JODHPUR VIDYUT VITRAN NIGAM LTD. AND ANR.versusNANU RAM AND ORS.

A              JODHPUR VIDYUT VITRAN NIGAM LTD. AND ANR.
                                            v.
                               NANU RAM AND ORS.

                                 NOVEMBER 24, 2006

B                 [DR. ARIJIT PASAYAT AND S.H. KAPADIA, JJ.]


          Service Law:

          Regularization- Respondents-workmen were engaged for temporary
C construction work on muster roll-They completed two years of service after
     31. 3.1982-They claimed regularization-On 26. 9.1983, Screening Committee
     constituted for considering regularization of casual workmen who had
     completed two years service prior to 31.3.1982- Since respondents had
    completed two years of service after 31. 3.1982, they were regularized on the
D   basis of recommendations of Screening Committee w.e.f 1.4.1989-Challenge
    against, on the ground of discrimination-Held, There was no question of
    discrimination of the present respondents with the case of the workmen who
    got regularized prior to 3.3.1982-Mere completion of two years was not the
    only criteria-For determining the eligibility for regularization, Screening
    Committee is required to examine the question as to how many workman
E   could be regularized, budget provisions, availability of posts number of
    muster roll workers engaged in the construction work without there being
    in existence vacant sanctioned posts, manner in which they were initially
    recruited with or without approval of management.

          Regularization and conferment ofpermanence in service jurisprudence-
F   Distinction between -Reiterated

          Pay scale-Question of grant of regular pay scale is directly linked to
    regularization.

          The facts pertaining to CA No. 254/2004 are that the respondents-
G workmen were engiJged for temporary construction work on muster roll on
    daily wage basis. They completed two years of service after 3 I.3.1982. On
    completion thereof, they claimed regularization in terms of Arbitration award
    dated 31.05.1978. In the said award it was stipulated that fixation in the regular
    pay scale for employees recruited on or after 1.4.1978 shall be regularized
H                                          544
                JODHPUR VIDYUT VITRAN NIGAM LTD:V NANU RAM                545

by recruitment policy to be detailed in the subsequent award, Second award A
was accordingly published on 15.06.1979 which stipulated that workman
engaged between 1.4.1979 and 30.6.1979 would be screened and if found
satisfactory, would be regularized. In terms of above two award~, the State
Government constituted Screening Committees from time to time. The above~.;
two awards stood terminated w.e.f. 29.6.1985.
                                                                                 B
      On 26.9.1983, a Screening Committee was constituted for considering
regularization of casual and daily rated workmen who had completed two years
service prior to 31.3.1982. Since respondents had completed t~o_years of
service after 31.3.1982, they were regularized on the basis o{
recommendations of Screening Committee w.e.f. 1.4.1989.
                                                                                 c
      The respondents sought regularization from the prior date i.e. 1.4.1982.
The dispute was referred to Industrial Tribunal. The Tribunal allowed the
claim of respondents on the ground that there was no reason to discriminate
workmen who had completed two years service by 31.3.1982 and those who
completed it by 31.3.1983. The High Court upheld the order ofTribtmal.           D
      In C.A. No. 1042/06 filed by the sole respondent, the High Court had
directed the management to treat the respondent as regularized w.e.f. 1.4.1983
subject to vacancies available for regularization. Respondent contended that
he had never asked for reguladziation and that he had only sought regular
pay scale w.e.f 1.4.1983.                                                      .E

     Allowing the appeals and remitting the matter for de novo consideration,
the Court

      HELD: (C.A. No. 254/04) 1.1. There is a vital distinction between·
regularization and conferment of permanence in service jurisprudence. The        p
word "regular" or "regularization" do not connote permanence. They cannot
be construed to convey an idea of the nature of tenure of appointments. They
are terms calculated to condone any procedural irregularities and are meant
to cure defects in the method of appointments. (550-B-Cl

     Secretary, State of Karnataka and Ors. v. Uma Devi (3) & Ors., [2006)       G
4 sec 1, relied on.

      1.2. Applying the above test to the facts of the present case, the
Screening Committee was required to examine the question as to how many
workmen could be regularized, keeping in mind the budget provisions,
availability of the posts, the number of muster roll workers engaged in the      H
    546                    SUPREME COURT REPORTS [2006] SUPP. 9 S.C.R. · _

A construction work without there being in existence vacant sanctioned posts,
    the manner in which these muster roll workers were initially recruited with
    or without the approval of the management and, thereafter, on the basis of
    eligibility the Screening Committee had to recommend their absorption in
    regular service. These aspects were required to be examined by the Screening
B   committee. Mere completion of two years was not the only criteria. Even in
    the Award dated 31.5.1978 read with Award dated 15.6.1979 the fixation in
    the regular pay scale was only for those employees who were recruited with
    the approval of the management and in accordance with law. Even under the
    Awards, as they then stood, the Screening Committee had to examine the
    performance of the workmen before granting them the regular pay scale.
C                                                                      [550-D-F)
           1.3. Granting of pay scale simpliciter is different from grant of
     permanency. While granting permanency, the State has to consider the number
     of posts falling vacant, those posts should exist as aud by way of regular
     vacancy, the financial burden of granting pe.rmanency and, therefore, the High
D   Court has failed to keep in mind the difference between the concept of grant
    of pay scale as distinct from grant of permanency. The State was not under
    an obligation to constitute Screening Committee at the end of each year.
     Constitution of the Screening Committee was within the di~cretion of the State
     Government dependant upon the above factors. Therefore, there was no ..
    question of comparing the case of the present respondents with the case of ·
E   the workmen who got regularized prior to 31.31982. Each exercise by the
    Screening C<?mmittee has to be seen in the light of the above factors. In a
    given exercise, the State may have sufficient number of vacant posts to
    accommodate certain number of workers. However, that may not be the case
    in the subsequent years. Therefore, there is no question ofany discrimination
    in the matter of regularization or in the matter of grant of permanency.
F                                                                [550-F-H; 551-A)

          2. (CA No. 1042/06) the argument ofrespondent that he had never asked
    for regularization and had only sought regular pay scale w.e.f. 1.4.19683 and
    therefore, this case stood on entirely different footing vis-a-vis the earlier
    case of 20 work charged employees had no merit. The grant of regular pay
G   scales was directly linked to the question of regularization. In the
    circumstances, the judgment delivered in CA No. 254/04 would apply to the
    facts of this case also. [553-B-CI
          CIVIL APPELLATE JURISDICTION: Civil Appeal No. 254of2004.

H         From the Judgment and Order dated 5-12-2002 of the High Court of
                 JODHPUR VIDYUT VITRAN NIGAM LTD. 1·. NANU RAM [KAPADIA, J.]           547

      Judicature for Rajasthan at Jodhpur in D.B. Civil Special Appeal No. 867/2002.           A
                                             WITH

            Civil Appeal No. 1042 of2006.

            Sushi! Kumar Jain, H.D. Thanvi, Puneet Jain, Sarad Singhania and Christi
                                                                                               B
      Jain for the Appellants.

           Bhupinder Yadav, R.C. Kohli, D. Bharat Kumar, M. Indrani, Abhijit
      Sengupta and S.V. Deshpande for the Respondents.
                                                                                               c
            The Judgment of the Court delivered by

            KAPADIA, J. Civil Appeal No. 254 of2004

             The distinction between regularisation and conferment of permanence               D
      in civil service arises for detennination in this civil appeal filed by the appellant-
      Jodhpur Vidyut Vitran Nigam Ltd. against decision dated 5.12.2002 delivered
      by the Division Bench of the High Court of Rajasthan in Civil Special Appeal
      (Writ) No. 867 of2002.

             Respondents l to 20 were engaged for temporary construction work in               E
      different divisions on muster roll around 21.4.1980 and on subsequent dates
      on daily wage basis. They completed two years of service after 31.3.1982.
      They claimed regularisation on completion of two years of service in terms
      of an Arbitration Award (Part I) dated 31.5.1978. Under para 15 of the said
      Award, it was stipulated that fixation in the regular pay scale for employees
      recruited on or after 1.4.1978 shall be regularised by the recruitment policy to         F
      be detailed in the Award to follow. On 15.6.1979 the second Award was
      accordingly published under which it was inter a/ia stipulated that workmen
      (work-charged) engaged between 1.4.1979 and 30.6.1979 have to be screened
      and if found satisfactory be classified as temporary work-charged and thereafter
      on rendering of satisfactory service for two years can be regularised m                  G
      accordance with Award dated 31.5.1978 from 1.4.1981 and so on.

             Relying on the two Awards, referred to above, on completion of two
      years the respondents herein claimed permanence. At this stage, it may be
      noted that, in terms of the above two Awards the State Government constituted
      Screening Committees from time to time. On 26.9.1983 the duly constituted                H
...
       548                     SUPREME COURT REPORTS [2006) SUPP. 9 S.C.R.

  A     Screening Committee was required to consider regularisation of casual and
        daily rated workmen, who had completed two years service prior to 31.3.1982.
        It needs to be reiterated that the respondents herein did not come in this
        categorization as they had not completed two years service on 3 l.3 .1982. As
        stated above, they completed their services only after 31.3.1982. Be that as
    B it may, the respondents herein claimed regularisation in terms of the above
        two. Awards on completion of two years service from the date of their
        appointment, which as stated hereinabove, was after 31.3.1982. The above
      :.tWo Awards stood terminated w.e.f. 29.6.1985. The matter had a chequered
     · history. Suffice it to state that the respondents herein have been regularised
,,.     on the basis of the recommendations of the Screening Committee w.e.f. 1.4.1989.
    C The respondents seek regularisation from the prior date i.e. on and from
        1.4.1982. On 6.9.1999 the State Government referred the dispute to the Industrial
        Tribunal. In the statement of claim respondents herein submitted that though
       they have been regularised w.e.f. 1.4.1989, like some of the other workmen
       they were also entitled to get regularisation w.e.f. 1.4.1982; that though they
       were entitled for this benefit from 1.4.1982, they have been regularising only
    D w.e.f. 1.4.1989 without any reason and justification; that workmen junior to
       them have been given this benefit w.e.f. 1.4.1982 and, in the circumstances,
       respondents herein prayed that all of them be granted permanent pay scale
       w.e.f. 1.4.1982 with interest at the rate of 18%.

           By way of written statement, the appellants herein pointed out, that the
  E
     respondents were engaged for temporary construction work in different
    divisions; that they were daily wage earners whose names appeared on
     muster roll; that they were not found eligible for regular pay scales by the
    Screening Committee on earlier occasions; that they did not comply with the
    eligibility criteria mentioned in Circular No. 1806 dated 26.9.1983; that vide
 F Circular No. 867 dated 29.6.1985 the earlier two Awards were terminated and,
    therefore, the respondents herein were not entitled to rely upon those Awards;
    that ultimately, the respondents have been regularised on 1.4.1989 after they
    were found eligible by the Screening Committee; that in the State, thousands
    of muster roll workmen were engaged in the construction work for whom there
    was no vacant ~sanctioned post and, therefore, against the supernumerary
 G posts the workmen had to be adjusted by giving regular pay scale and,
    therefore, it was not possible for the management to regularise all the workmen
  . with retrospective effect. In the written statement filed by the State before the
    Industrial Tribunal it was pointed out that the Screening Committee had to
    consider the financial burden of regularising thousands of muster roll workmen
  H
            JODHPUR VIDYUTVITRAN NIGAM LTD., .. NANU RAM [KAPADIA. J]         549

  with retrospective effect. In the written statement, it was further pointed out    A
  that, some of the muster roll workmen have been recruited without the approval
  of the management. All these considerations had to be kept in mind by the
  Screening Committee before granting regularization. In the circumstances, it
  was not possible for the State to appoint such committees at regular intervals.

         By the impugned Award dated 24.8.2000 passed by the Industrial Tribunal,    B
  the claim of the respondents workmen was accepted for the following reasons.

        According to the Industrial Tribunal, when the workers in the past were
 given the benefit of regularization on completion of two years continuous
 service as on 31.3.1982 then there was no reason to discriminate workmen            C
 who completed two years continuous service or. and after 31.3 .1982. According
 to the Industrial Tribunal, the above two Awards stood tenninated in the year
  1985 whereas respondents 1 to 20 herein completed two years service in April,
  1982 and, therefore, there was no reason to deny the benefit of the pay scale
 to these respondents who completed two years service in April, 1982. This,
 according to the Tribunal, was discriminatory. According to the Industrial          D
 Tribunal, the State Government had discriminated between workmen who
 completed two years service by 31.3 .1982 and those who completed two years
 service by 31.3.1983. According to the Industrial Tribunal, the above two
 Awards were in existence even on 31.3.1983 and, therefore, there was no
 reason to discriminate workmen who had completed two years service by               E
 31.3 .1982 on one hand and those who completed two years service by
 31.3.1983. For the above reasons, the Industrial Tribunal came to the conclusion
 that the respondents herein cannot be deprived of their legal rights.

          The Award of the Industrial Tribunal was challenged by the appellants
   in the High Court by filing Writ Petition No. 1060/01. The learned Single Judge   F
   upheld the Award vide judgment dated 7.8.2002. Aggrieved by the said
  judgment, the appellants herein moved in Civil Special Appeal No. 867/02. By
   the impugned judgment it was held that regularisation cannot be made
  dependant upon fo1tuitous circumstances, i.e., the date on which the Screening
  Committee was constituted. According to the impugned judgment, the                 G
  respondents workmen had completed two years service by 1.4.1983 and on
  that date they had acquired their eligibility. According to the impugned
  judgment, the eligibility of the workmen was two years of continuous service;
· that the Screening Committee may meet at any time but once the workmen are
  found to be suitable, their regularisation has to relate back to 1.4.1983 and,     H
   in the circumstances, the respondents herein were entitled to regularisation
    550                     SUPREME COURT REPORTS [2006] SUPP. 9 S.C.R.

A from the date when they became eligible for regularization. This civil appeal
    is filed against the impugned decision of the High Court dated 5.12.2002.

          At the outset, we may state that, as held by this Court in the case of
    Secretary, State of Karnataka and Ors. v. Umadevi (3) & Ors., [2006] 4 SCC
    I, there is a vital distinction between regularisation and conferment of
B   permanence in service jurisprudence. The word "regular" or "regularisation"
    do not connote permanence. They cannot be construed to convey an idea of
    the nature of tenure of appointments. They are terms calculated to condone
    any procedural irregularities and are meant to cure defects in the method of
    appointments. It has been held in the above judgment that it is a misconception
C   to equate regularisation with permanence. (See para 15).

           Applying the above test to the facts of the present case, the Screening
     Committee was required to examine the question as to how many workmen
     could be regularised, keeping in mind the budget provisions, availability of
     the posts, the number of muster roll workers engaged in the construction
D    work without their being in existence vacant sanctioned posts, the manner in
     which these muster roll workers were initially recruited with or without the
    .approval of the management and, thereafter, on the basis of eligibility the
     Screening Committee had to recommend their absorption in regular service .. ·
     These aspects were required to be examined by the Screening Committee.
E    Mere completion of two years was not the only criteria. Even in the Award
     dated 3 I.5.1978 read with Award dated 15.6.1979 the fixation in the regular pay
     scale was only for those employees. who were recruited with the approval of
    the management and in accordance with law. Even under the Awards, as they
    then stood, the Screening Committee had to examine the performance of the
F    workmen before granting them the regular pay scale. Granting of pay scale
     simpliciter is different from grant of permanency. While granting permanency,
    the State has to consider the number of posts falling vacant, those posts
     should exist as and by way of regular vacancy, the financial burden of
    granting permanency and, therefore, in our view, the High Court has failed to
     keep in mind the difference between the concept of grant of pay scale as
G    distinct from grant of permanency. The State was not under an obligation to
     constitute Screening Committee at the end of each year. Constitution of the
     Screening Committee was within the discretion of the State Government
     dependant upon the above factors. Therefore, there was no question of
     comparing the case of the present respondents with the case of the workmen
H    who got regularised prior to 31.3.1982. Each exercise by the Screening
          JODHPUR VIDYUT VITRANNIGAM LTD. v NANU RAM [KAPADIA,J.]          551

Committee has to be seen in the light of the above factors. In a given exercise,   A
the State may have sufficient number of vacant posts to accommodate certain
number of workers. However, that may not be the case in the subsequent
years. Therefore, there is no question of any discrimination in the matter of
regularisation or in the matter of grant of permanency.

      In the circumstances, we set aside the impugned judgment of the Division     B
Bench dated 5. 12.2002 in Civil Special Appeal (Writ) No. 867/02 and remit the
matter for de nova consideration in the light of the judgment of this Court
in Umadevi case (supra).

     Accordingly, the civil appeal stands allowed to the aforesaid extent with     C
no order as to costs.

      Civil. Appeal No. 1042 of 2006:

      This matter is a sequel to our decision in above Civil Appeal No. 254/
04, therefore, we are not required to reiterate the facts of the case in detail D
once again. Suffice it to state that the sole respondent-Karam Singh was
appointed as a daily rate worker on muster roll basis w.e.f. 26.5. I 980. He
completed two years' service after 3 I.3. I 982. On 26.8. I 983 the Screening
Committee, appointed by the State Government met to consider the cases of
workmen, who had completed two years service as on 26.9.1983. It recommended
names for regularisation on the basis of their seniority and keeping in mind E
the budget provisions. After the meeting of the Screening Committee in 1983,
there was no post available with the management. This was on account of
financial constraints. However, on 5.6.1989 the duly constituted Screening
Committee recommended the names of the workmen, including the respondent,
for regularisation and grant of regular pay scale w.e.f. 1.4.1989. These p
recommendations were accepted by the Board of Directors after taking into
consideration the financial condition of the Nigam. Thus, the respondent
herein was granted regular pay scale from 1.4.1989. After accepting the regular
pay scale, the respondent moved the High Court by way of writ petition. This
writ petition was dismissed. The respondent was asked to approach the
Industrial Tribunal. He approached the Industrial Tribunal by way of Reference G
Case No. 20197.

      Before the Industrial Tribunal, the respondent asked for regular pay
scale from 1.4.1983, although he was regularised from 1.4.1989. In reply, the
management pointed out that since the respondent was regularised w.e.f.            H
    552                    SUPREME COURT REPORTS [2006] SUPP. 9 S.C.R.

A   1.4.1989 he was not entitled to claim regular pay scale from 1.4.1983. It was
    further pointed out that the respondent was interviewed by the Screening
    Committee constituted on 2.3.1989 and that committee had granted
    regularisation to the respondent keeping in mind the above factors including
    existence of vacancies as also the budgetary provisions.

B         By Award dated 18.11.1999 the Industrial Tribunal took the view that
    since the respondent had completed two years of continuous service· by
    31.3.1983 and since he was found suitable by the Screening Committee the
    respondent stood regularised w.e.f. 1.4.1983 and, therefore, he was entitled to
    regular pay scale on and from 1.4.1983. Aggrieved by the Award, the
C   management moved the High Court by way of Civil Writ Petition No. 699/
    2000-2001. By judgment dated 2.7.2001, the learned Single Judge dismissed
    the writ petition stating that there was no illegality or error apparent on the
    face of the Award. Hence, the writ petition stood dismissed. Aggrieved by
    the decision of the learned Single Judge, the management preferred Civil
    Special Appeal (Writ) No. 876/01 to the Division Bench of the High Court
D   which, as stated above, came to the conclusion, vide judgment dated
    22.11.200 I, that the respondent herein had completed two years on 31.3.1983;
    that the committee have not screened the cases within reasonable time for
    which the claim of the workman cannot be defeated; that the management had
    approved the recommendations of the Select Committee belatedly for which
E   the claim of the workman cannot be defeated and, in the circumstances, the
    Division Bench directed the management to treat the respondent herein as
    regularised w.e.f. l .4.1983. However, it was clarified that the service of the
    respondent can be regularised only against the vacancies available for
    regularisation and if the vacancy is available on 1.4.1983 only then the
    respondent should be made regular in service with effect from that date.
F
           The respondent, however, moved Civil Misc. Review Application No.
    53/03 in the said Civil Special Appeal (Writ) No. 876/01. In the review petition,
    the respondent submitted that he had not asked for regularisation before the
    Industrial Tribunal; that the Industrial Tribunal had granted him the regular
    pay scale and not regularisation w.e.f. 1.4.1983 and, therefore, the Division
G   Bench of the High Court had erred in directing the management to regul,arise
    the services of the respondent herein on and from 1.4.1983. In the review
    petition, the respondent herein contended that there was no question of
    regularising his service w.e.f. 1.4.1983 only against vacancies available for
    regularisation since he had not asked for such a relief. This review application
H   came before the Division Bench which passed a cryptic impugned order
           JODHPUR VIDYUT VITRANNIGAM LTD. v. NANU RAM [KAPADIA,J.]           553
stating that instead of regularisation of service the respondent workman shall        A
be entitled to regular pay scale from l.4.1983. Aggrieved by the aforesaid
order of the Division Bench dated 1.5.2003 read with the clarification dated
20.9.2005, Rajasthan Rajya Vidyut Utpadan Nigam Ltd. ("Nigam") h<ts come
to this Court by way of the civil appeal.

      Shri Deshpande, learned counsel appearing for the responde~t herein,            B
submitted, that the respondent had never asked for regularisation; that he had
only sought regular pay scale w.e.f. l.4.1983 and, therefore, this case stood
on entirely different footing vis-a-vis the earlier case of twenty work-charged
employees. Learned counsel, therefore, submitted that the judgment delivered
by this Court in Civil Appeal No. 254/04 (supra) should not be made applicable        C
to the present case.

      We do not find any merit in this argument. The grant of regular pay
scales was directly linked to the question of regularisation. In the circumstances,
the judgment delivered by us in Civil Appeal No. 254/04 (supra) would apply
to the facts of the present case also.                                                D
      Accordingly, we set aside the impugned judgment dated l .5.2003
delivered by the Division Bench in Civil Special Appeal (Writ) No. 876/01 and
Order dated 20.9.2005 it1 Civil Misc. Review Application No. 53/03 and remit
this matter also to the Division Bench of the High Court for de nova
consideration in the light of the law laid down by us in Civil Appeal No. 254/
04 (supra). The appeal stands allowed with no order as to costs.

D.G.                                                            Appeal allowed.