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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.  4474     OF 2015 (Arising out of Special Leave Petition(C) No.837 of 2012)

Prem Ram …Appellant

Vs.

Managing Director, Uttarakhand Pey Jal &  Nirman Nigam, Dehradun and Ors. …Respondents

J U D G M E N T

T.S. THAKUR, J.

1.       Leave granted.

2. This appeal arises out of an order dated 30th June, 2011

passed by the High Court of Uttarakhand at Nanital whereby

Special  Appeal  No.128 of 2011 filed by the appellant  has

been dismissed and the order passed by the learned Single

Judge  of  that  Court  in  Writ  Petition  324(MS)  of  2004

affirmed.

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3. The  appellant,  it  appears,  was  appointed  as  a

daily-wager in the erstwhile Uttar Pradesh Pey Jal & Nirman

Nigam  sometime  in  the  year  1988.  Nine  years  later  his

services were terminated in February 1997. The termination,

when assailed by the appellant before the Labour Court, was

set aside with a direction to the respondent to reinstate the

appellant with 50% back wages and continuity of service.

The writ petition filed by the respondent-Jal Nigam who is

the successor-in interest of the erstwhile Uttar Pradesh Pey

Jal  Nigam  against  the  award  made  by  the  Labour  Court

succeeded only in part and to the extent that the award of

back  wages  was  deleted  from  the  award  by  the  Labour

Court.  It is common ground that pursuant to the award, the

appellant  was  allowed  to  rejoin  as  a  daily-wager  and  to

serve  the  respondent-Jal  Nigam  till  the  date  of  his

superannuation upon completion of 60 years of age.  

4. In  the  year  2008,  the  appellant  filed  Writ  Petition

No.1116 of  2008 before  the  High  Court  for  a  mandamus

directing  respondents  to  regularise  his  services  w.e.f.  1st

July,  2003  on  the  post  of  Jeep  Driver  and  to  release

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consequential benefits in his favour including arrears due to

him.  The appellant’s case in the writ petition was that other

daily-wagers who were junior to him and appointed after the

year 1988 having been regularized in service, the appellant

could not merely because of an illegal order of termination

of  his  services  be deprived of  that  benefit.  The appellant

contended that the termination order having been set aside

by the Labour Court which order was affirmed by the High

Court with continuity of his service, there was no reason for

denial of benefits that would have flowed to him but for the

order  of  termination  especially  when  such  benefits  were

extended  to  other  similarly  situate  contemporaries  and

juniors of the appellant.  

5. The writ petition coming before the Single Judge Bench

of the High Court at Uttarakhand was dismissed by an order

dated 23rd May, 2011 on the authority of the decision of this

Court  in  Secretary,  State  of  Karnataka  and  Ors.  v.

Umadevi  (3) (2006) 4 SCC 1.   The High Court  at  the

same time allowed the appellant to move a representation

before the concerned authorities in the light of paragraph 53

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of  the decision  in  Umadevi  (3)  case (supra).   The High

Court observed that if there is a scheme of regularization the

claim  of  the  appellant  should  also  be  considered  in

accordance therewith.   

6. Dissatisfied  with  the  above  order,  the  appellant

preferred Special Appeal No.128 of 2011 which, as noticed

earlier, has been dismissed by the Division Bench of the High

Court. The High Court held that since there was no scheme

for regularization of daily-wagers and those named by the

appellant in the writ petition had been regularized by the

Uttar Pradesh Jal Nigam at a time when Uttarakhand Pey Jal

and  Nirman  Nigam was  not  in  existence,  nothing  further

could be done in the matter nor any relief granted to the

appellant.  The present appeal assails the correctness of the

said two judgments and orders of the High Court.

7. When the matter came up for hearing before this Court

on  8th July,  2013,  learned  counsel  for  the

respondent-Corporation  was  granted  time  to  take

instructions whether any scheme within the contemplation of

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para 53 of Umadevi (3) case (supra) had been formulated

by the respondent-Corporation and in case no such scheme

has been formulated, whether the Corporation is willing to

formulate one.  The matter again came up for hearing on

18th November,  2013.   It  was  argued  by  Ms.  Rachana

Srivastava,  counsel  appearing  for  the

respondent-Uttarakhand Pey Jal & Nirman Nigam that while

the  Nigam had  passed  a  resolution  adopting  the  scheme

formulated  by  the  State  Government  in  terms  of  the

directions of this Court in  Umadevi (3)  case (supra), the

Government’s approval for such an adoption had not so far

been received. She prayed for and was granted time to place

on record a copy of the Government scheme adopted by the

Nigam as  also  the  resolution  under  which  the  same was

adopted besides, a copy of the approval, if any, granted by

the Government to such adoption.  On 27th October, 2014,

when  the  matter  came-up  once  again  for  hearing,  our

attention  was drawn to  additional  documents filed  by the

appellant  from  which  it  appeared  that  the  persons  who

figured  at  serials  no.78  to  82  at  page  12  of  the  said

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additional  documents  had been  regularized  w.e.f.  1st July,

2003, although their entry into service was shown to be 6th

of June, 1989 onwards.  It was on that basis argued that

persons junior to the appellant having been regularized in

service, whereas the appellant could not have been deprived

of a similar benefit simply because his services were illegally

terminated. On behalf of the respondent-Jal Nigam it was,

on  the  other  hand,  argued  that  there  was  a  difference

between cases of persons appearing at serial nos.78 to 82

and  that  of  the  appellant  inasmuch  as  the  former  were

work-charged employees while the appellant was appointed

as a daily-wager. At the request of learned counsel for the

respondent-Nigam the matter was adjourned by four weeks

to  enable  the  Nigam  to  file  an  additional  affidavit  as  to

whether regularization had been ordered after undertaking

any screening/selection  process  and if  so,  on  what  terms

and conditions.

8. From  the  affidavit  filed,  in  compliance  with  the

directions  issued  by  this  Court,  it  appears  that  the

Government of Uttarakhand had framed Regularization Rules

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2011  for  regularization  of  daily-wagers  and  temporary

employees  who  had  been  appointed  on  or  before  1st

November, 2011 and had completed 10 years of continuous

service by that date. The said Rules were then adopted by

the Board of  respondent-Jal  Nigam in  terms of  resolution

passed  in  its  12th Meeting  and  approval  of  the  State

Government  for  implementation  of  the  said  Rules  in  the

Nigam  sought  under  Managing  Director’s  letter  dated  3rd

March,  2012  addressed  to  the  Principal  Secretary,  Peyjal

Nigam, Government of Uttarakhand. While the approval of

the Government was still awaited, the Government appears

to have framed fresh Regularisation Rules in supersession of

the  Rules  of  2011.  These  Rules  are  said  to  be  under

challenge before the High Court of Uttarakhand at Nanital in

which the High Court appears to have passed certain interim

orders also.  From the affidavits it is further evident that five

persons named by the appellant appearing at serials no.78

to 82 of the list of juniors have been regularized in service.

It is not in dispute that all these persons were appointed on

dates  subsequent  to  the  date  of  appointment  of  the

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appellant. The respondent, however, has attempted to justify

the regularization of juniors mentioned above on the ground

that they had been appointed in work-charge establishment

whereas the appellant herein was a daily-wager.  We asked

learned  counsel  for  the  respondent  as  to  whether

daily-wagers  on  the  basis  of  their  seniority  or  otherwise

were brought on to the work-charged establishment and if

there was no such practice or procedure followed, what was

the basis on which the department would decide whether the

person has to be engaged on a work-charged establishment

or as a daily-wager. We must regretfully say that we did not

get a satisfactory answer to that question nor does any of

the  several  affidavits  filed  in  these  proceedings  by  the

respondent-Jal  Nigam  point  out  a  qualitative  difference

between  daily-wager  on  the  one  hand  and  a  temporary

engagement on work-charged establishment on the other.  If

engagement  in  a  work-charged  establishment  rest  on  a

criterion,  no  better  than  the  absolute  discretion  of  the

authority engaging them or the fortuitous circumstances of a

vacancy  or  need  in  a  work-charged  establishment,  then,

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there is indeed no difference between a daily-wager on the

one  hand  and  work-charged  employees  on  the  other. No

distinction  can  resultantly  be  made  between  these  two

categories of employees for in essence, the nature of their

engagement remains the same except that in the case of

work-charged employees, the wages/emoluments appear to

be borne from out of the allocation for the project in which

they are employed while in the other case there is no such

specific  allocation  of  funds.   The  classification  of  work-

charged  and  other  employees  to  say  the  least  remains

wholly unsatisfactory at least for the purposes of the case in

hand leaving no option for us but to treat the case of the

daily-wagers  and  work-charge  employees  on  the  same

footing when it comes to granting regularization to them.

9. If  that  be  so,  there  is  no  denying  the  fact  that  the

persons  who  were  junior  to  the  appellant,  having  been

engaged much later  than him, steal  a march over him in

terms  of  regularization  in  service  while  the  appellant

remained embroiled in litigation over  what was eventually

found to be an illegal termination of his service. It is true

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that  the  appellant  has  already  superannuated.  That  does

not,  however, make any difference.   What is  important is

that  the appellant  had been appointed as early  as in  the

year 1988 and had by the time the decision of this Court in

Umadevi’s (3) case (supra) pronounced, already completed

more  than  10  years  service.  Government  has  formulated

rules for regularization of such daily-wagers, no matter the

same are the subject matter of a challenge before the High

Court.  What  is  noteworthy  is  that  neither  the  State

Government  nor  the  Jal  Nigam has  resented  the  idea  of

regularization of those who have served for over a decade.

The rules providing for regularization are a sufficient enough

indication  of  that  fact.  We  do  not,  therefore,  see  any

impediment in directing regularization of the service of the

appellant on the analogy of his juniors with effect from the

date his juniors were regularized and for the release of all

retiral benefits in his favour on that basis by treating him to

be in continuous service till the date of his superannuation.

We  make  it  clear  that  this  direction  will  not  entitle  the

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appellant  to  claim  any  amount  towards  arrears  of  salary

based on such regularization.  

10. In  the  result,  this  appeal  succeeds  and  is  hereby

allowed.  The orders passed by the High Court are set aside

and the writ  petition filed by the appellant disposed of in

terms of the directions contained hereinabove. The parties

are directed to bear their own costs.      

………………………………….…..…J.        (T.S. THAKUR)

     …………………………..……………...         (ADARSH KUMAR GOEL)

New Delhi May 15, 2015

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