
are
continuously discharging their duties as class IV employees
from
last
15-20
years
on
daily
wages
basis.”
In view of the said situation, the recruitment process which is the subject matter of the instant litigation was not being finalised. The first respondent filed a reply to the above mentioned Miscellaneous Application.
The substance of which is that with
reference to the recruitment to various posts in the Panchayat Raj
6 Department, the first respondent earlier took a decision to accord certain bonus marks in favour of those who had been working with the department on temporary basis. The said decision came to be challenged
before
the
No.4144/2013 etc.
Rajasthan
High
Court
in
Writ
Petition
In the said matter, the High Court of Rajasthan
opined that the weightage sought to be given by the State in favour of the temporary employees was arbitrary and directed that a lower weightage be given.
Aggrieved by the same, the State of Rajasthan
carried
to
matter
this
Court
by
of
special
leave
to
AW
appeal1.
way
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the
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In the background of the above mentioned reply affidavit of the State, the learned Single Judge of the Rajasthan High Court
IV
allowed the Writ Petition No.3235/2004 and batch and disposed of The operative portion
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Application No.22845/2014 referred to supra.
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of the judgment reads as follows:
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“In view of the above, present writ petitions succeed and are allowed.
The respondents are
directed to sdeclare the result by awarding bonus marks to the petitioners as per their decision and
pass
appropriate
orders
of
appointment
of
selected candidates within a period of two months from
the
date
copy
of
this
order
is
produced
before them. Application No.22845 stands disposed of.” In substance, the learned Single Judge directed the first respondent to declare the result of the recruitment process in 1
We are informed, as on today, the special leave petition [SLP(C)No.32008-32009/2013] is still pending. However, we are informed at the bar that an interlocutory application is filed by the State of Rajasthan in that SLP praying that they may be permitted to withdraw the special leave petitions and the same is pending
7 issue after giving appropriate bonus marks to the members of the appellant
union
and
give
appointment
orders
to
the
selected
candidates. Interestingly,
the
first
respondent
against the above mentioned judgment. judgment
under
appeal
allowed
the
preferred
an
appeal
The Division Bench by the
writ
appeals.
The
operative
portion: “15.
Be that as it may, the question of weightage depend
observe
upon
here,
statutory
that
the
Rules.
We
settlement
AW
also
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in regular selections in accordance with law, may may
also
could
not
enforced, in view of the conclusive judgment of the Supreme
Court
in
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Hon'ble
Secretary,
State
of
16.
In
view
IV
Karnataka Vs. Uma Devi(supra) of
the
above
discussion,
the
The
Special
Appeals
are
allowed.
The
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17.
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sustained.
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direction issued by learned Single Judge cannot be
judgment of learned Single Judge is set aside.”
Hence the present appeal. The Division Bench took note of the fact that the members of the appellant Union herein claim weightage for their past service in terms of settlement recorded by the High Court in its order dated 28.1.2003. The Division Bench also took note of the fact that what exactly is the weightage to be given for the past service is not specified in the said order. It, therefore, opined rightly that it is for the first Respondent to consider and give appropriate
8 weightage to the members of the appellate Union.
It also observed:
“...We are also restraining ourselves from expressing any opinion as to whether the award of bonus marks, after the judgment in Secretary, State of Karnataka Vs. Uma Devi (supra), will be valid.” Having so observed, the Division Bench chose to declare in the operative portion of the judgment that the settlement recorded by the High Court in its order dated 28.1.2003 could not be enforced.
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A logic which is rather difficult to understand. The only submission made on behalf of the respondent is that
of
the
members
of
the
appellant
Union
could
not
be
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service
AW
in view of the judgment of this Court in Uma Devi's case, the
regularised and the members of the appellant Union could only be
Uma Devi's case(supra)].
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Court in
IV
employed by the State in accordance with the rules [as held by this Therefore, the judgment under
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appeal calls for no intervention. Whatever is the prayer in the Writ Petition No.3235/20042, the fact
remains
that
the
members
of
the
appellant
seeking regularisation of their prior service.
Union
are
not
Admittedly, an
advertisement dated 15.1.2011 was issued calling applications for filling up of certain 'Class IV posts' in the Secretariat of the first respondent.
It is the unrebutted case of the appellant that
the members of the appellant Union responded to the advertisement and participated in the selection process conducted pursuant to the above mentioned advertisement. They are only seeking employment through the normal course of recruitment. So far, the recruitment 2
Unfortunately a copy of the W.P. 3235/2004 is not on record
9 process has not reached its logical conclusion. In the circumstances, the members of the appellant Union are entitled to know the result of the recruitment process in which they participated .
All that the learned Single Judge directed was
to conclude the process and declare the result after giving such weightage to the past service of the members of the appellant Union as the first respondent deems fit and proper.
The weightage for
dated
28.1.2011
which
is
admittedly
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the past service is not only a part of the agreed judicial order not
inconsistent
with
the
AW
policy of the first respondent. The first Respondent did provide
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such weightage w.r.t. Panchayat Raj department.
IV
We do not see any error in the directions given by the learned
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Single Judge and we are of the opinion that Division Bench is
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clearly in error in interfering with the said direction.
first
respondent
judgment giving
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Inspite of a pointed question, the learned counsel for the
which
could
either
weightage
for
not dealt
the
point with
service
out or
anything
prohibited
rendered
by
in
Uma
the
State
employees
Devi's from where
services were used by the State either temporarily or on adhoc bases (including daily wage basis) irrespective of the regularity of
their
initial
entry
into
the
service.
All
that
this
Court
declared in Uma Devis' case is that such people cannot claim to be appointed automatically on the ground that their services were utilised on temporary basis for considerably long periods.
10 Even with reference to such claims Uma Devi(supra) did not declare that in no case such claims should be entertained.
This
Court opined that there is a justification to consider the case of certain class of employees who have put in 10 years of such service (adhoc or temporary. “.....In
that
context,
State
Governments
and
should
take
to
measure,
steps
the
the
Union
their of
India,
the
instrumentalities
regularise
services
of as
a
such
one-time
irregularly
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appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders
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of the courts or of tribunals and should further ensure hat regular recruitments are undertaken to
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fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or
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daily wagers are being now employed.
The process
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must be set in motion within six months from this We also clarify that regularisation, if any
already
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date.
made,
but
not
subjudice,
need
not
be
no
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reopned based on this judgment, but there should be further
bypassing
of
the
constitutional
requirement and regularising or making permanent, those not duly appointed as per the constitutional scheme.”3
We are of the opinion that the Division Bench was in error in coming to the conclusion that in view of Uma Devi's judgment, the settlement recorded by the High Court in its order dated 28.1.2003 become unenforceable. conclusion.
We do not see any basis in law for such a
Uma Devi (supra) only dealt with in relation to the
execution and regularisation of temporary and adhoc service without 3
See para 53
11 any reference to any law.
Uma Devi never dealt with a validity of
the judicial order which had attained finality. The
first
respondent,
who
was
a
party
to
the
settlement
recorded by the High Court in its order dated 28.1.2003, could not be permitted to raise the question of the enforceability of the settlement, more particularly, when all that the appellant seek is only weightage for the past service of its members which the first
persons
working
with
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respondent agreed, in principle, to give to similarly situated other
departments.
The
members
of
the
AW
appellant Union have been working with the first respondent for
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long periods (period varying from person to person). Whether such employment was regular or irregular in law, is a different matter. fact
remains
that,
services
were
used
by
the
first
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Respondent.
their
IV
The
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In the circumstances, we are of the opinion that the judgment under appeal cannot be sustained and the same is set aside.
The
first respondent is directed to conclude the recruitment process initiated and announce the results forthwith preferably within a period of eight weeks from today.
We also make it clear that in
terms of the settlement recorded by the High Court in its order dated
28.1.2003,
the
members
of
the
appellant
Union
are
also
entitled for some weightage for the past service rendered by them. The quantum or measure of such weightage may be decided by the State in accordance with a rational policy.
The appeal is allowed with costs quantified at Rs.2.5 lakhs
12 (Rupees Two Lakhs Fifty Thousand).
The impugned order of the High
Court is set aside. Applications (I.A.No.2 & 3) for impleadment are dismissed.
C.A.No(s).7261-7262/2016 @ SLP(C)No.(s) 3778-3779/2015 Leave granted.
view
of
the
order
passed
in
Civil
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NEW DELHI DATED; AUGUST 03, 2016
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IV
EL
AW
SLP(C)No.3159/2015.
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Civil Appeals @ SLP(C)No.3778-3779/2015 are disposed of in Appeal
arising
out
of
....................J. [J. CHELAMESWAR] ....................J. [ABHAY MANOHAR SAPRE]
