NEW
DELHI, JAN 10, 2007 : IN a
recent case, a question that came up before the Supreme Court was whether
the services of a casual worker can be regularized with retrospective effect,
that is, from the date of initial appointment. The respondent in this case
was working as a casual worker with CPWD with effect from 17/11/1982 and she
has been performing the job of noting down complaints at the enquiry offices/service
stations of C.P.W.D. She approached the Tribunal for regularization of her
service and the Tribunal vide its order dated 13.10.2000, allowed O.A. with
a direction to CPWD to consider her regularization within four months of the
receipt of the judgment. The services of the worker were regularized with effect
from 26/9/2001. However, the respondent filed Contempt Petition in the aforesaid
O.A. and alleged non-compliance of the Tribunal's order and judgment as the
services were not regularized with retrospective effect i.e. 17.11.1982 being
the date of her initial engagement as casual worker.
The Tribunal vide its order dated 11.1.2002 discharged the notice and dropped
the aforesaid Contempt Petition with a direction to the appellants to consider
respondent's case for grant of regularization w.e.f. the date of her initial
engagement i.e. 17.11.1982. In view of the aforesaid direction given to the
appellants by the Tribunal, the claim of the respondent was considered and
vide Office Memorandum dated 14.1.2003, the said claim for grant of regularization
with retrospective effect i.e. from the date of initial appointment being 17.11.1982
was rejected. Aggrieved by the said order, the respondent filed O.A. before
the Tribunal. The Tribunal allowed O.A. vide order dated 25.2.2004. Against
the said order, the appellants preferred C.W.P. before the High Court. The
High Court dismissed these writ petitions. Against the said order of the High
Court, the appellants filed the present appeal by way of special leave petitions
before Supreme Court.
After considering the rival submissions, the Supreme Court held:
The law is well settled on this issue. In State of Haryana vs. Jasmer Singh,
a three-Judge Bench of this Court held that the regularization of daily rated
workmen who had completed a certain number of years of service is a policy
matter to be decided by the State. This Court held that the respondents who
are employed on daily wages can not be treated on par with persons in regular
service of the State holding similar post. Daily rated workers are not required
to possess the qualifications prescribed for the regular work nor do they have
to fulfill the requirement relating to age at the time of recruitment. They
cannot, therefore, be equated with the regular workmen for the purposes of
their wages nor can they claim the minimum wage regular pay scale of the regularly
employed.
In Registrar General
of India & Anr. vs. V. Thippa Setty & Ors, the
Tribunal's direction was to regularize the respondents w.e.f. the date of promulgation
of the recruitment rules or from the date of their appointment depending on
the seniority list. In pursuance of the said direction, on the new recruitment
rules being promulgated on 11.5.1985, the regularization was given effect from
that date. However, in the subsequent order passed by the Tribunal on 19.2.1993,
the Tribunal has directed that they should be treated as having been conferred
regular status w.e.f. 5.2.1981 i.e. the date of their entry into service as
Investigators. This Court held that the employees had entered as ad hoc appointees
and the question was whether they should be regularized in service since they
had worked as ad hoc employees for a sufficient long time. If the ad hoc service
is regularized from the back date in this manner, it will disturb the seniority
of regularly appointed employees in the cadre and, therefore, ordinarily the
regularization must take effect prospectively and not retrospectively. This
Court ordered that care must be taken to see that regularization do not upset
the seniorities of regular appointees. Whether they qualify in a given case
or not is not relevant but what is relevant is that regularization should be
prospective and not retrospective as the chances of their upsetting the seniorities
cannot be overlooked.
Thus, the Supreme Court allowed the appeal and set aside the judgment passed
by the High Court.
(See
case law
2006-HRIOL-32-SC-SERVICE in 'Laws 4 U')
