Augustine George Masih, J.@mdashPetitioners were appointed as Beldar-cum-Malis on daily wage basis in the Forest Department between the
years 1982-1996. Their services were terminated in violation of the Industrial Disputes Act, 1947 (hereinafter referred to as the ID Act), against
which they raised an industrial dispute. The Labour Court found the termination to be not in accordance with law and declared it to be null and
void thereby ordering their reinstatement in service with continuity thereof. These awards were not challenged by the respondents and the
petitioners were reinstated in service on different dates depending upon the date of the award.
They, on the basis of the reinstatement, approached the respondents for regularization of their services from the date persons junior to them stood
regularized and also claimed regularization on the basis of the observations made in para 53 by the Supreme Court in its judgment passed in the
case of State of Karnataka v. Uma Devi 2006 (109) FLR 826 (SC) as they had completed more than 10 years of service on the date of the
passing of the judgment by the Supreme Court and also on the ground that persons junior to them stood regularized in pursuance to the directions
issued by the Supreme Court referred to above vide order dated 14.10.2006 according to which Jai Bhagwan, Bijender, Pirthavi, Shamsher, Zela
@ Zile, Suresh and Mohinder, who were working in the Bhiwani Territorial Division where the petitioners are also performing their duties. It has
further been submitted that these persons whose services have been regularized were petitioners along with the present petitioners in CWP No.
8820 of 2004 and the respondent-Authorities adopted a pick and choose policy while considering the claims for regularization of the services
which amounted to gross-violation of Articles 14 and 16 of the Constitution of India.
When this occurred, petitioners filed a representation claiming the benefit of regularization and when no response was received, petitioners filed
CWP No. 9921 of 2010 which was disposed of by this Court vide order dated 26.5.2010 directing the respondents to consider the claim of the
petitioners for regularization in the light of observations made in para 53 of the judgment passed in Uma Devi''s case (supra), within a period of six
months. The claim of the petitioners was considered and rejected vide order dated 25.8.2010 by the Divisional Forest Officer on the ground that
the petitioners were neither engaged against sanctioned post nor any advertisement was issued before they were employed. Their appointment is
for a specific period i.e. on daily wage basis and that there are no Rules under which appointment/employment can be made of a workman on daily
wage basis. This order dated 25.8.2010 (Annexure P-5) has been challenged by the petitioners through the present writ petition claiming the same
to be not in consonance with the judgment passed by the Supreme Court and being violative of Articles 14 and 16 of the Constitution of India.
Reliance has also been placed on the interpretation given by the Supreme Court to para 53 of the judgment passed in Uma Devi''s case (supra) in
case State of Karnataka and others v. M.L. Kesari and others. 2010 (127) FLR 12(SC) Petitioners have further placed reliance upon a judgment
of this Court passed in CWP No. 1169 of 2009 titled as Ved Pal and others v. State of Haryana and others, decided on 10.2.2012.
2. Counsel for the petitioners has argued the case on the above lines and has submitted that the present writ petition deserves to be allowed.
3. On the other hand, Counsel for the respondents submits that the regularization policies under which the petitioners are claiming regularization of
their services stand already withdrawn by the State of Haryana after the passing of judgment by the Supreme Court in Uma Devi''s case (supra).
His contention is that the petitioners are not entitled to the benefit of regularization on the ground that they were neither appointed as per the
Statutory Rules governing the service nor were they appointed on sanctioned posts. Petitioners are daily wage labourers who are engaged on
seasonal work. There being no specific Rule(s) governing the engagement/appointment of labourers on daily wage basis, their services cannot be
regularized. For appointment to a Government post, it is mandatory that the said post be advertised first giving a chance to all those to compete for
the post and it is only thereafter that the post can be filled up. Such a procedure was not followed while appointing the petitioners which disentitles
them to the claim for regularization. An order of regularization passed in violation of these provisions would not be in consonance with the judgment
of the Supreme Court in Uma Devi''s case (supra). Reliance has also been placed upon a judgment of the Supreme Court in the case of State of
Karnataka and Others Vs. Sri G.V. Chandrashekar, to contend that the appointments of the petitioners being violative of the provisions of the
Constitution of India, cannot be sustained and, therefore, benefit of regularization cannot be extended to them. Accordingly, supporting the
impugned order of rejection of the claim of the petitioners for regularization, Counsel contends that the writ petition deserves to be dismissed.
4. I have considered the submissions made by the Counsel for the parties and gone through the records of the case.
5. It is an admitted position that there are no statutory rules governing the process of appointment on daily wage basis. Petitioners are admittedly
performing the duties with the respondents as daily wage employees. The date of initial appointment has only been disputed on the ground by
asserting that they were daily wage employees and, therefore, cannot claim regularization. Services of the petitioners were terminated by the
respondents which was in violation of the provisions as contained under the ID Act which was challenged by the petitioners before the Labour
Court and the award came in their favour granting them reinstatement in service with continuity thereof. The period of termination, thus, stood
obliterated and for all intents and purposes, petitioners are to be treated in service continuously from the date of their initial appointment. In this
light when the claim of the petitioners is taken into consideration vis-a-vis. the persons who have been appointed subsequently and whose services
had been regularized vide order dated 14.10.2006 (details of these persons have been mentioned above), petitioners have a genuine grouse. It is
not in dispute that if the initial date of appointment is taken into consideration, petitioners were appointed prior to the persons who have been
regularized vide order dated 14.10.2006. It would also not be out of place to mention here that petitioners and the persons regularized vide order
dated 14.10.2006 had jointly filed CWP No. 8820 of 2004 claiming regularization which claim has been accepted qua some of the petitioners
whose names have been mentioned in the order dated 14.10.2006 and are juniors to the petitioners now, whereas the claim of the petitioners had
been rejected. The impugned order passed by the respondents cannot sustain for the reason that the service of the daily rated employees who
were similarly placed and were similarly appointed as the petitioners i.e. whose names, find mention in order dated 14.10.2006 has not been
disputed by the respondents in their reply. It is also not in dispute that there are no statutory rules governing their service and in the absence of such
a statutory rule, the principle as laid down under the ID Act will have to be given effect to according to the awards passed by the Labour Court in
the case of the petitioners and their termination have been found to be not in accordance with law.
6. In the light of the above, the contention of the respondents that the petitioners'' services cannot be regularized, cannot sustain especially when
they have not disputed the fact that the petitioners are similarly placed like the persons who have been appointed subsequently and whose services
have been regularized vide order dated 14.10.2006.
7. In a similar matter, this Court in Ved Pal''s case (supra) had held as follows:
The factum of the petitioners having been appointed prior to the private respondents is not in dispute. It is also not in dispute that they are
performing the same duties and the responsibilities are the same as also the department. It is also not in dispute that the claim of the petitioners in
compliance with the direction issued by this Court in CWP No. 6341 of 2005 was duly considered and recommended for regularization but their
claim has been rejected simply because of the judgment of the Supreme Court in lima Devi''s case (supra). The fact remains that the petitioners
remained senior to the private respondents and therefore, had a prior right of regularization and their claim should have been considered in the
same terms as in the case of private respondents. The same having not been done, the petitioners have been discriminated against and, therefore,
the order rejecting the claim of the petitioners dated 7.5.2007 (Annexure P/5) cannot sustain and is hereby quashed. The petitioners are directed
to be regularized in service from the date their juniors were regularized and in the same terms. Petition is allowed in the above terms.
8. The claim of the petitioners is further fortified by the observations made by the Hon''ble Supreme Court in M.L. Kesari''s case (supra) wherein
para 8, it has been observed as follows :
8. The object behind the said direction in para 53 of Uma Devi is two-fold. First is to ensure that those, who have put in more than ten years of
continuous service without the protection of any interim orders of Court or Tribunals, before the date of decision in Uma Devi was rendered, are
considered for regularization in view of their long service. Second is to ensure that the departments/instrumentalities do not perpetuate the practice
of employing persons on daily wage/ad hoc/casual for long periods and then periodically regularize them on ground that they have served for more
than ten years, thereby defeating the constitutional or statutory provisions relating to recruitment and appointment. The true effect of the direction is
that all persons who have worked for more than ten years as on 10.4.2006 (the date of decision in Uma Devi) without the protection of any interim
order of any Court or Tribunal, in vacant posts, possessing the requisite qualification, are entitled to be considered for regularization. The fact that
the employer has not undertaken such exercise of regularization within six months of the decision in Umadevi or that such exercise was undertaken
only in regard to a limited few, will not disentitle such employees, the right to be considered for regularization in terms of the above directions in
Umadevi as a one-time measure.
9. In view of the above also, especially in the light of the fact that persons similarly appointed subsequent to the petitioners have been regularized
whereas the claim of the petitioners has only been rejected on the ground that the regularization policy stands withdrawn, cannot be accepted as
they had a better and prior right to consideration for regularization than the persons who have been appointed later than the petitioners. The
moment the persons junior to the petitioners, whose cases cannot be distinguished with regard to the nature of appointment, work and
responsibilities from that of petitioners, stand regularized on the vacant or created post, on which the petitioners had a prior and superior right by
virtue of their length of service. Articles 14 and 16 stand violated and in such circumstances, the action of the respondents in rejecting the claim of
the petitioners cannot be sustained.
10. Reliance placed by the Counsel for the respondents in G. V. Chandershekar''s case (supra) would not affect the decision of this case as there
are no statutory rules governing the service and in the absence of such rules, the provisions as contained under the ID Act would apply which
would be further tapered with the observations of the Supreme Court in para 53 of the Uma Devi''s case (supra) and M.L. Kesari''s case (supra).
In view of the above, impugned order dated 25.8.2010 (Annexure 5) is hereby quashed. A direction is issued to regularize the services of the (sic)
from the date of regularization of the persons mentioned in order dated 14.10.2006, who were appointed subsequent to them and are junior to the
petitioners in the light of length of service rendered by them in the department. The order be passed within a period of one month from the date of
receipt of certified copy of this order. Petitioners will be entitled to all consequential benefits except payment of arrears.
Writ petition is allowed in above terms.