FERDINO INACIO REBELLO,AMRESHWAR PRATAP SAHI,J. - (1.) THE appellants Nazim Ali and others aggrieved by the orders of their termination dated 18th July, 1992 while working on the post of Class IV employee in the Ayurvedik and Unani Services Uttar Pradesh filed the writ petition giving rise to the present appeal and the petition has been dismissed holding that the termination orders do not suffer from any infirmity. It has further been held that the appellants are not entitled to any benefits keeping in view the law laid down in the case of Secretary, State of Karnataka And others Vs. Umadevi And Others reported in (2006) Vol. 4 SCC Pg.1.
(2.) SRI Ashok Khare learned Senior Counsel contends that even applying the law as laid down in the case of Umadevi (supra) the appellants are still entitled for being considered to be engaged on regular basis in view of their long standing services and also in view of the following decision in the case of State of Karnataka and others Vs. M.L. Kesari and others, reported in JT 2010 (8) SC Pg. 96 decided on 3.8.2010 which is to the following effect: State of Karnataka and Ors. Vs. M.L. Kesari and Ors. Civil Appeal No. 6208 of 2010 (Arising out of SLP (C) No. 15774/2006) [From the judgment and Order dated 22.07.2004 of the High Court of Karnataka at Bangalore in W.A. Nos. 1641 to 1643 of 2003] R.V. Raveendran and H.L. Gokhale,JJ. Dt. 03.08.2010 "....................It is evident from the above that there is an exception to the general principles against 'regularization' enunciated in Umadevi, if the following conditions are fulfilled. (i) The employee concerned should have worked for 10 years or more in duly sanctioned post without the benefit or protection of the interim order of any court or tribunal. In other words, the State Government or its instrumentality should have employed the employee and continued him in service voluntarily and continuously for more than ten years. (ii) The appointment of such employees should not be illegal, even if irregular. Where the appointments are not made or continued against sanctioned posts or where the persons appointed do not possess the prescribed minimum qualifications, the appointments will be considered to be illegal. But where the person employed possessed the prescribed qualifications and was working against sanctioned posts, but had been selected without undergoing the process of open competitive selection, such appointments are considered to be irregular. Umadevi casts a duty upon the concerned Government or instrumentality, to take steps to regularize the services of those irregularly appointed employees who had served for more than ten years without the benefit or protection of any interim orders of courts or tribunals, as a onetime measure. Umadevi, directed that such one time measure must be set in motion within six months from the date of its decision (rendered on 10.4.2006). The term 'one-time measure' has to be understood in its proper perspective. This would normally mean that after the decision in Umadevi, each department or each instrumentality should undertake a one-time exercise and prepare a list of all casual, daily wage or adhoc employees who have been working for more than ten years without the intervention of courts and tribunals and subject them to a process verification as to whether they are working against vacant posts and possess the requisite qualification for the post and if so, regularize their services.
(3.) AT the end of six months from the date of decision in Umadevi, cases of several daily wage/ad hoc/casual employees were still pending before Courts. Consequently, several departments and instrumentalities did not commence the one-time regularization process. On the other hand, some Government departments or instrumentalities undertook the one0time exercise excluding several employees from consideration either on the ground that their cases were pending in courts or due to sheer oversight. In such circumstances, the employees who were entitled to be considered in terms of Para 53 of the decision in Umadevi, will not lose their right to be considered for regularization, merely because the one-time exercise was completed without considering their cases, or because the six month period mentioned in para 53 of Umadevi has expired. The one-time exercise should consider all daily wage/ad hoc/those employees who had put in 10 years of continuous service as on 10.4.2006 without availing the protection of any interim orders of courts or tribunals. If any employer had held the one-time exercise in terms of para 53 of Umadevi, but did not consider the cases of some employees who were entitled to the benefit of para 53 of Umadevi, the employer concerned should consider their cases also as a continuation of the one-time exercise. The one time exercise will be concluded only when all the employees who are entitled to be considered in terms of para 53 of Umadevi, are so considered.;