Delhi High Court
D.T.C vs Shamsher Singh on 28 July, 2026
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on:20th April, 2026
Date of Decision: 28th July, 2026
Uploaded on: 28th July, 2026
+ W.P.(C) 530/2006
D.T.C. .....Petitioner
Through: Ms. Manisha Tyagi, Mr. Ankur
Gupta, Advs.
versus
SHAMSHER SINGH .....Respondent
Through: Mr.Anil Mittal, Mr. Atul Chauhan,
Advs.
CORAM:
HON'BLE MS. JUSTICE SHAIL JAIN
JUDGMENT
SHAIL JAIN, J.
1. The present Petition has been instituted under Article 226 of the
Constitution of India assailing the Award dated 02nd February, 2005, passed
by the learned Presiding Officer, Industrial Tribunal-III, Karkardooma
Courts, Delhi, in Industrial Dispute (I.D.) No. 28/04. By the impugned
Award, the learned Tribunal held that the Respondent/Workman was
entitled to regularisation with effect from his initial date of appointment, i.e.,
02nd March, 1982, along with all consequential service benefits. Aggrieved
by the said Award, the Petitioner/Delhi Transport Corporation (DTC) has
preferred the present Petition.
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BRIEF FACTS
2. The brief factual background leading to the filing of the present
Petition is set out hereunder.
a. The Petitioner-Corporation is a statutory body constituted under
the provisions of the Road Transport Corporations Act, 1950 and is
governed by its own Rules and Regulations, which, according to the
Petitioner, possess statutory force by virtue of the Delhi Road
Transport Laws (Amendment) Act, 1971.
b. The Respondent-Workman, Shri Shamsher Singh, was
appointed as a Retainer Crew Driver on 02nd March, 1982, on a daily
wage basis of Rs. 40.15/- (Rupees Forty and Fifteen paise only) per
month. The service conditions governing Retainer Crew Drivers
contemplated their absorption into the monthly-rated temporary
establishment of Drivers and Conductors on the basis of merit,
seniority, conduct, performance and availability of vacancies. The
said conditions further provided that their services could be
dispensed with without notice and without assigning any reason.
c. On 06th July, 1983, the services of the Respondent were
dispensed with on account of his alleged involvement in a fatal
accident during the course of duty. Aggrieved thereby, the
Respondent raised an industrial dispute, which was referred for
adjudication by the Government of NCT of Delhi in the year 1985.
By an Award dated 01st March, 1999, passed in I.D. No. 141/85, the
learned Industrial Tribunal directed the reinstatement of the
Respondent with continuity of service and 50% back wages.
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d. The Petitioner challenged the said Award by way of W.P.(C)
No. 9865 of 1999/2000 before this Court. The said writ petition was
dismissed vide Order dated 31st January 2001. Pursuant thereto, the
Respondent was re-engaged as a Retainer Crew Driver on a daily
wage basis vide letter dated 18th March, 2002 and was also paid 50%
back wages in compliance with the aforesaid Award.
e. Thereafter, through his Union, the Respondent raised a further
industrial dispute seeking regularisation on the post of Driver with
effect from 01st June, 1982. Upon failure of conciliation proceedings,
the Secretary (Labour), Government of NCT of Delhi, referred the
following dispute for adjudication vide order dated 22nd January,
2004:
“Whether the demand of Shri Shamsher Singh for
regularisation on the post of Driver with effect from
01.06.1982 was legal and justified and, if so, to what
directions were necessary in this respect.”
f. During the pendency of the proceedings, the Respondent was
placed on the monthly rates of pay with effect from 01st June, 2004,
along with other Retainer Crew Drivers.
g. Before the learned Tribunal, the Respondent sought
regularisation on the post of Driver with effect from 01st June, 1982,
along with all consequential benefits, including arrears and
difference of wages, promotional benefits, and other monetary as
well as non-monetary entitlements. The Petitioner opposed the
claim, contending, inter alia, that the claim was devoid of any cause
of action, that the Respondent had suppressed material facts, that his
services had been dispensed with in 1983 following a fatal accident,
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and that the earlier Award merely granted reinstatement with
continuity of service and 50% back wages without conferring any
right to regularisation.
h. The Petitioner further pleaded that the Respondent’s leave
record reflected 93 days of Leave Without Pay between 01st June
2004 and 31st May 2005, and the Respondent’s probation period as a
Retainer Crew Driver was extended up to 31st May, 2005.
i. Upon consideration of the material placed on record, including
the affidavit of Shri K.D. Sobti (Depot Manager of the Petitioner),
the learned Industrial Tribunal passed the impugned Award dated
02nd February, 2005 in I.D. No. 28/04, holding that the Respondent
was entitled to regularisation with effect from the date of his initial
appointment, i.e., 02nd March, 1982, along with all consequential
benefits.
“10. However, the perusal of the affidavit does not show as
to how the workman is not entitled to be regularized w.e.f.
from the date of his initial appointment despite order of
Labour Court in his favour as given in I.D. No. 141/05. It is
no justification as to why he was not regularized find
eligible from the date of his initial appointment and has
been only regularized from 1.6.2004, even though his
juniors were regularized from the date of their initial
appointment.
11. Under these circumstances, when the workman/claimant
has to be treated in continuous service of the management
w.e.f. date of his initial appointment i.e. 2.3.82 and has also
been granted the benefit of continuity of service by the
award given by Shri G.P. Mittal, PO IT-III: Tis Hazari
Courts, Delhi, in I.D. No. 141/05, the management cannot
discriminate this workman which his juniors in the absenceSignature Not Verified
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of any other relevant material which has not been brought
on court record to justify such discrimination.
12. I have no hesitation but to hold that the workman is
entitled to be regularized w.e.f. the date of his initial
appointment i.e. 2.3.82 in view of an award given in his
favour in I.D. No. 141/05 as mentioned in the affidavit of
Shri K.D. Sobti filed today. Thus, the reference made to this
tribunal vide order No. 24(4019)/2003, Lab. 732-36 dated
23.1.2004, is answered in favour of the workman. It is
directed that the regularization of the workman would be
considered from the date of initial appointment and would
be provided with all consequential benefits.”
j. Aggrieved by the aforesaid Award, the Petitioner has preferred
the present Writ Petition seeking, inter alia, the following reliefs:
“i. Issue a writ in the nature of certiorari quashing the
impugned Award dated 2.2.2005 in I.D. No. 28/04 passed by
Sh. M. C. Garg, Presiding Officer, Industrial Tribunal No.
III, Karkardooma, Delhi; And/Or
ii. Pass such order or orders as your lordship may fit and
proper in the interest of justice.”
k. It may be noted that, during the pendency of the present
proceedings, this Court, vide Order dated 27th August, 2006, stayed
the operation of the impugned Award. Consequently, C.M. Appl.
No. 454/2006, filed by the Petitioner seeking interim stay of the
operation of the impugned Award, stood disposed of.
l. It is further pertinent to note that the Respondent attained the
age of superannuation on 10th March, 2015.
3. The Respondent, on the other hand, has opposed the present Writ
Petition on the following grounds-
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a. The Respondent has submitted that the Petition is not
maintainable in law. It is contended that the impugned Award dated
02nd February, 2005 is legal, justified and based on a proper
appreciation of the facts, evidence and applicable law. The
Respondent submits that he is entitled to seniority and consequential
benefits along with his co-employees, including those who were
appointed along with him and subsequently regularised, and that the
learned Tribunal has rightly recognised such entitlement.
b. On merits, the Respondent has asserted that the Petitioner’s
reliance upon the termination of his services in 1983 is
misconceived. It is submitted that he had already been acquitted in
relation to the alleged fatal accident and that the legality of his
termination had already been adjudicated in the earlier industrial
dispute, wherein reinstatement with continuity of service and 50%
back wages was granted. The challenge to the said Award having
been dismissed by this Court, the issue stood concluded and could
not be reopened.
c. The Respondent has specifically disputed the Petitioner’s
reliance upon his leave record and the alleged 93 days of Leave
Without Pay. It is contended that such subsequent events have no
bearing on the validity of the impugned Award, which had already
been passed on 02nd February, 2005, and are therefore wholly
irrelevant for the purposes of the present challenge.
d. Similarly, the Respondent has denied the Petitioner’s reliance
on the extension of his probation period up to 31 st May, 2006,
contending that once his rights stood recognised under the earlier
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Award and the impugned Award, the Petitioner could not defeat or
dilute those accrued rights by subsequently placing him on probation
or extending the same.
4. In addition to the above, the principal grounds urged by the Petitioner
in respect of the reliefs claimed in the present Petition are as follows:
a. The Petitioner primarily contends that the learned Tribunal
erred in directing regularisation of the Respondent with effect from
02nd March, 1982, despite there being no such direction in the earlier
Award dated 01st March, 1999, passed in I.D. No. 141/85. According to
the Petitioner, the said Award merely granted reinstatement with
continuity of service and 50% back wages and did not confer any right
to regularisation.
b. It is further submitted that the Respondent was engaged as a
Retainer Crew Driver on daily wages and, upon reinstatement, was re-
engaged in the same capacity. The subsequent placement of the
Respondent on monthly rates of pay with effect from 01 st June, 2004,
did not amount to regularisation. Under the applicable service
conditions, absorption into the monthly-rated establishment was subject
to merit, seniority, conduct, performance and availability of vacancies.
The Respondent, therefore, could not claim regularisation as a matter of
right.
c. The Petitioner also contends that the learned Tribunal
misconstrued the effect of continuity of service and the provisions of
Section 25-F and Section 2(oo) of the Industrial Disputes Act, 1947. It
is submitted that a finding that termination was illegal, or a direction
granting reinstatement with continuity of service, does not ipso factoSignature Not Verified
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result in regularisation or confer permanent status upon a workman. At
best, reinstatement restores the workman to the position held at the time
of termination. In support of the said submission, reliance has been
placed on the decisions of the Supreme Court in “Allahabad Bank v.
Prem Singh” 1996 (10) SCC 597 and “Madhyamic Siksha Parishad,
Uttar Pradesh v. Anil Kumar Mishra & Ors.” 1994-II-LLJ-977 (SC),
wherein it was held that non-compliance with the Industrial Disputes
Act or completion of 240 days of service does not, by itself, create a
right to regularisation.
d. The Petitioner thus submits that the impugned Award is
contrary to settled principles governing regularisation, suffers from
errors of law and fact, and is consequently liable to be quashed.
5. Per contra, the Respondent controverted the grounds urged by the
Petitioner and submitted as follows:
a. In response to the Petitioner’s contention that the earlier Award
dated 01st March, 1999, did not confer any right to regularisation, the
Respondent has submitted that the learned Tribunal duly considered the
said Award and rightly granted the relief in question. It is further
contended that the Petitioner’s challenge to the earlier Award had
already been rejected by this Court.
b. As regards the Petitioner’s contention that the Respondent
continued to remain a daily-rated Retainer Crew Driver and that his
placement on monthly rates of pay did not amount to regularisation, the
Respondent has submitted that the learned Tribunal correctly
appreciated the applicable service conditions and rightly held himSignature Not Verified
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entitled to regularisation and consequential benefits. It is further
contended that employees junior to him had already been granted
similar benefits and that the subsequent probationary orders could not
defeat his accrued rights.
c. In answer to the Petitioner’s reliance upon Section 25-F of the
Industrial Disputes Act, 1947 and the legal effect of continuity of
service, the Respondent has maintained that the learned Tribunal
correctly appreciated the applicable law and rightly concluded that he
was entitled to regularisation and parity with his co-employees.
d. With regard to the judgments relied upon by the Petitioner, the
Respondent has contended that the same are distinguishable on the
facts and have no application to the present case.
e. The Respondent has, therefore, maintained that the impugned
Award is legal, justified and based on a proper appreciation of the facts
and law, and does not warrant interference by this Court.
ISSUE INVOLVED
6. In light of the facts and grounds noted above, the sole issue that arises
for consideration before this Court is whether the impugned Award dated
02nd February, 2005, passed by the learned Presiding Officer, Industrial
Tribunal-III, Karkardooma Courts, Delhi, in Industrial Dispute (I.D.) No.
28/04 suffers from any illegality, perversity or material irregularity
warranting interference under Article 226 of the Constitution of India.
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SUBMISSIONS OF THE PARTIES
7. Moving on, apart from the grounds expressly pleaded in the Writ
Petition, the Petitioner, through its written submissions, has further
elaborated upon certain aspects of its challenge to the impugned Award.
(i) Respondent’s Failure to Challenge the Reinstatement and
Subsequent Service Orders.
a. The Petitioner has laid considerable emphasis on the fact that
the Respondent never challenged the order dated 18 th March, 2002,
whereby he was reinstated pursuant to the Award dated 01st March,
1999. According to the Petitioner, the said order specifically restored
the Respondent to service as a Retainer Crew Driver on a daily wage
basis and not as a regular Driver. It is contended that the reinstatement
order attained finality and continued to govern the Respondent’s service
status.
b. The Petitioner further submits that the Respondent also did not
challenge the order dated 01st June, 2004, whereby he was brought on
monthly rates of pay along with other Retainer Crew Drivers.
Similarly, no challenge was laid to the subsequent order extending his
probation up to 31st May, 2006.
c. According to the Petitioner, these orders attained finality and
clearly reflected the Respondent’s service status, which was
inconsistent with his claim for retrospective regularisation from the
date of initial appointment.
(ii) Distinction Between Regularisation, Absorption, Probation,
Confirmation and Permanency.
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a. The Petitioner has further contended that the learned Tribunal
failed to appreciate the distinction recognised in service jurisprudence
between regularisation, absorption, probation, confirmation and
permanency.
b. According to the Petitioner, regularisation merely relates to the
manner in which an employee is brought into the regular stream of
service and cannot, by itself, be equated with confirmation or
permanence. It is submitted that even where an employee is
regularised, the acquisition of permanent status remains subject to the
fulfilment of the applicable service requirements, including successful
completion of probation and confirmation in accordance with the
governing rules.
c. It is, therefore, contended that regularisation does not
automatically confer permanent status and that permanence would still
require confirmation in accordance with the applicable service rules.
According to the Petitioner, the learned Tribunal erred in treating
regularisation as synonymous with permanence and in granting
consequential benefits on that basis.
(iii) Effect of Reinstatement and Continuity of Service
a. A further submission advanced by the Petitioner pertains to the
legal effect of the Award dated 01st March, 1999, granting
reinstatement with continuity of service.
b. According to the Petitioner, the settled position in law is that an
order of reinstatement merely restores a workman to the status which
he held at the time of termination and does not confer any higher or
different status. It is contended that the Respondent was serving as a
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daily-rated Retainer Crew Driver when his services were dispensed
with in 1983 and, therefore, reinstatement could only restore him to
that very position.
c. The Petitioner submits that the expression “continuity of
service” could not have been construed by the learned Tribunal as
conferring an entitlement to regularisation from the date of initial
appointment. According to the Petitioner, continuity of service is not
synonymous with regularisation and does not automatically carry with
it all service benefits.
d. It is argued that even where continuity of service is directed, the
same ought ordinarily to operate only for limited purposes such as
pensionary and retirement benefits and cannot, without a specific
direction, be extended to confer benefits such as regularisation,
seniority, promotions, increments or other incidents of permanent
service.
e. The Petitioner thus contends that neither the direction of
reinstatement nor the grant of continuity of service could, by
themselves, elevate the Respondent to the status of a regular employee
or create an independent right to regularisation. Consequently, the
learned Tribunal is stated to have erred in proceeding on the basis that
the earlier Award entitled the Respondent to regularisation with effect
from his initial appointment.
(iv) Interpretation of Clause (6) Governing Retainer Crew Drivers
a. The Petitioner has placed considerable reliance on Clause (6) of
the terms and conditions governing the engagement of Retainer Crew
Drivers. It is submitted that the said provision specifically
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contemplated absorption of a Retainer Crew Driver into the monthly-
rated temporary establishment of Drivers only based on merit,
seniority, conduct and performance.
b. According to the Petitioner, absorption into the monthly-rated
establishment was neither automatic nor a consequence of mere length
of service. It was contingent upon satisfaction of the prescribed criteria
and consideration of the employee’s overall service record.
c. On this basis, the Petitioner contends that the learned Tribunal
erred in treating the Respondent’s placement on monthly rates of pay as
tantamount to regularisation, particularly when the governing service
conditions envisaged a separate process of absorption based on the
aforesaid parameters. The Petitioner thus maintains that the Respondent
was never formally regularised in accordance with the applicable
service conditions.
(v) Judicial Precedents Relied Upon
a. In support of the aforesaid submissions, the Petitioner has
placed reliance upon certain judicial authorities in addition to those
cited in the Writ Petition.
b. The Petitioner has relied upon the decision of the Supreme
Court in “Deepali Gundu Surwase v. Kranti Junior Adhyapak
Mahavidyalaya (D.Ed.) and Others”, (2013) 10 SCC 324 to contend
that the grant of continuity of service does not necessarily result in the
conferment of all consequential service benefits and that the scope and
effect of such continuity must be determined in the context of the relief
actually granted.
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c. Reliance has also been placed upon the decision of the Delhi
High Court in “Bhagwan Das and Others v. University of Delhi and
Others“, 2005 (1) SLJ 447 DELHI. The Petitioner submits that the said
decision recognises the principle that a finding of illegality in
termination on account of non-compliance with Section 25-F or other
provisions of the Industrial Disputes Act, 1947 does not, by itself,
confer a right to regularisation or permanent status. According to the
Petitioner, the said judgment supports its contention that reinstatement
and continuity of service cannot automatically be translated into a
claim for retrospective regularisation.
d. The Petitioner has further relied upon the judgment of the
Supreme Court in “Regional Manager, State Bank of India v.
Mahatma Mishra“, 2006 AIR SCW 5957, in support of its submission
that reinstatement or continuation in service cannot, by itself, create a
legal right to regularisation and that claims relating to permanent status
must be independently established in accordance with law.
8. In response to the aforesaid contentions, the following submissions
have been made on behalf of the Respondent.
a. The Respondent has contended that the relief of continuity of
service granted under the Award dated 01st March, 1999, cannot be
treated as a mere formality or notional declaration. According to the
Respondent, once reinstatement with continuity of service and 50%
back wages was directed and the said Award attained finality, he was
required to be treated as having remained in service without
interruption for all practical purposes. It is submitted that continuity of
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service necessarily postulates an unbroken and uninterrupted service
record and requires recognition of the employee’s past service,
notwithstanding the intervening period during which he remained out
of employment on account of the illegal termination.
b. The Respondent submits that if regularisation is reckoned only
from the date of reinstatement and not from the point at which he
would otherwise have become entitled to such benefit, the direction
granting continuity of service would be rendered ineffective. According
to the Respondent, the very object underlying the grant of continuity of
service is to place the employee, to the extent possible, in the same
position in which he would have stood had the illegal termination never
taken place.
c. The Respondent has further emphasised that treating him as a
fresh entrant upon reinstatement would result in serious civil and
service consequences. It is submitted that such an approach would
place him below employees who were originally junior to him, thereby
disturbing his position in the cadre. The Respondent contends that he
would also suffer financial prejudice since his pay would be fixed at the
level applicable to a fresh appointee rather than at the stage
corresponding to his actual length of service.
d. The Respondent has additionally submitted that denial of the
benefit of past service would adversely affect his retirement-related
entitlements. According to the Respondent, if the period between
removal and reinstatement is not treated as qualifying service, he would
be deprived of the benefit of length of service for the purposes of
gratuity, provident fund, pension and other retirement benefits.
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e. It is further submitted that refusal to accord full effect to
continuity of service would also result in denial of benefits dependent
upon service tenure, including the benefits available under the Assured
Career Progression (ACP) Scheme, annual increments and other
service-related advancements. According to the Respondent, such
consequences would effectively nullify the relief granted under the
earlier Award and deprive him of the practical benefits flowing from
the declaration that his termination was illegal.
f. In support of the aforesaid submissions, the Respondent has
placed reliance upon the decision of this Court in “Mahabir Prasad v.
Delhi Transport Corporation“, 2014 SCC OnLine Del 3757. The
Respondent submits that the said decision recognises that where
continuity of service is granted, the employee may be entitled to
consequential service benefits, including notional increments, benefits
under the Assured Career Progression Scheme and reckoning of the
intervening period between removal and reinstatement for the purposes
of retirement benefits. According to the Respondent, the said decision
supports his contention that continuity of service must be given
substantive effect and cannot be confined to a merely symbolic or
technical benefit.
ANALYSIS AND REASONING
9. The Court has heard the learned Counsel for the respective parties and
perused the record. Accordingly, this Court proceeds to determine the issues
arising for consideration on the basis of the material available on record, the
submissions advanced on behalf of the parties, the precedents relied upon,
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and the settled principles of law laid down in a catena of decisions of the
High Courts and the Hon’ble Supreme Court.
10. Before adverting to answering the issue framed in the present Petition,
it is apposite to observe that the jurisdiction of this Court under Articles 226
and 227 of the Constitution of India, while examining an Award passed by
the Labour Court, is supervisory in nature and circumscribed in scope. It is
well settled that the High Court does not act as an appellate authority over
the findings returned by the Labour Court. Interference is warranted only
where the Award suffers from patent illegality, perversity, jurisdictional
error, or where material evidence has been ignored.
11. The Supreme Court in Syed Yakoob v. K.S. Radhakrishnan, AIR
1964 SC 477, held that interference under certiorari jurisdiction is only
justified where a tribunal acts in excess of jurisdiction or where its findings
are based on no evidence.
12. Therefore, the High Court, in writ proceedings, does not re-examine
or re-appreciate the evidence recorded by the Tribunal below, nor does it
substitute its own view for that of the adjudicatory body. The award of the
Labour Court can be set aside only if there is an error apparent on the face of
the record.
13. So, while this Court remains conscious of the limitations inherent in
writ jurisdiction, it is equally mindful that findings rendered in disregard of
the settled legal principles, or the admitted evidence, cannot be permitted to
sustain merely on considerations of judicial restraint.
14. To determine the controversy arising in the present Petition, the
foremost question that falls for consideration is whether the learned
Industrial Tribunal was justified in holding that the Respondent became
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entitled to regularisation with effect from 02nd March, 1982 solely because
the earlier Award dated 01st March, 1999 directed his reinstatement with
continuity of service and 50% back wages. The controversy, therefore, lies
not in the validity of the earlier Award, but in determining the legal
consequences flowing therefrom. Therefore, it is necessary to examine the
true import of the earlier Award dated 01st March, 1999, passed in I.D.
No.141/85.
15. In view of the aforesaid, it becomes quintessential for this Court to
determine whether the learned Industrial Tribunal misdirected itself in law
in directing the regularisation of the Respondent with effect from 02nd
March, 1982, by way of the impugned Award.
16. The Respondent has contended that once reinstatement with
continuity of service was directed and the Award attained finality, he was
required to be treated as having remained in uninterrupted service for all
purposes. According to him, denying regularisation from the date on which
he would otherwise have become eligible renders the relief of continuity of
service illusory and places him below employees admittedly junior to him. It
is further submitted that continuity of service necessarily carries with it all
consequential service benefits, including regularisation, seniority, pay
fixation, promotional avenues and retirement benefits.
17. The Petitioner, on the other hand, contends that the learned Tribunal
fundamentally misconstrued the legal effect of reinstatement and continuity
of service. According to the Petitioner, reinstatement merely restored the
Respondent to the position which he occupied immediately prior to his
termination, namely that of a daily-rated Retainer Crew Driver. It is
submitted that neither the earlier Award nor the order of reinstatement dated
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18th March, 2002 conferred permanent status or directed regularisation. The
Petitioner further contends that continuity of service cannot be equated with
regularisation and that the Respondent’s entitlement to regularisation had to
be independently examined under the applicable service conditions
governing Retainer Crew Drivers.
18. At the outset, the rival submissions necessitate an examination of
three distinct concepts in service jurisprudence, namely reinstatement,
continuity of service and regularisation. Though these expressions
frequently appear together in industrial adjudication, they are not
interchangeable, and each operates within a distinct legal framework.
19. To begin with, ‘Reinstatement’ is a relief granted by a judicial or
quasi-judicial forum where the termination of an employee is found to be
illegal or otherwise unsustainable in law. The object of such relief is to
restore the employer-employee relationship which stood wrongfully severed
and to place the employee, as far as practicable, in the same position in
which he would have been had the illegal termination not taken place.
20. Support may be taken from the judgment of “Deepali Gundu
Surwase (supra)” in this regard. The relevant paragraph of the judgment has
been extracted hereunder-
“16. The word “reinstatement” has not been defined in the Act
and the Rules. As per Shorter Oxford English Dictionary, Vol.II,
3rd Edition, the word “reinstate” means to reinstall or re-
establish (a person or thing in a place, station, condition, etc.);
to restore to its proper or original state; to reinstate afresh and
the word “reinstatement” means the action of reinstating; re-
establishment. As per Law Lexicon, 2nd Edition, the word
“reinstate” means to reinstall; to re establish; to place again in
a former state, condition or office; to restore to a state or
position from which the object or person had been removed andSignature Not Verified
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the word “reinstatement” means establishing in former
condition, position or authority (as) reinstatement of a deposed
prince. As per Merriam Webster Dictionary, the word
“reinstate” means to place again (as in possession or in a former
position), to restore to a previous effective state. As per Black’s
Law Dictionary, 6th Edition, “reinstatement” means ‘to
reinstall, to re-establish, to place again in a former state,
condition, or office? To restore to a state or position from which
the object or person had been removed”
21. Reinstatement, however, does not amount to a fresh appointment, nor
does it elevate the status of an employee beyond what existed immediately
prior to termination. It merely revives the employment relationship in the
same capacity in which the employee was serving when his services came to
be terminated.
22. Equally distinct is the concept of ‘Continuity of Service’. The
expression is intended to efface the artificial break in service caused by an
illegal order of termination with no fault on the workman’s end and to
ensure that such interruption does not prejudice the workman in matters
where uninterrupted service carries legal significance.
23. The grant of continuity of service creates a legal fiction whereby the
intervening period between the termination and reinstatement is treated as
part of the employee’s continuous service. Such continuity is ordinarily
relevant for purposes such as computation of qualifying service, pensionary
benefits, gratuity, seniority, where permissible under the applicable statutory
provisions or service rules, and other service benefits dependent upon the
length of service.
24. Therefore, continuity of service cannot be construed in isolation. Its
scope and effect must be understood in the context in which it is granted and
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the applicable statutory framework or service rules. By itself, continuity of
service does not constitute an independent source of substantive rights, nor
does it automatically confer benefits that are not expressly granted or
otherwise available in law.
25. In Deepali Gundu Surwase (supra), the Hon’ble Supreme Court, after
considering a catena of earlier decisions, including Hindustan Tin Works
(P) Ltd. v. Employees (1979) 2 SCC 80; Surendra Kumar Verma v. Central
Government Industrial Tribunal-cum-Labour Court, New Delhi (1980) 4
SCC 443; U.P. State Brassware Corporation Ltd. v. Uday Narain Pandey (
2006) 1 SCC 479; J.K. Synthetics Ltd. v. K.P. Agrawal & Anr (2007) 2
SCC 433, and several other precedents, examined the legal consequences of
reinstatement following wrongful termination. The Court held that
reinstatement, if not accompanied by continuity of service and, where
warranted, back wages, may not fully redress the prejudice caused by the
illegal termination. At the same time, the Hon’ble Court recognised that
while continuity of service ordinarily entitles an employee to benefits
flowing from uninterrupted service, the actual consequences depend upon
the nature of employment, the governing rules and the relief granted by the
adjudicating authority. Nonetheless, the judgment cannot be read as laying
down an absolute proposition that continuity of service invariably confers
every conceivable service benefit irrespective of the statutory framework
governing the employment. The relevant paragraph of the said judgment is
reproduced hereunder:
“33. The propositions which can be culled out from the
aforementioned judgments are:
i) In cases of wrongful termination of service, reinstatement with
continuity of service and back wages is the normal rule.
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ii) The aforesaid rule is subject to the rider that while deciding
the issue of back wages, the adjudicating authority or the Court
may take into consideration the length of service of the
employee/workman, the nature of misconduct, if any, found
proved against the employee/workman, the financial condition of
the employer and similar other factors.
iii) Ordinarily, an employee or workman whose services are
terminated and who is desirous of getting back wages is required
to either plead or at least make a statement before the
adjudicating authority or the Court of first instance that he/she
was not gainfully employed or was employed on lesser wages. If
the employer wants to avoid payment of full back wages, then it
has to plead and also lead cogent evidence to prove that the
employee/workman was gainfully employed and was getting
wages equal to the wages he/she was drawing prior to the
termination of service. This is so because it is settled law that the
burden of proof of the existence of a particular fact lies on the
person who makes a positive averments about its existence. It is
always easier to prove a positive fact than to prove a negative
fact. Therefore, once the employee shows that he was not
employed, the onus lies on the employer to specifically plead and
prove that the employee was gainfully employed and was getting
the same or substantially similar emoluments.
[………………………]
vii) The observation made in J.K. Synthetics Ltd. v. K.P. Agrawal
(supra) that on reinstatement the employee/workman cannot
claim continuity of service as of right is contrary to the ratio of
the judgments of three Judge Benches referred to hereinabove
and cannot be treated as good law. This part of the judgment is
also against the very concept of reinstatement of an
employee/workman”
(emphasis supplied)
26. The legal position, therefore, stands settled that an order directing
reinstatement coupled with continuity of service, though carrying important
legal consequences, does not ipso facto entitle a workman to every
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consequential service benefit. While reinstatement restores the employer-
employee relationship by placing the workman in the position held
immediately before the illegal termination, continuity of service merely
obliterates the artificial break in service to ensure that the employee is not
deprived of benefits dependent upon uninterrupted service. However, in the
absence of an express direction or an independent entitlement flowing from
the applicable statutory provisions, service rules or governing policy, neither
reinstatement nor continuity of service can be interpreted as conferring a
right to regularisation, notional increments, or any other substantive service
benefits that were not otherwise available. The extent and nature of the
benefits flowing from such relief must, therefore, be determined having
regard to the terms of the award, the nature of the employment, and the legal
framework governing the service conditions.
27. The aforesaid principle has consistently been recognised by the
Hon’ble Supreme Court time and again. In Allahabad Bank v. Prem Singh
(Supra), the Supreme Court held that reinstatement following illegal
termination merely restores the employee to his original position and cannot
automatically confer permanent status or regular appointment. Similarly, in
Regional Manager, State Bank of India v. Mahatma Mishra (Supra), it
was reiterated that continuance in service or reinstatement does not, by
itself, create a legal right to regularisation unless such right otherwise flows
from the applicable statutory rules or service conditions.
28. In furtherance, the Hon’ble Apex Court in the judgment of
“A.P.S.R.T.C. & Anr. vs. S. Narsagoud” (2003) 2 SCC 212, held that a
distinction must be drawn between a direction of reinstatement with
continuity of service and a direction granting all consequential service
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benefits. Continuity of service, by itself, merely preserves the employee’s
service for limited purposes and does not automatically entitle the employee
to increments or other consequential benefits for the intervening period,
unless the Court specifically directs the grant of such benefits. Furthermore,
in the judgment of “A.P.S.R.T.C. & Anr. vs. Abdul Kareem“, 2007 (2) SCC
466, the Hon’ble Supreme Court reaffirmed the principle laid down in “A.P.
S.R.T.C. v. S. Narsagoud (Supra), holding that an order of reinstatement
with continuity of service cannot, in the absence of a specific direction, be
construed as conferring all consequential service benefits.
29. This distinction between reinstatement and the consequential benefits
flowing therefrom assumes significance in the present case. The earlier
Award merely directed the reinstatement of the Respondent with continuity
of service and 50% back wages. It neither directed the regularisation of the
Respondent’s services nor declared that he was to be treated as a regular
Driver from the date of his initial engagement. However, while passing the
impugned Award, the learned Tribunal proceeded to treat the earlier Award
as the foundation for granting regularisation to the Respondent. The Award
was confined to directing reinstatement with continuity of service and partial
back wages and cannot be construed as conferring upon the Respondent the
status of a regular employee or directing his retrospective regularisation.
30. Regularisation occupies an altogether different field in service
jurisprudence. Unlike reinstatement or continuity of service, regularisation
concerns the conferment of substantive status in public employment by
bringing an employee into the regular cadre against a sanctioned post in
accordance with the governing recruitment rules and the constitutional
mandate embodied in Articles 14 and 16 of the Constitution.
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31. The doctrine of regularisation emerged in response to the increasing
reliance of public authorities on daily-wage, ad hoc, contractual and other
temporary appointments to meet growing administrative needs. Over time,
these temporary engagements evolved into a parallel informal workforce
performing perennial functions without security of tenure, equal wages, or
service benefits, despite the employer’s continued dependence on their
services.
32. Early judicial intervention, guided by considerations of fairness and
social justice, treated regularisation as an equitable remedy to alleviate the
hardship faced by long-serving temporary employees. However, the
indiscriminate grant of regularisation subsequently raised serious
constitutional concerns, as it bypassed the prescribed recruitment process,
undermined the principles of equal opportunity and merit-based public
employment, and diluted reservation policies. The Courts were, therefore,
called upon to balance the competing claims of long-serving temporary
employees with the constitutional rights of eligible candidates seeking
public employment.
33. It was in this backdrop that the Hon’ble Supreme Court, in its
Constitution Bench judgment in Secretary, State of Karnataka v. Uma Devi,
(2006) 4 SCC 1, held that regularisation cannot be treated as an alternative
mode of recruitment. The Court observed that public employment must
conform to the constitutional mandate of equal opportunity and that
appointments made de hors the prescribed recruitment procedure cannot
ordinarily be regularised merely because the employee has continued in
service for a considerable period. The Constitution Bench further cautioned
that Courts, while exercising the power of judicial review, cannot direct
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regularisation solely on equitable considerations, as such directions would
defeat the constitutional guarantee of equality in matters of public
employment.
34. Furthermore, in Uma Devi (supra), the Hon’ble Supreme Court, while
reaffirming the constitutional limitations on regularisation, poignantly
acknowledged the emotional and economic hardship endured by long-
serving temporary employees. Adopting a calibrated and balanced approach,
the Constitution Bench carved out a one-time measure permitting the
regularisation of employees who had rendered more than ten years of
continuous service against sanctioned posts, provided their appointments
were irregular and not illegal. The decision thus reflects a jurisprudence that
is both constitutionally principled and humane.
35. The same principle came to be reaffirmed by the Hon’ble Supreme
Court in the judgment of “State of Rajasthan & Ors. v. Dayalal & Ors.”
(2011) 2 SCC 429, wherein it was held that neither long service nor an order
of reinstatement with continuity of service creates an automatic right to
regularisation,
“8. We may at the outset refer to the following well settled
principles relating to regularization and parity in pay, relevant
in the context of these appeals:
[…]
(ii) Mere continuation of service by an temporary or ad hoc or
daily-wage employee, under cover of some interim orders of the
court, would not confer upon him any right to be absorbed into
service, as such service would be ‘litigious employment’. Even
temporary, ad hoc or daily wage service for a long number of
years, let alone service for one or two years, will not entitle such
employee to claim regularization, if he is not working against a
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passing any order of regularization in the absence of a legal
right. [….]”
(emphasis supplied)
36. Viewed from the aforesaid legal perspective, the earlier Award dated
01st March, 1999 requires careful examination. A plain reading thereof
leaves no manner of doubt that the learned Tribunal intended only to restore
the Respondent to the position which he occupied immediately prior to his
illegal termination. Accordingly, the Award directed reinstatement with
continuity of service and 50% back wages. Significantly, no direction was
issued declaring the Respondent to be a regular Driver, nor was any
declaration made that he would stand regularised from the date of his initial
engagement.
37. Consequently, the legal effect of the earlier Award was confined to
restoring the Respondent to his original status as a daily-rated Retainer Crew
Driver, while extending to him the benefit of continuity of service for the
purposes recognised by law. Whether such continuity subsequently entitled
him to claim regularisation was an independent issue, to be determined with
reference to the applicable service regulations, the governing policy, the
treatment accorded to similarly situated employees, and the factual
circumstances prevailing during the relevant period. Such an entitlement
could not be inferred merely from the grant of continuity of service.
38. This Court finds considerable merit in the submissions advanced on
behalf of the Petitioner in the aforesaid regard and accordingly accepts the
same.
39. This Court is, therefore, of the considered opinion that the
learned Tribunal erred in proceeding on the premise that the earlierSignature Not Verified
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Award, by itself, created a vested right in favour of the Respondent to
claim retrospective regularisation with effect from 02nd March, 1982.
The earlier industrial dispute was confined to the legality of the
Respondent’s termination and the consequential relief of reinstatement with
continuity of service and partial back wages. The question of regularisation
neither arose for consideration nor was it adjudicated therein.
40. The claim for regularisation constituted a distinct and independent
cause of action, which required adjudication on its own merits in the
subsequent reference. The learned Tribunal was, therefore, under an
obligation to examine such claim independently, on the basis of the
pleadings, the evidence led by the parties, the applicable service regulations
and policy governing Retainer Crew Drivers, and the treatment accorded to
similarly situated employees. Instead, the learned Tribunal proceeded on the
erroneous premise that the earlier Award itself conferred a right to
regularisation. Such an approach, in the considered opinion of this Court,
amounts to attributing to the earlier Award a consequence which it neither
expressly provided for nor could be said to have impliedly intended. The
relief of continuity of service, though undoubtedly significant, cannot, in the
absence of an express direction or an independent legal entitlement, be
elevated to a declaration of permanent status or retrospective regularisation.
41. Nevertheless, this conclusion does not, by itself, conclude the
controversy. The Respondent has specifically contended that, under the
service conditions governing Retainer Crew Drivers, several employees
junior to him were absorbed into the monthly-rated establishment during the
period when he remained out of service owing to the illegal termination and
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similar treatment. Such a plea cannot be rejected merely because continuity
of service, by itself, does not confer a right to regularisation. If established
on facts, the allegation of discriminatory treatment vis-Ã -vis juniors would
undoubtedly require independent adjudication on the touchstone of the
applicable service conditions and the constitutional principles of equality
and non-arbitrariness.
42. Viewed thus, the determinative issue before the learned Tribunal,
along with whether continuity of service automatically resulted in
regularisation, was whether, on an application of the governing service
conditions to the evidence adduced before it, the Respondent had established
his entitlement to be considered for regularisation along with his juniors.
Unfortunately, the learned Tribunal did not undertake such an exercise.
Instead, the impugned Award proceeds on assumptions unsupported either
by the governing service framework or by a proper appreciation of the
evidence led by the parties.
43. At the outset, this Court finds that the impugned Award proceeds on
an erroneous understanding of the concepts of absorption and regularisation,
treating the two expressions as interchangeable. In service jurisprudence,
however, the two occupy distinct legal fields.
44. Absorption ordinarily denotes the process by which an employee
serving in one capacity is brought into another establishment or cadre in
accordance with the applicable service conditions. Regularisation, on the
other hand, concerns the conferment of regular status in service in
accordance with the governing statutory provisions, recruitment rules or
applicable policy. Though the two processes may, in a given factual
situation, overlap, they cannot be treated as synonymous in law.
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45. The distinction assumes considerable significance in the facts of the
present case. Clause (6) governing Retainer Crew Drivers contemplated
absorption into the monthly-rated temporary establishment subject to
fulfilment of specified conditions, namely seniority, merit, conduct,
performance and availability of vacancies. The learned Tribunal, however,
proceeded as though such absorption automatically resulted in regularisation
from the date of initial engagement, without examining whether the
governing policy itself contemplated any such consequence.
46. Significantly, the impugned Award contains no discussion whatsoever
regarding the legal distinction between absorption and regularisation or the
manner in which the applicable service conditions were required to operate.
In the considered opinion of this Court, the failure to appreciate this
fundamental distinction has materially affected the reasoning adopted by the
learned Tribunal and constitutes a manifest error apparent on the face of the
Award.
47. Equally significant is the state of the evidence before the learned
Tribunal.
48. The Petitioner sought to dispute the Respondent’s claim primarily by
relying upon the affidavit of Shri K.D. Sobti. The said affidavit merely
reiterated the policy governing the absorption of Retainer Crew Drivers in
the DTC and contained vague assertions regarding the Respondent’s leave
record and his debarment from work. Significantly, however, the affidavit
failed to satisfactorily answer the specific queries raised by the learned
Tribunal concerning the Respondent’s service conditions and the basis of his
claim for regularisation.
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49. Apart from the said affidavit, the Petitioner did not produce any
policy documents, seniority records, administrative circulars or other
contemporaneous material explaining the manner in which Retainer Crew
Drivers were considered for regularisation. More importantly, no material
was placed before the learned Tribunal to demonstrate whether the employer
itself treated absorption and regularisation as distinct concepts or whether
absorption into the monthly-rated establishment automatically culminated in
regularisation. Thus, the Petitioner’s defence remained unsupported by the
relevant service records which alone could have clarified the applicable
policy.
50. The Respondent, on the other hand, asserted that employees junior to
him had been absorbed or regularised during the period when he remained
out of service on account of the illegal termination and that he had thereby
been denied equal treatment. However, this assertion was equally
unsupported by documentary evidence. No seniority list, appointment
orders, regularisation orders, comparative service particulars or any other
contemporaneous record was produced to substantiate the plea that similarly
situated employees junior to him had, in fact, been extended such benefits.
51. The plea of parity constituted the very foundation of the Respondent’s
claim. Once the same was specifically disputed by the employer, it became
incumbent upon the Respondent to place before the learned Tribunal some
material demonstrating that such differential treatment had in fact occurred.
Equally, the Petitioner was required to substantiate its defence by producing
the governing service records and policy documents. Neither party
discharged the evidentiary burden cast upon it.
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52. Notwithstanding these deficiencies, the learned Tribunal proceeded to
grant the Respondent the benefit of retrospective regularisation. The
impugned Award neither identifies the evidence upon which such
conclusion is founded nor records any finding that the conditions governing
absorption or regularisation stood satisfied. Instead, the learned Tribunal
appears to have proceeded primarily on the basis of the earlier Award
granting continuity of service and the affidavit of Shri K.D. Sobti, without
explaining how either established the Respondent’s entitlement to
retrospective regularisation.
53. More importantly, the learned Tribunal failed to examine the service
framework governing Retainer Crew Drivers altogether. There is no
discussion regarding the availability of vacancies, comparative seniority,
merit, conduct or performance of the Respondent, despite these being
relevant considerations under Clause (6) governing absorption into the
monthly-rated establishment. Equally absent is any consideration of the
Petitioner’s defence that absorption was subject to fulfilment of objective
conditions and did not follow automatically upon completion of any
particular period of service.
54. This omission assumes greater significance because the reference
before the learned Tribunal did not concern the legality of the Respondent’s
termination. That issue had already attained finality by virtue of the earlier
Award dated 01st March, 1999. The limited question requiring adjudication
in the subsequent reference was whether, notwithstanding his reinstatement,
the Respondent had established an independent entitlement to regularisation
from 02nd March, 1982. Such an issue necessarily required a detailed
examination of the governing service conditions, the relevant policy, theSignature Not Verified
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comparative treatment accorded to similarly situated employees and the
evidence led by both parties. The impugned Award, however, is
conspicuously silent on all these material aspects.
55. The learned Tribunal was under a duty to evaluate the pleadings,
appreciate the evidence adduced by the parties and record findings
supported by cogent reasons. Instead, the impugned Award merely records
conclusions without disclosing the analytical process by which those
conclusions were reached. Material contentions raised by both sides remain
unanswered, and the Award does not indicate the evidentiary basis upon
which the Respondent’s claim came to be accepted.
56. It is well settled that recording of reasons is an indispensable facet of
every judicial and quasi-judicial determination. Reasons constitute the
heartbeat of a judicial decision. They demonstrate due application of mind,
enable the parties to understand the basis of the conclusion reached and
facilitate effective judicial review by the superior Courts. Equally well
settled is the principle that an order unsupported by reasons, or one rendered
without proper appreciation of the material evidence on record, cannot be
sustained merely because the ultimate conclusion may otherwise appear
plausible.
57. Tested on these settled principles, the impugned Award cannot be
sustained. The learned Tribunal has failed to appreciate the legal distinction
between absorption and regularisation; it has proceeded in the absence of the
relevant documentary material governing the service conditions of Retainer
Crew Drivers; it has accepted the Respondent’s plea of parity without any
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adequate reasons. The cumulative effect of these deficiencies renders the
adjudication legally unsustainable.
58. For all the aforesaid reasons, this Court is of the considered opinion
that the impugned Award dated 02nd February, 2005 cannot be sustained.
The learned Tribunal has failed to independently adjudicate the
Respondent’s claim for regularisation in accordance with the applicable
service conditions and the evidence brought on record. Instead, it has
proceeded on the erroneous premise that the earlier Award granting
reinstatement with continuity of service, by itself, conferred a right to
retrospective regularisation. Such an approach is contrary to the settled
principles governing reinstatement, continuity of service and regularisation,
and has resulted in a legally unsustainable adjudication.
59. Accordingly, the impugned Award dated 02nd February, 2005,
passed by the learned Industrial Tribunal, cannot be sustained in law
and is hereby set aside. The matter is remanded to the learned
Industrial Tribunal for fresh adjudication in accordance with law,
keeping in view the observations made hereinabove.
60. The reference shall, therefore, stand restored to the file of the learned
Industrial Tribunal, which shall adjudicate the Respondent’s claim for
regularisation independently and on its own merits, in accordance with the
applicable service conditions, the governing policy, the evidence already
available on record and such further evidence, if any, as the learned Tribunal
may consider necessary to permit in the interests of justice.
61. It is clarified that this Court has not expressed any opinion on the
merits of the Respondent’s claim for regularisation. The observations
contained in the present judgment are confined to the legal infirmities foundSignature Not Verified
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in the impugned Award and shall not be construed as an expression on the
ultimate entitlement of either party. All rights and contentions of the parties
on the issue of regularisation are expressly kept open to be urged before the
learned Industrial Tribunal.
62. Considering that the industrial dispute has remained pending for a
considerable period of time, the learned Industrial Tribunal is requested to
make an endeavour to dispose of the reference as expeditiously as possible,
preferably within a period of three months from the date of receipt of a copy
of this judgment.
63. The present Writ Petition is, accordingly, disposed of in the aforesaid
terms. Pending applications, if any, also stand disposed of. There shall be no
order as to costs.
SHAIL JAIN
JUDGE
JULY 28, 2026/MMSignature Not Verified
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