MUNICIPAL CORPORATION SHIMLA VS MATHU RAM

MUNICIPAL CORPORATION SHIMLA VS MATHU RAM

(Rajiv Sharma and Dharam Chand Chaudhary, JJ. )

L.P.A. No. 44 of 2015 Decided on : 13-10-2015

Hamender Singh Chandel, Advocate, for the Appellant; Archna Dutt, Advocate, for the Respondent

Rajiv Sharma, J.—

This Letters Patent Appeal is instituted against the judgment dated 31.7.2014 rendered in CWP No. 2415 of 2012. "Key facts" necessary for the adjudication of this appeal are that the respondent was appointed on daily wage basis in the month of November, 1993. He was regularized on 20.4.2007. Case of the respondent was that he ought to have been regularized immediately after the completion of 8 years as per the judgment rendered by this Court in CWP No. 2735 of 2010 dated 28.7.2010. Learned Single Judge decided the writ petition on 31.7.2014 and directed the appellants to comply with the directions issued in Rakesh Kumar v. State of H.P. and Others, subject to the final outcome of the SLP titled State v. Rakesh Kumar pending before the Hon'ble Supreme Court. Hence, the present appeal.

2. Mr. Hamender Chandel has vehemently argued that services of the respondent have been regularized as per the policy dated 11.4.2007. He has also contended that the policy has been made applicable to the urban local bodies only in the year 2007.

3. We have heard the learned counsel for the parties and have gone through the judgment carefully.

4. Respondent was appointed in the month of November, 1993. He has completed 8 years of service in the year 2001. The workmen, who have completed 8 years of service, were required to be regularized immediately after the completion of 8 years' service. Appellant-corporation is State within the meaning of Article 12 of the Constitution of India. The practice of the respondent-corporation not to regularize the services of the workmen, though they have completed 8 years of service, amounts to unfair labour practice.

5. The issue raised in the LPA is no more res integra in view of the judgment rendered in CWP No. 2735 of 2010 decided on 28.7.2010, titled as Rakesh Kumar v. State of H.P. and Others. Relevant portion of the judgment reads as under:

"2. The only reference to be made for analyzing the grievance of the petitioners is two orders of the Government. One order is dated 3.4.2000 and other is dated 6.5.2000. Order dated 3.4.2000, reads as follows:

"In partial modification of this Department letter of even number dated 8th July, 1999 on the above subject, I am directed to say that the Government has now decided that the Daily Waged/Contingent Paid workers in all the Departments including Public Works and Irrigation and Public Health Departments (other than work-charged categories)/Boards/Corporations/Universities, etc. who have completed 8 years of continuous service (with a minimum of 240 days in a calendar year) as on 31-03-2000 will be eligible for regularization. It has further been decided that completion of required years of service makes such daily wager/contingent paid worker eligible for consideration to be regularized and regularization in all cases will be from prospective effect i.e. from the date the order of regularization is issued after completion of codal formalities.

2. In view of the above decision and in order to avoid any litigation and also any hardship to daily wagers departments shall do the regularization based on seniority and they will ensure that senior persons are regularized first rather than regularizing junior persons first.

3. Other terms and conditions like fulfillment of essential qualification as prescribed in R&P Rules, etc. etc. as laid down in this department letter of 8th July, 1999, as referred to above, shall continue to be operative.

4. These instructions may kindly be brought to the notice of all concerned for strict compliance.

5. These instructions have been issued with the prior approval of the Finance Department obtained vide their Dy. No. 852 dated 23-03-2000."

3. Order dated 6.5.2000, to the extent relevant, reads as follows:

"2. During the process of regularization of daily wagers, various issues and problems relating to these workers concerning their regularization have been brought to the notice of the Government. The Government in order to avoid such confusion or problems has decided to streamline the existing procedure/instructions in order to bring uniformity of procedure in various Departments of the Government. It has, therefore, been decided that henceforth:

(i) Daily Waged/Contingent Paid Workers who have completed required years of continuous service (with a minimum of 240 days in a calendar year except where specified other wise for the tribal areas) which as per latest instructions issued vide this Department letter of even number dated 3-4-2000 is 8 years as on 31-03-2000 shall be eligible for regularization. However, in Departments/Corporations/Boards, where the system of the work charge categories also exists, eligible daily wagers will be considered first for bringing them on the work charge category instead of regularization. Such eligible daily waged workers/contingent paid workers will be considered for regularization against vacant posts or by creation of fresh posts and in both these events prior approval of Finance Department will be required as per heir letter No. Fin-1-C(7)-1/99 dated 24-12-1999. The terms and conditions for such regularization shall be governed as per Annexure -'A'."

4. This scheme was in force till a new scheme introduced on 9th June, 2006. The contention of the petitioners is that on completion of 8 years service, as per the scheme extracted above, they are liable to be granted the work-charged status being on a work charged establishment."

6. Thus, there is neither any illegality nor any perversity in the judgment dated 31.7.2014. Accordingly, there is no merit in the appeal and the same is dismissed. Pending application(s), if any, also stands disposed of. There shall, however, be no order as to costs.

Final Result : Dismissed