C.A. NO. 7260/2016 @ SLP(C) No. 3159/2015

1. 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.

2. The Appellant is a Union of employees who are described as "Class IV employees".

3. It is the case of the Appellant that the members of the 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).

4. 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 Court, it was represented that the dispute had been settled out of court and the terms of settlement were reduced to writing. In the light of said settlement, the High Court in its order dated 28.1.2003 in Civil Writ Petition No. 4261/1999 directed as follows:

(1) As per condition No. 4 of the conditions of Tender, it would be incumbent upon the contractor (New Contractor) to continue with the services of the existing employees (Petitioners) upon the award of the contract to him subject to their being verified and subject also to verification of their suitability.

(2) In the event of the Government making regular selections for the vacant posts of Farrash/Sweeper/Class IV/Helper etc. the Petitioners shall be given weightage as well as relaxation in the eligibility condition keeping in view their long duration of past services-subject to their satisfactory performance.

(3) Subject to the giving of weightage and relaxation in the eligibility condition, the 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 before the Government requesting it to grant benefit of Circular No. F.1(5)FD/Rules/2002 dated 13.01.2003 to them the same shall be considered by the Government within a reasonable period of time. Any decision taken by the Government on the applications or representations of the Petitioners shall be binding on the contractor(s).

Both the parties have agreed to the passing of the aforesaid directions.

5. On 8.4.2004, the first Respondent issued an advertisement inviting tender from contractors for the supply of Class IV employees for the Secretariat of the first Respondent. Once again the Appellant Union approached the High Court by 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.

6. On 15.1.2011 another advertisement was issued by the first Respondent inviting applications from eligible candidates for appointment to 289 posts of Class IV employees. 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.

7. The members of the Appellant Union were called for an interview pursuant to the above mentioned recruitment process initiated by the first Respondent. In view of the long pendency of writ petition No. 3235/2004 and the subsequent developments, the Appellant Union filed a S.B. Civil Miscellaneous Application No. 22845 of 2014 in the above mentioned writ petition with a prayer:

It is, therefore, prayed that the application filed by the Petitioner may be allowed and Respondents may be directed to declare the result 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.
8. In view of the said situation, the recruitment process which is the subject matter of the instant litigation was not being finalised.

9. 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 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 Rajasthan High Court in Writ Petition No. 4144/2013 etc. 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 the matter to this Court by way of special leave to appeal1.

10. In the background of the above mentioned reply affidavit of the State, the learned Single Judge of the Rajasthan High Court allowed the Writ Petition No. 3235/2004 and batch and disposed of Application No. 22845/2014 referred to supra. The operative portion of the judgment reads as follows:

In view of the above, present writ petitions succeed and are allowed. The Respondents are directed to declare 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.

11. In substance, the learned Single Judge directed the first Respondent to declare the result of the recruitment process in issue after giving appropriate bonus marks to the members of the Appellant union and give appointment orders to the selected candidates.

12. Interestingly, the first Respondent preferred an appeal against the above mentioned judgment. The Division Bench by the judgment under appeal allowed the writ appeals. The operative portion:

15. Be that as it may, the question of weightage in regular selections in accordance with law, may also depend upon statutory Rules. We may also observe here, that the settlement could not enforced, in view of the conclusive judgment of the Honble Supreme Court in Secretary, State of Karnataka v. Uma Devi (supra)

15. In view of the above discussion, the direction issued by learned Single Judge cannot be sustained.

17. The Special Appeals are allowed. The judgment of learned Single Judge is set aside.

Hence the present appeal.

13. 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 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 v. 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. A logic which is rather difficult to understand.

14. The only submission made on behalf of the Respondent is that in view of the judgment of this Court in Uma Devis case, the service of the members of the Appellant Union could not be regularised and the members of the Appellant Union could only be employed by the State in accordance with the rules [as held by this Court in Uma Devis case (supra)]. Therefore, the judgment under appeal calls for no intervention.

15. Whatever is the prayer in the Writ Petition No. 3235/20042 the fact remains that the members of the Appellant Union are not seeking regularisation of their prior service. 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 un-rebutted 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 process has not reached its logical conclusion.

16. 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 the past service is not only a part of the agreed judicial order dated 28.1.2011 which is admittedly not inconsistent with the policy of the first Respondent. The first Respondent did provide such weightage w.r.t. Panchayat Raj department.

17. We do not see any error in the directions given by the learned Single Judge and we are of the opinion that Division Bench is clearly in error in interfering with the said direction.

18. Inspite of a pointed question, the learned Counsel for the first Respondent could not point out anything in Uma Devis judgment which either dealt with or prohibited the State from giving weightage for the service rendered by employees where services were used by the State either temporarily or on ad hoc 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.

19. 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 (ad hoc or temporary).

.....In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularise as a one-time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularisation, if any already made, but not sub-judice, need not be repined based on this judgment, but there should be no further bypassing of the constitutional requirement and regularising or making permanent, those not duly appointed as per the constitutional scheme.3
20. We are of the opinion that the Division Bench was in error in coming to the conclusion that in view of Uma Devis judgment, the settlement recorded by the High Court in its order dated 28.1.2003 become unenforceable. We do not see any basis in law for such a conclusion. Uma Devi (supra) only dealt with in relation to the execution and regularisation of temporary and ad hoc service without any reference to any law. Uma Devi never dealt with a validity of the judicial order which had attained finality.

21. 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 Respondent agreed, in principle, to give to similarly situated persons working with other departments. The members of the Appellant Union have been working with the first Respondent for long periods (period varying from person to person). Whether such employment was regular or irregular in law, is a different matter. The fact remains that, their services were used by the first Respondent.

22. 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.

23. The appeal is allowed with costs quantified at ` 2.5 lakhs (Rupees Two Lakhs Fifty Thousand). The impugned order of the High Court is set aside.

24. Applications (I.A. No. 2 & 3) for impleadment are dismissed.

C.A. No(s). 7261-7262/2016 @ SLP(C) No.(s) 3778-3779/2015

25. 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.